Why Africa must move beyond scepticism to influence international law

Scepticism is generally any questioning attitude or doubt towards facts. This can be seen as a positive standpoint in the face of uncertainty however scepticism without action to increase knowledge, balance beliefs against criteria and criteria against beliefs, ensues that one remains at the periphery in a given situation. As Africa seeks to become a global player, scepticism must be balanced with pragmatism.

Scholars that identify with the TWAIL School or Third World Approaches to International Law often take a sceptical approach to international law issues but share at least three interrelated objectives through their scholarship. 

•Firstly, they seek to deconstruct and understand the uses of international law as a medium of subordination;

•Secondly, they endeavour to transform international law from a language of oppression to a language of emancipation; and 

•Thirdly, they attempt to construct and present an alternative normative legal edifice for international governance. 

The use of the terminology “Third World” while offensive to some because it conjures up sentiments of the “Afro-pessimism” of the 90’s, is purposefully used to depict a social reality with higher heuristic value than other mainstream terms such as “developing” or “industrializing” or “global south”. This is because TWAIL scholars argue these terms do not adequately capture the situation that these countries find themselves in. 

While many mainstream areas of law have been assessed from a TWAIL perspective, the law governing outer space activities has not been subject to such analysis, likely due to the misconception that space activities are not a third world concern. However, the contrary position is in fact true. In 2013, according to Euroconsult, no less than 85 countries invested in or had announced plans to invest in space with a substantial number of those from so called developing or third world countries. As more and more countries gain awareness of the benefits and use of space technology and applications, the need for increased awareness about space governance becomes more apparent.

The law making body enjoined to create space law is the Legal Subcommittee (LSC) of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOUS) . This body in part created the foundation of the regime that we now understand as the governing regime for outer space activities, which includes international treaties, general assembly resolutions, so called “soft law” mechanisms, national space legislation and regulations. However, the future of the international law making body appears uncertain, because it has not been able to stay relevant, finding itself increasingly marginalized and side stepped. The immediate question thus seems to be, “is there even a need for any new space law?” Whether there is or is not is a matter of continued debate but if new rules are needed to regulate increased number of space users and future planned activities such as commercial suborbital transportation like RichardBranson’s    Virgin Galactic offers and mining of natural resources of celestial bodies, then the process by which legally binding rules are created, or at least their source, needs to be clearly understood. The role of third world countries is increasingly important if new rules are developed because as the TWAIL objectives dictate, third world countries must ensure the emancipatory potential of international law, alongside its other uses.

The last meeting of the LSC in June 2014 saw proposals being made as to the reorganization of the work of the subcommittee. This much needed discussion according to its current chairman engendered scepticism from the African group. From a TWAIL perspective there could be some merit in scepticism, leading one to act with caution and question the ideas and motives of the powers that be. But, in the face of a system that is obviously flawed and with the goal to meaningfully contribute to the development of the law in a field where you are a late comer to the table, the heart of the issue is how to respond to the philosophical Problem of the Criterion. In essence, answering the question, what is the extent of our knowledge and what is the criterion for knowing? If we do not know what we do not know, how can we meaningfully engage? 

Despite this trepidation, and my partial alignment with TWAIL sentiment, I argue that scepticism alone will not get us far. It is not enough to situate critic on the outside of normative structures. Account of the existing framework and how it can be developed must be taken if we are to produce real change. In other words, how can we ensure that the existing framework and institutions enable third world countries to foster capabilities in a way that is of mutual significance to all and what mechanisms are needed to create that enabling environment? If having a hand in creating new laws facilitates development, then law making is encouraged but perhaps more importantly, there is a need to focus on ensuring that existing laws that set out to benefit third world countries are actually implemented.

The chairman of the LSC declared in his latest article titled The new debate on the working methods of the UNCOPUOS Legal Subcommittee, that “the prospects (for the subcommittee) are not obviously bright but the discussion in 2014 has shown that an understanding of the urgency to reshape the LSC exists.” As a scholar of international law and policy making this is a sobering declaration, however I can stretch far enough to see this as an opportunity for Africa to positively influence future development of the law through continuing the engagement that was shown while Africa had the chairmanship of the LSC only last year. To do this, Africa must move beyond mere scepticism at proposals that seek to make change, but be proactive about contributing ideas about what that change should look like. In true TWAIL fashion, we must construct and present an alternative normative legal edifice for international governance, where necessary.

Timiebi Aganaba-Jeanty