Book Reviews

Article 8

International Journal of Legal Information the Official Journal of the International Association of Law Libraries

Volume 38 Issue 1Spring 2010

4-1-2010

Duncan Alford University of South Carolina School of Law

Maria Grahn-Farley Albany Law School

Karin Johnsrud Leo T. Kissam Memorial Library, Fordham University School of Law

Scott Rasmussen

Roy L. Sturgeon Gould Law Library, Touro College Jacob D. Fuchsberg Law Center

BOOK REVIEWS__________________________________

Unified Business Laws for Africa: Common Law Perspectives on Ohada. By Martha Simo Tumnde, Mohammed Baba Idris, Jean Alain Penda, M. John Ademola Yakubu, and Claire Moore Dickerson. London; Philadelphia: GMB Publishing Ltd., 2009. Pp. vii, 169. ISBN 978-1-84673-150-1. US$110.00.

This slim volume analyzes OHADA (Organisation pour

l’harmonisation en Afrique du droit des affaires), the international organization that has unified business laws among its 16 member states located in central and western Africa.

1 The analysis in the book constitutes 110 of the volume’s 173 pages,

with the remainder consisting of appendices and prefatory matter. Legal scholars from Nigeria, Cameroon, and the United States drafted the seven chapters in the book. The goal of the collection is “to provide information about OHADA that readers can use to assess what their own country and its business people could gain from participation in this project.” In the book, the authors describe the institutions of OHADA, analyze the uniform business laws approved by OHADA, and describe the legal system that enforces these laws, particularly the Common Court of Justice and Arbitration. As the subtitle of the book suggests, the authors provide a common law perspective on the OHADA system, which is based on French commercial law. All sixteen member states are Francophone nations with civil law systems except for Cameroon, which is bijural with its Anglophone provinces following a common law system and its Francophone provinces utilizing a civil law system.

The articles provide useful insights into the OHADA system. For

instance, one author notes that OHADA member states, much like the European Union member states, have ceded a portion of their sovereignty to OHADA, particularly that portion dealing with business law. The OHADA Council of Ministers approves uniform acts governing business and investment by unanimity. Once the Council enacts a uniform law, it becomes law in all member states. Another author notes insightfully that OHADA is “an African answer to the challenge of globalization in the area of business law.” By creating and enforcing uniform business laws across the 16 member

states, OHADA hopes to decrease transaction costs, create more legal certainty for investors, and encourage investment in OHADA nations.

The authors criticize certain aspects of OHADA. First, several point

out the “democratic deficit” of enacting uniform laws. The Council of Ministers approves these laws, not the national parliaments or legislatures. Given that the members of the Council are appointed by the executives of the OHADA nations, the laws are not directly enacted by the people’s representatives. Second, French is the only working language of OHADA and the only authoritative version of the OHADA Treaty is the French version.2 Anglophone Cameroon must rely on unofficial English translations. With French as the only working language, expansion of OHADA to nonFrancophone countries, such as Nigeria, is hindered. Third, while the CCJA interprets OHADA uniform acts, there exists a tension between the national court systems and the CCJA over the jurisdiction of cases involving the OHADA uniform acts. In her concluding chapter to the book, Professor Claire Dickerson recommends several improvements to OHADA, such as a greater institutional role for the Permanent Secretariat and the introduction of English as a working language. In the same vein, the authors praise OHADA’s successes. The uniform acts have provided legal certainty to business transactions in the OHADA states. The creation of a personal property registry has been innovative and increased the possibility for collateral-based lending.

This volume provides a concise treatment of OHADA from a common law perspective and a readable overview of OHADA and its institutions. The discussion of OHADA institutions in Chapters 3 and 4 is repetitive. One chapter is needed to provide this background, not two. The authors describe the challenges of implementing OHADA, but there is little analytical discussion of the positive effects of OHADA. The book omits discussion of how OHADA has improved foreign investment in member states, which would be enlightening and would give nations contemplating OHADA membership some incentive to join if foreign investment has indeed increased as a result of membership in OHADA. The book includes as appendices a bibliography of scholarly material on OHADA, the text of the 1993 OHADA Treaty, the text of the 2008 revisions to the OHADA treaty, and selections from the Uniform Acts. A detailed index is also included. Academic law libraries with a strong international focus and law firm libraries with clients in Africa would find this volume

useful in their collections. Scholars of comparative law would also be interested in this volume.

Duncan Alford Associate Dean and Director of the Law Library University of South Carolina School of Law Columbia, SC USA

War, Commerce, and International Law. By James Thuo Gathii. Oxford, New York: Oxford University Press, 2010. Pp. 304. ISBN: 978-0-19-5341027. UK£45.00; US$65.00.

The explicit purpose of War, Commerce, and International Law by James Thuo Gathii3 is, as the title indicates, to challenge the presumption in law that war and commerce are two distinctly different concepts.4 In his book, Gathii argues that war, defined by the use of force, and commerce, understood as the absence of force, are not distinctively different from each other.5 He also argues that the distinction law makes between the two is possible to challenge as false, and that in the end law cannot even sustain its own legal distinction.6 Gathii’s book also has a wider purpose, which is to challenge international law itself by describing it as Western and power serving.7

War, Commerce, and International Law puts the West itself on trial by showing how Europe and the United States in their relations with weaker states have used the ambiguities of law and the openness of legal interpretation to their advantage. This wider argument, in the end, reveals a much weaker United States and Europe and a more porous relationship to power than is usually seen in TWAIL (Third World Approaches to International Law) scholarship.8

War, Commerce, and International Law moves through a historically

deep and disciplinarily wide array of cases in the effort to prove its case to readers. Beginning with an analysis of the case law governing private property onboard vessels during the American Civil War and going all the way to an analysis of the use of private armies by the United States in the Iraq Occupation, the reader is taken through a meticulously gathered string of cases showing that the United States’ position on the protection of private property during war time has changed as the United States moved toward its super power status.9 During the Civil War the United States adopted a position of neutrality that was protective of private property; however, by the time of the Iraq occupation it almost totally disregarded private property protection or, at a minimum, failed to locate a legal responsibility to protect private property from the vandalism and plundering that took place during the early days of the occupation.10 War, Commerce, and International Law thus demonstrates the flexibility of law, and how the same nation state can interpret and use the law differently, depending on its social context in a given historical moment.

Gathii’s book shows that the implosion of war and commerce reaches

its maximum with the use of mercenary soldiers and private armies. International law literature usually depicts private armies as threatening to the

nation state's sovereignty because they violate the state monopoly on the use of force.11 But today’s private armies are often deployed on behalf of the nation state and not against it, and this use of force is not currently well regulated in international law.12

Professor Gathii does not identify himself as a post-modernist, nor

has he been identified as a post-modernist. However, this is a truly postmodern book. Its post-modernity can be seen in its method. The book’s analyses are centered on the ambiguities of law and politics and the case-bycase manifestation of an openness toward interpretation. It is important to not conflate the term “post-modern” with “agnosticism” or “nihilism.” There is nothing agnostic or nihilistic about the narrative, which is slowly and carefully woven, in War, Commerce, and International Law. The book demonstrates in a dispassionate manner how law serves as a legitimizing tool for the subjugation of territories and people beyond the metropolitan boundaries. Law is used to legitimize the taking and keeping by both justifying the taking of land and private property through war and commerce and by claiming an inability to regulate and protect land and private property in war time. This taking and keeping is the organizing theme of Gathii's book, rather than a specific legal subject or a false disciplinary distinction between war and peace. Taking and keeping is, then, the post-modernity of War, Commerce, and International Law’s method.

War, Commerce, and International Law crosses disciplinary boundaries in order to analyze the impulse to take and keep land and property. This pursuit of the impulse to take and keep means that the reader is taken through humanitarian law, bilateral investments treaties, human rights, and domestic law in a way that ultimately challenges the disciplinary boundaries of the entire field of international law. The book merges international public law with international private law and the international with the domestic; the cases pass through the horizontal inter-state system of international public law as well as vertical legal systems of civilian and private actors of domestic law. The book shows how systematically, and also consciously, the stronger powers, Europe and the United States, deploy either the use of force or trade against the weaker colonial territories and post-colonial states in order to achieve control over land beyond their metropolitan territorial boarders; and thus, ultimately, gain access to the natural resources embedded in these foreign places. The book also shows how, in the end, the use of mercenaries

on behalf of the nation state reveals the true weakness of these powerful nations and their vulnerability occasioned by the implosion of public/private and war/peace, as exhibited by the implosion of war and commerce. Ultimately, rules that protect taking cannot also justify the keeping of the very same, and vise versa.

War, Commerce, and International Law is both the prosecution and

the defense on the behalf of international law. This is not a cynical book, but it is a critical book. It presents a doctrinal case against the West as the perpetrator and it is successful in its argumentation, with no stone left unturned. Because of its detailed doctrinal approach, it is a useful and persuasive text, even for readers not predisposed to post-colonial scholarship or critical approaches to law. It seems to hold out the hope that international law can and will serve those nation states that have nothing but the legitimacy of law to protect them from the takings and keepings committed by overwhelmingly more powerful nations.

The book could have benefited from a few more chapters presenting

the new discoveries as new, and thus explaining that TWAIL has taken a new developmental and more hopeful turn in the sense that the book sees no power so overwhelming that it does not have weaknesses. This view of power follows a current post-colonial view that has found representation in other fields, i. e., that all forms of power have porous moments and internal weaknessnesses.13 Hopefully, the next book will give us even more on this topic, because it is both helpful methodologically and politically important.

War, Commerce, and International Law clearly follows a line of

scholarship that has been described as TWAIL. There are clear connections in the text to the critical approach of Antony Anghie's well-read book, Imperialism, Sovereignty and the Making of International Law. Gathii’s book brings the legal method of TWAIL quite a few steps further. By the end of the book, the reader is not only convinced about the Eurocentric character of international law, but also understands how power can play against itself, often through law. This is the true value of this book; it shows how this Eurocentric use of power and the ambiguities of law together open up gaps

that threaten not only to engulf weaker third world states but also threaten the only remaining super power, the United States. That United States taking advantage of the legal ambiguities of private armies and its reliance on them in its current wars in the Middle East and Asia opens up all the nation states deploying private armies to a whole new form of vulnerability: When a nation state relinquishes the monopoly on the use of force, either by legal means or de facto because it does not have the resources to maintain an army of its own, the nation state is playing with fire, both literality and figuratively.14

War, Commerce, and International Law is an international book on law; it takes a global view of international law, and thus the distinctions between the public/private, international/domestic, and war/peace are challenged in new ways through traditional and doctrinal reading of case law. The challenge takes place by following the path of conquest and occupation, where law itself is peripheral to power and focuses on the taking and keeping that crosses both vertical and horizontal boundaries. This vexing phenomenon of overwhelming inequalities between parties is connected to globalization. One question remains: Would Gathii's method be as applicable to civil law and a less adjudicative power as it has been on common law and adjudicatively strong systems? It will be interesting to see the legal research, possibly by civil law scholars, that will follow the path of this book.

Maria Grahn-Farley Associate Professor of Law Albany Law School Albany, NY USA

The Endurance of National Constitutions. By Zachery Elkins, Tom Ginsburg, and James Melton. Cambridge; New York: Cambridge University Press, 2009. Pp. x, 260. ISBN 978-0-521-73132-4. UK£17.00; US$228.99.

Since 1789, the United States has had one constitution. During the

same period, France has had seventeen, with the early ones lasting only a few years each. Between 1844 and 2002, there have been 33 different constitutions in the Dominican Republic. What characteristics have allowed the United States Constitution to last over 200 years? What made the early

French constitutions fail and why has the 1958 Constitution lasted? Is it design flaws or environmental factors that have led to the numerous constitutions in the Dominican Republic? Using data gathered as part of the Comparative Constitutions Project to provide an empirical look at the constitutional life-cycle, Zachary Elkins, Tom Ginsberg, and James Melton explore these questions and many others relating to constitutional longevity in The Endurance of National Constitutions.

In their introduction, the authors theorize that the design of a

constitution can have a profound impact on how long it survives, with “design” including both the text and aspects of the drafting process. Following the introductory chapter, which sets out the structure and intent of the book, the authors delve into whether constitutions should last for generations or should be revised frequently. In letters to James Madison, Thomas Jefferson advocated that constitutions should have expiration dates in order to prevent the older generations from continuing to govern later generations. In Jefferson’s opinion, a constitution should be revised every nineteen years. Madison, on the other hand, was a strong advocate of constitutional continuity. The authors present arguments on both sides of the debate, while beginning to include data to support their points. What is interesting is that the data seems to bear out Jefferson’s assertion that constitutional review should take place every generation, since the average life expectancy of a constitution is nineteen years.

Chapter three sets out how the word “constitution” is defined for the

purposes of the book. The authors analyze the constitutional order, comparing “constitution-as-function” and “constitution-as-form.” The constitutional order generally includes a written constitution, other sets of laws, and unwritten constitutional norms, all of which function together. Within this, the written constitution is the centerpiece and it is this aspect of the larger constitutional order that is the focus of this book, since as a text it can be more easily evaluated and compared across both geography and time. The data used throughout the book is from the Comparative Constitutions Project, which has gathered information about constitutions written from 1789 until 2005 and is gathering the text of all of them in order to examine their clauses. The constitutions are coded based on multiple characteristics so that many different types of analysis can take place. This chapter also addresses the difference between replacement and amendment, and how regime change in a country can impact constitutional change. These distinctions help to elaborate the choices made in counting the number of constitutions in any country. In total, the data used includes 935 constitutions from 200 countries, of which 746 have been replaced or suspended and 189 are still in force.

The fourth chapter introduces the “theory of renegotiation,” which the authors have developed to evaluate constitutional longevity and constitutional mortality. Under this theory, all constitutions are bargains between interested parties. If the parties feel secure and confident under the agreement, they will choose to remain bound by it. If there is concern on the part of one side to the bargain, that side may seek to renegotiate through replacing or amending the constitution. Any party seeking to replace a constitution will balance their interests under the existing scheme with the costs of renegotiation before making the decision to push for change. As part of the theory, the authors introduce constitutional design elements that can impact constitutional life. Design factors that are discussed in detail include inclusion, specificity, and flexibility. Inclusion is defined as how many groups were involved in the development of the constitution or whether there was a general ratification that included a large percentage of the population. Specificity has two main factors: scope, the number of topics considered in the constitution, and detail, the amount of consideration given to each topic. Flexibility focuses on how easily the constitution can be amended to reflect changes in circumstances over time.

Chapter five builds on the “theory of renegotiation” and delves into

the risks to the constitutional bargain. There are two main types of risks: design features and environmental factors. Examples of design features are ease of amendment as a form of flexibility, constitutional review, and the interaction between scope and detail. Environmental factors deal with aspects outside the text of the constitution, such as leadership transition, economic crisis, loss of territory, and internal or external conflicts. Using their data, the authors show the extent of the impact each of these factors can have on the life of a constitution.

Building off the general discussion in chapter five, chapter six uses

the data from the Comparative Constitutions Project to analyze how both environmental factors and design features have affected constitutions throughout history. Detailed statistical analysis is given for each factor as the authors test their hypotheses about how constitutional design affects constitutional mortality. The final two chapters of the book provide what the authors call “family histories” and “autopsies” for constitutions to flesh out and add detail to the empirical information presented in the preceding chapters. These compare constitutions that have lasted, e.g., India, with those that have not, e.g., Pakistan, as well as give the reader a clear sense of both the design factors and environmental conditions that contributed to the success or failure of a constitution. These two chapters are exceedingly informative and provide a narrative aspect to a book that is largely empirical. The Endurance of National Constitutions is a well written and easy-to-read book. The authors are clearly intrigued by constitutional law and what makes

constitutions survive or fail, and they use the data they have to develop and support their theories. The book contains appendices with the underlying data used for the statistical analysis. They also provide the URL for the Comparative Constitutions Project (www.comparativeconstitutionsproject.org) for those interested in learning more about the project. The text contains helpful explanatory footnotes and there is a long list of references included for further research or reading. For an area of constitutional law that has not been explored in such detail before, The Endurance of National Constitutions is an important and useful book for anyone interested in why some constitutions endure across generations while other fail after only a few years. Given the specific empirical information provided, this book would be helpful for nations in the constitutional design stages. As the authors state in the conclusion, they hope that their analysis yields “the benefit of redirecting the attention of scholars and practitioners to the art and science of constitutional design” since “constitutional designers have the ability to extend the life scan of their products with careful attention to some key factors.”

Karin Johnsrud Head of Reference Fordham Law School Library New York, NY USA

England and the Continent: distinguishing the peculiarities of the English common law of contract. By Eugen Bucher (Translated from German by Tony Weir). Zurich; Dike Publishing, 2009. Pp. 58. ISBN: 978-3-03751-1800. US$33.00; SFr 30.00.

Eugen Bucher, professor emeritus of law at Berne University, has

written a monograph with continental lawyers in mind. He is more interested in addressing his arguments to comparatists than to legal practitioners, though I suspect the latter will benefit from this work as well. Certainly, Professor Bucher’s deep and fluent analysis should leave continental lawyers rather less puzzled when studying contracts drafted to common law norms.

Although the law of obligations, the core of any legal system, is

similar on both sides of the Channel, it is the party’s promise lying behind the obligation that is of interest to English lawyers. When that promise is transmuted into the concept of consideration, the continental lawyer becomes lost very quickly. Thus, Professor Bucher spends the better part of his book looking at how the courts in England created the concept of consideration, and

then how they’ve interpreted it down the centuries. He also studies consideration’s counterpart, frustration, which is of much later coinage, and surveys the scholarship from Glanvill to Maitland on contract performance.

One strength of this short book is its focus on historical context, since

law is a cultural system, just like politics or economics. For instance, he shows that the Norman Conquest led to a fundamentally different trajectory for the law of contract in England. Although contractual disputes had been heard in Anglo-Saxon courts, and even in the courts of Roman Britain, they were barred from the Norman Curia Regis. It was not until four centuries later that they began to be heard again, and this only because some lawyers managed to introduce them using the pretense of assumpsit. This action in tort eventually gave rise to the requirement of consideration. Indeed, the concept of consensus in contract formation, so familiar to the continental jurist, tends to perplex his English peer. Professor Bucher notes that under the English system consideration came to be seen as the indispensable element of the contract, the nexus where the parties’ promises coalesce into an indivisible unit. He also sees this emphasis on utterances as characteristic of the English preference for ascertainable fact over abstraction.

In the practical realm, Professor Bucher’s book shows how difficult it

might yet be to implement a pan-European law of contract, or even a panEuropean system of private law. Still, he sees the results and outcomes in the law of contract as converging and being roughly similar in England and the Continent – even if the lawyers and judges approach such outcomes from very different premises.

Scott Rasmussen15 San Francisco, CA USA

The Common Law in Two Voices: Language, Law & the Post-Colonial Predicament in Hong Kong. By Kwai Hang Ng. Stanford, California, Stanford University Press, 2009. Pp. 352. ISBN 0-8047-6165-5. US$24.95.

Kwai Hang Ng is an assistant professor specializing in the sociology

of law, language, and religion, social theory, and China at the University of California, San Diego. He has taught there since 2004, when he received his Ph.D. in sociology from the University of Chicago. He also has degrees from the University of London (LL.B.) and the Chinese University of Hong Kong (B.S. in journalism). He has published a book chapter on Spanish-speaking courtrooms in the US as well as articles on Chinese Protestant churches in the US and sexually transmitted diseases in China. In the book under review,

which is Ng’s first book, he examines how English and the southern Chinese dialect Cantonese16 have reinforced and undermined the practice of legal formalism in one of the world’s only bilingual common law jurisdictions since 1997. Article 9 of Hong Kong’s mini-constitution, the Basic Law, provides for the use of both languages by the executive, judicial, and legislative authorities. Hong Kong’s special history as a British colony for 155 years before becoming a Chinese special administrative region in 1997 accounts for its legal bilingualism. At the start of his engaging book, Ng states that he aims “to show how different language practices embedded in English and Cantonese at times constitute and reproduce what we see as the dominance of institutions but at other times challenge and disrupt their fundamental mode of operation.” This matters because postcolonial Hong Kong is trying delicately to integrate itself with China (a one-party, authoritarian civil law-like state) while keeping its British common law heritage of independent courts and the rule of law. Unsurprisingly, there has been tension (e.g., 1999’s Right of Abode case and 2003’s Article 23 protests) and will likely be more in the future (e.g., regarding the pace of universal suffrage).

The Common Law in Two Voices consists primarily of three parts in nine chapters. Part one (chapters 1-3) focuses on understanding law and language in Hong Kong. It discusses the challenge of legal bilingualism, juridical formalism and the mechanism of legal rearticulation, and the practices of Cantonese and English in Colonial Hong Kong. Part two (chapters 4-6) is the main part of the book and focuses on how Cantonese and English work in the courts. It gives an account of what litigants and professionals do in the two languages, discusses the mechanism of court interpretation through a detailed look at one revealing example, and shows that the interactional order in Cantonese courtrooms is inchoate and flexible. Part three (chapters 7-9) focuses on legal bilingualism and the rule of law. It describes how linguistic ideologies of Cantonese and English rationalize and affect the use of the two languages in the legal realm. Part three also looks at the institutional responses that the Hong Kong judiciary derived because of challenges posed by legal bilingualism, and places the story of bilingualism within the context of Hong Kong’s social transition from colonialism to postcolonialism.

Ng’s book is well researched, written, and argued. Essentially, it is a

reality-based discussion of Hong Kong’s compromised form of legal bilingualism whereby legal professionals use Cantonese as the language of facts in lower courts and English as the language of law in higher courts. The

limiting of Cantonese in such a way means it plays “a trivial role in the accumulation of local case law and thus has a limited input into interpreting what the common law means, let alone deciding what the common law should be, in Hong Kong.” This is odd because 95% of Hong Kong’s seven million residents are ethnic Chinese and native Cantonese speakers. However, there is a widespread feeling among legal professionals there, who want to cement Hong Kong’s status as Asia’s global city, that the common law requires English to authenticate its identity because English is the language of the common law around the world. They do not want their legal system to become cut off from the family of common law systems. Instead of the death of English common law feared by some in postcolonial Hong Kong, what has happened since 1997 is the early death of the idea of Chinese common law. Ng concludes that time will tell whether this continues or Chinese, not Cantonese, but Mandarin becomes the preferred legal language in postcolonial Hong Kong and whether the common law system is retained or replaced by China’s quickly evolving non-common law legal system, which lacks a tradition of independent courts and rule of law. One thing is certain; it will be fascinating to see what unfolds.

The book has an appendix on Ng’s methodology, which details his

Hong Kong fieldwork from 2001 to 2002 when he observed 30 civil trials in the Court of First Instance and the District Court of Hong Kong. It also has a list of questions used in interviews with Hong Kong barristers and judges followed by a list of abbreviations, notes, and cases cited, a 15-page bibliography, and a10-page index. The front of the book also has a note on orthography and transcription and on terminology. This thought-provoking book is highly recommended for libraries that collect sociology or Asian law monographs.

Roy L. Sturgeon Foreign & International Law Librarian Gould Law Library Touro College Jacob D. Fuchsberg Law Center Central Islip, NY USA

--- FOOTNOTES ---

1 OHADA members include Benin, Bissau Guinea, Burkina Faso, Cameroon, Central Africa, Chad, Comoros, Congo, Equatorial Guinea, Gabon, Guinea, Ivory Coast, Mali, Niger, Senegal, and Togo. The Democratic Republic of Congo is in the process of joining OHADA.

2 A 2008 revision of the OHADA Treaty adds English, Spanish and Portuguese

as official languages among other changes. The revision is currently proceeding through the approval process in the various OHADA nations.

CHALLENGING OLD LEGAL TRUTHS

3 Governor James Pataki Distinguished Professor of International Commercial

Law at Albany Law School.

4 The work of Professor Johan Galtung comes to mind, especially Galtung's

developed understanding of aggression and violence as being more than direct physical harm. This is Galtung's definition: "drives towards change, even against the will of others." J.Galthung, A Structural Theory of Aggression, Journal of Peace Research, Vol. 1, No. 2 (1964), p. 95.

5 See generally Gathii, War, Commerce, and International Law (Oxford, New

York: Oxford University Press, 2009) pp. 105-107.

6 Professor Martti Koskenniemi's work on the deconstruction of normative and

material legal arguments is a theoretical work that comes to mind when following Gathii's legal method. See generally M. Koskenniemi, From Apology to Utopia, The Structure of International Legal Argument (Cambridge University Press, 2006); JT Gathii, War, Commerce, and International Law (Oxford University Press, New York, 2009) p. 191.

7 The critical approach to international law is one of the core elements of TWAIL (Third World Approaches to International Law) scholarship as expressed by Professor

THE IMPLOSION OF BINARIES, CASE BY CASE

Makau Mutua: "The regime of international law is illegitime." see Makau Mututa, What is TWAIL? 94 Am. Soc'y Int'l L. Proc. 31 (2000), p. 31; See generally Gathii's chapter on “Hegemonic Erosion of a Customary International Law Canon over NonEuropean 'Property'.” Gathii, pp. 58-70.

8 Antony Anghie and B.S. Chimni describe how TWAIL has gone through two

stages TWAIL I & TWAIL II, where the focus has moved from a focus on colonialism to post-colonialism. A. Anghie & B.S. Chimni, Third World Approaches to International Law and Individual Responsibility in International Conflicts, 2 Chinese J. Int'l L. 77 (2003). Gathii, pp. 211-219.

9 Id. pp. 58-70. 10 Id. pp. 46, 93.

11 Id. pp. 220-222, 223-225. 12 Gathii argues that contrary to the general view that private armies are quite

unregulated in international law, there are regulations in for example The Organization of African Unity's Convention for the Elimination of Mercenaries in Africa, O.A.U. Doc. CM/433/ Rev. L. Annex I (1972).Gathii, p. 231.

INTERNATIONAL LAW ON TRIAL

TWAIL CONTINUED…

13 Mostly expressed in post-colonial literary studies, see generally Homi K.

Bahbha and Gayatri Chakraorty Spivak.

CONCLUSION

14 Gathii gives the example of Sierra Leone JT Gathii, War, Commerce, and

International Law (Oxford University Press, New York, 2009) pp. 225-227.

15 Mr. Rasmussen is a legal editor and translator.

16 Also known as Guangdonghua in Mandarin, because it is spoken mostly in

Guangdong Province and Hong Kong.