II. Africa in the Frame of Its Alleged “Lack and Becoming”

The rampant talk, largely in uncomplimentary tones, about the “Dark Continent”Footnote ⁴ or the “Hopeless Continent”Footnote ⁵ must alert one to the widespread perception of the African continent as a geo-polity without all that much to offer, a significant history of achievement included. More specifically, Tiyambe Zeleza has noted the way in which Africa tends to be spoken and written about in terms of what it “lacks” and what it should then “become.”Footnote ⁶ The tendency among all-too-many commentaries has thus been to imagine this vast continent (especially during its very lengthy pre-colonial epoch) as largely or significantly empty of notable attainments. This constructed sense of Africa as largely a void was both physical and figurative. It also applied to the alleged near-absence of worthwhile state formations.

The underlying tendency to imagine the African continent (especially pre-colonial Africa) as some kind of void poses a significant conceptual challenge to, and does have important implications for, for any systematic effort to recover pre-colonial African international legal history. For example, scholars interested in this question must as a result do more work than they would ordinarily have to in order to actively displace from their own minds and praxis the fact and effects of this imaginary of substantial absence and emptiness on the continent. To illustrate briefly, if (as the mainstream long maintained) pre-colonial Africa almost entirely lacked states, and it is states that by and large produce international law, could any significant body of international legal thought and praxis have been produced in that era?

III. Full and Partial Eclipses

A similar methodological issue, constraint, and challenge that confronts the study of pre-colonial African international legal history are the eclipses (full and partial) that frame and shape our knowledges of, and perspectives on, Africa. Other than complete erasure (which did occur in some respects), colonial rule and resistance thereto on the African continent produced both general and specific eclipses of human agency, epistemes, ideas, political systems, and attainments—albeit with variation in extent. The colonial moon too often eclipsed the African sun, but a shine remained visible around the edges of the ensuing spectacle.

One important methodological implication of this reality for historians of pre-colonial African international law is that they must begin their inquiries by finding ways to de-eclipse African agency, epistemes, ideas, political systems, and attainments, so as to see them much more clearly. For the most part, we do not now see these clearly enough. In the study of Africa, myth has only just recently turned to haze and maze. To illustrate with the issue of one key way in which pre-colonial African statehood was assessed, since pyramids appeared to signal complex political formations in the minds of all-too-many mainstream observers of Africa, what then are the implications of the much lesser known fact that there are many more pyramids in the Sudan than in Egypt, or that some step pyramids were also found in Nsude, in South Eastern Nigeria?Footnote ⁷

One does not have to believe that these engineering, metal working, and artistic attainments necessarily signal a higher civilization or the presence of complex society, polities, or states (of the kind that can in interaction with each other produce meaningful international legal history) to understand the key point being made here. This is that the full and partial eclipses that frame and shape our knowledges of, and perspectives on, the African continent need to be somehow overcome for us to better access and understand the immense wealth of African knowledge and history from within which that continent’s pre-colonial international legal history can be much more fully recovered.

IV. The Problem of the Western Super Gaze and the Challenge of De-universality

TWAIL scholars have long identified and critiqued the disproportionately constitutive role that the ipse dixit or gaze of Europeans and other WesternersFootnote ⁸ tends to have on the perceived legitimacy or otherwise of Third World statehood, governance, and practices; and pointed to its many ill effects.Footnote ⁹ A similar argument can be made with respect to pre-colonial international legal history. In this regard, the argument is that the orientation of the “Western super gaze” has tended to serve as the key element among others that determined the legitimacy or otherwise of an African polity’s claim to statehood. And because it is states that have largely made international law, in this way does this Western super gaze also tend to determine or significantly shape what counts as international legal history and what does not. And so, whatever the Western eye has not seen as a state or as international legal history, or was not primed to see as such, or regarded with studied ignorance as not qualified to be admitted to either category, has historically not tended to enjoy that status in the living world of an international society that has largely been imposed on most of the world by Western powers.

This is a key, and even threshold, methodological issue and challenge that any systematic study of African international legal history must grapple with. For, if this methodological (and epistemic) status quo—this way of identifying and legitimizing states—is retained or not completely rejected, a lot of Africa’s pre-colonial international legal history would be irrecoverable. The Western super gaze must therefore be de-centered and de-universalized if the nature, extent, character, and orientation of pre-colonial African international legal history is to become much more fully understood. To do so, we must be prepared to “see” and account for states and international legal history that do not look exactly like or even substantially like their European counterparts but which served a similar function in pre-colonial Africa. Therein lies the call to, and promise of, de-universality in pre-colonial African international legal historiography (albeit in this narrow sense).

V. Navigating the Tension Between “Contributionism” and “The Critical Tradition”

In our view, an important challenge that the study of international law thought and praxis in Africa (including of its pre-colonial international legal history) must navigate is the tension between mere “contributionism” and the “critical tradition.”Footnote ¹⁰ Here, our analysis is guided by James Gathii’s thesis that, historically speaking, Africa should be viewed as having offered two approaches to international law: the “contributionist” and “critical” approaches.Footnote ¹¹ In Gathii’s construct, contributionism is the approach that is centered in, and largely dominated by, the belief in Africa as “an innovator and generator” of international norms that look like European one and/or the view that some international norms derive their origins from diverse, including African, traditions.Footnote ¹²

The critical tradition, on the other hand, focuses on the structural arrangements and imbalances in international society that underpin, frame, and condition Africa’s experience(s) of relative disadvantage in global affairs (including in the international legal sphere).Footnote ¹³ Among other things, those who adhere to the critical perspective focus much more than others on these problematic structural arrangements and imbalances and stress the broad current of historic resistance to the dominant forms of internationalist thought and praxis on the African continent.

In our view, in the context of studying Africa’s pre-colonial international legal history, we might require a “third way” of some kind that involves both an element of contributionism and a healthy dose of the critical tradition. However, given the nature of Africa’s historical experience with coloniality (including its distortions, erasures, eclipses, and epistemic subjugation), more of the critical tradition is needed at this point than the former. Along these lines, beyond mere contributionism, Africans need to also question the very referents and metrics against which we have long been asked to assess our indigenous pre-colonial political formations in order for them to qualify as states in the eyes of Europeans and the inter-European law that was unilaterally and coercively applied to the continent).

I. Three Approaches to Africa’s Legal Past

Contributionist jurists such as the eminent Nigerian jurist Taslim Olawale Elias argue that international law is not a uniquely European invention;Footnote ⁵ African and other non-Western diplomatic practices, regulation of war, and treaty-making traditions reflect universal principles. The task, therefore, is to recover those traditions and integrate them into the doctrine of sources, for example through the recognition of pre-colonial conceptions of territorial authority as early, regional custom. Contributionists tend to stress contributions of African and other non-Western traditions to contemporary international law in two ways. First, they identify functional analogies: rules of war among Yoruba states, the practice of diplomatic immunities by Akan rulers, treaty-making by Ancient Egypt. Second, they highlight African participation in the development of the contemporary order, notably through diplomatic relations and treaty-making with Western powers. Contributionists therefore urge courts to recognize precolonial territorial authority as supporting contemporary sovereignty and to treat Afro-European treaties as binding instruments capable of generating contemporary rights.

Critical scholars, often associated with post-1990 evolutions in Third World Approaches to International Law (TWAIL), have far less sanguine view of historical sources.Footnote ⁶ While critical writers accept that Africa has a rich diplomatic past, they deny that simply inserting it into the existing canon will cure international law’s colonial DNA. For them, the central problem is structural: the discipline’s foundational categories—sovereignty, title, terra nullius—evolved to facilitate European expansion and racial hierarchy. Relabeling African practices as “custom” changes little if the system’s core logic remains untouched. Critical scholars thus prioritize remedies for colonial harm—reparations, redistribution, stronger self-determination—over historical inclusion. They are skeptical of both Indigenous titles and colonial treaties when those devices threaten to entrench old inequities.

Contextualists try to steer between celebratory inclusion and wholesale rejection of the past.Footnote ⁷ They approach international law not as a product of universal functional equivalents but rather as resulting from specific localized interactions between polities and their representatives. They assess each inter-polity relationship on its own terms based on a conception of law grounded in inter-subjectivity, i.e., those norms recognized by the relevant parties as governing their relations. What distinguishes them is thus a methodological insistence that legal concepts only make sense when placed in their specific social, political, and linguistic settings. Rather than asking whether an eighteenth-century treaty is “really” a modern treaty, contextualists ask how contemporaries understood that document, what functions it served, and how those understandings changed over time.

II. Western Sahara and Its Legacies

These three approaches came to a head during the proceedings which led to the ICJ’s 1975 Western Sahara advisory opinion.Footnote ⁸ From an African perspective, three different positions could be identified that continue to inform debates over international law in Africa today.

Morocco argued that, to determine claims to sovereignty in Western Sahara, the ICJ should consider historical conceptions of territorial rights in the region. For Morocco, then, its claims to Western Sahara should not be judged according to contemporary standards of sovereignty, but rather according to the historical standards prevailing in northwestern Africa at the time. According to those standards, the religious and political allegiance (bay’a) sworn by Saharan peoples to the Sultan of Morrocco constituted legal ties sufficient to claim a contemporary right of sovereignty.

Morocco sought to transform the religious and political allegiance of Saharan peoples into a right to sovereignty that extinguished the international legal personality of Saharan peoples and prevented them from concluding valid agreement with Western powers. To support this view, Morocco appeared to endorse a conception of recognition which would distinguish between powerful non-Western imperial states and weaker vassal or client polities.

Mauritania broadly shared Morocco’s embrace of precolonial regional norms. However, unlike Morocco, Mauritania claimed that these norms supported the recognition of Saharan people’s international legal personality through a proto-nationalist “Mauritanian entity.” The Mauritanian entity was grounded not in the political unity of Saharan peoples, but rather in their common cultural, religious and social practices and institutions. Mauritania further supported its claim to the international legal personality of Saharan peoples by pointing to the consistent practice of treaty-making between Western powers and Saharan leaders.

The opposition between the Mauritanian and Moroccan views highlighted a fundamental tension within pluralist conceptions of the history of international law. How do we translate unequal pre-modern relationships between polities into the lexicon of contemporary international law?

Algeria contended that whatever historical ties once existed could not override the contemporary peremptory right of the Sahrawi people to choose their destiny.Footnote ⁹ Pre-colonial allegiances, colonial treaties, and dynastic claims were all subordinate to contemporary international law’s self-determination norm. It was equally skeptical of efforts to instrumentalize the “agency” of Saharan peoples by grounding Western claims to sovereignty on agreements between Western powers and Saharan leaders. For Algeria colonization should be regarded as a unilateral rather than a consensual process. Still, Algeria accepted the colonial-era boundaries as a baseline from which the General Assembly could operate in determining the process of decolonization. Thus, Algeria accepted legally entrenching colonial boundaries all the while rejecting the legitimation of these borders by reference to agreements with non-Western peoples purportedly establishing their consent to Western imperial expansion.

The Algerian position is most aligned with the critical approach to the history of international law. It is deeply skeptical to claims to non-Western agency and stresses the foundational role of colonialism in the international legal order. While accepting this foundational role—Algeria and critical scholars refuse to legitimize it and instead expose its violent and non-consensual nature. Instead, they stress the possibility of reparation of the harm of colonialism through the process of decolonization. Questions then arise about the capacity of decolonization under international law to provide for full reparation beyond the strict limits of colonial-era boundaries. In other words, to what degree is the colonial era map itself a limit on the possibility of reparation or of decolonization?

These three views have played out in the individual opinions of the African judges on the International Court of Justice.

In Cameroon v. Nigeria,Footnote ¹⁰ the ICJ considered whether an 1884 treaty of protection between Great Britain and the leaders of Old Calabar in the Niger Delta region constituted a valid treaty under international law and its legal effects. The Court recognized the validity and continued legal consequences of the 1884 treaty—but questioned the legal personality of Old Calabar insisting it was not a state and suggesting it was thus incapable of wielding sovereignty. In dissent, Judge Koroma and Judge ad hoc Ajibola defended a combined contributionist and contextualist approach that not only recognized the value of historical transregional treaties as titles to territory but also acknowledged non-Western conceptions of international law and understandings of such agreements. In contrast, Judge Raymond Ranjeva and Judge ad hoc Kéba Mbaye appeared to align themselves with the critical tradition. They recognized the applicable international law of the time as imposed by Western powers and questioned the status of the 1884 treaty as a legal instrument rather than a fact resulting from a colonial situation. Judge ad hoc Mbaye especially stressed the role of uti possidetis as a remedy adopted by African leaders to ensure the continent’s political stability.

Six years after its decision in Cameroon v. Nigeria, the ICJ shifted course in Pedra Branca.Footnote ¹¹ In this case, the Court recognized the international legal personality of the Malay state of Johore and its territorial sovereignty. The ICJ also recognized the legal value of diplomatic exchanges between Johore and Great Britain while Johore was under British imperial rule. Judge Ranjeva pointed to the fiction that consisted in ignoring the unequal relations between the United Kingdom and Johore to claim that Johore had effectively consented to surrendering part of its territory to Great Britain. Judge Ranjeva thus appeared to regret a trend toward the retrospective recognition of non-Western agency and sovereignty. The judgment in Pedra Branca also betrayed an odd tendency already present in Cameroon v. Nigeria to single out “sub-Saharan Africa” as outside the realm of the history of international law until the establishment of European sovereignty.

For his part, Judge Bennouna, who had argued the Moroccan position in Western Sahara, criticized the Court’s inconsistent recognition of historical regional conceptions of sovereignty. He contrasted the Court’s treatment of Morocco’s historical claims in Western Sahara to its treatment of Malaysia’s claims regarding Johore’s historical sovereignty in Pedra Branca. In Western Sahara the Court had refused to recognize oaths of allegiance by Saharan leaders to the Sultan of Morocco as establishing Moroccan sovereignty over Western Sahara. In contrast, in Pedra Branca, the Court determined that ties of allegiance between the seafaring Orang Laut and the Sultan of Johore along with the Orang Laut’s occupation of the disputed islands established Johore’s sovereignty over the islands.

Together the positions adopted by African jurists reflect an ambivalence toward international courts’ treatment of precolonial African history. When faced with disputes involving events that pre-date or concur with colonization, international courts have tended to mine this evidence selectively to assert African consent to Western imperial expansion or invoked the evidence but declined to decide its legal consequences. This equivocal engagement may pay lip service to contributionist commitments. However, it undermines critical jurists’ desire to condemn colonial wrongs and quarantine colonial situations from international law. It also fails to satisfy the contextualist call to take seriously the international practice and views of Africans through careful considerations of regional and historical context. The result has been the ambivalence of African international lawyers toward the incorporation of precolonial African history into the corpus of international law.