On the Origin of Fear in the World Trade System - Excavating the Roots of the Berlin Conference

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On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin
Conference of 1884-1885
Author(s): Marjorie Florestal
Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 101
(MARCH 28-31, 2007), pp. 143-146
Published by: American Society of International Law
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Africa: A New Voices Panel 143 
do not only affect states. International rules on these issues must be adhered to by states as 
well as non-state actors. The Chadian experience in the management of oil revenue reveals 
important insights regarding the future of international law. The first implication relates to 
the notion of shared sovereignty discussed in recent years by Krasner.5 The second implication 
for international law refers to the leverage of MNCs and NGOs in determining the actions 
of states, the majority of which lack resources to effectively and efficiently defend their 
interests at the international level. These two implications are connected to a third?which 
is that internal politics matters in shaping international norms, and this will increasingly be 
the case.6 
Talking about internal politics, the GoC still has its work cut out on security-related issues. 
It needs to ensure political stability while meeting the development pledge to its population. 
It will not be able to deal with this dilemma if its internal and local structures of allocating 
wealth are not well thought-through. One of the viable options that the government can 
consider is the establishment of local and national trust funds to manage the oil proceeds. 
Experiences in natural resource management of the Nunavut Tunngavik of Canada, as well 
as the successes of Norway in oil revenue management, provide apposite indications which 
the GoC should consider. 
On the Origin of Fear in the World Trade System: Excavating the 
Roots of the Berlin Conference of 1884-1885 
By Marjorie Florestaf 
Walk through any marketplace in Africa, and evidence of the continent's commercial 
vibrancy and entrepreneurial spirit abounds. From a small village in Cameroon to a miles 
long bazaar in Cote dTvoire, African markets are alive with the shouts of merchants hoping 
to finalize a sale with a recalcitrant shopper. In Senegal young boys roam the streets hawking 
cheap goods made in China to every pedestrian or unwary commuter stuck in one of Dakar's 
infernal traffic jams. And Benin's "Mama Benzes" keep the economy going while providing 
for their families in style. 
For all of its commercial savvy, however, the continent has failed to join the global 
economy in anything other than a consumer capacity. A number of studies conducted after 
the Uruguay Round concluded that Africa is the continent that is least integrated into the 
world trade system and that benefits least by globalization.1 Part of the explanation for the 
continent's disappointing results in these negotiations is Africa's lack of participation in the 
process.2 Without question, until very recently sub-Saharan African countries were not a 
5 
Stephen D. Krasner, The Hole in the Whole: Sovereignty, Shared Sovereignty and International Law, 25 Mich. 
J. Int'l. L. 1075-1101 (2004); Sharing Sovereignty: New Institutions for Collapsed and Failed States, 29 Int'l 
Security 85-120, 112 (Fall 2004). 
6 Anne-Marie Slaughter & William Burke-White, The Future of International Law is Domestic (or, The European 
Way of Law), 47 Harv. Int'l L. J. 350, 327-352 (2006). * 
Associate Professor, University of the Pacific McGeorge School of Law. 1 
See, e.g., Peter Harrold, The Impact of the Uruguay Round on Africa, Discussion Paper No. 311, Africa Technical 
Department series, World Bank 1996, available at <http://www.worldbarik.org/afr/findings/english/iind67.htm> 
(noting that 
' 
'For Africa . . . [t]he estimates range from a gain of 1 percent, to several studies that predict losses 
of about 0.5 percent. Why should such losses occur? These models predict that Africa would gain little of the 
growth in world trade, as it is not offering significant tariff reductions itself). 2 
See, e.g., The Doha Round and African Development: Turning Words into Deeds (Economic Commission for 
Africa Position Paper Series, Sept. 2003) at 1 (noting that "Africa has not derived any significant gains from trade, 
reflecting largely the fact that it is not, and has never been, a major player in the global trading system."). 
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144 ASIL Proceedings, 2007 
significant presence in the institutions of the world trade system. Only South Africa and 
Southern Rhodesia (Zimbabwe)?then ruled by white minority governments?were original 
signatories to the GATT on its inception in 1947. At the time, most African countries 
were under colonial rule, and their interests were ostensibly represented by their colonial 
administrators. African countries did not join in any critical numbers until the 1960s, but 
their increased numbers did not translate into increased participation. Like other developing 
countries, the countries of sub-Saharan Africa believed GATT inimical to their interests: 
they rarely participated in the tariff-reduction negotiating rounds, which were the main 
achievements of the early GATT period, nor did they "bind" their tariffs?that is, commit 
to not raising them above agreed-upon levels?or adopt the additional rules or "codes" 
developed in the Tokyo Round negotiations. 
A number of leading trade scholars attribute Africa's lack of success in the global economy 
to its failure to actively engage in the trading system. Economist T. N. Srinivasan maintains: 
[Developing countries, in their relentless but misguided pursuit of the import-substitution 
strategy of development, in effect opted out of the GATT. Instead of demanding and 
receiving crumbs from the rich man's table, such as [the Generalized System of Prefer 
ences] and a permanent status of inferiority under the 
' 
'special and differential'' treatment 
clause, had they participated fully, vigorously, and on equal terms with the developed 
countries in the GATT and had they adopted an outward oriented development strategy, 
then they could have achieved far faster and better growth.3 
But what accounts for Africa's hesitancy in actively engaging with the global economic 
community? What possible explanation(s) can there be for Africa's decision to "opt out" 
of GATT? "Africa does not want to develop," is the rather provocative response of African 
scholar Axelle Kabou.4 This rejection of development, according to Kabou, has its roots in 
sociological and psychological considerations.5 At least one of the "sociological" conditions 
to which Kabou refers, I maintain, is fear. 
The origin of the fear that dominates Africa and hampers its full engagement in the trade 
order has roots dating back to 1884.In November of that year, European, American, and 
Australian leaders met to define Africa's role in the "community of nations," and without 
any representation from Africans themselves, participants in the Berlin West African Confer 
ence set about organizing Africa's destiny. While purporting to address certain humanitarian 
aims?such as eradicating the slave trade and "leading the natives in the path of progress 
and civilization"6?the Conference is remembered primarily for having carved up the conti 
nent into its modern nation-states. But as one observer noted, "while diplomatic in form, 
[the Conference] was economic in fact."7 In short, the Berlin Conference of 1884-1885 was 
not a political conference, as history remembers it, but a trade conference. It culminated in 
3 T. N. Srinivasan, GATT to the Uruguay Round and the Future 25 (1998). 
4 Axelle Kabou, Et si l'Afrique Refusait le Developpement? (And If Africa Refuses Development?) 
17 (1999). 
5 Kabou maintains: 
The sociological and especially psychological conditions for the success of free enterprise are not yet present 
in sub-Saharan Africa. Their emergence depends first on the commencement of an immense debate on the 
connection between development and the mentality of Africans post-independence. 
Supra note 4. Kabou's premise has found favor with other Africanists seeking explanations for Africa's economic 
performance. See e.g., Alternatives Sud, Et Si l'Afrique Refusait le Marche? (And If Africa Refuses the 
Market?) (2003). 
6 The General Act of the Berlin Conference, Article 11. 
7 George Shepperson, 46 The Centennial of the West African Conference of Berlin, 1884-1885, at 
41 (1985). 
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Africa: A New Voices Panel 145 
the adoption of an extensive and elaborate set of trade rules to guide the European Powers 
in their commercial interactions in Africa: Foreigners were to be guaranteed the right of free 
movement throughout the region, and the right to own property and practice their profession 
without discrimination was assured. Imports were to be free of all duties and transit charges, 
and no prohibitive fees were to be maintained. Non-discriminatory treatment of all vessels 
and merchandise was guaranteed. And the granting of a monopoly "or favour of any kind" 
in matters of trade in the region was strictly prohibited.8 Thus, while the outcome of the 
Conference was a haphazardly re-drawn map of Africa, its ultimate aim was "to regulate 
the conditions most favourable to the development of trade and civilization in certain regions 
in Africa."9 Beyond establishing borders, the Conference succeeded in legitimizing Africa's 
de facto position as a source of wealth to be exploited for the benefit of others. It is 
this single act that gave birth to modem Africa's fear and resistance to the globalization 
phenomenon. 
My self-appointed task is to excavate the forgotten history of the Berlin Conference, and 
to re-establish it roots as a trade conference. Why is this important or necessary? For one, 
history is written by the victors, who view and record events exclusively from their perspec 
tive; as the African proverb notes: "until the lions have their historians, tales of the hunt 
shall always glorify the hunter." Thus evaluating historical events from multiple perspectives 
is itself an important contribution. More important than remembering history for its own 
sake, however, is what it can tell us about present circumstances. What elevates the Berlin 
Conference of 1884-1885 from a relic of history to a pathway towards understanding Africa's 
place in the world trade system is that the theoretical underpinnings of the conference to 
this day continue to animate the Western approach to African development. The rhetoric of 
"free trade" and "non-discrimination," and the notion that such principles will ultimately 
lead to "progress and civilization," underpin much of modern trade theory (although thank 
fully it is no longer stated in such paternalistic terms). 
To the extent that we continue to employ the principles and ideals of the Berlin Confer 
ence?and, indeed, some of its very terms?it is perhaps not surprising that fear, the dominant 
emotion for Africa at that time, is also called forth whether consciously or not. Exploring 
the parameters of that fear?its shape, texture, depth, and breadth?can go a long way toward 
helping us construct laws and institutions to address and alleviate that emotion. 
The Law and Emotion scholars have shown us how in municipal law both the legislative 
process and judicial institutions serve to regulate and channel the range of human emotions? 
from love to hate, and even fear.10 In the international arena, institutions like the World 
Trade Organization serve a similar function. Take, for example, the process of trade liberaliza 
tion. While economists tell us that minimizing tariff and non-tariff barriers help an economy 
to grow, most elected officials recognize this prescription to be a "hard sell": Domestic 
constituents simply are unwilling to laud the virtues of trade liberalization while they are 
standing on the unemployment line. Their anger might well be directed at the elected domestic 
8 See The General Act of the Berlin Conference, preamble, Articles I, III, IV, and V. 9 The General Act of the Berlin Conference, Preamble. 
10 See Martha Minow, Institutions and Emotions: Redressing Mass Violence, in The Passions of Law 271 
(Susan Bendes ed., 1999) (noting that institutions often "serve[] to channel emotional energy that would otherwise 
take a destructive form."); see also Rachel F. Moran, Law and Emotion: Love and Hate, 11 J. Contemp. Legal 
Issues 747 (2000) (exploring the use of hate crimes criminal laws and torts for seduction and alienation of affection); 
Deborah A. Dorfman, Through a Therapeutic Jurisprudence Filter: Fear and Pretextuality in Mental Disability 
Law, 10 N.Y.LJ. Hum. Rts. 805, 808 (1992) (noting that "[m]uch of the anxiety we feel towards those with 
mental disabilities stems from our belief that they are dangerous. . . . Our fears are manifested through political 
pressure on legislators, particularly at the state and local levels, narrowing the legal rights of the mentally ill.") 
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146 ASIL Proceedings, 2007 
officials who champion such a strategy; presumably those officials would find themselves 
voted out of office (and perhaps even on the unemployment line). But the WTO serves as 
a ready target for channeling that anger?diverting it away from domestic officials subject 
to the vagaries of the electorate to 
4 
'that organization in Geneva." This is a perfectly legitimate 
and necessary role for the WTO to play; it stands in as the "bad guy" and allows public 
officials to adopt trade liberalizing measures that in the end will provide a societal benefit, 
but not without some perturbations. 
Africa is desperately in need of the WTO's channeling function. In the face of frequent 
policy reversals and few economic successes, many of the continent's "agencies of re 
straint' '?its central banks and finance ministries, for example?lack credibility. This suggests 
a role for the WTO as a guarantor of stable and rational trade policy regimes. But, given 
the legacy of fear that Africa inherited from the Berlin Conference, the WTO cannot hope 
to play such a role unless and until that fear is acknowledged and eradicated. 
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	Article Contents
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	Issue Table of Contents
	Proceedingsof the Annual Meeting (American Society of International Law), Vol. 101 (MARCH 28-31, 2007), pp. i-x, 1-526
	Front Matter
	FOREWORD [pp. x-x]
	AN INTRODUCTION: THE FUTURE OF INTERNATIONAL LAW [pp. 1-2]
	NINTH ANNUAL GROTIUS LECTURE
	Multinational Corporations: Balancing Rights and Responsibilities [pp. 3-60]
	FEELING THE HEAT? CLIMATE CHANGE LITIGATION IN THE 21ST CENTURY
	The Intersection of Scale, Science, and Law in Massachusetts v. EPA [pp. 61-65]
	International Litigation Over Global Climate Change: A Skeptic's View [pp. 65-67]
	THE CANADA-U.S. BORDER: FREE TRADE IN A TIME OF ENHANCED SECURITY
	[Introduction] [pp. 69-73]
	Free Trade in a Time of Enhanced Security [pp. 73-78]
	SOCIAL JUSTICE ADVOCACY IN THE UNITED STATES: WHAT ROLE FOR INTERNATIONAL LAW?
	Introduction [pp. 79-81]
	Bringing Human Rights Home? The Promises and Pitfalls of Rights Strategies in American Social Justice Advocacy [pp. 82-84]
	Remarks on Social Justice Advocacy in the United States [pp. 84-85]
	The Human Right to a Healthy and Safe Environment: The Right of Displaced Hurricane Katrina Survivors to Return Home With Dignity and Justice [pp. 85-88]
	ROUNDTABLE ON CITIZENSHIP
	An Emerging International Law of Citizenship? [pp. 89-94]
	The Private Side of Citizenship [pp. 94-97]
	The Resilience of Nationality [pp. 97-99]
	Rethinking Nationality in International Law [pp. 99-102]
	THE FUTURE OF FOOD
	The Future of Food: Elements of Integrated Food Security Strategy for South Africa and Food Security Status in Africa [pp. 103-108]
	The Future of Food Subsidies [pp. 109-112]
	TSUNAMIS, HURRICANES, EARTHQUAKES, AND ASTEROIDS: ARE WE READY FOR THE NEXT 100 YEARS?
	[Introduction] [pp. 113-114]
	International Disaster Relief: A Growing Regulatory Dilemma [pp. 114-118]
	QUEERING INTERNATIONAL LAW
	Introduction [pp. 119-119]
	"Taking a Break" from "Normal": Thinking Queer in the Context of International Law [pp. 119-122]
	Queering International Legal Authority [pp. 122-125]
	On a Certain Queer Discomfort with Orientalism [pp. 125-129]
	Queer Theory and International Human Rights Law: Does Each Person Have a Sexual Orientation? [pp. 129-132]
	AFRICA: A NEW VOICES PANEL
	[Introduction] [pp. 133-135]
	The Convergence of Local and International Law: Family Law in the Protocol on the Rights of Women in Africa [pp. 135-138]
	Participatory Constitution-Making in Post-Conflict States [pp. 138-141]
	The Chad Cameroon Pipeline Project (CCPP) and the Dilemmas of the Government of Chad [pp. 141-143]
	On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884-1885 [pp. 143-146]
	PAVING THE WAY? AFRICA AND THE FUTURE OF INTERNATIONAL CRIMINAL LAW
	Introduction [pp. 147-148]
	Africa, International Criminal Courts, and Peace Building: Reflections on the Experience of Ad-hoc and Mixed Tribunals [pp. 148-151]
	Illegal Peace? Power Sharing with Warlords in Africa [pp. 152-156]
	INSTITUTIONS AND THE RULE OF LAW: A NEW VOICES PANEL
	Toward an Identity Theory of International Organizations [pp. 157-160]
	The Future of UN Peacekeeping and the Rule of Law [pp. 160-163]
	The Oil-for-Food Program and the Need for Oversight Entities to Monitor UN Sanctions Regimes [pp. 163-166]
	Domestic Courts and Global Governance [pp. 166-169]
	COLLAPSE: CAN INTERNATIONAL LAW PROTECT THE EARTH'S NATURAL RESOURCES?
	Carlin and Collapse [pp. 171-172]
	Environmental Challenges [pp. 172-175]
	Judging Treaties [pp. 175-181]
	THE GLOBALIZATION OF THE AMERICAN LAW SCHOOL [pp. 183-199]
	THE FUTURE OF INTERNET GOVERNANCE [pp. 201-213]
	BREAKING DEVELOPMENTS IN INTERNATIONAL LAW: A CONVERSATION ON THE ICJ'S OPINION IN BOSNIA AND HERZEGOVINA V. SERBIA AND MONTENEGRO [pp. 215-228]
	THE FUTURE OF INTERNATIONAL LAW
	Members' Reception and Plenary Panel, Georgetown University Law Center [pp. 229-242]
	WHAT FUTURE FOR THE DOHA DEVELOPMENT AGENDA AND THE MULTILATERAL NEGOTIATING REGIME?
	Introduction [pp. 243-244]
	What Legal Framework for Developing Country Coalitions in the WTO? [pp. 244-248]
	IMPLEMENTATION OF INTERNATIONAL HEALTH LAW: A CHALLENGE FOR THE FUTURE
	A Proposal for a Framework Convention on Global Health [pp. 249-256]
	The World Health Organization's International Health Regulations (2005) [pp. 256-260]
	CUSTOMARY INTERNATIONAL LAW AS FEDERAL LAW AFTER SOSA V. ALVAREZ-MACHAIN
	Introduction: The Path to Sosa [pp. 261-264]
	CUSTOMARY INTERNATIONAL LAW AS FEDERAL LAW AFTER SOSA V. ALVAREZ-MACHAIN
	Accommodating Concerns for International Law and Proper Governance [pp. 264-267]
	A No Decision: Sosa v. Alvarez-Machain and the Debate over the Domestic Status of Customary International Law [pp. 267-269]
	Sosa, the Federal Common Law and Customary International Law: Reaffirming the Federal Courts' Powers [pp. 269-272]
	The Traffic Light Theory of Sosa v. Alvarez-Machain [pp. 272-275]
	SLAVE TRAFFICKING 200 YEARS AFTER ABOLITION
	Slave Trafficking as a Crime Against Humanity [pp. 277-279]
	Legal Foundations for Prohibiting the Profits and Products of Contemporary Slavery [pp. 279-285]
	Reparations and the Slave Trade [pp. 285-287]
	JUSTICE SHOULD BE DONE, BUT WHERE? THE RELATIONSHIP BETWEEN NATIONAL AND INTERNATIONAL COURTS [pp. 289-300]
	TOWARD INTERNATIONAL ORDER IN MIGRATION AND TRADE?
	Introduction [pp. 301-302]
	Managing Migration: Whither the Missing Regime? How Relevant is Trade Law to Such a Regime? [pp. 303-306]
	An Overview of International Cooperation Over Migration [pp. 306-311]
	How International Law Could Increase Wealth and Reduce Global Inequality by Liberalizing Migration [pp. 311-313]
	Moral Aspects of International Labor Migration Regimes [pp. 313-318]
	INDIGENOUS RIGHTS, TRADITIONAL KNOWLEDGE, AND ACCESS TO GENETIC RESOURCES—NEW PARTICIPANTS IN FUTURE INTERNATIONAL LAW MAKING
	Indigenous Peoples and the Role of the Nation-State [pp. 319-323]
	ETHICS, LEGITIMACY, AND LAWYERING: HOW DO INTERNATIONAL LAWYERS SPEAK TRUTH TO POWER? [pp. 325-337]
	THE SUPREME COURT AND THE WAR ON TERRORISM
	Hamdan and the Military Commissions Act of 2006: An Overview [pp. 339-341]
	What Does Hamdan Mean for Human Rights? [pp. 341-345]
	Was Hamdan v. Rumsfeld an Exercise in Judicial Futility? [pp. 345-347]
	DIVERGENCE AND HARMONIZATION IN PRIVATE INTERNATIONAL LAW
	[Introduction] [pp. 349-350]
	Some Observations from the Hague Conference on Private International Law [pp. 350-353]
	The Hague Convention on Child Support and Other Forms of Family Maintenance: Divergent Private International Law Rules and the Limits of Harmonization [pp. 353-356]
	Commercial and Insolvency Law [pp. 357-360]
	Common Themes [pp. 360-363]
	THE FUTURE OF TRANSNATIONAL LITIGATION IN U.S. COURTS: DISTINCT FIELD OR FOOTNOTE?
	Is International Litigation a Field? Two Views of the Border [pp. 365-377]
	DEMOCRACY, GENDER, AND GOVERNANCE [pp. 379-387]
	THE FUTURE OF INTERNATIONAL LABOR LAW
	[Introduction] [pp. 389-391]
	The Future of the International Labour Organization [pp. 391-394]
	The Future of ILO Law, and the ILO [pp. 394-396]
	The OECD: An Unusual Actor for International Labor Law (and an Introductory Aside on the Lack of U.S. Interest in International Labor Law) [pp. 396-398]
	Three Challenges Facing International Labor Law [pp. 398-402]
	PLENARY CORPORATE COUNSEL FORUM: THE IMPACT OF INTERNATIONAL LAW ON MULTINATIONAL CORPORATIONS [pp. 403-406]
	THE UN SALES OF GOODS CONVENTION: PERSPECTIVES ON THE CURRENT STATE-OF-PLAY
	Fundamental Breach of Contract Under the CISG: A Controversial Rule [pp. 407-413]
	Does the CISG Fill a Much-Needed Gap? [pp. 414-416]
	Buyer's Remedies in the Case of Non-conforming Goods: Some Problems in a Core Area of the CISG [pp. 416-422]
	STRENGTHENING HUMAN RIGHTS MECHANISMS AROUND THE WORLD
	Remarks on the Human Rights Council [pp. 423-424]
	The Case of the European Court of Human Rights [pp. 424-427]
	The Reform of the African System of Human Rights Protection [pp. 427-431]HOW CAN THE NUCLEAR NONPROLIFERATION REGIME BE REPAIRED? WHAT IF IT CAN'T?
	Enforcement and the Future of the Nuclear Nonproliferation Regime [pp. 433-438]
	The Nuclear Nonproliferation Regime and Nuclear Realities: Repair or Reassessment? [pp. 438-442]
	Replacing a Failed Nuclear Strategy [pp. 442-446]
	COUNTER-INSURGENCY AND THE WAR ON TERROR: A DEADLY CONVERGENCE?
	Transnational Movements [pp. 447-449]
	INVESTMENT LAW, DISPUTE RESOLUTION, AND THE DEVELOPMENT PROMISE: BACK TO THE FUTURE
	The African Development Bank's Contribution to the Harmonization of Investment Laws in Africa and Prospects for Future Harmonization of Such Laws [pp. 451-454]
	Developments in Investor-State Arbitration—Reflections from the Classroom [pp. 454-458]
	An Empirical Analysis of Investment Treaty Awards [pp. 459-462]
	The Evolving International Standard and Sovereignty [pp. 462-465]
	International Investment and Administrative Law in Latin America [pp. 465-468]
	ROUNDTABLE—A MULTIPLICITY OF ACTORS AND TRANSNATIONAL GOVERNANCE
	Non-State Actors and the International Institutional Order: Central Bank Capture and the Globalization of Monetary Amnesia [pp. 469-473]
	The Place of the Private Transnational Actor in International Law: Human Rights Norms, Development Aims, and Understanding Corporate Self-Regulation as Soft Law [pp. 473-476]
	Remittance Liquidity and Citizen "Arbitrage" [pp. 476-479]
	101ST ANNUAL MEETING PROGRAM [pp. 481-497]
	ASIL ANNUAL GENERAL MEETING [pp. 501-507]
	Back Matter