"Africa is rich." The woman who
told me that met me in a dream. She noted the wealth of
Africa--not only in coffee, cocoa, and tea, but also in gold and
cloth. Indeed Africa is resource rich not just in agricultural or
"exchange value" metals such as gold, silver, platinum or rocks
such as diamonds. Africa is also resource rich in petroleum,
cobalt, and another half dozen or so "strategic minerals" which
while not used in daily life are of vital importance for high
performance aircraft--to say nothing of cocoa, coffee, and many
other crops which are unavailable in the global north. "Africa is
rich," she said. She meant it (she was carrying her infant child
on her back using a sort of hammock "backpack" which I had never
seen in North America but which is popular in the African
communities in France). So maybe she was saying it to instill
pride in her child--who knows, she was a stranger and it was just
a dream. That dream has nagged at me since then. "Why is Africa
resource rich--yet beset with a declining growth rate?"
1
This paper will attempt to answer that question by explaining the
legal
mechanisms that both failed to present
stable governments for Africans and which have permitted
systemic--if not systematic--looting of Africa's resources. Africa
is rich--and cursed. Africa is all too often cursed with
irresponsible corrupt and illegitimate governments. Divided
nations living within artificial borders and subject to the
manipulations of their former colonial masters cannot provide
effective internal order, and
*189 thus, these nations become prey to
opportunists, demagogues, and exploiters. This reality is
exacerbated by the transformations in the international state
system. However, those transformations could also present the
opportunity for the re-conceptualization of legal structures to
help these nations escape from endemic poverty.
METHODOLOGICAL FOUNDATION
"The Master's Tools Will Never Dismantle the Master's House"
2
-Audré Lorde
To criticize the neo-colonial system and rebuild on better
foundations that will serve the people, we must understand that
the colonial and neo-colonial regimes are not inevitable and that
law is not inevitably just. International law is fundamentally
Western and Christian,
3
the law of civilized, (i.e. civil law) states.
4 This lens filters all thought on
international law. The filtering that it does favors some outcomes
and
excludes others. Because of this built-in
systemic bias, some argue that international law is in fact
illegitimate.
5
However, even if international law as a whole is illegitimate, it
can neither be ignored nor dismissed. It may be bad law, but it is
the only law that there is and it is the necessary starting point
for any transformation of its contents.
If we understand the fact that customary international law and
sovereignty are western concepts that were adopted by or imposed
on the rest of the world, we can then consider alternatives. The
fall of the Soviet bloc signals the end, in practice, of socialist
law as a systemic challenge to liberalism. Islamic Shari'yah
however still presents an alternative to liberalism. Islamic law
is in some ways quite fair, for example, it prohibits usury. In
other ways Islamic law is problematic, as it limits the role of
woman to a very specific function. That, incidentally, is arguably
still more humane than capitalism. Many of the roles capitalism
proposes for women are essentially prostitution-- whether obvious,
hidden or glamorised. Though the debate over the freedom to choose
a career as a sex worker versus the "oppression" of Islamic
marriage is beyond the scope of this paper; it is useful to point
out the tension to demonstrate how
*190 quickly many "unquestionable" (i.e.
unquestioned) presuppositions of individualistic capitalistic
thought can unravel. The point is that law should offer better
roles to persons other than "objects of sexual gratification" or
"child bearing units." Both capitalism and neo-feudalism
fall short of emancipating women for different
reasons. In different ways, their strengths and weaknesses are
often asymmetrical--and are not necessarily antithetical.
This illustrates how "progress" can turn out to be repression
6 and how
apparently attractive concepts like "human rights" can become a
trap used to manipulate and destabilize third world governments.
7 For example,
free public education in francophone Africa always came with the
explicit understanding that the gift of French culture and
civilization bore the duty to uphold and extend that culture
(which again is not universally or necessarily evil--every culture
has its good points). However the imposition (to put it bluntly),
transposition (to put it diplomatically), or transmission (to put
it nicely) of French art, philosophy, literature and table manners
often carried with it the erasure of national history and culture.
This erasure is not confined to the Third World but also occurs in
the First World
8--and
thus
shows either the disjunction of law and social practice or that
oppression is universal. This process of internalisation of the
dominant (and self contradictory) paradigm of Christian liberal
individualism is a wedge that splits national elites and
non-elites in the Third World and pits nation against nation even
within the First World (i.e. Latinos and Africans in America).
9
The exposure to the internal contradictions of the system leads
one to
recognize that the superstructure
(i.e. the intellectual justifications of the system) is only smoke
and mirrors. If you really want to understand the machinations of
power you must look at the forces of production (i.e. the material
base, the economic relations)
10 and not the superstructure that
rationalises it (Foucault). The instrumentalities of oppression
are ultimately material.
Good practice thus looks at material basics. However, when
discussing the super structural rationalizations of the
hierarchical
*191
imposition of force and the extraction of labour and raw materials
thereby, Third World approaches to international law can help in
the demystification. Like critical legal studies, TWAIL operates
through deconstruction (exposing rationalization as such and
demonstrating the material realities), criticising hierarchy
11 (the
method through which labour is extracted and ideas justified), and
raising alternative perspectives and possibilities.
12 One point
critical race theory seeks to expose is that thinking in terms of
"blacks" and "whites" injures both blacks and whites
13--though
materialist analysis must step in to say "yes, but the net result
of the racism is a net economic gain for whites"--and some persons
of colour.
14
In other words, neo-colonialism is profitable for some--and will
continue for that very reason, unless actively, systematically and
vigorously opposed with realistic critiques and alternatives.
TWAIL, like CLS, offers critiques. Does it offer
alternatives?
PROBLEMS FACING AFRICA
A. Problems within Africa
Having exposed the methodology used we can now ask, "What is the
problem?"
The principle problem facing Africa is poverty.
15 Africa is not alone in poverty;
in fact, about two-thirds of the world lives at or below
subsistence level.
16
However, African poverty is endemic, among the worst on the
planet, and has been steadily getting worse since decolonization.
17 The
wealth gap between the First World and Africa has widened and in
fact Africa has experienced a net loss of income (i.e. negative
growth rates).
18
African poverty is partly a function of over-indebtedness.
19 Debt
forces African states into "structural readjustment programs"
("SAPs"--currency, interest rate, and exchange rate mechanisms
which automatically "adjust"
*192 the countries macroeconomic indicators).
20 SAPs
effectively transfer wealth from Africa to the First World via
usury.
21
Perpetual debt, continuously refinanced, leads to currency
liquidity problems.
22
If an African state seeks to avoid this through inflating its
currency, the result is capital flight
23 leading to economic downturn
exacerbating the problem. Thus the Third World is directly
and indirectly dependent on western currency:
24 Directly,
through foreign investment when the currency is so devalued as to
become meaningless or is seen as risky, and indirectly, when the
local currency is "pegged" to a stable Western currency (a prudent
policy). This is unavoidable so long as those states remain
indebted and so long as their domestic currency is seen as
unstable. From these facts follows the logical conclusion that a
stable monetary policy is one key to curing African poverty.
Shortages of capital are of course already a problem even where
responsible monetary policies are in place because of political
instability and new and more attractive investment opportunities
in Eastern Europe.
However, if the immediate consequences of debt are currency
instability and capital flight, the ultimate consequences are
famine
25
and at the most extreme genocide.
26
The West likes to argue, sometimes contemptuously,
27 that third
world poverty is a function of political corruption.
28 That
argument ignores the fact that corruption serves the interest of
western governments and is an instrument of indirect control.
Corrupt governments are both easier to control through bribery, to
destabilize through revolution, and to eliminate through coup
d'état.
These general tendencies can be illustrated by specific examples.
Sudan is one of the poorest lands on earth--yet has oil.
29 However it
has
*193 also (and in part as a result) had a civil
war
30
leading to an instable business climate.
31 The result: restrictions on
capital and an imbalance of payments in the 1980s.
32 So while
Sudan could have done very well indeed,
33 it did not do as well as it
might have.
34
There are of course far worse cases: Rwanda, for example, which
suffered an orchestrated
35
and efficiently executed genocide.
36
What is true of Sudan and Rwanda specifically is true of other
African states generally: ethnic division of peoples within
artificially created colonial administrative boundaries can lead
to conflict. Almost every African internal conflict fits this
description. The vicious circle of unstable and corrupt
governments overseeing irresponsible monetary policy leading to
perpetual indebtedness, currency instability, and capital flight
is thus completed when those unstable and corrupt governments
collapse, which they do with sickening regularity, and all too
often in pools of blood--occasionally instigated, sometimes aided
and abetted but rarely regretted by western multinational
companies and former imperialist powers. These problems can only
be seriously addressed either by the establishment of stable
multinational states (unlikely but not impossible) or by redrawing
the borders of African states to reflect the national realities.
So, a stable monetary policy is a necessary but insufficient
condition to improvement.
B. Problems in Africa's Foreign Relations:
From NIEO to NWO to Globalization
The relationship of the first and third world since the
declaration of the NIEO in 1974 has been marked by great hope and
even greater disappointment.
37 This paper argues that this
relationship can be studied with reference to three distinct
phases: the so-called "New International Economic Order"
(1974-1989); the attempted New World Order (1990-1994); and
Globalization (1995-present).
38 African states' relations with
the first world also roughly parallel this distinction moving
through three phases of colonial domination (pre-NIEO),
confrontation with threats of
*194 nationalization (NIEO/NWO), and negotiation
(NWO/globalization).
39
None could have predicted in 1974, the spectacular, in fact near
total failure, of the third world to impose a "New International
Economic Order" on the West. Because this project was so
ambitious, and failed so spectacularly, yet covers nearly two
decades, we shall explore it in some depth.
The NIEO was declared during the first Arab oil embargo of 1974.
The cold war was in full swing, illusions of detente to the
contrary.
40
The Nixon regime had waged proxy wars in Chile, former Indochina,
and among the Arab neighbours of Israel.
41 Two of these proxy wars (Suez
1973 and Chile) were diabolically successful. Despite "rumours"
(probably true) of U.S. and Soviet fighter pilots engaging in
dogfights in the skies over the Sinai and
North
Vietnam, the world did not explode into a nuclear war.
42 However
the U.S. probably did not foresee the Arab oil boycott which drove
the world into its worst post-war recession, effectively ending
the constant growth and prosperity of the post war. Given the
collapse of the Nixon administration in a bloodless administrative
coup and the crippled U.S. economy (suffering from simultaneous
inflation and high unemployment) it is hardly surprising that the
third world thought it possible to wring concessions out of the
first.
This did not happen. In order to understand why we will now
examine the contents of the NIEO.
1. Contents of the NIEO
Philosophically, the NIEO argued that the world was a "global
village," i.e. one national society.
43 Because wealth and knowledge
are socially produced, they should be socially distributed.
44 NIEO, like
TWAIL, questions the northern model of development, but does
recognize that while some "progress" is in fact repression,
development is the "sine qua non . . . for existence."
45 Since the
NIEO does not reject the idea of progress it must be seen as a
modern and to some extent "western" idea (which raises the
interesting question: where does the North end and the
*195 West begin?).
Let us turn to the positive content of this philosophical
framework. The NIEO proposed a charter of economic rights and
duties.
46
It manifested a distrust of international law among the third
world states
47
for the
reasons outlined in our discussion
of TWAIL and entailed a rejection of classical capitalist theories
of trade.
48
NIEO acknowledged the systemic hypocrisy
49 of imperialism and presented a
coherent theoretical rejection of the West as an intellectual
paradigm.
50
The NIEO was declared in a resolution of the U.N. General
Assembly.
51
In addition to the charter of rights and duties it also contained
a programme of action.
52
Its goals went beyond merely alleviating poverty in an attempt to
change the material relations of production in order to better the
lot of persons in the third world.
53 Among the demands were:
increased exports from the third to the first world, transfers of
capital to the third world, transfers of technology to the third
world, a regime to control multinational corporations, as well as
provisions for increasing aid and to alter the international
monetary system.
54
Some have argued that these principles were not so radical since
they still presumed at least a mixed economy and were not outright
nationalization.
55
If presented as reparations such transfers would be more
defensible. However, without presenting at least a symbolic
exchange calling for unilateral wealth, transfer from the first to
the third world would be met with scepticism.
As to the applicability of NIEO, some argued NIEO to be binding
international law
56
presenting the argument either that the resolutions of the general
assembly are a source of law or reflect "instant" international
custom.
57 Within a classical Western
conception of international law this is of course nonsense. A
custom must be an accepted practice viewed as binding, and here
there was no practice. As to the argument that U.N. resolutions
are binding, while the U.N. is an international organization with
*196 legal personality, it is no state or a super
legislator. Resolutions of the U.N. are not binding but depend
upon enactment either by member states or by the Security Council.
It was of course exactly this egalitarian strand of the UN that
was called into question by the NIEO (and later TWAIL),
particularly in the extreme variants, which consciously reject
customary and conventional international law. Such radical
critiques failed in part because they did not offer serious
alternatives for elaborating legitimate international law.
As we shall see, the ultimate failure of the NIEO to realise its
ambitions shows that while the West regularly uses its economic
power to control the third world,
58 any new economic order will
arise through reform under the aegis of the Bretton Woods
system--at least for the foreseeable future.
59
2. The New World Order ("NWO")
The end of the cold war in 1989 also marked the functional end of
the NIEO. While NIEO literature does continue, the chances of
realising the ambitions of the NIEO are currently nil. This is not
to say that there was an immediate and
instant
abandon of any idealism. During the transition from cold war to
colder peace, the West sought repeatedly to impose normative
standards on the third world, which would serve the interests of
the third world. While the coalition arrayed against Iraq killed
many people, it was also nearly universal and thus in some sense
"legitimate." During the Clinton administration the U.S. attempted
(at increasing risk to its own soldiers) several "humanitarian
interventions" in Haiti, Liberia, and Somalia. However, the
warring factions in Somalia effectively prevented any help being
done. As a consequence of the experience of risking the lives of
its soldiers in pointless conflicts, the West has since drawn a
line and resolutely ignored wars, with the notable exception of
Yugoslavia, and there only because it is in Europe.
60 France
waited to intervene in Rwanda only after both sides were
exhausted. While it is true that "the west ditched Africa," it is
difficult to blame western governments for their inability to
impose peace by risking the lives of their own citizens to
forcibly separate warring peoples.
61
*197 3. Globalization
With the end of the hope for global coalitions and humanitarian
peacemaking (as opposed to peacekeeping) in the third world, the
world settled into the current phase of globalization focused
principally on economic expansion. The main foreign policy concern
of neo-colonialism today, despite rhetoric of "clash of
civilization" or "war on terrorism," is almost purely
commercial through opening up third world
markets and maintaining access to raw materials: the supposed "war
on terrorism" serves this end nicely. Economic expansion, is
accomplished through multilateral treaties administered by
un-elected bodies such as the World Trade Organization ("WTO").
Such negotiations, like most international negotiations, are
undemocratic and thus illegitimate;
62 NIEO scholars have recognized
that global negotiations are not always good and that bilateral
negotiations are sometimes better.
63 However, that presupposes the
objective of the international system to be the alleviation of
third world poverty when the systemic objective is in fact
efficient wealth extraction. Any residual idealism has already
served the purpose of a peaceful transition from cold war to
colder peace, and moreover been proven by experience in Somalia to
be naive, unrealistic, and in fact dangerous. Peacekeeping
missions may continue, but to expect any further attempts at
peacemaking would be unrealistic.
C. Problems Facing Not Only Africa but the Entire World: The
Decline of Sovereignty
The problem we have identified is the failure of the third world
to resist the depredation of its resources. This failure is most
clearly seen at the theoretical level in the collapse of the NIEO
following the end of the cold war. The theoretical failure is not,
however limited to Africa. The
transformations
in the idea of sovereignty have had consequences that affect not
only the third world, but also the first world yet which further
operate to the disadvantage of persons in the third world.
*198 1. Fragmentation
a. Fragmentation in the Practice of Sovereignty: the Death of the
Monopoly of the State as Sole International Legal Person
The classical international law definition of sovereignty
considers only states as international legal persons. However, the
theory is being undermined in practice by material realities. The
influence of multinational corporations, some of which have larger
budgets than third world countries, is not to be discounted.
64 Some have
even posed the question whether multinationals are or should be
subjects of jus gentium.
65
Not only the corporations, but also the mobility of the capital
that their shareholder's employ and deploy as well as the impetus
of that capital undermines the practice of sovereignty through
currency and interest rate destabilization.
66
If the nominally "sovereign" third world faces the "goliath" of
multinational companies, it also faces a swarm of "Davids":
non-governmental agencies ("NGOs"). Whether they pursue helpful or
harmful acts, NGOs undermine the claim of the state to the
monopoly of legitimate representation.
67 More problematic, arms
merchants and drug dealers simply ignore the boundaries of the
state.
68
While a refugee seeking a better life in the first
world is certainly no criminal, the instant
global mobility which permits migrants from Sri Lanka to emigrate
(legally or not) to France shows one more stress on the concept of
the "sovereign" (nation) state.
69
b. Fragmentation of the Idea of Sovereignty
The idea of the state as monopolist of representation and
legitimate violence is undermined in practice by these realities.
However, theoretical challenges to "the state" and "sovereignty"
also abound.
70
At the most fundamental level, representative individualistic
liberal theory undermines the state.
71 If the individual is primary,
why should the state be able to
*199 control him or her? Once the premise of the
primacy of the individual is admitted, the consequence of the
rebuttable presumption of the illegitimacy of state action
follows.
The idea of the sovereign as absolute master was also questioned
in the war and post-war treatment of Iraq, where we see the
nominally "sovereign" Iraqi state controlled in terms of imports,
exports, and airspace. Other breaches of state sovereignty crop up
in unlikely places: none would imagine the case of Agusto Pinochet
as becoming one more example of the invalidity of the old
presumption that "the sovereign can do no wrong."
72
Nonetheless, his arrest is evidence of exactly that proposition.
73
Yugoslavia/Kosovo is one more example of a nominal sovereign being
nothing more or less than the battlefield for transnational
interests (Islam, the West, pan-Slavism, and oil futures).
It is not impossible that the phenomena of
globalization will lead to a new jus gentium, as some scholars
have suggested.
74
This explains the relevance and interest of NIEO and TWAIL
scholarship--what would be the contours of the new law of nations?
TWAIL may not have the answers expected but it will at least pose
interesting questions.
One element of the new jus gentium would be the limitation of
sovereignty according to a principle of responsibility.
75 If
democracy were to be a principle of the new jus gentium such
democratic demands must be proportioned to economic development.
76 The new
law of nations proposed would thus become a constitutional system
of international law.
77
That is probably just unrealistic utopian fantasy. However the
decline of the Westphalian nation state explains why such fantasy
can be considered. We will now explore how the concept of the
state has been challenged through integration and disintegration.
c. Fragmentation of the Idea of the State
Just as the idea and practice of the state as hermetic atom is
most clearly failing, the state is also disintegrating via an
atomization into ever smaller entities. One method, which brings
about state decomposition, is privatisation. While the NIEO
neither foresaw nor proposed privatisation,
*200 such a principle could become a part of
international law and is certainly a trend of some twenty years
now. The tendency toward privatisation
78 affects
not only administrative functions of the state, but even reaches
to police functions.
79
Decomposition of the state into ever smaller entities also occurs
not only functionally but also structurally: the state is being
fragmented into different sub-state entities (regions and
peoples).
80
Thus the challenges facing African states are not only due to
their position as poor puppets of former colonial masters, but
also due to challenges facing the state and the international
state system as a whole.
2. Integration
At the same time as multiple converging phenomena result in the
fragmentation/atomization/decomposition of the state in both its
structure and functions (disintegration), the state is also
menaced with extinction through its subsumation into ever larger
transnational entities through the processes of globalisation
81 APEC, EU,
MERCOSUR, NAFTA are all examples of this tendency toward global
structures.
82
Thus the "micro" functions of the state--police, education, and
general welfare, are being broken down and removed to ever more
local entities while the "global" aspects of the state-- trade and
defence--are handled by ever larger (and ever less democratic)
transnational entities (including transnational corporations). For
these reasons it is not only the third world that is facing
enormous stress--the first world is also undergoing wholesale
transformation of the structure of its governance.
3. Transformation
That raises the question of the possibilities of such
transformation.
83
Are the best of all worlds now possible? Inter-imperialist
rivalries, a characteristic of Neo-colonialism, are much less
strident than in previous eras--but only in the first world. This
is partly because the objective of continental and global trading
regimes was to divorce territorium and economic strength. The
multinationalization of the world, with global
*201 companies operating in a global marketplace
under first continental, and now more recently global rules, was
specifically intended to avoid imperialist arms-races and
bloodbaths of which the two world wars are only the most obvious
examples. To the extent that such divorce has helped keep the
peace one must give the devil his due--rather than killing
Europeans and Euro-Americans, neo-colonialism now limits its
killing to third world persons. Thus, the transformationist thesis
argues that "the best of possible worlds is possible"--and some
transformation and humanization of the world order have indeed
occurred.
84
However the transformationist thesis appears to make the mistake
of considering only the first world. If we consider the third
world and its interaction with first world states we witness all
the paradigms of realpolitik: arms races, ethnic rivalry, and the
question of market share.
85
The transformationist thesis must thus be seen as a special theory
applicable only in the first world and not a general theory--as
the failure of
humanitarian
peacemaking in Somalia demonstrates.
4. Realism
Looking at the world through a global perspective, which considers
not only the first world but also the third world, we must take a
realist perspective. The state is resilient, like a cockroach;
even atomic war does not kill it. While many African states are at
best only nominally sovereign, the state's claim Ã
priori à the individual, i.e. its superior resources
and capacity to marshal will and to invoke legitimacy, explains
why the state will survive even in nominal sovereign entities that
have little historical reality and even less cultural reality.
THE INTERNATIONAL SYSTEM'S EVOLUTION
The history of the third world is not all blood.
We can of course find many failed nation states: Somalia, Liberia,
Rwanda, Bosnia, Cambodia, Chechnya, and East Timor are all
examples--sometimes disasters--that demonstrate the weakness of
nominally sovereign states in the face of transnational ethnic and
economic concerns.
86
There are, however, some success stories in Africa: Mauritius,
Botswana, and Kenya, among others.
87 Thus, a methodological research
*202 point which should be developed would be a
comparison of these regimes to determine why the failures failed,
how to prevent such failure, why the success stories
succeeded, and how to repeat such success.
This author's hypothesis is that there would be a direct positive
correlation between ethnic unity, responsible government, and
stable monetary policy with economic success, and an equally
strong but negative correlation of multi-ethnicity, corruption and
unstable monetary and capital policy in the failures.
D. Inability of International Law as Currently Conceptualized to
Solve These Problems
The currently developing rules of international law are in fact
just as incoherent as the liberal-individualist-Christian ideology
from which they evolved. But, not for the same reasons: the
contradictions in international law today are not the product of
an incoherent ideology leading either to theoretical impasse
("paralysis"), or confusion ("spasmophilia"). Rather they are
conflicts in the positive law of nations and the result of
differing views of what the rules should be. The resolution of
these antinomies will determine the shape of the new jus gentium.
The fact that legal contradiction is so fundamental as to pose
antinomian challenges to the positive law does help explain why
advocates of the NIEO thought it possible to enforce a new norm of
international responsibility of the first world to the third
world. We shall now describe these antinomies in order to prove
these propositions and also to show the possible scope of the
future jus gentium.
One current principle of international law
is the principle of non-intervention.
88 This principle is immediately
contradicted however by the opposing principle, which is more
recent in time, of "humanitarian intervention"
89 and the related (possibly
independent) concept of droit de l'ingérance.
90 No such norm existed one
hundred or even fifty years ago. Where did it come from and to
what extent is it valid? Is the principle of "humanitarian
intervention" merely an exception to the rule of non-intervention?
And if so why is it not an independent prior principle? And
*203 how is it justified with the classical view
of the state as sovereign autonomous and independent?
A second confused principle of international law is the principle
of the self-determination of peoples.
91 This principle is also
relatively recent, dating only from the end of the First World
War, when United States President Woodrow Wilson declared it as
one of his "14 points." However, the question arises: what
constitutes the people who enjoy the right of self-determination?
92 To be
consistent, this author believes that such a right is the right of
a people, i.e. a coherent ethnic and linguistic group. Under such
a rule however, Waloons would have the right to their own
state--as would the Welsh.
93
For exactly this reason the right was interpreted to indicate that
it would only inhere in former colonized states and not
ethno-linguistic nations.
94
The integrity of the colonial borders would be
respected.
The result is that the colonial borders--which have no
correspondence at all to the various ethnic groups in Africa--have
been "frozen in time." Eritrea is the only example of a successful
African secession (though Tanzania did fuse) with which the author
is familiar--and even Eritrea was a former colony (Italian
Somaliland) and is made of not an ethnic monolith. Thus, was the
"right of national self determination" transformed from a
potentially liberating force to merely one more weapon in the
arsenal of tyranny. It is no longer a freedom but merely the right
to maintain order.
95
Any radical and fundamental solution or alternative to the current
international law would come about through recognizing the reality
that a people is a common ethno-linguistic unit and the proper
basis of sovereignty. Such would however involve redrawing many
borders and so is unlikely barring radical systemic economic
failure within the first world states.
The failure of the question of national self-determination to be
properly based on the right of a people, i.e. an ethno-linguistic
continuity, as the proper basis of sovereignty does illustrate one
of the important points of the western conception of international
law. At least as currently conceived, the primary objective of
international law, positively, is to maintain order and not to
impose justice. Any radical critique must normatively call this
principle into question. Given the admittedly Hobbesian view that
"order" is a precondition to "justice," we can at least see some
hope in the fact that principles of
justice
do become systemic
*204 concerns of systems which are both orderly
and prosperous (which are then beset with the problem of remedying
the irremediable past injustices which are the very basis of their
prosperity).
III. RESPONSES
If we have correctly perceived the problems facing Africa, the
question now is how can they be solved? Some authors still speak
of "nation building."
96
Such a hope is however misplaced. First, no state in Africa is
founded on a unity of territory and people. Thus, all states in
Africa are potentially divisible and cannot become national states
but at best multinational states. Unfortunately, the hope that the
reality of interdependence
97
(and dependency on luxuries--coffee, tea, cocoa--is not the same
as dependency on primary necessities--finished goods, wheat, soy,
corn, beef . . .) will lead to an "enlightened self interest" that
recognizes, for example, that refugees in the first world are the
consequence of poverty in the third world are almost as badly
founded.
98
Even making the point that poverty is the seed of Marxism will not
motivate individual capitalists, but only--and only possibly--the
governments of capitalist states.
99 It is true that neoliberalism
is unrealistic in countries with no infrastructure, and thus hopes
to export capitalism fully grown to Africa are ludicrous but, the
logic of neo-liberalism--greed--indicates that none will
seek
to better Africa except for Africans themselves.
100
It is for this reason that the NIEO was overly optimistic. It is
not the case that we can expect enlightened self-interest. However
we can and should plan upon the presumption that in capitalist
states persons will act on and probably only on, their immediate
self interest. Thus the idea of the "solidarity" of the south,
while a wonderful ideal and a pleasant hope cannot be counted on
to help African's escape from the cycle of debt and the oppression
that it entails.
101
What of international connections? Will foreign powers help
Africa? Hardly likely, seeing as it is they who have lent the
golden chain of debt and enjoy the interest that it bears. But if
first world powers are unlikely to offer real change there is some
hope for coalition politics among the third
*205 world to achieve the goal of stability, peace
and prosperity. So while Lomé has not helped
102--because
it is part of a seamless web of imperialist history
103--it
may still serve as an umbrella for other regional groupings.
104
Some analysts of the failure of the NIEO argue that the NIEO
failed because of divisions in the south leading to strategic
paralysis.
105
That analysis however looks to transnational or even global
institutions and arrangements as key to determining the future of
African states.
106
Were that hypothesis correct then there would be no success
stories. Restoring
domestic
order within individual third world countries is the task of those
countries individually. While these strategic difficulties will
limit the ability of the South to formulate a coherent "NIEO-II,"
they do not need to prevent individual states in the South from
imposing order needed for development. Thus our criticism of
international law for placing order before justice must be
tempered: every legal system must impose order before it can do
justice. But a legal system that imposes order yet fails to do
justice cannot be tolerated. All too often western "solutions" to
the third world problems impose order--while doing
injustice--according to the logic of profit.
CONCLUSION
This paper has attempted to show that a correct appreciation of
the plight of third world states generally is dependant upon an
understanding of the historical presumptions inherent in
international law and also upon an appreciation of the challenges
of the transformation of the state through disintegration into
subnational and privatised entities which occurs simultaneously
with an integration of macro state functions into transnational
entities. We have presented the position that the plight of third
world states is not necessarily irremediable, but that
implementing remedies will be no easy matter. We have argued that
such remediation will be contingent upon responsible and realistic
economic policies which must be implemented by
governments
that are themselves responsible and as free of corruption as
possible. The transformations of the international system, which
exacerbate challenges to the third world, could even present
opportunities for such remediation. While the NIEO has failed and
the NWO has long been emptied of whatever idealism it may have
had, the
*206 possibility nevertheless exists for
reconceptualization of the international order due to certain
contradictions which exist in that order and which are a result of
economic and technical changes. While it would be too much to
expect those changes to allow Africans to draw new borders which
reflect actual ethno-linguistic realities, it is entirely
conceivable that multinational states governed by the rule of law
could be created which would also be associated via regional
accords and conventions to address the problems of economic
development. Whether this will happen is not however
predetermined. If it occurs it will be due to Africans working
together autarchically. One lesson of the failure of NIEO and
humanitarian peace making: Africa must depend on itself to create
any solution to its problems.