1 Robert D. Kaplan, "The Coming Anarchy", ATLANTIC MONTHLY, Feb. 1994, pp. 44-76. 2 William Pfaff, "A New Colonialism?: Europe Must Go Back into Africa", 74 FOR- EIGN AFF 2-6 (1995).
3 Id. 4 Paul Johnson, "The Case for a Return to Colonialism", SACRAMENTO BEE, April 25, 1993, Forums 1 & 2. 5 See, Ali Mazrui, "Decaying Parts of Africa Need Benign Colonization", INT'L HERALD TRIBUNE, August 4, 1994. Needless to say, invoking colonialism - however polished - as a prescription for Africa does great disservice to the conti- nent. See also, Ali Mazrui, "The Message of Rwanda: Recolonize Africa?", NEW PERS. QTY 18 (1994); Ali Mazrui, "May be the Time Has Come to Recolonize Africa", HOUSTON CHRON, August 3, 1994, at A27; Ali Mazrui, "The Bondage of Boundaries", ECONOMIST, Sept. 11, 1993, S2, 28. But note: Ruth Gordon, "Saving Failed States: Sometimes a Neo-Colonialist Notion", 12 AM. U. J. INT'L L. & POL'Y, 903 (1997). 6 George Louis Beer, African Questions at the Paris Peace Conference, 179-180 (Louis Herbert Gray, ed., 1923).
7 G. 1. Tunkin, Theory of International Law, 315 (William E. Butler, trans., 1974).
8 On the legacy of the l9th century, see generally, David Kennedy, "International Law and the Nineteenth Century: History of an Illusion", 17 QUINNIPIAC. L. REV. 99 (1997) & Antony Anghie, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law", 40 HARV INT'L L. J. I (1999). 9 See for instance, Walter Rodney, How Europe Underdeveloped Africa (1981); Daniel Offiong, Imperialism and Dependency (1980); General History of Africa : Africa Under Colonial Domination, 1880-1935, Vol. VII (Adu A. Boahen, ed., 1985); Basil Davidson, Africa in History (199 1); Basil Davidson, The Black Man's s Burden: Africa and the Curse of the Nation-State (1992); Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1996); & Crawford Young, "The Heritage of Colonialism", in Africa in World Politics, 19 (John W Harbeson & Donald Rothchild, eds., 1991). ).
10 The extent, if any, to which the works of these publicists influenced or reflected the norms of international law (such as customary international law and treaties) at the material time will become evident in the course of the analysis undertaken in this article. 111 J. Fischer Williams, "Introduction", in Memories of John Westlake, 1, 7 (J. Fischer Williams, ed., 1914). 12 Shaw singles out Westlake as the "foremost among... theorists" who took the view that "the organized tribes of peoples of non-European lands had no sovereign rights over their territories and thus no sovereign title by means of effective occupation". Accordingly, the inhabitants were "factually and not legally in occupation of the territory, which could be treated as terra nullius and acquired by any State in accor- dance with the requirements of international law". Shaw further points out that the views of such theorists "appeared to dominate throughout the nineteenth century when Africa was being divided amongst the competing European powers": Malcolm Shaw, Title to Territory in Africa: International Legal Issues, 32 (1986). Additionally, a survey of the views of "the leading writers" of the l9th century and the early years of the 20th century - Kent, Wheaton, Phillimore, Hall, Westlake, Oppenheim, Anzilloti, Fauchille, Holtzendorf, Nys, Bello, Rivier and F. de Martens - on international law and western civilization is provided in C. Wilfred Jenks, The Common Law of Mankind, 69-74 (1958). Jenks describes these publicists as "so outstanding a company from nine different nations that no one can dismiss their views as unrepresentative or unimportant". He further submits that "their views dif fer only in degrees of emphasis". Wheaton, for instance, remarks: "Is there a uni- form law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilised and Christian people of Europe or to those of European origin": Henry Wheaton, Elements of International Law, 16 (6th edn., William Beach Lawrence, ed., 1855). Furthermore, Oppenheim notes that "only such terri- tory can be the object of occupation as belongs to no State, whether it is entirely uninhabited, for instance an island, or inhabited by natives whose community is not to be considered a State": L. Oppenheim, International Law: A Treatise, Vol. I, 555 (gth edn., H. Lauterpacht, ed., 1955).
13 John Westlake, Chapters on the Principles of International Law, V ( 1894). 14 Id., p. 134. 15 Id, pp. 139-143.
16 Id" p, 149. 17 Id., p. 143. 18 Id., pp. 144-5.
19 Cf. M. F. Lindley, The Acquisition and Government oJ Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion, 21 (1926): "[I]t is difficult to see why, if the natives are to be regarded as capable of possessing and transferring property, they should not also be consid- ered competent to hold and transfer the sovereignty which they actually exercise" 20 J. Westlake, supra, note 11, pp. 151-4. 21 Quoted in Westlake, id., p. 152. 22 Westlake, id., pp. 152-3.
23 Westlake, id., p. 153. 24 Quoted in Westlake, id.
25 If they did, that would have put their own title - to the extent that it was claimed to be predicated on the treaty - in jeopardy. Accordingly, it would not have been in the interest of the British, even if they would have ordinarily preferred otherwise, to challenge the sovereignty of the African States. It is against the backdrop of this reality that Shaw's example of how Britain deferred to Germany on the strength of an 1883 treaty between the latter and a "local chief" in respect of the "Cameroons territory" should be appreciated; also, his assertion that "[h]ad the area been regard- ed as terra nullius, the mere signing of a document would not have been sufficient and there would therefore have been scope for Britain to recoup the situation". See, Shaw, supra, note 12, p. 39. 26 Quoted in U. 0. Umozurike, International Law and Colonialism in Africa, 40 ( 1979).
27 Quoted in Westlake, supra, note 13, p. 153.
28 In his own words, quoted, on account of its significance, in extenso: "I had been instructed ... to make a treaty with Kivalli by which he should place himself under British protection; in fact, I had a bundle of printed treaties which I was to make as many people sign as possible. This signing is an amiable farce, ... the equivalent of an occupation. The modus operandi is somewhat as follows: A ragged untidy European, who in any civilised country would be in danger of being taken up by the police as a vagrant, lands at a native village ... [T]he chief comes and receives his presents, the so-called interpreter pretends to explain the treaty to the chief. The chief does not understand a word of it but he looks pleased as he receives another present of beads; a mark is made on a printed treaty by the chief and another by the interpreter, the vagrant, who professes to be the representative of a great empire, signs his name. The chief takes the paper but with some hesitation, as he regards the whole performance as a new and therefore dangerous piece of witchcraft. The boat sails away and the new ally and protege of England or France immediately throws the treaty into the fire. Kavalli was an important personage and it was desir- able that he should perform this little comedy with us before he should do so with the Belgians." A. B. Thruston, African Incidents: Personal Experiences in Egypt and Unyoro, 170-I (1900), quoted in Yilma Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States off Eastern Africa, 14-5 (1983). Emphasis ours. 29 Anghie, supra, note 8, p. 48.
30 Westlake, supra, note 13, pp. 142-3. In the circumstance, Westlake submits that if a "fanatical admirer of savage life argued that the whites ought to be kept out, he would only be driven to the same conclusion by another route, for a government on the spot would be necessary to keep them out". Interestingly, in a tribute to Westlake, Symonds has this to say: "He hated injustice and oppression from his very soul, and none who ever heard him speak against them could forget the burn- ing and impassioned words in which he arraigned the tyrant and pleaded for the vic- tims of tyranny": Arthur G. Symonds, "The Balkan Committee", in J. Fischer Williams, supra, note 11, p. 115. Apparently, Westlake's crusade, as so described, did not encompass the plight of the "uncivilized" 31 Westlake, id., p. 155. Similarly, Hyde points out that by deeming the "uncivilized or extremely backward" inhabitants of a territory "to be incapable of possessing a right to sovereignty", a conqueror could "ignore their title and proceed to occupy [their] land as though it were vacant". In such cases, he further notes, "conquest refers merely to the military or physical effort by means of which occupation becomes pos- sible" : Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. I, 357 (2nd rev. edn., 1947). Reliance on conquest, in the sense in which it is traditionally understood, would have entailed the establishment by the European Powers - at least in their relations with one another- of unprovoked aggression which is a key ingredient of conquest as a mode of territorial acquisition. Thus, the invocation of terra nullius had the dubious advantage of dispensing with this requirement. Besides, resort to war against African States would have invariably pitched rival European Powers against one another.
32 T. J. Lawrence, The Principles of International Law, 50-1 (7th edn., Percy H. Winfield, ed., 1923). The first edition of the book appeared in 1895. 33 John Austin, The Province of Jurisprudence Determined, 101 (David Campbell & Philip Thomas, eds., 1998). The first edition of the book appeared in 1832. 34 T, J. Lawrence, supra, note 25, p. 51. 35 1. C. J. REPORTS, 12, 39 (1975).
36 Lawrence, supra, note 32., p.148. 37 Id., p. 69. 38 Id., pp. 66, 68-9.
39 M. F. Lindley, supra, note 19, p. 17. 40 ld., pp. 24 & 43. 41 Id., p. 26. As Shaw further points out, the essence of the pre-l9th century attitude was that the acquisition of sovereignty over the lands of the peoples of such entities "depended upon tbe concept of conquest not occupation, and accordingly discus- sion centred around the notion of just war and the legality of hostilities against non- Christians" : Sbaw, supra, note 12, p. 31. 42 A. I. Asiwaju, "The Conceptual Framework", in Partitioned Africans: Ethnic Relations across Africa International Boundaries, 1884-1984, I(A. I. Asiwaju, ed., 1985). 43 Young describes the nature of the scramble thus: "Africa, in the rhetorical metaphor of imperial jingoism, was a ripe melon awaiting carving in the late nineteenth cen- tury. Those who scrambled fastest won the largest slices and the right to consume at their leisure the sweet, succulent flesh. Stragglers snatched only small servings or tasteless portions; Italians, for example, found only desserts on their plates": Crawford Young, supra, note 9, p. 19.
44 The Final Act of the conference was signed by the plenipotentiaries of Austria- Hungary, Belgium, Denmark, France, Great Britain, Germany, Italy, Netherlands, Portugal, Russia, Spain, Sweden and Norway, Turkey, and United States. On the Berlin Conference generally, see S. E. Crowe, The Berlin West Africa Conference (1970). 45 George Louis Beer, supra, note 6, p. 195. 46 Cf. The Separate Opinion of Judge Ammoun in the Western Sahara Case, supra, note 35, pp. 85-7. Judge Ammoun refers to the "penetrating views" of Bayona-Ba-Meya (for Zaire, now Democratic Republic of Congo) and Mohammed Bedjaoui (for Algeria), on the issue of terra nullius, which he commends as: "the reply which may be given to the participants in the Berlin Conference of 1885, who, during the fierce blaze of nineteenth-century colonialism, the success of which they sought to ensure by eliminating competition, regarded sub-Saharan Africa as an immense terra nulli- us available for the first occupier, whereas that continent had been inhabited since pre-historic times, and flourishing kingdoms had there been established - Ghana, Mali, Bornu - whose civilization survived until the colonial period, and only suc- cumbed to the wounds inflicted by colonization and the slave trade... It was in the southern part of this continent and in Kenya that...ethnologists discovered the remains of the first hominoids." Both Bayona-Ba-Meya and Bedjaoui, had chal- lenged the use of terra nullius by the European Powers to deprive Africans of their lands. In essence, they (Bedjaoui in particular) questioned the universal application of a law, purporting to be international, in which Africans had no input.
47 In this case 1884, treated by the court as the starting date of the Spanish coloniza- tion of the Western Sahara. 4g Western Sahara Case, supra, note 35, p. 39. 49 The court points out, for instance, that "Spain did not proceed on the basis that it was establishing sovereignty over terrae nullius": Western Sahara Case, id., p. 39. Shaw shares the view that the court had in mind the practice of l9th century European States: "...[T]he Court was prepared to move some way towards the acceptance of legal pluralism, but not with regard to the question of terra nullius, which was treated purely in the light of the (European) State practice of the peri- od". However, as Shaw further points out, Spain had declared before the UN General Assembly that it had never regarded the territory in question as terra nul- lius. In its written statement, it noted that an area was terra nullius if not under the sovereignty of a State authority, but the issue was not discussed in the Spanish sub- mission in the oral pleadings. Having regard to the fact that Spain denied that either Morocco or the Mauritanian entity possessed sovereign rights over the Saharan ter- ritory at the material time, or that the tribes of the area constituted a State, it should have accepted the logical conclusion arising therefrom. i.e. that it considered the territory to be terra nullius. Having failed to do so, "its position remained to that extent confused and ambiguous": Shaw, supra, note 12, pp. 34-5, 56. 50 Needless to say, the court's determination that Western Sahara was not a terra nul- lius is tenable, but not because the "State practice of the relevant period" bears this out, if by that phrase the court meant to refer to the true position of the European Powers.
51 Quoted in Westlake, supra, note 13, p. 138. 52 Quoted in Westlake, id., p. 138. 53 Westlake, id., p. 139.
54 Lindley, supra, note 19, p. 34. Shaw shares this view: Shaw, supra, note 12, pp. 34- 5. In the Western Sahara Case, the court observed that "[o]n occasion ... the word 'occupation' was used in a non-technical sense denoting simply acquisition of sov- ereignty ; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an 'occupation' of a 'terra nullius' in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual 'cession' of the territory, were regarded as derivative roots of title, and not original titles obtained by occu- pation of terrae nullius" There is no specific indication, however, that the court had in mind the Berlin Conference and the Berlin Act. The court further points out that it was not called upon to "pronounce upon the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara": Western Sahara Case, supra, note 35, pp. 39-40. 55 Cf. Diane F. Orentlicher, "Separation Anxiety: International Responses to Ethno- Separatist Claims", 23 YALE J. INT'L L., 1, 28-9 (1998). Orentlicher points out that European States acquired sovereignty over some colonial territories through occupation of what was characterized as terra nullius and over other areas through conquest. However, in most cases, transfers of sovereignty from African to European governments were formally effected by bilateral treaties, including trea- ties of cession and treaties establishing protectorates. Such treaties implicitly rec- ognized the African rulers who signed them as possessing "the attributes of sove- reignty", while the treaty form "implied a legal equality" between the signatories. Orentlicher, however, makes it clear that, in practice, during the 19th century, "African rulers often executed these treaties under considerable duress". Additionally, the treaties were legally relevant less as a mode of transferring rights between the two parties than as a means by which European Powers could, as against one another, demonstrate their title to a particular territory in Africa: Id. 56 Lindley, supra, note 19, p. 44.
57 Anghie, supra, note 8, p. 61. Further criticisms of the Berlin Conference in partic- ular and the colonial project in general, are provided in Makau Wa Mutua, "Why Redraw the Map of Africa: A Legal and Moral Inquiry", 16 MICH. J. INT'L L., 1 I I3 (1995); Makau Wa Mutua, "Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State", 21 BROOK. J. INT'L L., 505 (1995). 58 THE SACRAMENTO BEE, Sunday, May 15, 1994, Forum 1. 59 The participants at the Berlin Conference essentially laid down a procedural frame- work under which, as Article 34 of the Berlin Act provides: "[a]ny Power which henceforth takes possession of a tract of land on the coasts of the African Continent outside of its present possessions, or which, being hitherto without such posses- sions, shall acquire them, as well as the Power which assumes a Protectorate there, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers ... in order to enable them, if need be, to make good any claims of their own."
60 Quoted in J. C. Anene, The International Boundaries of Nigeria, 1885-1960, 2-3 (1970). 61 Quoted in Anene, id., p. 3. 62 Asiwaju, supra, note 42, p. 2. For an elaborate list, see Asiwaju, "Partitioned Culture Areas: A Checklist", in Asiwaju, supra, note 42, pp. 256-8. 63 I. C. J. REPORTS, 6, 52-4 (I994) (Separate Opinion of Judge Ajibola).
64 Asiwaju, "The Conceptual Framework", in Asiwaju, supra, note 42, p. 3. 65 Asiwaju, id. 66 Said S. Samatar, "The Somali Dilemma: Nation in Search of a State", in Asiwaju, supra, note 42, 155, p. 176. 67 Western Sahara Case, supra, note 35, pp. 59-60.
68 lan Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia, 6 ( 1979). 69 Brownlie lists the alignments concerned as follows: Algeria-Morocco (the coast- Teniet-el-Sassi-Figuig); Algeria-Tunisia (the coast-Bir Romane); Ethiopia-Kenya; Egypt-Sudan (the administrative lines); Chad-Sudan (in part); Botswana-Rhodesia (in part); the boundaries of Swaziland; Kenya-Uganda; Kenya-Sudan (with refer- ence to the Red Line Boundary); Sudan-Uganda; Benin-Upper Volta; Niger-Nigeria (in part) and Cameroun-Nigeria (in part): Id. 70 Brownlie, id., pp. 6-7. 71 J. D. Hargreaves, "The Making of the Boundaries: Focus on West Africa", in Asiwaju, supra, note 42, p. 22.
72 Hargreaves, id., p. 24. �3 Quoted in Hargreaves, id., pp. 24-5. (Emphasis ours).
74 In the Western Sahara Case, Judge Dillard observes that "[a]s was cryptically put in the proceedings: you do not protect a terra nullius": Supra, note 35, p. 124 (Separate Opinion of Judge Dillard). (Emphasis in original). However, unlike Westlake, Judge Dillard's pronouncement is intended to show that Western Sahara was not, at the time of Spanish colonization of the African territory, a terra nullius. 75 Westlake, supra, note 13, pp. 177-84. 76 Lawrence also refers to a "third class" of protectorates which he describes as "com- paratively modern in their origin and somewhat anomalous in their nature". This arises where a State "belonging to the family of nations, and generally an impor- tant member thereof", establishes what it terms a protectorate over "a political community to which it is impossible to deny the name of state, but which is not suf ficiently civilized after the European fashion to be regarded as a full member of international society". He cites as illustrations the British protectorate over Zanzibar (established in 1890) and the French protectorate over Annam (dating back to 1886). He distinguishes these two entities from "a tribe of half-naked sav- ages hunting game for subsistence over African plains". However, he submits that their "political destiny is...usually the same" since protectorates are "often institut- ed over the first, as well as the second, with a view to eventual annexation": Lawrence, supra, note 32, pp. 163-4. 77 Lawrence, id., pp. 69-70.
78 Lindley, supra, note 19, p. 182. 79 Orentlicher, supra, note 55, p. 29. 80 Alexandrowicz notes, for instance, that there was a "tendency to deform the origi- nal classic concept of the protectorate and to convert it into an instrument of colo- nialism" : C. H. Alexandrowicz, "The Role of Treaties in the European-African Confrontation in the Nineteenth Century", in African International Legal History, 55 (A. K. Mensah-Brown, ed., 1975). Shaw also states that "little practical distinc- tion was made between ordinary colonies and protectorates and it marked the devel- opment of the colonial protectorate with its substantial differences from the tradi- tional protectorate": Shaw, supra, note 12, p. 48. 81 Beer, supra, note 6, p. 195.
82 In the era of the slave trade, a similar strategy was employed: Some of the slave merchants claimed that they were spurred by humanitarian considerations because, in their view, "by purchasing, or rather ransoming, the Negroes from their national tyrants, and transplanting them under the benign influence of the law and the gos- pel, they are advanced to much greater degrees of felicity": Quoted in Robert O. Collins, History: Text and Readings, 194 (1971). g3 Quoted in Lindley, supra, note 19, p. 332.
84 The General Act of the Berlin Conference on West Africa, Feb. 26, 1885, is repro- duced in 3 AM. J. INT'L L. 7 (1909) (Supp.). $5 Quoted in Lindley, supra, note 19, p. 332. Emphasis ours. 86 U O. Umozurike, Self-Determination in International Law, 28 (1972). 87 Hyde, supra, note 31, p. 127. 88 Onje Gye-Wado, "Africa, Reparations and International Law", 19 NIG. J. INT'L AFF, 115 (1993).
89 Osita Eze, Human Rights in Africa: Some Selected Problems, 18-22 (1984). 90 Offiong, supra, note 9, p. 100. 91 Reginald Green & Ann Seidman, Unity or Poverty?: The Economics of Pan Africanism, 31-2 (1968). 92 Paul Bohannan, Africa and theAfricans, 1 (1964). Questioning the myths surround- ing the history of Africa, Okoye asserts: Africa has a long and enduring history behind it, longer than any historian has described it. Africa has had its own rich sweep of events which European conquest and settlement have failed to reckon with. Yet, no civilization of the world can be divorced from the continent. The depth of its antiquity, the immensity of its treasure and the resilience of its people form a fascinating study which no single intellect can comprehend, no single volume describe. Mokwogo Okoye, African Responses, 389 (1964). 93 Samora Machel, quoted in Patrick Wilmot, Ideology and National Consciousness, 189 (1980).
94 Georg Hegel, The Philosophy of History, quoted in Joseph E. Harris, Africans and Their History, 9 (2nd rev. edn., 1998). Harris' text addresses critical issues such as "A tradition of Myths and Stereotypes [about Africa]" (Chapter 1 ), "The Evolution of Early African Societies" (Chapter 2), "Early Kingdoms and City-States" (Chapter 3), "The Scramble and Partition" (Chapter 11), "African Diplomacy, Resistance and Rebellion" (Chapter 12), and "The European Colonizers: Policies and Practices" (Chapter 13). Unfortunately, as Harris observes, "[r]ace in general, and myths and stereotypes surrounding physical features and skin color in particu- lar, have been so pervasive and basic in black-white relations and in accounts of those interactions that in spite of a stream of scientific evidence to the contrary, the concept of black inferiority continues to thrive in many minds": Id. On the question of race in the United States, for instance, see Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (rev. edn., 1995). 95 Walter Rodney, supra, note 9. 96 See generally, Basil Davidson, Black Mother: Africa - The Years of Trial ( 1970); W N. Huggins & J. G. Jackson, An Introduction to African Civilizations ( 1973); The African Past Speaks (Joseph C. Miller, ed., 1980); Africa in ClassicalAntiquity (L. A. Thompson & J Ferguson, eds., 1969); Okoye, supra, note 92; The People of Africa (H. M. Schieffelin, ed., 1974). 97 For instance, Blyden is reported to have remarked that an exhibition by Africans opened his eyes to "capacities and susceptibilities altogether inconsistent with the theory that dooms such a people to a state of perpetual barbarism or of essential inferiority to the more favoured races": E. W Blyden, Report on the Falaba Expedition, 1872, quoted in Schieffelin, ed., id., at Xl. After witnessing the won- ders of Egypt, Volney, a French Oriental traveler, exclaimed: "To think that this black race, today enslaved by us and the object of our disdain, is the same to which we owe our arts and sciences and even our speech": Quoted in Okoye, supra, note 92, p. 92.
98 T. 0. Elias, Africa and the Development of International Law, 6-17 (2nd rev edn., Richard Akinjide, ed., 1988). See also, U. O. Umozurike, Introduction to International Law, 7-8 (1993); Basil Davidson, African Civilization Revisited (1991); A. K. Mensah-Brown, "Notes on International Law and Pre-Colonial Legal History of Modern Ghana", in Mensah-Brown, ed., supra, note 80, p. 107; T. O. Elias, "International Relations in Africa: A Historical Survey", in Mensah-Brown, supra, note 80, p. 87; Godwin-Collins K. N. Onyeledo, " 'International Law' Among the Yoruba-Benin and the Hausa-FuIani", in Mensah-Brown, supra, note 80, p. 153; Basil Davidson, Africa in History (1991); Africa in the Nineteenth Century Until the 1880s (J. F. Ade Ajayi, ed., 1989). 99 J. C. Anene, supra, note 60, pp. 5-6; Brownlie, supra, note 68, p. 8; Shaw, supra, note 12, pp. 27-8.
100 The question of legal pluralism was raised, particularly by Algeria, but it was not given adequate consideration by the court in the Western Sahara Case, supra, note 35. 101 Elias, Africa and the Development of International Law, supra, note 98, p. 19.
102 Our point is not that Africa has a clean bill of health. Africa obviously has an obli- gation to put its house in order. The role of the international community must, how- ever, proceed from a premise that views, and treats, Africa's interests as overriding. 1o3 However, Article 38(l)(c) of the Statute of the International Court of Justice still speaks of "the general principles of law recognized by civilized nations", without enunciating what the test of civilization is: June 26, 1945, 59 Stat. 1055, T. S. No. 993, 3 Bevans 1179.