TWAIL

With the recent decision by the African Heads of States to adopt the Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area, Dr Dominic Dagbanja’s monograph on The Investment Treaty Regime and Public interest in Africa is a welcome addition to the growing list of monographs on Africa’s foreign investment law regimes. This book which is a based on Dr Dagbanja’s 2015 doctoral dissertation provides an original contribution to existing literature by focusing on the constitutionality of investment treaties. It deals with themes and issues which are critical for understanding Africa’s complex foreign investment protection and promotion laws. Although scholars have examined the linkages between constitutional law and international investment law notably using case studies from Europe and Latin America, this is the first monograph to focus on this issue from an African perspective.

In the early days of investment treaty awards, twenty or so years ago, it was obvious something was badly amiss. With virtually no legal analysis, the Metalclad tribunal found an indirect expropriation against Mexico based on the government’s refusal to authorize a landfill in a historically polluted area. A few years later, foreign asset owners busily sued Argentina for the country’s emergency measures, adopted in the face of a national economic crisis; the arbitrators were unsympathetic to the Argentine lawyers’ argument that it was ‘necessary’ for the country’s government to override the stipulated water rates in contracts with irresponsibly privatized utilities so households could afford drinking and bathing during the crisis and recovery. In CME, a case against the Czech Republic, the tribunal awarded hundreds of millions to a U.S. mogul after reasoning very erratically that the country had violated most of the cryptic investor protections in the invoked treaty. The dispute arose from Czech efforts to regulate broadcasting of cheap American re-runs on a major privatize TV station that was filling the airwaves with profitable muck. A sister tribunal in Lauder, bizarrely hearing a parallel claim by the human owner of the CME company, refused to award any compensation for the same dispute.

Globalisation and digitalisation of the economy has radicalised tax administration and commerce in Africa. While there is still significant room for growth, there has been a paradigm shift in Africa’s development policy landscape over the past three decades. Economic liberalisation measures aimed at opening up the continent to global market forces and attracting foreign direct investment have significantly replaced state intervention and public ownership in most African countries.1 There is a race amongst governments in the continent to optimise and harness the vast tax potential of both the digital economy and the emerging digital finance market involving trading in cryptocurrencies, Non-Fungible Tokens (“NFTs”), and other digital assets. They aim to embrace the regulatory complexities of both the digital economy and the emerging digital finance market with a view to making their countries fit for the digital age and to building a future-ready economy that works for the advancement of their people. However, the rise of globalisation and digitalisation of the economy, including the economic liberalisation that followed, has (amongst other factors) allowed tax and commercially related Illicit Financial Flows (“IFFs”) to thrive in Africa. IFFs from Africa are said to have assumed crisis proportions in recent times.3 Global Financial Integrity (2010) reportedly estimates IFFs from Africa between 1970 and 2008 alone at more than U$1 trillion, an amount that dwarfs the combined inflows of developmental assistance and foreign direct investments into the continent over the same period.4 Nigeria is also reported to have led other resource-rich African economies with this enormous outflow, put at US$217.7 billion, or 30.5% of the total IFFs from Africa within the relevant period.5 Africa is currently estimated to be losing more than US$50 billion to US$86.63 billion annually in IFFs.6

Olakpe's scholarly contribution is a thought-provoking addition to the discourse on South-South migration. Through an in-depth conceptual and methodological analysis of the law from below and Third World Approaches to International Law (TWAIL), Olakpe unveils the intricate layers of migration dynamics. Departing from the conventional south-north migration paradigm, this book unpacks the nuances of south-south migration through a critical and transformative lens, reorienting the dialogue towards the subtleties that characterize this unique migration pattern. At the heart of Olakpe's approach lies her innovative utilization of case studies and legal ethnographies in Nigeria and China. These studies serve as a lens through which she illuminates the experiences of marginalized subaltern communities, offering a critique of international law's role within the context of South-South migrations.

Opening with the impact of untold narratives, Oreva Olakpe’s book, South-South Migrations, and the Law from Below, analyses South-South migrants in international law through a TWAIL lens. It considers ‘stories of building community, finding justice outside the protections of the state, and of their struggles against discrimination and exclusion within a state that does not recognize international migrant and refugee protections.’ (2) It weaves the experiences of undocumented migrants in the spaces that they are occupying while situating the impact of their experiences in international legal work. The book intentionally centers on undocumented communities as subjects of international law to map how they interact, shape, and resist in their own spaces. Doing so, the book critiques dominant literature that treats the Global South as objects of international law. The book attests to the agencies of undocumented migrants.

International legal scholarship on migration remains obsessively focused on migration from the global north to the global south. Even knowledge production anchored in critical traditions within international law, such as Third World Approaches to International Law (“TWAIL”), tends to skew in the direction of analysis that centers Third World encounters with the First. This general orientation comes at the costly expense of a deeper understanding of what Oreva Olakpe terms “South-South migrations” in her powerful intervention addressing this glaring shortcoming in the literature. Neglect of detailed study of experiences of international law in the global south, and in South-South relations, results in more than a merely incomplete picture of the nature of international law.

International court decisions, the corruption of the elite in the Global South, and the refusal of states to uphold their obligations towards people who are excluded from the privileges of citizenship shape how migrants experience law, as well as how they forge their paths to justice, recognition, and access. This book and symposium contribute to efforts to understand and document how international law impacts migrant communities, but also how these communities fill the lacunae created by law and migrant status through their acts of contestation and innovative approaches. It delves into the evolving approaches to migration and international obligations in the two states as they face new migration-related challenges.

One of the sites where the legacies of colonialism continue to be perpetuated in the Global South is the law classroom. In the teaching and research of international law, ‘mainstream’ narratives of international law are privileged as the Subject, and critical international law scholarship is treated as the Other.

This is the video recording of the Afronomicslaw Academic Forum Guest Lecture Series on "The Sovereign Alien: History, TWAIL, and International Economic Law" by Prof. Antony Anghie with Humphrey Sipalla as discussant.

The Afronomicslaw.org Academic Forum Lecture Series brings experts and discussants together to discuss broad issues arising from international economic law as they relate to Africa and the Global South.