Professor James Gathii, Professor of Law and Wing-Tat Lee Chair in International Law at Loyola University Chicago School of Law, discusses his research and publication choices as well as Africa’s engagement with international law. See Part I for his analysis of the African Continental Free Trade Area (AfCFTA).
Flora IP (Flora IP): You research and publish on a wide range of subjects, including Trade, Third World Approaches to International Law (TWAIL), Human Rights and Intellectual Property. What informs your choices of projects and publications?
Professor James Gathii (JG): I choose the projects that I am most passionate about. I don’t write about things that I have no interest in. When I care about a topic, then it is worth my time to figure it out, to conduct the research and to write about it. I am very motivated by the things I care about.
What are those things I care about? The things I care about are those related to Africa and the developing world. In general, I am interested in international law -both public and private- relating to the Third World and Africa, in particular.
There is a tremendous amount of energy that I sense in the scholarship on Africa and the Third World in international law, and it energises me. When I started as a postgraduate student, much of what there was in my areas of research from the Third World was already dated, meaning much of it had been written sometime before I was a graduate student. A lot of what was being written at the end of the cold war and the high point of the neoliberal agenda were around the triumphalism of the market economy. I thought about the way the arguments were presented. They did not address the issues in the way that I had experienced them growing up [and as a law student] in Kenya.
I was fortunate as a graduate student to have been in a program that challenged me. I recall my supervisor asking who I wanted to sound or be like. Did I want to be like Ian Brownlie, James Crawford, Taslim Olawale Elias or Mohammed Bedjaoui? That question stuck with me. It spurred me to read about African International Lawyers. I was already familiar with Elias’s work. I also started reading the work done by post-colonial scholars like Edward Said. I was influenced by the fact that other Third World Scholars, like Antony Anghie, were at the time beginning to think critically about international law, its history and the role of colonialism.
As a graduate student, I became involved with a network of scholars who were self-aware that we were living at a moment where we had an opportunity to define what our work was. We could have spoken in many different voices.
I think many of us decided to speak in the voice that was most authentic to us, which was in the voice of the Third World, as an oppositional voice to projects of global governance and domination.
The Third World means different things to different people. For me, it meant going back to work done by African International Lawyers and trying to position those international lawyers along a continuum. On the one end, the mainstream, where I would place Elias, which represented how African international lawyers, for a long time, had written about international law. On the other end, the critical views, where I would place another Nigerian scholar U O Umozurike, who had written his PhD on colonialism and International Law. It was in that context that I cut my teeth as an academic.
For each project I have worked on, whether I was talking about the Berlin conference, the war in Iraq, my first book – War, Commerce and International Law or my work on African regional trade agreements, the critical view, as I would call it, has naturally been part of what I have done.
FI: You mentioned your particular interest in researching African related topics. How has Africa’s engagement with International Law changed over the years?
JG: On the trade issues, traditionally, we would say that almost every African country now belongs to regional economic communities, for example, the Economic Community of West African States (ECOWAS), East African Community (EAC), Southern African Development Community (SADC) and Common Market for Eastern and Southern Africa (COMESA). There also seems to be a renewed commitment on the part of the governments to thinking about international law as a tool to advance their interests both within Africa and with other trading partners outside Africa. A lot of the momentum we see on the continent is a testament to this, for example, the AfCFTA, the tripartite free trade area and some of the other initiatives that African countries are engaged in, particularly in investments.
Governments are consciously investing in developing the capacity to negotiate trade deals: not just legal expertise, but also economists and other relevant policymakers. Government departments like finance and revenue authorities are engaged in designing applicable rules (for example, the regimes being constructed on common external tariffs, which are not just legal issues). Indeed, the relevance of international law -both public and private- has increased over the years.
However, one observation is that a lot of the capacity (after receiving training from the governments) leave the government for the private sector. For example, in East Africa, each country has an East African Community Ministry, and lots of capacity was developed for those ministries, both on the law side and the business side. But unfortunately, after the government training, these officials tend to leave. Many Attorney Generals offices are increasingly putting more capacity in the use of international trade law rules and international law generally. In Nigeria for example, a Law Professor was hired by the Vice President’s office to advise on International trade law issues; she went there with a team of experts. I am not suggesting that this was not possible before. But I think that it is a newer trend. In Kenya, there is a trend with the government, being very committed to developing the capacity to do international arbitration out of the Attorney General’s office as opposed to hiring law firms from outside of Africa. Same in Ethiopia, where they are hiring local counsel to handle cases on behalf of the government, which they have done very successfully. South Africa also has a long tradition of hiring local counsel.
However, the capacity that has been built varies greatly among African countries. The fact that we have institutions like the Trade Law Centre (TRALAC) in South Africa and the Trade Policy Training Centre (TRAPCA) in Arusha, Tanzania that have trained lots of international law specialists both on the law and business sides has been great. A lot of those specialists trained are hired by their governments and represent their countries in institutions like the World Trade Organisation (WTO) in Geneva. There is a whole network of international trade law specialists on the continent.
On the scholarship side, lots of African scholars both on the continent and outside the continent are much more engaged with international economic law than at any time in the past. I don’t think that it is simply because they are more visible or known to me.
I think that more Africans are trying to figure out these changes that are happening and owning the scholarship and not having to surrender it to other people to define it for us.
For examples of African scholars engagement with international economic law, see here. For more on Professor Gathii’s publications, see here.
Photo Credit: School of Law, Loyola University Chicago.
