Turack, Daniel C.

NELLCO Consortium Legal Scholarship Repository

International Law and the New States of Africa, by Yilma Makonnen

Digital Commons @ UM Law

Maryland Journal of International LawVolume 8 | Issue 2 Article 7International Law and the New States of Africa, byYilma MakonnenDaniel C. TurackFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the International Law CommonsThis Book Review is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in MarylandJournal of International Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationDaniel C. Turack, International Law and the New States of Africa, by Yilma Makonnen, 8 Md. J. Int'l L. 303 (1984).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol8/iss2/7INTERNATIONAL LAW AND THE NEW STATES OF AFRICA. ByYilma Makonnen. Published with the assistance of UNESCO under theRegional Participation Programme for Africa, Addis Abeba. 1983. Pp.xxvi, 575. $37.95 (Distributed by UNIPUB.)Although the title might indicate otherwise, this work is not a generalstudy of international law as perceived or applied by the new States of Af-rica. Nor does it deal with the problems surrounding succession of govern-ments and recognition of governments. Rather it is a specialized study ofsome international legal problems of state succession concerning treaty lawin the newly independent States of Eastern Africa.The book is divided into three parts. Part one discusses the historicalbackground and evolution of the Eastern African States, with emphasisupon their attitudes and regard for the international community, contempo-rary international law, peaceful change, and the International Court of Jus-tice.' The Eastern African States specifically considered in this study in-clude Burundi, Kenya, Malawi, Rwanda, Somalia, Tanzania, Uganda andZambia. The author presents the reasons for underlying attitudes with someanalysis of the contributing factors for a fuller understanding of theseStates' posture toward the issues at stake. The view is that there are nomandatory international legal rules which obligate these States to acceptany rule of international law at the time these States came into being with-out their explicit or implied consent.In the second part, the author examines the general theories of statesuccession and status of the law of state succession. He continues with anin-depth analysis of the contribution of the Eastern African States' optionaldoctrine, derived from the classical clean-slate doctrine,2 but overhauled1. The orthodox Euro-centric view, for example, as expressed in the legal literature bypositivists and neo-positivists of the late nineteenth and first half of the twentieth centuries isthat African nations did not participate in the formulation of the norms of international law.The works of Wheaton, Phillimore, Hall, Oppenheim, Fauchille and Westlake attest to theview that international law was entirely developed through treaty and custom by the Christiancountries of Europe. The attitudes of the new club members of the international communitycan be gauged by a perusal of Anand, Attitude of the Afro-Asian States Toward CertainProblems of International Law, 15 INT'L & COMP. L. Q. 55(1966); T. 0. ELIAS, AFRICA ANDTHE DEVELOPMENT OF INTERNATIONAL LAW (1972); R.P. ANAND, NEW STATES AND INTER-NATIONAL LAW (1972); F. OKOYE, INTERNATIONAL LAW AND THE NEW AFRICAN STATES(1972).2. The "optional doctrine" is best summarily described by Judge T. 0. Elias, President ofthe International Court of Justice, in his Forward to this book as "based on the principle thatbilateral treaties should be separated from multilateral treaties, that other parties should joinTanganyika (as it then was) to apply the terms of certain treaties provisionally and limited(303)304 MD. JOURNAL OF INTERNATIONAL LAW & TRADEand reformulated by Julius K. Nyerere, President of the United Republic ofTanzania, and commonly known as the "Nyerere Doctrine." Generally, theColonial Powers advocated that the new Eastern African States enter intoinheritance agreements, and apply the pre-independence treaties concludedby the Colonial Powers on behalf of the colonial territories. Instead, the"Nyerere" doctrine, in the case of bilateral treaties, calls for provisionalapplication, on a reciprocal basis, for a two-year period from the date ofindependence of those terms of treaties that are compatible with the sover-eign rights of new states. This period of time would serve as a time forreflection by the new state to pick and choose whether to be bound or rene-gotiate the treaties with the parties concerned. In the case of multilateraltreaties, there is no fixed period for the provisional application of theirterms based on reciprocity. Inevitably, the various Eastern African Statesdeveloped their own versions of the optional doctrine (the opting in; theopting out; the general declaration and non-committal or selective "specifictreaty" formulae). The author provides considerable stimulating articula-tion in his analysis of the various concepts and State practices. Moreover,he outlines the reactions of the predecessor States, third parties includinginternational organizations, and jurists to the optional doctrine. Impact ofthe optional doctrine has been ascertained through other entities' adoptionof the formulae on gaining independence, and influence on the InternationalLaw Commission in its work on the Vienna Convention on Succession ofStates in Respect of Treaties.'In part three the author's primary objective is to demonstrate to whatextent the Eastern African States have actually applied their declared op-tional doctrine of succession on international treaties of various types.Readers will find this analysis both interesting and controversial. Makon-only to those treaties which are valid legally and compatible with the sovereign rights of thenew States though validly concluded or applied by Great Britain before independence, that theprovisional application of such bilateral treaties is based on reciprocity between the parties tothe treaties, that the provisional application of the terms of the treaties is fixed for a period oftwo years from the date of independence and all such treaties lapsed upon the termination ofthe period, that the two-year period should serve as a 'reflection period' when Tanganyikawould have a chance to pick and choose as well as an occasion for possible renegotiation withthe parties concerned, and that, in the case of multilateral treaties, there is no fixed period forthe provisional application of their terms based on reciprocity."(p. xvi).The proponents of tabula rasa, or clean-slate doctrine of state succession argue that uponstate succession the predecessor State's personality and its identity completely disappear. Theentirely new international sovereign personality appears in its stead with no legal connection orderivation between the predecessor and successor entities. See A.B. KEITH, THE THEORY OFSTATE SUCCESSION, WITH SPECIAL REFERENCE TO ENGLISH AND COLONIAL LAW 3-6(1907).3. U.N. Doc. A/CONF. 80/31 (1978). Opened for signature at Vienna on August 23,1978.[Vol. 8BOOK REVIEWSnen's premise is that at the heart of decolonization is the need to free theeconomies and natural resources of the former dependent territories fromthe domination and control of the colonialists. Makonnen discusses in greatdetail matters pertaining to the succession of international public, economicand financial rights and obligations with impressive empirical data to backup his assertions. He investigates international law for obligatory rules con-cerning succession of state boundaries and boundary treaties, and finds thatalthough the state practice of the Eastern African States shows evidence ofthe factual continuity of boundaries, it is not attributable to the theories of"dispositive treaty," "executed treaty," "established objective juridical sta-tus," or the uti posseditis doctrine.In the final analysis the author admits that "in comparison with eventsof state succession which took place before or after the Second World Warelsewhere in the world, the practice of the new Eastern African States hasnot been radically different."(p.498).As Judge T.O. Elias, President of the International Court of Justice,states in the Forward, this work clarifies the motives underlying the differ-ent attitudes of the new States of Eastern Africa for the changes proposedin the rules of international law. Much light is shed on the problems withwhich these eight East African nations were faced on attainingindependence.The Vienna Conventions on Succession of States in Respect of Trea-ties, and in Respect of State Property, Archives and Debts are appended tothe text. A good working bibliography and index complete this very finescholarly work. Much thought and clarity of presentation assure this contri-bution a significant place when considering the subject of state succession.Daniel C. Turack**B.A. (Toronto), LL.B. (Osgoode Hall), LL.M., S.J.D. (Michigan). Professor of Law,Capital University Law and Graduate Center.19841

International Law and the New States of Africa, by Yilma Makonnen

Abstract

Similar works

Full text

Available Versions

NELLCO Consortium Legal Scholarship Repository

Digital Commons @ UM Law