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Published online by Cambridge University Press: 18 February 2021
How was ‘international trade’ between former European empires and their former colonies in Africa governed after decolonisation? In the 1960s, the vast majority of African countries became independent, and so a new arrangement was necessary to govern their economic relations with Europe. The Yaoundé Conventions were then concluded between the European Community (EC) and the bloc of postcolonial African countries. Specialised literature provides comprehensive accounts of the Yaoundé Conventions. However, little is known about the role of law and lawyers in their making and governance. Part of this story concerns political and intellectual struggles in the legal profession about which projects, ideas, and norms would be applicable. Another part concerns the work of lawyers to organise those policies, theories and visions into an emerging conception and to employ it to influence the production and management of the Yaoundé Conventions. This article combines historical and socio-legal approaches to show that a distinct legal conception of regional trade agreements—called here the ‘development framework’—was pivotal to the design and application of the Yaoundé Conventions. This conception was primarily advanced and persuasively used by European and African lawyers. This contrasts with the conventional view that trade agreements are variations on a single legal concept. It is concluded that EC–Africa regionalism was a singular experiment, due significantly to the unique features of this legal conception.
For conversations, comments, and critiques on earlier drafts, I am grateful to Andrew Lang, Filippo Fontanelli and Jan Kleinheisterkamp, as well as to the ICLQ reviewers and editors. Errors are mine alone.
1 The term ‘EEC’ (European Economic Community) is only used when emphasising the historical dimension (pre-Maastricht era) or the legal basis.
2 Anonymous, ‘La convention de Yaoundé exprime un juste équilibre entre les objectifs européens et africains, déclare M. Hallstein’ Le Monde (22 July 1963), <www.lemonde.fr/archives/article/1963/07/22/la-convention-de-yaounde-exprime-un-juste-equilibre-entre-les-objectifs-europeens-et-africains-declare-m-hallstein_2207846_1819218.html>.
3 Convention of Association between European Economic Community and the African and Malagasy States associated with that Community (signed 20 July 1963, entered into force 1 June 1964) OJ 1964 P 93/1430 (Yaoundé I); Convention of Association between European Economic Community and the African and Malagasy States associated with that Community (signed 29 July 1969, entered into force 1 January 1971) OJ 1970 L 282/2 (Yaoundé II).
4 CA Cosgrove, ‘Has the Lomé Convention Failed ACP Trade?’ (1994) 48 JIA 223–49; Sissoko, M et al. , ‘Impacts of the Yaoundé and Lomé Conventions on EC-ACP Trade’ (1998) 1 AEBR 6–24Google Scholar; A Milward, Politics and Economics in the History of the European Union (Routledge 2005); Ethier, W, ‘The New Regionalism’ (1998) 108 EJ 1149–61Google Scholar.
5 Montana, I, ‘The Lomé Convention from Inception to the Dynamics of the Post-Cold War, 1957–1990s’ (2003) 2 AAS 63–97CrossRefGoogle Scholar; M Lister, The European Union and the South: Relations with Developing Countries (Routledge 1997); J Ravenhill, Collective Clientelism: The Lomé Conventions and North–South Relations (Columbia University Press 1985); W Zartman, The Politics of Trade Negotiations between Africa and the European Economic Community: The Weak Confront the Strong (Princeton University Press 1971); Zack-Williams, A, ‘Neo-imperialism and African Development’ (2013) 40 RAPE 179–84Google Scholar.
6 M Lister, The European Economic Community and the Developing World: The Role of the Lomé Convention (Avebury 1988); L Bartels, ‘The Trade and Development Policy of the European Union’ (2007) 18 EJIL 715–756; M Holland, The European Union and the Third World (Palgrave 2002); Doidge, M and Holland, M, ‘A Chronology of European Union Development Policy: Theory and Change’ (2014) 17 KRIS 59–80Google Scholar.
7 D Carreau et al., Droit International Économique (Librairie Générale De Droit Et De Jurisprudence 1980); D Nguyen Quoc et al., Direito Internacional Público (Fundação Calouste Gulbenkian 1999); M Matsushita et al., The World Trade Organization: Law, Practice, and Policy (Oxford University Press 2015); J Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge University Press 2011).
8 S Baier et al., ‘Economic Integration Agreements and the Margins of International Trade’ (2014) 93 JIE 339–350; Kohl, T, ‘Do We Really Know That Trade Agreements Increase Trade?’ (2014) 150 RWE 443–469Google Scholar.
9 F Söderbaum, The Political Economy of Regionalism: The Case of Southern Africa (Palgrave Macmillan 2004).
10 A Lang and J Scott, ‘The Hidden World of WTO Governance’ (2009) 20 EJIL 575–614; DW Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press 2016).
11 Montana (n 5) 71–2.
12 ibid.
13 See below (n 60) and accompanying text.
14 A Yusuf, Legal Aspects of Trade-Preferences for Developing States: A Study in the Influence of Development Needs on the Evolution of International Law (Martinus Nijhoff 1982) 7; M Trebilcock et al., The Regulation of International Trade (Routledge 2012) 56, 80.
15 Milward (n 4) 80–4; Montana (n 5) 71–2.
16 C Twitchett, Europe and Africa: From Association to Partnership (Saxon House 1978) 10; F Lynch, France and the International Economy: From Vichy to the Treaty of Rome (Routledge 1997) 166.
17 W Barnes, Europe and the Developing World: Association under Part IV of the Treaty of Rome (Chatham House 1967) 25.
18 Twitchett (n 16) 10.
19 ibid.
20 Ravenhill (n 5) 47–53; Milward (n 4) 82–3; M Broberg, ‘From Colonial Power to Human Rights Promoter: On the Legal Regulation of the European Union's Relations with the Developing Countries’ (2013) 26 CRIA 676.
21 The term ‘Association’ was used by French politicians to describe their African programme as a dynamic interchange between the developed-metropole and underdeveloped-colonies (Milward (n 4) 82–3).
22 Annex IV to the Treaty of Rome provided the list of OCTs.
23 Lister (n 6) 20; Montana (n 5) 73.
24 Montana (n 5) 71–2; A Flint, ‘The End of a ‘Special Relationship’? The New EU–ACP Economic Partnership Agreements’ (2009) 36 RAPE 80–1.
25 Lister (n 5) 61–2; Montana (n 5) 74–5; Milward (n 4) 80–4.
26 Among them, the African and Malagasy Union (UAM) of 1961 was the most important, since it later became the AAMS (J Moss, ‘The Yaoundé Convention, 1964–1975’ (PhD thesis, New School for Social Research, 1978) 41; M Ajomo, ‘Regional Economic Organisations the African Experience’ (1976) 25 ICLQ 85).
27 AAMS countries were Burundi (formerly part of Rwanda-Burundi), Cameroon, Central African Republic, Chad, Democratic Republic of Congo, Congo (Brazzaville), Dahomey (now Benin), Gabon, Ivory Coast, Madagascar, Mali (formerly part of French Sudan), Mauritania (formerly part of French Sudan), Niger, Rwanda, Senegal, Somalia, Togo, Upper Volta (now Burkina Faso).
28 W Zartman, ‘The EEC's New Deal with Africa: What the Africans Wanted, What the Europeans Offered, the Meaning of the New Yaoundé Convention’ (1970) 15 AR 28–31.
29 Montana (n 5) 75–76; Broberg (n 20) 677; A Hewitt, ‘Development Assistance Policy and the ACP’ in J Lodge (ed), The European Community and the Challenge of the Future (Pinter 1993) 305; R Gibb, ‘Post-Lomé: The European Union and the South’ (2000) 21 TWQ 462.
30 Montana (n 5) 76–77; Bartels (n 6) 722–3.
31 M Farrell, ‘A Triumph of Realism over Idealism? Cooperation Between the European Union and Africa’ (2005) 27 JEI 267.
32 Yaoundé I arts 2(1) and 5(1).
33 For instance, Mauritius was admitted as an associate member. Also, Yaoundé II arts 3(1) and 7(1) provided that African associates had to remove all duties and quantitative restrictions on EC imports, while Protocol No 4 authorised the African associates to participate in GSP schemes.
34 Twitchett (n 16) 38, 145; Montana (n 5) 76–7.
35 Brown, W, ‘Restructuring North-South Relations: ACP-EU Development Co-operation in a Liberal International Order’ (2000) 27 RAPE 368–372Google Scholar.
36 Holland (n 6) 29.
37 The impression was that AAMS countries were just suppliers of residual markets that EC producers could not fill and so Yaoundé II provided them with a slight advantage over other developing countries (Ravenhill (n 5) 56). Until 1958, the OCTs provided 14.20 per cent of the share of developing world's exports to the EC. Under the Association (1958–63), the OCTs exports fell to 12.00 per cent. By the end of the Yaoundé regime (1964–1975), AAMS exports dropped to 5.80 per cent. From a world trade perspective, the AAMS's exports to the EC declined from 4.40 per cent (1970) to 3.63 per cent (1975). Similarly, the AAMS's imports from the EC dropped from 11.6 per cent (1958) to 9.9 per cent (1973) and then to 8.4 per cent (1974) (Sissoko et al. (n 4) 12–14; Ravenhill (n 5) 61).
38 Holland (n 6) 31–3; Montana (n 5) 81–5; Flint (n 24) 80–1.
39 Montana (n 5) 81–5; Bartels (n 6) 731–2; J Steffek, Embedded Liberalism and Its Critics: Justifying Global Governance in the American Century (Palgrave 2006) 85–9.
40 UN, Charter of Economic Rights and Duties of States (adopted 6 December 1973) UNGA Res 3281 (XXVIII).
41 UN, Declaration on the Establishment of a New International Economic Order (adopted 1 May 1974) UNGA Res 3201 (S-VI); UN, Programme of Action on the Establishment of a New International Economic Order (adopted 1 May 1974) UNGA Res 3202 (S-VI).
42 ACP-EEC Convention of Lomé (signed 28 February 1975, entered into force 1 April 1976) OJ 1975 L 104/35.
43 C Gammage, North-South Regional Trade Agreements as Legal Regimes: A Critical Assessment of the EU-SADC Economic Partnership Agreement (EEP 2017) 137.
44 Brown (n 35) 371–3.
45 See above (nn 8–10) and accompanying text.
46 My approach to this article draws broadly from the work of Kennedy (n 10), Lang and Scott (n 10), Koskenniemi (The Politics of International Law (Hart 2011)).
47 Kennedy (n 10) 10810.
48 Söderbaum (n 9) 4–8.
49 See below sections III.A–C.
50 Brown (n 35) 367–8; Farrell (n 31) 263–5.
51 Kennedy (n 10) 108–10.
52 ibid.
53 Law is understood as a form of global knowledge practice, which is ‘how’ experts engage in global governance by deploying their specialist ideas and techniques to ‘create’ legitimate and authoritative modes of thinking and reasoning, ‘constitute’ spaces for public debates and decision-making, and ‘justify’ or ‘contest’ the outcomes (Kennedy (n 10) 4–5). Lawyers, for instance, do not merely interpret and apply RTAs, they ‘make’ them by articulating what RTAs are, how they function, and how they are created in, and governed by, international law, and by whom.
54 See below sections III.B–C.
55 Y Dezalay and B Garth, Dealing in Virtue (Chicago University Press 1996) 70–71; R Sakr, ‘Law and Lawyers in the Making of Regional Trade Regimes: The Rise and Fall of Legal Doctrines on the International Trade Law and Governance of South-North Regionalism’ (PhD thesis, the London School of Economics and Political Science, 2018) 249–51.
56 A Riles, ‘Models and Documents: Artifacts of International Legal Knowledge’ (1999) 48 ICLQ 805–11.
57 W Sandholtz and A Stone Sweet, ‘Law, Politics, and International Governance’ in C Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004) 245–7; R Baxter, ‘International Law in “Her Infinite Variety”’ (1980) 29 ICQL 566.
58 See above (nn 4–9); and Brown (n 35).
59 Inspired by D Trubek and A Santos, ‘Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice’ in D Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge University Press 2006).
60 Trebilcock et al. (n 14) 24–25; JH Jackson, ‘The Evolution of the World Trading System – The Legal and Institutional Context’ in D Bethlehem et al. (eds), The Oxford Handbook of International Trade Law (Oxford University Press 2009) 31–4.
61 Havana Charter for an International Trade Organization (adopted 24 March 1948) UN Doc E/CONF.2/78.
62 The ideational programme embedded into the British–American proposals and also the GATT has received a wide variety of labels since 1947: ‘liberalism’, ‘neo-liberalism’, and ‘liberal-welfarism’. I adopted Emmanuelle Jouannet's liberal-welfarism due to its explanatory power and despite its potential anachronic effect (The Liberal-welfarist Law of Nations: A History of International Law (Cambridge University Press 2012) 249–53).
63 E Ustor, ‘Decision-making in the Council for Mutual Economic Assistance’ (1971) 134 RdC 163–295; G Schiavone, The Institutions of Comecon (Macmillan 1981).
64 El-Naggar, S, ‘The United Nations Conference on Trade and Development: Background, Aims and Policies’ (1969) 128 RdC 241–345Google Scholar; J Toye, UNCTAD at 50: A Short History (UN 2014).
65 For instance, the French Union, the British Commonwealth, the EC–OCTs Association and the Yaoundé Conventions.
66 P Hansen and S Jonsson, Eurafrica: The Untold History of European Integration and Colonialism (Bloomsbury 2014) 15.
67 C Lafer, A OMC e a regulação do comércio internacional: uma visão brasileira (Forense 1998) 20–2.
68 Ruggie, JG, ‘International Regimes, Transactions, and Change: Embedded Liberalism and the Post-war Economic Order’ (1982) 36 IO 379Google Scholar; Lang, A, ‘Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International Trade Regime’ (2006) 9 JIEL 81CrossRefGoogle Scholar; Jouannet (n 62); Steffek (n 39) 85–89.
69 Yusuf (n 14) 3–10, 47–50; Trebilcock et al. (n 14) 24–5, 83–6.
70 J Cypher and J Dietz, The Process of Economic Development (Routledge 2009); G Rist, The History of Development from Western Origins to Global Faith (Zed 2008); Hodge, JM, ‘Writing the History of Development (Part 1: The First Wave)’ (2015) 6 Humanity: IJHRHD 429–63CrossRefGoogle Scholar. For alternative views, see M Cowen and RW Shenton, Doctrines of Development (Routledge 1996).
71 Rist (n 70) 73; Hodge (n 70) 446–9.
72 N Gilman, Mandarins of the Future: Modernization Theory in Cold War America (Johns Hopkins University Press 2007) 4, 16–17; Doidge and Holland (n 6) 60–5; Hodge (n 70) 433–4; Brown (n 35) 369–71.
73 G Feuer, ‘Le Droit International Du Développement: Une Création De La Pensée Francophone’ in C Choquet et al. (eds), Etat des savoirs sur le développement: trois décennies de sciences sociales en langue française (Karthala 1993) 88; Broberg (n 20) 676.
74 El-Naggar (n 64); Cypher and Dietz (n 70); M Bedjaoui, Towards a New International Economic Order (Holmes & Meier 1979); TO Elias, New Horizons in International Law (Martinus Nijhoff 1992); M Bennouna, Droit International du Développement: Tiers Monde et Interpellation du Droit International (Berger-Levrault, 1983); G Abi-Saab, ‘Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order’. UNGA, Report of the Secretary-Geneva Doc A/39/504/Add.1 (23 October 1984).
75 Yusuf (n 14) 18–21; El-Naggar (n 64) 286–8.
76 Cypher and Dietz (n 70) Ch 6; Doidge and Holland (n 6) 60–5.
77 Cypher and Dietz (n 70) 168–9.
78 ibid 169–80.
79 The NIEO Declaration offered a wide recipe of structuralist-inspired policies and instruments for developing countries to deal with international trade, which included international mechanisms for promoting (i) better and more stable commodity prices, (ii) non-reciprocal and preferential access to developed markets, and (iii) greater economic and technical assistance with no conditionality (Doidge and Holland (n 6) 60–5).
80 Hansen and Jonsson (n 66) 15–16, 244.
81 L Eslava, ‘The Developmental State: Independence, Dependency and the History of the South’ in J Bernstorff and P Dann (eds), The Battle for International Law: South-North Perspectives on the Decolonization Era (2019) 79–82.
82 Montana (n 5) 74; Milward (n 4) 83.
83 Hansen and Jonsson (n 66) 5–9; CO Kwarteng, Africa and the European Challenge: Survival in a Changing World (Avebury 1997) 50–1; Martin, G, ‘Africa and the Ideology of Eurafrica: Neo-Colonialism or Pan-Africanism?’ (1982) 20 JMAS 221–2Google Scholar.
84 F Cooper, ‘Writing the History of Development’ (2010) 8 JMEH 9–14; Hansen and Jonsson, Eurafrica (n 66) 239, 244, 253–5
85 Kwarteng (n 83) 50–1, 117; Hansen and Jonsson (n 66) 15–16, 184, 246–51; Cooper (n 84) 17–18; Eslava (n 81) 79–82.
86 CA Cosgrove, ‘The Common Market and Its Colonial Heritage’ (1969) 4 JCH 78.
87 Carreau et al. (n 7) 15–21, 36–37; Nguyen Quoc et al. (n 7) 946–7; Elias (n 74) 25–8, 39–40.
88 GATT Arts I:1-2, and XXIV.
89 See below (nn 146–165) and accompanying text.
90 Yusuf (n 14) 21–3, 83–90; El–Naggar (n 64) 275–6.
91 UNCTAD, Resolution 21(II). Preferential or free entry of exports of manufactures and semi-manufactures of developing countries to the developed countries (UNCTAD, 1968-I, Vol. I, United Nations, 1968).
92 See below (nn 166–172) and accompanying text.
93 Doidge and Holland (n 6) 60–5.
94 Rist (n 70) 79.
95 Hodge, JM, ‘Writing the History of Development (Pt 2: Longer, Deeper, Wider)’ (2016) 7 Humanity: IJHRHD 130–2CrossRefGoogle Scholar.
96 There were other competing projects for governing South-North regionalism. For instance, the EC–North Mediterranean project for regional economic integration (eg EEC–Turkey RTA of 1963) and the EC–South Mediterranean project for regional trade cooperation (eg EEC–Morocco RTA of 1969).
97 Ravenhill (n 5) 47–54.
98 EEC, ‘Association des Etats d'Outre-Mer à la Communauté. Considérations sur le futur régime d'association’, CCOM Document (61) 110 (12 July 1961) 3.
99 J Ferrandi, ‘EEC Action in the Associated Countries’ (Address delivered to the African and Malagasy Economic Conference, Marseilles, 1962) 26–7; Sissoko et al. (n 4) 10.
100 Doidge and Holland (n 6) 62–3.
101 The EC's Memorandum on a Community Policy for Development Cooperation of 1971 expressed the emerging project for regional economic development. It explicitly used liberal-welfarist and developmentalist policy vocabularies (Doidge and Holland (n 6) 64). For instance, it stated that economic development was dependent on ‘economic take-off’, a direct reference to Rostow's modernisation theory. By contrast, it committed the EC to make ‘its own contribution to the establishment of a more just international order’, reproducing the NIEO's central claim (EEC, ‘Commission Memorandum on a Community Policy for Development Cooperation’ SEC (71) 2700 final (27 July 1971) EC Bulletin 5/71, 8, 18).
102 Riles (n 56) 806–8.
103 Carreau et al. (n 7) 79–81, 256–261; T Flory, Le G.A.T.T.: droit international et commerce mondial (LGDJ 1968) 13–20.
104 F Luchaire, ‘Les associations à la Communauté économique européenne’ (1975) 144 RdC 241–308; JC Gautron, ‘The French Contribution to the International Law of Development: A Study of Sources’ in F Snyder and P Slinn (eds), International Law of Development: Comparative Perspectives (Professional Books 1987); D Vignes, ‘Communautés Européennes et Pays en Développement’ (1988) 210 RdC 225–400.
105 Feuer (n 73) 88.
106 Elias (n 74); TO Elias, Africa and the Development of International Law (MNijhoff 1974). See also I Gruhn, ‘The Lomé Convention: Inching towards Interdependence’ (1976) 30 IO 241–262.
107 El-Naggar (n 64); Abi-Saab (n 74); Bedjaoui (n 74); and Bennouna (n 74).
108 Gathii, J, ‘A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias’ (2008) 21 LJIL 339CrossRefGoogle Scholar.
109 Ravenhill (n 5) 47–54; Bartels (n 6) 717–22.
110 Under Part IV, EC members committed to extending the benefits of the internal process of trade liberalisation within the EC to the OCTs, which included a gradual reduction, and eventual elimination, of customs duties and quantitative restrictions, except for sensitive products. On the other side, OCTs agreed to reduce duties and open up quotas for EC products, following a transitional schedule; nevertheless, OCTs were still allowed to impose both quantitative restrictions on non-quota imports and customs duties to foster industrialisation and produce revenue for their budget (Treaty of Rome arts 13, 14, 32, 33, and 133; IC arts 9 and 14).
111 Ravenhill (n 5) 52–3.
112 Yaoundé I Preamble (compare with arts 3(k) and 131 of the Treaty of Rome).
113 Bartels (n 6) 723–4.
114 As Part IV and the ICs, Yaoundé I was constructed not as a single FTA but rather as a bundle of interconnected FTAs (arts 8 and 9).
115 Milward (n 4) 80–6; Lister (n 5) 61–2.
116 ibid.
117 ibid.
118 Yaoundé I was comprised of four core and one miscellaneous titles: I – Trade (arts 1–14); II – Financial and Technical Cooperation (arts 15–28); III – Right of Establishment, Services, Payments and Capital (arts 29–38); IV – Institutions of the Association (arts 39–53); and V – General and Final Provisions (arts 54–64).
119 Norms can be formally designed as rules or standards. While rules are deemed to be rigid and objective, and aim to increase certainty, standards are regarded as flexible and subjective, and aspire to realise substantive objectives. Rules tend to be associated with legal norms directing free trade, whereas standards are often used as legal norms for welfarist policies. Rules are generally criticised for supporting a mechanical decision-making process that leads to over- or under-inclusiveness, whereas standards are attacked for defending biased decision-making that is subject to arbitrariness (D Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89 HLR 1687–1688, 1695–1696).
120 Holland (n 6) 29.
121 Bartels (n 6) 724–5.
122 Pursuant to arts 2 and 11, all products from AAMS countries received preferential treatment, except for those covered by the newly established EC's CAP. There were also preferential measures providing progressive liberalisation of products originating in EC countries (art 2).
123 Art 6 provided the right to impose either quantitative restrictions on non-quota imports or customs duties to protect infant industry.
124 Gammage (n 43) 140.
125 For instance, access to financial resources of the EDF and the European Investment Bank (EIB) was conditioned on the EC's sole discretion (arts 21–23). The implications were two-fold. Only one-third of the EDF's fund was successfully claimed by the AAMS and disbursed by the EC. The bulk of the EDF's resources was invested into infrastructure projects, excluding or undersupplying all other areas, notably the industrial sector (Holland (n 6) 29). Interestingly, the EDF seemed to be as much the EC's aid to itself as it was to AAMS, since a substantial proportion of the resources was actually spent to acquire EC products and services (Zartman (n 28) 28).
126 Arts 39–53.
127 W Feld, ‘The Association Agreements of the European Communities: A Comparative Analysis’ (1965) 19 IO 243.
128 Schachter, O, ‘The Invisible College of International Lawyers’ (1977) 72 NWULR 223–6Google Scholar; D Kennedy, ‘Three Globalizations of Law and Legal Thought 1850–2000’ in A Santos and D Trubek (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge University Press 2006) 22–3.
129 Carreau et al. (n 7) 14, 27–9, 35–40; Nguyen Quoc et al. (n 7) 895–900, 946–7.
130 Kennedy (n 128) 37–59; Kennedy (n 10) 102–6.
131 Van Hoecke, M and Warrington, M, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 ICLQ 515–16CrossRefGoogle Scholar.
132 By the end of the 1940s, the once prominent projects of Hans Kelsen's legal formalism, Hersch Lauterpacht's natural law, Georges Scelle's sociologism and Carl Schmitt's scepticism were either marginalised or under review within the international legal field (M Koskenniemi, ‘Chapter 2 – International Law in the World of Ideas’ in J Crawford and M Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press 2012) 54–6; E Jouannet, ‘A Century of French International Law Scholarship’ (2009) 61 MLR 95–9).
133 The choice of focusing on the French lawyers is justified on two grounds. First, France was not only economically dependent on its imperial system but also used its influence over negotiations of the Treaty of Rome to secure the incorporation of its colonies into the EC project (see ABOVE sections II.B–C), and later over the EEC's Directorate General for Overseas Territories (later Development) mandated to oversee the EC's trade and development policy. Secondly, French lawyers were the most interested and committed to the reconstruction of the French trade policy through negotiations of the GATT (at the multilateral level), the EC (at the regional level), and the French Union and later Community, the Association, and the Yaoundé Conventions (at the South-North level). Consequently, Yaoundé I reincorporated the Association, which, in turn, was substantially modelled on the French Community (for similar conclusions, see Gautron (n 104)).
134 Despite all the obvious difficulties and critiques associated with using the notion of regions to identify and qualify groups of lawyers or schools of legal thought, it does play a useful and sometimes indispensable function when employed in an appropriately qualified and contextualised way, which enables analysis of some fundamental features of the history of international law (A Anghie,’ Identifying Regions in the History of International Law’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press 2012) 1059–60).
135 Carreau et al. (n 7) 78–83, 257–8; Nguyen Quoc et al. (n 7) 946–8; Bennouna (n 74) 212–13; El-Naggar (n 64) 256–60; Elias (n 74) 39–40.
136 Jouannet (n 136) 83–131; E Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ (2006) 58 MLR 292.
137 Gathii (n 108).
138 Sakr (n 55) Ch 6.
139 Nguyen Quoc et al. (n 7) 895–914, 946–58; Feuer (n 73) 88–9; GL Lacharrière, ‘Aspects récents du classement d'un pays comme moins développé’ (1967) 12 AFDI 704–6; M Virally, ‘Vers un droit international du développement’ (1965) 11 AFDI 3–12.
140 Nguyen Quoc et al. (n 7) 895–914, 946–58; Feuer (n 73) 88–9.
141 Nguyen Quoc et al. (n 7) 906–10; Feuer (n 73) 88–9.
142 Carreau et al. (n 7) 84–5, 308–9, 343–7, 361–3, 621.
143 ibid.
144 Nevertheless, it is reasonable to infer from the contributionist literature that South-North RTAs would only be regarded as valid and legitimate if they constituted and regulated by international law, and resulted from equal and fair negotiations between developed and developing countries (Elias (n 74) 25–8, 198–208, 378–81).
145 Bedjaoui, (n 74) 104–14, 207–9; Bennouna (n 74) 8–19, 212–29, 315–16.
146 Milward (n 4) 88–9; Bartels (n 6) 728–9; L Coppolaro, The Making of a World Trading Power: The European Economic Community (EEC) in the GATT Kennedy Round Negotiations (1963–67) (Ashgate 2013) 1756.
147 The United States argued that the Yaoundé Conventions provided the EC with a justification, along with its CAP, to not increase its tariff concessions on agricultural products. Distinctively, developing countries claimed that the Yaoundé Conventions weakened the effort to make the GSP the primary multilateral trade regime, which was devised to benefit developing countries alike (Coppolaro (n 146) 175–6).
148 Art XXIV:7.
149 Hafez, Z, ‘Weak Discipline: GATT Article XXIV and the Emerging WTO Jurisprudence on RTAs’ (2003) 79 NDLR 902–4Google Scholar.
150 GATT, Report of the Working Party on EEC/Association of African and Malagasy States and of Non-European Territories (Yaoundé-I Report) GATT Doc L/2441 (3 June 1965); GATT, Report of the Working Party on Convention of Association between European Economic Community and the African and Malagasy States (Yaoundé-II Report) GATT Doc L/3465 (20 November 1970).
151 Yaoundé-I Report paras 20–29.
152 Yaoundé-II Report para 5.
153 Yaoundé-I Report paras 4, 13, 19, 23–24; Yaoundé-II Report para 4.
154 Compare Yaoundé-I Report para 5–6 with Yaoundé-II Report para 15–16.
155 Yaoundé-I Report para 7, 30; Yaoundé-II Report para 11–12, 20.
156 Yaoundé–I Report para 14, 25–27; Yaoundé-II Report para 7, 12, 22.
157 Yaoundé-I Report para 14, 25–26, 30.
158 Yaoundé-II Report para 7.
159 Yaoundé-I Report 30–32; Yaoundé-II Report 4–6, 14, 29–33; Yaoundé-II Report para 16; Bartels (n 6) 729; Steffek (n 39) 85–9.
160 Yaoundé-I Report para 7, 30; Yaoundé–II Report para 12, 29–30.
161 Yaoundé-II Report para 12.
162 Yaoundé-I Report para 30–31; Yaoundé-II Report para 21.
163 Yaoundé-I Report para 14, 30; Yaoundé-II Report para 21, 23.
164 Yusuf (n 14) 21; Bartels (n 6) 729; Coppolaro (n 146) 175–6.
165 Although the United States rigorously objected to any preferential arrangement, it believed that the Kennedy Round would reduce so drastically trade tariffs that preferential margins would be irrelevant (Yusuf (n 14) 21).
166 UNCTAD, Proceedings of the United Nations Conference on Trade and Development (UNCTAD Proceedings 1964-I) Vol. I, UN (1964) 4–11.
167 UNCTAD Proceedings 1964-I 20.
168 UNCTAD Proceedings 1968-I 38; UNCTAD Resolution 21(II).
169 UNCTAD, Proceedings of the United Nations Conference on Trade and Development, Second Session, New Delhi, 1 February–29 March 1968 (UNCTAD Proceedings 1968-I) Vol. I, UN (1968) 342–3; UNCTAD, Proceedings of the United Nations Conference on Trade and Development, Second Session, New Delhi, 1 February–29 March 1968 (UNCTAD Proceedings 1968-V) Vol. V, UN (1968) 34, 39–44; Bartels (n 6) 724–9.
170 UNCTAD, Proceedings of the United Nations Conference on Trade and Development (UNCTAD Proceedings 1964-II) Vol. II, UN (1964) 108–13; Yusuf (n 14) 21; Bartels (n 6) 731; Steffek (n 39) 85–9.
171 UNCTAD Proceedings 1968-I 138 (Madagascar), 176 (Togo).
172 The Brasseur Plan was also strongly opposed by champions of the apologetic approach, since it would not only legitimise systems of preferential trade but also make them even more complex (Steffek (n 39) 87).
173 See above (nn 38–39) and accompanying text.
174 Carreau et al. (n 7) 307–11, 361–3.
175 Nguyen Quoc et al. (n 7) 895–914, 950–8.
176 Bennouna (n 74) 212–29.
