Review Essay: International Law and Eurocentricity Prakash Sinha, Surya. Legal Polycentricity and International Law. Carolina Academic Press, 1996. N'zatioula Grovogui, Siba. Sovereigns, Quasi Sovereigns and Africans: Race Self-Determination in International Law. Minnesota: University of Minnesota Press, 1996 James Thuo Gathii1 Introduction The two books under review here fall within a broad research agenda of anti-colonial international law scholarship.2 They focus in particular on the question of international law and Eurocentricity, albeit from two rather different perspectives. Legal Polycentricity seeks to validate two main arguments: first, the historical coexistence of civilizational plurality, which goes to displace the universality or `single-value' approach to international law and which establishes in its place `an acceptance of moral pluralism' in international society;3 second, notwithstanding its `parochial origin and growth in Europe',4 the author argues, `the genius of international law [is that] ...it has become universal and it governs states of all civilisations, European and non-European'.5 These two arguments seem to be in contradiction: the first goes to disprove the universality of an international law whose values represent a single value approach (Eurocentric) to international society, while the second argues that Eurocentricity notwithstanding, international law has become universal. Legal Polycentricity is a five-chapter polemic aimed at reconciling this contradiction. By contrast, Sovereigns, Quasi Sovereigns and Africans6explores two principle ways in which international law bears the imprint of the hierarchical nature of European-non-European relationships over time: firstly within the discursive context of European thought and secondly in the context of European imperialism, colonialism and neo-colonialism. Sovereigns, Quasi Sovereigns and Africans is a probing analysis of the universalistic claims of international law through an examination of the `structures of the discourses' of both international law and politics in the context of Namibian decolonization,7 while Legal Polycentricity examines the presence of non-European legal orders alongside the Eurocentric international law.8 1 SJD Candidate, Harvard Law School; LLB, University of Nairobi, 1992; LLM, Harvard Law School, 1995; Crowe and Dunlevy Visiting International Professor, University of Oklahoma School of Law, Fall, 1997. I would like to thank Celestine Nyamu, Antony Anghie, Balakrishnan Rajagopal, David Kennedy and Nathaniel Berman for their insightful comments on various drafts of this review. 2 Several themes constantly recur in anti-colonial international legal scholarship. The first set of themes relates to the revision of international law by decolonized countries with the aim of ending colonialism, the arms race, discrimination on the basis of race, intervention from powerful countries, as well as arguing for a restructuring of the unequal economic relations between developed and developing countries through efforts such as the New International Economic Order. Second, we find analyses of the power and structural relationships that are embedded within and represented in international law, especially within the colonial and neo-colonial imperial and economic relationships between the former European colonial powers and the colonies as well as the unequal impact of globalization in the post Cold War period on women, various social classes and ethnic and cultural groups. A third theme examines the cultural articulations of the history of international law along the European-non-European axis, to which new work now traces the origins of international law. This new line of research explores the ways in which the encounter between European and non-European countries contributed to the formulation of basic doctrines and principles of international law, thereby revising the view that international law arose exclusively within the practice of European states. Fourth, anti-colonial scholarship on international law has focused on the culturally constructive character of international law in various regimes, such as those dealing with minorities and the rights of subordinate groups within multinational societies. This culturally constitutive character that was epitomized by the colonial encounter has parallels in post-colonial societies. Fifth, there has recently been a renewed interest in closely studying and exploring the work of the first generation of Asian and African scholars of international law. 3 S. Prakash Sinha, Legal Polycentricity and International Law (1996), at 1 [hereinafter Legal Polycentricity]. This proposition derives from work in social science research, especially in anthropology. For example, Sinha uses the notion of plural legal orders occupying the same social field in rejecting legal centricism and endorsing radical relativism (ibid, at 6-9). S. Falk Moore, a leading anthropologist, quoted by Sinha, has extensively elaborated on the notion of social fields to illustrate the interaction of formal and non-formal sources of norms that govern members of a community. See Falk Moore, `Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study', 7 Law and Society Review (1973) 719. The application of the concept of social fields to the study of international law is therefore an extension to what Sinha considers an analogous situation. This novel application of what may be a useful concept in other disciplines to the study of international law helps to camouflage the structural inequalities between different peoples within international society and the manner in which racial categorization undergirded the imposition of colonial rule with the endorsement of international legal norms and jurists. In addition, the liberal presumption underlying Sinha's adoption of the notion of social fields, to the effect that all races or civilizations are naturally equal and need to be given the same equal rights within the existing status quo, similarly obscures power realities in as far as it fails to even attempt to appreciate the inherent positions of hierarchy represented by the various civilizational orders that he examines. 4 Ibid, at 15. 5 Ibid. 6 S. N'Zatioula Grovogui, Sovereigns, Quasi-Sovereigns and Africans (1996) [hereinafter Sovereigns]. The title of this book apparently derives from the hierarchical proposition advanced by a major thesis of the book: sovereignty belongs to European nations, quasi-sovereignty to European trading companies, while Africans were just that, Africans, since they were incapable of becoming bearers of sovereignty. The grant of authority to the German South West African Company, an agent of the German Crown authorized to `acquire territories and the right to engage in trade and administer and assume governmental and legislative powers over the inhabitants of such territories', by the German government is what amounts to quasi-sovereign authority (ibid, at 68-69). In addition, Sovereigns, Quasi-Sovereigns and Africans refers to the establishment of the International Commission of the Congo (ICC), as a `state unto itself' (ibid, at 85). The ICC was established by European powers at the Berlin conference to `promote colonial rule by juridical means ... by extending the customary principle of freedom of navigation and trade in Africa to all imperialist powers, including the United States and Turkey which had no Sub-Saharan African possession' (ibid, at 84). Grovogui sums up this argument thus, `European publicists and practitioners construed sovereignty to imply inter alia the bearer of full freedoms and liberties, but they attributed this status solely to Christians/Europeans.... The dominant European position was that non-Europeans were primitives or savages who, although incorporated into the international legal order, were not yet ready for full subjectivity or sovereignty.' Ibid, at 49, 96. 7 Ibid, at 23. 8 Sinha has an impressive portfolio of work on this theme. He quotes no less than eight of his articles and books on this topic written between the period 1967 and 1993 and published not only in international law journals and reviews but also in journals in other disciplines in the United States, Europe and Asia. For a sampling of Afro-Asian anti-colonial international law scholarship, see F.E. Snyder and S. Sathirathai (eds.), Third World Attitudes toward International Law: An Introduction (1987). Like Sinha and Afro-Asian scholars in the post-decolonization period, in the inter-war period Chilean international jurist Aljejandro Alvarez argued that there was a separate American international law shared and observed between South American countries and in their relations with other American states and European states. See Alvarez, `International Life and International Law in America', 74 Bulletin of the Pan American Union (1940) 232. Manoel Alvaro de Souza Sa Vianna, a Brazilian international jurist, on the other hand contended that a group of problems and situations such as those common to Latin American countries was insufficient to constitute the basis of an international law. In Sa Vianna's view, international law was constituted not by commonality of conditions between countries, but rather by the nature of the universal principles which underpin international society. M. Alvaro de S. Sa Vianna, De la Non-Existence du droit International Americain, (1912). While the debate on the universality of international law took place among Latin American jurists beginning at the end of the last century, for Asian and African scholars the debate took off after decolonization. In the inter-war period, Soviet approaches to international law challenged the bourgeois underpinnings of international law. Soviet approaches are principally predicated on a contrasting ideological basis to bourgeois or capitalist law, namely, socialism. G.I. Tunkin, one of the leading Soviet international legal jurists, observed that one of the principles of Soviet internationalism, the international law governing relations between socialist states, was that of `proletarian internationalism, which signified the fraternal friendship, close co-operation, mutual assistance of the working classes of various countries in the struggle for their liberation'. According to Tunkin, this principle (of proletarian internationalism) emerged as the principle of the workers' movement when the development of capitalism and of the workers' movement itself attained a sufficiently high level. The internationalization of the domination of capital, the intensification of ties among the workers of individual countries, the growth of the consciousness of the unity of purpose and the need for unified efforts of the proletariat of various nations in the struggle for their liberation and for the creation of a new society not knowing exploitation - these are the basic reasons for the emergence of the principle of proletarian internationalism.' See G.I. Tunkin, A Theory of International Law (1974), at 4. It is noteworthy that notwithstanding its critique of liberal internationalism which was predicated on universal models, Soviet internationalism was based on the idea that the proletariat of the Soviet Union and the West would liberate those of the rest of the world. Hence, Soviet internationalism, just like liberalism, upon which modern international law is predicated, posits a `universal system'. For a critique of the failure of Soviet approaches to ground their approach to international law on Marxism, see B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (1993).
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