The past and future of African international law scholarship.

Position:International Law in a Multipolar World - Discussion

This panel was convened at 9:00 am, Friday, April 5, by its moderator, James Thuo Gathii of Loyola University, Chicago, who introduced the panelists: Uche Ewelukwa-Ofodile of the University of Arkansas School of Law; Erika George of the S.J. Quinney College of Law, University of Utah; Chris Maina Peter of the University of Dar es Salaam; and Makau Mutua of SUNY Buffalo Law School. *

INTRODUCTORY REMARKS BY JAMES THUO GATHII ([dagger])

The last few years have witnessed an important new moment for African international legal scholarship. (1) This is evidenced by the publication of several important new books. These books from leading presses represent a departure from the founding scholarship on Africa and international law in the immediate post-independence era--the last time that several books focusing on Africa and international law were published. Unlike in the immediate post-independence moment, the new books span new themes and concerns including gender equality, (2) international trade and economic integration, (3) and criminal justice. (4) It is noteworthy that there are other new books focusing on traditional themes in Africa's international legal scholarship, but our panel did not examine these. (5) The presentations in this panel critically appraised what this new moment in Africa international law scholarship means.

Each of the panelists was asked to consider three questions. First, besides the new subject matter, what new themes do these books bring to African international legal scholarship? Are there new methodological, conceptual, or theoretical approaches, or are they simply bringing new information to the table?

Second, have the authors brought an African voice to international legal scholarship, and is such a voice necessary? Have the authors challenged the discipline to look at Africa and international law differently than first-generation scholars did?

Third, have these books changed our discipline? If so, have they connected better with the teaching, research, and practice of international law in African governments and African regional institutions, including courts, NGOs activism, national courts, and so forth?

In short, the goal was not so much to look at each book very closely, but rather to see what broad trends this new scholarship portends in a variety of ways.

Each of the three speakers addressed a different theme in this new scholarship. Dean Makau W. Mutua kicked off the discussion by discussing the typologies of scholarship on Africa and international law. (6) Dean Mutua outlined the varied constituencies who produce African international law scholarship and the streams of scholarship that they have produced. He argued that context matters and as such a study of Africa and international law has to begin with the subordination of Africa and the exploitation of its resources under colonialism and its legacy of imperialism. At the present moment, he alleged, Africa is in danger of being subordinated by the East as well. On the type of scholarship traditions, he argued that a tension exists in the scholarship between scholars whom he labeled accommodationist, on the one hand, and those whom he labeled critical or adhering to Third World Approaches to International Law (TWAIL), on the other hand. His presentation set up the broader framework for specific discussion of the new scholarship on African international law. Uche Ewelukwa Ofodile discussed three books in the international trade and economic integration theme: Richard Oppong, Legal Aspects of Economic Integration in Africa (Cambridge University Press, 2011); my own African Regional Trade Agreements as Legal Regimes (Cambridge University Press, 2009); and Won Kidane, China-Africa Dispute Settlement: The Law, Culture and Economics of Arbitration (Wolters Kluwer, 2011). While she noted that Africa's voice in this area was beginning to be heard, she stated that core issues in international trade law are still not being addressed, including the intersection of trade/justice linkages or the trade/ development linkages. She highlighted the importance of having interdisciplinary studies that would, in her words, "deconstruct the normative and policy underpinning international trade law, works that take on issues such as African women and international trade law, and works that adopt empirical methods would all be welcomed addition to the growing literature by Africans in the field of international trade law." (7) Professor Ewelukwa went on to make a very good case about the need to have more scholarship cover the international investment law area. Her own work in this area is pioneering, and a book is surely forthcoming. One might also add that another area in need of African voices is international financial law--with huge illicit flows of capital streaming out of Africa, the intersecting areas of international finance and international tax, and their connections to justice and poverty, are in need of scholarly attention. (8)

Last but not least, Erika George analyzed the gender/human rights theme through a thorough review of Penelope Andrews' new book, From Cape Town to Kabul: Rethinking Strategies for Pursuing Women's Human Rights. (9) One key insight in this book is the concept of conditional interdependence, which argues that women's differences and the different cultural contexts in which they live their lives should be taken into account in rights advocacy. Through this concept she demonstrates how commonalities across different cultures and histories in different transitional societies, such as Afghanistan and South Africa, result in similar challenges for women, e.g., poverty in the realization of rights. She shows that in this context community and shared resources are far more important than is sometimes assumed in approaches to women's rights that emphasize individuality and autonomy. Professor George argues that Penelope Andrews' book shows how scholarship on Africa and international law has gone beyond the traditional paradigms of international legal feminist literature and strategies.

In all, the three presentations provided an excellent backdrop against which a rich conversation with the audience followed. While there is certainly something new out there on Africa and international law, this panel has only began a much broader conversation. Hopefully, other initiatives like this will continue the conversation. This panel showed that the conversation on Africa and international legal scholarship is quickly building on, challenging, and even going beyond the contributionist tradition as the dominant way of thinking about African international law. (10) This is indeed an exciting time for African international legal scholarship.

JAMES THUO GATHII ([dagger])

* Professor Peter did not submit remarks for the Proceedings.

([dagger]) Wing-Tat Lee Chair of International Law, Loyola University Chicago School of Law.

(1) Notably, in April 2012 a major conference on Africa and international law was held at Albany Law School in New York, with over 70 papers presented and over 150 attendees, including the Prosecutor of the International Criminal Court, Fatou Bensouda; the Chief Justice and President of the Supreme Court of Kenya, Dr. Willy Mutunga; the Registrar of the International Criminal Tribunal for Rwanda, Adama Dieng; and Justice Abdul Koroma of the International Court of Justice, among others.

(2) A sampling of these books includes: The Future of African Customary Law (Jeanmarie Fenrich & Paolo Galizzi eds., Cambridge University Press, 2011); Obiora Okafor, The African Human Rights System: Activist Forces and International Institutions (Cambridge University Press, 2007, transferred to digital printing 2010); Frans Viojen, International Human Rights Law in Africa (Oxford University Press, 2d ed., 2012); and Chaloka Beyani, Protection of the Right to Seek and Obtain Asylum Under the African Human Rights System (Brill, 2013).

(3) A sampling of these books includes: Won Kidane, China-Africa Dispute Settlement: The Law, Culture and Economics of Arbitration (Wolters Kluwer, 2011); Richard Oppong, Legal Aspects of Economic Integration in Africa (Cambridge University Press, 2011); James Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge University Press, 2011); Tshimanga Kongolo, African Contributions in Shaping the Worldwide Intellectual Property System (Ashgate, 2013); Richard Oppong, Private International Law in Commonwealth Africa (Cambridge University Press, 2013); Shaping the Trade Relation Between European Union and African Countries Beyond the Cotonou Agreement: Development Challenges and Options (Ngangjoh Hodu & Matambalya eds., Routledge, 2009); and Ikechi Mgbeoji, Global Biopiracy: Patents, Plants and Indigenous Knowledge (Cornell University Press, 2005).

(4) A sampling of these books includes: Africa and the Future of International Criminal Justice (Vincent O. Nmehielle ed., Eleven International Press 2012); and Kamari Maxine Clark, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009).

(5) For example, Africa: Mapping New Boundaries in International Law (Jeremy Levitt ed., Hart, 2008); Patrick H.G. Vrancken...

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