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A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias

Published online by Cambridge University Press:  01 June 2008

JAMES THUO GATHII
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Abstract

This essay critically examines T. O. Elias's international legal scholarship, especially in so far as he sought to reclaim, or claim, a place in international legal history for Africa. Having found that Africa contributed to the formation of international law, Elias argued in favour of reforming its rules so that they could serve the interests of the newly independent African states. In this respect he influenced many contemporary international lawyers in Africa and elsewhere. In particular, his singling out of sovereignty as a barrier to reforming international law is shared by generations of international legal scholars who have criticized states for placing too high a premium on their sovereignty, thereby placing insuperable barriers to their acceptance of egalitarian goals, expressed by, for example, the international bill of human rights. The essay also contrasts Elias to scholars of international law who took the colonial legacy of international law as a barrier to reforming it so that it was consistent with the interests of so-called post-colonial African states.

Keywords

colonialismcontributionismT. O. EliasEurocentricitysovereigntyTWAIL
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 21 , Issue 2 , June 2008 , pp. 317 - 349
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1. Elias, T. O., The Nature of African Customary Law (1956)Google Scholar.

2. J. Gathii, ‘International Law and Eurocentricity’ (review essay), (1998) 9 EJIL 184.

3. M. Mutua, ‘What is TWAIL?’, (2000) 94 American Society of International Law Proceedings 31, at 32.

4. Anghie, A. and Chimni, B. S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflict’, in Ratner, S. R. and Slaughter, A. (eds.), Methods of International Law (2004)Google Scholar.

5. Okafor, O., ‘Newness, Imperialism and International Legal Reform in Our Time: A TWAIL Perspective’, (2005) 43 Osgoode Hall Law Journal 176Google Scholar.

6. For example, see Natarajan, U., ‘A Third World Approach to Debating the Legality of the Iraq War’, (2007) 5 International Community Law Review 405CrossRefGoogle Scholar; Fidler, D., ‘Revolt against or within the West? TWAIL, the Developing World and the Future of International Law’, (2003) 2 Chinese Journal of International Law 29CrossRefGoogle Scholar.

7. See P. S. Surya, Legal Polycentricity and International Law (1996).

8. Onuma, Y., ‘When Was International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective’, (2000) 2 Journal of the History of International Law 1CrossRefGoogle Scholar.

9. In addition, Elias must have been well aware of the insulting racism that confronted African diplomats in Western capitals like Washington, DC in the 1960s and 1970s.

10. Hegel among other enlightenment European scholars reinforced the exclusion of Africa from the universal future of conscious humanity embodied in Judao-Christian historicity. See Jewsiewicki, B. and Mudimbe, V. Y., ‘Africans’ Memories and Contemporary History of Africa’, (1993) 31 (1)History and Theory, at 1–11CrossRefGoogle Scholar. International scholars in the nineteenth century similarly adopted the view that Africa had no history. These scholars also emphasized that Africa was different from Judæo-Christian Europe because of general cultural inferiority and political disorganization, which in turn barred Africa from membership of the family of nations.

11. F. Okoye, International Law and the New African States (1972).

12. The image of merry Africa adopted by post-colonial African historians is very similar to that adopted by anti-slavery campaigners and Christian humanitarians in the United Kingdom in the seventeenth and eighteenth centuries. These campaigners sought to challenge the eighteenth-century biological thought which justified the slavery of inferior races such as Negroes. These campaigners were associated with the creation of the idea of a ‘noble savage’, an abstraction of European literary thought. According to Philip Curtin, the ‘exotic hero was an ancient device of social criticism to describe the golden age – a time and place infinitely better than the real world, necessarily beyond the view of the audience, either in the past or in the future, or a far country’. P. Curtin, The Image of Africa – British Ideas and Action, 1750–1850 (1964), at 48–51. Even before the ‘discoveries of new lands’, some medieval European traditions, according to Curtin, laid great stress on the value of unadorned nature, apostolic poverty, and a simplicity that was thought of as primitive. Ibid. Yet, as Curtin reminds us, the image of the noble African or savage was not intended to suggest that Africans ‘were better than Europeans, or that their culture, on balance, measured up to the achievements of Europe. . . the attitude was mildly patronizing’. Ibid., at 49–50.

13. B. Davidson, Black Star: A View of the Life and Times of Kwame Nkrumah (1973), at 12–13.

14. Ibid.

15. This also presupposed a binary opposition between European and African identity. The European identity is not problematized as varied, fragmented. Riles, A., in ‘Aspiration and Control: International Legal Rhetoric and the Essentialization of Culture’, (1993) 106 Harvard Law Review 723Google Scholar, argues that the writings of nineteenth-century international legal scholars such as the Reverend T. J. Lawrence ‘participated in the creation of an essentialized and coherent European community defined in dichotomous opposition to non-European “savages.” The portrait of European identity demanded the suppression of contradictions and differences in favor of a picture of unity and essential characteristics.’ Riles also observes that ‘[i]t is not difficult to understand this conception of European identity as an argument for the authority of international law. In a world full of bonded cultural units of collective representations bordered by intelligible boundaries, a language such as international law that managed the chasm between such units held a privileged position’. Ibid., at 736. Edward Said proposed that the Orient was constructed by the Occident ‘as its contrasting image, idea, personality, experience’, an image of otherness, while orientalism served as ‘a western style for dominating, restructuring, and having authority over the Orient’. E. Said, Orientalism (1979), at 1–3.

16. The realignment of colonial categories also had the simultaneous consequence of camouflaging class differences and imperial alliances among the African people.

17. This debate maps onto the idea of having unitary African governments as opposed to federal governments. On the Kenyan case see J. Gathii, ‘Kenya's Legislative Culture and the Evolution of the Kenya Constitution’, in Y. Vyas et al. (eds.), Law and Development in the Third World (1994), at 74.

18. T. O. Elias, Africa and the Development of International Law (1974), at 3.

19. Ibid.

20. Ibid.

21. Ibid., at 5 (emphasis added).

22. Ibid., at 6 (emphasis added). Historians have noted that the ‘pattern of empirical information about Africa was itself [in the eighteenth century] a product of the peculiar relations built during the centuries of slave trade’: see Curtin, supra note 12, at 9. Information on trade was of importance because of the commercial links, especially in slaves, between the west coast of Africa and European and other traders. Another important matter of commercial importance was ‘an elementary knowledge of political structure. . . for traders, who had to deal with African authorities’. Ibid., at 23. European travellers at the time therefore wrote with particular attention to matters of trade, commerce, and the ‘political’ structure of African societies. Almost two centuries later, African jurists of international law found that this information in part was produced to serve the commercial interests of European traders. Unlike the traders and European audiences, these jurists used this information as evidence to back their assertions of African contact with the West prior to colonial conquest.

23. Elias, supra note 18, at 15.

24. The point here is simply that the cultural Eurocentrism of international law was inseparable ‘from the parallel project of colonial domination’. Riles, supra note 15, at 737.

25. For an extensive analysis see Gathii, J., ‘Imperialism, Colonialism and International Law’, (2007) 54 Buffalo Law Review 1013Google Scholar.

26. See, for example, T. O. Elias, ‘The Berlin Treaty and the River Niger Commission’, (1963) 57 AJIL 879, at 879–80.

27. Elias, for example, notes that the mandate system which was ‘an indirect result of the European colonization of Africa’ was ‘of considerable interest to public international law’. Elias, supra note 18, at 21.

28. See section 2, infra.

29. In this sense Elias was like contemporary liberal scholars such as Anne-Marie Slaughter, who argues in favour of a ‘system of global governance that institutionalizes cooperation. . . such that all nations and their peoples may achieve greater peace and prosperity, improve their stewardship of the earth, and reach minimum standards of human dignity’. A.-M. Slaughter, A New World Order (2004), at 15. See also infra, notes 65–85 and accompanying text.

30. Elias, supra note 18, at 23. Similarly, in another context he argues that ‘[n]ew and improved methods of arriving at international treaties were adopted based on the principle of pacta sunt servanda in its true sense, while the grounds of invalidity of treaties were chastened and redefined in order to meet the needs of the newly emerging welfare order. Thus, fraud, coercion and similar practices which have affected the establishment of so-called international agreements and treaties were eschewed as part of the new contemporary international law’. T. O. Elias, The United Nations Charter and the World Court (1989), at 9.

31. Elias, supra note 18, at 23.

32. M. Jewa, ‘The Third World and International Law’, Ph.D. thesis, University of Miami, 1976, at 7.

33. H. Wheaton, Histoire de progrès du droit des gens (1865).

34. On T. J. Lawrence see Riles, supra note 15, at 723–40.

35. J. Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (1894).

36. Section 2 of this essay addresses the way in which a different school of post-independence African international lawyers traced the imperial and mercantilist character of international law.

37. On this see K. A. Appiah, In My Father's House: Africa in the Philosophy of Culture (1992).

38. In Kenya and Nigeria, for example, it was argued that the idea of having a divided executive between a prime minister and a president was alien to the manner in which African chiefs ruled in pre-colonial times. See Gathii, supra note 17, at 74.

39. For a critique see A. Afigbo, The Poverty of African Historiography (1977).

40. N. S. Rembe shares the view that sovereignty is a ‘legal concept and one of the cardinal principles recognized in international law’. N. S. Rembe, Africa and International Law of the Sea (1980), at 5. Rembe goes ahead to elaborate on the internal and external attributes of state sovereignty. In part, he observes that ‘the various attributes of sovereignty generate a feeling of unity and nationhood which is a condition of development’. Ibid., at 6.

41. Elias also quotes another of his most often cited books, The Nature of African Customary Law, supra note 1, in which he shows ‘striking similarities’ between African customary law and European or Western rule-of-law-oriented regimes.

42. According to S. F. Moore, Fortes and Evans-Pritchard were among a group of ‘Africanists at Oxford, Cambridge, London and eventually Manchester [who] constituted a ready-made, informed audience for each others' work and ideas’, and, continues Moore, ‘[n]ot only were they all active in each others' seminars and in the international African Institute in London, but they were in close communication with colleagues in the research institutes in Africa’. S. F. Moore, Anthropology and Africa: Changing Perspectives on a Changing Scene (1994), at 30–1.

43. Elias, supra note 18, at 19.

44. Ibid., at 33 (emphasis added).

45. Elias, supra note 30, at 2.

46. Ibid., at 8.

47. L. B. Sohn, ‘The New International Law: Protection of the Rights of Individuals Rather than States’, (1982) 32 American University Law Review 1.

48 A leading international law teaching text in the United States, L. Henkin et al., International Law Cases and Materials (1993), at xxviii, states that ‘[t]he creation of the United Nations Organization was a major development in the international political system. . . Organizations were formed to address a broad range of ills plaguing the world community. Most of these organizations lack executive powers and make only limited encroachments upon the traditional prerogatives of national sovereignty, but their creation confirmed a new pattern of international conduct.’

49. One of the major developments of the post-Second World War period that ‘signalled a new departure in the development of international law’ was the ‘growing importance of states representing non-Western civilizations as members of the family of nations. This. . . development raised the question of the compatibility of the basic cultural values and institutions of these non-Western societies with the system of international law developed by a relatively small group of Western nations’. Ibid., at xxvii–ix.

50. Rembe, supra note 40, at 7, opines that ‘although state sovereignty presupposes legal equality, states may be greatly unequal in size, population, economic and military capabilities. . . [yet] despite the influence of other factors in inter-state relations, the concept of sovereign equality of states remains an important aspect in the conduct of state relations’. Rembe also places hope in the fact that though African states lack real power, ‘their numerical strength has increased their voting power’. Ibid. Similarly, the economic inequality between newly independent and old states was not lost on mainstream scholars of international law, who were in many respects much like Elias. For example, Henkin, supra note 48, at xxix, argues that the ‘growing gap between the economically developed and the economically less developed countries’ was a major development of the post-Second World War period that ‘signaled a new departure in the evolution of international law’.

51. For an excellent exploration see A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005).

52. Elias, supra note 18, at 33.

53. See Moore, supra note 42, at 30–48, for a listing of some these anthropologists of the period.

54. L. Henkin, How Nations Behave (1979), at 26, arguing that ‘[t]he fact is, lawyers insist that nations have accepted important limitations on their sovereignty, that they have observed these norms and undertakings, that the result has been substantial order in international relations’.

55. See Riles, supra note 15, at 723–40 (analysing the work of Thomas J. Lawrence, a British international lawyer who wrote at the beginning of the twentieth century and proposed that order rather than sovereignty was the organizing principle in international law).

56. Elias, supra note 18, at 45.

57. Ibid.

58. Ibid.

59. I am grateful to an anonymous reviewer for pointing this out to me.

60. Anghie, supra note 51.

61. For Anghie, the ‘sovereignty of the non-European entity is determined in nineteenth century international law by applying the standard of civilization to determine the status of territory; the sovereignty of the non-European entity in the post-colonial period is determined by the framework of contracts. There is a broad shift, then, from status to contract.’ Ibid., at 241–2.

62. Thus in presenting his argument about how the use of the doctrine of sanctity of contracts replaced conquest as the way in which Third World states continued to be dominated by Western corporations and states, Anghie notes that ‘[c]ontractual approaches to international law further serve to obscure the imperial past. The whole framework of contracts is crucial to the attempt to establish that international law is neutral, that the arbitrators are doing no more than enforcing the agreements that had been freely entered into by sovereign states on the one hand and MNCs [multinational corporations] on the other. The point, however, is that it is international law that legitimized, through doctrines of conquest and by upholding unequal treaties, the imbalances and inequalities in social and political power that are reflected in international contracts which are then characterized as expressing the free will of the parties’. Ibid., at 241.

63. According to Anghie, decolonization ‘did not. . . resolve colonial problems. Instead, the enduring consequences of colonialism became a central issue for the discipline, rather than a peripheral concern, as the emergence of these ‘new states’, as they were termed in the literature of the period, posed major questions of international law at both the theoretical and doctrinal levels’. Ibid., at 197.

64. Even scholars living outside Africa but writing on Africa share Elias's commitment to showing Africa's contribution to international law. See, e.g., J. Levitt, ‘The Law on Intervention: Africa's Pathbreaking Model’, (2005) 7 Global Dialogue 50, available at http://www.drjeremylevitt.com/files/The_Law_on_Intervention.pdf (last visited 1 January 2008), who argues in part that the ‘evolution of the intervention regime in Africa reveals that it is the first region to advance a comprehensive collective security and intervention regime’. A forthcoming book – J. Levitt (ed.), Africa: Mapping New Boundaries in International Law (2008) – is advertised in the following contributionist terms: ‘The principal aim of this work is to provide a forum for leading international lawyers with experience and interest in Africa to address a broad range of intellectual challenges concerning the contribution of African states and peoples to international law.’ Another scholar, A. J. G. M. Sanders, in International Jurisprudence in an African Context (1979), at 49–64, follows with approval and additional insights Elias's revisionist historiography. It is notable, however, that Sanders's analysis of the colonial episode focuses on the political economy of European exploitation of African colonies, unlike Elias, whose project was different. Notably, a festschrift paying tribute to Judge Taslim Olawale Elias, describes him as ‘the leading African exponent of International Law to date’. E. Bello and B. Ajibola, Essays in Honour of Judge Taslim Olawale Elias (1992). On contributionism, see also K. Kithure, ‘Contributions of the International Criminal Tribunal for Rwanda to the Development of International Humanitarian Law’, (2001) 33 Zambia Law Journal 34–50.

65. T. O. Elias, New Horizons in International Law (1980).

66. T. O. Elias, The Modern Law of Treaties (1974).

67. Elias, supra note 65, at xvii.

68. Ibid.

69. Ibid.

70. Friedman, for example, argued that ‘Human welfare cannot be dealt with on a national level any more than protection against nuclear destruction. . . The greatest challenge to contemporary mankind is presented by the realization that a minimum level in the conservation of human resources is no less a matter of survival than the prevention of nuclear war. . . and that in both respects the organization of international society based upon the national sovereign state is disastrously inadequate.’ W. Friedman, ‘Half a Century of International Law’, (1964) 50 Virginia Law Review 1354. He goes on to state, ‘But the greatest development of the postwar era lies in the concept of international economic development aid as a permanent and inevitable feature of contemporary international organizations.’ Ibid., at 1355. See also W. Friedman, The Changing Character of International Law (1964); and Friedman, ‘The Relevance of International Law to the Processes of Economic and Social Development’, (1966) 60 American Society of International Law Proceedings 8.

71. See R. Howse, ‘Book Review, Anne-Marie Slaughter, A New World Order, 2004’, (2007) 101 AJIL 231.

72. Ibid., at xvii (emphasis added).

73. Elias, supra note 65, at 3–4.

74. Ibid., at 19.

75. Ibid., at 21.

76. Ibid., at 21–2.

77. On the composition of the international law commission, for example, Elias notes that ‘once elected [members] represent only themselves as legal scientists and not as individual representatives of the governments of the countries from which they hail. The result has been to make the commission behave more as a group of jurists than as a group of statesmen intent on ensuring the maintenance of the “vital” interests of their several countries’. Ibid., at 79.

78. S. Sathirathai, ‘An Understanding of the Relationship between International Legal Discourse and Third World Countries’, (1984) 25 Harvard International Law Journal 397. This comment/book review reviews Elias's book International Court of Justice and Some Contemporary Problems (1983).

79. W. Friedman states, ‘But the greatest development of the postwar era lies in the concept of international economic development aid as a permanent and inevitable feature of contemporary international organizations’. Friedman, Changing Character, supra note 70, at 1355. See also Friedman, ‘Relevance of International Law’, supra note 70.

80. Elias, supra note 30, at 35.

81. Ibid., at 45.

82. Elias, supra note 65, at 16–17, where he notes that the NIEO and the CERDS ‘envisage clearer and bolder definitions of the rights and duties of states as between developed and developing ones than had hitherto been attempted or accepted in customary international law. The Declaration and the Charter reflect the new spirit. Elsewhere, Elias notes that CERDS provides that the ‘responsibility for the development of every country rests primarily upon itself but that concomitant and effective international cooperation is an essential factor for the full achievement of its own development goals’. Elias, supra note 30, at 36.

83. Ibid., at 81.

84. Ibid.

85. Ibid., at 75. Elias's' commitment to the ‘new’ international legal edifice is illustrated by his assertion that pursuant to Article 9 of the Statute of the ICJ, the ICJ is enjoined by the provisions relating to ‘the main forms of civilizations’ and ‘the principle legal systems of the world’ to represent ‘the divergent ways of political thought and social action’, by which he apparently means to refer to the Third World. Ibid., at 75.

86. Ibid., at 130–53.

87. Elias, supra note 65, at 45.

88. Ibid.

89. E. Bello, ‘Shared Legal Concepts between African Customary Norms and International Conventions on Humanitarian Law’, in R. Gutiérrez Girardot et al. (eds). New Directions in International Law: Essays in Honour of Wolfgang Abendroth (1982), 386.

90. A. A. Wafi, ‘Human Rights in Islam’, (1967) 11 Islamic Law Quarterly 64.

91. Sinha Prakash opined that the purpose of the seminar was ‘to arrest the possibility of African and Asian states retreating into an exclusive regional system of international law, like that called for in the early 19th century in Latin America’. S. Prakash, New Nations and the Law of Nations (1976), at 26.

92. M. Brown, African International Legal History (1975), at i.

93. Julius Nyerere, for example, argued that African communalism (the rough equivalent of socialism) was an antidote to ‘western predatory evil’. D. N. Kaphagwani, ‘Some African Perceptions of Person: A Critique’, in I. Karp and D. A. Masolo (eds.), African Philosophy and Cultural Inquiry (2000), at 73.

94. K. Nkrumah, ‘African Socialism Revisited’ (1967), available at http://www.marxists.org/subject/africa/nkrumah/1967/african-socialism-revisited.htm (last visited 28 December 2007).

95. For example, P. Mutharika, ‘The Role of International Law in the Twenty-First Century: An African Perspective’, (1994) 18 Fordham Journal of International Law 1706, argues that ‘Africa's diverse economic and cultural realities have provided unparalleled opportunities for lawyers to develop and apply international law to the specific problems of the African continent’.

96. HowardE.g., R. E.g., R., ‘The “Full Belly” Thesis: Should Economic Rights Take Priority over Civil and Political Rights? Evidence from sub-Saharan Africa’, (1983) 5 Human Rights Quarterly 467–90CrossRefGoogle Scholar. Even the World Bank has strongly advocated the adoption of liberal rights as an antidote to economic underperformance and as a product of market reforms. For a critique see Rittich, K., ‘Functionalism and Formalism: Their Latest Incarnations in Contemporary Development and Governance Debates’, (2005) 55 University of Toronto Law Journal 853CrossRefGoogle Scholar.

97. Mutua, M. wa, ‘The Politics of Human Rights: Beyond the Abolitionist Paradigm in Africa’, (1995) 17 Michigan Journal of International Law 339Google Scholar.

98. See Mutua, M. wa, ‘Savages, Victims and Saviors: The Metaphor of Human Rights’, (2001) 42 Harvard Journal of International Law 201Google Scholar.

99. See Wasserman, G., ‘The Independence Bargain: Kenya Europeans and the Land Issue 1960–1962’, (1973) 11 Journal of Commonwealth Political Studies 99CrossRefGoogle Scholar.

100. F. Fanon, Black Skin White Masks, (1967), at 30.

101. Otto, D., ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’, (1996) 5 Social and Legal Studies 348CrossRefGoogle Scholar.

102. For example in Anghie, supra note 51, at 320, Anghie argues that the role of a critical project ‘is not to condemn the ideals of the “rule of law,” “good governance,” and “democracy” as being inherently imperial constructs, but rather to question how it is that international law and institutions seem so often to fail to make these ideals a reality.’

103. S. B. O. Gutto, ‘Responsibility of States and Transnational Corporations for Violation of Human Rights in the Third World in the Context of the New International Economic Order’, in F. Snyder and S. Sathirathai (eds.), Third World Attitudes toward International Law (1987) 275, at 287.

104. U. O. Umozurike, International Law and Colonialism in Africa (1979), at 9–10.

105. Ibid.

106. Ibid., at 1. According to another account of the history in this tradition, the world has gone through the following stages: (i) the crumbling of the feudal order and the emergence of mercantilist trade; (ii) industrial revolution and the establishment of a world capitalist system that colonized the third world; and (iii) the crumbling of formal colonialism and the rise of a multilaterized world with a centre and a periphery. See O. O. Ombaka, ‘Law and the Limits of International and National Reform: Institutions of the International Economy and Underdevelopment’, SJD thesis, Harvard Law School, 1977.

107. Umozurike wrote his Ph.D. thesis on self-determination at Oxford, published as Self Determination in International Law (1972).

108. Umozurike, supra note 104, at x.

109. Ibid., at x. T. A. Aguda states that ‘until quite recently, the tragedy of the position was that the newly founded faculties in Africa were manned by Europeans and Americans, most of whom lacked imagination and were too dogmatic to make any useful contribution to an African approach to international law. As we all know, the joint major achievement of African countries was the formation of the Organization of African Unity, which in the way of achievements has not turned out to be much worse than the United Nations Organization itself which has brought much skepticism as to its ability to attain its goals. But speaking for myself I think that OAU has achieved a lot, although like its elder brother – the United Nations – has failed to attain much that was hoped for.’ T. A. Aguda, ‘The Dynamics of International Law and the Need for an African Approach’, in K. Gunther and W. Benedek (eds.), New Perspectives and Conceptions of International Law: An Afro-European Dialogue (1985), at 9.

110. Umozurike, supra note 104, at x.

111. Ibid. Umozurike uses extensive historical reference to show how the slave trade negated political, economic, cultural, and social development, stultified the growth of civilization, and destroyed what civilization there was. Ibid., at 4.

112. Ibid., at 14.

113. Ibid.

114. Alexandrowicz, C., ‘The Juridical Expression of the Sacred Trust of Civilization’, (1971) 65 AJIL 149Google Scholar; Alexandrowicz, ‘The Afro-Asian World and the Law of Nations (Historical Aspects)’, (1968-II) 13 Recueil des cours 117, at 123.

115. For an exploration of these and other themes see J. Gathii, ‘How American Support for Freedom of Commerce Legitimized King Leopold's Territorial Ambitions in the Congo’, in P. Alai, T. Broude and C. B. Picker (eds.), Trade as the Guarantor of Peace, Liberty and Security? Critical, Historical and Empirical Perspectives, American Society of International Law Studies in Transnational Legal Policy (2006), at 97.

116. U. O. Umozurike, Introduction to International Law (1993). This book, which he published for teaching international law (in Africa), ‘draws as many examples from the African situation while of course giving prominence to the popular cases and situations cited in Western test-books’. Ibid., at vii. According to Konrad Gunther, at a seminar on ‘International Law and African Problems’ held in Lagos in 1967, it was recognized that, first, ‘Africa as the newest continent had the duty to enrich international law with its own experiences, its values and ideas, in defence of legitimate interests, second, that traditional international law had to be re-evaluated in the African context [since]. . . Africans were living on borrowed knowledge and which hardly coincided with the interests of African states, and finally. . . that one of the ways of encouraging the study of international law in Africa was the production of text books and the publication of materials and documents written and compiled from the African experience and point of view’. K. Gunther, ‘Introductory Remarks, New Perspectives and Conceptions of International Law and the Teaching of International law’, in Gunther and Benedek, supra note 109, at 4–5.

117. Ibid., at 7.

118. Ibid., at 8–9.

119. Ibid., at 9–10.

120. Ibid., at 11.

121. Ibid., at 11–12 (emphasis added).

122. Ibid., at 13 (emphasis added).

123. Du Bois is one of the Africanists Umozurike frequently cites in International Law and Colonialism in Africa, supra note 104. See, e.g., ibid., at 17, n. 1 and an extended narrative at 140. For example, Umozurike states that ‘International law was embedded in white racism and this promoted the interests of the whites while rigorously subordinating those of others. White racial discrimination was thus a fundamental element of international law during the period in question.’ Ibid., at 37.

124. Ibid., at 19.

125. Ibid., at 21.

126. Ibid.

127. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, Judgment of 21 June 1971, [1971] ICJ Rep. 16, at 26.

128. E. K. Quanshigah, ‘Legitimacy of Governments and the Resolution of Intra-national Conflicts in Africa’, (1995) 7 African Journal of Comparative and International Law (RADIC) 248.

129. The Declaration on Granting Independence to Colonial Territories and Peoples, UN Doc. A/Res/1514 (XV), 14 December 1960.

130. Umozurike, supra note 104, at 126.

131. See for example, ibid., at 31, where Umozurike quotes one of Hobson's articles, ‘Imperialism: A Study’, in H. M. Wright (ed.), The New Imperialism (1976), at 24.

132. See e.g., ibid., where Umozurike quotes Lenin's Imperialism, the Highest Stage of Capitalism.

133. See generally Gathii, supra note 25.

134. See K. Nkrumah, Neo-colonialism: The Last Stage of Imperialism (1965); W. Rodney, How Europe Underdeveloped Africa (1973).

135. C. Leys, The Rise and Fall of Development Theory (1996).

136. Ibid., at 150.

137. Samir Amin was among the most vocal exponents of this radical dependency perspective. As recently as 1994, another leading proponent of the dependency analysis, Colin Leys, revised his thesis of underdevelopment in part since the East Asian miracle questions some of the fundamental assumptions of dependency thinking. In 1974 Bill Warren, a one-time editor of the radical African Political Economy Review, resigned from the editorial board after he changed his radical political perspective by alleging that capitalist development was possible anywhere in the world. The economic reform programmes now advocated by the World Bank and other multinational financial institutions, referred to as the Washington Consensus, advocate market reform to replace the state in the management of the economy.

138. R. P. Anand explores this theme in a chapter entitled ‘Confrontation or Cooperation: The General Assembly at Cross-Roads’ in R. P. Anand, Confrontation or Cooperation? International Law and the Developing Countries (1984).

139. M. Bedjaoui, Towards a New International Economic Order (1979).

140. Ibid., at 97.

141. Ibid.

142. Bedjaoui refers to it as ‘intoxication with sovereignty’. Ibid., at 99. This intoxication, in his view, ‘is paving way to “instability of legal situations” and ‘anomy in the State's power of decision, or in other words, a power of decision subject to no rules’.

143. Ibid., at 98. Notice that while in the first tradition formalism was embodied in the view that law is the command of the sovereign, here Bedjaoui claims that it is embodied in law's immutability.

144. Ibid., at 100.

145. Ibid.

146. Ibid., at 103–4.

147. Ibid., at 99. Bedjaoui also explores an antinomy ‘existing in law, which implies conservatism, and development, which calls for change’. Ibid., at 97–8, 109.

148. Ibid. Bedjaoui cites the law of the sea as an admirable example of the ‘law's capacity to change’. Ibid., at 106.

149. Ibid., at 100.

150. Ibid., at 100. Bedjaoui criticizes the fact that ‘[t]he price the new states have to pay for its entry into the international order is. . . the stability of international law and of international relations.’ Ibid., at 101.

151. Ibid., at 104.

152. Ibid.

153. Ibid., at 111.

154. Ibid.

155. Ibid., at 114.

156. On this see Mickelson, K., ‘Rage and Rhetoric: Third World Voices in International Legal Discourse’, (1998) 16 Wisconsin Journal of International Law 353Google Scholar.

157. D. Tarullo, ‘Book Review, Foreign Trade in the Present and a New International Economic Order’, (1991) 85 AJIL 245.

158. See Gathii, J., ‘The High Stakes of WTO Reform’ (book review), (2006) 104 Michigan Law Review 1361Google Scholar.

159. Anghie, supra note 51.

160. A new range of rights are alleged to have emerged. These include the right to democratic governance, the human rights of women, and a right to humanitarian intervention to prevent state collapse and defend human rights.

161. See N. Berman, ‘Beyond Colonialism and Nationalism? Ethiopia, Czechoslovakia, and “Peaceful Change”’, 65 Nordic Journal of International Law 421–79, at 422. For an excellent critique see B. Chimni, ‘Third World Approaches to International Law: A Manifesto,’ in A. Anghie et al. (eds.), The Third World and International Order: Law, Politics and Globalization (2003). See also M. Koskenniemi, The Gentler Civilizer of Nations (2001).

162. S. Adelman and A. Paliwala (eds.), Law and Crisis in the Third World (1992), and wa Mutua, supra note 98, are good examples of such an approach.