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Neither Sheep nor Peacocks: T. O. Elias and Post-colonial International Law

Published online by Cambridge University Press:  01 June 2008

C. L. LIM
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Abstract

This article takes as its starting point the characterization of T. O. Elias as a representative of a ‘weak’ form of anti-colonial scholarship. Elias had sought to show that the ancient African kingdoms had participated in international legality with European states on an equal footing. The view has arisen in contemporary scholarship that this mode of argumentation is typical of the weak strain, evincing only a continued tendency to underestimate the imperial nature of international law itself. A related criticism is that many Third World scholars like Elias view international law's claim to universality and its ability to be inclusive as relatively unproblematic concepts. This article presents two interlocking claims. First, that while Elias was persuaded by the idea of a universal legal order derived from European thought, he never accepted the European view of universality. Vitoria and Grotius had paved the way for the idea of a universal legal order, but, as Elias was consistently aware, the extension of the European law of nations to Africa and Asia in the name of universality was unaccompanied by theoretical recognition in European legal thought that such universality cannot be unilaterally achieved on specific cultural terms. Second, that Elias did not view universality as an unproblematic concept. While he considered the legal order inherited from the European law of nations never to have been universal in its application, the post-colonial legal order could in principle approximate more closely to an ideal of democratic universality. We focus on Elias's attempt to substitute the doctrinal requirement of individual, sovereign consent with majoritarian lawmaking based on democratic theory, and his faith in the machinery of the United Nations as a ‘technology’ which post-colonial states would employ to put democratic majoritarianism into practice.

Keywords

consentcritical race theoryT. O. Eliaspost-colonialismTWAILuniversality
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 21 , Issue 2 , June 2008 , pp. 295 - 315
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1 T. O. Elias, The Nature of African Customary Law (1956), 92–5.

2 Ibid., citing E. S. Hartland, Primitive Law (1924), 138.

3 The words are Elias's own, citing B. Malinowski, Crime and Custom in Savage Society (1926), 30.

4 Elias, supra note 1, at 94.

5 See L. Obregón, ‘Noted for Dissent: The International Life of Alejandro Álvarez’, (2006) 19 LJIL 983, at 989. What Elias shared with Creole consciousness was the basic need for acceptance and inclusion in the international legal order. This juxtaposition of an absent emphasis on particularity coupled with an emphasis on the ‘sameness’ of African and European international law presented, as I argue below, much cause, together with Elias's belief in the possibility of true universality, for the misunderstanding that he simply apologized for the international legal order.

6 For the two conceptions of equality see Hughes, P., ‘Recognizing Substantive Equality as a Foundational Constitutional Principle’, (1999) 22 Dalhousie Law Journal 5, at 38–49Google Scholar, and G. E. Devenish, A Commentary on the South African Bill of Rights (1999), 43–9. For the application of equality as ‘difference’ to transnational problems, celebrating locally contingent perspectives, see Anghie, A. and Chimni, B. S., ‘Third-World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese Journal of International Law 77, at 83CrossRefGoogle Scholar; Nesiah, V., ‘Toward a Feminist Internationality: A Critique of US Feminist Legal Scholarship’, (1993) 16 Harvard Women's Law Journal 189Google Scholar. In a sense, I am making no judgement here about whether equality as difference or as sameness is the more progressive notion. While observing that the literature tends to pay attention to local, contingent truths – in other words ‘difference’ – as progressive discourse, I mean only to indicate that Elias does not place much emphasis on this. Having said that, it has been noted that ‘difference’ discourse may also be regressive; see C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987), 39, which attacks the discourse of ‘difference’ in C. Gilligan's work: C. Gilligan, In a Different Voice: Psychological Theory and Women's Development (1982).

7 Requiring a standard of civilization to be met as a precondition to membership of international society is not what true, theoretical, universality is about; see, e.g., the discussion of Vitoria in G. W. Gong, The Standard of Civilization in International Society (1984), 36–7, and H. Bull's brief remarks on Grotius and Vitoria, ibid., at vii (Foreword).

8 T. O. Elias, Africa and the Development of International Law (1972), 46–61; T. O. Elias, New Horizons in International Law (1992), 29–152.

9 Citing S. P. Sinha, New Nations and the Law of Nations (1967); J. Gathii, ‘International Law and Eurocentricity’, (1998) 9 EJIL 184, at 190, citing S. P. Sinha, New Nations and the Law of Nations (1967).

10 R. P. Anand, New States and International Law (1972), 20. As we shall see, Elias believed that the extensive law-making accompanying the post-colonial period was at least comparable, if not more extensive.

11 There is a vivid account of this in R. P. Anand, Studies in International Law and History: An Asian Perspective (2004), 24–102. See also the short remarks in Onuma, Y., ‘Japanese International Law' in the Prewar Period – Perspectives on the Teaching and Research of International Law in Prewar Japan’, (1986) 29 Japanese Annual of International Law 23, at 29Google Scholar.

12 In practice, however, the device used in the post-war period to delay decolonization was no longer the League of Nations' notion of a sacred trust to ensure the gradual development of ‘such peoples’ who were ‘not yet ready to stand by themselves under the strenuous conditions of the modern world’ (Article 22(1), League of Nations Covenant, 28 June 1919), but the more modern, UN Charter-based, concept of domestic jurisdiction under Article 2(7) of the Charter. See, e.g., the arguments presented by France in relation to the French North African possessions of Morocco, Tunisia, and Algeria in H. A. Wilson, International Law and the Use of Force by National Liberation Movements (1988), 63 ff.; R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 94–6.

13 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/RES/1514(XV) (14 December 1960). Cf. UN Doc. A/RES/1541(XV) (15 December 1960).

14 See M. Pomerance, Self-Determination in Law and Practice (1982), 9–13 (emphasis in the original).

15 Resolution on Permanent Sovereignty over Natural Resources, UN Doc. A/RES/1803(XVII) (14 December 1962); Declaration on the Establishment of a New International Economic Order, UN Doc. A/RES/3201(S-VI) (1 May 1974); Charter on Economic Rights and Duties of States, UN Doc. A/RES/3281(XXIX) (12 December 1974).

16 For Elias's attention to these issues, see, e.g., Elias, New Horizons, supra note 8, at 170–1, 179–82, 185–249; Elias, Africa, supra note 8, at 201–20.

17 This continued, however, an already well-established interest in the subject – see Sloan, F. B., ‘The Binding Force of a “Recommendation” of the General Assembly of the United Nations’, (1948) 25 British Yearbook of International Law 1Google Scholar; Johnson, D. H. N., ‘The Effect of Resolutions of the General Assembly of the United Nations’, (1955–6) 32 British Yearbook of International Law 97Google Scholar; Asamoah, O., ‘The Legal Effect of Resolutions in the General Assembly’, (1964) 3 Columbia Journal of Trasnational Law 210Google Scholar; Sloan, B., ‘General Assembly Resolutions Revisited (Forty Years Later)’, (1987) 58 British Yearbook of International Law 39CrossRefGoogle Scholar. Asamoah's contribution was to shift attention from talk of the legally binding nature of Assembly resolutions to their legal effect. He saw the latter as a wider legal-conceptual category which subsumed narrower talk of legal bindingness within it, whereas most (Western) scholars at the time considered the Assembly to have a very limited role. The most progressive among those who held this limited view was perhaps Blaine Sloan, who saw Assembly resolutions as having the propensity to fill gaps in law-making authority, but no more than that, whereas scholars working on other subjects, such as the law of territory, focused on such specific questions as whether ‘directive’ resolutions couched in the language of a ‘recommendation’ required the obedience of administering states, and whether such obedience can be characterized as a (mere) ‘good faith’ obligation to follow such recommendations; R. Y. Jennings, The Acquisition of Territory in International Law (1963), 83, and see generally 82 ff. Others, including liberal progressives such as Dugard, continued to be sceptical of the legal bindingness or effect of Assembly resolutions; see C. J. R. Dugard, ‘The Organization of African Unity and Colonialism: An Inquiry into the Plea of Self-Defence as a Justification for the Use of Force in the Eradication of Colonialism’, (1967) 16 ICLQ 157, at 174–6. See also the works cited in Asamoah, ‘The Legal Effect’, at 215–16.

18 Anand, supra note 10; S. P. Sinha, ‘Perspective of the Newly Independent States on the Binding Quality of International Law’, (1965) 14 ICLQ 128; Abi-Saab, G., ‘The Newly Independent States and the Rules of International Law’, (1962) 8 Howard Law Journal 95Google Scholar.

19 M. Bedjaoui, Towards a New International Economic Order (1979), 110; K. Hossain, ‘Introduction’, in K. Hossain and S. R. Chowdhury (eds.), Permanent Sovereignty over Natural Resources in International Law (1984).

20 H. Gross-Espiell, Special Rapporteur, Implementation of United Nations Resolutions Relating to the Right of Peoples under Colonial and Alien Domination to Self-Determination, UN Doc. E/CN.4/Sub.2/390 and Corr. 1 and Add. 1 (22 June 1977) and UN Doc. E/CN. 4/Sub. 2/405 (20 June 1978); A. Cristescu, Special Rapporteur, The Historical and Current Development of the Right to Self-Determination on the Basis of the Charter of the United Nations and Other Instruments Adopted by United Nations Organs, with Particular Reference to the Promotion and Protection of Human Rights and Fundamental Freedoms, UN Doc. E/CN.4/Sub.2/404 (3 July 1978). One principal difference between Gross-Espiell and Cristescu's reports was that the latter did not consider self-determination to be a peremptory norm of general international law from which no derogation was permitted (i.e. as a jus cogens norm); see Pomerance, supra note 14, at 110, noting this difference.

21 Elias, New Horizons, supra note 8, at 165–252 (these sections on self-determination and international economic law being closely interrelated); Elias, Africa, supra note 8, at 46–65 (the sections on the new states and on modern international law are closely related, and should also be read with the sections in New Horizons just mentioned). See also W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (1977).

22 These pre-dated the emergence of a legal right to self-determination and were thus non-legal works: see, e.g., A. Cobban, National Self-Determination (1945).

23 See, e.g., Pomerance, supra note 14, at 7–13; H. Hannum, Autonomy, Sovereignty and Self-Determination (1990); Antonio Cassese, Self-Determination of Peoples (1995). These were largely doctrinal works which focused primarily on the difficulties posed by secession and non-colonial claims to self-determination, questions about entitlement to non-colonial self-determination, and alternatives to independence (e.g. arrangements for autonomy).

24 Other legal works on colonial self-determination were either studies of state practice, or of related areas such as the law on the international acquisition of territory or statehood; see, e.g., A. Rigo Sureda, The Evolution of the Right of Self-Determination – A Study of United Nations Practice (1973); M. Shaw, Title to Territory in Africa (1986); J. Crawford, The Creation of States in International Law (1979).

25 In A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005), at 197–8. Anghie lists Elias with Friedmann, Jenks, Röling, Anand, Fatouros, Abi-Saab, Castaneda, McDougal, and Falk in his discussion of scholars who saw the ‘enduring effects’ of colonialism not as a ‘peripheral concern’, but a ‘central and inescapable issue for the discipline’.

26 Elias, Africa, supra note 8, at 82.

27 See the page references to Elias's writings, supra note 21, as well as his remarks in New Horizons, supra note 8, at 133 (on minority rights, stability and economic development) for Elias's views on the links between the permanent sovereignty doctrine, the right to development, and the rights of minority peoples.

28 D. Danielsen, ‘Book Review’, (2006) 100 AJIL 757.

29 Ibid., at 762.

30 Gathii, supra note 9, at 193.

31 Bedjaoui, supra note 19, at 110.

32 Gathii, supra note 9, at 189.

33 See further the critique of the New Stream of International Legal Scholarship in the late 1980s and during the 1990s; M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989); Kennedy, D., ‘A New Stream of International Law Scholarship’, (1988) 7 Wisconsin International Law Journal 1Google Scholar; the earlier, seminal work by Kennedy in Kennedy, D., ‘Theses about International Law Discourse’, (1980) 23 German Yearbook of International Law 353Google Scholar; N. Purvis, ‘Critical Legal Studies in Public International Law’, (1991) Harvard Journal of International Law 81; and also Scobbie, I., ‘Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’, (1990) 61 British Yearbook of International Law 339CrossRefGoogle Scholar.

34 For this strategy see Crenshaw, K., ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’, (1988) Harvard Law Review 1331, at 1368Google Scholar; C. L. Lim, Critical Race Theory, in Tim Murphy (ed.), Western Jurisprudence (2005), 383, at 393–5.

35 See section 6, infra.

36 It is arguably only in this regard that, conceptually speaking, Elias's project depended also on the success of the Afro-Asian initiative to remake the substantive rules of the international legal order, but at the same time it might be considered that here they enjoyed greater ‘success’ than in the international economic field. For an excellent account of the negotiating history behind the ‘dual-regime’ which the newly decolonized states following the Nyerere doctrine managed, with the help of Latin American delegations, to push through during the 1978 Vienna Conference on the Succession of States in respect of Treaties, see Tai-Heng Cheng, State Succession and Commercial Obligations (2006), 79–116. Under the dual regime, post-colonial states would generally have the ‘clean-slate theory’ applied to them with exceptions, while non-colonial successions would, in general, be governed differently; see Vienna Convention on the Succession of States in Respect of Treaties 1978, 1946 UNTS 3, Articles 15–30. Among the developing countries, some, such as Malaysia, were lukewarm towards the clean-slate theory, at least in the context of the continued validity of devolution agreements. Malaysia subsequently scaled down its original positions, but was in any case outvoted; ibid., at 94–6.

37 Where he had also served as chair of the Committee of the Whole as well as of the Afro-Asian group.

38 Interestingly, Elias also recorded the opposition of members of the Asian-African Legal Consultative Committee to the trust concept which the major powers favoured, allowing them to exploit the ocean floor as part of the idea of the common heritage of mankind; see Elias, New Horizons, supra note 8, at 29–34 and 51–2.

39 Ibid., at 27.

40 T. O. Elias, ‘The Doctrine of Intertemporal Law’, (1980) 75 AJIL 285.

41 See Elias, Africa, supra note 8, at 22–3, citing the approach of the francophone African states in common with the Nigerian example, as against the examples of Tanganyika, Uganda, Kenya, and Malawi, which chose to phase out such treaty obligations on the expiry of a grace period.

42 Ibid., at 75.

43 McWhinney, E., ‘The Changing United Nations Constitutionalism: New Areas and New Techniques for International Law-Making’, (1967) 5 Canadian Yearbook of International Law 68, at 83Google Scholar.

44 Elias, Africa, supra note 8, at 70.

45 Ibid., at 71. See also Filartiga v. Pena-Irala, 630 F.2d 876, discussing the status of the Universal Declaration of Human Rights in similar terms.

46 See the entire discussion in Elias, Africa, supra note 8, at 70–3.

47 Ibid., at 73.

48 Ibid., at 72.

49 Ibid.

50 Elias, New Horizons, supra note 8, at 90–1.

51 Ibid., at 211 (emphasis added).

52 He was a particular fan of Wolfgang Friedmann's writings, and especially Friedmann's Changing Structure of International Law (1964), which he described in historical terms as ‘epoch-making’; Elias, Africa, supra note 8, at 82.

53 Elias, O. A. and Lim, C. L., The Paradox of Consensualism in International Law (1998), 173–91Google Scholar.

54 I am using the term ‘technology’ to denote an anti-positivist, anti-formalist, and pragmatic conception of international law as a mechanism of social engineering. See further Anghie, A., ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations’, (2002) 34 New York University Journal of International Law & Politics 513, at 578–579Google Scholar (observing that the early twentieth-century linkage between law and institutions created ‘a formidable set of technologies’). Anghie sees this as the eventual realization of Roscoe Pound's and Manley Hudson' vision of international law, see further Hudson, M. O., ‘The Prospect for International Law in the Twentieth Century’ (1925) 10 Cornell Law Quarterly 419, at 428–436Google Scholar.

55 Elias, New Horizons, supra note 8, at 384–5.

56 T. O. Elias, United Nations Charter and the World Court (1989), 19–20.

57 See Elias, Africa, supra note 8, at 64–6.

58 Elias, supra note 56; see especially the Prefatory Introduction.

59 As he saw it, this had to do with the ‘new frontiers’ of international law involving such ‘new branches as international constitutional law, humanitarian law, law of the sea and of the air, international law of communications – in fact, a whole new range of specialized fields recently brought within the ever-expanding frontiers of international law’; ibid., at 85.

60 Elias, New Horizons, supra note 8, at 386; Elias, supra note 56, at 19.

61 Elias, New Horizons, supra note 8, at 387.

62 UNCITRAL Statute, Article 8.

63 Elias, New Horizons, supra note 8, 387.

64 For the Third World's use of the Assembly to establish UNCTAD, at the expense of the UN Economic and Social Council (ECOSOC) in which the Third World had less control, and the consequent enlargement of Third World representation and influence in UNCTAD, see the first-hand account in S. M. Finger, American Ambassadors at the UN (1988), at 144–9. UNCTAD was the culmination of a new emphasis, starting in the 1960s, on the part of the Third World states on the role of international trade in economic development.

65 See also Elias, Africa, supra note 8, at 67–8; see further the groundbreaking study in C. H. Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the United Nations (1973).

66 UN Doc. A/RES/3232(XXIX) (12 November 1974) as discussed in Elias, supra note 56, at 20–1.

67 Elias, Africa, supra note 8, at 48.

68 See G. Schwarzenberger, Power Politics (1941), 125, as discussed further in H. Kleinschmidt, The Nemesis of Power (2000), at 13.

69 See, however, Lim, C. L., ‘The Great Power Balance, the United Nations and What the Framers Intended: In Partial Response to Hans Köchler’, (2007) 6 Chinese Journal of International Law 307CrossRefGoogle Scholar.

70 For an assessment of coalition activity in the General Assembly during that period see, e.g., M. J. Peterson, The General Assembly in World Politics (1986), at 254–9 (although noting that the ‘hard use’ to which the Third World put the General Assembly also resulted in greater disappointment). For the Assembly's role, and through it the Third World's influence in establishing UNCTAD see Finger, supra note 64, at 144–9.

71 Elias, Africa, supra note 8, at 81–84.

72 ‘On the contrary, there are some traditionalists who are still opposed to any form of “contemporary” international law, who are fighting a rearguard action’; Elias, Africa, supra note 8, at 85.

73 Texaco Overseas Petroleum v. Libyan Arab Democratic Republic, (1978) 17 ILM 1. For an insightful study, using the example of the Libyan oil arbitrations, of the parallel difficulty of arbitration law's disciplinary bias towards preserving the sanctity of private law arrangements allocating property rights against public law intervention, see A. A. Shalakany, ‘Arbitration and the Third World: A Plea for Reassessing Bias under the Spectre of Neoliberalism’, (2000) 41 Harvard International Law Journal 419.

74 [1966] ICJ Rep. 6 (Judge Jessup, Dissenting Opinion).

75 Elias, Africa, supra note 8, at 73. In short, majoritarianism is sufficient for universal law.

76 Ibid., at 70.

77 Ibid. Cf. Bruno Simma (ed.), The Charter of the United Nations (1994), at 320, for the view that the term ‘decision’ in Articles 18(2) and 18(3) refers to all types of General Assembly action. This would have the effect of judging all General Assembly action on democratic grounds alone if we were to apply Elias's view to it, while at the same time applying the voting majorities prescribed in Article 18(2) and (3) to all forms of Assembly action.

78 Interestingly, this also represents a sharp break from the Third World–Soviet convergence of viewpoints. The Soviet view had been stated in categorical, textual terms in relation to Article 10 of the UN Charter; see G. Tunkin, Theory of International Law (1974), quoting from the Memorandum of the Government of the USSR on the Procedure of Financing the Operations of the Emergency United Nations Forces in the Middle East and the United Nations Operations in the Congo, 15 March 1962.

79 Elias, Africa, supra note 8, quoting from H. Kelsen, The Law of the United Nations (1950), at 198–9.

80 Clearly, treaty law is firmly consensual, but for the variety of theories in addition to majoritarianism in respect of customary law formation, see Elias and Lim, supra note 53, at 29–33. Elias's position might best be characterized as ‘intellectualist’ and ‘majoritarian’ – i.e. majoritarian decision-making is required because of the important international social need for a legitimate, effective, and democratic method of modern international law-making that would account for the will of the majority of states. But for the view that the great majority of states may not be the most powerful component in international society, see A. K. Henrikson, ‘Global Foundations for a Diplomacy of Consensus’, in A. K. Henrikson (ed.), Negotiating World Order (1986), 217, at 238–9. Henrikson, in effect, points to the ‘ineffectiveness’ in practice of creating a powerful disaffected minority instead.

81 Gathii, supra note 9. Gathii's typology has been adopted elsewhere within the Third-World Approaches to International Law Movement, see Anghie, supra note 25, at 110.

82 Elias, Africa, supra note 8, at 3–33 and 43.

83 Gathii, supra note 9, at, 189.

84 Anghie and Chimni, supra note 6, at 84.

85 Cf. C. Harding and C. L. Lim, ‘The Significance of Westphalia: An Archaeology of the International Legal Order’, in Harding and Lim, Renegotiating Westphalia (1999), 1.

86 See generally Gong, supra note 7. See further Anand, supra note 11, at 24–102; Wang Tieya, ‘International Law in China: Historical and Contemporary Perspectives’ (1991-II) 221 Recueil des cours, at 195 (on the exceptional nature of unequal treaties).

87 S. N'Zatioula Grovogui, Sovereigns, Quasi-sovereigns and Africans (1996), 49 and 96, as discussed in Gathii, supra note 9, at 185.

88 See Danielsen, supra note 28, at 759, discussing Anghie, supra note 25, at 59, originally published as A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’, (1999) 40 Harvard Journal of International Law 1, at 28. In Anghie's account, it was not so much race and religion that he emphasized but culture and the ‘civilizing mission’ of the West. Having said that, he located the strategic move which shifted attention from possession of the attributes of sovereignty to possession of the necessary social institutions of a civilized society, such as Henry Wheaton's view that non-European peoples lacked legal institutions; see, e.g., Anghie, supra, at 24. Interestingly, in English legal theory this debate continued even into the late twentieth century, with criticism of the same prejudices in H. L. A. Hart's work; see A. Allott, The Limits of Law (1980), 49 ff.

89 Anghie and Chimni, supra note 6.

90 Anghie, supra note 88, at 8; see also Anghie, supra note 25, at 3.

91 From seventeenth-century legal naturalist philosophy to a positivist/sovereign-centric nineteenth-century theory of racial, cultural, and religious supremacy; a twentieth-century inter-war conception of international law and organization as a species of global administrative technology and expertise; the application through legal ‘succession’ of exploitative international economic ‘obligations’ in the post-war, decolonization, and immediate post-colonial eras, and the 1980s–90s era of good governance reforms. See generally Anghie, supra note 25.

92 Gathii, supra note 9, at 187–92. This is a claim which I have not seen Anghie make. Indeed Danielsen's review of Anghie is critical of Anghie on this account: see Danielsen, supra note 28, at 761–2, arguing instead for ‘legal pluralism without the universalist cover’ as against Anghie's continued belief in the possibility of a universal legal order. According to Anghie and Chimni, this ‘first generation’ scholarship was characterized by (i) its indictment of colonial international law for its role in the subjugation of colonial peoples; (ii) acceptance of the view that pre-colonial Third-World nations and peoples were not strangers to relations with European states and international law; (iii) the adoption of a ‘non-rejectionist stance’; (iv) acceptance of the importance of the doctrines of sovereign equality and non-intervention; and (v) acceptance of the fact that political independence is insufficient for the achievement of substantive colonial liberation. See Anghie and Chimni, supra note 6, at 80–2.

93 Without pushing the analysis too far, we might see it as a difference between the interest which the historical–hermeneutic disciplines have in symbolic interactions, and the focus of critical theory on emancipatory possibilities. It is interesting to note that in the original Harbermasian scheme, it was critical theory which was most concerned with the question of domination or power in human societies, and not the historical–hermeneutic disciplines' concern with the meaning of symbolic interactions. See the classification in J. Habermas, Knowledge and Human Interests (1971). So who has been more critical, Elias or his critics?

94 He never considered that law was merely part of the ‘superstructure’, but like the pioneer critical-race scholars, he clearly considered material poverty and economic subordination to be central organizing ideas in understanding the reality of the international legal order. Cf. A. Freeman, ‘Antidiscrimination Law from 1954 to 1989: Uncertainty, Contradiction, Rationalization, Denial’, in D. Kairys (ed.), The Politics of Law: A Progressive Critique (1998), at 285; D. Bell, ‘Brown v. Board of Education and the Interest-Convergence Dilemma’, (1980) 93 Harvard Law Review 518.

95 For a scathing attack on the corruption of traditional, sovereign consent-centric diplomacy by the parliamentarist notions of American diplomacy see Harold Nicolson, The Evolution of Diplomacy (1954). Nicolson's views demonstrate just how radical Elias's subsequent views about global parliamentarism really were.

96 Elias, Africa, supra note 8, at 82. See further generally Friedmann, supra note 52.

97 In particular R. A. Falk, ‘New Approaches to the Study of International Law’, (1967) 61 AJIL 477, which is also cited in Elias, Africa, supra note 8, at 82.

98 Cf. Gathii, supra note 9, at 191, n. 23.

99 G. Calabresi, A Common Law for the Age of Statutes (1982).

100 In addition to his attention to minority rights as well as to racism and racial discrimination in inter-state relations, Elias could not but have been aware that the sort of majoritarianism which he advocated, particularly in the economic sphere, advanced the view of three-quarters of the world but ignored the view of 80 per cent of world trade and investment; cf. Finger, supra note 64, at 231.

101 See further M. wa Mutua, ‘Why Redraw the Map of Africa: A Moral and Legal Inquiry’, (1995) 16 Michigan Journal of International Law 113; the other works cited by Anghie and Chimni, supra note 6, at 83; and the various essays in A. K. Wing (ed.), Global Critical Race Feminism: An International Reader (2000).

102 He was interested in the colonial–historical causes; see, e.g., Elias, Africa, supra note 8, at 39.The discussion follows from his earlier work on African law; see Elias, supra note 1, at 18.

103 See J. Crawford (ed.), The Rights of Peoples (1988). Elias, as we have seen, was primarily concerned with economic and social rights, particularly UN law-making and standard-setting in the economic and social fields in the post-decolonization era.

104 See Wing, supra note 101.

105 For the view that ‘TWAIL [Third World approaches to international law] is not new’, see Fidler, D. P., ‘Revolt against or from within the West? TWAIL, the Developing World and the Future Direction of International Law’, (2003) 2 Chinese Journal of International Law 29, at 32CrossRefGoogle Scholar.

106 See Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 226 (Judge Schwebel, Dissenting Opinion); Texaco Overseas Petroleum v. Libyan Arab Democratic Republic, supra note 73.

107 This followed the vote taken on the Charter on Economic Rights and Duties of States; see Finger, supra note note 64, at 231.