Review Essay: International Law and Eurocentricity 1 Anti-Colonial Reconstructions of International Legal History In Sovereigns, Quasi Sovereigns and Africans, Grovogui demonstrates how `western notions of self and sovereignty have been grounded in claims of superiority, a higher knowledge of civil institutions, and a mission to elevate the other'.9 South West Africa, present-day Namibia, provides the case study for this well-researched, well-written and well-argued book. Initially a PhD thesis, Sovereigns, Quasi-Sovereigns and Africans explores the manner in which international law, its structures and institutions express European `philosophic assumptions' that deny, erase or suppress `non-European subjectivity'.10 For this reason, Sovereigns, Quasi-Sovereigns and Africans represents a strong and rare form of anti-colonial international legal scholarship. I identify this form of anti-colonial international legal scholarship as strong because of the centrality its analysis places on the claims and role of economic, political, social and cultural superiority/inferiority in the historical relationship of colonized and colonizing countries in the past and the present. This failure or lack of engagement with the `coercive realities of colonial history and the current neo-colonial era'11 is `conducive to the preservation and continued development of a distorted "world view", since it allows for the historical erasure of imperial politics and, additionally, represses the record of contemporary forms of western power over the non-West'.12 This strong form of international law scholarship self-identifies with group solidarity among less powerful countries. It expresses their desire for self-determination and autonomy from all forms of external or neo-colonial controls. In other words, as Sovereigns, Quasi-Sovereigns and Africans illustrates, decolonization did not imply complete self-determination of the formerly colonized countries, in part because the process of decolonization was subject to a regime of international law complicit in the subjugation of non-European people.13 For its part, Legal Polycentricity continues a weak tradition of Afro-Asian post-decolonization international legal anti-colonial scholarship, but in a new form. A major research theme that unites this diverse anti-colonial intellectual tradition is its primary focus on arguing about the limits within which the newly independent nations of Asia and Africa would embrace an international law that was Eurocentric in its geographic origin,14 Christian in its religious basis, imperial in its political objectives and mercantilist in its material underpinnings.15 A vague but general consensus that had emerged in this tradition by the early 1970s held that these newly independent countries would only accept those parts of international law that were not inconsistent with their independence.16 The weak form of anti-colonial scholarship is basically integrationist: meaning that it is largely complimentary of the liberatory claims of principles such as self-determination as uncompromising tenets of world peace and indicators of the rejection of the colonial experience and specifically as an expression of the value these principles uphold against the unacceptable repression of non-European humanity under colonialism, slavery and other forms of discrimination and repression of the non-European personality. This weak form of anti-colonial scholarship also uncritically endorses the United Nations agenda in areas such as human rights and the right to development as having potential and being of continuing benefit to the formerly colonized countries. The weak strand can only be understood alongside the strong variant, which would regard the positions of the weak form not only as bordering on apology for their uncritical reflection of the promises of international law in the post-decolonization era, but also for repressing the record of post-colonial forms of Western and non-Western power over the non-West and `third world' parts of the West.17 Legal Polycentricity falls in this general tradition in so far as it grapples with the extent to which it is (not) possible to assimilate different civilizational experiences into a single international law whose geographic origin is European and whose religious basis is Christian.18 Unlike Sovereigns, Quasi-Sovereigns and Africans, Legal Polycentricity does not focus on the political (imperial) and material capitalist underpinnings of international law as posing any limitation to its acceptance by formerly colonized countries. A major theme explored in the immediate post-decolonization period within the weak strain of Afro-Asian international legal scholarship was that of the existence of trade, commercial and diplomatic links between pre-colonial African and Asian kingdoms and European societies prior to colonial conquest late in the eighteenth and early nineteenth centuries. This evidence was mobilized to argue that African and Asian kingdoms and societies participated in the formulation of customary international law and were not therefore newcomers to it.19 Legal Polycentricity does not however mobilize similar evidence to make its case for the legitimacy of international law. Rather, it undertakes a detailed exploration of the different non-European civilizational experiences to prove the fact of their existence, much like Eurocentric civilizational experiences. Sinha maintains that examining non-European civilizational experiences is more fruitful than reverting to `the dead horse of questioning the validity of international law owing to the inclusion of non-European states in today's society of states'.20 This position contrasts with Sinha's proposition in his 1967 book, New Nations and the Law of Nations, where he argued that the then newly independent Afro-Asian states aimed at first, `preserving the rules of international law which help them exist as members of the society of states and are not inconsistent with their own interests'; second, `the removal from the existing body of international law those rules which impair or prevent the realisation of their interests'; and third `the creation of new rules which would reap the maximum benefits from the international system'.21 These three tenets characterize positions adopted within the weak tradition of Afro-Asian international legal scholarship especially in the 1960s and 1970s. However, Legal Polycentricity shifts its attention from these traditional concerns of the weak form of anti-colonial scholarship to exploring how the `single catalogue approach', or Western/Eurocentric approach to international law has prevented international law from `being sufficiently responsive to the needs of this [civilizational] diversity'.22 A significant point illustrating Sinha's departure from his earlier position, is his caution in Legal Polycentricity that the lack of a genuinely inter-civilizational international law is not a reason `for scrapping the international human rights program, but for improving it'.23 By contrast, a major focus of the weak strain of anti-colonial scholarship was on the unfair nature of international law with respect to newly independent countries, including those still under formal colonial rule, and the need to remove those parts of international law, to use Sinha's 1967 phraseology, rather than merely suggesting that they need to be improved, to use Sinha's new phraseology in Legal Polycentricity. For these reasons, Legal Polycentricity is a new variation of the weak form of anti-colonial international legal scholarship of the 1970s. One major difference between the weak form of anti-colonial scholarship of the 1970s and that of the 1990s is that the latter lacks the critical strength, such as it was, of the 1970s version, limited though it may have been. In Legal Polycentricity, the extensive investigation and positive affirmation of non-Western civilizational experiences may therefore be said to serve the purpose of masking the structural character of international law in favour of those countries and interests around the world that enjoy economic, military and political superiority.24 The concern with human rights, though part of the agenda within the weak strain during this earlier period, also symbolizes the migration from a concern with the more significant questions of self-determination, especially in the post-Cold-War period. In other words, the contested post-colonial settlements endorsed after the Second World War are, in Legal Polycentricity, taken for granted. The concern for human rights, though significant, reflects a shift from a concern with the problematic character of international relations between countries with different levels of economic, political and social endowment as well as historically unequal relationships to a concern with the local conditions within each country, resulting in a narrowing of the larger international perspective within which the local or national can and ought to be seen.25 To the extent that Legal Polycentricity departs from a tradition of Afro-Asian scholarship which argues that customary international law was in part formed by Afro-Asian contributions, it also departs from the project of redefining and challenging categories such as backward, uncivilized and barbaric which were assigned to non-European communities by early European international law scholars.26 A major aim of rewriting the history of international law in the weak strain of anti-colonial scholarship, especially in the 1960s and 1970s, was to correct the historical record: to rescue non-Europeans from their assigned place in the history of international law as backward, barbaric and uncivilized and hence incapable of participating in the international legal order.27 For example, some African scholars used historical evidence of the existence of ancient African Kingdoms or political units equivalent to, if not superior to, the `modern' and `civilized' Western states to disprove African inferiority on account of a lack of political units akin to those found in Western Europe.28 9 Sovereigns, at x (Preface). 10 Ibid. 11 B. Moore-Gilbert, Post Colonial Theory, Contexts, Practices (1997), at 11. 12 Slater, `Contesting Occidental Visions of the Global: The Geopolitics of Theory and North-South Relations', Mass Alla Del Derecho-Beyond Law, Stories of Law and Social Change from Latin America and Around the World, no. 10, at 99. 13 One of the central claims discussed by Grovogui is that international law is `the legal system that engendered colonialism'. Sovereigns, at 3. 14 Mohammed Bedjaoui, for example, notes that `[b]efore the First World War there was an "exclusive club" of States which created what has been called a "European international law" or a European public law', which broadly speaking, governed relations not only among members of the `club' but also between them and the rest of the world. If the scope of this law, which was geographically specific, had a universal character, it had nevertheless been conceived simply for the use and benefit of its founders, the states that were called `civilized'. Bedjaoui, `General Introduction', in M. Bedjaoui, International Law: Achievements and Prospects (1991), at 5. Some recent work on the history of international law has suggested a more nuanced thinking about the European origins of international law. For example, the strict binary opposition between European and non-European identities has now been problematized as not only varied and fragmented, but also as having intermingled and interacted in the course of the colonial encounter. In other words, the received history of international law to the effect that international law arose exclusively within the West has been revised in recent work that seeks to show how the history of the non-West was central to the construction of important doctrines of international law such as sovereignty. In this new work, the non-West is no longer represented as being outside the history of knowledge and the West as the sole and exclusive source of contemporary knowledge including international law. Antony Anghie's definitive study, `Creating the Nation State: Colonialism and the Making of International Law', SJD Thesis, Harvard University, 1995, for example argues that the perceptions of non-Western people among jurists of international law were central to the creation of international law as we know it today. This theme is elaborated further later in this essay. According to Prakash, `Orientalism Now', 34 History and Theory (1995), the fundamental insight that traces `the domination of the Other into the very constitution of the West ... [is] a deep fissure on the operation of Western hegemony. There, the West appeared both to reach its limits and to construct its dominance. For if the West represented itself as autonomous and universal in the domination of the Other, then the encounter with the "native" was the point of both the limit and the fabrication of such a representation.' 15 Bedjaoui, supra note 13, at 6. 16 Scholars in this tradition have sought an appropriate balance between realizing independence from unequal relationships with former colonial countries and the post-independence governments, on the one hand, and `the responsibilities' of post-colonial states under international law which tend to compromise their independence, on the other hand. Consequently, a group of African international legal experts, meeting in 1967, observed that automatic succession of treaties entered into by colonial governments, as required under the rules of treaty succession in customary international law, needed modification to bring them into conformity with the aspirations of newly independent African countries. These experts noted that in deciding which international treaties the newly independent African countries would choose to take over, they had to `be aware of their responsibility to the international community [but] ... should strive to uphold the rule of law and the preservation of the international legal order'; see E.E. Seaton and S.T. Maliti, Tanzania Treaty Practice (1973), at 56. Similarly Mohammed Bedjaoui wonders how newly independent African countries could at once attain full independence from their repressive relationships with their former colonizing power, without simultaneously reordering the international legal, economic and political order. Bedjaoui observes that one of the tasks of international law is that of consolidating rather than transforming situations. Writing at the end of the 1970s, Bedjaoui is sceptical of the possibilities of international law acting as an instrument to transform international society and as such to usher in a New International Economic Order. His scepticism derives from the view that international law could not easily assume a new task (of transforming international society) since it is `a law which hitherto has been confined to protecting a type of international relations not yet purged of inequality and imperialism', in M. Bedjaoui, Towards A New International Economic Order (1979), at 110. 17 F. Fanon, The Wretched of the Earth (trans. C. Harrington, 1963), esp. at 119-199. This book illustrates the various ways in which African elites in the post-colonial period undermined the political and economic goals of their countries, thereby sacrificing important national goals for selfish gain in alliance with foreign capital and governments. See also Idem, Toward the African Revolution: Political Essays, (trans. H. Chevalier, 1967), esp. at 191-191. 18 E.g., T.O. Elias, Africa and the Development of International Law (1972). See especially the first part of chapter 1 of his book entitled `Ancient and Pre-medieval Africa'. This weak form of anti-colonial scholarship is more concerned with the spiritual rehabilitation of the African (from racial doctrines propounded by European imperialists regarding the inferiority of Africans) rather than the structural adjustment of some of her/his circumstances. So, e.g., scholars in this tradition, like T.O. Elias, go to great lengths to demonstrate that ancient African Kingdoms participated on a basis of equality with European states and even exchanged diplomats with them. This evidence is marshalled in support of the proposition that Africa is not as backward and uncivilized as the texts of international law suggest. In addition, Elias uses this evidence in support of the argument that ancient African states participated in the formation of customary international law, contrary to the telling of contemporary texts of international law published in the West. Ibid, at 3-23. 19 By contrast, in the strong form of anti-colonial international legal scholarship, the origins of international law are traced to the rise of industrial capitalism and nationalism in Europe. See Chimni, supra note 7 (also arguing in favour of a Marxist approach to international law); S.B.O. Gutto, Human and Peoples' Rights for the Oppressed: Critical Essays on the Theory and Practice of Human Rights from a Sociology of Law Perspective (1993); Umozurike U.O., International Law and Colonialism in Africa, (1979). 20 Legal Polycentricity, at 16. 21 Ibid. 22 Ibid, at 17. Note that the earlier position referred to here is in S. Prakash Sinha, New Nations and the Law of Nations (1967), as described above. 23 Ibid. Makau Wa Mutua, `The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties', 35 Virg. J.Int'l L. (1995) 339, argues against the Eurocentric proposition that African societies did not have notions of human rights and proposes that the contemporary international human rights regime can only be truly universal from the multicultural elaboration of norms. See also Makau Wa Mutua, `Limitations on Religious Rights: Problematizing Religious Freedom in the African Context', in J.D. Van de Vyver Jr. and J. Witte (eds.), Religious Human Rights in Global Perspective (1996), at 417-440, where he argues that the human rights `movement should encourage the cross breeding of cultures and tolerance for diversity. It should also frown upon homogenisation and the imposition of uniformity' (at 439). Finally, Makau Wa Mutua, `The Ideology of Human Rights', 36 Virg. J. Int'l L. (1996) argues that in the reconstruction of a multicultural regime of international human rights, `the imagination of norms and political models whose experimental purpose is the reduction - if not the elimination - of conditions that foster human indignity, violence, poverty and powerlessness ought to be the overriding objective of actors in this discourse' (at 657). 24 A major shortcoming of the positive light that Sinha chooses to cast on what he calls civilizational pluralism or cultural diversity is that it does not truly challenge existing practices based on European superiority. An alternative analysis to that offered by Sinha would instead address the transforming of `existing categories of domination into an altogether different, positive social formation'. Gotanda, `A Critique of "Our Constitution Is Color-blind"', 44 Stan. L. Rev. (1991), at 62. For this reason, I associate myself with critical race scholarship in the United States in so far as it embraces the idea that mainstream liberal and conservative legal scholarship are held together by excluding `radical or fundamental challenges to the status quo institutional practices of American society by treating the exercise of racial power as rare and aberrational rather than as systematic and ingrained', K. Krenshaw, N. Gotanda, G. Peller and K. Thomas (eds.), Introduction, in Critical Race Theory: The Key Writings that Formed the Movement (1996), at xix. Similarly, the weak tradition of anti-colonial international law scholarship fails to challenge the status quo, Eurocentric international legal regime by attempting to rehabilitate rather than engage it. 25 There are many ways in which the narrowing of the range of the international has taken place in many weak forms of anti-colonial and liberal international law scholarship. These include: the emphatic repetition of the importance of interdependence and international cooperation, which serves as a camouflage for differences of interest and capacity between countries; the invocation of images of chaos as a reflection of nationalist separatism that is dangerous for world peace; the necessity of international economic openness for development across the world; the importance of international law and institutions in enhancing the ability of nation-states to communicate and cooperate in the process of redefining their interests and their strategies. In short, the weak form of anti-colonial scholarship, unlike the strong variant, fails to critique the injustices and inequalities of the present order in any fundamental way. 26 Hegel among other Enlightenment (European) scholars reinforced the exclusion of Africa from the universal future of conscious humanity embodied in Judeo-Christian historicity. See Jewsiewicki and Mudimbe, `Africans' Memories and Contemporary History of Africa', 31 History and Theory (1992) 1. International scholars in the nineteenth century also adopted the view that Africa had no history. These scholars emphasized that Africa was different from Judeo-Christian Europe because of general cultural inferiority and political disorganization which barred Africa from membership in the family of nations. As a consequence, John Westlake, one of the international lawyers at the time, argued that these African states lacked the power to sign legal treaties to transfer their sovereignty to a European power. P.D. Curtin (ed.), Imperialism (1971). See also Serequeberhan, `The Critique of Eurocentricism and the Practice of African Philosophy', in E. Chukwudi Eze (ed.), Post Colonial African Philosophy - A Critical Reader (1997), 141-161. 27 Makau, `The Limitations on Religious Rights', supra note 23, notes that like Christianity, Islam is based on `the belief in the racial superiority of the proselytizer; the other is quite often depicted as inferior. Arab muslims, for example, have historically viewed Black Africans as racially inferior and deserving of disrespect; Islamised Africans are regarded as having taken an important step towards over-coming that inferiority.' Makau adds that it is this attitude among Arab Muslims that justified the capture and enslavement of `millions of Africans' (ibid, at 423). 28 E.g. Elias, supra note 17, at 2-23. Two leading anthropological publications that support this position but are not cited by Elias are, C. Anta Diop, The African Origin of Civilization: Myth or Reality (1974); C. Anta Diop, M. De Jager and H.J. Salenson, Civilization or Barbarism: An Authentic Anthropology (1991). Nigerian historian A.E. Afigbo, The Poverty of African Historiography (1977) regrets the rewriting of African history to adorn it with the glory of past greatness. Prof. Afgbo refers to this form of representation of African glory (successful Kingdoms and states) as merrie Africa, or problem-free Africa. He observes that this historiography served as an important justification of repressive post-colonial statehood. This African historiography of merrie Africa also approximates 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 slavery of inferior races like negros, by portraying negroes as being as human as the Europeans and as having their own culture and way of life. 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), 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. 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 ... patronizing' (ibid, at 49-50).
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