Reassessing Aspects of the Contribution of African States to the Development of International Law Through African Regional Multilateral Treaties

Michigan Journal of International Law Volume 41 Issue 2 2020 Reassessing Aspects of the Contribution of African States to the Development of International Law Through African Regional Multilateral Treaties Tiyanjana Maluwa Pennsylvania State University School of Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the International Law Commons, Law and Race Commons, and the Legal History Commons Recommended Citation Tiyanjana Maluwa, Reassessing Aspects of the Contribution of African States to the Development of International Law Through African Regional Multilateral Treaties, 41 MICH. J. INT'L L. 327 (2020). Available at: https://repository.law.umich.edu/mjil/vol41/iss2/4 https://doi.org/10.36642/mjil.41.2.reassessing This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. REASSESSING ASPECTS OF THE CONTRIBUTION OF AFRICAN STATES TO THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH AFRICAN REGIONAL MULTILATERAL TREATIES Tiyanjana Maluwa* I. Introduction The role of international law in Africa—and Africa’s contribution to international law’s development—has been the subject of scholarly debate in the decades since the first wave of African countries gained independence from colonial rule in the early 1960s.1 Two related, but facially contradicto- ry, concerns have emerged from these debates over multiple generations. The first is that European colonial powers have deliberately erased Africa and Africans from the history of the creation and use of international law. The second is that Africa does not receive credit for contributing to the making of international law in the postcolonial era, if not earlier. Both concerns implicitly offer an alternative interpretation of the history of international law in Africa, and those endorsing these concerns have sought to show that Africa “has always made, and continues to make, international law as an innovator and generator of human knowledge, institutions, and rules.”2 * H. Laddie Montague Chair in Law, Pennsylvania State University School of Law— University Park, former Legal Counsel of the Organization of African Unity (1997–2001). An initial draft of this paper was presented at a seminar of the Berlin-Potsdam Research Group (“The International Rule of Law—Rise or Decline?”) at Humboldt University, Berlin. I am grateful to the participants for their thoughtful questions and comments. I have since benefited from further criticisms and suggestions from other colleagues and reviewers on various aspects of the discussion, and from perceptive critiques from and useful exchanges with the edi- tors of the Michigan Journal of International Law. 1. Examples of the first generation of postcolonial African international law scholars to examine these questions, starting in the 1970s, include CHUKS F. OKOYE, INTERNATIONAL LAW AND THE NEW AFRICAN STATES (1972); TASLIM O. ELIAS, AFRICA AND THE DEVELOPMENT OF INTERNATIONAL LAW (Richard Akinjide ed., 2d ed. 1988); and JOSEPH- MARIE BIPOUM-WOUM,LE DROIT INTERNATIONAL AFRICAIN:PROBLÈMES GÉNÉRAUX, RÈGLEMENT DES CONFLITS (1970). 2. See Jeremy Levitt, Introduction—Africa: A Maker of International Law, in AFRICA:MAPPING NEW BOUNDARIES IN INTERNATIONAL LAW, at vii (Jeremy Levitt ed., 2008). 327 328 Michigan Journal of International Law [Vol. 41:327 Thus, though their concerns took different forms, earlier commentators agreed on two general propositions. First, that although the imperial powers regarded the legal regimes of precolonial African states and communities as tabula rasa—and later regarded colonial-era African states as objects of a Eurocentric international law—by the mid-1960s the newly independent Af- rican states had ceased to be merely objects, and were assuming their place as creators, of contemporary international law. Second, that the active participation of the new African states in the international legal order had, in fact, advanced the frontiers of traditional international law.3 More recently, a new generation of scholars has taken up these questions, challenging even more vigorously the Eurocentric mythology of the origins of international law and the imperialist assumption that pre-colonial Africa was devoid of law, and, in particular, international law.4 Most of this recent discussion has been rooted within the theoretical and methodological school known as Third World Approaches to International Law (“TWAIL”).5 TWAIL does not represent a single voice or text, but rather a 3. See UNITED NATIONS INSTITUTE FOR TRAINING AND RESEARCH,AFRICAN INTERNATIONAL LEGAL HISTORY 3 (A.K. Mensah-Brown ed., 1975). See generally U. O. UMOZURIKE,INTERNATIONAL LAW AND COLONIALISM IN AFRICA (1979) (discussing the history and metamorphosis of international law in Africa from the advent of colonialism— following the Berlin Conference of 1884/85, which was used to justify depriving African peoples of their sovereignty on the basis of the right of European powers to occupy and impose their own sovereignty over what they regarded as terra nullius—through the colonial and postcolonial periods, in which the former African colonies asserted their contribution to aspects of modern international law, for example in relation to the right of self-determination for colonial or colonized peoples through their anti-colonial struggles); YILMA MAKONNEN, INTERNATIONAL LAW AND THE NEW STATES OF AFRICA (1983) (discussing the contribution of the newly independent African states to a specific area of international law, namely state succession). 4. See generally UMOZURIKE, supra note 3; Jeremy Levitt, The African Origins of International Law: Myth or Reality?, 19 UCLA J. INT’L L. & FOREIGN AFF. 113, 158–59 (2015) (rejecting the historical assumption that international law began with the Treaty of Westphalia of 1648 and, instead, arguing that the legal influence of African states predates that of modern European states by nearly 6000 years—going back to the New Kingdom peri- od in Egypt from 1570 to 1070 BCE, when African states engaged in treaty relations and ap- plied rules of custom and general principles of law that are today called sources of international law); James Gathii, Africa and the History of International Law, in THE OXFORD HANDBOOK OF THE HISTORY OF INTERNATIONAL LAW 407, 407–28 (Bardo Fassbender et al. eds., 2012) (tracing the two major trends in thinking about Africa’s engagement with international law, “contributionism” and “the critical approach” which, respectively, emphasize Afri- ca’s contribution to international law and examine Africa’s subordination in its international relations as a legacy that is traceable to international law). 5. See, e.g., James Gathii, TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography, 3 TRADE,L.&DEV. 26 (2011) (giving an account of the history and objectives of TWAIL and an introductory bibliography); Makau Mutua, What Is TWAIL?, 94 AM.SOC’Y INT’L L. PROC. 31 (2000) (discussing TWAIL’s three basic objectives as being to “[understand], deconstruct, and unpack the uses of international law as a me- dium for the creation of a racialized hierarchy of international norms and institutions that sub- 2020] Contribution of African States to International Law 329 multiplicity of vibrant voices that explore related questions around issues of colonial history, power, identity, and difference, and what they mean for international law.6 Thus, the views and perspectives advanced by TWAIL scholars differ widely but share a common purpose: They advocate a critical reading and reconceptualization of international law to understand and rec- ognize its historical origins in Europe, to interrogate its imperial hegemony, and to reform it so that it can better address the concerns of developing countries and peoples. Most scholars writing on Africa and international law—both self- identifying “TWAILers” and others—agree on the imperialistic origins and underpinnings of international law. While some have focused on the theoretical and methodological questions of international law and the history of Africa’s relationship with and place in it, others—dubbed “contribution- ists”7—have emphasized the postcolonial contributions of African states to the development of international law, either broadly or in specific areas.8 Yet others have taken on both tasks: interrogating the theory and methodol- ogy of international law, and assessing Africa’s contributions to its substan- tive content, both in its doctrinal and normative aspects. Still others, known as critical legal scholars, focus on the manner in which modern international ordinate non-Europeans to Europeans; [construct] and present an alternative normative legal edifice for international governance; and [eradicate] the conditions of underdevelopment in the Third World.”); Karin Mickelson, Taking Stock of TWAIL Histories, 10 INT’L COMMUNITY L. REV. 355 (2008) (discussing the origins of TWAIL and TWAIL’s relationship to earlier Third World scholarship, and arguing that TWAIL should be seen as part of a Third World tradition of international law scholarship rather than as the overarching frame- work in which to fit all Third World scholarship). 6. See Gathii, supra note

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