Africa is terra incognito and
international law an esoteric subject to most people in the
world, and the relationship between the two are far outside
of their immediate interest. Yet this continent has been the
incubator for momentous events in the evolution of
international law -events which have shaped all our lives.
Africa is the stage where the drama of Apartheid unfolded
and the tragedy of the Rwandan genocide took place. It is
the land of many of the world’s refugees and nearly one-half
of its internally displaced persons. It has been the arena
for experimenting with various programs of international
developmental assistance. It continues to be the showcase
for what the United Nations can do, and cannot do. My task
today is to talk about these subjects. I will seek coherence
among them by presenting a historical perspective.
Africa’s relationship with international
law began at its inception in the fifteenth century. The
many phases of this evolving history are distinct, but they
also tell a lot about the jurisprudence that is shared by
humanity. You will find much that is familiar in the
underlying politics, economics, and philosophy. I would
venture the argument that the same principle forces have
also operated elsewhere in the world.
Revivalism in International Law
On September 16, 2002, the United Nations
was the scene of a remarkable spectacle. The Presidents of
four African countries had come to present Africa’s case
before a forum which is the closest we have to a global
parliament. They unfurled the program of the New
Partnership for Africa’s Development (NEPAD). [Note 1]
This program called for drastic changes in the way the
UN and International law viewed and treated the Continent.
It urged fundamental changes in three economic areas of
primary concern to international law: trade, conditionality
of aid, and debt owed by African countries. It proposed
basic changes in the philosophy of UN operations in Africa.
[2]
Equally remarkable about this audacious
program was the fact that it had begun as an African
initiative, was based on African models, and was formulated
by Africans planners. [3] The program took its
inspiration from a critique of the way Africa was being
treated by the UN and international law. The critique had
been undertaken with the support of a son of Africa, the UN
Secretary General, and prepared by a panel led by his
countryman, a former Finance Minister of Ghana. [4]
The latter, Kwesi Botchwey, now a
Professor at Harvard, could not have been oblivious to a
certain academic colleague’s critical work on the program of
economic liberalization in Eastern Europe in the 1990s. The
problems and failures of that program were analyzed in a
seminal article published in the Harvard International
Law Journal by Professor David Kennedy in 1991. [5] The
article showed the shortcomings of the hope for a revival of
international law, glimmering on the horizon now that the
inhibiting influences of the Cold War were gone. The ensuing
lively debate about contemporary international law in the
era that came to be known as the age of globalization
focused on the Eastern European situation, but its
application might be said to be universal -indeed, as it
turned out, specific to Africa. Let us review that
discourse.
The revivalist international law stemmed
from the enthusiasm for capitalism in the aftermath of the
spectacular implosion of Soviet Communism. [6] Revivalism in
international law was embraced by the liberal democrats. [7]
Emblematic was the launching of the American Bar
Association’s massive campaign to change the legal systems
of the former Communist countries. This Central European and
Eurasian Law Initiative (CEELI), eventually attracted more
than 5,000 volunteers - an unprecedented and incredible show
of idealism considering fees that American lawyers usually
charge. [8] "The end of history" became a favorite slogan of
not a few who argued that the demise of Soviet Russia’s
empire meant the end of the debate about economics as the
capitalist free market would now be the underlying economic
law of the universe. This was the "Washington Consensus," a
"sort of economic Ten Commandments prescribed by the IMF,
the World Bank and the U.S. government." [9]
Revivalism in international law called
for economic liberalization of Eastern Europe. In its zeal
it demolished all institutions in the former satellite
states, including those that were beneficial even in the
pseudo-socialism of Eastern Europe as they provided worthy
results in education, health, social security, and
employment. [10] Instead, as critics have commented, East
Europeans were induced to follow a "pseudo-capitalistic"
model [11] far removed from their experience and time, an
imaginary Adam Smithian pure market template without
regulatory mechanisms which now exist even in the West. [12]
The justification offered by the
revivalists for this discrepancy between the ideal and the
real was based on a linear theory of development that
relegated the liberalizing economies to a stage
chronologically behind the liberal economies of the West.
Until the developing East Europeans successfully passed
through that stage, an international trade system would
apply to them that was distinct and different from the trade
program applicable to West Europeans. [13]
In practice, the program of economic
liberalization kept East European countries stuck on the
periphery. [14] Instead of catching up with the developed
center that was the West, in the East industrial output
declined, wage-price inflation rose, unemployment soared,
per capita income dropped precipitously, and standards of
health and education took a sharp downturn. [15] The lesson,
the critics said, was that Eastern European policymakers
needed "to develop their own economic models for their
conditions, rather than seeking to emulate the experience of
a distant time and place." [16]
As the corollary of economic
liberalization, the international law revivalists, in the
age of globalization, advocated political democratization.
[17] In the 1990s this program was pursued in Africa as well
as in third world countries of Latin America and Asia. [18]
As practiced by the UN, it consisted of two main components:
electoral assistance and support for political and civil
human rights. [19] The problem was -as critics such as
Professor Susan Marks of Cambridge pointed out- periodic
free elections are not sufficient to ensure democracy [20];
and, secondly, ignoring economic and social rights deforms
democratic development. [21]
The Botchwey panel’s critique of the UN
program of the 1990s in Africa reflects these criticisms. It
notes that while some progress was made in achieving
democratic practices, it was not enough. What is more, it
hampered economic growth. Accordingly, the critique rejects
conditionality on aid to be given to Africa, when it
requires specific types of institutions and economic
measures such as deregulation, removal of exchange control,
and restrictive austerity programs. [22] The panel noted
that "despotism and corruption" as well as the proliferation
of wars and civil strife contributed to the problems. The
panel argued, however, that every African country "must
evolve its own development strategy." [23]
A contentious history
This was not the first time that African
leaders had come together to ask for changes in their status
under international law. In the aftermath of World War I,
W.E.B. Du Bois led a group of African leaders to demand that
greater rights for Africans in colonies be recognized under
a system of trusteeship by the League of Nations. After the
Atlantic Charter was announced by President Franklin Delano
Roosevelt and Winston Churchill in 1943, Du Bois once again
led African political activists, this time to demand
independence for African countries. Some in that group later
became heads of their independent countries, including Kwame
Nkrumah and Jomo Kenyata. [24]
Africa’s status in international law has
had a long history -a history with distinct phases. I
recognize six major such phases. For easy reference, here I
would designate each with one word. In chronological order
they are: demonization, dehumanization, exploitation,
imitative nationalism, globalization, and self-realization.
Let me briefly review this history.
International law as a separate body of
rules is a product of the modern state system. It dates from
the latter part of the sixteenth century. Hugo Grotius is
sometimes referred to as the founder of international law
for his book De jure belli ac pacis (The Law of War
and Peace), published in 1625 when the Treaty of Westphalia
had finally put an end to the exhausting Thirty Year War in
Europe. Modern international thought, however, could be
traced earlier, to late fifteenth-century Italy and the
emergence of the balance of power doctrines in the
treatises, treaties, and diplomatic manuals generated by the
communities of envoys, clerics and professors, Machiavelli
being the most famous one.
Indeed, international law had still an
earlier, medieval, foundation in the concept of a law of
nature based on the Roman law of jus gentium (the law
of nations), "so called because it was believed or feigned
to be of universal application, its principles being
regarded as so simple and reasonable that they must be
recognized everywhere and by everyone." [25] On this
foundation that the great Spanish Theologian, Francisco de Vitoria, in the mid 16th century defended the
rights of the inhabitants of the New World under the
domination of the Spaniards. He was arguing for the
expansion of the international law into a world system: "a
law which had its rise among the few princes of European
Christendom was not to be limited to them or to their
relations with one another but was universally valid,
founded as it was on a natural law applying equally to all
men everywhere." [26]
That dictum, however, was not followed by
Europe in its dealings with Africa in modern times, which
began in 1415, with the Portuguese invasion of Ceuta, a
Muslim trading center in Africa opposite Gibraltar. The
Portuguese campaign had the blessing of the Pope as a part
of the Crusades. This was the age when Europe demonized the
Muslims it encountered in West Africa and later in East
Africa. [27]
Muslims had come to Africa in the year
647 as a conquering army and soon established themselves
permanently in the north through steady assimilation into
the local setting, while avoiding uncritical syncretism -a
successful fusion described by Ibn Khaldun, the great
medieval sociologist. [28] Visiting the Islamicized ancient
Mali in the middle of the fourteenth century, Ibn Battuta,
the Arab Marco Polo, was impressed by the security that the
Arabs enjoyed among the blacks: "They do not confiscate the
property of any white man [read Arab man] who dies in their
country, even if it be uncounted wealth. On the contrary,
they give it into charge of some trustworthy person among
the whites, until the rightful heir takes possession of it."
[29]. Many of these Arabs were engaged in commerce. Trade
had become the principle channel for the Arabs in the
transmission of their faith to Africa. [30]
Militant Islam continued, however, under
the newly converted Turkic rulers of the Middle East, who
had the requisite will to power. Thus it was Alp Arslan, the
Seljuk Malak (king) of Persia who defeated the forces of
Byzantine Christians at Manzikert in 1071, triggering the
Crusades; it was Saladin, the Kurdish ruler of Egypt who
captured Jerusalem in 1187, drastically reducing the
Christian pilgrims’ combating enthusiasm for the holy land;
and the Ottoman Turks were the ones who conquered
Constantinople in 1453 and threatened the Levant and the
Balkans. [31]
By now, on the other hand, it might be
argued that in Islamic international jurisprudence, the
vigor of the dichotomy of the zones of war and peace -Dar
al-Harb and Dar al-Salaam- had been spent. The
Ottoman Empire was more a modern state pursuing national
interests than a Caliphate bent on proselytizing among the
infidels.
So it was, indeed, for Portugal. The king
vetoed the idea of following the Ceuta campaign with a
crusading expedition to Gibraltar. His rebuffed son,
instead, went to Sagres and, in the next 40 years, developed
a remarkable institution to explore Africa as Henry the
Navigator. [32] The exploration of Africa became lucrative
and hence viable for the Portuguese only when they captured
and transported slaves to Europe in 1444. [33] Replacing demonization, European dehumanization of Africans would now
become necessary for their practice of slavery. [34]
Enough will have been said about slavery
by other speakers at this conference. Suffice it for me to
note that as slavery lost its economic value by the late
19th century, [35] the exploitation of Africa’s other
resources was pursued in the age of European imperialism.
[36]
After World War II, imitative nationalism
dominated the Africans’ relations with international law as
they tried to catch up with those European nation-states
which were the long-standing subjects of international law.
[37] In reality they became supplicants of aid from European
powers - a condition that was accentuated in the age of
globalization, as we have indicated before. The new African
effort, under NEPAD, has the promise of self-realization.
[38] It aims at the dual goals of universalism and
integration in international law.
Universalizing International Law
The universalist program rests on the
natural law roots of the global legal system. [39] Africa
has already contributed substantially to this program in
three main areas.
First, the campaign against apartheid
established the anti-racist identity of contemporary
international law. India was the first State to challenge
South Africa before the UN on apartheid generally, and her
treatment of people of Indian origin particularly. Beginning
in 1952, a vast majority of other nations joined in the UN
General Assembly to pass an increasing number of resolutions
about apartheid. Although not binding, the resolutions of
the General Assembly indicate the sentiments of the
international community. One could argue that a customary
rule of international law was created by the General
Assembly's consistent and frequent condemnation of apartheid
-and a body of human rights doctrine was thus born. [40]
Secondly, the tragedies of Africa’s
refugees and displaced persons have greatly widened the
field of international humanitarian law. The 1969
Organization of African Unity’s Convention on the Specific
Aspects of Refugee Problems in Africa broadened and changed
the definition of refugees as existed in the 1951 Convention
Relating to the Status of Refugees. The notion of refugee
now went beyond victims of generalized conflict and violence
to cover every person who, owing to external aggression,
occupation, foreign domination, or events seriously
disturbing public order in his country is compelled to leave
and seek refuge in another place outside his country. The
1969 Convention also turned the focus more on voluntary
repatriation, in contrast to the integration bias of the
1951 Convention. [41]
Unlike refugees who are governed by the
aforementioned Conventions, the internally displaced persons
are not protected or assisted by any international legal
instrument. The existing law covers some aspects of their
situation, but there are major gaps and gray areas. By
definition, the problem of internal displacement falls under
state sovereignty. Hence, sensitive to the issue of
sovereignty, the UN appointed a Representative of the
Secretary-General to deal with this problem, rather than a
Rapporteur or Working Group mechanism normally created for
such thematic issues.
Because about half of the world’s some
twenty-five million internally displace are in Africa, it
was apt to appoint Francis Mading Deng, of Sudan, as the
first UN Representative in 1992. With the help of legal
experts, he has since developed the Guiding Principles on
Internal Displacement which restate such existing norms of
human rights and humanitarian law that are relevant to the
internally displaced. Despite the questions about such
unconventional process in developing them, the Principles
have gained authority worldwide. International organizations
and NGOs increasingly use the Principles as an advocacy tool
in their efforts on behalf of the displaced. [42]
Africa’s third contribution to
universalizing international law has been through its
experience with genocide which has led directly to the
establishment of an ad hoc international criminal
tribunal, for Rwanda (ICTR) -in Arusha, across the border
from here- , and then to the creation of the International
Criminal Court. This has substantially helped in the
development of international criminal jurisprudence. For
example, "the first ICTR judgment rendered in 1998 in
Prosecutor v. Jean-Paul Akayesu has become a landmark
case. This was the first time that an individual was found
guilty of rape as an act of genocide. On the basis of the
fact of the Akayesu case ICTR concluded that genocide
against Tutsis and moderate Hutus occurred in Rwanda.
The judgment against Jean Paul Akayesu
who as a "bourgmestre" was the head official at a community
level, as well as the ICTR judgments against two other
former top government officials -Prime Minister Jean
Kambanda , and Perfet Celment Kayishema at a regional level-
challenge the traditional notion of sovereign immunity as
they recognize that heads of State may be prosecuted for
violations of human rights. These verdicts influenced global
attitude toward the rule of law. The Akayesu ruling
"was cited as authority by the House of Lords in its
decision regarding the former President of Chile, Pinochet."
[43]
Integration under International Law
Africa’s hope for full integration under
international law is not based on its natural law roots;
rather, it is the subject of another approach, the
positivist one, which depends on consensual agreement of
nation-states. [44] The obstacle here is the disparity of
power among states of the world. Their equality will remain
a myth in the foreseeable future, a false doctrine
bequeathed by Emerich de Vattel, a most influential Swiss
writer on international law from the eighteenth century.
Indeed, by any yardstick for measuring states -size,
population, economy, military strength- they are not
unequal. [45]
The simple but fundamental fact is that
African countries could not enforce any demand or promise of
assistance from other states. [46] The latter will render
assistance only if their national interests prompt them.
During the Cold War, Africa could appeal to the two sides’
conflicting strategic interests. In the age of terrorism, as
the prosperous nations call it, it is in their national
interest to help mitigate the destabilizing inequality in
the globe by heeding to Africa’s call for help. [47] This
prognosis, however, does not necessarily lead to increasing
aid or reducing debt. [48] While such prescriptions are
heard (from those who might still be described as liberal
democrats) [49], opposing voices may be even louder. To some
of these, reflecting the views of neoconservatives, "What
stymies the people in poor countries, as a rule, is not lack
of aid. It is forms of government, often corrupt and
tyrannical, that do not allow people to exercise free choice
under fair law." One solution the proponents of this view
offer is simply "the U.S. Army" which, they assert "has done
more to eliminate poverty than any aid package ever could,
by removing dictators who cause it." [50] We need to pause
here and ponder the direction of the evolving jurisprudence
of international law. Might it be going virtually full
circle?
Notes
[1] They were the Presidents of South
Africa, Nigeria, Senegal, and Algeria. They made their case
first in the Trusteeship Council. The General Assembly was
to convene on October 17-18, 2002 to decide on their
proposal after preliminary sessions for the delegations to
review it, along with the findings of the Botchwey
independent panel (see Note 4 below) and the report of the
UN Secretary-General. (Africa Recovery, 2002c)
[2] Africa Recovery, 2002b)
[3]"African countries ... should be allowed
to design, direct and implement their policies and programmes consistent with their needs and circumstances,"
Secretary-General Kofi Annan said in his report on NEPAD. He
added that the sense of ownership "is an important
ingredient which stimulates commitment, inspires confidence
and enhances the prospects of active implementation."
(Africa Recovery, 2002c)
[4] The 12-member Panel of Eminent
Personalities, individuals with extensive knowledge of
Africa, supported by a small team of senior independent
experts, was established by the Secretary-General as
authorized in 1999 by the General Assembly. (Africa
Recovery, 2002b) The Panel reviewed the results of the
United Nations New Agenda for the Development of Africa (UN-NADAF)
in the 1990s and found them to be "very disappointing" in
the economic field and, due to the "adjustment programmes"
required as conditions of aid, harmful in the fields of
education and health. (Africa Recovery, 2002a)
UN-NADAF was adopted by the UN General
Assembly in December 1991. "It was a compact of mutual
commitments by African countries and the international
community. Its goal was to accelerate the transformation,
integration and diversification of African economies, reduce
their vulnerability to external shocks, strengthen them
within the world economy and enhance their self-reliance."
(Africa Recovery, 2002a) Under it African countries agreed,
inter alia, to carry out economic reforms and improve
domestic economic management, and to create a policy
environment that would attract foreign and domestic private
investment. UN-NADAF was to last for a decade. It was a
successor to the five-year UN Programme of Action for
African Economic Recovery and Development (UNPAAERD)
launched in 1986, the first-ever UN program for a specific
region of the world. (Africa Recovery, 2002a)
This brief history of the UN involvement
with African development would be incomplete without noting
the role of the United Nations Economic Commission for
Africa (ECA). Established in 1958, this is one five regional
commissions under the administrative direction of the United
Nations headquarters. As the regional arm of the UN in
Africa, it is mandated to support the economic and social
development of 53 member states, foster regional
integration, and promote international cooperation for
Africa’s development. It reports to the UN Economic and
Social Council. ECA is organized around six substantive
divisions. Its services are policy analysis and advocacy,
enhancing partnerships, technical assistance, communication
and knowledge sharing, and supporting subregional
activities. (United Nations Economic Commission for Africa)
[5] (Kennedy, 1991)
[6] "For all its achievements during the
Cold War years, international law was inevitably one of the
casualties of superpower rivalry. With perhaps equal
inevitability, the fall of Communism was seen to herald a
return to vigor, a new phase of disciplinary regeneration.
International law -freed at last from the constraints which
had ‘deformed’ it, ‘ensured its ineffectiveness,’ (Reisman,
1990:860) and kept scholars on the defensive with respect to
its ‘very existence’ (Franck, 1995:6)-appeared set to take
an active part in the building of a new post-Cold War world.
Where before there was stasis, the prospect of an alliance
with the forces of change now opened up ( Burley, 1990:1)."
(Marks, 1999: 457)
The new active role of international law was
easily visible at least in two areas: persecution of
international war crimes and the situation of the internally
displaced. The Cold War thaw provided an environment where
the leading nations decided to do something about the
massive crimes committed in the Balkans. (Goldstone, 2001:
120) Similarly, the problems of the internally displaced
were perceived with the end of the Cold War "in their proper
national and regional context, instead of being distorted as
part of the proxy confrontations of the Cold War era." (Deng
2001: 154)
[7] The conditions demanded by the main
international financial institutions, the World Bank and the
International Monetary Fund, were to a significant degree
imposed by the neoliberal economic outlook which prevailed
in the United States at the time. (Marks, 1999: 462)
[8] (American Bar Association)
[9] (Blustein 2005; Sachs 2005)
[10] "Institution-building has been largely
confined to the legal systems, stock exchanges, and the
like, needed to underwrite the market." (Marks, 1999:462)
"The Economic and social assets that existed were ignored
and squandered.... But, along with the failures, there were
some notable successes" under the East’s command economy,
"especially in areas of education, technical know-how,
social security, and in some industrial sectors." (Marks,
1999: 461)
[11] Such models "with their preference for
small firms and weak states, fail to build the institutional
framework necessary for long-term capitalist development (Amsden
et al, 1994: 2,4)" (Marks, 1999: 463)
[12] (Marks, 1999: 461-62) The East
Europeans copied "the wrong capitalist model," one which no
Western nation employs for itself. (Marks, 1999: 464,
referring to Amsden, 1994) As Kennedy showed, the
international trade regime encouraged the adoption in E.
Europe of crude and debilitating versions of capitalism.
(Marks, 1999:458)
[13] Kennedy contrasted the 1992 program of
the European Community (EC) with Eastern European dealings
post-1989, within the framework of the international trade
regime. (Marks, 1999:457) Kennedy said this difference
served to signal that the West European endeavor was ‘ahead’
as compared to the situation in East Europe. The revivalist
commentary assumed that the East ‘lagged’ behind the West.
It seemed natural that the East Europeans should pass
through the more "primitive" stage of international trade
regime before being considered for membership in the E.C.
(Marks, 1999:458)
[14] Just as the eastern regions of Europe
served during he sixteenth to eighteenth centuries as the
agrarian base of the industrialized nations further west, so
now these same regions were being encouraged to "specialize
in low-end goods, despite equally gloomy prospects for
success." Amsden, 1994: 5, quoted in Marks, 1999: 463
[15] (Marks, 1999: 460)
[16] (Marks, 1999: 463, referring to Amsden
et al, 1994)
[17] International law embraces transition
market democracy, consisting of pseudo-capitalism and low
intensity market democracy. (Marks, 1999: 470) Kennedy
contends that international trade law establishes the idea
that (public) intervention to regulate trade is exceptional,
while wholly ‘free’ (private) intervention is the norm....
In like manner, General Agreement on Trade and Tariffs
(GATT) provisions concerning developing states and IMF
technical assistance programs are presented as special
measures which normal societies -characterized by
diversified, developed economies propelled by private
commerce- do not need." (Marks, 1999: 473)
[18] (Marks, 1999: 464)
[19] What Kennedy said about international
law’s rule in promoting pseudo-capitalism, Marks shows with
respect to low intensity democracy. There is, to begin with,
the distinction between "democratizing’ and "democratic"
countries. There is the role of international law in
establishing the chronology and boundary, and phased
transition. International law’s role can be examined in
"doctrines and institutions" concerned with the two spheres
of arrangements for democratic government and protection of
human rights. (Marks, 1999: 477) In Democratic government,
there is the international law and practice of electoral
assistance. This takes the form of advice about the
organization of national elections and monitoring with a
view to ensuring that the election is fair and free.
International organizations, governments, and
non-governmental organizations provide this assistance.
There is an international legal principle requiring periodic
and genuine elections. That appears to be the assumption of
a series of the United Nations General Assembly resolutions
on "enhancing the effectiveness of the principle of periodic
and genuine election. (Marks, 1999: 478) This is associated
with a notion that democratic politics revolves around
parliaments, election, and political parties. This is a
familiar version but not accurate because decisions taken
outside parliament by bureaucrats and business people
profoundly affect citizens and, secondly, individuals,
pressure groups and social movements are factors outside the
state and parliaments that affect politics. (Marks, 1999:
479)
[20] "[L]ittle has been achieved regarding
enhanced government accountability, civilian control of the
military, respect for human rights, and social reforms...."
(Marks, 1999: 465) It is a largely "cosmetic" model. (Marks,
1999: 464, citing Gills, 1993:21) Despite the remarkable
increase since 1989 in the number of persons who
participated in the quintessentially liberal democratic
experience of voting in free elections, the democratic
ideals of self-rule and equality appear as remote as they
ever were in many Third World countries. Authoritarian
political structures have remained notoriously undaunted. (Archibugi
and Held, 1995:3, cited in Marks, 1999: 464)
The drive toward democracy is a reflection
of "a new stage of globalization in the capitalist world
economy. Market-oriented economic reconstruction is in the
minds of those who urge democratization as the objective of
political reconstruction. (Marks, 1999: 465-66) The market
itself is indifferent to the democratic preoccupation.
Redressing inequalities of political and economic power, and
enhancing the accountability of power-holders to those
affected by their decision, are hardly economic liberalism’s
priorities. According to some analysts, this kind of low
intensity democracy
"is congenial to the
interests of global capital in the Third World. It
provides electoral participation, recognition in
principle of human rights, and some political space
for formulating demands and influencing
decisionmaking, while preempting deep-rooted
institutional change. At the same times, it confers
greater legitimacy on government action and policy
than is enjoyed by ‘pre-democratic’ regimes. In this
way, it helps to demobilize resistance to debt
servicing, austerity measures, structural
adjustment, and other common elements of the painful
‘development’ treatment." ( Marks, 1999: 466
referring to Gills.)
While it holds out the promise of "catching
up" with the West, on the contrary, low intensity democracy,
like pseudo-capitalism are "slowing down" models. Instead of
the promised full participation in global markets and an end
to global political marginalization, they ensure continued
exclusion and relegation to the periphery. (Marks, 1999:
469)
Pseudo-capitalism and low intensity
democracy are sustained by
"an approach to
reconstruction that rests on a series of
mystifications. The myth of the invisible hand, for
instance, conceals the indispensability of
institutions. The myth of democracy (of the cosmetic
sort) cloaks neo-authoritarian rule. The myth of the
universal market hides the existence of systemic
barriers within the market. The myth of the
worldwide democratic revolution shields the enduring
hold of hegemonic power." (Marks, 1999: 469-70)
[21] International human rights law does not
relate all human rights to democracy in the same way. Some
rights are acknowledged to be required by democracy. These
democratic rights include the right to take part in public
affairs and also cover a set of further rights on which
their effectiveness rests (e.g., freedom of expression,
association, and assembly) as well as some other rights
which are essential components of those democratic rights
(e.g., the right to privacy and freedom of thought,
conscience, and religion. All these acknowledged rights are
civil and political rights. Social, economic and cultural
rights (rights to education, housing, work, food, and
health) fall a bit below, as they get a softer normative
formulation and weaker enforcement procedures. They are not
considered an integral part of a democratic, or
liberal-democratic agenda, although they are considered an
integral part of a human rights agenda. International
law plays a role here in, e.g., the following way: financial
assistance is conditioned on economic growth but only in
aggregate form. How the fruits of that growth "is to be
divided - question to which economic, social and cultural
rights demand attention- is put aside or, at any rate,
treated as the business of the market and not the state."
(Marks, 1999: 481-84)
The request for international election
monitoring and electoral assistance was first brought to the
UN General Assembly in 1989 and increased greatly in the
1990s. It draws on the practice of supervising plebiscites,
and can be seen to carry forward the venerable project of
self-determination. It is consistent with sovereignty as
such assistance is provided with the consent of the
government concerned. Human rights, on the other hand,
challenge sovereignty and it manifest an embryonic
international civil society. (Marks, 1999: 488-89)
[22] The Botchwey Panel called for
"a major revision of
the dominant thinking that had guided multilateral
and bilateral programmes in Africa over the past two
decades. It is indeed a major lesson from the
experience of both the United Nations Programme of
Action for African Economic Recovery and Development
(UN-PAAERD) and UN-NADAF that the overriding
reliance on liberalization, privatization and
market-based reforms has distinct limits and has, in
many cases, proved counterproductive in accelerating
development and alleviating poverty. The Panel
noted, in this connection that the wholesale and
uncritical adoption of this philosophy, including
the minimization of the role of the state and the
withdrawal of all forms of state support to local
industry and agriculture by African government and
by donors, while the developed countries continued
to support by large transfers, now averaging a
billion dollars a day, served to undermine the
region’s development in several ways....
"None of the
countries that faithfully implemented market-based
structural adjustment have progressed in the manner
anticipated. During the lifetime of UN-NADAF,
poverty increased substantially as did the
disparities between the rich and the poor, while FDI
(foreign development investment) flows failed to
reach the levels required to fuel accelerated growth
even in the best adjusting countries.... Donors and
international financial institutions ... would need
to allow space for policies designed by
democratically elected government working with civil
society. Democracy is undermined if elected African
governments have policies imposed from outside....
Donors have an obligation to deliver on the promises
they make regarding financial support: accelerated
and increased debt relief...; genuine market access
for the produce of African countries; increased aid
without conditionalities.... There is need for
sustained advocacy for African development (by the
UN) ... (and) increase in the efficiency and
relevance of the United Nations...." (Africa
Recovery, 2002b)
The panel’s report concluded
"Recent international
agreements to promote peace and development in
Africa have essentially failed, concluded, noting
that some 80 million more Africans live in poverty
today than at the start of the 1990s." It
recommended that the UN GA "should not negotiate
another international compact, but instead consider
supporting NEPAD.... Instead of being allowed to
pursue their own policies, African governments were
obliged by international financial institutions to
adopt yet more structural adjustment measures
-sweeping liberalization, privatization and other
market-based reforms. This did help improve the
macro-economic situation in Africa somewhat, the
panel found, in particular by reducing inflation.
But, said Mr. Botchwey, "short- term macro-economic
stability was achieved at the expense of longer-term
growth and structural transformation." (Africa
Recovery, 2002a)
Aid (net official development assistance or
ODA) to Africa in order to reach the NADAF growth goal had
to grow by an average of four per cent a year. Instead, it
fell 43 per cent from 1990 to 2000. (Africa Recovery, 2002a)
[23] Donors were urged to demonstrate "a
renewed commitment to the assurance of African leadership
and the avoidance of a return to the old-style
conditionality that has been counterproductive in the past."
They were asked to do so by debt relief, market access, and
aid without conditionalities. The UN was advised to continue
its advocacy at global conferences, and increase the
efficiency and relevance of its activities in Africa.
(Africa Recovery, 2002a)
[24] Africa had no voice in the world until
1800. "It was finally the African voice that established
Africa as an entity in its own right and Africans as full
members of the world community of nations." (Le Vine 1986:
234-35) The establishment of repatriate African settlements
in Sierra Leone in 1787 and Liberian Settlements beginning
in 1820, along with Dakar, where a French-speaking African
elite was being created, provided a fertile soil from which
an educated African class capable of challenging European
colonialism on its own premises could grow. (Le Vine 1986:
235-36)
"The external African
voice, incorporated in what came to be called the
"Pan-African movement," was destined to play an even
larger part in establishing Africa’s legitimate
world role, first against the colonial powers, and
later, after independence, in the community of free
nations.... One of its primary themes has always
been an attempt to promote an Africa
self-consciously united on behalf of its own
interests and against foreign domination. These aims
were first coherently articulated by an influential
Trinidadian lawyer, Henry Sylvester Williams ... and
by the distinguished black American sociologist,
William E. Burghardt Du Bois.... Du Bois ...
organized the second Pan-African congress in Paris
in 1919.... (which) with some 57 delegates from
French and British colonies raised various colonial
issues including a demand that the ex-German
colonies be placed under the international tutelage
of he new League of Nations....
"The fifth
Pan-African congress, held in Manchester, England in
1945, was Du Bois’ last and the last held prior to
the wave of independence which began in 1957....
With the future African presidents Kwame Nkrumah and
Jomo Kenyatta playing important roles, the
Manchester congress denounced the colonial
territorial division of he continent and demanded
the application of the principles of he Atlantic
Charter enunciated by Churchill and Roosevelt,
including the right to political
self-determination." (Le Vine 1986: 236- 37)]
At the Pan-African congresses,
"at first, as the
1919 resolution (text in Le Vine 1986: 254)
demonstrates, Africans appealed to the colonial
powers for a recognition of Africans’ rights and the
demand for participation in the colonial state. By
1945, however, colonialism was condemned outright
and the appeal was made for the universal right of
self-determination asserted by the wartime United
Nations in the Atlantic Charter of 1941. The demand
was for political freedom, unconditional and
irrevocable. The change in tone is dramatic and
startling. The 1945 resolution (text in Le Vine
1986: 255-57) captures not only the prevailing
post-war climate of anti-colonialism, but also the
militancy of black leaders who recognized that the
war had dealt a death-blow to the old colonial
empires and now demanded freedom for their own
peoples." (Le Vine 1986: 253)
[25] (Brierly, 1955:17)
[26] (Brierly, 1955:26) "The recognition of
international law as a separate object of study dates from
the latter part of the sixteenth century. Earlier writers
had written on some of the topics which fall within modern
international law, especially on the usage of war and on the
treatment of ambassadors." (Brierly, 1955:25) Indeed, the
origins of related modern international thought could be
traced to the emergence of the balance of power doctrines in
late fifteenth-century Italy, in the treatises, treaties,
and diplomatic manuals generated by the communities of
envoys, clerics and professors, including Niccolo
Machiavelli’s and Francesco Guicciardini’s. Early writers,
however, did not separate the domestic from the
international, or the legal from the theological and
ethical, aspects of such questions. (Brierly, 1955:25-26)
"Theological writers
especially were concerned with the perplexing
ethical problems to which the practice of warfare
gives rise, and a series of great Spanish Churchmen
of the fifteenth and sixteenth centuries made
important contributions to the progress of thought
on these matters. Perhaps the greatest of these was
Francisco de Vitoria...." (Brierly, 1955:25-26)
"A long and
continuous history, extending at least as far back
as the political thought of the Greeks, lies behind
the conception ( of a law of nature ); but its
influence on international law is so closely
interwoven with that of the Roman law that the two
may here be discussed together. The early law of the
primitive Rome city-state was able to develop into a
law adequate to the needs of a highly civilized
world empire, because it showed a peculiar capacity
of expansion and adaptation.... In brief, the
process of expansion and adaptation took the form of
admitting side by side with the jus civile,
original law peculiar to Rome, a more liberal and
progressive element, the jus gentium ....
This practical development was reinforced towards
the end of the Republican era by the philosophical
conception of a jus naturale which, as
developed by the Stoics in Greece and borrowed from
them by the Romans, meant, in effect, the sum of
those principles which ought to control human
conduct, because founded in the very nature of man
as a rational and social being. In course of time,
jus gentium, the new progressive element
which the practical genius of the Romans had
imported into their actual law, and jus naturale,
the ideal law conforming to reason, came to be
regarded as generally synonymous." (Brierly,
1955:17-18)
[27] The Crusading Portuguese armada,
led by Prince Henry, stormed the Muslim fortress at Ceuta on
August 24, 1415.
"Within a day the
Portuguese had taken the Infidel stronghold.... Only
eight Portuguese had been killed, while the city
streets were piled with Muslim bodies. By afternoon
the army had begun sacking the city, and the
spiritual rewards of killing infidels were
supplemented by more worldly treasures." (Boorstin,
1983:159-61)
When Vasco da Gama in 1502 set out with a
Portuguese squadron to make Calicut, India into a Portuguese
colony, off the Malabar coast, he sighted a large dhow, the
Meri, carrying Muslim pilgrims home from Mecca. He
demanded all their treasure on board. When the owners were
slow to deliver, the result was recorded by one of his crew.
"We took a Mecca ship
on board of which were 380 men and many women and
children, and we took from it fully 12,000 ducats,
and goods worth at least another 10,000. And we
burned the ship and all the people on board with
gunpowder." (Boorstin, 1983:175-77)
A month later, Gama, now off Calicut,
"ordered the Samuri
(king) to surrender, and demanded the expulsion of
every Muslim from the city. When the Samuri
temporized and sent envoys to negotiate peace, Gama
replied without ambiguity. He seized a number of
traders and fishermen whom he picked up casually in
the harbor. He hanged them at once, then cut up
their bodies, and tossed hands, feet, and heads into
a boat, which he sent ashore with a message in
Arabic suggesting that the Samuri use these pieces
of his people to make himself a curry." (Boorstin,
1983:177-78)
[28] (Sanneh 1986: 87-88)
[29] (Skinner, 1986:79)
[30](Sanneh 1986: 89)
[31] (Boorstin, 1983:117-19, 158)
[32] (Boorstin, 1983:160-61, 165)
[33] The Portuguese exploration program for
Africa "required heavy national support." (Boorstin 157)
Henry’s relentless step-by-step exploration of the West
African coast proceeded, although commercial rewards were
meager. In 1441 his men took two natives captives. "In 1444
he brought back the first human cargo: two hundred Africans
to be sold as slaves in Lagos. This was the first European
episode in the African slave trade.... The arrival of this
human merchandise from Africa ... caused a change in the
public attitude toward Prince Henry. Many had criticized him
for wasting the public substance in his frolics of
exploration." They now grew quiet, and praised him.
"Everyone now wanted a share of this promising Guinea
trade." (Boorstin, 1983:167-68)
[34] Neither a crusading spirit nor economic
profit was the prerequisite universal human
motivation for "discovering" Africa in modern times. The
Chinese proved the contrary. Cheng Ho, "the Admiral of the
Triple Treasure," led six expeditions in 1421 to 1422,
visiting 36 states stretching over all of the Indian Ocean
from Borneo to Zanzibar. The "purpose of his vast, costly,
and far-ranging expeditions was not to collect treasure or
trade or convert or conquer or gather scientific
information." The voyages were designed "to display the
splendor and power of the new Ming dynasty." They
demonstrated that ritualized and nonviolent techniques of
persuasion could extract tribute from remote states. The
Chinese did not want to colonize, but hoped to make the
whole world into voluntary admirers of what they perceived
to be the one and only center of civilization. "A state
bringing tribute to China was not submitting to a conqueror.
Rather, it was acknowledging that China ... was beyond need
for assistance. Tributes therefore were less economic than
symbolic." (Boorstin, 1983:188, 191, 193)
[35]
"European slaving
expedition to Africa (during the fifteenth and
sixteenth centuries)( were) once influenced by the
growing European taste for sugar. ... Expanding
demand for sugar in Europe resulted in expanding
demand for slave labour in South America and the
West Indies from the seventeenth century onwards....
In the eighteenth century technological change in
the West resulted in even greater ‘need’ for African
labour. The new factories of Europe needed more
labour-intensive crops such as cotton and indigo.
And the new prosperity created new tastes In the
West - which resulted in the growth of such
additional labour-intensive crops as rice, coffee,
and tobacco in South American, the Caribbean and the
southern state of the United States. All these
developments seemed to require more imported labour
in the Americas and Africa was raided more
intensively to provide that labour. The industrial
revolution in the West was, in fact, riding on the
backs of the black slaves on distant plantations....
"Then further
technological change in the West began to make slave
labour less and less efficient. An ailing worker
hired for wages could be fired and replaced at next
to no cost, but the worst time to sell a slave is
when he is ailing. Buying a slave was a long-term
risk, but hiring a worker for wages was a short
-term investment. With urbanisation in the West, one
did not have to brave the seas to risk the diseases
of west Africa to get cheap labour. It was now
increasingly available not far from Manchester or
Philadelphia. Slave labour was outpaced by the new
technology. It was at last possible to regard
slavery as wrong. The high technology of wage labour
had made the high morality of abolitionism possible
at long last. Britain, which had been the biggest
shipping nation in the slave trade in the eighteenth
century, became the leading abolitionist power in
the nineteenth... In 1884-5 fourteen Western states
met in Berlin and agreed both to end slavery and
facilitate imperialism...." (Mazrui, 1986:159-161)
[36]
"The economic impact
of the African colonies on Western industrialisation
took several forms. First, colonialisation was part
of the search for new source materials (e.g., rubber
and cotton).... In addition to producing raw
materials, the dependencies were geared toward
catering for the new consumption patterns of an
increasingly prosperous West (e.g., cocoa, coffee,
and tea) ... Third, the colonies provided
opportunities for.... settlement.... Fourth, the
colonies were potential market for goods produced in
the metropole....
"Meanwhile a strange
thing had happened.... the West’s expanding
technology of destruction in two World Wars helped
to liberate Africa. The Second World War was
especially critical. The war weakened the great
imperial rulers irreversibly, as France, Belgium and
Italy were humiliated; Britain was impoverished; and
Portugal and Spain were morally bankrupt as a result
of their association with fascism and Nazism. ...
Nationalism and anti-colonialism fervour erupted all
over Africa almost as soon as the Second World War
ended. Barely fifteen years after the end of the war
the bulk of the African continent had attained
formal political sovereignty. Never was a whole
continent so swiftly subjugated, and then so rapidly
emancipated." (Mazrui, 1986:160-161)
"Throughout the late
19th century, France, Germany, and
Britain each attempted to gain a competitive edge
over the others by controlling the sources of raw
materials overseas...." As a war in Europe to end
such competition was considered unthinkable, the
representative of 14 European nations and the United
States gathered in a Berlin for 13 weeks in 1884-85.
"The West African Conference in Berlin (more
commonly called the Berlin Conference) created
formal rules for a scramble for territory in
tropical Africa that in time divided tribes
indiscriminately, disrupted traditional patters of
migration and resulted in the partition of tropical
Africa into arbitrary, untidy colonial aggregates of
heterogeneous territories.... Because the Europeans
had superior weapons and access to ammunition and
other supplies, there was surprisingly little
resistance.... By 1900 in many places, and certainly
by 1914, it was clear to the peoples of Africa that
their white rulers had come to stay. A new
generation grew up that had never known any life
other than that ultimately controlled by whites.
Many Africans, in fact, adopted easily: Africans ...
learned the languages, customs, and organizational
requirements of their rulers.... For the most part
whites encouraged these responses; but they
generally discouraged assimilation, and instead,
concentrated upon the administration rather than the
tutelage of the Western colonies. They also tried to
develop their colonies economically, at least by
furthering the extraction of minerals and tropical
crops." (Rotberg 1986:118-20)
[37] The U. N. General Assembly’s 1960
Declaration on the Granting of Independence to Colonial
Peoples and Countries, followed by the U. N. determined
implementation measures led to eventual establishment of the
overwhelming majority of the 53 African nation-states. The
instrument of international system for the establishing the
legality of a state is recognition. The
self-determination/independence has been construed in
external terms predominantly, without taking enough into
account the internal, self-governing functions. "First wave
of state collapses", Chad, Ghana, and Uganda, produced
hardly any action by the international community. More
spectacular was the later case of Somalia. (Lovelace, 2001)
[38] By August 2004, the Secretary-General
was reporting on NEPAD that "Much progress has been done by
African countries in developing sectoral policy frameworks,
in the implementation of specific programmes and projects
and in the earmarking of financial allocations to selected
NEAPAR sectoral priorities." (United Nations General
Assembly, 2004]
[39] Contemporary international law protects
some universal interests which are separate from the rights
of the nation-states. Protection of human rights and the
earth’s environment are the basic components of this
dimension of international law. (Lovelace, 2001) On the
other hand, as critics have pointed out, globalization has
manifested a disjuncture "between the rhetoric of a
universalizing market and the reality of enduring
oligopoly." and a disjuncture "between the rhetoric of
universalizing democracy and the reality of oligarchic
power." (Marks, 1999: 494)
[40] (Hopkins 2001-2002)
"South Africa's
discriminatory racial policy was raised in the very
first session of the General Assembly, and has since
occupied a central position on the agenda of the
General Assembly for more than 40 years... [In] 1952
a resolution was passed (in the General Assembly)
which effectively created the Commission on the
Racial Situation in the Union of South Africa.
...The General Assembly adopted the reports (of that
Commission) in resolutions to the effect that
apartheid constituted a threat to peaceful relations
between nations.... At first, the large Western
powers supported South Africa's challenge to the
competence of the United Nations to intervene in her
domestic affairs.... But this international support
disappeared after the Sharpeville massacre in 1960,
when many of the world powers were morally outraged
and began to view South Africa's brutal
implementation of apartheid as a threat to
international peace and stability..
"In light of the
increasing number of General Assembly resolutions
against it, South Africa changed her tactic somewhat
by no longer claiming that article 2(7) was a bar to
United Nations' competence, but rather claiming that
the apartheid philosophy of ‘separate development’
was in fact in line with international human rights
law.... This justification was never taken seriously
by the International Community because there was
clearly no true commitment on South Africa's part to
honor the values that underlie the philosophy behind
self-determination.... To isolate South Africa would
have been contrary to Western interests for two main
reasons: first, South Africa played a vital role in
resisting communism during the cold war and South
Africa used the threat of communism in Africa to
gain the support of the West; and second, although
it was not a member of NATO, South Africa played an
important part in the Western defense system, due to
its strategic position....
"Yet despite the
apparent ineffectiveness of the Security Council,
the General Assembly continued ...it used its
mandate under Article 13(1)(a) of the U.N. Charter
to encourage the progressive development of
international law. It did this by submitting a Draft
Convention on the Suppression and Punishment of the
Crime of Apartheid to the members of the United
Nations for ratification. The Convention came into
force on July 18, 1976, after twenty states had
ratified it. There are currently 101 parties to the
Convention. The Convention declares that ‘apartheid
is a crime against humanity,’ and it criminalizes
the principal features of apartheid, namely murder,
torture, and arbitrary arrests of members of one
particular race group. Parties to the Convention
undertake to enact municipal legislation to
prosecute persons responsible for the commission of
this international crime. Some commentators have
argued that the Convention is merely symbolic
because as a crime against humanity, apartheid
confers universal jurisdiction on all States....
"The year 1977 seems
to have been the turning point for South Africa. The
death of Steve Biko in police custody was the last
straw, and after this tragic event South Africa
finally lost the support of France, Britain and the
United States. The veto-power barrier to the
application of Chapter VII had finally been crossed.
In November of that year the Security Council passed
a binding resolution mandating an arms embargo
against South Africa. This was the only time that
Chapter VII was ever invoked against South
Africa....
"The end of the Cold
War resulted in further loss of sympathy for South
Africa because the threat of communism was no longer
imminent, and South Africa's strategic location was
no longer a reason to afford her protection from
international isolation. Crippling sanctions against
South Africa were more widely implemented, and
eventually the international stranglehold of
repeated cumulative action forced change upon South
Africa. State President F. W. de Klerk made the
decision to dismantle apartheid in February
1990...." (Hopkins 2001-2002)
[41] (Feller 2001: 133) "When UNHCR {United
Nations High Commissioner for Refugees} came into existence
in 1951, refugees were welcomed noncitizens in many
countries. This was not the least because, in postwar
Europe, they came mainly in manageable numbers from
neighboring countries with some ethnic affinities; their
intake reinforced strategic objectives during the Cold War;
and, as an added plus, they helped to meet labor shortages.
However, today the term ‘refugee’ has a certain stigma
attached which has seriously complicated UNHCR’s
responsibility to ensure that international protection is
available to them, as a surrogate for the protection of
their national authorities, which they have lost." (Feller
2001: 129-30)
[42] (Deng 2001)
[43] After Nuremburg and the Tokyo
Tribunals,
"the international
community tolerated fifty years of impunity in which
more than 170 million civilians were killed by their
own governments with no hope of bringing their
killers to justice. Then, in the last decade, the
Security Council of the United Nations, freed from
its cold War paralysis, responded to the mass
atrocities committed in two part of the world - in
the former Yugoslavia and in Rwanda- and created two
ad hoc tribunals to ‘put and end to
...genocide and other systematic, widespread and
flagrant violation of international humanitarian
law...’. The Security Council was ‘convinced that
... the persecution of persons responsible for such
acts and violations ... would contribute to the
process of national reconciliation and to the
restoration and maintenance of peace....
"The International
Criminal Tribunal for Rwanda (ICTR), in its first
six years, delivered eight judgements with sentences
ranging from 12 years to life imprisonment. These
judgements have already made an imprint on the
development of international criminal jurisprudence.
The 1998 judgement in Prosecutor v. Jean-Paul
Akayesu was "the first conviction of
genocide in history by an international judicial
court." This judgment "concluded that rape
constituted genocide, in view of the evidence that
acts of sexual violence against women in Taba
commune in Rwanda were perpetrated with the intent
to destroy in whole, or in part, the Tutsi ethnic
group....
"The ICTR in Arusha,
like the ICTY in the Hague, is playing a most
significant role in the creation of international
criminal jurisprudence and in establishing
international procedural norms, which will influence
the development of the permanent International
Court." (Pillay)
The weaknesses of the ad hoc
tribunals have been addressed by the creation of the
International Criminal Court. "One such weakness concerns
victims and witnesses.... ICC provides not only for
protection but for participation by victims and witnesses in
trial proceedings." (Pillay) This is a significant moment in
the historical development of human rights.
"In the aftermath of
mass atrocities, retributive justice rendered by an
international tribunal, such as ICTR, ICTY, or the
International Criminal Court, is necessary ....
Heinous crimes which go unpunished may be seen to
encourage continued violations of human rights and
to hinder national reconciliation. So too domestic
prosecution that may be perceived as victor’s
revenge. A international tribunal serves as the
standard bearer of international humanitarian norms
and serves as a neutral adjudicator." (Pillay)
By virtue of their very existence they serve
as a beacon of hope "in a new legal order in which there is
no safe haven for those who commit human rights violations."
With these tribunals "hope has been kindled that
international jurisprudence will address legal and moral
humanitarian violations," genocide, crimes against humanity,
and war crimes. This "breathes life into the Universal
Declaration of Human Rights." (Pillay)
The struggle for an effective International
Criminal Court (ICC) (i.e., a permanent court for the
prosecution of genocide, crimes against humanity and war
crimes) and the struggle for human rights in Africa have
been intertwined. From the beginning of the movement to
establish ICC, Africa has been deeply involved. African
countries pushed hardest for the establishment of the Court.
Forty four African countries have signed the 1998 ICC
treaty, known as the Rome Statute. Three of the Court’s
judges come from Africa -Ghana, Mali, and South Africa- and
its Deputy Prosecutor is from The Gambia. The Court’s first
two investigations were on the situations in the DRC
(Democratic Republic of the Congo) and northern Uganda.
Africa is the testing ground for the ICC and the principles
for which it stands. (Stompor 2004)
There are two broad areas of the
relationship between ICC and Africa: one is the development
of a framework of accountability for genocide, crimes
against humanity, and war crimes. The second is specific
situations: the initial ones relate to the DRC and Uganda.
On the first, the framework relies on national courts in the
first instance: each state has the primary responsibility;
only when it is unable or unwilling can ICC assert its
jurisdiction. Progress in implementing this, the role of the
national courts, has been lagging. African countries have
not made their financial contributions to ICC. On the other
hand, African countries have opposed U.S. demands to sign
bilateral immunity agreement at the cost of aid from the
U.S. Africans could exert influence when united on a single
human rights issue. Everyone is waiting to see what the ICC
does in Africa. (Stompor 2004)
It should also be noted here that three of
the fifteen members of the International Court of Justice
are from Africa. Aside from the Egyptian Judge, Nabil
Elaraby, who presumably represents the Sunni Arab legal
tradition, there is a Judge from Madagascar, Raymond Ranjeva,
who, on the basis of his educational background, presumably
represents the French-influenced African legal systems, and
a Judge from Sierra Leone, Abdul G. Koroma, who, on the
basis of his educational background, presumably represents
the English-influenced African legal systems. (International
Court of Justice}}
[44] "International law can be seen to be at
once responsive to will and interest (the side often linked
with positivism) and possessed of self-propelling normative
force (the side often linked with natural law)." (Marks
1999:487)
[45] (Brierly, 1955:122-123) Emerich De
Vattel (1714-69), whose work Le Droit de gens was
published in 1758, "has probably exercised a greater
permanent influence than any other writer on international
law." (Brierly, 1955:37) He followed the doctrine of the
state of nature: "nations being composed of men ...
living together in the state of nature;" and argued that
since men are equal, so are states. "A dwarf is as much a
man as giant is; a small republic is no less a sovereign
than the most powerful kingdom" (Brierly, 1955:37, quoting
from Vattel 1758: Introduction). "Thus the doctrine of
equality of states, a misleading deduction from unsound
premises, was introduced into the theory of international
law. (Brierly, 1955:37-38)
[46] In 2003, according to the Red Cross,
Africa
"seemed unable to
exert a significant influence on the international
political agenda, and stayed very much on the
fringes.... for many countries, the question of how
to tackle widespread poverty remained the key
challenge .... numerous hurdles .... included
political instability, corruption, poor governance
and weak political structures, looting of natural
resources, waging war as a means of survival,
non-existence or derelict public services (such as
health care and education), low commodity prices,
difficult climatic conditions, the HIV/AIDS
pandemic, and insufficient emergency and development
aid." (Heger 2004]
An international team appointed by
Secretary-General Kofi Annan in 2002 to carry out the United
Nations Millennium Project to fight world-wide poverty,
submitted its report in January 2005. It concluded that
reducing poverty in its many guises -hunger, illiteracy,
disease- is "utterly affordable;" it requires that
industrial nations double their aid to poor countries, to
one-half of 1 percent of national income, from one-quarter
of 1 percent. The head of the team that prepared the
Millennium study, Professor Jeffrey Sachs emphasized that
"the problem is ... the lack of financing. (New York
Times, 2005)
In 2002 many world leaders, including
President Bush, supported a declaration promising a target
of providing seven-tenths of 1 percent of their national
incomes for aid to impoverished nations.
"Five countries have
achieved that goal: Sweden, Norway, Denmark, the
Netherlands and Luxembourg. Britain, France,
Finland, Spain, Ireland and Belgium have committed
to reach that level on specific timetables. The
United States government, which allocated less than
two-thirds of 1 percent for aid, has not made a
comparable pledge; the Bush administration has
increased American aid by a half, to 15 hundredths
of 1 percent from one-tenth of 1 percent, but it is
still the smallest percentage among major donors." (New
York Times, 2005)
To achieve the growth goal of the 1990s UN
program for Africa, NADAF, foreign aid (net official
development assistance) to Africa had to grow by an average
of 4 per cent a year. Instead, it fell 43 per cent from 1990
to 2000. (Africa Recovery, 2002a)]
[47] The Millennium team’s blueprint won
quick praise from the heads of the World Bank and the
International Monetary Fund, as momentum had been building
among rich nations to increase aid to the world’s poor in
part as a reaction to the concern arising from the events of
September 11, 2001 that impoverished nations can be
incubators of terrorism and conflict. Britain has seized the
leadership in this matter, with a special focus on Africa. (New
York Times, 2005)
Not only increasing aid, but also forgiving
Africa’s crippling debt is being seriously considered.
Kenya, to give an example, reportedly spends about 40
percent of its annual budget to pay interest on foreign
debt. The British and French made proposal at a recent G-8
meeting that would relieve 100 percent of the estimated $50
billion in debt that Africa owes to the World Bank, the
International Monetary Bank and other international
financial institutions. It would have paid off Africa’s debt
by using the IMF’s gold reserves and money from new bonds. (San
Francisco Chronicle 2005)
[48] In February 2005, the British and
French debt reduction proposal was rejected by the US which
is the biggest contributor to the World Bank and IMF. (San
Francisco Chronicle 2005)
[49] (Sachs 2005)
[50] (Rosett 2005).
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