The Legal Scope of the Germano-Duala Treaties

Scientific Essay , 2022 , 20 Pages

History - Africa

Adamou NDAM NJOYA writes that the Treaty of 12 July 1884 is not a treaty between States but rather an agreement between German private firms and Duala princes. He indicates that while the Preliminary Treaty was signed by a representative of the German Reich, the Final Treaty was signed only by the German firms of Duala although the Reich later acknowledged it. Another criticism of the Germano-Duala Treaty is based on the fact that the final agreement omitted the clauses of the Preliminary Treaty, clauses by which the kings and chiefs preserved their commercial monopoly. Moreover, the agreement of 12 July 1884 was not ratified by all the Duala sovereigns.

Prince LOCK PRISO of Hickorytown refused to sign it and organized fierce resistance. This resistance led to an open war against the Germans from December 10 to 22, 1884. By this agreement, the Duala kings and chiefs ceded their rights of sovereignty, legislation and administration to German private firms and finally to the Reich. They only retained their rights to levy taxes but lost their rights to negotiate with other parties.

By reserving this right to levy taxes and keep the lands of towns and villages “as private property of the natives” when they would lose their sovereignty, the Duala created an ambiguous situation that later became a source of conflict.

For Adamou NDAM NJOYA, for example, in Cameroon in International Relations, writes that the Treaty of 12 July 1884 is not a treaty between States but rather an agreement between German private firms and Duala princes¹.

He indicates that while the Preliminary Treaty was signed by a representative of the German Reich, the Final Treaty was signed only by the German firms of Douala although the Reich later acknowledged it. Another criticism of the Germano-Duala Treaty is based on the fact that the final agreement omitted the clauses of the Preliminary Treaty, clauses by which the kings and chiefs preserved their commercial monopoly. Moreover, the agreement of 12 July 1884 was not ratified by all the Duala sovereigns.

Prince LOCK PRISO² of Hickorytown³ refused to sign it and organized fierce resistance. This resistance led to an open war against the Germans from December 10 to 22, 1884. By this agreement, the Duala kings and chiefs ceded their rights of sovereignty, legislation and administration to German private firms and finally to the Reich. They only retained their rights to levy taxes but lost their rights to negotiate with other parties.

By reserving this right to levy taxes and keep the lands of towns and villages “as private property of the natives” when they would lose their sovereignty (1-), the Duala created an ambiguous situation that later became a source of conflict (2-).

1. The Signing of the Treaty of 12 July 1884 and the Loss of the Sovereignty of Duala Chiefs.

This agreement also meant not only the possible loss of the intermediary advantage of the Duala in the trade between the Europeans and the Germans although they did not realize it. This ambiguity eventually led to an attempt to expropriate their lands in 1912. Finally, from an international perspective, Germany had acquired a colony on the coast of Guinea and participated in the Berlin conference⁴ with new assets to the negotiators.

The scientific literature on the German colonial period in Cameroon falsely claims to know of this treaty only the German translation which was published during the affair of the expatriation of lands in Douala in May 1914, that is, almost at the end of the German presence in Cameroon. RUDIN in his book Germans in the Cameroons⁵ states in the appendix that it was impossible for him to find the original text in English.

BRUTSCH in the “Cameroonian Treaties” states about the Protectorate Treaty : « We can therefore only present here the official German translation given in the important Reichstag Memorial, published in 1914 to justify the expropriation of the Joss plateau in Douala »⁶.

The Reverend Pastor MVENG in his History of Cameroon ⁷ says the same thing. In his book A travers le Cameroun du sud au nord published in 1893, Lieutenant MORGEN⁸ gives a translation in the introduction, which proves that the original in English actually existed and was accessible to the public⁹.

The second point concerns the fact that Duala Chiefs never received a copy of the treaty. Again, Pastor BRUTSCH, relying on the contents of a letter from a British naval officer, dated 26 July 1884, published in the “Blue Book”¹⁰ of 1885, states that, according to this letter, “Kings Akwa and Bell did not receive a copy of it¹¹.”

Albert WIRZ agrees when he writes : « Significantly, the Duala have not received a copy of the text of the treaty »¹². Note that these authors are not the only ones to defend this thesis which of course is based on completely plausible testimony.

Max BUCHNER shows in Kamerun ¹³ how treaties were generally made ; according to him, such a document was usually made in two copies, one of which was given to the African leader¹⁴. In their petition, the AKWA chiefs asked the Reichstag to demand a copy of the treaty from the Colonial Department in order to read the conditions they had set when it was signed, and they did not attach a copy of the treaty to the petition… This point in the Akwa Chiefs' petition brings us an important new fact : the Duala¹⁵ were in possession of a copy of the treaty. The existence of the latter is virtually confirmed by the letter of MPONDO AKWA addressed from Berlin on February 22, 1906 to the AKWA chiefs.

Representing the AKWA in Germany, he managed to get a copy of the treaty. He sent it to them and asked them to keep it. At the same time, his letter gives us an idea of the conditions under which the Duala copy would have disappeared : “… keeps the contract safe so that it is not resold, like the first one¹⁶.” “The Duala copy would have been sold ? To whom ? Who had an interest in the fact that such a document did not exist ?" Indeed, if their agreement has produced legal effects beyond the national framework, they deserve to be qualified as subjects of international law and better still, subjects of international law with the contractual capacity required by Article 2 of the 1969 Convention.

We know that since the work of Thomas HOBBES, himself preceded by Samuel VON PUFENDORF, the quality of subjects of international law is limited to States and their legal representatives¹⁷.

Emer DE VATTEL gives an eloquent overview : “Nations deal with and communicate with each other through public ministers, many of whom may exist in different orders and species, but all of whom possess the essential (and) common character of being representatives of a foreign power¹⁸.”

This idea taken up by the contemporaries was already presented in the pen of Charles SALOMON : The international community is made up of a number of international legal persons (and this quality, and the benefits derived therefrom, are recognized only by States) who alone can be the subject of international legal relations¹⁹.”

By subjects of international law, it is therefore appropriate to refer to States whose legal capacity is linked to the personality of the United Nations²⁰ and, by extension, to international organizations. That’s why we questioned the concept of “subject of law” versus the Duala chiefs.

- Duala Chiefs : Legal or Non-Legal ?

Michel TROPER recalled that “we call subjects of law to derive rights from them, but to know if they have a right to then assert that they are subjects”²¹. In the same vein, the International Court of Justice²² establishes the correlation between “capacity to act and international personality”. Would the fact of having concluded a treaty not therefore depend on the quality of the subject of law ? If this is the case, and it was the case, the two parties to the 1884 Treaty deserve to be considered as subjects of international law, moreover, from the moment when the law they have produced is dependent “on external sovereignty”.

Subject of law is any entity²³ receiving a set of prerogatives formulated by positive law. By transposition, it will be said that are subjects of DIP all those who have an authorisation, a right, to act beyond the national legal order. Thus, one could argue that by recognizing that the “Consul General on mission in Africa (….) negotiated with independent leaders”, BISMARCK, a key player in the Westphalian order, revealed the international personality of indigenous leaders. The idea of independent leaders promotes a dual identity of sovereigns²⁴ and independent people. Anything that would justify, according to François DE VITORIA, the idea of State.

However, the notion of people whose qualification followed the right to independence was evoked at that time to designate an internal contradiction to colonial legality. We were talking about peoples “without rights” or peoples “without rights” to undertake the dichotomy, which will be maintained in the UN context, between “barbaric peoples” and “civilized nations”. Unlike the latter, they could not claim any rights and thus the status of subjects of international law.

This conception follows the theory of James LORIMER²⁵ which assigns legal capacity in proportion to socio-economic development. The phrase is “unreasonable creatures cannot have rights”. It justified the idea of colonization, the right to possess or to dispossess in the name of a Hellenic definition of the principle of development²⁶.

The principle of representation that will be seen in future developments comes out devalued : the legal²⁷ and a-legal representative²⁸. Indeed, the study by Alfonso Martinez recommended by Martinez Cobo, the United Nations Special Rapporteur on Indigenous Issues, shows that treaties between indigenous peoples and states are a matter of international law.

Thus, in view of the legal capacity of Kings Bell and Akwa, it is well founded to conclude that the 1884 Treaty establishes the legal personality of the people on whose behalf they acted. In the study cited, Martinez COBO recognizes in a general way to the indigenous or indigenous of yesterday the quality of peoples in the sense of international law²⁹. Such a qualification fosters in constitutional law the psychosis of the right to constitute a State.
Jean NJOYA writes : « The fear of separatism is a lingering fear in the sub-Saharan states where the constituent very often adopts a cautious attitude towards anthropological notions deemed eminently sensitive »³⁰.

The solution of principle to the African regional order goes in this direction³¹. As for the German part, it will be noted that the colonial doctrine « recognized the quality of the subjects of law to the large charter companies ». This is a qualification justified by the ability to trade beyond the national framework.

Correlatively, the characterization of subjects of international law justifies the hypothesis of an international legal trade. A trade which is exercised, in this case, on the basis of contractual capacity.

The parties to the 1884 Treaty are therefore not only subjects of international law, but also and above all subjects of international law with contractual capacity. In PAR³², it is not enough to be subject to the law to sign a treaty.

Under the 1969 Convention, contractual capacity is recognized only to agents or representatives with “appropriate full powers”. As has been pointed out in previous developments, legal capacity follows the status of a subject of law, which is subject to the exercise of a legal prerogative. At the time of the Treaty of 1884, this capacity was tied to two principles : representation and publicity.

The idea of representation is summed up in this formula of Francis DE VITORIA : « The people cannot dispose of themselves without the consent of their princes (and) the princes cannot dispose of them without their consent »³³. This is a rigid procedure whose requirement is required in the sovereignty treaty validation process. The relationship between the representative and the represented makes both partial holders of legal capacity. The former³⁴ had animus, the capacity linked to the sovereign attribute, and the latter had corpus, an essential characteristic in the definition of landed property. Animus and corpus correlate between the representative and the represented. With respect to the plebiscite, it was required specifically for annexation treaties³⁵.

The idea is cleverly summed up by Hugo GROTIUS : In the case of social interests, members must submit to the majority, because it must be presumed that they intended the existence of a means of deciding affairs ; and it would be unjust for the minority to prevail ; thus, according to natural law, the opinion of the majority has the same effect as that of the whole”. Precisely, (l) sovereignty can also be alienated by the one to whom it belongs, king or people. But if you’re a province, you also need the consent of the people who live in that province³⁶.”

Thus, the Treaty of 12 July 1884 has vague characteristics which raise the following question : is it a private or public contract for the German side and did it have the legitimacy to do so ?

- The Treaty of 12 July 1884 : Private or public contract for the German side ?

The 1884 Treaty was signed by the kings with witnesses. This would be a treaty that was passed under the principle of representation and not the plebiscite, since the requirement of the required majority in this case has not been established. So it was not an annexation treaty.

However, the presence of these actors justifies the hypothesis of contractual capacity, in accordance with the legal imperative³⁷ that maintained it at that time.³⁸

Starting from the idea that charter companies were recognized as subjects of law, the German side also had international capacity. Could it, however, establish a treaty ? The case does not seem simple. Indeed, one question was whether Édouard SCHMIDT and Johannes VOSS acted as plenipotentiaries. The Weltpolitik³⁹ of BISMARCK, which demanded neutrality of States over overseas trade, maintains it.

Dean François-Xavier MBOME reports that the statesman proposed, in a pact signed between his country, the Netherlands, Spain and Italy, to exclude Great Britain from transatlantic trade because of its colonialist ideology⁴⁰. In this case, the 1884 Treaty was above all a trade agreement which extended to the other two parties the agreement reached on 30 January 1883 by Edward SCHMIDT and King AKWA alone.

It could not precisely be a treaty of annexation that promotes the idea of colonialism ; the most important thing being that this agreement raises the legal capacity of German firms. A « parade » consisted in associating Consul Gustave NACHTIGAL, or EDOUARD WOERMANN, with the company as representative of the Reich empire.
This contradiction is not likely to reinforce the doubt about the intentions of the German side in Cameroon was never established, is recorded in the Reichstag Memoirs as signatory of the Treaty of 1884, to the detriment of the Consul NACHTIGAL⁴¹ .

The least that can be said is that the supposed presence of one as that of the other intends to give to the document the legal nature of an annexation treaty, under the principle of delegation of exercise of which Georges BRY⁴² spoke. But this intention cannot be validated when the usual procedure has not been established : if there has been a good treatment, due to the fact that the company has legal subjects with « the required capacity », it is not, however, a treaty of annexation. Treaty law is based on the principle of the free will of subjects of international law.

This principle translates into at least three properties : the absence of an error, a dol or any form of constraint. It has two formulas : unequivocal consent and clean consent. The treaty is therefore the legal form of the meeting of wills, but also history teaches it about the treaties signed between victors and vanquished, a balance of power⁴³.

Indeed, as Jean-Marc TRIGEAUD⁴⁴ wrote, the will “constitutes the foundation of the convention”. In this regard, egalitarian ethics requires the intervention of the legislator : we speak of « legal will » as opposed to « contractual will ». If the DIP⁴⁵ has thus limited the expression of the will by « elementary considerations of humanity », it remains indifferent as to the support of this will. This indifference, which is part of a lack of knowledge of the balance of power in the formation of the contract in general, and in DIP in particular, testifies to the lacunary state of the positive law of the Treaties.

A lacunary state linked to an increasingly marginal conception of PID, and which therefore cannot promote egalitarian ethics⁴⁶ . Jean SALMON⁴⁷ writes from this that “the legal system relating to treaties, tends to sacralize the treaty (…) (whatever) the concrete conditions (of its elaboration”.

This idealism seems to be designed to promote legal certainty. He continued, the author wrote, “the stability of situations, the maintenance of treaties, no matter how unequal the conditions under which these treaties were made, no matter how oppressive and unjust the content may be.” And to conclude, the “treaty form” in this system remains the vehicle of oppression, or at least it is destined to be so (…) and nothing is done to prevent it⁴⁸.

The state of positive law of the Treaties therefore promotes the prospect of the « more or less consented vassalization » of the « will under constraint » or « flawed agreements »⁴⁹ developed by Dean Maurice KAMTO⁵⁰.

This prospect of lack and injustice is even maintained in Articles 34 to 38 of the 1969 Convention. In this respect, the treaty itself is doomed to failure since, in response to the breach of egalitarian ethics, violating the treaty remains the only recourse. Jean SALMON wrote that “the force of the maintenance of the right, the State which is or believes itself to be a victim of injustice, can no longer oppose only violence (the violation of the right) to institutionalized violence⁵¹.”

The question, from the point of view of law, is whether the breach of egalitarian ethics can lead to the nullity of the treaty.

François DE VITORIA, writes that a title granted by an indigenous leader is attainable as soon as the « ignorance of the transferor, the psychological disproportion of the co-contractors and the fear that vitiates consent »⁵² are underlined. In the author’s view, the “treaty must be free from defects that would lead to nullity, error and fear”.

The positive law of the treaties remains undecided and, as it stands, only the use of armed force and the violation of an imperative norm of international law lead to such nullity. However, it must be acknowledged that this legal idealism is not without undermining the egalitarian ethic fostered by the principle of free consent.

2. The principle of free consent : a principle difficult to accept in view of the linguistic and legal assessments of Duala Chiefs

Two aspects of consent to be bound and the ability to bind could be noted in this regard : the system of enunciation⁵³ and the state of necessity in which the kings BELL and AKWA were found.

On the one hand, the will of the Cameroonian side could be considered precarious⁵⁴ because of the state of need due to the conditions of insecurity that embarrassed the leaders of the right bank of the Wouri at the end of the 1870s. In the opinion of Dean François-Xavier MBOME, the 1884 treaty served primarily «as a military and commercial shield for the Douala chiefs against their opponents of Bonabéri »⁵⁵.

On the other hand, it is necessary to ask whether the vocabulary used in the formulation of the clauses of the 1884 Treaty was within the reach of the natives, especially when it comes to accounting for an exogenous rationality ? In what language was the Treaty of 1884 formulated ?

It is the question of the language of law. This seemingly trivial concern, however, has no less consequences for the expression of the will of the parties. Hugo GROTIUS writes in this regard that “the will produces legal effects only if it manifests itself (…) in an express manner⁵⁶ ”.

It should be noted that the most widespread version of the 1884 Treatise is that translated by the pastor Jean-René BRUTSCH and published in German in the Mémoires du Reichstag in 1914. However, the original version, mysteriously disappeared, would be in English, a language foreign to both parties⁵⁷.

It is the question of legal language which, in this case, opposes two rationalities : the international reason, maintained by the logic of colonial legality, and the customary system. The solution would come from the general rule of interpretation that takes into account the preamble and the drafting of the treaty.

3. The general rule of interpretation of the Treaty : between colonial legality and customary system

On that basis, it will be difficult to accept that the 1884 Treaty continued the abandonment of sovereignty as it is understood in PID⁵⁸ today. There are two reasons for this conclusion : the trade agreement signed in 1883 and the fact that the Cameroonian side levied, as a sovereign entity, a tax on commercial activities carried out in the territory covered by the convention. Treaty law gives little interest to the content of conventions. Only the imperatives of lawfulness are required⁵⁹. The main question is what was the purpose of the treaty in question. The best hypothesis is that the territory and sovereignty of Cameroon are the subject of the 1884 Treaty.

Indeed, if the Camero. Erzieherische Einwirkung auf den Beschuldigten im Jonian side has intended to levy a tax on commercial activity and protect agreements with other powers in this area, it is because the 1884 Treaty is a trade agreement : “Today we are giving up our rights to sovereignty, legislation and the administration of our territory.”

The principles that govern the law at this time meet, as we saw from the introduction of this study, in the theory of conquest which justified the different forms of annexation and expropriation governed by two legal regimes.

The Treaty of 1884 is an example of this. Its content, the nature of things and the relationships they give rise to pit public law against civil law. Annexation is linked to the surrender of sovereignty and related rights. It is part of treaties signed under public law. We are talking about princes' contracts that “belong to the law of the people and are interpreted by them, rather than by civil law”. Such contracts fall, precisely, into the category of « acts of the king considered as king » ; which cannot, Hugo GROTIUS explains, be governed by « civil laws ». It follows the conclusion that sovereignty, which was its principal object, must be excluded from the «res divini juris »⁶⁰ regime because it constitutes an « extra commercium nostrum »⁶¹. It therefore appears, as authors such as Monique CHEMILLIER-GENDREAU have reported, that it was customary to distinguish between ownership and sovereignty. This distinction applied to subjects of law⁶².

On the one hand, we had the peoples who owned the land and on the other hand, the “civilized” nations alone capable of exercising sovereign rights. It is understood that in the event of a conflict, the latter prevails over the former, the sovereign’s rights encompassing and exceeding, in this context, the right to property. It shows that nations « civilized » or considered as such retained the latitude to enjoy the virtues of property. Sovereignty has been seen as the tool of the oppressor. Some authors applied both sovereignty and territory, the same regime, based on the idea that property rights are an integral part of sovereign rights. Hugo GROTIUS reports : Since the establishment of property, it is natural law that men can transfer their property to others. Sovereignty can also be alienated by those to whom it belongs⁶³.” The issues of sovereignty and territory meet, one might say, in the real estate system. On the basis of this consideration, it would be concluded that sovereignty could be governed by civil law, that it could be the subject of an acquisition⁶⁴.

In the latter case, the acquisition governed the rights of the first occupants, the “jus inventionis”… It will therefore be said that it could not govern the question of sovereignty which could not be raised in the case of lands without masters.

This mechanism provides evidence that the territory, at least, was classified in the category of things liable to property. Monique CHEMILLIER-GENDREAU points out that “soils and people are linked” and that this link is established from the relationship between “appropriation and the quality of the person of the appropriate person”.

The 1884 Treaty was signed by the promoters of the charter companies. It could not therefore be completely governed by public law. However, even in this case, the sovereignty regime does not seem to have begun, since the reservations expressed by the Cameroonian side seem to reject the idea of a transfer of sovereignty, or even a surrender of the territory⁶⁵.

This could finally be the adjective of the Treaty of 1884, which says both one thing and the opposite. It supposes the annexation of Cameroon in all its splendour, while indicating, with precision, the reference “rationae loci⁶⁶ ” of the skills at stake : the country named Cameroon, located along the Cameroon River, between the Bimbia rivers in the north and Kwakwa in the south. The curiosity is great. It is all the more so since the same rhetoric was used in another agreement signed with representatives of the territory called “small-batanga” six days after the 1884 Treaty.

It is clear from the testimonies that the local dignitaries « hoped to be able to follow without harm to their society, the evolution of a business to which they were fundamentally linked ». The tension maintained by the confusion of sovereignty to property was extended by the importation of the TORRENS system⁶⁷ .

Today, in constitutional law, it opposes the state and customary communities based on the question of who owns the land. The question divided the doctrine. The solution, however, seems to emerge from a formula dear to Francis HAMON and Michel TROPER : the State exercises in the territory a real institutional right. It makes it possible to reconcile article 10 of the Constitution of the Democratic Republic of the Congo and article 21 of the African Charter on Human and Peoples' Rights, for example.

It will be said that the State exercises sovereignty over natural resources on behalf of all the components of the nation, taking into account precisely the specificity of some communities.
In Cameroon, since 1994, the legislator has settled the question of ownership by the institution of a Community land right. The legal reason for the timeless law thus suggests that, as it stands, the 1884 Treaty was aimed at something other than the annexation of Cameroon.

For us, it was a trade agreement, as evidenced by the reservations expressed by the Cameroonian side. Authors like Engelbert MVENG, however, have defended, without much echo, the thesis of a « commercial colonization »⁶⁸.

The clause of reciprocity carries an ethical value : it is the balance between the parties that pursues the idea of equality and therefore of justice mentioned above. It is now the sine qua non for the fulfilment of public law contracts. The reciprocity clause also has an educational value. It provides information on the cause of the contract, the purpose pursued by the parties.

First, with respect to the educational value, it is sufficient to ask what purpose the parties to the 1884 Treaty wanted to achieve. The Cameroonian side undertakes to transfer, or even completely abandon, the « rights concerning sovereignty, legislation and administration » of its territory and in return, the German side agrees, to respect the friendship and trade treaties in force between the Cameroonian side and “other foreign governments”, to respect the right of ownership of lands cultivated by Aboriginal people, and to pay annually and therefore continuously. “the tolls”.

Our position is that this was not a transfer of sovereignty, but a trade agreement that consolidated the Akwa-Woermann agreement for the protection of Woermann Firm’s property and agents on the shore of the city of Akwa, signed a year earlier, on January 30, 1883.

In this new agreement, the German side offers almost no consideration, except the payment of the tax. Secondly, the object of the contract is valid if the reciprocal link is respected. Three years after the entry into force of the 1884 Treaty, German firms intended to free themselves from the payment of the Koumi, the tax levied on commercial activities. It is reported that « the Koumi was paid for the last time to the chiefs by European traders on April 1, 1887 ». This incident has two consequences : it illustrates, on the one hand, … the change in circumstances, and it is fair to say that in 1884 it was a conventional link relating to commercial activities⁶⁹.

On the other hand, the breach of the reciprocity clause marks the end of the legal relationship between the two parties.

4. The Reciprocity Clause : The German Party’s Legal Failure

According to Hugo GROTIUS, « (u) a public treaty obliges one party only as much as the other party provides the services it has promised ». That act therefore constitutes an infringement of the Convention which may, in accordance with Article 62 of the 1969 Convention, lead to a nullity in the name of the "rebus sic stantibus" clause⁷⁰.

This fundamental change of circumstance clause could better be called in the wake of events. Finally, the reciprocity clause promotes the business relationship or cause of the contract. In this perspective, it maintains the idea of fidelity and good faith well known among civil scientists. Faithfulness, writes Jean-Marc Trigeaud, is « respect for the word given ».

It is not confused with the good faith that is assessed from the regime of vices of consent. The first relates to the “legal promise” and the second to the “moral promise”. We will see in the rule « pacta sunt servanda »⁷¹ the extension of the first. It is also the most obvious, the easiest to determine. It is for this reason that it is easy to establish that the German side has not complied with its legal promise to pay tax on a continuous basis in respect of its business activity in competition with other foreign powers on the banks of the city of Akwa. Indeed, by two significant acts, the German administration came out of the clauses of the 1884 Treaty.
On the one hand, by an order signed on June 19, 1895, the governor of Cameroon, Jesko VON PUTTKAMER, prohibits indigenous peoples from « exercising any trade on the Sanaga, the river route that opened the way to the Bassa and Yaoundé countries ».

These obligations⁷² were essentially intended to give free rein to European trade on the banks of the Wouri in accordance with the second reservation made by the natives to protect “friendship and trade treaties with other foreign governments”. The idea was to move from a trade agreement to an annexation treaty⁷³.

On the other hand, and in the same vein, on June 15, 1896, the Reich promulgated an imperial ordinance establishing the notion of vacant lands without masters to identify vacant lands. The 1896 ordinance gives, to say the least, meaning to the German policy of the Hinterland. Its main aim is to introduce modern law into land management, in the apprehension of land titles.

By what means could an oral society “prove” rights to the members of a society in which the written word constitutes the irrefutable means of proof ? In the strict African tradition, tried to explain the local monarchs, All the lands of a community belong to all the individuals, each having on the plot that he occupies only a right of usufruct.

These lands are generally under the tutelage of a chief and are limited only by the lands of neighbouring tribes. Even if they are temporarily unoccupied, they cannot be considered as vacant lands and without masters⁷⁴.

Technically, the qualification of “res nullius⁷⁵ ” is challenged in this context because the unoccupied lands are not comparable to a deserted island which would have illustrated, in Roman law, the absence of the right of ownership.

Alexandre-Dieudonné TJOUEN⁷⁶ reports that, despite the opposition of the natives for whom the unoccupied lands may be vacant but belong “to the ancestors and their lineages”, the German administration classifies the lands concerned in the imperial domain : there is no title to Crown land⁷⁷.

Sovereignty, let us say more modestly land ownership, passes from the native to the allochthonous⁷⁸ because of the lack of proof of the first and without the need for proof for the second. In 1910, the German administration forcibly expropriated the residents of the Joss plateau.

The natives, led by Chief Rudolf DOUALA MANGA BELL, courageously protested against this measure. Three years later, MANGA BELL was dismissed from office and hanged four days later with his cousin NGOSSO DIN.

This makes the year 1884 a reference in the collective consciousness, a place of recollection for the indigenous peoples. Does the text of 1884 finally deserve the qualifier of a treaty in the modern sense of the term ?

The answer will no doubt depend on the methodology used. Does not Olivier JOUANJAN⁷⁹ teach, not without having usefully recalled that every subject is relative, that the concept and knowledge are not in experience but in the creative faculty ?

What about the determination of indigenous legal title in Cameroon in the early hours of the conquest of the territory called « Cameroons » ?

5. The legal character of the Treaty of 12 July 1884 in the face of the autochthonous status of the conquered peoples

For one thing, the 1884 Treaty would be efficient in determining the legal title of indigenous peoples in Cameroon. A status that is being challenged today, to the peoples of modernity, after colonization, has packed in the « bundle » of urban diversity. A status that has been established since colonial times. Indeed, the 1884 Treaty tends to point out that Aboriginal peoples would be real subjects of law and international law precisely…

Hugo GROTIUS recalled : when it comes to deciding on the interests of society, the vote of the majority is required. This question has entered posterity. The aim is to promote the right to self-determination, which, according to the African Commission on Human and Peoples' Rights, requires the adoption of one of the following forms of administration : “self-government, local government, federalism, confederalism”. On the other hand, the idea of a treaty imposed the question of its validity. It was common to distinguish annexation from surrender and occupation. The annexation treaty, as has been said, was subject to a rigid procedure ⁸⁰ …

The annexation that followed falls within the framework of unilateralism, within the framework of the conquest to retake François DE VITORIA. Surrender could be considered, with the caveat that the 1884 Treaty implied the alienation of sovereignty and territory. In this case, the transfer had to technically lead to annexation and, for that, required the procedure described above.

While it was customary to confuse sovereignty with property rights under Roman law, a distinction was still maintained between the royal domain⁸¹ and the private domain⁸².

The payment of the tax attests, in any event, that the 1884 Treaty was a trade agreement— It was not a treaty of annexation, surrender, or occupation, but a trade agreement, a “sphere of influence” treaty ; a treaty whose legal link was severed in 1887 when the German side ceased to fulfil its obligation. What follows is only a balance of power. François DE VITORIA writes in this line that it is not enough «to take to acquire juridically »⁸³. The traits seem to have been forced in order to justify the idea of an annexation treaty even though a qualification other - to the example of the commercial establishment agreement would not have exempted Cameroon from a programmed annexation⁸⁴.

Thus, after having explained the dynamics of cooperation between the German colonial administration and the Duala chiefs which concerned the presentation and the analysis of the three German-Duala, it is up to us to examine the strategy of mutual aid between the German colonial administration and the Bamoun during the wars of conquest.

BIBLIOGRAPHY

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- BRUTSCH (J.-R.), “Les Traités camerounais”, in Études camerounaises, N°47- 48, March-June 1955, Institut français d'Afrique noire.

- BUCHNER (M.), Kamerun. Skizzen und Betrachtungen, Leipzig : Duncker & Humboldt, 1887.

- CARRÉ DE MALBERG (R.), Contribution à la théorie générale de l’État : spécialement d'après les données fournis par le droit constitutionnel français, Paris, Dalloz, 2003, p 490. Voir BRY (G.), Cours élémentaire de législation industrielle, Paris, Larose, 1912.

- CHEMILLIER-GENDREAU (M.), “Les différentes doctrines juridiques et la notion de peuple” in Réalités du droit international contemporain, Reims, Centre d’Études des Relations Internationales, 1974.

- DE VICTORIA (F.) & Al., The Founders of International Law, Paris : Panthéon Assas, 2014.

- FONTENAILLE-N’DIAYE (É), Blue Book, Calmann-Lévy, 2015.

- GOMSU (J.), Colonization And Social Organization. Traditional Chiefs of South Cameroon During the German Colonial Period (1884-1916). Doctoral Thesis, Université De Metz, Faculté Des Lettres Et Sciences Humaines, Saarbrücken, 1982.

- GROTIUS (H.), Le droit de la guerre et de la paix, Tome 2, translated by Jean BARBEYRAC, Amsterdam, Pierre de Coup, 1724.

- HOBBES (T.), Elements of Natural and Political Law. Translated by Delphine THIVET, Tome II of the Œuvres de HOBBES, Paris, Vrin, 2010.

- HOBBES (T.), Éléments de loi, translation by Arnaud MILANESE, Paris, Allia, 2006.

- JOUANJAN (O.), Building the Legal State : Legal Epistemology and State Law - Science and Techniques of Constitutional Law, Lecture Notes, Academy of Constitutional Law, 2010.

- KAMTO (M.), “Poverty and Sovereignty in the Contemporary International Order” in Mélanges offerts à Paul Isoart, Paris, Pedone, 1996.

- KAMTO (M.), The Will of the State in International Law, Compendium of Courses, The Hague Academy of International Law, IDRC 310, 2004.

- THE CENTRE FOR DOCUMENTATION, RESEARCH AND INFORMATION ON ABORIGINAL PEOPLES. Study available at www.cendoc.docip.org and accessed April 06, 2022.

- CRIMINAL LAW, “res nulius.” Article published at https://ledroitcriminel.fr and accessed April 05, 2022.

- Lt. VON MORGEN (C.), Through Cameroon from south to north. Travels and explorations in the hinterland from 1989 to 1891. Translation, presentation and bibliography of Philippe LABURTHE-TOBRA, Paris, Publications de la Sorbonne, 1982.

- MALLARMÉ (A.) & DE VATTEL (E.), The Founders of International Law, Paris : Panthéon Assas, 2014.

- MBOME (F.-X.), Histoire des institutions et des faits sociaux du Cameroun, Yaoundé, Fasst Program, 1998.

- MPESSA (A.) , “Le titre foncier devant le juge administratif camerounais: les difficultés d’adaptation du système Torrens au Cameroun,” RGD 611, 2004.

- MVENG (E.), History of Cameroon, Paris, 1963.

- NDAM NJOYA (A.) , Le Cameroun dans les relations internationales, Paris, Librairie générale de droit et de jurisprudence, 1976.

- NGANDO SANDJE (R.), “Le traité germano-douala du 12 juillet 1884: étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016.

- NJOYA (J.), “States, Peoples and Minorities in Sub-Saharan Africa,” 2011, 1:3 Janus 2, pp 5-6.

- RUDIN (H. R.), Germans in the Cameroons : A case study in modern imperialism (1884-1916), New Haven : Yale University Press, 1938.

- SAADA (J.) , Hobbes et le sujet de droit, Paris : CNRS, 2010.

- SALMON (J.), “Security and Movement in Treaty Law” in Realities of Contemporary International Law, Reims, Centre for the Study of International Relations, 1974.

- SALOMON (C.), L'occupation des territoires sans maître : Study of International Law, Paris : A. Giard, 1889.

- TJOUEN (A. D.), State Property Rights and Land Technology in Cameroonian Law (Study of Legislative Reform), Paris, Economica, 1982.

- TRIGEAUD (J.-M.), “Convention,” 1990, Archives de philosophie du droit 13, p. 14.

- TROPER (M.), “La notion de peuple et les catégories classiques du droit international”, Paris : CERI Publications (International Research Centre), 1974.

- VON PUFENDORF (S.), Du droit de la nature et des gens, or Système général des principes les plus importants de la morale, de la jurisprudence et de la politique, 2 volumes, 1706.

- VON PUFENDORF (S.), Les Devoirs de l'homme et du citoyen, as prescribed by natural law (1707), Republication : Presses Universitaires de Caen, Caen, 2002.

-WIRZ (A.), Vom Sklavenhandel zum Kolonialenhandel : Wirtschaftstraume und Wirtschaftsformen in Kamerun vor 1914, 1972. Original extract : « Eine Kopie des Vertrags texts wurde den Duala bezeichnenderweise nichgehandigt ». Translated by us.

[...]

---

¹ A. NDAM NJOYA, Le Cameroun dans les relations internationales, Paris, Librairie générale de droit et de jurisprudence, 1976, p. 55.

² KUM'A MBAPE.

³ Bonabéri.

⁴ 1884-1885.

⁵ H. R. RUDIN, Germans in the Cameroons : A case study in modern imperialism (1884-1916), New Haven : Yale University Press, 1938.

⁶ J.-R. BRUTSCH, “Les Traités camerounais”, in Études camerounaises, N°47- 48, March-June 1955, Institut français d'Afrique noire.

⁷ E. MVENG, History of Cameroon, Paris, 1963.

⁸ Lt. C. VON MORGEN, Through Cameroon from south to north. Travels and explorations in the hinterland from 1989 to 1891. Translation, presentation and bibliography of Philippe LABURTHE-TOBRA, Paris, Publications de la Sorbonne, 1982.

⁹ J. GOMSU, Colonization And Social Organization. Traditional Chiefs of South Cameroon During the German Colonial Period (1884-1916). Doctoral Thesis, Université De Metz, Faculté Des Lettres Et Sciences Humaines, Saarbrücken, 1982, p. 85.

¹⁰ In this book « Blue Book », Élise FONTENAILLE-N'DIAYE tells us about this little-known past of the role of Germany in South West Africa, the one now called Namibia, became a German colony in the 1884’s and was the scene of a real genocide against the Hereros and the Namas. It was removed from public knowledge in 1926. The author gives his African point of view, his personal point of view. É. FONTENAILLE-N’DIAYE, Blue Book, Calmann-Lévy, 2015.

¹¹ J.-R. BRUTSCH, “Les Traités camerounais”, in Études camerounaises, N°47- 48, March-June 1955, Institut français d'Afrique noire.

¹² A. WIRZ, Vom Sklavenhandel zum Kolonialenhandel : Wirtschaftstraume und Wirtschaftsformen in Kamerun vor 1914, 1972. Original extract : « Eine Kopie des Vertrags texts wurde den Duala bezeichnenderweise nichgehandigt ». Translated by us.

¹³ M. BUCHNER, Kamerun. Skizzen und Betrachtungen, Leipzig : Duncker & Humboldt, 1887

¹⁴ J. GOMSU, Colonization And Social Organization. Traditional Chiefs of South Cameroon During the German Colonial Period (1884-1916). Doctoral Thesis, Université De Metz, Faculté Des Lettres Et Sciences Humaines, Saarbrücken, 1982, p. 86.

¹⁵ At least the AKWA.

¹⁶ J. GOMSU, Colonization And Social Organization. Traditional Chiefs of South Cameroon During the German Colonial Period (1884-1916). Doctoral Thesis, Université De Metz, Faculté Des Lettres Et Sciences Humaines, Saarbrücken, 1982, p. 87. Original extract : “… bewahrt den Vertrag gut auf, daB er ja nicht wieder verkauft wurd (e), wie der erste.

¹⁷ T. HOBBES, Éléments de droit naturel et politique. Translation by Delphine THIVET, Tome II des Œuvres de HOBBES, Paris, Vrin, 2010. See also T. HOBBES, Éléments de loi, translation by Arnaud MILANESE, Paris, Allia, 2006. See also J. SAADA, Hobbes et le sujet de droit, Paris, CNRS, 2010. See S. von PUFENDORF, Du droit de la nature et des gens, or Système général des principes plus importants de la morale, de la jurisprudence et de la politique, 2 volumes, 1706. See also S. von PUFENDORF, Les Devoirs de l'homme et du citoyen, tels qu'ils sont prescrits par la loi naturelle (1707), Réédition : Presses Universitaires de Caen, Caen, 2002. In R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel”, Revue québécoise de droit international, 2016, p. 138.

¹⁸ A. MALLARMÉ & E. DE VATTEL, The Founders of International Law, Paris, Panthéon Assas, 2014, pp. 337-391. In R. NGANDO SANDJE, op. cit. 2016, p. 138.

¹⁹ C. SALOMON, L'occupation des territoires sans maître : Étude de droit international, Paris, A. Giard, 1889, p. 5. In R. NGANDO SANDJE, op. cit. 2016, p. 138.

²⁰ UN : United Nations Organization.

²¹ M. TROPER, « La notion de peuple et les catégories classiques du droit international », Paris, Publications du CERI (International Research Centre), 1974, p 137. In R. NGANDO SANDJE, op. cit., p. 139.

²² ICJ : International Court of Justice.

²³ Physical or moral.

²⁴ Independent Chiefs.

²⁵ In the perspective of James LORIMER, recognition must be granted to States and only to States, and not to peoples, nationalities or « races » according to the terminology of 19th century jurists. Article available at https://dice.univ. -amu.fr and consulted on 06 April 2022. LORIMER’s major works include the Institut de Droit (1872), the Institut du Droit des Nations (2 vol., 1883-1884) and Studies National and International (1890). His writings are characterized by vigour and flashes of prophetic insight, especially his project (1870) for a “permanent congress of nations” and an international court of justice. Article available at www.delphipages.live.com and accessed April 06, 2022.

²⁶ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 139.

²⁷ An established government speaks for a representative.

²⁸ A legally unidentified people.

²⁹ See THE CENTRE FOR DOCUMENTATION, RESEARCH AND INFORMATION ON ABORIGINAL PEOPLES. Study available at www.cendoc.docip.org and accessed 06 April 2022. In R. NGANDO SANDJE, op. cit. 2016, p. 140.

³⁰ J. NJOYA, “States, Peoples and Minorities in Sub-Saharan Africa”, 2011, 1 :3 Janus 2, pp 5-6. In R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel”, Revue québécoise de droit international, 2016, p. 141.

³¹ Ditto.

³² Public International Law.

³³ F. DE VITORIA & AL., The Founders of International Law, Paris, Panthéon Assas, 2014. In R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel”, Revue québécoise de droit international, 2016, p. 142.

³⁴ The prince.

³⁵ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 143.

³⁶ H. GROTIUS, Le droit de la guerre et de la paix, Tome 2, translated by Jean BARBEYRAC, Amsterdam, Pierre de Coup, 1724, p 223. See R. NGANDO SANDJE, op. cit. , 2016, p. 143.

³⁷ The principle of representation.

³⁸ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 143.

³⁹ Weltpolitik : literally translated from German into world politics – is the name of the diplomatic doctrine of Germany adopted at the end of the 19th century under the impetus of William II. More demanding or even vindictive, especially in colonial matters, it replaces the previous approach, namely Realpolitik (literally translated from German into realistic politics – means foreign policy based on the calculation of forces and national interest) played by Otto VON BISMARCK, the « iron chancellor », replaced in 1890 by Leo VON CAPRIVI by Guillaume’s autocrat will. See the articles « Weltpolitik » and « Realpolitik » published on the website www.wikipedia.fr and consulted on 02 April 2022.

⁴⁰ Ditto.

⁴¹ Ditto.

⁴² G. BRY, Cours élémentaire de législation industrielle, Paris, Larose, 1912. In R. NGANDO SANDJE, op. cit. , p. 144.

⁴³ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 145.

⁴⁴ J.-M. TRIGEAUD, “Convention,” 1990, Archives de philosophie du droit 13, p. 14. In R. NGANDO SANDJE, op. cit. 2016, p. 145.

⁴⁵ Public International Law.

⁴⁶ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 145.

⁴⁷ J. SALMON, “Security and Movement in Treaty Law,” in Realities of Contemporary International Law, Reims, Centre for the Study of International Relations, 1974, pp. 101–103. In R. NGANDO SANDJE, op. cit., 2016, p. 145.

⁴⁸ Ditto.

⁴⁹ M. KAMTO, “Poverty and Sovereignty in the Contemporary International Order,” in Mélanges offerts à Paul Isoart, Paris, Pedone, 1996, p. 284. In R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel”, Revue québécoise de droit international, 2016, p. 146.

⁵⁰ M. KAMTO, The Will of the State in International Law, Course Book, The Hague Academy of International Law, 2004, CIRNA 310, pp. 226-125. In R. NGANDO SANDJE, op. cit., 2016, p. 146.

⁵¹ Ditto.

⁵² F. DE VICTORIA & Al., The Founders of International Law, Paris, Panthéon Assas, 2014. In R. NGANDO SANDJE, op. cit., 2016, p. 146.

⁵³ Linguistic factor.

⁵⁴ And therefore, neither free nor enlightened.

⁵⁵ F.-X. MBOME, Histoire des institutions et des faits sociaux du Cameroun, Yaoundé, Fasst Program, 1998, p. 15. The history of institutions in this case refers to « the set of rules imposed on men in a territory determined by a higher authority, capable of commanding with an effective power of irresistible domination and constraint ». See R. Carré de Malberg, Contribution à la théorie générale de l’État : spécialement d'après les données fournis par le droit constitutionnel français, Paris, Dalloz, 2003, p 490. In R. NGANDO SANDJE, op. cit. 2016, p. 147.

⁵⁶ H. GROTIUS, Le droit de la guerre et de la paix, Tome 2, translated by Jean BARBEYRAC, Amsterdam, Pierre de Coup, 1724. In R. NGANDO SANDJE, op. cit. 2016, p. 148.

⁵⁷ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 148.

⁵⁸ Public International Law.

⁵⁹ Mutual interest and compliance with “jus cogens”.

⁶⁰ Things of divine right (examples : temples, altars, places dedicated to the gods).

⁶¹ “A thing outside of commerce” is a doctrine of Roman law, which holds that certain things cannot be the subject of economic rights, and are therefore not likely to be the subject of trade. See “Res extra commercium, doctrine originating in Roman law.” Article published at www.wikipedia.fr and consulted on 05 April 2021.

⁶² M. CHEMILLIER-GENDREAU, “Les différentes doctrines juridiques et la notion de peuple” in Réalités du droit international contemporain, Reims, Centre d’Études des Relations Internationales, 1974, p. 153. In R. NGANDO SANDJE, op. cit. 2016, p. 150.

⁶³ H. GROTIUS, Le droit de la guerre et de la paix, Tome 2, translated by Jean BARBEYRAC, Amsterdam, Pierre de Coup, 1724. In R. NGANDO SANDJE, op. cit. 2016, p. 150.

⁶⁴ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 151.

⁶⁵ Ditto.

⁶⁶ Territorial jurisdiction.

⁶⁷ A. MPESSA, « Le titre foncier devant le juge administratif camerounais : les difficultés d'adaptation du système Torrens au Cameroun », RGD 611, 2004, p. 613. In R. NGANDO SANDJE, op. cit., p. 153.

⁶⁸ Ditto.

⁶⁹ Ditto.

⁷⁰ H. GROTIUS, Le droit de la guerre et de la paix, Tome 2, translated by Jean BARBEYRAC, Amsterdam, Pierre de Coup, 1724. In R. NGANDO SANDJE, op. cit. 2016, p. 155.

⁷¹ “Pacta sunt servanda” is a Latin phrase meaning that the parties are now bound by the contract that has just been concluded and that, as such, they cannot derogate from the obligations resulting from this agreement.

⁷² Placed by the Cameroonian part.

⁷³ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 156.

⁷⁴ Ditto.

⁷⁵ The «res nulius » is the thing which still belongs to no one, but which it is possible to appropriate (for example rabbits from garenne, subject to the legislation on hunting). From the moment it has an owner, it becomes «res propria », and can be stolen. See CRIMINAL LAW, «res nulius ». Article published on the website https://ledroitcriminel.fr and consulted on 05 April 2022.

⁷⁶ A.-D. TJOUEN, State Property Rights and Land Technology in Cameroonian Law (Study of Legislative Reform), Paris, Economica, 1982, p. 29. In R. NGANDO SANDJE, op. cit. 2016, p. 157.

⁷⁷ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 157.

⁷⁸ Person of foreign origin.

⁷⁹ O. JOUANJAN, Building the State : Legal Epistemology and State Law - Science and Techniques of Constitutional Law, Lecture Notes, Academy of Constitutional Law, 2010, p. 10. In R. NGANDO SANDJE, op. cit. 2016, p. 158.

⁸⁰ Opinion of the princes and consultation of the people.

⁸¹ Public law.

⁸² Private law.

⁸³ F. DE VITORIA, & AL., The Founders of International Law, Paris, Panthéon Assas, 2014. In R. NGANDO SANDJE, op. cit., 2016, p. 159.

⁸⁴ R. NGANDO SANDJE, “Le traité germano-douala du 12 juillet 1884 : étude contemporaine sur la formation des contrats dans l'ordre juridique intemporel,” Revue québécoise de droit international, 2016, p. 159.

• Author: Patricia Etonde (Author)
• Publication Year: 2022
• Pages: 20
• Catalog Number: V1280375
• ISBN (PDF): 9783346737809
• ISBN (Book): 9783346737816
• Language: English
• Tags: legal, scope, germano-duala, treaties