INTRODUCTION

I. METHODOLOGICAL FOUNDATION

II. PROBLEMS FACING AFRICA

A. Problems within Africa

B: Problems in Africa's foreign relations: from NIEO to NWO to Globalisation

III: RESPONSES

CONCLUSION

NOTES

BIBLIOGRAPHY

"Africa is rich". The woman who told me that met me in a dream. She noted the wealth of Africa - not only in coffee, cocoa, and tea, but also in gold and cloth. And indeed Africa is resource rich - not just in agricultural or "exchange value" metals such as gold, silver, platinum or rocks such as diamonds - Africa is also resource rich in petroleum, cobalt, and another half dozen or so "strategic minerals" which while not used in daily life are of vital importance for high performance aircraft.

"Africa is rich." she said - and she meant it (she was carrying her infant child on her back using a sort of hammock contraption which I had never seen in North America but which is popular in the african communities in France). So maybe she was saying it to instil pride in her child - who knows, she was a stranger and it was just a dream.

But that dream has nagged at me since then. "Why is Africa resource rich - yet beset with a declining growth rate?"(1)

This paper is going to attempt to answer that question by explaining the legal mechanisms that both failed to present stable governments for Africans and which have permitted systemic - if not systematic - looting of Africa's resources. Africa is rich - and cursed. Africa is all too often cursed with irresponsable corrupt and illegitimate governments. Divided nations living within artificial borders and subject to the manipulations of former imperialist powers cannot provide effective internal order and thus become prey to opportunists, demagogues, and exploiters. This reality is exacerbated by the transformations in the international state system. However those transformations could also present the opportunity for the reconceptualisation of legal structures to help escape from endemic poverty.
 

I. METHODOLOGICAL FOUNDATION

>>The master's tools cannot demolish the master's house<<

-Audré Lord (Attribution)

To criticize the neo-colonial system and rebuild on better foundations which will serve the people we must understand that the colonial and neocolonial regimes are not inevitable nor inevitably just. International law is fundamentally western and christian,(2) the law of civilized, (i.e. civil law) states.(3) This lens filters all thought on international law - and the filtering that it does limits and favors certain outcomes. Because of this built in systemic bias, some argue that international law is in fact illegitimate.(4) However even if international law as a whole is illegitimate, it can neither be ignored, nor dismissed. It may be bad law, but it is the only law that there is and is the necessary starting point for any transformation of its contents.

If we understand the fact that customary international law and the concept of sovereignty are western conceptions adopted or imposed by the world we can then consider alternatives. The fall of the Soviet bloc signals the end of socialist law as a systemic practical challenge: that leaves only one serious third world challenge to international law, Islamic shari'yah. Islamic law is in some ways quite fair. For example, it prohibits usury. But in other ways Islamic law is problematic, as it limits the role of woman to a very specific function. That incidentally is arguably still more humane than capitalism: many of the roles capitalism proposes for women are essentially prostitution - whether obvious, hidden, or glamorised. However though the debate over the freedom to choose a career as a sex worker versus the "oppression" of islamic marriage is beyond the scope of this paper it is useful to point out the tension to demonstrate how quickly many "unquestionable" (i.e. unquestioned) presuppositions of individualistic capitalistic thought unravel. The point is: law should offer better roles to persons than "object of sexual gratification" or "child bearing unit".

This is by the way just one illustration of how "progress" often turns out to be repression(5) and how legally attractive concepts like "human rights" become only a trap used to manipulate and destabilize third world governments. (6) Free public education in francophone Africa always came with the explicit understanding that the gift of French culture and civilization bore a duty to uphold and extend that culture (which again is not universally or necessarily evil - since every culture has its good points). However the imposition (to put it bluntly) or transposition (to put it diplomatically) or transmission (to put it nicely) of French art, philosophy, literature and table manners carried with it the erasure of national history. This erasure is not confined to the third world but also occurs in the imperialist lands(7) - which shows that the legal and cultural frontiers are far from congruent and that the reality of oppression is universal. This process of internalization of the dominant (and self contradictory) paradigm of christian liberal individualism serves as the wedge in conflicts between nations within the first world (e.g. latinos and africans in america)(8) as well as in the third world.

The exposure of the internal contradictions of the system leads one to recognize that the superstructure, i.e. the intellectual justifications of the system, are only smoke and mirrors. If you really want to understand the machinations of power you must look at the forces of production, i.e. the material base, the economic relations,(9) and not the superstructure which rationalises it (Foucault). The instrumentalities of oppression are ultimately material.

Good practice thus looks at material basics, i.e. "who will serve and who will eat" - and what they eat. However when discussing the superstructural rationalisations of the hierarchical imposition of force and the extraction of labor and raw materials thereby, third world approaches to international law can help in the demystification. Like critical legal studies TWAIL operates through deconstruction (exposing rationalisation as such and demonstrating the material realities), criticising hierarchy(10) (the method through which labor is extracted and ideas justified), and raising alternative perspectives and possibilities.(11) One point critical race theory seeks to expose is that thinking in terms of "blacks" and "whites" injures both blacks and whites(12) - though here materialist analysis must step in to say "yes, but the net result of the racism is a net economic gain for whites" - and some persons of color(13) (who are compradors). In other words, imperialism remains profitable for some - and will continue for that very reason, unless actively, systematically, and vigorously opposed with realistic critiques and alternatives. TWAIL, like CLS, offers critiques. Does it offer alternatives?
 

II. PROBLEMS FACING AFRICA

A. Problems within Africa

We have identified that our perception of the problem is simultaneously founded on an understanding of the traditional legal methods of international law, coupled with a skepticism toward those methods and autocriticism of that scepticism. Knowing this is our methodology we can now we ask ourselves "what is the problem"?

The principle problem facing Africa is poverty.(14) Africa is not alone in poverty - in fact about 2/3 of the world live at or below subsistence level.(15) However African poverty is endemic, among the worst, and has been steadily getting worse.(16) Since decolonialisation. The wealth gap between the first world and Africa not only has not shrunk, it has widened.(17) African poverty is partly a function of over-indebtedness.(18) Debt(19) forces African states into "structural readjustment programs" (SAPS - currency, interest rate, and exchange rate mechanisms which automatically "adjust" the countries macroeconomic indicators).(20) SAPs effectively transfer wealth from Africa to the first world via usury. Perpetual debt, continuously refinanced, leads to currency liquidity problems.(21) If an African state seeks to avoid this through inflating its currency, the result is capital flight(22) leading to economic downturn exacerbating the problem. Thus the third world is directly and indirectly dependant on western currency:(23) directly, through foreign investment when the currency is so devalued as to become meaningless or is seen as risky. Indirectly, when the local currency is "pegged" to a stable western currency (a prudent policy). And this is unavoidable so long as those states remain indebted and so long as their domestic currency is seen as unstable.
 

From these facts follows the logical conclusion that a stable monetary policy is one key to curing African poverty.

Shortages of capital are of course already a problem even where responsable monetary policies are in place because of political instability and also because of new and more attractive investment opportunities in eastern Europe. However if the immediate consequences of debt are currency instability and capital flight the ultimate consequences are famine(24) and at the most extreme genocide.(25)

The west likes to argue, sometimes contemptuously,(26) that third world poverty is a function of political corruption.(27) That argument ignores the fact that corruption serves the interest of western governments and is an instrument of indirect control. Corrupt governments are both easier to controll through bribery, to destabilize through revolution, and to eliminate through coup d'état.

These general tendancies can be illustrated by specific examples. Sudan is one of the poorest lands on earth - yet has oil. However it has also (and in part as a result) had a civil war(28) leading to an instable business climate.(29) The result: restrictions on capital(30) and an imbalance of payments in the 1980s.(31) So while Sudan could have done very well indeed(32) it did not do as well as it might have.(33) There are of course far worse cases: Rwanda, for example, which suffered an orchestrated(34) and efficiently executed(35) genocide.

What is true of Sudan specifically is true of other African states generally: ethnic division of peoples within artificially created colonial administrative boundaries can lead to conflict. Almost every African internal conflict fits this description. The vicious circle of instable and corrupt governments overseeing irresponsable monetary policy leading to perpetual indebtedness, currency instability, and capital flight is thus completed with instable and corrupt governments which collapse with sickening regularity, and all too often in pools of blood - occasionally instigated, sometimes aided and abetted but rarely regretted by western multinational companies and former imperialist powers. These problems can only be seriously adressed either by the establishment of stable multinational states (unlikely but not impossible) or by redrawing the borders of African states to reflect the national realities. So a stable monetary policy is a necessary but insufficient condition to improvement.
 
 

B: Problems in Africa's foreign relations: from NIEO to NWO to Globalisation

The relationship of the first and third world since the declaration of the NIEO in 1974(36) has been marked by great hope and even greater disappointment. This paper argues that this relationship can be studied with reference to three distinct phases: The so-called "New International Economic Order" (1974-1989) the attempted New World Order (1990-1994) and Globalisation. African state's relations with the first world also roughly paralell this distinction moving through three phases of colonial domination (pre NIEO), confrontation with threats at nationalisation (NIEO/NWO) and finally negotiation (NWO/globalisation).(37)

None could have predicted in 1974 the spectacular, in fact near total failure, of the third world to impose a "New International Economic Order" on the west. Because this project was so ambitious, and failed so spectacularly, yet covers nearly two decades, we shall explore it in some depth.

The NIEO was declared during the first Arab oil embargo of 1974. The cold war was in full swing, illusions of detente to the contrary. The Nixon regime had waged proxy wars in Chile, former Indochina, and among the Arab neighbors of Israel. Two of these proxy wars (Suez '73 and Chile) were brilliantly succesful (the Soviet airlift to Egypt being in no way equivalent to the US airlift to Israel in tonnage or quality of weapons delivered). Despite "rumors" (probably true) of US and Soviet fighter pilots engaging in dogfights in the skies over the Sinai and North Vietnam, the world did not explode into a nuclear war. However the US probably did not forsee the Arab oil boycott which drove the world into its worst post-war recession, effectively ending the constant growth and prosperity of the post war. Given the collapse of the Nixon administration in a bloodless administrative coup and the crippled US economy (suffering from simultaneous inflation and high unemployment) it is hardly surprising that the third world thought it possible to wring concessions out of the first.

This did not happen. In order to understand why we will now examine the contents of the NIEO.
 
 

1. Contents of the NIEO

Philosophically the NIEO argued that the world was a "global village", i.e. one national society.(38) Because wealth and knowledge are not socially produced, they should be socially distributed.(39) NIEO questions the northern model of development, but does recognize that while some "progress" is in fact repression, development is the sine qua non of existence.(40) Since the NIEO does not reject the idea of progress it must be seen as a modern (and to some extent "western" idea - which raises the interesting question: where does the North end and the West begin?).

Let us turn to the positive content of this philosophical framework. The NIEO proposed a charter of economic rights and duties.(41) It manifested a distrust of international law among the 3d world states(42) for the reasons outlined in our discussion of TWAIL and entailed a rejection of classical capitalist theories of trade.(43) NIEO acknowledged the systemic hypocrisy(44) of imperialism and presented a coherent theoretical rejection of the west as an intellectual paradigm.(45)
 
 

The NIEO was declared in a resolution of the UN General Assembly.(46) In addition to the charter of rights and duties it also contained a programme of action.(47) Its goals went beyond merely alleviating poverty(48) in an attempt to change the material relations of production in order to better the lot of persons in the third world. Among the demands were: Increased exports from the third to the first world; transfers of capital to the third world; transfers of technology to the third world; a regime to control multinational corporations; as well as provisions for increasing aid and to alter the international monetary system.(49) Some have argued that these principles were not so radical(50) since they still presumed at least a mixed economy and were not outright nationalisation. If presented as reparations such transfers would be more defensible. However without presenting at least a symbolic exchange calls for unilateral wealth transfer from the first to the third world were met with scepticism.

As to the applicability of NIEO, some argued that NIEO to be binding international law(51) presenting the argument either that the resolutions of the general assembly are a source of law, or reflect "instant" international custom.(52) Within a classical western conception of international law this is of course nonsense. A custom must be an accepted practice viewed as binding - and there was no practice. As to the argument that UN resolutions are binding, while the UN is an international organisation with legal personality it is no state: resolutions of the UN are not binding but depend upon enactment either by member states or by the security council. It was of course exactly this inegalitarian strand of the UN that was called into question by the NIEO (and later TWAIL) particularly in the extreme variants which consciously reject customary and conventional international law. Such radical critiques failed in part because they did not offer serious alternatives for elaborating legitimate international law.

As we shall see the ultimate failure of the NIEO to realise its ambitions shows that while the West regularly uses its economic power to control the third world(53), any new economic order will arise through reform under the aegis of the bretton woods system(54) - at least for the forseeable future.
 
 

2. The New World Order (NWO)

The end of the cold war in 1989 also marked the functional end of the NIEO. While NIEO literature does continue, the chances of realising the ambitions of the NIEO are currently nil.

This is not to say that there was an immediate and instant abandon of any idealism. During the transition from cold war to colder peace, the west sought repeatedly to impose normative standards on the third world which would serve the interests of the third world. While the coalition arrayed against Iraq killed many people, it was also nearly universal and thus in some sense "legitimate". During the Clinton administration the US attempted (at increasing risk to its own soldiers) several "humanitarian interventions" in Haiti, Liberia and Somalia. However the warring factions in Somalia effectively prevented any help being done. As a consequence of the experience of risking the lives of its soldiers in pointless conflicts, the west has since drawn a line and resolutely ignored wars - with the notable exception of Yugoslavia, and there only because it is in Europe. France waited to intervene in Rwanda untill after both sides were exhausted. While it is true that "the west ditched Africa"(55) it is difficult to blame western governments for their inability to impose peace by risking the lives of their own citizens to forcibly seperate warring peoples.
 
 

3. Globalisation

With the end of the hope for global coalitions and humanitarian peacemaking (as opposed to peacekeeping) in the third world the world settled into the current phase of globalisation. The main foreign policy concern of neo-colonialism today is almost purely commercial: opening up third world markets and maintaining safe access to raw materials. This is accomplished through multilateral treaties adminstered by unelected bodies such as the WTO. Such negotiations, like most international negotiations, are undemocratic and thus illegitimate(56) NIEO scholars have recognized that global negotiations are not always good and that bilateral negotiations are sometimes better.(57) However that presupposes the objective of the international system to be the alleviation of third world poverty when the systemic objective is in fact efficient wealth extraction. Any residual idealism has already served the purpose of a peaceful transition from cold war to colder peace, and moreover been proven by experience in Somalia to be naive, unrealistic, and in fact dangerous. Peacekeeping missions may continue - but to expect any further attempts at peacemaking would be unrealistic.
 
 

C. Problems facing not only Africa but the entire world: the decline of sovereignty

The problem we have identified is the failure of the third world to resist the depradation of its resources. This failure is most clearly seen at the theoretical level in the collapse of the NIEO following the end of the cold war. The theoretical failure is not however limited to Africa. The transformations in the idea of sovereignty have had consequences which affect not only the third world but also the first world yet which further operate to the disadvantage of persons in the third world.

1. Fragmentation

a. Fragmentation in the practice of soveriegnty: the death of the monopoly of the state as sole international legal person.

The classical international law definition of soveriegnty considers only states as international legal persons. This theory however is being undermined in practice by material realities. The influence of multinational corporations(58) - some of which have larger budgets than third world countries - is not to be discounted. Some have even posed the question whether multinationals are or should be subjects of jus gentium?(59) Not only the corporations but also the mobility of the capital that their shareholder's employ and deploy as well as the impetus of that capital undermines the practice of sovereignty through currency and interest rate destabilization.(60)

If the nominally "sovereign" third world faces the "goliath" of multinational companies, it also faces a swarm of "Davids": Non-governmental agencies. Whether they pursue helpful or harmful acts undermine the claim of the state to the monopoly of legitimate representation.(61) More problematic, arms merchants, and drug dealers ignore the boundaries of the state.(62) While a refugee seeking a better life in the first world is certainly no criminal, the instant global mobility which permits migrants from Sri Lanka to emigrate (legally or not) to France shows one more stress on the concept of the "sovereign" (nation) state.(63)
 
 

b. Fragmentation of the idea of soveriegnty

The idea of the state as monopolist of representation and legitimate violence is undermined in practice by these realities. However theoretical challenges to "the state" and "soveriegnty" also abound. At the most fundamental level representative individualistic liberal theory undermines the state.(64) If the individual is primary why should the state be able to control him or her? Once the premise of the primacy of the individual is admitted, the consequence of the rebuttable presumption of the illegitimacy of state action follows.

The idea of the sovereign as absolute master was also questioned in the war and post-war treatment of Iraq(65) where we see the nominally "sovereign" Iraqi state controlled in terms of imports, exports, and airspace. Other breaches of state sovereignty crop up in unlikely places: none would imagine the case of Agosto Pinochet as becoming one more example of the invaliditiy of the old presumption that "the sovereign can do no wrong". None the less, his arrest is evidence of exactly that proposition.(66) Yugoslavia/Kosovo is one more example of a nominal sovereign being nothing more or less than the battlefield for transnational interests (Islam, the West, pan-Slavism, and oil futures...).(67) It is not impossible that the phenomena of globalisation will lead to a new jus gentium, as some scholars have suggested.(68) This explains the relevance and interest of NIEO and TWAIL scholarship - what would be the contours of the new law of nations? TWAIL may not have the answers expected but it will at least pose interesting questions.

One element of the new jus gentium would be the limitation of sovereignty according to a principle of responsability.(69) If democracy were to be a principle of the new jus gentium(70) such democratic demands must be proportioned to economic development. The new law of nations propsed(71) would thus become a constitutional system of international law.(72) That is probably just unrealistic utopian fantasy. However the decline of the Westphalian nation state explains why such fantasy can be considered. We will now explore how the concept of the state has been challenged through integration and disintegration.
 
 

c. Fragmentation of the idea of the state

Just as the idea and practice of the state as hermetic atom is most clearly failing, the state is also disintegrating via an atomisation into ever smaller entities. One method which brings about state decomposition is privatisation. While the NIEO neither forsaw nor proposed privatisation, such a principle could become a part of international law and is certainly a trend of some twenty years now. The tendancy toward privatisation(73) affects not only administrative functions of the state, but even reaches to police functions.(74) Decomposition of the state into ever smaller entities also occurs not functionally but structurally: the state is also being fragmented into different sub-state entities (regions and peoples).(75) Thus the challenges facing African states are not only due to their position as poor puppets of former colonial masters, but also due to challenges facing the state and the international state system as a whole.
 
 

2. Integration

At the same time as multiple converging phenomena result in the fragmentation/atomisation/decomposition of the state in both its structure and functions (disintegration), the state is also menaced with extinction through its subsumation into ever larger transnational entities through the processes of globalisation.(76) APEC, EU, MERCOSUR, NAFTA are all examples of this tendancy toward global structures.(77) Thus the "micro" functions of the state - police, education, and general welfare, are being broken down and removed to ever more local entities while the "global" aspects of the state - trade and defense - are handled by ever larger (and ever less democratic) transnational entities (including transnational corporations). For these reasons it is not only the third world which is facing enormous stress - the first world is also undergoing wholesale transformation of the structure of its governance.
 
 

3. Transformation

That raises the question of the possibilities of such transformation: are the best of all worlds now possible? Inter-imperialist rivalries, a characteristic of Neo-colonialism, are much less strident than in previous eras - but only in the first world. This is partly because the objective of continental and global trading regimes was to divorce territorium and economic strength. The multinationalisation of the world, with global companies operating in a global marketplace under first continental, and now more recently global rules, was specifically intended to avoid imperialist arms-races and bloodbaths of which the two world wars are only the most obvious examples. To the extent that such divorce has helped keep the peace one must give the devil his due - rather than killing Europeans and Euro-Americans imperialism now limits its killing to third world persons. Thus the transformationist thesis argues that "the best of possible worlds is possible" - and some transformation and humanisation of the world order has indeed occurred.(79) However the transformationist thesis appears to make the mistake of considering only the first world. If we consider the third world and its interaction with first world states we witness all the paradigms of realpolitik: Arms races, ethnic rivalry, and the question of market share. The transformationist thesis must thus be seen as a special theory applicable only in the first world and not a general theory - as the failure of humanitarian peacemaking in Somalia demonstrates.

4. Realism

Looking at the world through a global perspective which considers not only the first world but also the third world we must take a realist perspective. The state is resilient(80) - like a cockroach, even atomic war does not kill it. While many African states are at best only nominally sovereign, the state's claim as à priori à the individual, i.e. its superior resources and capacity to marshall will and to invoke legitimacy explains why the state will survive(81) even in nominal sovereign entities that have little historical reality and even less cultural reality.
 
 

THE INTERNATIONAL SYSTEM'S EVOLUTION

The history of the third world is not all blood.

We can of course find many failed nation states: Somalia, Liberia, Rwanda, Bosnia, Cambodia,(82) Chechnya, and East Timor(83) are all examples - sometimes disasters - that demonstrate the weakness of nominally sovereign states in the face of transnational ethnic and economic concerns. There are however some success stories in Africa: Mauritius, Botswana, Ivory Coast, and to a lesser extent Kenya, and Zimbabwe.(84) Thus a methodological research point which should be developed would be a comparison of these regimes to determine why the failures failed, how to prevent such failure, why the success stories succeeded, and how to repeat such success. This author's hypothesis is that there would be a direct positive correlation between ethnic unity, responsable government, and stable monetary policy with economic success, and an equally strong but negative correlation of multiethnicity, corruption and instable monetary and capital policy in the failures.
 
 

D. Inability of International Law as currently conceptualised to solve these problems

The currently developing rules of international law are in fact just as incoherent as the liberal-individualist-christian ideology from which they evolved. But not for the same reasons: the contradictions in international law today are not the product of an incoherent ideology leading either to theoretical impasse ("paralysis"), or confusion ("spasmophilia"). Rather they are conflicts in the postive law of nations and the result of differing views of what the rules should be. The resolution of these antinomies will determine the shape of the new jus gentium. The fact that legal contradiction is so fundamental as to pose antinomian challenges to the positive law does help explain why advocates of the NIEO thought it possible to enforce a new norm of international responsability of the first world to the third world. We shall now describe these antinomies in order to to prove these propositions and also to show the possible scope of the future jus gentium.

One current principle of international law is the principle of non-intervention.(85) This principle is immediately contradicted however by the opposing principle, which is more recent in time, of "humanitarian intervention"(86) and the related (possibly independant) concept of droit de l'ingérance.(87) No such norm existed 100 years ago, nor even 50 years ago. Where did it come from and to what extent is it valid? Is the principle of "humanitarian intervention" merely an exception to the rule of non intervention? And if so why is it not an independant prior principle? And how is it justified with the classical view of the state as sovereign autonomous and independant?

A second confused principle of international law is the principle of self determination of peoples.(88) This principle is also relatively recent, dating only from the end of the first world war, when the US President Woodrow Wilson declared it as one of his "14 points". However the question arises: what is the people who enjoy the right of self determination?(89) To be consistent, this author believes that that right is the right of a people, i.e. a coherent ethnic and linguistic group. Under such a rule however, Waloons would have the right to their own state - as would the Welsh.(90) For exactly this reason the right was interpreted to indicate that the it would only inhere in former colonized states(91) and not ethno-linguistic nations. The integrity of the colonial borders would be respected. The result is that the colonial borders - which have no correspondance at all to the various ethnic groups in Africa - have been "frozen in time". Eritrea is the only example of a succesful African secession (though Tanzania did fuse) with which the author is familiar - and even Eritrea was a former colony (Italian Somaliland) and is made of two different peoples (the Eritreans and the Tigreans). Thus was the "right of national self determination" transformed from a potentially liberating force to merely one more weapon in the arsenal of tyranny. It is no longer a freedom but merely the right to maintain order.(92) Any radical and fundamental solution or alternative to the current international law would come about through recognizing the reality that a people is a common ethno-linguistic unit and the proper basis of sovereignty. Such would however involve redrawing many borders and so is unlikely barring radical systemic economic failure within the first world states.

The failure of the question of national self determination to be properly based on the right of a people, i.e. an ethno-linguistic continuity, as the proper basis of soveriegnty does illustrate one of the important points of the western conception of international law. At least as currently conceived, the primary objective of international law is to maintain order and not to impose justice. Any radical critique must call this principle into question - which this paper does not, incidently propose. Even given the admittedly Hobbesian view that "order" is a precondition to "justice", we can at least see some hope in the fact that principles of justice do become systemic concerns of systems which are both orderly and prosperous (which are then beset with the problem of remedying the irremediable past injustices which are the very basis of their prosperity).
 

III: RESPONSES
 

If we have correctly perceived the problems facing Africa, the the question now is how can they be solved? Some authors still speak of "nation building".(93) Such a hope is however misplaced. First, no state in Africa is founded on a unity of territory and people. Thus all states in Africa are potentially divisible and cannot become national states but at best multinational states. Unfortunately the hope that the reality of interdependance(94) (and dependancy on luxuries - coffee, tea, cocoa - is not the same as dependancy on primary necessities - finished goods, wheat, soy, corn, beef) will lead to an "enlightened self interest"(95) that recognizes, for example, that refugees in the first world are the consequence of poverty in the third world are almost as badly founded. Even making the point that poverty is the seed of marxism(96) will not motivate individual capitalists, but only - and only possibly - the governments of capitalist states. It is true that neoliberalism is unrealistic in countries with no infrastructure,(97) and thus hopes to export capitalism fully grown to Africa are ludicrous, the logic of neoliberalism - greed - will indicates that none will seek to better Africa except for Africans themselves.

It is for this reason that the NIEO was overly optimistic. It is not the case that we can expect enlightened self interest. However we can and should plan upon the presumption that in capitalist states persons will act on, and probably only on, their immediate self interest. Thus the idea of the "solidarity" of the south,(98) while a wonderful ideal and a pleasant hope cannot be counted on to help African's escape from the cycle of debt and the opression that it entails.

What of international connections? Will foreign powers help Africa? Hardly likely seeing as it is they who have lent the golden chain of debt. But if first world powers are unlikely to offer real change there is some hope for coalition politics among the third world to achieve the goal of stability peace and prosperity. So while Lomé has not helped(99) - because it is part of a seamless web of imperialist history(100) - it may still serve as an umbrella for other regional groupings.(101)

Some analysts of the failure of the NIEO argue that the NIEO failed because of divisions in the south(102) leading to strategic paralysis.(103) That analysis however looks to transnational or even gloabal institutions and arrangements as key to determining the future of African states. Were that hypothesis correct then there would be no success stories. Restoring domestic order within individual third world countries is the task of those countries individually. While these strategic difficulties will limit the ability of the south to formulate a coherent "NIEO-II", they do not need to prevent individual states in the south from imposing order needed for devlopment. Thus our criticism of international law for placing order before justice must be tempered: every legal system must impose order before it can do justice. But a legal system which imposes order yet fails to do justice cannot be tolerated. All too often western "solutions" to the third world problems impose order - while doing injustice - according to the logic of profit. If we give the devil his due, that does not take away his horns.
 
 

CONCLUSION

This paper has attempted to show that a correct appreciation of the plight of third world states generally is dependant upon an understanding of the historical presumptions inherent in international law and also upon an appreciation of the challenges of the transformation of the state through disintegration into subnational and privatised entities which occurs simultaneously with an integration of macro state functions into transnational entities. We have presented the position that the plight of third world states is not necessarily irremediable, but that implementing remedies will be no easy matter. We have argued that such remediation will be contingent upon responsable and realistic economic policies which must be implemented by governments that are themselves responsable and as free of corruption as possible. The transformations of the international system which exacrbate challenges to the third world could even present opportunities for such remediation. While the NIEO has failed and the NWO has long been emptied of whatever idealism it may have had, the possibility nevertheless exists for reconceptualisation of the international order due to certain contradictions which exist in that order and which are a result of economic and technical changes. While it would be too much to expect those changes to allow Africans to draw new borders which reflect actual ethno-linguistic realities, it is entirely conceivable that multinational states governed by the rule of law could be created which would also be associated via regional accords and conventions to adress the problems of economic development. Whether this will happen is not however predetermined. If it occurs it will be due to Africans working together autarcically. One lesson of the failure of NIEO and humanitarian peace making: Africa must depend on itself to create any solution to its problems.
 
 

1) Weisbrot, Naiman, Kim "The Emperor Has No Growth: Declining Economic Growth Rates in the Era of Globalization", "In Latin America, GDP per capita grew by 75% from 1960-1980, whereas from 1980-1998 it has risen only 6%. For sub-Saharan Africa, GDP per capita grew by 36% in the first period, while it has since fallen by 15%." CEPR: http://www.cepr.net/IMF/The_Emperor_Has_No_Growth.htm

2) Makau Mutua, "What is TWAIL?", ASIC 2000 (State University of New York at Buffalo) p. 37.

3) The New International Economic Order Legal Debate, Peter Lang, Frankfurt (1983)

4) Makau Mutua "What is TWAIL?", ASIC 2000 (State University of New York at Buffalo) p. 31.

5) Richard Delgano. "Derrick Bell's Toolkit - Fit to Dismantle that Old House?" N.Y.U. L. Rev, Vol. 75, No. 2 May 200 p. 283, 291.

6) Claude Nigoul, Maurice Torrelli, Les Mystifications du Nouvel Ordre International Paris: PUF (1982). p. 19.

7) Richard Delgano, "Derrick Bell's Toolkit - Fit to Dismantle that Old House?" N.Y.U. L. Rev, Vol. 75, No. 2 May 200 p. 283, 292.

8) Richard Delgano "Derrick Bell's Toolkit - Fit to Dismantle that Old House?" N.Y.U. L. Rev, Vol. 75, No. 2 May 200 p. 283, 294.

9) Stuart Bonner "Conquest by Contract: Wealth Transfer and Land Market Structure in Colonial New Zealand" Law and Society, Vol. 31, No. 1 2000. p. 47.

10) Makau Mutua "What is TWAIL?" ASIC 2000 (State University of New York at Buffalo) p. 36.

11) Makau Mutua "What is TWAIL?" ASIC 2000 (State University of New York at Buffalo) p. 31.

12) Richard Delgano "Derrick Bell's Toolkit - Fit to Dismantle that Old House?" N.Y.U. L. Rev, Vol. 75, No. 2 May 200 p. 283, 290.

13) Makau Mutua "What is TWAIL?" ASIC 2000 (State University of New York at Buffalo) p. 32.

14) EC Green Paper Poverty in the third world p. III.

15) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983) p. 1.

16) Joachim Betz "The New International Environment and EC-ACP Cooperation

p. 123.

17) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983) p. 13.

18) Gabe Varges The New International Economic Order Legal Debate Peter Lang, Frankfurt (1983) p. 33.

19) Joachim Betz

"The New International Environment and EC-ACP Cooperation

p. 123.

20) Joachim Betz "The New International Environment and EC-ACP Cooperation

p. 124.

21) Joachim Betz "The New International Environment and EC-ACP Cooperation

p. 126.

22) Olukoshi and Idris Nigeria's Foreign Policy (VERIFY: Reserve reading ZERP) Nigerian Journal of International Affairs Vol. 17, No. 2 1991.

p. 165.

23) K. Simmonds "The Lomé Convention and the NIEO" 13 CML L. Rev. 1976 p. 315 p. 329.

24) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 572.

25) Mark Drumbl "Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda N.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1246.

26) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International, Paris: PUF (1982) CHECK YEAR p. 9

27) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 54-55.

28) Adila Abusaharaf "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law Vol. 43 p. 18-35, p. 27.

29) Adila Abusaharaf "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law, Vol. 43 p. 18-35, p. 27.

30) Adila Abusaharaf "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law, Vol. 43 p. 18-35, p. 25.

31) Adila Abusaharaf "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects"

Journal of African Law Vol. 43 p. 18-35, p. 24.

32) Adila Abusaharaf "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law, Vol. 43 p. 18-35, p. 35.

33) Adila Abusaharaf, "The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law Vol. 43 p. 18-35, p. 22.

34) Mark Drumbl, "Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda N.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1246.

35) Mark Drumbl "Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda N.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1236.

36) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 105.

37) Adila Abusaharaf
"The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects" Journal of African Law Vol. 43 p. 18-35, p. 20-22.

38) T. Medhanie "Lomé: Can it Help Reverse Africa's Marginalization?"

Peter Mens: Staat und Gesellschaft in Afrika: Schriften der Vereinigung von Afrikanisten in Deutschland. Band 16 p. 397, 402.

39) T. Medhanie

"Lomé: Can it Help Reverse Africa's Marginalization?"

Peter Mens: Staat und Gesellschaft in Afrika: Schriften der Vereinigung von Afrikanisten in Deutschland. Band 16 p. 397, 402.

40) T. Medhanie, "Lomé: Can it Help Reverse Africa's Marginalization?"

Peter Mens: Staat und Gesellschaft in Afrika: Schriften der Vereinigung von Afrikanisten in Deutschland. Band 16 p. 397, 402.

41) Gabe Varges, The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983) p. 17.

42) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 35.

43) Rivero Oswald, New Economic Order and International Development Law

Oxford, Pergammon (1980), p. 5.

44) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 1.

45) Rivero Oswald New Economic Order and International Development Law

Oxford, Pergammon (1980), p. 123.

46) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 5.

47) Idem..

48) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 13.

49) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 15-16.

50) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 19.

51) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 20.

52) Gabe Varges The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983), p. 57.

53) Opermann and Petersmann Reforming the International Economic Order

Berlin: Duncker & Humblot p. 176.

54) Opermann and Petersmann Reforming the International Economic Order, Berlin: Duncker & Humblot, p. 173.

55) T. Medhanie, "Lomé: Can it Help Reverse Africa's Marginalization?"

Peter Mens: Staat und Gesellschaft in Afrika: Schriften der Vereinigung von Afrikanisten in Deutschland. Band 16 p. 397, 403.

56) Claude Nigoul, Maurice Torrelli, Les Mystifications du Nouvel Ordre International Paris: PUF (1982).

pp. 103 (North) pp. 108-109 south

57) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International, Paris: PUF (1982) p. 123.

58) Claude Nigoul, Maurice Torrelli, Les Mystifications du Nouvel Ordre International, Paris: PUF (1982) CHECK YEAR p. 104.

59) Daniel Thürer, "Modernes Volkerrecht Ein System Im Wandel und Wachstum

- Gerechtigkeitsgedanke als Kraft der Veränderung" Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht Vol. 60 No. 3-4 2000 p. 557, 587.

60) Re Famine see: Hans Corell, "Towards the Twenty First Century", ASIL p. 568, 8.

61) Hans Corell, "Towards the Twenty First Century"
ASIL p. 568, 13.

62) Hans Corell "Towards the Twenty First Century"
ASIL p. 568, 15.

63) Colin Harvey "Dissident Voices: Refugees, Human Rights and Asylum in Europe Social and Legal Studies, Vol. 9 No. 3, p. 367.

64) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 19 (because of its capitalist and individualist tones).

65) "The Quiet Continuing War against Iraq"

Zeitschrift für Öffentliches Recht/Austrian Journal of Public International Law, Band 55, Heft 2, 2000 p. 181.

66) Daniel Thürer "Modernes Volkerrecht: Ein System Im Wandel und Wachstum

- Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, p. 568.

67) Daniel Thürer "Modernes Volkerrecht: Ein System Im Wandel und Wachstum

- Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, p, 579.

68) Daniel Thürer "Modernes Volkerrecht Ein System Im Wandel und Wachstum

- Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, 586.

69) Daniel Thürer "Modernes Volkerrecht Ein System Im Wandel und Wachstum - Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, 591.

70) Anne Marie Slaughter "Judicial Globalization"

Virginia Journal of International Law Summer 2000 Vol. 40 No. 4, p. 1103, 1109.

71) Daniel Thürer "Modernes Volkerrecht Ein System Im Wandel und Wachstum - Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, 595.

72) Daniel Thürer "Modernes Volkerrecht Ein System Im Wandel und Wachstum - Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557, 597.

73) Oliver Gerstenberg "Justification (and Justifiability) of Private Law in a Polycontextural World" Social and Legal Studies Vol. 9 No. 3 p. 421.

74) Ian Loader "Plural Policy and Democratic Governance"

Social and Legal Studies Vol. 9 No. 3, p. 323.

75) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 15.

76) Oliver Gerstenberg "Justification (and Justifiability) of Private Law in a Polycontextural World" Social and Legal Studies Vol. 9 No. 3 p. 421.

77) Eve Darian Smith "Structural Inequalities in the Global Legal System

Law and Society", Vol. 31, No. 1 2000. p. 810.

78) Daniel Thürer "Modernes Volkerrecht Ein System Im Wandel und Wachstum - Gerechtigkeitsgedanke als Kraft der Veränderung"

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 557.

79) Mark Drumbl "Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda N.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1231.

80) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 21

81) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 22.

82) Hans Corell "Towards the Twenty First Century" ASIL p. 568, 18.

83) Mark Drumbl "Punishment Post-Genocide: From Guilt to Shame to Civis in RwandaN.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1227.

84) T. Medhanie, University of Leipzig Papers on Africa

"Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper"

Politics and Economics No. 15, 1998

p. 27.

85) Mark Rothert, Notes: On Intervention in East Timor

Columbia Journal of Transnational Law,

Vol. 39 No. 2000, p. 257, 262.

86) Mark Rothert

Notes: On Intervention in East Timor

Columbia Journal of Transnational Law

Vol. 39 No. 2000, p. 257, 264.

87) Yves Sandoz, "Droit ou devoir d'ingérence, droit à l'assistance : de quoi parle-t-on?" Revue internationale de la Croix-Rouge no 795, 31 août 1992, p.225-237 http://www.icrc.org/icrcfre.nsf/c12562ab0033995a412561f800501bb0/a657bad63af0026ec12563f000477c66?OpenDocument

88) Mark Rothert "Notes: On Intervention in East Timor"

Columbia Journal of Transnational Law Vol. 39 No. 2000, p. 257, 265.

89) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International, Paris: PUF (1982) p. 39.

90) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 40.

91) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 40.

92) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 9

93) Mark Drumbl "Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda" N.Y.U. L. Rev. Vol. 75 No. 5, 1221, 1292.

94) Claude Nigoul, Maurice Torrelli, Les Mystifications du Nouvel Ordre International Paris: PUF (1982) pp. 69-70.

95) T. Medhanie University of Leipzig Papers on Africa

"Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper" Politics and Economics No. 15, 1998, p. 33.

96) Claude Nigoul, Maurice Torrelli

Les Mystifications du Nouvel Ordre International

Paris: PUF (1982) CHECK YEAR-p. 30.

97) T. Medhanie, University of Leipzig Papers on Africa "Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper" Politics and Economics No. 15, 1998 p. 32.

98) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 123.

99) T. Medhanie University of Leipzig Papers on Africa

"Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper" Politics and Economics No. 15, 1998

p. 29-30.

100) Minta "The Lome Convention and the NIEO" Howard Law Journal, Vol. 27 No. 3 1984. p. 953 at 954, 974.

101) T. Medhanie University of Leipzig Papers on Africa

"Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper" Politics and Economics No. 15, 1998

p. 30-31.

102) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 85

103) Claude Nigoul, Maurice Torrelli Les Mystifications du Nouvel Ordre International Paris: PUF (1982) p. 118.
 

Adila Abusaharaf
"The Legal Relationship between Multinational Oil Companies and the Sudan: Problems and Prospects"

Journal of African Law

Vol. 43 p. 18-35

Joachim Betz

"The New International Environment and EC-ACP Cooperation"
 
 

Stuart Bonner

"Conquest by Contract: Wealth Transfer and Land Market Structure in Colonial New Zealand"

Law and Society, Vol. 31, No. 1 2000.

Hans Corell
"Towards the Twenty First Century"
ASIL p. 568

Richard Delgano

"Derrick Bell's Toolkit - Fit to Dismantle that Old House?"

N.Y.U. L. Rev, Vol. 75, No. 2 May 200 p. 283.

Mark Drumbl

"Punishment Post-Genocide: From Guilt to Shame to Civis in Rwanda

N.Y.U. L. Rev. Vol. 75 No. 5, 1221.

Okey Martin Ejidike

"Human Rights in the Cultural Traditions and Social Practice of South Eastern Nigeria

Journal of African Studies, Vol. 43 p. 71-98.

EC: Green Paper, "Poverty in the third world"

Oliver Gerstenberg

Justification (and Justifiability) of Private Law in a Polycontextural World

Social and Legal Studies Vol. 9 No. 3

Ian Loader

"Plural Policy and Democratic Governance"

Social and Legal Studies Vol. 9 No. 3

T. Medhanie

"Lomé: Can it Help Reverse Africa's Marginalization?"

Peter Mens: Staat und Gesellschaft in Afrika: Schriften der Vereinigung von Afrikanisten in Deutschland. Band 16 p. 397.
 
 

T. Medhanie

University of Leipzig Papers on Africa

"Integration of Sub Saharan Africa into International Trade: A Critical Review of the Green Paper"

Politics and Economics No. 15, 1998

Minta

"The Lome Convention and the NIEO"

Howard Law Journal, Vol. 27 No. 3 1984.

Makau Mutua

"What is TWAIL?"
ASIC 2000 (State University of New York at Buffalo)
 
 

Claude Nigoul, Maurice Torrelli

Les Mystifications du Nouvel Ordre International

Paris: PUF (1982) CHECK YEAR

Olukoshi and Idris

Nigeria's Foreign Policy

Nigerian Journal of International Affairs Vol. 17, No. 2 1991.

Opermann and Petersmann

Reforming the International Economic Order

Berlin: Duncker & Humblot
 
 

Rivero Oswald

New Economic Order and International Development Law

Oxford, Pergammon (1980)
 
 

Mark Rothert

Notes: On Intervention in East Timor

Columbia Journal of Transnational Law

Vol. 39 No. 2000, p. 257.
 
 
 
 

Anne Marie Slaughter

"Judicial Globalization"

Virginia Journal of International Law

Summer 2000 Vol. 40 No. 4, p. 1103.

Eve Darian Smith

Structural Inequalities in the Global Legal System

Law and Society, Vol. 31, No. 1 2000. VERIFY
 
 

Daniel Thürer

Modernes Volkerrecht

Ein System Im Wandel und Wachstum

- Gerechtigkeitsgedanke als Kraft der Veränderung

Zeitschrift für Ausländisches Öffentliches Recht und Volkerrecht

Vol. 60 No. 3-4 2000 p. 57.

Gregory Tzeutschler

"Growing Security: Land Rights and Agricultural Development in Northern Senegal"

Journal of African Studies, Vol. 43 p. 36-62
 
 

Gabe Varges

The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983)
 
 

The New International Economic Order Legal Debate

Peter Lang, Frankfurt (1983)
 
 

"Individual and NGO Participation in Human Rights Litigation Before the Court of Human and Peoples' Rights: Lessons from the European and Inter American Courts of Human Rights"

Journal of African Studies, Vol. 43 p. 71-98.
 

Rex Zedals

"The Quiet Continuing War against Iraq"

Zeitschrift für Öffentliches Recht

Austrian Journal of Public International Law

Band 55, Heft 2, 2000