1.1. Elias's assault on Eurocentricity in international law

Elias's work epitomizes one of the earliest critiques of international law's Eurocentricity. There are at least two aspects to it. First, Elias's work is unique in the manner in which it foregrounded an assertion of African identity against international law's claim to universality. Second, in so doing, his critique of international law's Eurocentricity undermined its central claim of universality as a constitutive foundation of the discipline. Elias was one of the first among African scholars of international law in exposing the Eurocentricity of international law and in advancing corrective measures. As I shall show below, Elias masterfully marshalled a variety of arguments that demonstrated that the international or universal was not merely constituted by Europeans in Europe, but also by Africans. Elias's book, Africa and the Development of International Law, is an eloquent and extensive exposition of this tradition.

The importance of asserting an African identity in the post-Second World War period was to uphold the dignity, identity, and self-determination of the African race as a race equal to other races, thereby hoping to end the persistent prejudice against Africans that laid a substantial basis for external slavery of Africans and colonial subjugation of Africa by European countries. Asserting the African identity was, however, not only an assault on stereotypes of African inferiority and backwardness,Footnote ⁹ but also on notions of Western and white supremacy as represented by colonial rule and other forms of Western subjugation and power over Africa.

Elias's work is therefore one of the most significant scholarly works of his period, making the best case for rejecting and, therefore, redefining categories such as ‘backward’, ‘uncivilized’, and ‘barbaric’ assigned to African communities in international legal history.Footnote ¹⁰ Therefore for African scholars such as Elias and Felix OkoyeFootnote ¹¹ a major purpose of rewriting the history of international law was to correct the historical record; to rescue Africans from their assigned place in history by glorifying a bygone past, where the African, much like the European, was a member of ancient kingdoms or political units equivalent to the ‘modern’ and ‘civilized’ Western states.Footnote ¹² It was in this sense that a scholar in the Elias tradition ‘challenged the myths of black inferiority, servitude, backwardness’.Footnote ¹³

By reinterpreting tropes of the African as uncivilized, barbaric, and backward, these African scholars realigned colonial categories, thereby producing a post-colonial international law that made the racist and imperial connotations of the colonial discourse speak with race-blind meanings. Elias was advancing a project of colour- and imperial blindness by advancing a claim of African ‘dignity and self-respect of a kind that they had not known for generations’.Footnote ¹⁴

Elias's restating of the colonial and imperial polarities of white/black, civilized/uncivilized in effect articulated a notion of an essentialized African community that shared ideals, some akin to those of Western societies, at precisely the moment he sought to transgress these polarities. In restating these polarities, Elias presupposed that African identity was shared and stable.Footnote ¹⁵ It in turn closed possibilities of seeing Africa as anything but a unitary whole. An important implication of the view of a shared and stable African identity is that it disguised the deep fractures along class, economic, gender, ethnic, and political lines.Footnote ¹⁶ These alternative and multiple frames of identity were disguised by the homogenizing effects of nationalism in the immediate post-colonial period which provided an essential backdrop for the emergence of the scholarly tradition to which Elias belonged.Footnote ¹⁷

1.2. Rewriting international legal history from an African perspective

Elias argued that, prior to the colonial conquest, Africa was and had always been a participant in the international community. In so doing, he rejected the period of colonization as the move from a people without history to global incorporation, or as a transitory epoch from fragmented alienation to collective international solidarity. According to Elias, ‘If we are to grasp something of the significance of Africa in current international affairs, we must begin with a brief account of the role which different parts of the so-called dark Continent played since recorded history in their internal as well as their external relations.’Footnote ¹⁸

In the first part of chapter 1 of his book Africa and the Development of International Law, entitled ‘Ancient and Pre-medieval Africa’, Elias uses historical accounts to demonstrate how the rulers of Carthage (present-day Tunisia) acquired an extensive empire in Africa. According to Elias the Carthaginian empire explicitly excluded Sicily, Sardinia, and southern Spain by treaty.Footnote ¹⁹ Elias uses this treaty, which he says excluded parts of Europe from the Carthaginian empire, to make two claims. First, Elias sought to underline the military power of Carthage as an African empire. Second, Elias also demonstrated that Africa had contact with Europe prior to colonial conquest through an international convention as was typical in relations between states. As a result, Elias was laying a basis for dispelling the image of Africa as a dark continent. In Elias's view,

In this view, history mistakenly and inadvertently reflects Africa's otherwise true participation within the international community in the pre-colonial period. Elias concludes exuberantly that his ‘outline should serve as an interesting background to the account now being given of how the Sahara may be said to have dominated the history of the north no less than it has done that of the south’.Footnote ²¹

Further on, Elias tells us of the ‘universality of trade in cloth and other luxuries (in beads for example) which together with the largely urban pattern of settlement distinguished the Guinea region from all other parts of Africa south of the “sudanic” belt’.Footnote ²² It is the interaction and contact of African trade at specific entry ports with Western traders that created universality in Elias's narrative. Hence, commerce between Africa and Europe is equated with universality. The quality of the interaction is not the subject of his focus. For example, it is significant that Elias only talks about the slave trade in relation to its abolition. Elias has little to say about how international law was implicated in the history of slavery in the eighteenth and nineteenth centuries. Elias also does not address or make any observations with regard to the ways in which images of backwardness and barbarism ascribed to Africans under international law justified colonial expropriation of African lands. After all, Elias's primary project was to dispel the falsity of these repugnant colonial categories rather than engage in all the purposes they serve.

The pre-colonial period in Elias's view offers ample evidence of the presence of ‘internationality’ or contact between Africa and Europe. The high degree of knowledge and practice of diplomatic law as then known in Europe and Asia within Africa is part of the historical evidence Elias uses.Footnote ²³ It is apparent that his criteria of what constitutes ‘international’ only applies to interaction between medieval African kingdoms and states and those of Europe and Asia. If this is so, then perhaps Elias is as much to blame as Eurocentric international legal jurists for understating the influence of Euro-African contact in the pre-colonial and colonial periods that took place within an exploitative and extractive relationship.Footnote ²⁴ In fact, the colonial period is not Elias's primary focus, as his interest lay in recovering the history of pre-colonial Euro-African commercial and diplomatic relations that can also be described as not having been entirely benign. In addition, since Elias traces internationalism to African contact with Europe or the Middle East, one can assume that this criterion of internationality does not extend to interactions among African ‘states’ in the pre-colonial period. So, in seeking to refute the undeniable Eurocentrism in international legal history, Elias underplayed intra-African contact as further evidence to undermine international legal history's tale of its origins.

The book then moves on to a familiar historical narrative, from the scramble for Africa to treaty-making to drawing up the boundaries and the assumption of sovereignty over Africa by the colonizing powers. Significantly, rather than examine the imperial nature of the treaties entered into between ‘African’ chiefs and European trading companies or powers supposedly ceding African land to these colonials, Elias uses the treaties as further evidence of the participation of African pre-colonial kingdoms in the international sphere. To Elias, therefore, it seems that these treaties were a reflection of the freedom of African chiefs to enter into relationships with European countries. This unfortunately is the logic that British colonial courts used to find that African communities had sovereignty to cede their land to colonial authorities at a time when these communities were under the complete control and jurisdiction of colonial powers.Footnote ²⁵ In fairness to Elias, one cannot argue that he was entirely unaware of the problematic origins of unequal treaties and the hesitation of some then newly independent states to be freed of obligations under such treaties. In other writings, Elias addressed the concerns of newly independent countries arising from unequal treaties.Footnote ²⁶

Yet it would not be in accurate to argue that Elias underemphasizes the role of international law in the colonial encounter, to the extent that his most important contributions did not examine its role in the economic and political subjugation of Africa.Footnote ²⁷ Instead, Elias presents international law as capable of addressing the inadvertencies of world history and the emerging problems of ‘modern’ times. As I will show more fully below, Elias sought to advance the claims of newly independent countries through international legal protections such as the Universal Declaration of Human Rights and the UN Charter. By contrast, there were African scholars of the period who examined how these colonial treaties between two unequal parties could have been coercive.Footnote ²⁸ Elias's main focus was to celebrate African participation within international law rather than enquire into the manner in which international law was implicated in establishing an institutional basis for European domination of Africa within the international political economy.

As noted above, Elias took a very sympathetic view of the ability of international law and institutions to resolve challenges of the ‘modern’ era. Like pragmatists and functionalists of the post-Second World War period, he saw international institutions as rising to the occasion to address the problems of the day. In fact, Elias was very much like a modern-day liberal international legal scholar with an idealism that favoured co-operation among states to achieve ‘greater peace and prosperity’, among other noble goals.Footnote ²⁹ On the question of succession to treaties entered into before independence, Elias informs us that a new principle against automatic succession

It is not entirely clear that Elias considers it a possibility that decolonization had not changed the structural inequalities between Africa and the West but was rather a continuation in many respects of the past. Unsurprisingly, therefore, Elias is happy to report that

Clearly, then, the possibility that international law could play a role in achieving what he thought needed reform was the focus of his work. He had hope that international law and institutions would change the problematic predicament of African countries that was a major theme of his work.

Like Elias, some Third World nationalist-leaning scholars have argued that although ‘states’ in the modern sense may be of European creation, there are political entities in Africa that antedate European states.Footnote ³² Thus whereas classical international lawyers such as Henry Wheaton,Footnote ³³ T. J. Lawrence,Footnote ³⁴ and James LorimerFootnote ³⁵ regarded international law as limited to the ‘civilized and Christian people of Europe or to those people of European origin’, African scholars of the immediate post-independence era only addressed the Christian or Western origins of international law by proclaiming its co-equivalence with Africa's participation in shaping it. The real essence of international law – its imperial mercantilist character – was therefore safely veiled by the myth of the simultaneous shaping of international law by Europe and Africa.Footnote ³⁶

This view of an Africa that shares the same attributes as Western societies is a simple inversion of colonial categories such as the view that African communities were simple tribes living in a state of nature. The effect of inverting these colonial categories, which at face value is a gallant nationalist rescue of the African from the colonial stereotypes, has the additional effect of producing a post-colonial image of the African that reproduced colonial categories shorn of their racist and imperial connotations.

There are in addition other significant consequences of the inversion of these racist and imperial categories produced in the process of purportedly rescuing African images from their inauspicious portrayal. The production of an essentialized African identity with social, political, and economic arrangements very similar to those of Western societies created myths of homogeneity among African people which were of course not true, as already noted above.Footnote ³⁷

Yet I recognize that it may well have been a nationalist response of engaging the colonial project in international law to borrow myths of sameness to justify the acquisition of autonomy from colonial rule. However, the attempt to reverse these colonial categories had adverse consequences. First, this view of sameness resulted in a simplistic homogenization of Africa and in the process resulted in understating the nature of its plurality. This kind of homogenizing nationalism was also used to legitimize the creation of one-party states in Africa in the post-colonial era. Post-colonial governments, relying on these myths of homogeneity, closed the spaces of politics by legislating for one-party states for the ostensible reason that there was little or no heterogeneity between Africans once their colonial oppressors had left the seats of power.Footnote ³⁸

Second, the myth of homogeneity produced by these writings has the effect of disguising the class and imperial alliances within African communities. In effect, this myth displaces the possibility of contestation by displacing differences among Africans. Such myths in effect served as an ideological tool of African ruling classes to maintain their hierarchy in their respective societies, communities, and countries, particularly in the immediate post-independence moment. This was certainly not the goal of the Elias project. However, because of the nationalist underpinnings of post-colonial scholarship of which Elias was a part, African leaders seeking to legitimate their cruel governance of the newly independent states latched on to it, since it helped them to emphasize unity and cohesion as a counterweight to the divide-and-rule tactics of colonial rulers.Footnote ³⁹

1.3. Sovereignty in rewriting international legal history

Elias's definition of sovereignty in international law is informed by his basic project of reclaiming, reconstructing, and rehabilitating the African past and making comparisons with its supposed European equivalent. Unsurprisingly, Elias first refers to sovereignty as the command of the sovereign that forms the basis of the unbroken narrative from the past into the present.Footnote ⁴⁰ Chapter 2 of Africa and the Development of International Law is a reconstruction of the African past.Footnote ⁴¹ Elias uses the anthropological research and work of Meyer Fortes and E. E. Evans-Pritchard to show that African states and kingdoms had sovereigns just like European states.Footnote ⁴²

Elias argues that the new political aggregations produced by colonialism ‘closed the historic modes of international intercourse of indigenous states and kingdoms. They were supplanted by the new external relations governable by international law.’Footnote ⁴³ To Elias, therefore, colonialism interrupted the manner in which African ‘states’ or kingdoms such as Carthage interacted with European states in the pre-colonial period. Having already discussed these African–European trade and diplomatic links at length in chapter 1, Elias's chapter 2 portrays colonialism as an abrupt interruption to Euro-African contact.

This interruption of African sovereignty, according to Elias, had consequences, since

This extract from Elias's book portrays Africa's sovereignty as being in abeyance during colonial rule. Independence restored the sovereignty of individual African states, while membership of the United Nations guaranteed their sovereign equality with all other states. It is for this reason that Elias is optimistic and confident about the ‘equal participation’ of African states in the United Nations. Elias writes,

The foregoing quotation excellently summarizes one of Elias's most enduring insights about modern international law. He emphasizes that the equal participation and contribution of newly independent states within the international community were the most significant achievements of formerly colonized countries. As Elias argued in his masterful work The United Nations Charter and the World Court, ‘universality rather than limited application. . . must now be the catchword in the expanding frontiers of international law under the United Nations charter’.Footnote ⁴⁵ Elias emphasized the ‘equal dignity and worth’ of all members of the United Nations and the need not only to abolish inequalities among them, but for both new and old states to co-operate with goodwill to achieve the goals of the United Nations.Footnote ⁴⁶ Thus in Elias we see a commitment to a view of sovereignty and human dignity informed by the UN Charter. This Elias calls ‘modern international law’.

Elias's double move of asserting equality of new and old states as well as emphasizing the role of international law in advancing reforms to meet the goals of the United Nations falls right within the broad tradition of post-Second World War international lawyers generally. For example, the late Louis Sohn, very much like Elias, argued that the ‘modern rule of international law concerning human rights. . . spread around the world, destroying idols to which humanity had paid obeisance for centuries. . . States have had to concede that individuals are no longer mere objects, mere pawns in the hands of States.’Footnote ⁴⁷ Sohn here is of course referring to the demise of sovereignty with the coming of age of the recognition of human rights. In this respect, Sohn and Elias, as well as many international legal scholars from every part of the world, are indistinguishable. The emergence of the United Nations and the modern international human rights treaties is classically treated as a watershed moment of transformation for international law.Footnote ⁴⁸ It is also the moment of the recognition of the right to self-determination of peoples that was soon followed by decolonization in Africa and Asia.Footnote ⁴⁹ In framing concerns of the newly independent countries in terms of human rights and the equality of nations embodied in the UN Charter as well as the right to self-determination, Elias was asserting the triumph of an international law that had overcome its legacy of excluding African participation within it.

Elias's project was therefore not that of exploring how the equality of nations in the United Nations era could play a role in disguising the unequal North–South relationships as other African international legal scholars of his time observed.Footnote ⁵⁰ Elias's primary concern was the rehabilitation of Africa within the international community. This project of correcting the image of Africa on the basis of its similarity with Western societies and its achievement of sovereignty falls short of unearthing the various ways in which the colonial apparatuses of international law were carried forward in the UN era.Footnote ⁵¹

Thus, at the end of chapter 2 of the book, which examines the close similarity between African law and international law, Elias states,

This is a brilliant move by Elias. Fully aware of the anthropological literature on African customary law showing how there was order without law,Footnote ⁵³ Elias juxtaposes this insight with similar insights about international law, such as Louis Henkin's observation that most states obey international law most of the time.Footnote ⁵⁴ Remarkably, even nineteenth-century jurists had argued that order more than anything else was the basis of obligation in international law.Footnote ⁵⁵

Elias's critique of sovereignty as the ‘true basis’ of the international legal order may have been surprising, since, as he was a jurist from a newly independent African country, it would have been assumed that he was not ready to jettison it just at the moment it had become a political reality for formerly colonized countries. Yet, as we have seen above, Elias was joining a tradition of international legal scholars who embraced sovereignty while at the same time not elevating it as a totem of autonomy which cannot be derogated from. Thus he saw sovereignty as ‘an inconvenient and unnecessary postulate introduced by the analytical jurists to confuse the nature of law with its political presuppositions’.Footnote ⁵⁶ According to Elias,

As a consequence, Elias argued that ‘sovereignty has given birth to the recurrent crisis of the modern nation-states’.Footnote ⁵⁸

Paradoxically, it may be surmised that Elias saw decolonization as representing the emancipation of international law, as much as he celebrated it for emancipating Africa from colonial rule.Footnote ⁵⁹ Such a view contrasts sharply with that of Antony Anghie's recent masterful study of the emergence of sovereignty in international law.Footnote ⁶⁰ According to Anghie, sovereignty did not emerge to maintain order among sovereigns as classical renditions have it. Rather, sovereignty emerged from the encounter between the incommensurable cultural differences of Europeans and non-European.Footnote ⁶¹ According to this view, sovereignty was forged as a doctrine to manage nations with different cultures and histories rather than to maintain order among sovereigns. Celebrating the use of the ability freely to enter into consensual treaties that comes with sovereignty thus reproduced the hierarchical relations between Europeans and non-Europeans that were predicated on the superiority of European ideas such as contract that were ostensibly replacing rather than replicating unequal colonial relations.Footnote ⁶² Anghie concludes that having emerged in a crucible of inequality, sovereignty carries within it both the agenda of decolonization as well as reinforcement of the historically unequal relations between European and non-European states.Footnote ⁶³

1.4. The agenda of international law in Elias's international legal tradition

The Elias tradition, in my opinion, holds sway in the study and teaching of, and research on international law in Africa.Footnote ⁶⁴ Elias wrote several other books in addition to his masterpiece – Africa and the Development of International Law. In one of them, New Horizons in International Law,Footnote ⁶⁵ Elias elaborates his belief that the foundation of the international legal order is the equal participation of states. Participation and community are two of the most dominant themes in the book's analytic framework. In another, he elaborates a rather traditional approach to the law of treaties.Footnote ⁶⁶

New Horizons in International Law proceeds from the proposition that ‘[t]o the discerning student of public international law today [presumably in or around 1980 when the book was published] there can be no doubt that certain new trends are visible on the horizon.’Footnote ⁶⁷ International law, in Elias's view, had expanded ‘not only in terms of its subject matter but also in terms of content and orientation’.Footnote ⁶⁸ There is a celebratory mood in the emergence of new areas such as ‘international constitutional law, law of international institutions, international economic law, law of space, human rights law and international humanitarian law’.Footnote ⁶⁹ In this respect Elias shared much in common with Western liberal scholars of his generation in his enthusiasm for reforming international law through the functional competencies of the United Nations and other post-Second World War international institutions. One such scholar with whom Elias has much in common is Wolfgang Friedman. Friedman's critique of sovereignty as standing in the way of using international law for reform is particularly similar to that of Elias.Footnote ⁷⁰

Elias's generally positive attitude towards international law is, however, tempered in precisely the same ways in which liberal scholars today temper their idealism with a sense of realism and pragmatism.Footnote ⁷¹ Elias, for example, remarks that

Elias therefore identifies attachment to sovereignty as the major limitation to the success of the expanded international law. He divides up the new and expanded international law into

The book then proceeds to describe at great length the resolutions, conventions, conferences, codes, cases, declarations, materials, struggles, and institutions involved in each period. Explains Elias,

International law is here represented as a giant snowball accumulating experience and resolving problems on its self-correcting path to perfection and completion. Asia and Africa, which initially had no ‘sufficient scale of trained manpower on the international plane’,Footnote ⁷⁵ had through forums such as the Asian-African Consultative Committee (founded in 1956) trained a group of Asians and Africans to participate in the elaboration of new norms and the reform of old ones.Footnote ⁷⁶ Chapter 2 of the book, entitled ‘The Contribution of Asia and Africa to the Contemporary Law of the Sea’, describes the individual contributions of African and Asian states to the formulation of standards and norms in various areas of international law. The chapter demonstrates his view of international lawmaking as a highly technical rather than a politicized subject.Footnote ⁷⁷ Elias's project is not so much an exploration of the history of, and reasons for disappointment with, the efforts seeking recognition of the right to development, the failure of the West to support the New International Economic Order (NIEO) and the Charter on Economic Rights and Duties of States (CERDS), the withdrawal of the United States from UNESCO after the Third World successfully supported the New International Information Order (NIIO), among other similar events. Rather, Elias sought ‘to emphasize the formulation of legal frameworks and mechanisms to complement the concepts of state participation and state sovereignty’.Footnote ⁷⁸ Certainly Elias is not oblivious to the imperative to address the challenges of development in poor countries. Like Wolfgang Friedman,Footnote ⁷⁹ Elias advocated international development aid, technical assistance, and other forms of international co-operation as ways of establishing and maintaining ‘a just and equitable economic order through the achievement of more rational and equitable international economic relations and structural changes in the world economy’.Footnote ⁸⁰

Elias was also in favour of an international legal regime that acts as a catalyst for development as contained in resolutions of the United Nations, declarations, and charters such as CERDS.Footnote ⁸¹ His belief in the efficacy of what he termed ‘law in development’ is exemplified in the manner in which, for example, he advances the elaboration of the rights and duties of states in these international legal instruments. A good example of his work in this respect is his incisive enumeration and evaluation of the rights and duties between states under the Charter on the Rights and Duties of States.Footnote ⁸²

Elias's commitment to the unity and coherence of international law leads him to advise against the development of regional or special chambers of the International Court of Justice (ICJ), since there is a ‘risk of different chambers in course of time laying down differing rules of international customary law or the interpretation of international conventions and codes’.Footnote ⁸³ After reviewing other proposals to reform the ICJ, Elias concludes, ‘[i]n sum, the unity of international law and its progressive development would suffer a set-back’.Footnote ⁸⁴ Elias's assertion here could well be a response to views among certain scholars and countries of the Third World at the time that international law should be seriously reconsidered by newly independent countries. For his part, Elias would remain under the wing of international law rather than reject it. After all, he argues,

This view is consistent with his very eloquent and extensive commentary on the reluctance of the United Kingdom and the United States to collaborate in ending apartheid in South Africa.Footnote ⁸⁶ In an extensive and incisive commentary of the failure of the United Kingdom under Margaret Thatcher to lead the Commonwealth club of nations to impose economic sanctions against South Africa for its continued policy of apartheid, Elias goes outside the UN framework in addition to questioning the efficacy of states in addressing the continuation of apartheid, which was in his view clearly inconsistent with international law. In this piece, Elias is at his best as a scholar/activist. He cites newspaper editorials from around the world extensively to demonstrate the lacklustre support for what he considers a most worthy cause. He does not press so much the illegality of apartheid, as one would have expected of a legal analysis of the subject, but rather the lack of empathy and political will and support as well as the cold-hearted calculations of the Thatcher administration in particular. This analysis of the inadequate attention given to apartheid is consistent with Elias's major contribution of asserting the dignity of the African person. Elias's concern about the racism of apartheid arose from the same motivation as for rewriting international legal history to assert a place for the African where the contribution of the African had been completely overlooked.

1.5. Some concluding remarks on Elias's international legal tradition

The Elias tradition is primarily predicated on a rejection of Western frames of analysis that understate African involvement and participation in the making of international law. Elias emphasized how Africa is and has been a co-equal player, participant, and shaper of international legal norms. Thus a major project of the Elias tradition is to displace the Eurocentric cultural or ethnocentric bias in international law. An important preoccupation of this scholarship is resisting the view that international law was a cultural achievement specific to west European countries, rather than one shared by African kingdoms. In the process of establishing these claims of similarity, these scholars failed, however, to examine some of the particular ways in which international law justified expropriation under claims of European superiority based on racial, cultural, and indigenous difference. Scholars adopting Elias's view may in effect have validated a kind of Africanity that does not seriously engage the colonial origins of international law. But I would think this is precisely what Elias was trying to displace. His revisionist legal historiography was to disallow any reading of international law as exclusively European or colonial. In this respect, he defended the unity and coherence of international law as a truly universal discipline and is a very different scholar from Mohammed Bedjaoui, who saw modern international law as the overcoming of a colonial tradition. By contrast, Elias looks back, in effect telling us that if you want to understand nineteenth-century international law, do not just look to what European states were doing, or take the writings of Wheaton or Lorimer to be definitive. Look to Africa, too.

The argumentative strategy employed by scholars such as Elias was aimed at establishing accommodation for an African cultural heritage as a part of the international civilization that contributes to international law. Thus, in this Elias tradition, scholars sought to displace the view embodied in international law that Africans were neither Christian nor civilized, and as such were not entitled to enjoy sovereignty over their land or their people. They sought to reverse the view in Eurocentric international law that Africa was backward and uncivilized and therefore never participated in the collective enterprise of building customary international law.

In the process of seeking to adapt international law to reflect African viewpoints and cultures, scholars like Elias invoked notions of liberal equality and assumed that these notions were grounded in neutral principles of general and, indeed, universal applicability. They therefore dismissed ‘old’ public international scholarship as being in violation of liberal equality.

Coming from societies whose identity, culture, and entire way of life had been suppressed as supposedly backward, uncivilized, and primitive, the commitment embodied in the decolonizing project of the Elias tradition was undoubtedly a major move forward from the racist images that had shaped international legal norms and practices. That at last the African was acknowledged as an equal to the white person cannot therefore be underestimated, as these scholars emphasized. This scholarship was in a large measure inspired by the work of liberal anthropologists, especially in England, in the 1940s and 1950s. This anthropological scholarship has sought to establish the specific ways in which the African's achievements were similar to those of the white person. Human rights norms and the four Geneva Conventions of 1949 are good examples of legal concepts shared between African customary law and public international law identified by scholars in this tradition, as we shall see shortly.

For Elias, the ‘intercourse between certain countries of Africa on the one hand, and those of Europe and Asia on the other. . . must have thrown up certain general principles of international behavior, certain universally accepted standards of international conduct between one state and another’.Footnote ⁸⁷ Elias therefore comes to the conclusion that

Another fascinating account of the similarity of African customary law and norms of international law is the analogy of the principles enshrined in the Geneva conventions and the ‘laws of armed conflict in pre-colonial Africa’. In an article that falls within the Elias tradition, E. Bello traces these similarities in minute detail.Footnote ⁸⁹ Ali A. Wafi, in remarkably similar article, argues through direct comparisons between sharia law and international human rights norms that the latter are consistent with the former.Footnote ⁹⁰ So in this respect Elias's work opened up or became part of a tradition of revisionist historiography of international lawyers from newly independent states.

The underlying assumption in this Elias-style analysis is the outside world's lack of proper knowledge and information that traditional African customary law systems were very similar to European ones. It was therefore a mistake to view African customary law as primitive. In other words, Elias warns against seeing international law from a distorted perspective that fails to incorporate all the components of its ‘universal character’. He proceeds from the view that all ‘legal traditions’ and ‘civilizations’ (such as the ‘African’ one) constitute a ‘civilization’ or ‘legal order’. In so doing, he understates the extent to which his claim of the universality of international law is in many respects aspirational in that customary international law norms survived almost intact on the independence of African and Asian states in the post-Second World War period.

Elias's project of revisionist historiography was also shared by the UN Training Research Programme (UNITAR). A seminar was organized in 1971 ‘to break new ground by bringing to light aspects of inter-state law which has existed in Africa prior to the scramble for colonial territories’.Footnote ⁹¹ The justification for the conference was stated as setting the record straight, since

Indeed, Elias wrote extensively on customary law in this tradition. As we saw above, his work on Africa's contribution to international law relied heavily on views of an African past developed by a particular school of African anthropologists sympathetic to an idyllic vision of the African past that had been erased by colonial rule. These anthropologists sought to establish that colonial rule that had been a short and unfortunate interlude in the otherwise long history of Africa. They demonstrated pre-colonial commerce and diplomatic contacts between Europe and African kingdoms. Elias argued that these links indicate that Africa was privy to the formulation of customary international law. After all, there were African kingdoms that had commercial and diplomatic links with Europe. International law, for Elias, was therefore not totally alien to Africa. Colonial rule was a short interlude that interfered with its development.

To arrive at an appropriate image of the African that could match, if not surpass, Western ‘standards’ of civilization, it was strategic for these scholars to deploy a variety of stylistic approaches. In deploying these approaches they borrowed from scholarly work sympathetic to their nationalist cause. However, in so doing, a few problems emerged: first, they overlooked the fact that the presumed African heritage or culture that they glorified had been Europeanized and changed to coincide with the goals of the colonial political economy; second, they ignored the fact that colonial rule was in large measure justified on the basis of African primitivity in the universal hierarchy of civilization; and, third, they regarded colonial rule as being a small interlude in Africa's historical development. In other words, Africa and Africans had survived colonial rule and any self-respecting African would strengthen his or her African identity rather than an imposed foreign one.

These scholars relied on a particular interpretation of African tradition as a stable category and showed that it was perhaps more egalitarian than and superior to Western liberal notions of equality. This notion of African egalitarianism was no different from that embodied in the notion of African socialism, which its exponents contrasted with analogous Western values which they argued were inferior.Footnote ⁹³ Kwame Nkrumah described an all-African socialist reconstruction in the following terms:

Thus the pursuit of the legitimacy of African participation within a system of nations after independence occurred simultaneously with a search for narratives celebrating the cultural and social achievements of Africa and Africans. These narratives, as told by academics like Elias, therefore became a limitation in critically engaging the repressive origins of colonial rule, with its colonial concepts such as terra nullius. The reason was that they underplayed the role that international law had played in legitimizing colonial rule. In effect, within the Elias tradition, stereotypes of Africans embodied within international law were simply inverted through the process of glorifying a mythical and glorious African past. In this literature the primitive images of African cultures created to justify colonial rule now became benign and harmless. By arguing that Africa had participated in the making of international law these scholars sought to see international law as a cultural achievement which Africa shared with the rest of the world.

These moves proceeded from the premise that international law could help in resolving the problems of newly independent African countries. In fact, this is a primary theme of the Elias tradition. Today, there is an unsurprising number of adherents to this view among those writing on international law in relation to Africa.Footnote ⁹⁵ Western scholars of international law have traditionally urged African governments to adopt liberal solutions such as embracing civil and political rights as an antidote to the perennial governance challenges.Footnote ⁹⁶ Such an approach presupposes that problems such as abuse of power could be addressed by simply embracing international human rights norms.Footnote ⁹⁷ Makau wa Mutua has referred to this simplistic view as abolitionism and argues that it fails to take into account the historical association of international law with colonial conquest and Western domination in Africa.Footnote ⁹⁸ The suspicion and circumspection with which some African scholars and states have treated international law are therefore explicable in part on this basis.

Elias's view of international law as a cultural achievement did not focus on its role in gaining and perpetuating positions of power for Europe and the attendant disadvantage to Africa this engendered. It is important to note that it could be argued with good reason that scholars who wrote in this tradition may very well have represented a middle class created by the colonial education system to increase the collaborative base of colonial rule as it neared its end. These scholars were regarded by the departing colonial powers as a responsible middle class that would guarantee the continuity of the colonial political economy after independence.Footnote ⁹⁹ That is why Frantz Fanon argued that ‘it would be easy to prove, or to win the admission that the black man is equal of the white. But my purpose is different. What I want to do is to help the black man free himself from the arsenal of complexes that has been developed by the colonial encounter’.Footnote ¹⁰⁰ Elias's revisionist historiography easily showed that blacks were not inferior to whites, but perhaps fell short of exposing the various ways in which colonialism had established its hegemony over non-European peoples. In addition, Elias's hope of using international law for reforms that favour non-European countries is, in a manner of speaking, using the tools that had helped erect colonialism and other structures of European subordination of non-European peoples. Perhaps, as Dianne Otto has argued, it is not advisable to rely on the very same ‘liberal concepts’ that had established Western domination over non-Western societies to restructure international relations in favour of developing societies.Footnote ¹⁰¹ Yet precisely because Fanon's recommendation of violence was not an option that Elias could have taken, his choice of using international law in his reformist agenda continues to be subscribed to even by critical international scholars of the present generation.Footnote ¹⁰²

2.1. Overview

Before ending this essay I want to briefly outline an alternative school of thought to the Elias tradition among African international scholars of the same time period as Elias. Indeed, since my review of Elias's early scholarly work has suggested that it was not centred on the structural and economic underpinnings of the place in the world of the newly independent African states, it is only apposite to provide a brief overview of those that took that path. While Elias identified sovereignty as one of the biggest challenges to reforming international law, other scholars of the immediate post-Second World War era in Africa focused on questions of power and wealth imbalances between African countries and the rest of the world as reasons to be sceptical of the possibilities for reform within or through international law.

A primary project of this group of alternative scholars was a critical examination of the imperial and colonial character of international law. They carried out a critique of the post-colonial state as well as of the international political economy. One of the scholars in this tradition captures the basic assumptions of this school as follows:

For this school, self determination through political independence was the onset of a new period of subjugation to the history of Europe through a statehood modelled on European lines. Hence, unlike in the Elias tradition, self-determination was not merely a moment to return Africa to a past of glory characterized by contact with Europe; rather it was a moment of betrayal. In this alternative tradition the analysis of early African contact with Europe laid emphasis on issues such as the slave trade and colonial rule, while in the Elias tradition commerce and diplomatic relations with non-African states were emphasized. For the alternative tradition, customary international law was therefore regarded not as having originated in the course of commercial and diplomatic links between Africa and Europe, but rather as a consequence of industrial capitalism in the West and the territorial ambitions of Western powers. For this alternative tradition, international law was regarded as a handmaiden of the expansion of the economic interests of colonizing countries.

In short, scholars in the tradition that I argue to be an alternative to the Elias approach identified the shortcomings of public international law to be fourfold. First, its geographic origins in Europe meant that international law embodied a value system exclusive to Europe and not shared by the outside world. Second, international law had mercantilist economic foundations. As a result scholars in the alternative tradition to Elias argued in favour of an egalitarian international economic order achieved not merely through the lawmaking process of the United Nations but also through a jettisoning of current rules that among other things would renounce if necessary foreign economic presence, subject foreign capital to domestic laws, abolish discriminatory trade practices in international economic relations, and ensure stable and fair prices for primary commodities. The Elias tradition's support of the New International Economic Order (NIEO) had much in common with the alternative school, although Elias's reformist agenda did not accommodate the outright rejection of rules of international economic law that were inimical to the interests of newly independent states of Africa and Asia. Third, scholars in the alternative tradition argued that the political goals of international law were imperialist; they supported self-determination and non-interference in all spheres of the internal affairs of newly independent countries. For them non-intervention extended beyond armed intervention to all forms of outside intervention whether political, cultural, social, or economic. Fourth, these scholars argued that international law had a Christian religious foundation.Footnote ¹⁰⁴

Unlike the Elias tradition, which regards independence as a means to restore Africa to its own history, the alternative tradition regarded independence as a moment of betrayal, since it continued the colonial relationship under the guise of political independence. More particularly, the World Bank and the International Monetary Fund were regarded as agencies for the preservation of dependence and colonialism. This school of thought expresses frustration at the failure of the nationalist struggle to transform colonial inequities between the North and the South and the failure of the now independent African states to correct post-colonial excesses and abuses by the North. The aspirations of this school of thought were strongly represented by the Non-Aligned Movement, the struggles to advance the cause of the Third World in the then better funded United Nations Conference on Trade and Development (UNCTAD), and the Group of 77.

2.2. On the history of the discipline

U. O. Umozurike's International Law and Colonialism in Africa Footnote ¹⁰⁵ is one of the best texts tracing the history of the discipline in this tradition. Unlike the Elias school, here emphasis is laid on the slave trade and colonialism as two of the foremost experiences of Africans as a result of contact with the Europeans. Umozurike contends that ‘international law was used to facilitate or acquiesce in the imposition of both afflictions [slave trade and colonialism]’.Footnote ¹⁰⁶ Umozurike then argues that while international law helped to establish the slave trade and colonialism, it was now being used in their eradication.Footnote ¹⁰⁷ The underlying thesis in Umozurike's account was that ‘an evil system [such as that embodied in international law]’ cannot ‘alter its essential nature’.Footnote ¹⁰⁸ Umozurike opined, however, that ‘in the present age of international law, self-determination remains an important factor in securing rights [that are] internationally recognized’.Footnote ¹⁰⁹ There is a frustration with the inequality of international relations in this tradition. Umozurike is therefore somewhat hopeful when he writes, ‘There is as yet no supra-national authority dispensing justice and enforcing rights and obligations among nations. We shall therefore indicate what the OAU [Organization of African Unity] can and should do to ensure the rights of African people.’Footnote ¹¹⁰

So whereas in the Elias tradition scholars argued without caution in favour of the full participation of African states in international organizations such as the United Nations, in the alternative tradition one can see some hesitation. Some scholars in the alternative tradition went even further and called for a withdrawal from the exploitative international relations that had characterized colonial relationships and were carried forward into the post-independence period. Rather than embrace the view that Africa had ‘everything to gain through contact with the Europeans’, this tradition condemns the international system as ‘inhuman and immoral’.Footnote ¹¹¹

Umozurike traces the history of the transatlantic trade in African slaves and concludes quite exaggeratedly that it was ‘carried out by Europeans exclusively’Footnote ¹¹² and that the profits that were accrued were so enormous as to form part of the foundation for the prosperity of the Western world. The certainty with which this assertion is made is of course subject to serious debate, especially given that African and Arab traders were similarly involved in the transatlantic slave trade. This view that attributes the slave trade exclusively to Europeans is, however, consistent with the alternative tradition's view of international law and its history. In this tradition, the role of international law is not merely that of regulating relations between states, thereby reducing frictions and promoting co-operation and development. Instead, international law in this tradition is regarded as the law that governed relations of the civilized and Christian Europe inter se and was therefore ‘the law of which the so called “primitive people” kn[e]w nothing and therefore [it could] not protect them, [and]. . .was used to promote the trade in Africans for the economic benefit of Europeans’.Footnote ¹¹³ European scholars such as Alexandrowicz embraced this view. For example, Alexandrowicz endorsed the Eurocentric view embodied in the Berlin Treaty of 1885 of European states having a duty to watch over and improve the conditions of native populations.Footnote ¹¹⁴ It was for this reason that the Berlin conference of European powers that parcelled out the African continent between them at the same time sought to ban what the participants termed the odious trade – slavery. For these colonial powers, free trade was an antidote to trade in slaves.Footnote ¹¹⁵ This contrasts sharply with Elias's effort to rewrite international legal history in order to reinscribe Africa in international law by undermining the self-serving paternalism of colonial powers. One thing to note here, perhaps, is the relationship between the process of colonization and the anti-slavery movement – as exemplified in the final act of the Berlin Conference of 1884–5.

In another take on the history of international law,Footnote ¹¹⁶ Umozurike divides it into ‘old’ and ‘new’.Footnote ¹¹⁷ He traces the history of ‘old’ international law to antiquity – to ancient Egypt, China, India, and Ghana and other ancient African kingdoms – very much like Elias in the first tradition. He acknowledges Grotius as one of the greatest European writers of international law. He uses Grotius's book, Mare Liberum, as an authority for the view that international law applied to all people and knew no religious or racial bounds.Footnote ¹¹⁸ Umozurike then traces the development of ‘old’ international law to the rise of European states in the nineteenth century. In his discussion of the Congress of Vienna (1815), Umozurike argues that a few of the European states ‘arrogated themselves to the circle of the civilized world’, and it was at this point that ‘the law of Christian states changed gradually to the law of civilized states through the use of military power. European expansion to all points of the world and new inventions increased their hegemony over the rest of the world’.Footnote ¹¹⁹

Umozurike then traces the proliferation of international law ‘in its branches – law of the sea, outer space, international institutions, human rights among other subjects’.Footnote ¹²⁰ Noting that a historical analysis of the development of international law reveals that it has been used to meet challenges and to promote and protect the interests of its active users, Umozurike calls on ‘states. . . [to]. . . consciously evolve a more relevant and just law that will protect the interests of all states and peoples’.Footnote ¹²¹

For Umozurike, the ‘new’ international law therefore emerged in the post-1960 period following decolonization and recognition of the ‘principle of peaceful co-existence in a world of differing cultures’ as ‘emphasized in the principles of sovereignty and consent’.Footnote ¹²² Although the views of the history of international law in this alternative tradition recognize the nature of international law as inimical in many respects to the interests of newly independent countries, the tradition nevertheless accepts international law in its new or post-1960 phase. In this respect, the alternative tradition, Elias, and indeed most liberal international lawyers are really on the same page. All of them accept in varying degrees the possibility of using the post-United Nations international law to address the problems of the newly independent states. This, too, is a familiar trope across almost all areas of law in post-independence Africa – the aspiration for reform, even when it is recognized that while reforming the very structures and doctrines that subjugated Africa under colonial rule the daunting challenges and the implications of international law have to be acknowledged. Thus while the Elias tradition espouses an integrationist agenda for reform in which newly independent countries are regarded not as outsiders but as part of the international community, the alternative tradition places hope in post-1960 international law to overcome its legacy of involvement in the enslavement and colonization of African peoples. Another point on which this alternative tradition has similarities with the Elias tradition is the strong emphasis on the rejection of racism within international law.Footnote ¹²³ Both traditions condemn racism in its colonial and post-colonial forms and call for its eradication.

2.3. On the role of sovereignty in the alternative tradition

While in the Elias tradition the denial of sovereignty on the part of Africans within colonial international law is considered somewhat inadvertent, in the alternative tradition the denial of sovereignty to Africans is regarded as a ‘major legal technique for the imposition of colonialism’.Footnote ¹²⁴ Umozurike argues, somewhat like Elias, that African peoples were in fact sovereign because they, like their Western counterparts, ‘observed certain norms of conduct in their external and internal relations. . . [but] did not possess sufficient military might to withstand the onslaught of the Europeans who were thus able to ignore or to deny their sovereignty’.Footnote ¹²⁵

In his analysis of the debates of European scholars who regarded Africa as terra nullius (which European states could freely occupy),Footnote ¹²⁶ Umozurike cites the separate opinion of Judge Ammon, who vigorously contested that idea, in the ICJ's decision in the first South West Africa case.Footnote ¹²⁷ Thus in the alternative tradition, international law cannot decide the internal legitimacy or otherwise of the government of a state. The internal legitimacy of a state is a matter for municipal law applicable to that state. Legitimacy under municipal law is different and not subject to international law.Footnote ¹²⁸ This assertion that internal legitimacy is a matter of internal self-rule served in an interesting way to legitimate African leaders who sought to ward off criticisms of their abusive governance by claiming that certain matters were within their exclusive domestic jurisdiction. Thus the role served by the non-intervention norm for the alternative tradition in post-independent Africa was analogical to the role played by cultural nationalism in the Elias tradition. In other words, as we saw above, nationalist assertions of a homogeneous African identity served post-independent leaders well, since they could argue that one-party rule was consistent with the homogeneity of African peoples. In the same way, post-independent African governments rejected notions of ‘limited sovereignty’, which in their view would have allowed other states to interfere with their internal affairs. Such interference was also, in their view, a violation of the right to self determination which allows ‘all people to freely determine their political status and freely pursue their economic, social and cultural development’.Footnote ¹²⁹

This streak of independence and self-determination was in part a strategy to exorcise and pre-empt the effects of what the alternative tradition referred to as neo-colonialism in Africa. Umozurike quoted President Nkrumah's definition of neo-colonialism: ‘The imperialists of today endeavor to achieve their ends not merely by military means, but by economic penetration, cultural assimilation, ideological domination, psychological infiltration, and subversive activities even to the point of inspiring and promoting assassination and strife.’Footnote ¹³⁰ Umozurike, like other scholars in this tradition, used the analytical framework of John HobsonFootnote ¹³¹ and LeninFootnote ¹³² in their examination of imperialism. Lenin argued that capitalist expansion in peripheral areas served the interests of private profit-seekers, while Hobson argued that surplus capital from industrialized economies of the late nineteenth and early twentieth centuries was economic imperialism.Footnote ¹³³ The study of imperialism in Africa coincides with theories of dependency and neo-colonialism according to which colonial possessions were used by colonizing economies not only as sources of cheap inputs like cotton, but also as captive markets for the resulting products with the consequence of stultifying the growth of native industries.Footnote ¹³⁴ While dependency theory has received critical attention,Footnote ¹³⁵ it is still widely accepted among some ‘progressive thinkers and activists in Africa and the development community in advanced capitalist countries, including academics and students of development’.Footnote ¹³⁶ While Umozurike, like most other scholars in this tradition, analyses the aspirations of the NIEO, there was a very clear streak of dependency thinking within this alternative tradition of scholarship in international law in Africa.Footnote ¹³⁷

2.4. The alternative tradition's international law agenda

The most vocal proponents of the alternative tradition in Africa and elsewhere called for fundamental reform of the international political economy as a condition for Third World participation. Some scholars in this tradition in fact called for a complete rejection of the international legal order.Footnote ¹³⁸ Mohammed Bedjaoui's Towards a New International Economic Order Footnote ¹³⁹ is perhaps the most well-known text that best exemplifies both the case for rejection of the international legal order and also the optimism of reformism in this alternative tradition, particularly in the climate of the 1970s and 1980s. Declared Bedjaoui, ‘[T]he embryonic new order constitutes a challenge to international law. International law is thus “concerned” about the economic forces now at work on a world scale.’Footnote ¹⁴⁰ He expressed disappointment that ‘a very simple debate. . . has become extremely confused. This is regrettable because the stakes are now higher than ever and involve the establishment of the new international economic order, which is to say the lives of billions of human beings.’Footnote ¹⁴¹

Among the factors introducing confusion into the debate on the NIEO, according to Bedjaoui, is the misguided ‘legal paganism’Footnote ¹⁴² that ‘law is immutable’.Footnote ¹⁴³ Bedjaoui claimed that the arguments of Western governments to the effect that the NIEO constituted a departure from the traditional and immutable conception of sovereignty ‘turn[ed] law into a new religion centered on itself’.Footnote ¹⁴⁴ Legal paganism, in Bedjaoui's view, perpetuates ‘the supremacy of developed states’,Footnote ¹⁴⁵ since it focuses on the form of the legal concept while ‘the social reality of developing countries [especially in meeting their ‘survival’ needs]Footnote ¹⁴⁶. . . is lost sight of’.Footnote ¹⁴⁷

This immutability therefore pre-empts international law's ‘ability to change in response to world economic changes. . . and. . . as a factor of change acting to promote a new international economic order’.Footnote ¹⁴⁸ In Bedjaoui's view, ‘international law does not reflect an accurate and balanced reflection of the international community and does not express that community's needs’.Footnote ¹⁴⁹ Unsurprisingly he therefore refers to legal paganism as an ‘idolatrous notion’.Footnote ¹⁵⁰

The NIEO was not the first time developed countries had frustrated the exercise of sovereignty by the developing countries. Bedjaoui revisited the 1973 energy crisis, ‘when third world oil producing countries decided to raise the nominal price of oil products’. Noting that the developed countries ‘“stigmatized” the developing countries' act as an intolerable “right of unilateral action”, a constant repudiation of agreements”, a lawless power of decision, and an “intoxication” with sovereignty’,Footnote ¹⁵¹ Bedjaoui argues that the accusation of wrongful exercise of sovereignty by developing countries when they had just acquired it presupposes that ‘there is. . . a principle in international law. . . which says that the economies of advanced industrial countries should have cheap energy and raw materials at their disposal, at prices fixed, moreover by themselves’.Footnote ¹⁵²

Proceeding from the view that international law ‘derives its obligatory character from the economic and political power it expresses’,Footnote ¹⁵³ Bedjaoui argued that international law is a ‘distorting mirror magnifying the facts of domination, if any, through its factitious nature and now excessive gap between it and reality’.Footnote ¹⁵⁴ He was not, however, dismissive of the view that international law offers hope for reform. Rather, he argued that ‘it is naive to think that international law can by itself become the cornerstone of change and development [as] it is equally wrong to say that international law can only represent the ratification and conservation of already established norms’.Footnote ¹⁵⁵ This statement evidenced the dilemma that confronted newly independent African countries that I mentioned at the outset of this essay. They could not simply embrace or reject international law – either choice would have been to throw the baby out with the bathwater. Instead, more creative responses were sought. In the process a kind of ‘schizophrenia’ in rejecting international law and then accepting it is apparent.Footnote ¹⁵⁶

Much of the optimism that accompanied the NIEO and other initiatives on the part of the Third World such as sovereignty over their natural resources and the New International Information Order subsequently waned, as many aspects of these initiatives fell through with the significant opposition of developed states. One of the significant victories of the NIEO was the acceptance in the General Agreement on Tariffs and Trade (GATT) that developing nations ought to be granted differential and more favourable treatment in trade agreements. However, special and differential treatment was not mandatory on the part of developed countries, since GATT did not require them to extend to developing countries privileged access to their markets on non-reciprocal terms.Footnote ¹⁵⁷ In any event, today special and differential treatment has undergone significant erosion even as a soft commitment in international trade.Footnote ¹⁵⁸