James Thuo Gathii

African regional trade agreements as legal regimes

African regional trade integration has grown exponentially in the last decade. This book is the first comprehensive analysis of the legal framework within which it is being pursued. It will fill a huge knowledge gap and serve as an invaluable teaching and research tool for policy makers in the public and private sectors, teachers, researchers and students of African trade and beyond. The author argues that African Regional Trade Agreements (RTAs) are best understood as flexible legal regimes particularly given their commitment to variable geometry and multiple memberships. He analyzes the progress made toward trade liberalization in each region, how the RTAs are financed, their trade remedy and judicial regimes, and how well they measure up to Article XXIV of GATT. The book also covers monetary unions as well as intra-African regional integration, and examines free trade agreements with non-African regions including the Economic Partnership Agreements with the European Union.

Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy

In this article, (reviewing Brad Roth, Governmental Illegitimacy in International Law, OUP, 1999), I argue that liberal internationalism and neo-conservative realism are not the only alternatives to understanding and producing knowledge about legitimacy in international law. I offer a third world approach which I argue is intended as a counterweight to the overwhelming dominance of American and European academia in producing knowledge about international law. This third world approach represents a variety of shifting positions within the anti-hegemonic critique of Euro-American approaches represented by liberal internationalism and neo-conservative realism. In so doing, the aim of the paper is to open up the meaning of legitimacy to go beyond examining state legitimacy into examining legitimacy in a wider context that includes race, culture, class and sex. However, this project is not simply aimed at providing a countervailing or even an authentic notion of legitimacy or of the third world, but to overcome the given grounds of opposition between liberal internationalism and neo-conservative realism by opening up a space for a scholarly and political project that is open to change and innovation in addressing the pressing problems raised by concerns relating to legitimacy in international and national governance. Thus, I contend that if debates about legitimacy were decentered from their statism and Eurocentricity, and contextualized in the rich and complex interactions of neo-liberal economic reformism, the legacy of north–south relations and non-European ways of thinking about legitimacy, a richer discourse on legitimacy would be possible. For example, what does the discourse on legitimacy have to say about the globalization thesis that the pain of economic restructuring is the cost that a society must be willing to pay in order to produce a higher rate of growth, productivity, profit and investment? I argue that the distributional consequences of such a commitment to globalization should feature in discourses on legitimacy. I do so by inquiring how framing arguments in favor of economic reformism this way automatically de-legitimizes governmental initiatives to redress social division and hierarchy as invariably inefficient, wasteful and profit constraining. Ultimately, I argue in favor of spreading the discourse on legitimacy to the private sphere so that how such economic reforms favor capital against labor or vice versa are as central to legitimacy as are reforms in the political sphere of elections and liberal democracy.

A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias

This essay critically examines the legal theories of the Nigerian jurist T.O. Elias concerning Africa’s contribution to international law and the ways in which its rules could be reformulated to benefit the newly independent states. In this respect, he influenced many contemporary international lawyers in Africa and elsewhere. In particular, his singling out of sovereignty as a barrier to reforming international law is shared by a generation of international legal scholars who have criticized states for placing too high a premium on their sovereignty, thereby placing insuperable barriers to their acceptance of egalitarian goals. The essay also contrasts Elias to scholars of international law who viewed Europe’s colonial legacy of international law as a barrier to reforming it so that it was consistent with the interests of so-called post-colonial African states.

Geographical Hegelianism in Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)

This article extensively reviews the ICJs decision in the Case Concerning Kasikili/Sedudu Island, particularly with reference to its application of law on acquisition of title to territory under international law. I trace how the Court uses evidence of African use and occupation of territory to establish territorial sovereignty in a European state as opposed to a non-European entity. In so doing, I demonstrate that the tests adopted by the Court in determining title to the disputed island are based on the Eurocentric assumption that only the consent of European states is necessary to adjudicate nineteenth century claims of title to territory to the exclusion of the consent of non-European peoples. In effect, international law still carries forward within it the colonial notion that treaties between colonial powers in the nineteenth century extinguished pre-existing title to territory based on African use and occupation. I also analyze how the Courts decision gives more probative value to the economic intentions of the colonizing powers and the geographical and scientific evidence to interpret the 1890 Anglo German Treaty in determining title to the disputed island at the expense of the evidence of the use and occupation of the disputed island the Masubia - a non-European community. In effect, Africa is treated as an unconscious geographical entity - its occupants intent and consent remain as irrelevant as they did during the height of colonial rule in the nineteenth century - a feature I refer to as geographical Hegelianism in the article. Finally, the article argues that although the Court ostensibly interprets the 1890 Anglo-German Treaty on the basis of its ordinary meaning and in the context of its object and purpose in terms of Article 31(1) of the Vienna Convention of the Law of Treaties, the Courts analysis applies the much higher standard of a strict grammatical and logical construction which leads the Court to mistakenly overstate the significance of the animus or the will to lawfully possess territory, a subjective requirement that has no application in the international law of acquisition of territory. This subjective test taken from the realm of private law is inconsistent with prior ICJ cases and was therefore incorrectly applied at the expense of the usual (and more objective) test of a showing of superior evidence of continuous and effective control or display of sovereignty in relation to claims by other states in the law on proving title to territory.

War's Legacy in International Investment Law

This article discusses the role war has played in shaping the rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions. These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however became acutely aware that these institutions and rules did not completely erase the coercive and uneven relations they had with capital-exporting states. In era after era of reformism from the Calvo era, to the NIEO and to the era in opposition to neo-liberal economic governance, capital-importing States have continued to resist and sometimes adapt to the coercive realities of the rules of international investment law. The article begins by tracing the origin of the Drago doctrine as a response to the practice of European states that engaged in aggression and conquest against militarily and economically weaker Latin American states as a means of collecting debts owed to their citizens. It then shows that while the denouement of forcible measures to resolve contract debt was overstated by early twentieth century international lawyers, international law nevertheless provided avenues for dispute settlement outside the use of force in international commercial relations. Thus while protecting commerce from the scourge of war was a primary inspiration for the post-Second World War international economic order, the author shows how war has nevertheless continued to be an animating factor for former colonies particularly with regard to their State responsibility for war damage in the context of foreign investment.

Rejoinder: Twailing International Law

In this article, I argue that a defining characteristic of discussions of legitimacy within liberal internationalism and neo-conservative realism is that they do not engage with the colonial history and its legacies for the developing world and the private order of the market place. In my view, to the extent that colonialism and the economics underlying the exercise of public power are not a part of the discussion on legitimacy, the task of engaging legitimacy is both incomplete and could be read as an endorsement rather than an inquiry of hegemonic and other interests related to legitimacy concerns.

The Status of African Regional Trade Agreements

This chapter comprehensively introduces all eight African Regional Trade Agreements, (RTA), that are slated to eventually combine to form the African Economic Community. For each RTA, the chapter begins with an overview that includes its founding date, purposes and members as well as the sequence contemplated to be followed in the integration plan. Each of these integration schemes, free market, customs market, common market, monetary union and where there is planned political union is examined in turn. For each RTA, a section evaluating progress made in the integration agenda concludes the discussion. This chapter is therefore about the state of play in African RTAs about which there is often little written about.

National commissioner of the South African police service v. southern african human rights litigation centre

Constitutional Court of South Africa ruling on duty of South African police to investigate alleged torture by Zimbabwean police in Zimbabwe against its citizens

Mapping African International Law

Mapping New Boundaries in African International Law, edited by Professor of Law and Associate dean at the Florida A & M college of Law Jeremy Levitt, is a welcome title. It continues and pushes in new directions the contributionist tradition of African international law. contributionists such as to Elias have long argued that Africa participated in the making of international law, contrary to Eurocentric accounts that designated Africa as backward, stateless and as such having played no role in the making of international law. As in the contributionist tradition, the premise of Mapping New Boundaries is that Africa has been and continues to be ‘an innovator and generator of human knowledge, institutions and rules’ (vii). It seeks to answer the question posed in the foreword: ‘What contributions have African States, institutions and peoples made to the development of international law?’ (vii). Levitt tells us that the volume’s ‘principal objective is to provide a forum for leading international lawyers and academicians with significant experience in and expertise on Africa to examine Africa’s contribution to the development (2011) 2(3) transnational Legal theory 429–441

Curtailing Ecosystem Exportation: Ecosystem Services As a Basis to Reconsider the Merits of Export-Driven Agriculture in Economies Highly Dependent on Agricultural Exports

This essay explores the impact of export-driven agricultural policies on the governance of natural capital. Many developing countries have adopted trade liberalization policies that encourage the intensive production of export commodities such as coffee, tea, flowers, and green beans. The primary focus of such policies is maximizing agricultural productivity and global competitiveness, which have been identified as critical factors in promoting economic growth and reducing poverty. When viewed from the perspective of ecosystem services, however, export-driven trade policies are problematic. Export-driven agricultural trade policies leave no incentive to preserve the natural capital upon which the very success of such trade policies is predicated. This essay argues that export-driven agricultural trade policies do not take into account their impact on ecosystem services. Yet, ecosystems provide critical services such as clean and ample water supplies, biodiversity, nutrient cycling, climate regulation, and carbon sequestration. These services are critical to the success of export driven agriculture. In fact, where ecosystem processes fail or are otherwise interrupted, man-made substitutes must be put in place at a substantial cost. In order for developing countries to maximize productivity, this essay argues that export-led trade policies must be sustainable and as such incorporate the need to sustain the productivity of natural capital.