Archive for the ‘ International Law ’ Category

Africa and International Law

                         Copyright Keyvan Tabari 2005-All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari. 

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abstract: This is a study of how Africa has been treated under international law and how it, in turn, has influenced the evolution of international law.  That mutual interaction has a long history, involving many faces and forces.  It has evolved through successive phases marked by the Crusades, slavery, exploitation, nationalism, and globalization.  Most recently, African nations have embarked together on a bold journey of self-realization, asking the international community to support a development plan of their own design.  Thus they have challenged not only the process but also the very concepts underlying international law in the age of globalization.  Africa’s tragedies have already contributed to universalizing the human rights law.  Could Africa’s hopes and compelling needs generate the same impetus in international trade and financial laws?  That goal is measured here by reviewing the reality of the contemporary jurisprudence of international law.

keywords: Africa * International Law * the U.N. * globalization * development                                                           

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 Introduction

            Africa is terra incognito and international law an esoteric subject to most people in the world, and the relationship between the two are far outside of their immediate interest.  Yet this continent has been the incubator for momentous events in the evolution of international law -events which have shaped all our lives.  Africa is the stage where the drama of Apartheid unfolded and the tragedy of the Rwandan genocide took place.  It is the land of many of the world’s refugees and nearly one-half of its internally displaced persons.  It has been the arena for experimenting with various programs of international developmental assistance.  It continues to be the showcase for what the United Nations can do, and cannot do.  My task today is to talk about these subjects.  I will seek coherence among them by presenting a historical perspective.

            Africa’s relationship with international law began at its inception in the fifteenth century.  The many phases of this evolving history are distinct, but they also tell a lot about the jurisprudence that is shared by humanity.  You will find much that is familiar in the underlying politics, economics, and philosophy.  I would venture the argument that the same principle forces have also operated elsewhere in the world.

Revivalism in International Law

            On September 16, 2002, the United Nations was the scene of a remarkable spectacle.  The Presidents of four African countries had come to present Africa’s case before a forum which is the closest we have to a global parliament.  They unfurled the program of the New Partnership for Africa’s Development (NEPAD).  [Note 1]  This program called for drastic changes in the way the UN and International law viewed and treated the Continent.  It urged fundamental changes in three economic areas of primary concern to international law: trade, conditionality of aid, and debt owed by African countries.  It proposed basic changes in the philosophy of UN operations in Africa.  [2]

            Equally remarkable about this audacious program was the fact that it had begun as an African initiative, was based on African models, and was formulated by Africans planners.  [3] The program took its inspiration from a critique of the way Africa was being treated by the UN and international law.  The critique had been undertaken with the support of a son of Africa, the UN Secretary General, and prepared by a panel led by his countryman, a former Finance Minister of Ghana.  [4]

            The latter, Kwesi Botchwey, now a Professor at Harvard, could not have been oblivious to a certain academic colleague’s critical work on the program of economic liberalization in Eastern Europe in the 1990s.  The problems and failures of that program were analyzed in a seminal article published in the Harvard International Law Journal by Professor David Kennedy in 1991.  [5] The article showed the shortcomings of the hope for a revival of international law, glimmering on the horizon now that the inhibiting influences of the Cold War were gone.  The ensuing lively debate about contemporary international law in the era that came to be known as the age of globalization focused on the Eastern European situation, but its application might be said to be universal -indeed, as it turned out, specific to Africa.  Let us review that discourse.

            The revivalist international law stemmed from the enthusiasm for capitalism in the aftermath of the spectacular implosion of Soviet Communism.  [6] Revivalism in international law was embraced by the liberal democrats.  [7] Emblematic was the launching of the American Bar Association’s massive campaign to change the legal systems of the former Communist countries.  This Central European and Eurasian Law Initiative (CEELI), eventually attracted more than 5,000 volunteers – an unprecedented and incredible show of idealism considering fees that American lawyers usually charge.  [8] “The end of history” became a favorite slogan of not a few who argued that the demise of Soviet Russia’s empire meant the end of the debate about economics as the capitalist free market would now be the underlying economic law of the universe.  This was the “Washington Consensus,” a “sort of economic Ten Commandments prescribed by the IMF, the World Bank and the U.S. government.”  [9]

            Revivalism in international law called for economic liberalization of Eastern Europe.  In its zeal it demolished all institutions in the former satellite states, including those that were beneficial even in the pseudo-socialism of Eastern Europe as they provided worthy results in education, health, social security, and employment.  [10] Instead, as critics have commented, East Europeans were induced to follow a “pseudo-capitalistic” model [11] far removed from their experience and time, an imaginary Adam Smithian pure market template without regulatory mechanisms which now exist even in the West.  [12]

            The justification offered by the revivalists for this discrepancy between the ideal and the real was based on a linear theory of development that relegated the liberalizing economies to a stage chronologically behind the liberal economies of the West.  Until the developing East Europeans successfully passed through that stage, an international trade system would apply to them that was distinct and different from the trade program applicable to West Europeans.  [13]

            In practice, the program of economic liberalization kept East European countries stuck on the periphery.  [14] Instead of catching up with the developed center that was the West, in the East industrial output declined, wage-price inflation rose, unemployment soared, per capita income dropped precipitously, and standards of health and education took a sharp downturn.  [15] The lesson, the critics said, was that Eastern European policymakers needed “to develop their own economic models for their conditions, rather than seeking to emulate the experience of a distant time and place.”  [16]

            As the corollary of economic liberalization, the international law revivalists, in the age of globalization, advocated political democratization.  [17] In the 1990s this program was pursued in Africa as well as in third world countries of Latin America and Asia.  [18] As practiced by the UN, it consisted of two main components: electoral assistance and support for political and civil human rights.  [19] The problem was -as critics such as Professor Susan Marks of Cambridge pointed out- periodic free elections are not sufficient to ensure democracy [20]; and, secondly, ignoring economic and social rights deforms democratic development.  [21]

            The Botchwey panel’s critique of the UN program of the 1990s in Africa reflects these criticisms.  It notes that while some progress was made in achieving democratic practices, it was not enough.  What is more, it hampered economic growth.  Accordingly, the critique rejects conditionality on aid to be given to Africa, when it requires specific types of institutions and economic measures such as deregulation, removal of exchange control, and restrictive austerity programs.  [22] The panel noted that “despotism and corruption” as well as the proliferation of wars and civil strife contributed to the problems.  The panel argued, however, that every African country “must evolve its own development strategy.”  [23]

A contentious history

            This was not the first time that African leaders had come together to ask for changes in their status under international law.  In the aftermath of World War I, W.E.B. Du Bois led a group of African leaders to demand that greater rights for Africans in colonies be recognized under a system of trusteeship by the League of Nations.  After the Atlantic Charter was announced by President Franklin Delano Roosevelt and Winston Churchill in 1943, Du Bois once again led African political activists, this time to demand independence for African countries.  Some in that group later became heads of their independent countries, including Kwame Nkrumah and Jomo Kenyata.  [24]

            Africa’s status in international law has had a long history -a history with distinct phases.  I recognize six major such phases.  For easy reference, here I would designate each with one word.  In chronological order they are: demonization, dehumanization, exploitation, imitative nationalism, globalization, and self-realization.  Let me briefly review this history.

            International law as a separate body of rules is a product of the modern state system.  It dates from the latter part of the sixteenth century.  Hugo Grotius is sometimes referred to as the founder of international law for his book De jure belli ac pacis (The Law of War and Peace), published in 1625 when the Treaty of Westphalia had finally put an end to the exhausting Thirty Year War in Europe.  Modern international thought, however, could be traced earlier, to late fifteenth-century Italy and the emergence of the balance of power doctrines in the treatises, treaties, and diplomatic manuals generated by the communities of envoys, clerics and professors, Machiavelli being the most famous one.

            Indeed, international law had still an earlier, medieval, foundation in the concept of a law of nature based on the Roman law of jus gentium (the law of nations), “so called because it was believed or feigned to be of universal application, its principles being regarded as so simple and reasonable that they must be recognized everywhere and by everyone.”  [25] On this foundation that the great Spanish Theologian, Francisco de Vitoria, in the mid 16th century defended the rights of the  inhabitants of the New World under the domination of the Spaniards.  He was arguing for the expansion of the international law into a world system: “a law which had its rise among the few princes of European Christendom was not to be limited to them or to their relations with one another but was universally valid, founded as it was on a natural law applying equally to all men everywhere.”  [26]

            That dictum, however, was not followed by Europe in its dealings with Africa in modern times, which began in 1415, with the Portuguese invasion of Ceuta, a Muslim trading center in Africa opposite Gibraltar.  The Portuguese campaign had the blessing of the Pope as a part of the Crusades.  This was the age when Europe demonized the Muslims it encountered in West Africa and later in East Africa.  [27]

            Muslims had come to Africa in the year 647 as a conquering army and soon established themselves permanently in the north through steady assimilation into the local setting, while avoiding uncritical syncretism -a successful fusion described by Ibn Khaldun, the great medieval sociologist.  [28] Visiting the Islamicized ancient Mali in the middle of the fourteenth century, Ibn Battuta, the Arab Marco Polo, was impressed by the security that the Arabs enjoyed among the blacks: “They do not confiscate the property of any white man [read Arab man] who dies in their country, even if it be uncounted wealth.  On the contrary, they give it into charge of some trustworthy person among the whites, until the rightful heir takes possession of it.”  [29]. Many of these Arabs were engaged in commerce.  Trade had become the principle channel for the Arabs in the transmission of their faith to Africa.  [30]

            Militant Islam continued, however, under the newly converted Turkic rulers of the Middle East, who had the requisite will to power.  Thus it was Alp Arslan, the Seljuk Malak (king) of Persia who defeated the forces of Byzantine Christians at Manzikert in 1071, triggering the Crusades; it was Saladin, the Kurdish ruler of Egypt who captured Jerusalem in 1187, drastically reducing the Christian pilgrims’ combating enthusiasm for the holy land; and the Ottoman Turks were the ones who conquered Constantinople in 1453 and threatened the Levant and the Balkans.  [31]

            By now, on the other hand, it might be argued that in Islamic international jurisprudence, the vigor of the dichotomy of the zones of war and peace –Dar al-Harb and Dar al-Salaam– had been spent.  The Ottoman Empire was more a modern state pursuing national interests than a Caliphate bent on proselytizing among the infidels.

 

            So it was, indeed, for Portugal.  The king vetoed the idea of following the Ceuta campaign with a crusading expedition to Gibraltar.  His rebuffed son, instead, went to Sagres and, in the next 40 years, developed a remarkable institution to explore Africa as Henry the Navigator.  [32] The exploration of Africa became lucrative and hence viable for the Portuguese only when they captured and transported slaves to Europe in 1444.  [33] Replacing demonization, European dehumanization of Africans would now become necessary for their practice of slavery.  [34]

            Enough will have been said about slavery by other speakers at this conference.  Suffice it for me to note that as slavery lost its economic value by the late 19th century, [35] the exploitation of Africa’s other resources was pursued in the age of European imperialism.  [36]

            After World War II, imitative nationalism dominated the Africans’ relations with international law as they tried to catch up with those European nation-states which were the long-standing subjects of international law.  [37] In reality they became supplicants of aid from European powers – a condition that was accentuated in the age of globalization, as we have indicated before.  The new African effort, under NEPAD, has the promise of self-realization.  [38] It aims at the dual goals of universalism and integration in international law. 

Universalizing International Law

            The universalist program rests on the natural law roots of the global legal system.  [39] Africa has already contributed substantially to this program in three main areas.

            First, the campaign against apartheid established the anti-racist identity of contemporary international law.  India was the first State to challenge South Africa before the UN on apartheid generally, and her treatment of people of Indian origin particularly.  Beginning in 1952, a vast majority of other nations joined in the UN General Assembly to pass an increasing number of resolutions about apartheid.  Although not binding, the resolutions of the General Assembly indicate the sentiments of the international community.  One could argue that a customary rule of international law was created by the General Assembly’s consistent and frequent condemnation of apartheid -and a body of human rights doctrine was thus born.  [40]

            Secondly, the tragedies of Africa’s refugees and displaced persons have greatly widened the field of international humanitarian law.  The 1969 Organization of African Unity’s Convention on the Specific Aspects of Refugee Problems in Africa broadened and changed the definition of refugees as existed in the 1951 Convention Relating to the Status of Refugees.  The notion of refugee now went beyond victims of generalized conflict and violence to cover every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in his country is compelled to leave and seek refuge in another place outside his country.  The 1969 Convention also turned the focus more on voluntary repatriation, in contrast to the integration bias of the 1951 Convention.  [41]

            Unlike refugees who are governed by the aforementioned Conventions, the internally displaced persons are not protected or assisted by any international legal instrument.  The existing law covers some aspects of their situation, but there are major gaps and gray areas.  By definition, the problem of internal displacement falls under state sovereignty.  Hence, sensitive to the issue of sovereignty, the UN appointed a Representative of the Secretary-General to deal with this problem, rather than a Rapporteur or Working Group mechanism normally created for such thematic issues.

            Because about half of the world’s some twenty-five million internally displace are in Africa, it was apt to appoint Francis Mading Deng, of Sudan, as the first UN Representative in 1992.  With the help of legal experts, he has since developed the Guiding Principles on Internal Displacement which restate such existing norms of human rights and humanitarian law that are relevant to the internally displaced.  Despite the questions about such unconventional process in developing them, the Principles have gained authority worldwide.  International organizations and NGOs increasingly use the Principles as an advocacy tool in their efforts on behalf of the displaced.  [42]

            Africa’s third contribution to universalizing international law has been through its experience with genocide which has led directly to the establishment of an ad hoc international criminal tribunal, for Rwanda (ICTR) -in Arusha, across the border from here- , and then to the creation of the International Criminal Court.  This has substantially helped in the development of international criminal jurisprudence.  For example, “the first ICTR judgment rendered in 1998 in Prosecutor v. Jean-Paul Akayesu has become a landmark case.  This was the first time that an individual was found guilty of rape as an act of genocide.  On the basis of the fact of the Akayesu case ICTR concluded that genocide against Tutsis and moderate Hutus occurred in Rwanda.

            The judgment against Jean Paul Akayesu who as a “bourgmestre” was the head official at a community level, as well as the ICTR judgments against two other former top government officials -Prime Minister Jean Kambanda , and Perfet Celment Kayishema at a regional level- challenge the traditional notion of sovereign immunity as they recognize that heads of State may be prosecuted for violations of human rights.  These verdicts influenced global attitude toward the rule of law.  The Akayesu ruling “was cited as authority by the House of Lords in its decision regarding the former President of Chile, Pinochet.”  [43]

Integration under International Law

            Africa’s hope for full integration under international law is not based on its natural law roots; rather, it is the subject of another approach, the positivist one, which depends on consensual agreement of nation-states.  [44] The obstacle here is the disparity of power among states of the world.  Their equality will remain a myth in the foreseeable future, a false doctrine bequeathed by Emerich de Vattel, a most influential Swiss writer on international law from the eighteenth century.  Indeed, by any yardstick for measuring states -size, population, economy, military strength- they are not unequal.  [45]

            The simple but fundamental fact is that African countries could not enforce any demand or promise of assistance from other states.  [46] The latter will render assistance only if their national interests prompt them.  During the Cold War, Africa could appeal to the two sides’ conflicting strategic interests.  In the age of terrorism, as the prosperous nations call it, it is in their national interest to help mitigate the destabilizing inequality in the globe by heeding to Africa’s call for help.  [47]            This prognosis, however, does not necessarily lead to increasing aid or reducing debt.  [48] While such prescriptions are heard (from those who might still be described as liberal democrats) [49], opposing voices may be even louder.  To some of these, reflecting the views of neoconservatives, “What stymies the people in poor countries, as a rule, is not lack of aid.  It is forms of government, often corrupt and tyrannical, that do not allow people to exercise free choice under fair law.”  One solution the proponents of this view offer is simply “the U.S. Army” which, they assert “has done more to eliminate poverty than any aid package ever could, by removing dictators who cause it.”  [50] We need to pause here and ponder the direction of the evolving jurisprudence of international law.  Might it be going virtually full circle?

 

Biographical Note: Keyvan Tabari is an international lawyer in San Francisco. He holds a PhD and a JD, and has taught at Colby College, the University of Colorado, and the University of Tehran.

Address: ktabari@sbcglobal.net

 

 

 

 

 

Notes

[1] They were the Presidents of South Africa, Nigeria, Senegal, and Algeria.  They made their case first in the Trusteeship Council.  The General Assembly was to convene on October 17-18, 2002 to decide on their proposal after preliminary sessions for the delegations to review it, along with the findings of the Botchwey independent panel (see Note 4 below) and the report of the UN Secretary-General.  (Africa Recovery, 2002c)

[2] Africa Recovery, 2002b)

[3]“African countries … should be allowed to design, direct and implement their policies and programmes consistent with their needs and circumstances,” Secretary-General Kofi Annan said in his report on NEPAD.  He added that the sense of ownership “is an important ingredient which stimulates commitment, inspires confidence and enhances the prospects of active implementation.”  (Africa Recovery, 2002c)

[4] The 12-member Panel of Eminent Personalities, individuals with extensive knowledge of Africa, supported by a small team of senior independent experts, was established by the Secretary-General as authorized in 1999 by the General Assembly.  (Africa Recovery, 2002b)  The Panel reviewed the results of the United Nations New Agenda for the Development of Africa (UN-NADAF) in the 1990s and found them to be “very disappointing” in the economic field and, due to the “adjustment programmes” required as conditions of aid, harmful in the fields of education and health.  (Africa Recovery, 2002a)

UN-NADAF was adopted by the UN General Assembly in December 1991.  “It was a compact of mutual commitments by African countries and the international community.  Its goal was to accelerate the transformation, integration and diversification of African economies, reduce their vulnerability to external shocks, strengthen them within the world economy and enhance their self-reliance.”  (Africa Recovery, 2002a)  Under it African countries agreed, inter alia, to carry out economic reforms and improve domestic economic management, and to create a policy environment that would attract foreign and domestic private investment.  UN-NADAF was to last for a decade.  It was a successor to the five-year UN Programme of Action for African Economic Recovery and Development (UNPAAERD) launched in 1986, the first-ever UN program for a specific region of the world.  (Africa Recovery, 2002a)

This brief history of the UN involvement with African development would be incomplete without noting the role of the United Nations Economic Commission for Africa (ECA).  Established in 1958, this is one five regional commissions under the administrative direction of the United Nations headquarters.  As the regional arm of the UN in Africa, it is mandated to support the economic and social development of 53 member states, foster regional integration, and promote international cooperation for Africa’s development.  It reports to the UN Economic and Social Council.  ECA is organized around six substantive divisions.  Its services are policy analysis and advocacy, enhancing partnerships, technical assistance, communication and knowledge sharing, and supporting subregional activities.  (United Nations Economic Commission for Africa) 

[5] (Kennedy, 1991)

[6] “For all its achievements during the Cold War years, international law was inevitably one of the casualties of superpower rivalry.  With perhaps equal inevitability, the fall of Communism was seen to herald a return to vigor, a new phase of disciplinary regeneration.  International law -freed at last from the constraints which had ‘deformed’ it, ‘ensured its ineffectiveness,’ (Reisman, 1990:860) and kept scholars on the defensive with respect to its ‘very existence’ (Franck, 1995:6)-appeared set to take an active part in the building of a new post-Cold War world.  Where before there was stasis, the prospect of an alliance with the forces of change now opened up ( Burley, 1990:1).”  (Marks, 1999: 457)

The new active role of international law was easily visible at least in two areas: persecution of international war crimes and the situation of the internally displaced.  The Cold War thaw provided an environment where the leading nations decided to do something about the massive crimes committed in the Balkans.  (Goldstone, 2001: 120)  Similarly, the problems of the internally displaced were perceived with the end of the Cold War “in their proper national and regional context, instead of being distorted as part of the proxy confrontations of the Cold War era.”  (Deng 2001: 154)

[7] The conditions demanded by the main international financial institutions, the World Bank and the International Monetary Fund, were to a significant degree imposed by the neoliberal economic outlook which prevailed in the United States at the time.  (Marks, 1999: 462)

[8] (American Bar Association)

[9] (Blustein 2005; Sachs 2005)

[10] “Institution-building has been largely confined to the legal systems, stock exchanges, and the like, needed to underwrite the market.”  (Marks, 1999:462)  “The Economic and social assets that existed were ignored and squandered….  But, along with the failures, there were some notable successes” under the East’s command economy, “especially in areas of education, technical know-how, social security, and in some industrial sectors.”  (Marks, 1999: 461)

 

[11] Such models “with their preference for small firms and weak states, fail to build the institutional framework necessary for long-term capitalist development (Amsden et al, 1994: 2,4)” (Marks, 1999: 463) 

[12] (Marks, 1999: 461-62) The East Europeans copied “the wrong capitalist model,” one which no Western nation employs for itself.  (Marks, 1999: 464, referring to Amsden, 1994)  As Kennedy showed, the international trade regime encouraged the adoption in E. Europe of crude and debilitating versions of capitalism.  (Marks, 1999:458)

[13] Kennedy contrasted the 1992 program of the European Community (EC) with Eastern European dealings post-1989, within the framework of the international trade regime.  (Marks, 1999:457)  Kennedy said this difference served to signal that the West European endeavor was ‘ahead’ as compared to the situation in East Europe.  The revivalist commentary assumed that the East ‘lagged’ behind the West.  It seemed natural that the East Europeans should pass through the more “primitive” stage of international trade regime before being considered for membership in the E.C.  (Marks, 1999:458)

[14] Just as the eastern regions of Europe served during he sixteenth to eighteenth centuries as the agrarian base of the industrialized nations further west, so now these same regions were being encouraged to “specialize in low-end goods, despite  equally gloomy prospects for success.”  Amsden, 1994: 5, quoted in Marks, 1999: 463

[15]  (Marks, 1999: 460)

[16] (Marks, 1999: 463, referring to Amsden et al, 1994)

[17] International law embraces transition market democracy, consisting of pseudo-capitalism and low intensity market democracy.  (Marks, 1999: 470)  Kennedy contends that international trade law establishes the idea that (public) intervention to regulate trade is exceptional, while wholly ‘free’ (private) intervention is the norm….  In like manner, General Agreement on Trade and Tariffs (GATT) provisions concerning developing states and IMF technical assistance programs are presented as special measures which normal societies -characterized by diversified, developed economies propelled by private commerce- do not need.”  (Marks, 1999: 473)

[18]  (Marks, 1999: 464)

[19] What Kennedy said about international law’s rule in promoting pseudo-capitalism, Marks shows with respect to low intensity democracy.  There is, to begin with, the distinction between “democratizing’ and “democratic” countries.  There is the role of international law in establishing the chronology and boundary, and phased transition.  International law’s role can be examined in “doctrines and institutions” concerned with the two spheres of arrangements for democratic government and protection of human rights.  (Marks, 1999: 477)  In Democratic government, there is the international law and practice of electoral assistance.  This takes the form of advice about the organization of national elections and monitoring with a view to ensuring that the election is fair and free.  International organizations, governments, and non-governmental organizations provide this assistance.  There is an international legal principle requiring periodic and genuine elections.  That appears to be the assumption of a series of the United Nations General Assembly resolutions on “enhancing the effectiveness of the principle of periodic and genuine election.  (Marks, 1999: 478)  This is associated with a notion that democratic politics revolves around parliaments, election, and political parties.  This is a familiar version but not accurate because decisions taken outside parliament by bureaucrats and business people profoundly affect citizens and, secondly, individuals, pressure groups and social movements are factors outside the state and parliaments that affect politics.  (Marks, 1999: 479)

[20] “[L]ittle has been achieved regarding enhanced government accountability, civilian control of the military, respect for human rights, and social reforms….”  (Marks, 1999: 465)  It is a largely “cosmetic” model.  (Marks, 1999: 464, citing Gills, 1993:21)  Despite the remarkable increase since 1989 in the number of persons who participated in the quintessentially liberal democratic experience of voting in free elections, the democratic ideals of self-rule and equality appear as remote as they ever were in many Third World countries.  Authoritarian political structures have remained notoriously undaunted.  (Archibugi and Held, 1995:3, cited in Marks, 1999: 464)

The drive toward democracy is a reflection of “a new stage of globalization in the capitalist world economy.  Market-oriented economic reconstruction is in the minds of those who urge democratization as the objective of political reconstruction.  (Marks, 1999: 465-66)  The market itself is indifferent to the democratic preoccupation.  Redressing inequalities of political and economic power, and enhancing the accountability of power-holders to those affected by their decision, are hardly economic liberalism’s priorities.  According to some analysts, this kind of low intensity democracy

“is congenial to the interests of global capital in the Third World.  It provides electoral participation, recognition in principle of human rights, and some political space for formulating demands and influencing decisionmaking, while preempting deep-rooted institutional change.  At the same times, it confers greater legitimacy on government action and policy than is enjoyed by ‘pre-democratic’ regimes.  In this way, it helps to demobilize resistance to debt servicing, austerity measures, structural adjustment, and other common elements of the painful ‘development’ treatment.”  ( Marks, 1999: 466 referring to Gills.)

While it holds out the promise of “catching up” with the West, on the contrary, low intensity democracy, like pseudo-capitalism are “slowing down” models.  Instead of the promised full participation in global markets and an end to global political marginalization, they ensure continued exclusion and relegation to the periphery.  (Marks, 1999: 469)

Pseudo-capitalism and low intensity democracy are sustained by

“an approach to reconstruction that rests on a series of mystifications.  The myth of the invisible hand, for instance, conceals the indispensability of institutions.  The myth of democracy (of the cosmetic sort) cloaks neo-authoritarian rule.  The myth of the universal market hides the existence of systemic barriers within the market.  The myth of the worldwide democratic revolution shields the enduring hold of hegemonic power.”  (Marks, 1999: 469-70)

[21] International human rights law does not relate all human rights to democracy in the same way.  Some rights are acknowledged to be required by democracy.  These democratic rights include the right to take part in public affairs and also cover a set of further rights on which their effectiveness rests (e.g., freedom of expression, association, and assembly) as well as some other rights which are essential components of those democratic rights (e.g., the right to privacy and freedom of thought, conscience, and religion.  All these acknowledged rights are civil and political rights.  Social, economic and cultural rights (rights to education, housing, work, food, and health) fall a bit below, as they get a softer normative formulation and weaker enforcement procedures.  They are not considered an integral part of a democratic, or liberal-democratic agenda, although they are considered an integral part of a human rights agenda.  International law plays a role here in, e.g., the following way: financial assistance is conditioned on economic growth but only in aggregate form.  How the fruits of that growth “is to be divided – question to which economic, social and cultural rights demand attention- is put aside or, at any rate, treated as the business of the market and not the state.”  (Marks, 1999: 481-84)

The request for international election monitoring and electoral assistance was first brought to the UN General Assembly in 1989 and increased greatly in the 1990s.  It draws on the practice of supervising plebiscites, and can be seen to carry forward the venerable project of self-determination.  It is consistent with sovereignty as such assistance is provided with the consent of the government concerned.  Human rights, on the other hand, challenge sovereignty and it manifest an embryonic international civil society.  (Marks, 1999: 488-89)

[22] The Botchwey Panel called for

“a major revision of the dominant thinking that had guided multilateral and bilateral programmes in Africa over the past two decades.  It is indeed a major lesson from the experience of both the United Nations Programme of Action for African Economic Recovery and Development (UN-PAAERD) and UN-NADAF that the overriding reliance on liberalization, privatization and market-based reforms has distinct limits and has, in many cases, proved counterproductive in accelerating development and alleviating poverty.  The Panel noted, in this connection that the wholesale and uncritical adoption of this philosophy, including the minimization of the role of the state and the withdrawal of all forms of state support to local industry and agriculture by African government and by donors, while the developed countries continued to support by large transfers, now averaging a billion dollars a day, served to undermine the region’s development in several ways….

“None of the countries that faithfully implemented market-based structural adjustment have progressed in the manner anticipated.  During the lifetime of UN-NADAF, poverty increased substantially as did the disparities between the rich and the poor, while FDI (foreign development investment) flows failed to reach the levels required to fuel accelerated growth even in the best adjusting countries….  Donors and international financial institutions … would need to allow space for policies designed by democratically elected government working with civil society.  Democracy is undermined if elected African governments have policies imposed from outside….  Donors have an obligation to deliver on the promises they make regarding financial support: accelerated and increased debt relief…; genuine market access for the produce of African countries; increased aid without conditionalities….  There is need for sustained advocacy for African development (by the UN) … (and) increase in the efficiency and relevance of the United Nations….”  (Africa Recovery, 2002b)

The panel’s report concluded

“Recent international agreements to promote peace and development in Africa have essentially failed, concluded, noting that some 80 million more Africans live in poverty today than at the start of the 1990s.”  It recommended that the UN GA “should not negotiate another international compact, but instead consider supporting NEPAD….  Instead of being allowed to pursue their own policies, African governments were obliged by international financial institutions to adopt yet more structural adjustment measures -sweeping liberalization, privatization and other market-based reforms.  This did help improve the macro-economic situation in Africa somewhat, the panel found, in particular by reducing inflation.  But, said Mr. Botchwey, “short- term macro-economic stability was achieved at the expense of longer-term growth and structural transformation.”  (Africa Recovery, 2002a)

Aid (net official development assistance or ODA) to Africa in order to reach the NADAF growth goal had to grow by an average of four per cent a year.  Instead, it fell 43 per cent from 1990 to 2000.  (Africa Recovery, 2002a)

[23] Donors were urged to demonstrate “a renewed commitment to the assurance of African leadership and the avoidance of a return to the old-style conditionality that has been counterproductive in the past.”  They were asked to do so by debt relief, market access, and aid without conditionalities.  The UN was advised to continue its advocacy at global conferences, and increase the efficiency and relevance of its activities in Africa.  (Africa Recovery, 2002a)

[24] Africa had no voice in the world until 1800.  “It was finally the African voice that established Africa as an entity in its own right and Africans as full members of the world community of nations.”  (Le Vine 1986: 234-35)  The establishment of repatriate African settlements in Sierra Leone in 1787 and Liberian Settlements beginning in 1820, along with Dakar, where a French-speaking African elite was being created, provided a fertile soil from which an educated African class capable of challenging European colonialism on its own premises could grow.  (Le Vine 1986: 235-36)

“The external African voice, incorporated in what came to be called the “Pan-African movement,” was destined to play an even larger part in establishing Africa’s legitimate world role, first against the colonial powers, and later, after independence, in the community of free nations….  One of its primary themes has always been an attempt to promote an Africa self-consciously united on behalf of its own interests and against foreign domination.  These aims were first coherently articulated by an influential Trinidadian lawyer, Henry Sylvester Williams … and by the distinguished black American sociologist, William E. Burghardt Du Bois….  Du Bois … organized the second Pan-African congress in Paris in 1919….  (which) with some 57 delegates from French and British colonies raised various colonial issues including a demand that the ex-German colonies be placed under the international tutelage of he new League of Nations….

“The fifth Pan-African congress, held in Manchester, England in 1945, was Du Bois’ last and the last held prior to the wave of independence which began in 1957….  With the future African presidents Kwame Nkrumah and Jomo Kenyatta playing important roles, the Manchester congress denounced the colonial territorial division of he continent and demanded the application of the principles of he Atlantic Charter enunciated by Churchill and Roosevelt, including the right to political self-determination.”  (Le Vine 1986: 236- 37)]

At the Pan-African congresses,

“at first, as the 1919 resolution (text in Le Vine 1986: 254) demonstrates, Africans appealed to the colonial powers for a recognition of Africans’ rights and the demand for participation in the colonial state.  By 1945, however, colonialism was condemned outright and the appeal was made for the universal right of self-determination asserted by the wartime United Nations in the Atlantic Charter of 1941.  The demand was for political freedom, unconditional and irrevocable.  The change in tone is dramatic and startling.  The 1945 resolution (text in Le Vine 1986: 255-57) captures not only the prevailing post-war climate of anti-colonialism, but also the militancy of black leaders who recognized that the war had dealt a death-blow to the old colonial empires and now demanded freedom for their own peoples.”  (Le Vine 1986: 253)

[25] (Brierly, 1955:17)

[26] (Brierly, 1955:26) “The recognition of international law as a separate object of study dates from the latter part of the sixteenth century.  Earlier writers had written on some of the topics which fall within modern international law, especially on the usage of war and on the treatment of ambassadors.”  (Brierly, 1955:25)  Indeed, the origins of related modern international thought could be traced to the emergence of the balance of power doctrines in late fifteenth-century Italy, in the treatises, treaties, and diplomatic manuals generated by the communities of envoys, clerics and professors, including Niccolo Machiavelli’s and Francesco Guicciardini’s.  Early writers, however, did not separate the domestic from the international, or the legal from the theological and ethical, aspects of such questions.  (Brierly, 1955:25-26)

“Theological writers especially were concerned with the perplexing ethical problems to which the practice of warfare gives rise, and a series of great Spanish Churchmen of the fifteenth and sixteenth centuries made important contributions to the progress of thought on these matters.  Perhaps the greatest of these was Francisco de Vitoria….”  (Brierly, 1955:25-26)

“A long and continuous history, extending at least as far back as the political thought of the Greeks, lies behind the conception ( of a law of nature ); but its influence on international law is so closely interwoven with that of the Roman law that the two may here be discussed together.  The early law of the primitive Rome city-state was able to develop into a law adequate to the needs of a highly civilized world empire, because it showed a peculiar capacity of expansion and adaptation….  In brief, the process of expansion and adaptation took the form of admitting side by side with the jus civile, original law peculiar to Rome, a more liberal and progressive element, the jus gentium …. This practical development was reinforced towards the end of the Republican era by the philosophical conception of a jus naturale which, as developed by the Stoics in Greece and borrowed from them by the Romans, meant, in effect, the sum of those principles which ought to control human conduct, because founded in the very nature of man as a rational and social being.  In course of time, jus gentium,  the new progressive element which the practical genius of the Romans had imported into their actual law, and jus naturale, the ideal law conforming to reason, came to be regarded as generally synonymous.” (Brierly, 1955:17-18)

[27] The Crusading Portuguese armada, led by Price Henry, stormed the Muslim fortress at Ceuta on August 24, 1415.

“Within a day the Portuguese had taken the Infidel stronghold…. Only eight Portuguese had been killed, while the city streets were piled with Muslim bodies. By afternoon the army had begun sacking the city, and the spiritual rewards of killing infidels were supplemented by more worldly treasures.” (Boorstin, 1983:159-61)

When Vasco da Gama in 1502 set out with a Portuguese squadron to make Calicut, India into a Portuguese colony, off the Malabar coast, he sighted a large dhow, the Meri, carrying Muslim pilgrims home from Mecca. He demanded all their treasure on board. When the owners were slow to deliver, the result was recorded by one of his crew.

“We took a Mecca ship on board of which were 380 men and many women and children, and we took from it fully 12,000 ducats, and goods worth at least another 10,000. And we burned the ship and all the people on board with gunpowder.”  (Boorstin, 1983:175-77)

A month later, Gama, now off Calicut,

“ordered the Samuri (king) to surrender, and demanded the expulsion of every Muslim from the city. When the Samuri temporized and sent envoys to negotiate peace, Gama replied without ambiguity. He seized a number of traders and fishermen whom he picked up casually in the harbor. He hanged them at once, then cut up their bodies, and tossed hands, feet, and heads into a boat, which he sent ashore with a message in Arabic suggesting that the Samuri use these pieces of his people to make himself a curry.” (Boorstin, 1983:177-78) 

[28] (Sanneh 1986: 87-88)

[29] (Skinner, 1986:79)

[30](Sanneh 1986: 89)

[31] (Boorstin, 1983:117-19, 158)

[32] (Boorstin, 1983:160-61, 165)

[33] The Portuguese exploration program for Africa “required heavy national support.” (Boorstin 157) Henry’s relentless step-by-step exploration of the West African coast proceeded, although commercial rewards were meager. In 1441 his men took two natives captives. “In 1444 he brought back the first human cargo: two hundred Africans to be sold as slaves in Lagos. This was the first European episode in the African salve trade…. The arrival of this human merchandise from Africa … caused a change in the public attitude toward Prince Henry. Many had criticized him for wasting the public substance in his frolics of exploration.”  They now grew quiet, and praised him. “Everyone now wanted a share of this promising Guinea trade.”  (Boorstin, 1983:167-68)

[34] Neither a crusading spirit nor economic profit was the prerequisite universal human motivation for “discovering” Africa in modern times.  The Chinese proved the contrary. Cheng Ho, “the Admiral of the Triple Treasure,” led six expeditions in 1421 to 1422, visiting 36 states stretching over all of the Indian Ocean from Borneo to Zanzibar. The “purpose of his vast, costly, and far-ranging expeditions was not to collect treasure or trade or convert or conquer or gather scientific information.”  The voyages were designed “to display the splendor and power of the new Ming dynasty.” They demonstrated that ritualized and nonviolent techniques of persuasion could extract tribute from remote states. The Chinese did not want to colonize, but hoped to make the whole world into voluntary admirers of what they perceived to be the one and only center of civilization.  “A state bringing tribute to China  was not submitting to a conqueror. Rather, it was acknowledging that China … was beyond need for assistance. Tributes therefore were less economic than symbolic.” (Boorstin, 1983:188, 191, 193)

[35]

“European slaving expedition to Africa (during the fifteenth and sixteenth centuries)( were) once influenced by the growing European taste for sugar. … Expanding demand for sugar in Europe resulted in expanding demand for slave labour in South America and the West Indies from the seventeenth century onwards…. In the eighteenth century technological change in the West resulted in even greater ‘need’ for African labour. The new factories of Europe needed more labour-intensive crops such as cotton and indigo. And the new prosperity created new tastes In the West – which resulted in the growth of such additional labour-intensive crops as rice, coffee, and tobacco in South American, the Caribbean and the southern state of the United States. All these developments seemed to require more imported labour in the Americas and Africa was raided more intensively to provide that labour. The industrial revolution in the West was, in fact, riding on the backs of the black slaves on distant plantations….

“Then further technological change in the West began to make slave labour less and less efficient. An ailing worker hired for wages could be fired and replaced at next to no cost, but the worst time to sell a slave is when he is ailing. Buying a slave was a long-term risk, but hiring a worker for wages was a short -term investment. With urbanisation in the West, one did not have to brave the seas to risk the diseases of west Africa to get cheap labour. It was now increasingly available not far from Manchester or Philadelphia. Slave labour was outpaced by the new technology. It was at last possible to regard slavery as wrong. The high technology of wage labour had made the high morality of abolitionism possible at long last. Britain, which had been the biggest shipping nation in the slave trade in the eighteenth century, became the leading abolitionist power in the nineteenth… In 1884-5 fourteen Western states met in Berlin and agreed both to end slavery and facilitate imperialism….” (Mazrui, 1986:159-161)

[36]

“The economic impact of the African colonies on Western industrialisation took several forms. First, colonialisation was part of the search for new source materials (e.g., rubber and cotton)…. In addition to producing raw materials, the dependencies were geared toward catering for the new consumption patterns of an increasingly prosperous West (e.g., cocoa, coffee, and tea) … Third, the colonies provided opportunities for…. settlement…. Fourth, the colonies were potential market for goods produced in the metropole….

“Meanwhile a strange thing had happened…. the West’s expanding technology of destruction in two World Wars helped to liberate Africa. The Second World War was especially critical. The war weakened the great imperial rulers irreversibly, as France, Belgium and Italy were humiliated; Britain was impoverished; and Portugal and Spain were morally bankrupt as a result of their association with fascism and Nazism. … Nationalism and anti-colonialism fervour erupted all over Africa almost as soon as the Second World War ended. Barely fifteen years after the end of the war the bulk of the African continent had attained formal political sovereignty. Never was a whole continent so swiftly subjugated, and then so rapidly emancipated.” (Mazrui, 1986:160-161)

“Throughout the late 19th century, France, Germany, and Britain each attempted to gain a competitive edge over the others by controlling the sources of raw materials overseas….” As a war in Europe to end such competition was considered unthinkable, the representative of 14 European nations and the United States gathered in a Berlin for 13 weeks in 1884-85. “The West African Conference in Berlin (more commonly called the Berlin Conference) created formal rules for a scramble for territory in tropical Africa that in time divided tribes indiscriminately, disrupted traditional patters of migration and resulted in the partition of tropical Africa into arbitrary, untidy colonial aggregates of heterogeneous territories…. Because the Europeans had superior weapons and access to ammunition and other supplies, there was surprisingly little resistance…. By 1900 in many places, and certainly by 1914, it was clear to the peoples of Africa that their white rulers had come to stay. A new generation grew up that had never known any life other than that ultimately controlled by whites. Many Africans, in fact, adopted easily: Africans … learned the languages, customs, and organizational requirements of their rulers…. For the most part whites encouraged these responses; but they generally discouraged assimilation, and instead, concentrated upon the administration rather than the tutelage of the Western colonies. They also tried to develop their colonies economically, at least by furthering the extraction of minerals and tropical crops.” (Rotberg 1986:118-20)

[37] The U. N. General Assembly’s 1960 Declaration on the Granting of Independence to Colonial Peoples and Countries, followed by the U. N. determined implementation measures led to eventual establishment of the overwhelming majority of the 53 African nation-states. The instrument of international system for the establishing the legality of a state is recognition.  The self-determination/independence has been construed in external terms predominantly, without taking enough into account the internal, self-governing functions. “First wave of state collapses”, Chad, Ghana, and Uganda, produced hardly any action by the international community. More spectacular was the later case of Somalia. (Lovelace, 2001)

[38] By August 2004, the Secretary-General was reporting on NEPAD that “Much progress has been done by African countries in developing sectoral policy frameworks, in the implementation of specific programmes and projects and in the earmarking of financial allocations to selected NEAPAR sectoral priorities.” (United Nations General Assembly, 2004]

[39] Contemporary international law protects some universal interests which are separate from the rights of the nation-states. Protection of human rights and the earth’s environment are the basic components of this dimension of international law. (Lovelace, 2001) On the other hand, as critics have pointed out,  globalization has manifested a disjuncture “between the rhetoric of a universalizing market and the reality of enduring oligopoly.” and  a disjuncture “between the rhetoric of universalizing democracy and the reality of oligarchic power.” (Marks, 1999: 494)

[40] (Hopkins 2001-2002)

“South Africa’s discriminatory racial policy was raised in the very first session of the General Assembly, and has since occupied a central position on the agenda of the General Assembly for more than 40 years… [In] 1952 a resolution was passed (in the General Assembly) which effectively created the Commission on the Racial Situation in the Union of South Africa. …The General Assembly adopted the reports (of that Commission) in resolutions to the effect that apartheid constituted a threat to peaceful relations between nations…. At first, the large Western powers supported South Africa’s challenge to the competence of the United Nations to intervene in her domestic affairs…. But this international support disappeared after the Sharpeville massacre in 1960, when many of the world powers were morally outraged and began to view South Africa’s brutal implementation of apartheid as a threat to international peace and stability….

“In light of the increasing number of General Assembly resolutions against it, South Africa changed her tactic somewhat by no longer claiming that article 2(7) was a bar to United Nations’ competence, but rather claiming that the apartheid philosophy of ‘separate development’ was in fact in line with international human rights law…. This justification was never taken seriously by the International Community because there was clearly no true commitment on South Africa’s part to honor the values that underlie the philosophy behind self-determination…. To isolate South Africa would have been contrary to Western interests for two main reasons: first, South Africa played a vital role in resisting communism during the cold war and South Africa used the threat of communism in Africa to gain the support of the West; and second, although it was not a member of NATO, South Africa played an important part in the Western defense system, due to its strategic position….

“Yet despite the apparent ineffectiveness of the Security Council, the General Assembly continued …it used its mandate under Article 13(1)(a) of the U.N. Charter to encourage the progressive development of international law. It did this by submitting a Draft Convention on the Suppression and Punishment of the Crime of Apartheid to the members of the United Nations for ratification. The Convention came into force on July 18, 1976, after twenty states had ratified it. There are currently 101 parties to the Convention. The Convention declares that ‘apartheid is a crime against humanity,’ and it criminalizes the principal features of apartheid, namely murder, torture, and arbitrary arrests of members of one particular race group. Parties to the Convention undertake to enact municipal legislation to prosecute persons responsible for the commission of this international crime. Some commentators have argued that the Convention is merely symbolic because as a crime against humanity, apartheid confers universal jurisdiction on all States….

“The year 1977 seems to have been the turning point for South Africa. The death of Steve Biko in police custody was the last straw, and after this tragic event South Africa finally lost the support of France, Britain and the United States. The veto-power barrier to the application of Chapter VII had finally been crossed. In November of that year the Security Council passed a binding resolution mandating an arms embargo against South Africa. This was the only time that Chapter VII was ever invoked against South Africa….

“The end of the Cold War resulted in further loss of sympathy for South Africa because the threat of communism was no longer imminent, and South Africa’s strategic location was no longer a reason to afford her protection from international isolation. Crippling sanctions against South Africa were more widely implemented, and eventually the international stranglehold of repeated cumulative action forced change upon South Africa. State President F. W. de Klerk made the decision to dismantle apartheid in February 1990….”  (Hopkins 2001-2002)         

[41] (Feller 2001: 133) “When UNHCR {United Nations High Commissioner for Refugees} came into existence in 1951, refugees were welcomed noncitizens in many countries. This was not the least because, in postwar Europe, they came mainly in manageable numbers from neighboring countries with some ethnic affinities; their intake reinforced strategic objectives during the Cold War; and, as an added plus, they helped to meet labor shortages. However, today the term ‘refugee’ has a certain stigma attached which has seriously complicated UNHCR’s responsibility to ensure that international protection is available to them, as a surrogate for the protection of their national authorities, which they have lost.” (Feller 2001: 129-30)

[42] (Deng 2001)

[43] After Nuremburg and the Tokyo Tribunals,

“the international community tolerated fifty years of impunity in which more than 170 million civilians were killed by their own governments with no hope of bringing their killers to justice. Then, in the last decade, the Security Council of the United Nations, freed from its cold War paralysis, responded to the mass atrocities committed in two part of the world – in the former Yugoslavia and in Rwanda- and created two ad hoc tribunals to ‘put and end to …genocide and other systematic, widespread and flagrant violation of international humanitarian law…’.  The Security Council was ‘convinced that … the persecution of persons responsible for such acts and violations … would contribute to the process of national reconciliation and to the restoration and maintenance of peace….

“The International Criminal Tribunal for Rwanda (ICTR), in its first six years, delivered eight judgements with sentences ranging from 12 years to life imprisonment. These judgements have already made an imprint on the development of international criminal jurisprudence. The 1998 judgement in Prosecutor v. Jean-Paul Akayesu was “the first conviction of genocide in history by an international judicial court.” This judgment “concluded that rape constituted genocide, in view of the evidence that acts of sexual violence against women in Taba commune in Rwanda were perpetrated with the intent to destroy in whole, or in part, the Tutsi ethnic group….

“The ICTR in Arusha, like the ICTY in the Hague, is playing a most significant role in the creation of international criminal jurisprudence and in establishing international procedural norms, which will influence the development of the permanent International Court.”  (Pillay)

The weaknesses of the ad hoc tribunals have been addressed by the creation of the International Criminal Court. “One such weakness concerns victims and witnesses…. ICC provides not only for protection but for participation by victims and witnesses in trial proceedings.” (Pillay) This is a significant moment in the historical development of human rights.

“In the aftermath of mass atrocities, retributive justice rendered by an international tribunal, such as ICTR, ICTY, or the International Criminal Court, is necessary …. Heinous crimes which go unpunished may be seen to encourage continued violations of human rights and to hinder national reconciliation. So too domestic prosecution that may be perceived as victor’s revenge. A international tribunal serves as the standard bearer of international humanitarian norms and serves as a neutral adjudicator.”  (Pillay)

By virtue of their very existence they serve as a beacon of hope “in a new legal order in which there is no safe haven for those who commit human rights violations.” With these tribunals “hope has been kindled that international jurisprudence will address legal and moral humanitarian violations,” genocide, crimes against humanity, and war crimes. This “breathes life into the Universal Declaration of Human Rights.” (Pillay)

The struggle for an effective International Criminal Court (ICC) (i.e., a permanent court for the prosecution of genocide, crimes against humanity and war crimes) and the struggle for human rights in Africa have been intertwined.  From the beginning of the movement to establish ICC, Africa has been deeply involved. African countries pushed hardest for the establishment of the Court. Forty four African countries have signed the 1998 ICC treaty, known as the Rome Statute. Three of the Court’s judges come from Africa -Ghana, Mali, and South Africa- and its Deputy Prosecutor is from The Gambia. The Court’s first two investigations were on the situations in the DRC (Democratic Republic of the Congo) and northern Uganda. Africa is the testing ground for the ICC and the principles for which it stands. (Stompor 2004)

There are two broad areas of the relationship between ICC and Africa: one is the development of a framework of accountability for genocide, crimes against humanity, and war crimes. The second is specific situations: the initial ones relate to the DRC and Uganda. On the first, the framework relies on national courts in the first instance: each state has the primary responsibility; only when it is unable or unwilling can ICC assert its jurisdiction. Progress in implementing this, the role of the national courts, has been lagging. African countries have not made their financial contributions to ICC. On the other hand, African countries have opposed U.S. demands to sign bilateral immunity agreement at the cost of aid from the U.S. Africans could exert influence when united on a single human rights issue. Everyone is waiting to see what the ICC does in Africa. (Stompor 2004)

It should also be noted here that three of the fifteen members of the International Court of Justice are from Africa. Aside from the Egyptian Judge, Nabil Elaraby, who presumably represents the Sunni Arab legal tradition, there is a Judge from Madagascar, Raymond Ranjeva, who, on the basis of his educational background, presumably represents the French-influenced African legal systems, and a Judge from Sierra Leone, Abdul G. Koroma, who, on the basis of his educational background, presumably represents the English-influenced African legal systems. (International Court of Justice}}

[44] “International law can be seen to be at once responsive to will and interest (the side often linked with positivism) and possessed of self-propelling normative force (the side often linked with natural law).” (Marks 1999:487)

[45] (Brierly, 1955:122-123) Emerich De Vattel (1714-69), whose work Le Droit de gens was published in 1758, “has probably exercised a greater permanent influence than any other writer on international law.” (Brierly, 1955:37) He followed the doctrine of the state of nature: “nations being composed of men … living together in the state of nature;” and argued that since men are equal, so are states. “A dwarf is as much a man as giant is; a small republic is no less a sovereign than the most powerful kingdom” (Brierly, 1955:37, quoting from Vattel 1758: Introduction). “Thus the doctrine of equality of states, a misleading deduction from unsound premises, was introduced into the theory of international law.  (Brierly, 1955:37-38)

[46] In 2003, according to the Red Cross, Africa

“seemed unable to exert a significant influence on the international political agenda, and stayed very much on the fringes…. for many countries, the question of how to tackle widespread poverty remained the key challenge …. numerous hurdles …. included political instability, corruption, poor governance and weak political structures, looting of natural resources, waging war as a means of survival, non-existence or derelict public services (such as health care and education), low commodity prices, difficult climatic conditions, the HIV/AIDS pandemic, and insufficient emergency and development aid.” (Heger 2004]

An international team appointed by Secretary-General Kofi Annan in 2002 to carry out the United Nations Millennium Project to fight world-wide poverty, submitted its report in January 2005. It concluded that reducing poverty in its many guises -hunger, illiteracy, disease- is “utterly affordable;” it requires that industrial nations double their aid to poor countries, to one-half of 1 percent of national income, from one-quarter of 1 percent. The head of the team that prepared the Millennium study, Professor Jeffrey Sachs emphasized that “the problem is … the lack of financing.  (New York Times, 2005)

In 2002 many world leaders, including President Bush, supported a declaration promising a target of providing seven-tenths of 1 percent of their national incomes for aid to impoverished nations.

“Five countries have achieved that goal: Sweden, Norway, Denmark, the Netherlands and Luxembourg. Britain, France, Finland, Spain, Ireland and Belgium have committed to reach that level on specific timetables. The United States government, which allocated less than two-thirds of 1 percent for aid, has not made a comparable pledge; the Bush administration has increased American aid by a half, to 15 hundredths of 1 percent from one-tenth of 1 percent, but it is still the smallest percentage among major donors.” (New York Times, 2005)

To achieve the growth goal of the 1990s UN program for Africa, NADAF, foreign aid (net official development assistance) to Africa had to grow by an average of 4 per cent a year. Instead, it fell 43 per cent from 1990 to 2000.  (Africa Recovery, 2002a)]

[47] The Millennium team’s blueprint won quick praise from the heads of the World Bank and the International Monetary Fund, as momentum had been building among rich nations to increase aid to the world’s poor in part as a reaction to the concern arising from the events of September 11, 2001 that impoverished nations can be incubators of terrorism and conflict. Britain has seized the leadership in this matter, with a special focus on Africa. (New York Times, 2005)

Not only increasing aid, but also forgiving Africa’s crippling debt is being seriously considered.  Kenya, to give an example, reportedly spends about 40 percent of its annual budget to pay interest on foreign debt. The British and French made proposal at a recent G-8 meeting that would relieve 100 percent of the estimated $50 billion in debt that Africa owes to the World Bank, the International Monetary Bank and other international financial institutions.  It would have paid off Africa’s debt by using the IMF’s gold reserves and money from new bonds. (San Francisco Chronicle 2005)

[48] In February 2005, the British and French debt reduction proposal was rejected by the US which is the biggest contributor to the World Bank and IMF. (San Francisco Chronicle 2005)

[49] (Sachs 2005)

[50] (Rosett 2005).

 

 

 

 

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United Nations General Assembly (2004), ‘New Partnership for Africa Development: second consolidated report on progress in implementation and international support; Report of the Secretary-Genera

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Africa and International Law was presented at the Conference on Africa and Globalization for the Common Good, Kericho, Kenya, 21-24 April 2005.  It was published in 2006 on the following website of the Journal of the Globalization for the Common Good:

            http://lass.calumet.purdue.edu/cca/jgcg/2006/sp06/jgcg-sp06-tabari.htm

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Post-Cold War International Law

GRAD PLANNING CONFERENCE

DEMOCRATIZATION IN THE CONTEXT OF GLOBAL AND REGIONAL CONFLICTS

Working Group # 1:

Human Security, Governance, and Rule of Law

Convener: Keyvan Tabari

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

 Suggested Plan for Discussion

Note: In your review of this Suggested Plan please note that (a) this is a draft for discussions and not a definitive statement of my views, (b) it is a rough and embryonic text that needs to go through many phases before it even submits postulates, (c) to the extent that it says something original (and it does, and that is its merit, if any), unavoidably it is controversial, and (d) it aims to provoke not to convert.

Introduction 

These introductory comments aim at explicating the outline for discussion that follows.

 The purpose of this meeting is to form a working group (Group) that could undertake one aspect of the GRAD project on “Democratization in the Context of Global and Regional Conflicts.” That aspect is “Human Security, Governance, and Rule of Law.” In light of the assignments of the other working groups, the emphasis here would be on the Rule of Law in the context of, inter alia, human security and governance.

 This plan suggests a course of discussion premised on the assumption that a system of global rule of law is emerging which is distinct from the traditional international law and various systems of domestic law. The jurisprudence of this new system is dictated by the new realities born out of remarkable recent changes in international relations. The implosion of the Soviet Union has cleared the way for the universal and comprehensive dominance of the United States in an unprecedented fashion. It might be argued (subject to acceptance by this working group) that, especially under President George W. Bush’s administration, the U.S. perceives its ideology of free market and democracy as unchallenged in a world that has become increasingly dependent on its economy as a result of globalization, while smart weapons have made it virtually immune to even its domestic critics of foreign policies, as American casualties are kept negligible. The tempting prescriptions that have been intoned provoke the metaphor of a global empire, “democratic” only in being accountable to the American electorate, and ruling with the help of anointed “satraps”.

It appears that the United States would like the world to be managed by what may be called the Global Rule of Law (henceforth used here as a term of art). Many from other countries disagree with that desire. The areas of contention are widespread: environmental law (e.g., balancing consumer’s rights and the protection of the common heritage), economic regulations (e.g., conditions of assistance from the World Bank and the International Monetary Fund, regimes of sanctions, and prerequisites to participation in the World Trade Organization), definition of international crimes (e.g., terrorism), modality of dispute resolution and global courts (e.g., asymmetrical jurisdiction and burden of proof), the rules of warfare (e.g., the definitions of self‑defense and just war, application of the Geneva Convention, and proliferation/right to weapons of mass destruction), reforming existing domestic legal systems ( e.g., compatible legislation, independent judiciary, and the principle of judicial review), human rights (e.g., extent and scope of “inalienable/natural,” political, civil, economic/social, and displaced persons’ rights), to name the major ones. At the core of the disagreement, the issue is joined on the changing nature of sovereignty and its implications for both international/global relations and the rule of law. The novelty of the Global Rule of Law is in the fact that unlike international law it denies equality among nation‑states, and unlike a modern (consensual) domestic legal system it rejects subjection of the ruler to the law ordained by the ruled.

 The tasks of this working group should begin by enumerating the “elements” of the Global Rule of Law. In thus defining the subject, its contrasts as well as similarities with the traditional legal systems should be discernable. The common jurisprudence should delineate, further, the borders with other global rules of conduct, such as the protocols of civility, commands of faith, and standards of morality. In recognition of the organic basis for any legal system, the salient characteristics of the global relations that provide the context for the present and future viability of these new laws must be reviewed.

 The goal is first to assess realistically and objectively what obtains today as the Global Rule of Law, and its critique. The normative consideration and articulation of alternatives would come next; and in that exercise, to be productive, those concerned should aim their dialogue toward a desired consensus that would hold the promise of persuading a wide and empowered enough constituency, including disparate segments of the global civil society. It might also be noted that inasmuch as American jurisprudence dominates, the naked truth of its adversarial system is that the meek or the weak will not shape the law. Politics of self‑abnegation, victimhood, or reckless defiance will none be consequential; and compassion will have an impact only as a means of soothing the inequality in order to ensure stability.

 The merits of this project lie in its timeliness. The rate of change has made past efforts obsolete, and a contemporary forum for collaborative interaction of the qualified from diverse perspectives could be justifiably beneficial.

 The logistical issues in carrying out this program are several. The dialogue among the participants in the Group could be primarily conducted in the electronic forum, using email as the medium of the exchange; when appropriate, the more traditional forums, specially conferences, would also be used. The Internet provides access to participants from many countries with incomparable ease and speed. Technical and management assistance would facilitate such essential tasks as defining discussion themes, building agendas, designing time‑lines for specific discussion strands, creating a research and reference archive for each theme, identifying and contacting targeted participants, providing ongoing encouragement for the members of the Group to participate, summarizing the key points of a discussion, formulating practical policy recommendations, and setting up the talking points for a call to action for each theme. In addition, a service is available to deliver customized information that participants specify, digitally clipped from a collection of selected web sites, to help participants add context to the ongoing discussions.

 The Group should appoint a rapporteur to manage the project, with specific tasks that include facilitating the exchange, and moderating and compiling submitted “views,” and preparing periodical reports (“Report(s)”) on the results.

 Progress of the project should be measured by milestones. The first milestone could be the first Report by the rapporteur in a year to be reviewed at the next conference of the Group. These Reports would include studies and policy recommendations. The initial term of the project could be three years. The free modality of dialogic discourse needs the balancing discipline of the Group’s commitment to specific scheduled outputs. As a repository of contributions by expert representatives of many legal cultures and experiences, the Reports could be the fount of books, articles, position papers to be used in teaching, advocacy, and policy formulation. Depending on the provision of the logistics, this conference should determine the outputs above the minimum of a publishable multi‑authored book a year.

 This meeting should establish a realistic estimate of the costs of the project, and specify admissible items of expenses. Equally important, the sources of funding should be determined. At present, there is no firm promise of any financial support. The Group should strive to obtain at this conference an adequate amount of “seed money” and pledges sustaining a viable budget.

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 Outline

I. Definition of the subject

 A) The basic elements of the “rule of law” 

 B) Global Rule of Law, and its relationship to International Law and Domestic Laws

 II. Context: from “international relations” to global relations

  A) Collapse of the communist empire leaving a sole and assertive superpower 

 B) Globalization of the market economy causing heightened interdependencies

 C) Technological revolutions in

  1) Communications: inducing democratic aspirations

  2) Warfare; smart weapons and unilateralism

 D) Anti‑terrorism: imperatives of security

 III. Goals of the project

 A) Taking stock: realistic assessment of the present

 B) Dialogue of the concerned: consensus in persuasive hopes for the future

 IV. Logistics

 A) Forum 

  1) Electronic platform

  2) Conferences

 B) Management 

  1) Facilitating the collaborative dialogue

  2) Reporting

 C) Funding 

  1) Estimate of costs

  2) Resources

 D) Measuring progress: milestones (publications, conferences, policy recommendations)_________________________________________________________________________________________

This article is a 2002 proposal for a working group to study the emergence of a “system of global rule of law” which is distinct from the traditional international law and various systems of domestic law. The working group was convened by Keyvan Tabari in March 2002 at the University of Oxford, England, under the auspices of the Toda Institute.

Interfaith Dialogue and the Emerging Global Legal System I

 

  ________________________________________________________________________________________                                                                                                                                                                             ________________________________________________________________________

Copyright© Keyvan Tabari 2004. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari. _____________________________________________________________________________________

abstract:         The purpose of this presentation is to call for a rigorous interfaith dialogue in critiquing the emerging new world legal system. The objective would be to help ameliorate the fate we face today, by discerning and employing humanity’s shared values emanating from universal beliefs. Acknowledging those values is imperative now that globalization and uni-polarity have come to undermine the foundations of traditional international law. As the principle of the sovereignty of nation-states erodes, substitutes should be sought in such rules of conduct as the protocol of civility, standards of morality, and commands of faith. “Self evident” absolutes such as the sanctity of all individuals, once only hoped for, may now be founded on experienced faith. Thereupon should be based the laws governing the globe. Only thus could a global empire -desired or viewed as inevitable by some, and feared by others- be held accountable for the common good of all peoples. 

            keywords: interfaith dialogue + international law + emerging

            global legal system + globalization + common good

  ____________________________________________________________________________________           

            What I think the conferees at Dubai [“An Inter-faith Perspective on Globalisation for the Common Good; The 3rd Annual Conference: The Middle East and Globalisation for the Common Good, Dubai, 26-31 March, 2004″] might want to consider is the future of the fast evolving international law and how interfaith dialogue could influence it for the better. The framework for such consideration need not be elaborated here. I will presently allude to its contours briefly. I would, instead, focus in this space on the legal landscape.                                   

            The foundations of private international law have been radically shaken by the all encompassing globalization of economics –  capital, market, and labor- while the implosion of the Soviet Union has allowed an assertive United States to challenge the whole notion of nation- state which has been the pillar of public international law since the Treaty of Westphalia. It is facile to consider the events of September 11, 2001 as the fortuitous cause. Even before that date, there were clear signs that the United States wished the world to be managed by what may be called the Global Rule of Law.

            Many from other countries have disagreed with that desire. The areas of contention have been widespread: environmental law (e.g., balancing consumer’s rights and the protection of the common heritage), economic regulations (e.g., conditions of assistance from the World Bank and the International Monetary Fund, regimes of sanctions, and prerequisites to participation in the World Trade Organization), definition of international crimes (e.g., terrorism), modality of dispute resolution and global courts (e.g., asymmetrical jurisdiction and burden of proof), the rules of warfare (e.g., the definitions of self-defense and just war, application of the Geneva Convention, and proliferation/right to weapons of mass destruction), reforming existing domestic legal systems ( e.g., compatible legislation, independent judiciary, and the principle of judicial review), human rights (e.g., extent and scope of “inalienable/natural,” political, civil, economic/social, and displaced persons’ rights), just to name the major ones.  At the core of the disagreement, the issue is joined on the changing nature of sovereignty and its implications for both international/global relations and the rule of law.

            The novelty of the Global Rule of Law is in the fact that unlike international law it denies equality among nation-states, and unlike a modern (consensual) domestic legal system it rejects subjection of the ruler to the law ordained by the ruled. It might be argued that, especially under President George W. Bush’s administration, the U.S. perceives its ideology of free market and democracy as unchallenged in a world that has become increasingly dependent on its economy as a result of globalization, while “smart” weapons have made the Administration virtually immune to even its domestic critics of foreign policies, as American casualties are kept negligible. The tempting prescriptions that have been intoned provoke the metaphor of a global empire, “democratic” only in being accountable to the American electorate, and ruling with the help of anointed “satraps” in other lands. 

            How could this new Rome be made globally accountable? The task should begin by enumerating the “elements” of the Global Rule of Law. In recognition of the organic basis for any legal system, the salient characteristics of the global relations that provide the context for the viability of these new laws must be reviewed. Fundamental for the work of the Dubai conference, however, is testing the assumptions of the new jurisprudence against other than legal rules of conduct: protocols of civility, standards of morality, and above all, commands of faith.

            This normative consideration for the articulation of the alternatives would not be easy.  In that exercise, to be productive, those concerned should aim their dialogue toward a desired consensus that would hold the promise of persuading a wide and empowered enough constituency, including disparate segments of the global civil society. It might also be noted that inasmuch as American jurisprudence dominates, the naked truth of its adversarial system is that the meek or the weak will not shape the law. Politics of self-abnegation, victimhood, or reckless defiance will none be consequential; and compassion will have an impact only as a means of soothing the inequality in order to ensure stability.

            I believe that a robust interfaith dialogue can be of enormous help both in critiquing the official version of the new world legal order and in ameliorating the fate we face today. Such a dialogue will do so by revealing our shared common values, which emanate from universal beliefs that could no longer be disputed. There are, indeed, absolutes founded on experienced faith! Who could today question the essential sanctity of all individuals, or the dictum that one should treat others as one expects to be treated? From these now “self-evident” principles, as the Thomas Jeffersons could only have envisaged, the interfaith engagement must derive rules applicable to the contemporary human condition. Thereupon should be based the laws governing the globe. The Dubai conference could open a vista of immense intellectual promise to be fulfilled by its progenies.

_________________________________________________________________________________________

The article is a paper given in March 2004 in Dubai at the  “Inter-faith Perspective on Globalisation for the Common Good; The 3rd Annual Conference: The Middle East and Globalisation for the Common Good .

Interfaith Dialogue and the Emerging Global Legal System II

 

 ____________________________________________________________________

 Copyright© Keyvan Tabari 2004. All Rights eserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari. _______________________________________________________________________________________

abstract:         The purpose of this presentation is to call for a rigorous interfaith dialogue in critiquing the emerging new world legal system. The objective would be to help ameliorate the fate we face today, by discerning and employing humanity’s shared values emanating from universal beliefs. Acknowledging those values is imperative now that globalization and uni-polarity have come to undermine the foundations of traditional international law. As the principle of the sovereignty of nation-states erodes, substitutes should be sought in such rules of conduct as the protocol of civility, standards of morality, and commands of faith. “Self evident” absolutes such as the sanctity of all individuals, once only hoped for, may now be founded on experienced faith. Thereupon should be based the laws governing the globe. Only thus could a global empire -desired or viewed as inevitable by some, and feared by others- be held accountable for the common good of all peoples. 

            keywords: interfaith dialogue + international law + emerging

            global legal system + globalization + common good

            _______________________________________________________________________________           

            About 500 years ago, in this country, in a place about 500 miles from here, a man spoke to a group on a topic most relevant to this Parliament. He was at the time, perhaps, the most important religious scholar of Christendom. As Professor of Theology at the University of Salamanca,  Francisco de Vitoria lectured to his class on natural law and international law. His students collected these lectures and published them after his death in 1546, in Reflectiones theologicae. The book examined  the Spanish empire’s dominion over the inhabitants of the newly discovered American continent. What stands out is Vitoria’s bold espousal of the rights of the natives of the new land. By this Vitoria was taking a huge step in extending international law into a world system, “for it meant that a law which had its rise among the few princes of European Christendom was not to be limited to them or to their relations with one another but was universally valid, founded as it was on a natural law applying equally to all men everywhere.” [Brierly, J.L. The Law of Nations. Oxford U Press. 1944. p. 26]

            What I think the Parliament of Worlds Religions in Barcelona in July of 2004 might want to consider is the future of the fast evolving international law in our times, and how interfaith dialogue could influence it for the better. The framework for such consideration need not be elaborated here. I will presently allude to its contours briefly. I would, instead, focus in this space on the legal landscape.

            The foundations of private international law have been radically shaken by the all encompassing globalization of economics –  capital, market, and labor- while the implosion of the Soviet Union has allowed an assertive United States to challenge the whole notion of nation- state which has been the pillar of public international law since the Treaty of Westphalia. It is facile to consider the events of September 11, 2001 as the fortuitous cause. Even before that date, there were clear signs that the United States wished the world to be managed by what may be called the Global Rule of Law.

            Many from other countries have disagreed with that desire. The areas of contention have been widespread: environmental law (e.g., balancing consumer’s rights and the protection of the common heritage), economic regulations (e.g., conditions of assistance from the World Bank and the International Monetary Fund, regimes of sanctions, and prerequisites to participation in the World Trade Organization), definition of international crimes (e.g., terrorism), modality of dispute resolution and global courts (e.g., asymmetrical jurisdiction and burden of proof), the rules of warfare (e.g., the definitions of self-defense and just war, application of the Geneva Convention, and proliferation/right to weapons of mass destruction), reforming existing domestic legal systems ( e.g., compatible legislation, independent judiciary, and the principle of judicial review), human rights (e.g., extent and scope of “inalienable/natural,” political, civil, economic/social, and displaced persons’ rights), just to name the major ones.  At the core of the disagreement, the issue is joined on the changing nature of sovereignty and its implications for both international/global relations and the rule of law.

            The novelty of the Global Rule of Law is in the fact that unlike international law it denies equality among nation-states, and unlike a modern (consensual) domestic legal system it rejects subjection of the ruler to the law ordained by the ruled. It might be argued that, especially under President George W. Bush’s administration, the U.S. perceives its ideology of free market and democracy as unchallenged in a world that has become increasingly dependent on its economy as a result of globalization, while “smart” weapons have made the Administration virtually immune to even its domestic critics of foreign policies, as American casualties are kept negligible. The tempting prescriptions that have been intoned provoke the metaphor of a global empire, “democratic” only in being accountable to the American electorate, and ruling with the help of anointed “satraps” in other lands.

            How could this new Rome be made globally accountable? The task should begin by enumerating the “elements” of the Global Rule of Law. In recognition of the organic basis for any legal system, the salient characteristics of the global relations that provide the context for the viability of these new laws must be reviewed. Fundamental for the work of the this conference, however, is testing the assumptions of the new jurisprudence against other than legal rules of conduct: protocols of civility, standards of morality, and above all, commands of faith.

            This normative consideration for the articulation of the alternatives would not be easy.  In that exercise, to be productive, those concerned should aim their dialogue toward a desired consensus that would hold the promise of persuading a wide and empowered enough constituency, including disparate segments of the global civil society. It might also be noted that inasmuch as American jurisprudence dominates, the naked truth of its adversarial system is that the meek or the weak will not shape the law. Politics of self-abnegation, victimhood, or reckless defiance will none be consequential; and compassion will have an impact only as a means of soothing the inequality in order to ensure stability.

            I believe that a robust interfaith dialogue could be of enormous help both in critiquing the official version of the new world legal order and in ameliorating the fate we face today. Such a dialogue will do so by revealing our shared common values, which emanate from universal beliefs that could no longer be disputed. There are, indeed, absolutes founded on experienced faith! Who could today question the essential sanctity of all individuals, or the dictum that one should treat others as one expects to be treated? From these now “self-evident” principles, as the Thomas Jeffersons could only have envisaged, the interfaith engagement must derive rules applicable to the contemporary human condition. Thereupon should be based the laws governing the globe.

            Historians of international law might recognize a similarity between this call and Hugo Grotius’s approach in finding principles of natural law and “the law of nations,” or jus gentium, to which he would subject sovereign nation states. He looked for those principles in

“the testimony of philosophers, historians, poets, and orators, not because they were themselves conclusive witnesses, but because when they were found to be in agreement, their agreement could only be explained in one of two ways: either what they said must be a correct deduction form the principles of reason, and so a rule of the law of nature or else it must be a matter on which common consent existed, and so a rule of the law of nations. Thus in effect the two terms … express the theoretical and practical side of the same idea.” [Brierly:  pp. 30-31]

________________________________________________________________________________________

The article ‘Interfaith Dialogue and the Emerging Global Legal System- PWR Barcelonawas a lecture by Keyvan Tabari given July 2004 in Barcelona at the Parliament of World Religions.

GLOBALIZATION AND AMERICAN BUSINESS

Globalization and International Law

 

 

                                       GLOBALIZATION, AMERICAN BUSINESS,

                              AND THE IMPLICATIONS FOR LEGAL EDUCATION

 

By: Keyvan Tabari

_____________________________________________________________________________

                                                            Copyright8 Keyvan Tabari. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari. ____________________________________________________________________________________________

Introduction

The importance of international commerce for American business cannot be exaggerated. It has generated nearly one-third of the new jobs in the recent business cycle; exports have been crucial in the growth of countless industries; and the low cost of imports have been a major factor in controlling inflation. The promotion of international commerce is also a primary security strategy in the post cold war era, as global interdependence in pursuit of prosperity is perceived to be the best insurance against violent conflicts.

Two recent historic developments have altered the character of international commerce, while making its expansion possible. First, the collapse of the Soviet Union and the embracing of capitalistic economics by China have removed from the path of free enterprise the restraining ideology of wealth redistribution. Second, the leaping advances in technology have integrated markets and labor forces of distant lands. Now, to an unprecedented degree international capital flows in all directions, skilled human resources move freely to fill jobs, goods may be produced anywhere, and all markets have become accessible to entrepreneurs. These new opportunities pose serious threats to the existing economic order. Particularly, the fear that the expansion of international commerce may cause extensive job losses in the traditional sectors of American economy has given rise to a politically charged debate about its merits. To control the impact of international business, many proposals have been made to regulate it. International commerce is, of course, already managed within the framework of a legal order. But the rules of this order are different from those of a domestic (national) legal system. Understanding these different rules is necessary for success in international business.

International Legal Order


To begin with, the international legal system lacks courts for adjudicating disputes. While occasionally ad hoc tribunals are established by interested governments to resolve isolated economic disputes between their nationals, the common alternative for settling international claims is arbitration pursuant to agreement of the parties. Furthermore, no international agency exists to enforce the arbitrators= awards; the prevailing party has to rely on the enforcement machinery of the country where the losing side=s assets are located. Finally, often there is no international law for the arbitrators to apply. Instead, they frequently must refer to the domestic laws of the country designated by the parties.

The customs and usages which gradually emerge from commercial transactions generate the international legal norms. However, without a system of international courts to embody these norms in their rulings, they do not receive the force and mandate of precedents. There is another way for establishing binding legal rules: legislation by international conventions. The United Nations and other intergovernmental organizations originate the drafts of these conventions. But these drafts are rarely enacted into multinational legislation. While some noteworthy international conventions have finally been concluded –among them the conventions on contract for the international sale of goods; on several procedural aspects of civil litigation, such as the limitation period, service, discovery; and on enforcement of arbitration awards– they are few in number and govern only the nationals of the states that adhere to them.

International rule-making is, therefore, left largely to private contracts between parties to international transactions. National governments, however, impose limits to their freedom of contract. For example, a nation may decree export restrictions to prevent its citizens from selling products or services to another country. Such intrusions by national governments could also be made retroactive, as in the case of currency controls which block the expatriation of the profits of foreign businesses. More drastically, a hostile new regime may choose to expropriate the assets of a foreign business. Expropriation has even been carried out without a fair compensation. Assessing the likelihood and the extent of these political risks is part of the due diligence required for any international venture.

Just as these risks are posed by the intrusive role of the nation-states in international trade, sometimes national governments render protection against them. Thus, government (or quasi-government) agencies, such as export-import banks and export development corporations, aim at insuring their nationals against certain risks of international commerce. Similarly, through trade agreements, governments attempt to remove the barriers to foreign markets facing their nationals. The beneficial prospects of such favorable interventions by the national governments must be taken into account in any international business plan.

International Agreements

 


Because of these considerations, international commercial negotiations are inherently complicated. The process becomes even more complex when the parties manifest dissimilar expectations rooted in different cultural values. For instance, in negotiating a contract an American would ordinarily be more interested in limiting his exposure, while his foreign counterpart may focus on enlarging the scope of his authority; the American would aim at direct expression of his goals, while his counterpart may prefer circumspection; the American would seek pragmatic solutions to the problems, while his counterpart may insist on logical consistency; and the American would want clarity in the projected plans of action, while his counterpart may desire the flexibility of nuanced vagueness . These objectives, observed in dealing with different nationalities, may not be incompatible, but their synthesis requires understanding and finesse.

In crafting an international agreement, even the basic task of communication could be difficult. In order for the parties to express their intent unmistakably, a shared language is essential. English may well have become the lingua franca of global commerce, but often it is not the native tongue of one or more of the parties to the negotiations. In such circumstances, the same word could have different connotations for various parties, allowing for potentially conflicting interpretations. The awkward language sometimes found in international agreements and conventions is symptomatic of this problem and the unsatisfactory attempts to deal with it.

Nonverbal communications are equally important in international negotiations. They, too, are rooted in the diverse cultural backgrounds of the parties. What is an innocuous pause for one party in response to a proposal during the negotiations could appear portentous to another, and thus adversely affect the negotiations.

Disparate cultures also produce distinct styles of negotiations. Some emphasize bargaining for every transaction, while others aim at long-term relationships. Some require decision-making by consensus, while in other cultures one person makes the significant decisions. What might be acceptable practice in some cultures, may appear unethical in other cultures. All of these differences must be fully taken into account for the international negotiations to reach fruition.

 

The ultimate test of a successfully negotiated contract comes during its implementation. The smooth administration of international agreements depends on the parties= continuing sensitivity to and respect for differences between them, especially in management styles. The need for local “know-how” frequently dictates entering into joint ventures with partners from the country where the agreement is to be performed. Partnership relationships are always complex, and the international association of strangers with different ways of doing things accentuates this fact by adding an additional, complicating dimension. Furthermore, the joint ventures must comply with local laws, which present yet another aspect of the distinct legal context of international commerce.

 

 

While a business person engaged in international commerce should have a grasp of the principles of applicable local laws, compliance with them may require the services of local counsel. Selecting local counsel and maintaining liaison with counsel are best done with the help of the business=s principal attorney.

 

International Lawyers

 

The lawyer=s contribution is pivotal in all three phases of any international agreement: formation, administration, and the resolution of disputes. American attorneys are generally equipped by aptitude, training, and experience to perform the essential legal tasks of assessing the potential risks and articulating the client=s message clearly and persuasively. Their service in international commerce will be even more productive if they meet certain special qualifications.

 

First, they should have adequate training in public and private international law, and international relations, as well as in the relevant major legal systems of the world. Second, they should develop the aptitude for sensitivity to cultural differences in order to accommodate them in pursuit of their client=s objectives. Third, they should act more as a facilitator than as an advocate, since the international legal context is not adversarial. Fourth, they should assume a lower profile, because their client=s international business partners often perceive the customary active role of an American attorney as too aggressive and threatening. Fifth, they should be more of a general counselor than a narrow specialist, as their client=s success usually rests not on prevailing in any specific issue but on a systemic treatment of many factors. Sixth, they should learn to work with other indispensable aides and advisors to their client, including interpreters, international relations experts, country specialists, social scientists, and local counsel. Seventh, they should gain experience in distinct areas special to international commerce, such as export control, currency exchange regulations, international dispute resolution, international taxation, payment of international debts, and international financing.

 

Conclusion

 

The increasing involvement of American business in international commerce is both unavoidable and desirable. A more developed international legal system would encourage commerce by enhancing the needed stability and predictability. National governments should help by agreeing to multinational conventions that are beneficial and fair to all, and by foregoing restrictive unilateral regulations. The success of private international contracts hinges on understanding the differences between the parties which are often due to cultural factors. In negotiating, and administering these contracts, as well as in resolving international commercial disputes, American business could benefit greatly from the counsel of lawyers with the proper aptitude, training, and experience in international law.

_______________________________________________________

 

Keyvan Tabari is an international lawyer. He has represented clients from many countries over the last twenty seven years. A member of the California Bar, Mr. Tabari practiced in San Francisco where he was of counsel to Chandler, Wood, Harrington & Maffly LLP. Mr. Tabari holds a Ph.D. in International Law from Columbia University, an M.A. in International Relations from Columbia University,  a J.D. from Washington University (where he was an editor of the Washington University  Law Quarterly) , and a B.A. from Duke University. He has served as a judge pro tem at the California Superior Court, and as a judge of the Philip Jessup International Law Moot Court. He has lectured on law and culture as well as on international law at various universities.

____________________________________________________________________________________________

The article entitled Globalization, American Business, and the Implications for Legal Education, was published in print in the Fall 2001 issue of the Institute for Global Legal Studies. It is electronically available at the website cited below.    

            http://law.wustl.edu/HIGLS/Magazine/2001/03globalization.pdf