¹ See Elliot P. Skinner, African American Perspectives on Foreign Policy, in From Exclusion to Inclusion: The Long Struggle for African American Political Power 173, 181 (Ralph C. Gomes & Linda F. Williams eds., 1992); Wash. Post, Aug. 18, 1991, at C2.

² President Bush’s invocation of General Powell as perhaps the only needed representative of Afro-America in gulf crisis decision making had the effect, possibly intended, of distorting and shielding the question of equitable African-American representation in national security and foreign policy decision making from the hard scrutiny it has long deserved. See, e.g., Boston Globe, Feb. 26, 1991, at 3, available in LEXIS, Nexis Library (“Bush pointed to Powell as a powerful example of one who … create[d] … paths of opportunity which we have in the military”); Time, Feb. 4, 1991, at 43 (Pentagon officials point to Powell as black success). See also N.Y. Times, Mar. 7, 1991, at A8 (transcript of President Bush’s victory address to Congress); Confrontation in the Gulf, N.Y. Times, Sept. 12, 1990, at A1, available in LEXIS, Nexis Library (discussing President Bush’s speech before joint session of Congress).

³ See N.Y. Times, Mar. 2, 1991, §1, at 23.

⁴ See Dellums v. Bush, 752 F.Supp. 1141 (D.C. Cir. 1990). African-Americans were initially heard on the inappropriateness of the administration’s launching of Operation Desert Storm as a military action on Dr. Martin Luther King’s birthday, which many black leaders and rank-and-file, and other Americans, angrily saw as deliberate disrespect of King’s legacy and the black community generally.

⁵ There is much scholarship based on such horizontal categories of knowledge about excluded groups throughout the international community. But it is rare that Afro-America is put in that context, especially globally, and if so, only to be noted in passing rather than explored in depth. See, e.g., Donald L. Horowitz, Ethnic Groups in Conflict (1985) (omitting to discuss African-Americans within the context of global ethnic disputes).

⁶ Vincent Harding, There Is a River: The Black Struggle for Freedom in America, at xvii (1981). The “walkout” from the African Studies Association to create the African Heritage Studies Association, which occurred in Montreal in 1969, was led by scholars such as John Henrick Clarke, Elliot Skinner and Herschelle Challenor. See John Henrick Clarke, Notes for an African World Revolution: Africa at the Crossroads 410–12 (1991).

⁷ L.A. Times, Mar. 26, 1991, at Al (describing the large initial momentum of the peace movement generated by the gulf war).

⁸ See Article 27 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, which states: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” For a significant work on rights of African-Americans as a minority under international law, see Y. N. Kly, International Law and the Black Minority in the U.S. (1985).

See generally Malcolm X Speaks (George Breitman ed., 1965); Essien U. Essien-Udom, Black Nationalism (1962); Paul Robeson, Here I Stand 90 (1958). The current resurgence of admiration for Malcolm X in the black community can be safely taken as some evidence of admiration for his ideas in this regard. See also Malcolm X: Speeches at Harvard 161–82 (Archie Epps ed., 1991); Malcolm X: The Last Speeches 111–81 (Bruce Ferry ed., 1989).

⁹ See Anthony D’Amato, International Law: Process and Prospects 14 (1987) (stating that the word “entitlement” is preferable to “rights” because the former is more precise and denotes legally recognizable rights).

¹⁰ It is equally clear that “interests,” as discussed in this article, happily transcend notions of “interest group politics,” which currently inhibit African-American political objectives in the United States.

¹¹ See generally Harding, supra note 6; John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom: A History of Negro Americans (6th ed. 1988).

¹² See Richard A. Falk, Contending Approaches to the World Order, in 1 Towards a Just World Order 155 (Richard A. Falk et al. eds., 1982).

¹³ See generally Derrick Bell, Race, Racism and American Law (1980).

¹⁴ “The river of our struggle has moved consistently toward the ocean of humankind’s most courageous hopes for freedom and integrity … .” Harding, supra note 6, at xix.

¹⁵ See, e.g., text at note 17 and notes 121–24 infra; Alain Fenet, The Question of Minorities in theOrder of Law, in Minority Peoples in the Age of Nation-States 12 (Gérard Chaliand ed., 1989) [hereinafter Minority Peoples] (analyzing the minority demand addressed to the state and comparing this demand with the constraints of international order).

¹⁶ See Jean-François Revel, Without Marx or Jesus (1971).

¹⁷ The conduct of the United States Government toward Marcus Garvey in the 1920s vividly illustrates attempts to compromise international objectives of a people of color. Garvey spearheaded the important mass political movement of the black minority in 1920 by founding the Universal Negro Improvement Association, whose goal was to unite “all the Negro peoples of the world into one great body to establish a country and government of their own.” Hollis Lynch, Preface to Philosophy and Opinions of Marcus Garvey (Amy Jacques Garvey ed., 1969). In addition, Garvey ultimately sought to rid the entire African continent of European colonialism. His ideas captured the loyalty and support of many African-Americans, but the western establishment responded by launching smear campaigns in the press both at home and abroad. In 1923 the United States convicted Garvey on charges of mail fraud. He had served two years of his five-year sentence when President Coolidge pardoned him and then ordered his immediate deportation as an “undesirable alien.” See id.; Kly, supra note 8, at 69–70.

¹⁸ As of the middle of this century, many societies lacked the formal governmental institutions that promulgate and enforce laws. Yet, despite the absence of positive law, these societies had developed unwritten codes of morals and law and applied them with great effectiveness. For a pioneering work on the customary law of indigenous peoples of Africa, see generally Max Gluckman, Custom and Conflict in Africa (1955). Jurisprudential scholarship explicitly addressing the perspective of people of color includes Derrick Bell, And We Are Not Saved (1987); Kimberle Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988). For an example of legal scholarship tying the development of human rights with the new natural law, see Mauro Cappelletti, Repudiating Montesquieu? The Expansion and Legitimacy of “Constitutional Justice,” 35 Cath. U. L. Rev. 1, 31 (1985) (observing that “modern constitutionalism, with its basic [ingredient]—a civil libertarian bill of rights—is the only realistic attempt to implement natural law values in our real world”). For a nonpositivistic jurisprudential approach to international legal issues, see Isabelle R. Gunning, Expanding the International Definition of Refugee: A Multicultural View, 13 Fordham Int’l L.J. 35 (1989–90) (arguing that the UN Charter concept of legal equality of all nations requires that the international definition of refugee be expanded to include a multicultural perspective rather than the more restricted western view) [hereinafter Expanding]; idem., Modernizing Customary International Law: The Challenge of Human Rights, 31 Va. J. Int–l L. 211 (1991) (applying feminist and Afro-centric theories to illustrate the cooperative and coercive aspects of state sovereignty) [hereinafter Modernizing].

¹⁹ For writings that adopt the policy sciences or New Haven approach to jurisprudence in international law, see generally Myres S. McDougal et al., Human Rights and World Public Order (1980) [hereinafter Human Rights]; Lung-Chu Chen, An Introduction to Contemporary International Law (1989); Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order (1961); Myres S. McDougal & W. Michael Reisman, International law Essays: A Supplement to International Law in Contemporary Perspective (1980) [hereinafter Essays]. Professor McDougal once commented that if critical legal studies adherents understood legal realism, with regard to their aim of linking law to decisions about power in the community, they would know there was no need to attack it. Remarks made during a 1980 critical legal studies symposium at Yale Law School.

²⁰ See Human Rights, supra note 19, at 167–68, 174–76; Myres S. McDougal, Harold Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, in Essays, supra note 19, at 191, 222–23 [hereinafter Constitutive Process].

²¹ See Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. Cal. L. Rev. 1763, 1764 (1990) [hereinafter Pragmatism Modified]. She notes the “exasperated challenge” of those who dominate:

Id. at 1765.

²² For scholarly works developing the same approach, see, for example, Jerome McCristal Culp, Jr., Toward a Black Legal Scholarship: Race and Original Understandings, 1991 Duke L.J. 39; Richard Delgado, When a Story Is Just a Story: Does Voice Really Matter?, 76 Va. L. Rev. 95 (1990); Mari j. Matsuda, Voices of America: Accent, Antidiscrimination Law and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329 (1991); Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev. 1699 (1990); Bell, supra note 18; Kimberle Williams Crenshaw, A Black Feminist Critique of Antidiscrimination Law and Politics, in The Politics of Law 195 (D. Kairys ed., 2d ed. 1990); Richard Delgado, Brewer’s Plea: Critical Thoughts on Common Cause, 44 Vand. L. Rev. 1 (1991); Margaret Jane Radin & Frank Michelman, Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991).

²³ See Gunning, Modernizing, supra note 18.

²⁴ See International Covenant on Civil and Political Rights, Art. 27, supra note 8; see also James Crawford, The Rights of Peoples: Peoples or Governments?, in The Rights of Peoples 56, 58 (James Crawford ed., 1988) (asking whether self-determination is restricted to decolonization or whether it obligates the “metropolitan” state vis-à-vis minority groups or peoples).

²⁵ Kly, supra note 8, at xxii, 18 (observing that African-Americans qualify as a national minority and that the word “minority” in the United States has become synonymous in the minds of Americans with the black minority).

²⁶ “Encapsulation” is intended as a descriptive term, referring to the Westphalian context of territorially sovereign national states with central command structures that monopolize, in the name of the “law,” all internal as well as internationally projected state authority. Nongovernment “peoples” or “minorities” in that state are “encapsulated” within its presumed (under international law) sovereign control and legal competence, particularly regarding their international standing. A great limitation on both the origin and the definition of whatever international rights a group and its members might have, encapsulation is not itself a source of rights, but it often describes the impediments facing peoples who do have international rights.

The sources of rights of encapsulated peoples are several. They have the rights of any individuals under the law of human rights against abuse by their national government. If they otherwise qualify as a “people,” they have the right of self-determination, though its extent is limited by international policy based on the facts of their encapsulation: their right would normally not extend to territorial secession from their (established) state. Their peoplehood lies under international law and is not finally determined by the encapsulating state.

²⁷ Afro-America meets the international legal criteria for a “people” in terms of a cohesive history, an integral culture and self-conscious identification. Ian Brownlie, Principles of Public International Law 595 (4th ed. 1990). This definition currently is being stretched by expanding global expectations linked to widespread claims to representative government or “democracy.” The colonialism-derived condition that a “people” may only exist on territory not belonging to the metropolitan state that this people will lead to sovereign independence has arguably been dropped. A people encapsulated in an established state, in choosing to assert its interests within the constitutive framework of that state, has the right to “determine [its] future political status by [its] own freely expressed will.” Western Sahara Case, 1975 ICJ Rep. 12, 36, para. 70 (Advisory Opinion of Oct. 16).

Accordingly, Afro-America’s legal status as a “people” is not barred by any of the following: (1) the U.S. constitutional jurisprudence of individual rights; (2) the degree of integration by law, however defined, of African-Americans into wider American society; (3) the lack of constitutional recognition of Afro-America as a people, coupled with the lack of provision for formal constitutional recognition as a “minority”; (4) the fact that Afro-America is encapsulated within the 48 territorial states rather than an outlying territory with legal status such as Puerto Rico; (5) constitutionally granted national citizenship to African-Americans; (6) divisions among African-Americans over principal political objectives and directions; and (7) the fact that international law generally bars secession of territory from established national states.

The core of Afro-America’s right as a people lies in the collective right—and the individual right of each African-American—freely to decide its political destiny. Continued U.S. citizenship is such an option, and African-Americans have overwhelmingly made this choice, but that does not exhaust the self-determination-based right under international law to be equitably treated in all phases of American life as citizens. Nothing in the international legal right of self-determination of peoples, as discussed here, deprives any African-American of any right under federal law or the Constitution. In the early 1970s, the African-American Republic of New Africa tested this premise by seeking to establish an independent black nation among five southern American states. This attempt was harshly suppressed by the federal Government and never attracted great political support in Afro-America, although it did draw considerable empathy and admiration.

The African-American claim to peoplehood implies that other U.S. racial, ethnic or cultural groups might make such claims (Native Americans have already advanced claims as indigenous peoples under international law). It also seems to imply a greater degree of representation of such groups in international organizations, negotiations and lawmaking, which would be a step toward democratizing the international community under the rule of law.

²⁸ See Pragmatism Modified, supra note 21.

²⁹ Id. at 1776.

³⁰ Id. at 1774.

³¹ See Richard A. Falk, Human Rights and State Sovereignty 35 (1981) (arguing that the predominant ordering logic since the peace of Westphalia has been associated with the “will” of the territorial sovereign state and that the government of a state has been its exclusive agent in formulating its will in external relations).

³² See Bert Lockwood, The United Nations Charter and United States Civil Rights Litigation, 69 Iowa L. Rev. 901 (1984) (surveying early efforts to apply UN Charter provisions in civil rights cases brought before state and federal courts); see generally George Padmore, Pan-Africanism or Communism? (1971) (discussing black nationalist movements and the efforts by Western powers to suppress them).

³³ See Foreign Policy and the Black Community, Dep’t St. Bull., June 1985, at 31 (Secretary Shultz’s address before the 10th National Conference on Blacks in Higher Education); Jake C. Miller, The Black Presence in American Foreign Affairs (1978); George Bush and Willie Horton, N.Y. Times, Nov. 4, 1988, at A34.

³⁴ See Henry J. Richardson III, Self-Determination, International Law and the South African Bantustan Policy, 17 Colum. J. Transnat’l L. 185, 194 (1978) (observing that a trend in international law recognizes this view).

³⁵ See, e.g., Board of Trustees v. Mayor of Baltimore, 317 Md. 72, 562 A.2d 720 (1989) (city ordinances requiring that city employee pension fund divest holdings in companies doing business in South Africa held constitutional); Henry J. Richardson III, Perceptions of Apartheid in South Africa, Temple Rev., Winter 1986, at 15. In helping to shape this interest over a generation, the work of Professor Goler Butcher, Howard Law School (emeritus), and Gay McDougall, Esq., director of the Southern Africa Project, Lawyers Committee for Civil Rights under Law, has been invaluable.

³⁶ See, e.g., A Meeting Place for Africans and U.S. Blacks, N.Y. Times, Apr. 18, 1991, at A8, available in LEXIS, Nexis Library (civil rights leader, Rev. Leon Sullivan, organizes conference in Abidjan, Ivory Coast, to stimulate support for African economic development).

³⁷ See Adrien Wing, Intifada 1990: Southern Africa, Palestine, Black America Strategies for the 90’s (lecture, National Conference of Black Lawyers, Marquette University, Sept. 20, 1990) (discussing common interests and struggles of black Americans, Palestinians and people of color in southern Africa); Adrien Wing et al., The Palestine Intifada (Report of a Joint Delegation of the National Conference of Black Lawyers, U.S.A., and the Society of Black Lawyers of England and Wales, Dec. 1989–Jan. 1990) (in the author’s files) (presenting results of fact-finding mission on current state of the Palestinian uprising in the Gaza Strip and West Bank).

³⁸ In a public opinion poll conducted by the New York Times between January 17 and 20, 1991, four-fifths of the white population supported the U.S. policy in the gulf, compared to one-half of the African-American population. N.Y. Times, Feb. 26, 1991, at A17; see also Boston Globe, Feb. 24, 1991, Focus at 67.

³⁹ SC Res. 660 (Aug. 2, 1990) (condemning invasion and demanding unconditional Iraqi withdrawal); SC Res. 661 (Aug. 6, 1990) (imposing economic sanctions); SC Res. 662 (Aug. 9, 1990); SC Res. 664 (Aug. 18, 1990); SC Res. 665 (Aug. 25, 1990); SC Res. 666 (Sept. 13, 1990); SC Res. 667 (Sept. 16, 1990); SC Res. 669 (Sept. 24, 1990); SC Res. 670 (Sept. 25, 1990); SC Res. 674 (Oct. 29, 1990) (dealing with hostage protection); SC Res. 677 (Nov. 28, 1990); SC Res. 678 (Nov. 29, 1990) (setting Jan. 15 deadline for implementation of Res. 660).

⁴⁰ To Blacks, Powell is a Hero and a Source of Controversy, L.A. Times, Feb. 17, 1991, at 8, available in LEXIS, Nexis Library [hereinafter To Blacks].

⁴¹ See Boston Globe, Feb. 24, 1991, Focus at 67.

⁴² “Poverty drafts African-Americans into the military. Unemployment drafts African-Americans. Sociologically, we are drafted for the military.” Emerging Black Anti-War Movement Rooted in Domestic Issues, Wash. Post, Feb. 8, 1991, at A27 [hereinafter Emerging Movement]. “We [African-Americans] have so few options we will … put ourselves in harm’s way for a job and three squares a day.” Newsday, Jan. 30, 1991, at 15 (quoting Atlanta Mayor Maynard Jackson).

⁴³ Wash. Post, Jan. 20, 1991, at B2.

⁴⁴ Id.; see also Atlanta J. & Const., Jan. 22, 1991, at C1.

⁴⁵ Defense Department statistics stated that blacks made up 25% of the military force in the Persian Gulf, while they represent about 12% of the U.S. population. Blacks constitute 30% of the army, 21 % of the navy, 17% of the marines, and 13% of the air force. See Andrew Rosenthal, The Black GI; Blacks are Hailed by Bush for Their Role in the Military, N.Y. Times, Feb. 26, 1991, at Al 7; Emerging Movement, supra note 42.

⁴⁶ See Are Black Antiwar Officials Out of Touch?, Boston Globe, Feb. 24, 1991, Focus at 67.

⁴⁷ Race and War in the Persian Gulf Wash. Post, Feb. 2, 1991, at A19 (editorial).

⁴⁸ See supra note 7.

⁴⁹ See generally To Blacks, supra note 40.

⁵⁰ See Wash. Post, Feb. 8, 1991, at A27.

⁵¹ Frances M. Beal & Ty DePass, African-American Opposition to War, Past and Present, Cross-ROADS, Feb. 1991, at 4–8.

⁵² See To Blacks, supra note 40.

⁵³ See Emerging Movement, supra note 42 (Department of Education suggested that colleges offering race-based scholarships could lose federal funding).

⁵⁴ Bella English, Unspoken State of Bush’s War, Wash. Post, Feb. 4, 1991, Metro at 13.

⁵⁵ Wash. Post, Mar. 21, 1991, at A28.

⁵⁶ Emerging Movement, supra note 42.

⁵⁷ See To Blacks, supra note 40 (black Americans identify with citizens of Third World countries).

⁵⁸ See Emerging Movement, supra note 42 (United States employs double human rights standard by intervening on behalf of Kuwaitis but not black South Africans).

⁵⁹ See Franklin & Moss, supra note 11, ch. 7.

⁶⁰ See text at and note 122 infra.

⁶¹ Beal & DePass, supra note 51.

⁶² Id.

⁶³ Ronald Walters, Why Should Blacks Fight in the Gulf?, Wash. Post, Dec. 27, 1990, at A17.

⁶⁴ Id.

⁶⁵ See W. E. B. Du Bois, in 16 Crisis 60 (1918), reprinted in 2 The Seventh Son: The Thoughts and Writings of W. E. B. Du Bois 72 (Julius Lester ed., 1971) [hereinafter The Seventh Son].

⁶⁶ Compare Hans Kelsen, General Theory of Law and the State 34 (1945) (arguing that no distinction exists between national and international law) with Manley O. Hudson, Cases and Other Materials on International Law 10 (1937) (arguing that because international law is conceived as governing the relations between states, it exists separately from municipal law).

⁶⁷ See Human Rights, supra note 19, at 167–68, 174–76; Constitutive Process, supra note 20, at 191, 222–23.

⁶⁸ See Human Rights, supra note 19, at 184–85 (concluding that “there would appear to be today a growing recognition and acceptance … that the protection and fulfillment of human rights [should] be regarded as matters of ‘international concern,’ … rather than as matters of ‘domestic jurisdiction’ ”); see also Gérard Chaliand, Minority Peoples in the Age of Nation-States, in Minority Peoples, supra note 15, at 1; Fenet, supra note 15.

⁶⁹ Organized groups voicing their expectations in the transnational decision-making process include Amnesty International, the International Council of Women, the World Jewish Congress and the Anti-Slavery Society. These organizations add unique perspectives and often take controversial positions that states are unwilling to risk taking because of a multiplicity of political considerations. Human Rights, supra note 19, at 174–75.

⁷⁰ See Fenet, supra note 15, at 31.

⁷¹ James L. Brierly, The Basis of Obligation in International Law: And Other Papers (1958).

⁷² See Richard A. Falk, The Status of Law in International Society (1970) (essay describing Westphalian jurisprudence).

⁷³ See Falk, supra note 31, at 63–124 (discussing world order perspective on authoritarian tendencies); Constitutive Process, supra note 20, at 224, 233–34; see generally James L. Brierly, The Law of Nations (6th ed. 1963).

For examples, see note 17 supra; 1 Robert Hill, Marcus Garvey 285–93, 305–13 (1983) (listing Federal Bureau of Investigation documents that tracked Garvey’s activities); 1990 Patterns of Global Terrorism, 2 U.S. Dep’t of State, Dispatch 339 (1991) (noting that Iran’s links to Islamic fundamentalism increase potential for terrorist activity against western powers); News Interview with George Shultz (Jan. 22, 1984), Dep’t St. Bull., April 1984, at 28 (noting that Islamic fundamentalism increases threat of terrorist acts against U.S. interests abroad); World Still Dangerous, Quayle Tells Midshipmen, Wash. Post, May 30, 1990, Metro at B3 (identifying Islamic fundamentalism as threat to U.S. interests); L.A. Times, June 25, 1991, World Rep. at 1 (U.S. policy supports territorial integrity of Iraq in preference to independent Kurdish nation).

⁷⁴ The major Westphalian exceptions are either a successful revolution from within the state (when the “people” or a group takes over the machinery of national sovereignty), or the aftermath of a major war when the interests of component peoples of fragmented states may be surveyed to see their consonance with the major states’ conceptions of a desirable new world order. The latter was generally the situation following World Wars I and II, with the birth, respectively, of the doctrines of “minority rights” out of the need to restructure Central Europe, and “rights of peoples not yet having attained statehood” out of the need to find new arrangements under the UN Charter for both the mandated territories and territories unraveling themselves from the imperial fabric. See Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles), June 28, 1919, 1919 Gr. Brit. TS No. 4 (Cmd 153), 225 Parry’s TS 188, reprinted in 13 AJIL 151 (Supp. 1919); Address to Congress by President Wilson (Jan. 18, 1918) (proposing his “14 Points”), reprinted in Ruth Cranston, The Story of Woodrow Wilson 461 (1945).

It has been difficult for peoples encapsulated within recognized national states to formulate, publicize and defend positions about international law contrary to or different from those of the central government. Part of the difficulty, of course, has been the general restriction in international legal doctrines of standing, e.g., before judicial decision makers, in major organs of most international organizations, and relative to competence to be a treaty party vis-à-vis national governments.

⁷⁵ See, e.g., Gerald Horne, Black and Red: W. E. B. Du Bois and the Afro-American Response to the Cold War, 1944–1963, at 187–88, 214 (1986) (discussing U.S.-government-imposed dissolution of the Council on African Affairs because it groomed the black masses for Communist indoctrination, and the travel restrictions placed on Du Bois by the United States and other Western countries because of his Communist sympathies); see also supra note 8.

⁷⁶ See generally The Rights of Peoples, supra note 24. The debate on self-determination includes the following issues: whether the almost-exclusive emphasis of international law on individual rights offers adequate protection to groups; whether the individual right to associate protects the legitimate interest of groups; whether international law should predominantly uphold interstate rights and obligations in the postcolonial era or establish a new category of people’s rights that would incorporate rights against their governments. Id. at 159.

⁷⁷ See, e.g., Henry J. Richardson III, Constitutive Questions in the Negotiations for Namibian Independence, 78 AJIL 76, 107 (1984) (discussing limits imposed by principle of self-determination on drafting guidelines for the Namibian Constitution); Czechoslovakia Joins the March, Wash. Post, Nov. 26, 1989, at C6 (discussing fall of orthodox communism and rise of democracy in Czechoslovakia); After No Choice, Czechoslovaks Now Have Many, N.Y. Times, June 8, 1991, at A8 (describing first Czech parliamentary elections after 42 years of Communist rule).

⁷⁸ Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992).

⁷⁹ Much of the international community views Kurdish rights to self-determination as equal or even superior to the interests of Iraq as a nation. See, e.g., Martin Peretz, Unpromised Lands: The Statelessness of Kurds and Palestinians, New Republic, June 3, 1991, at 20 (arguing that Kurds will not enjoy human rights until they receive national rights); The World Has a Legal Duty to Protect Kurds, Independent, Apr. 20, 1991, at 11, available in LEXIS, Nexis Library (arguing that the need to prevent genocide and encourage self-determination of the Kurdish people rises above Iraq’s sovereign interest).

⁸⁰ See Thomas M. Franck, Legitimacy in the International System, 82 AJIL 705 (1988). A significant question raised by current clashes of legal expectations concerning the jus cogens right of self-determination of peoples is whether the existence of the right in law is conditional upon the consent of adjacent and/or influential states vis-à-vis the claimed territory and the claiming people. The issue arose and was ultimately defeated (though with ambiguity) regarding the Baltic States and Namibia, and remains regarding the Palestinians. Other current examples could be advanced.

⁸¹ See, e.g., When Empires Fall, Not Everyone Emerges With a State of His Own, N.Y. Times, Apr. 14, 1991, §4, at 2 (discussing self-determination claims of the Baltic States, Armenians and Georgians); In the Soviet Union, Dizzying Disunion, N.Y. Times, Oct. 26, 1990, at 6 (reviewing the plethora of self-determination claims in USSR); Upheaval in the East, N.Y. Times, Jan. 13, 1991, §1, at 6 (discussing Baltic region’s movement toward independence and U.S. dilemma over support).

⁸² See Note, Judicial Enforcement of International Law Against the Federal and State Governments, 104 Harv. L. Rev. 1269, 1275 (1991) (describing principal reasons for reluctance of domestic courts to uphold international law); Andrew M. Scoble, Comment, Enforcing the Customary International Law of Human Rights in Federal Court, 74 Cal. L. Rev. 127 (1986) (considering the act of state and political question doctrines in relation to international legal claims brought before domestic tribunals).

⁸³ This alienation arises in substantial part from the perception that for a decade these leaders have been cutting back on the enforcement of civil rights and the delivery of economic benefits, and have stimulated majority white resentment both to remain in power and to justify these cutbacks. To many, if not most, African-Americans these domestic policies and measures amount to a green light for informal and increasingly formal national racism and have exacerbated the economic plight of large segments of the community.

⁸⁴ See Richard Marienstras, On the Notion of Diaspora, in Minority Peoples, supra note 15, at 119 (describing minority groups who identify interterritorially because of a common national, cultural or linguistic heritage); Ibrahim Babangida [President of Nigeria], Address to Organization of African Unity Summit (BBC broadcast, June 3, 1991) (proclaiming links of all peoples with African heritage through common history of exploitation and common future of hope); L.A. Times, Jan. 29, 1989, View at 1 (discussing the importance of the group label “African-American” in forming political and cultural bonds with all peoples of African heritage); Skinner, supra note 1, at 178.

⁸⁵ See Frank C. Newman & David Weissbrodt, International Human Rights 84 (1990) (discussing the right of minorities and indigenous peoples to self-determination).

⁸⁶ See supra note 35; Francis A. Boyle, Defending Civil Resistance under International Law 211 (1987) (presenting key trial briefs and oral argument transcripts used in South African divestment and antiapartheid cases filed in U.S. courts); Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086 (22 U.S.C. §5001) (1988).

⁸⁷ See Henry J. Richardson III, Namibians Want Their Elections Without South African Interference, Phil. Inquirer, Sept. 20, 1989, at 17–A (op–ed); Some Namibian Special Policemen Confined to Bases, N.Y. Times, Aug. 16, 1989, at A3; Richardson, supra note 77, at 99.

⁸⁸ Franklin & Moss, supra note 11, at 68–74; Benjamin Quarles, The Negro in the American Revolution 68–69 (1961).

⁸⁹ Editorial, Crisis, June 1917, at 59 (authored by W. E. B. Du Bois).

⁹⁰ Id.

⁹¹ Id.

⁹² Emmett Jay Scott, The Negro and the War Department, Crisis, Dec. 1917, at 76.

⁹³ August Meier, Negro Thought in America, 1880–1915, at 110 (1963) (finding that Washington’s philosophy of race accommodates the status quo).

⁹⁴ Louis R. Harlan, Booker T. Washington: The Wizard of Tuskegee, 1901–1915, at 266–67 (1983).

⁹⁵ Booker T. Washington, Our Day (Dec. 16, 1896), reprinted in 4 The Booker T. Washington Papers 674 (L. Harlan, S. Kaufman, B. Kraft & R. Smick eds., 1975).

⁹⁶ Booker T. Washington, New York Age (Oct. 21, 1915), reprinted in 13 id. at 251 (1984).

⁹⁷ See Powell to Study Complaints By Harlem Unit in Gulf War, N.Y. Times, Feb. 28, 1991, at A13.

⁹⁸ Blacks on Iraq, Phil. Inquirer, Dec. 3, 1990, at 1–E (magazine).

⁹⁹ Jackson does so in that he advocates, and has acted upon the belief, that participation by African-Americans in international questions, especially regarding the diaspora and other non-European peoples, is critical to their domestic empowerment. Neither he nor anyone else has been as consistent or as theoretically coherent on these issues as Du Bois.

¹⁰⁰ W. E. B. Du Bois, Peace and Foreign Relations, Crisis, Nov. 1923, at 9.

¹⁰¹ Malcolm X Speaks, supra note 8, at 12–13.

¹⁰² William S. Nelson, The American Negro and Foreign Opinion, Crisis, Aug. 1923, at 160.

¹⁰³ Id.

¹⁰⁴ See Jesse Jackson Courts Latinos in West for Rainbow Coalition, Christian Sci. Monitor, July 15, 1991, at 6, available in LEXIS, Nexis Library; Jackson Working to Add Constituencies to Rainbow, Wash. Post, Apr. 20, 1986, at A4; Jackson Adds Some Hues to His ‘Rainbow Coalition,’ Wash. Post, Apr. 23, 1984, at A3.

¹⁰⁵ Jackson’s successful effort to negotiate the release of hostages held in Iraq during the gulf crisis also demonstrates his ability to resist domestic manipulation. See Hotline, Aug. 29, 1990 (Focus), available in LEXIS, Nexis Library (citing an Evans/Novak report) (“[President] Bush was furious when told by the State Department that Saddam Hussein hoped to use a television taping with … Jackson as the basis for negotiations to free Americans … held in Iraq.”); Jackson Plans Trip to Iraq Despite “Some Pressure” From U.S., Wash. Post, Aug. 22, 1990, at A26 (noting that the Bush administration clearly disapproved of Jackson’s mission).

¹⁰⁶ See text at and notes 40–47 supra.

¹⁰⁷ During the Cold War of the 1950s, a schism developed in Afro-America over U.S. foreign policy. W. E. B. Du Bois spearheaded a movement that strongly attacked American Cold War policies. He understood that the United States held the hypocritical position of espousing the virtues of democracy abroad while tolerating racial segregation at home. Domestic institutions of racism proved to be a substantial handicap for the United States when competing with the USSR for the allegiance of emerging, nonwhite Third World nations. The State Department, however, countered Third World criticism by sending African-Americans abroad to defend the black condition in the United States. This group of internationally influential African-Americans infuriated Du Bois and divided the black community. See Horne, supra note 75, at 277–88.

¹⁰⁸ See, e.g., Michael J. Glennon, The Constitution and Chapter VII of the United Nations Charter, 85 AJIL 74 (1991) (arguing that U.S. law prohibits the President from using UN-sanctioned force without congressional approval).

¹⁰⁹ See Taslim O. Elias, The International Court of Justice and Some Contemporary Problems 156–60 (1983) (discussing legitimacy under international law of use of force in national liberation wars); Richardson, supra note 77.

¹¹⁰ Although this article focuses on African-American interests in international legal process, the African-American/ANC claim regarding the lawfulness of the use of force to overthrow an apartheid state is supported by international law. That law evolved from several sources of international expectations, including African-American claims in the postwar years, to crystallize, inter alia, in key General Assembly resolutions and in the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3. For Afro-America, this legality echoes its open and silent support for slave rebellions, armed defense by blacks against white mobs, and incidences of armed rebellion against the segregated white South whose public order rested on state “law,” that is, American apartheid. As Afrikaners took the American South as a model, there is an equitable closure here of the history of the monopoly of political and legal leverage by white coercion against South African and American blacks.

The African-American claim is further grounded in diasporic linkages with South Africa from the beginning of this century. It is in line with the proposed African-American claim on the law of self-defense set forth below. Insofar as the African-American/ANC claim rests on a liberation movement’s and its people’s right of self-defense against either a colonial or an apartheid regime, the ANC seems to present no internal representation problems under its current responsibilities.

Under a new and, one hopes, liberationist South African constitution, that government would be obliged to meet equitable standards of representation relative to all South African “peoples” (the latter definition would have to be carefully considered in light of its abuse by apartheid regimes) before being permitted to dispatch military force in national self-defense. Here the content of “equity” must rest on basic values of justice and human dignity under the UN Charter, the international jus cogens prohibition of racial discrimination, and other human rights constitutive principles. Thus, groups who continue to support apartheid outcomes of law, power and wealth, and who demand the same representative standing as if they had been in the forefront of the struggle for a nonracial, liberated South Africa, would have little right to block legal self-defense permission in support of national military action.

¹¹¹ Marshall Frady, Outsider: Part III, Without Portfolio, New Yorker, Feb. 17, 1992, at 39 (last of a three-part profile of Jesse Jackson).

¹¹² Id. at 58, 68.

¹¹³ Id. at 67.

¹¹⁴ See Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AJIL 1, 5, 13 (1968) (refuting arguments that human rights violations perpetrated by the Rhodesian elite against its black majority were matters of domestic concern and not a threat to international peace).

¹¹⁵ See Frady, supra note 111, at 60.

¹¹⁶ Nos. 85-108644, 48, 49, 51, 52, 120323, 26, 27 (Cir. Ct. Cook County, Ill., May 1985). For trial materials on the case, see Francis A. Boyle, Defending Civil Resistance under International Law: Special Edition for Protesters 216–81 (1988).

¹¹⁷ After demonstrations on the Queensboro Bridge opposing the canceling of the reserved lane for bicycles and pedestrians during rush hours, defendants at trial admitted to criminal trespass but pleaded the defense of necessity, calling expert witnesses in support. In its opinion acquitting all defendants, the court noted that until then New York courts had declined to accept a defense of necessity as sufficient for submission of a civil disobedience case to a jury. New York v. Gray, 150 Misc. 2d 852, 571 N.Y.S.2d 851 (Sup. Ct. 1991). Citing Chicago v. Streeter, courts have recognized that the harms perceived by activists protesting nuclear weapons and U.S. foreign or domestic policy, international law violations, torture, murder, and unnecessary deaths of U.S. citizens as a result of environmental hazards and disease are far greater than those created by trespass or disorderly conduct. See also In re Weller, 164 Cal. App. 3d 44, 210 Cal. Rptr. 134 (1985).

¹¹⁸ See Clarke, supra note 6, at 410–12; Foreign Capitals’ Reaction Mixed to Young’s Resignation, Wash. Post, Aug. 17, 1979, at A1O; Wash. Post, Oct. 16, 1979, at Bl (discussing American reaction to Walter Fauntroy’s meeting with PLO); Mideast Visits Open Rift in Black Ranks, Wash. Post, Oct. 15, 1979, at A3.

¹¹⁹ For years Israel denied any military cooperation with the South African regime. But in 1987 the Israeli Government acknowledged that it had engaged in arms trade with South Africa. This confession attempted to head off the impact of a U.S. State Department report to Congress that identified Israel as a major violator of the UN arms embargo against South Africa. U.S. to Name Israel as Arms Ban Violator, Chicago Trib., Mar. 24, 1987, at C4; see also Christian Sci. Monitor, Sept. 25, 1985, at 13; L.A. Times, Apr. 10, 1987, Metro at 4; Clarke, supra note 6, at 280–81. In 1986 the U.S. Congress prohibited arms exports to nations providing military assistance to South Africa. See note 86 supra.

¹²⁰ Cf. Can the PLO Talk its Way to a New Palestine?, N.Y. Times, Dec. 18, 1988, §4, at 1 (stating that the bulk of world opinion swung against Israel’s tough methods of dealing with the intifada).

¹²¹ See Crisis, Dec. 1915, at 80 (editorial); see also James Weldon Johnson, Along This Way (1961).

¹²² Thus wrote the outraged Du Bois:

The U.S. has violated the independence of a sister state. With absolutely no adequate excuse she has made a white American the sole and irresponsible dictator of Hayti. The anarchy in Hayti is no worse than in the U.S. in the time of our Civil War, and not as great as the anarchy today in Europe. The lynching and murder in Port-au-Prince is no worse than, if as bad as the lynching in Georgia. … Here, then is the outrage of an uninvited American intervention, the shooting and disarming of peaceful Haytian citizens, the seizure of public funds, the veiled but deliberate design to alienate Haytian territory at the Mole St. Nicholas, and the pushing of the claims of an American corporation which holds a filched if not fraudulent railway charter. Shame on America! And what are we the ten million negroes going to do about it? Can you not at least do this? Write to President Wilson and protest; ask for a distinct, honest statement of our purposes in Hayti and a commission of white and colored men to point the way of Honor instead of Graft.

W. E. B. Du Bois, Crisis, Oct. 1919, at 291, reprinted in The Seventh Son, supra note 65, at 297.

¹²³ Pittsburgh Courier, July 12, 1924, at 2.

¹²⁴ Id.

¹²⁵ Cf. Yoram Dinstein, War, Aggression and Self-Defence 221–29 (1988) (discussing circumstances where a state may legitimately engage in extraterritorial law enforcement as a means of self-defense under international law).

¹²⁶ See B. V. A. Röling, The Ban on the Use of Force and the UN Charter, in The Current Legal Regulation of the Use of Force 3 (Antonio Cassese ed., 1986) [hereinafter Use of Force]; Derek W. Bowett, The Use of Force for the Protection of Nationals Abroad, in id. at 39.

¹²⁷ Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27).

¹²⁸ See McDougal & Feliciano, supra note 19.

¹²⁹ See, e.g., Jonathan Carlson, Hunger, Agricultural Trade Liberalization, and Soft International Law: Addressing the Legal Dimension of a Political Problem, 70 Iowa L. Rev. 1187, 1200–09 (1985).

¹³⁰ See, e.g., N.Y. Times, May 6, 1976, at 17.

¹³¹ See generally Franklin & Moss, supra note 11, at 45–74.

¹³² For example, some commentators argue that the principle of humanitarian intervention may provide doctrinal support for the use of force by one state against the despotic government of another state to protect the victims of human rights violations. See Myres S. McDougal & W. Michael Reisman, Response, 3 Int’l Law. 438, 442–44 (1968–69); John R. D’Angelo, Resort to Force by States to Protect Nationals: The U.S. Rescue Mission to Iran and Its Legality under International Law, 21 Va. J. Int’l L. 485, 496 (1981); contra Dinstein, supra note 125, at 89; Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AJIL 275, 299–302 (1973); GA Res. 1231 (XX), UN GAOR, 20th Sess., Supp. No. 14, at 11–12, UN Doc. A/6014 (1965) (condemning armed intervention “for any reason whatsoever”).

¹³³ But it is clear that a primary historical concern of African-Americans, and, indeed, part of their stake in the United States, has been the ongoing battle against exclusion from the national security decisional processes within the country.

¹³⁴ See McDougal & Feliciano, supra note 19, at 209–43 (discussing claims of preemptive use of force to thwart an anticipated military attack against the acting state).

The quintessential case on self-defense’and proportionality, the Naulilaa Incident, underscores this point. In October 1914, Portuguese outpost guards killed two German officers and wounded a German official in Portuguese African territory after an incompetent German interpreter sparked a misunderstanding. As a reprisal the Governor of German South-West Africa sent a punitive force into Portuguese territory. This force engaged and defeated the Portuguese defenders, causing them to retreat. After the Germans returned to their own territory, the Cuanhama tribe pillaged the abandoned countryside and refused to recognize Portuguese authority. The Portuguese quelled the native uprising by the spring of 1915 and submitted a claim to a special arbitration tribunal for reparations from Germany shortly thereafter. The arbitrators held that Germany owed reparations to Portugal for the damage caused at Naulilaa. Naulilaa Incident (Port. v. Ger.), 2 R.I.A.A. 1011, 1019 (1928), reprinted in L. C. Green, International Law Through the Cases 679 (4th ed. 1978).

On the current law, see Oscar Schachter, International Law in Theory and Practice 150–52 (1991); R‘ling, supra note 126; Jean Combacau, The Exception of Self-Defence in UN Practice, in Use of Force, supra note 126, at 9; Ian Brownlie, The United Nations Charter and the Use of Force 1945–1985, in id. at 491.

¹³⁵ On appeals to natural law, see, e.g., Argument of John Quincy Adams, Before the Supreme Court of the United States, Appellants, v. Cinque, and Others, reprinted in The Anti-Slavery Crusade in America: The Argument in United States V. Cinque 9 (Arno Press 1969) (John Quincy Adams, in United States v. Cinque, 40 U.S. (15 Pet.) 518 (1841), appealing to natural law as a source of justice on behalf of Africans brought before U.S. courts after overpowering the crew on a Spanish slave ship) [hereinafter Adams]; see also Franklin & Moss, supra note 11, at 64–68 (describing the contradictory roles of the oppressed and oppressor played out by American colonists).

In 1777 enslaved Africans petitioned the Massachusetts Legislature to “take into consideration their state of bondage, and pass an act whereby they may be restored to the enjoyment of that freedom which is the natural right of all men.” The preamble to the suggested act began: “Whereas ye unnatural practice in this state of holding certain persons in slavery, more particularly those transported from Africa and ye children born of such persons, is contrary to ye laws of Nature … and a disgrace to all good Governments, more especially to such who are struggling against Oppression ….” A. Leon Higginbotham, In The Matter of Color, Race and the American Legal Process: The Colonial Period 87 (1978) (citing reprint in G. Moore, Notes on the History of Slavery in Massachusetts 184 (1968)).

On appeals to international law, see, e.g., Adams, supra, at 18–24 (Adams arguing in Cinque that a 1795 Maritime Treaty of Restitution between Spain and the United States could not be construed to protect a Spanish ship and crew that engaged in slave running between Africa and Cuba); id. at 116 (Adams reviewing the Antelope, 23 U.S. (10 Wheat.) 66 (1825), to support the proposition that the slave trade contravenes the law of nations); Higginbotham, supra, at 387 (citing Cinque as the Supreme Court’s first opportunity to adjudicate the applicability of the Declaration of Independence as a source conferring rights on enslaved Africans).

On appeals to emigrate to Africa as a solution to American oppression, see, e.g., Franklin & Moss, supra, at 320–21 (discussing Marcus Garvey’s call for the creation of a new all-black African state).

On appeals for rights of colonized African peoples, see, e.g., An Open Letter to His Serene Majesty Leopold II, King of the Belgians, and Sovereign of the Independent State of Congo, by Colonel the Honorable Geo W. Williams, of the United States of America (1890), reprinted in John Hope Franklin, George Washington Williams, App. 1, at 243 (1985) (discussing Belgium’s treaty violations against the indigenous peoples of Congo).

¹³⁶ See Franklin & Moss, supra note 11, at 482–83 (noting post-1945 recognition of need for all peoples of African heritage to unite so as to secure more democracy for themselves).

In 1900 Henry Sylvester-Williams, a West Indian barrister who practiced at the English bar, organized the first Pan-African conference in London. Following Sylvester-Williams’s death, Du Bois assumed responsibility as the promoter of Pan-Africanism and organized five international congresses between 1919 and 1945. See Padmore, supra note 32, at 95–96. In 1940, in his autobiography, Du Bois, writing on the American race problem, modestly revealed the promptings that convened the first Pan-African congress:

Contacts of Negroes of different origins and nationality, which I had then and before at other congresses and the Race Congress, were most inspiring. My plans, as they developed had in them nothing spectacular nor revolutionary. If in decades or a century they resulted in such world organization of black men as would offer a united front to European aggression, that certainly would not have been beyond my dream. But … I knew the power of guns in Europe and America, and what I wanted to do was in the face of this power to sit down hand in hand with colored groups and across the council table to learn of each other, our condition, our aspirations, our chance for concerted thought and actions. Out of this there might come not race war and opposition, but broader cooperation with white rulers of the world, and a chance for peaceful and accelerated development of black folk.

Id. (quoting W. E. B. Du Bois: Dusk of Dawn 274–75).

¹³⁷ See The Pan-African Congress (1919), in The Seventh Son, supra note 65, at 190–99; W. E. B. Du Bois: Writings 744–46, 754–56 (Library of America 1986).

¹³⁸ See The Seventh Son, supra note 65, at 97–103 (describing Du Bois’s efforts at Versailles).

¹³⁹ Evidence of this linkage includes, inter alia, the durability of black South Africa’s claim to self-determination. See supra notes 36, 87.

¹⁴⁰ For a thorough discussion of the diplomatic interludes and geopolitical events leading up to the invasion of Ethiopia, see George Padmore, Abyssinia—The Last of Free Africa, Crisis, May 1937, at 134; id., June 1937, at 166.

¹⁴¹ See An Appeal to the World 13 (W. E. B. Du Bois ed., 1947) (asking United Nations “to take cognizance of a situation which deprives [U.S. people of color] of their rights as men and citizens” on the grounds that these discriminating policies will make UN functioning in New York City more difficult); Rayford Logan, The Charter of the United Nations and the Provisions for Human Rights Rights [sic] and the Rights of Minorities and Decisions Already Taken under This Charter, in id. at 91 (claiming that behavior of states toward people of African heritage constitutes a “universal violation” of the principle of nondiscrimination); see also idem., The Charter will not Prevent Wars, Pittsburgh Courier, July 14, 1945, at 9 (news section) (describing Charter weaknesses as threatening to block the goal of ensuring lasting peace and demanding that the Senate confirmation hearings make this fact known to the “working people”) [hereinafter Prevent Wars]; see also Charter of the United Nations: Hearings Before the Senate Comm. on Foreign Relations, 79th Cong., 1st Sess. 391–92 (July 4, 1945) (testimony of Du Bois regarding ratification of the UN Charter) [hereinafter Du Bois testimony].

¹⁴² Address by President Truman to the Final Plenary Session [of UNCIO], reprinted in 13 Dep’t St. Bull.. 3 (1945).

¹⁴³ See Richard B. Lillich & Frank C. Newman, International Human Rights: Problems of Law and Policy 115–21 (1979) (summarizing American cases that discuss whether UN Charter provisions constitute binding law in the United States).

¹⁴⁴ See Cappelletti, supra note 18.

¹⁴⁵ Dec. 9, 1948, 78 UNTS 277 (entered into force for the United States Feb. 23, 1989).

¹⁴⁶ Civil Rights Congress, We Charge Genocide (W. L. Patterson ed., 1951).

¹⁴⁷ Id. at 37.

¹⁴⁸ Id. at 35–37.

¹⁴⁹ Id. at 39.

¹⁵⁰ Id. at 43–45.

¹⁵¹ Reparations for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174, 179 (Advisory Opinion of Apr. 11).

¹⁵² Cf. Logan, Prevent Wars, supra note 141. The question goes to the relation of Afro-America to the historical centrality of the U.S. Government in the affairs of the UN, positively and negatively. Must that centrality be maintained to realize the African-American interests identified here? This question arises notwithstanding recent indications that the five permanent members of the Security Council have adopted new consensus procedures in the post-gulf-war period.

¹⁵³ See, e.g., McDougal & Reisman, supra note 114.

¹⁵⁴ Note that notwithstanding the strong initial position of the United States that the Universal Declaration carried only moral authority, today the Declaration’s principles unquestionably qualify as customary international law and, as a result, bind all nations. See Myres S. McDougal, Harold Lasswell & Lung-Chu Chen, Human Rights and World Public Order 266, 273–74, 325–27 (1980) (arguing that the Universal Declaration, an authoritative interpretation of the UN Charter’s human rights provisions, represents established customary law).

The U.S. interpretations were pushed through as federal policy, notwithstanding strong African-American advocacy of the binding authority of those human rights provisions, and notwithstanding strong U.S. support for the general concept of institutionalizing human rights in the United Nations and fixing those rights under international law. See Du Bois testimony, supra note 141; Public Papers and Addresses of Franklin D. Roosevelt 65–66 (S. Rosenman ed., 1941) (containing Roosevelt’s four freedoms); Logan, Prevent Wars, supra note 141.

¹⁵⁵ See Miller, supra note 33, at 87 (reviewing Bunche’s rise to UN Under Secretary-General’s position).

¹⁵⁶ Id. at 95–97 (discussing black U.S. UN delegates required to defend U.S. race relations).

¹⁵⁷ Article 25 of the UN Charter provides that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

¹⁵⁸ See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK), Provisional Measures, 1992 ICJ Rep. 3 (Order of Apr. 14).

¹⁵⁹ See Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516, 526–27 (1991).

¹⁶⁰ See Richardson, supra note 77, at 110–12 (evaluating the limitation of the principle of self-determination on the Security Council’s competence to protect against potential threats to international peace and security).

¹⁶¹ Or any grant of authority that could be exercised by the Security Council under the Charter. for SC Res. 678, see note 39 supra. For SC Res. 688 (Apr. 5, 1991), see 30 ILM 858 (1991).

¹⁶² Wash. Post, Apr. 26, 1991, at Al.

¹⁶³ Weston, supra note 159, at 533.

¹⁶⁴ But see text at and notes 42–66 supra. Nevertheless, the gulf crisis breathed new life into an old debate: whether U.S. domination of the Security Council has reached a level that effectively removes its international authority. While this debate raises legal issues, the international community’s basic perspective of the Council as sufficiently independent of the United States to command moral and legal authority still stands. See also Weston, supra note 159; Reparations for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174 (Advisory Opinion of Apr. 11).

¹⁶⁵ In 1971 the Security Council passed a resolution that strengthened Namibia’s claim to self-determination under international law. See SC Res. 301 (Oct. 20, 1971). The resolution adopted the holding in the Namibia case, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 28–31 (Advisory Opinion of June 21) (upholding Namibian people’s right to self-determination under international law). While the decision carried only advisory effect, the Council’s subsequent action bound all states to observe Namibia’s right to self-determination through Article 25 of the Charter. See also Richardson, supra note 77.

¹⁶⁶ See generally Derrick Bell, Faces at the Bottom of the Well (1992).

¹⁶⁷ See Independent, Aug. 27, 1991, at 1, available in LEXIS, Nexis Library (noting the increased prospect of wars fought over dwindling natural resources); The New World Order: Sense or Nonsense?, in Heritage Foundation Reports, Lecture No. 333, July 23, 1991, at 38 (discussing secure access to markets and resources as a historic primary interest of American foreign policy); Reuters, PM Cycle, Mar. 15, 1991, available in LEXIS, Nexis Library (noting comments made by Sergei Kolesrikov of TASS news agency forecasting civil war over natural resources between separate Soviet republics should the Soviet people fail to pass a referendum renewing a union of the country’s 15 republics).

¹⁶⁸ See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205; Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440, 2 UNTS 134; Permanent Sovereignty over Natural Resources, GA Res. 3171, UN GAOR, 28th Sess., Supp. No. 30, at 52, UN Doc. A/9400 (1973); Declaration on the Establishment of a New Economic Order, GA Res. 3201, UN GAOR, 6th Spec. Sess., Supp. No. 1, at 3, UN Doc. A/9559 (1974); Programme of Action on the Establishment of a New International Economic Order, GA Res. 3202, id. at 5.

¹⁶⁹ Thus, the interpretation of Article 2 of the NIEO Charter, concerning the equivalency under international law and the host country’s domestic law of the latter’s control over its natural resources against incoming private multinational corporations, has not passed unscathed into international law. Industrialized countries have greatly slowed the coming into force of the Law of the Sea Convention, specifically over the interpretation and institutional enforcement of the principle of the common heritage of mankind, a fundamental principle of the treaty. More recently, a pattern of revisions by developing countries of their investment codes and related laws has arguably signified, at least in part, their resignation after years of industrialized governments’ economic pressures and battering through institutions such as the International Monetary Fund. See, e.g., India May Ease Investment Laws, Fin. Times (London), June 26, 1991, at 4; Christian Sci. Monitor, May 14, 1991, at 19 (discussing Vietnam’s recent foreign investment code reform providing lucrative opportunities for foreign nations); Philippines Moves to Attract Foreign Investors, Fin. Times, Apr. 26, 1991, at 36; Algeria Taking Steps to Attract Foreign Money, Am. Banker—Bond Buyer, Sept. 23, 1991, at 3; see also Paul Peters, Investment Risk and Trust: The Role of International Law, in International Law and Development 131–54, esp. 137–38 (Paul de Waart, Paul Peters & Erik Denters eds., 1988).

¹⁷⁰ See generally Russel Lawrence Barsh, A Special Session of the UN General Assembly Rethinks the Economic Rights and Duties of States, 85 AJIL 192 (1991); Daniel K. Tarullo, Book Review, id. at 245; Frank Ruddy, Book Review, 84 AJIL 961 (1990); Nicholas R. Doman, Book Review, id. at 331; Rudolf Dolzer, Book Review, id. at 342.

¹⁷¹ Cf. E. V. O. Dankwa & C. Flinterman, The Significance of the Limburg Principles, in International Law and Development, supra note 169, at 275, 275–76 (establishing link between economic development and human rights).

¹⁷² See To Fight or to Appease, Nat’l Rev., July 1983, at 878.

¹⁷³ From Angola to Ethiopia, End of Cold War Transforms Africa, Wash. Post, May 31, 1991, at Al: Cote d’Ivoire Aid Aimed at Easing Hard Times, Africa News Serv., Nov. 4, 1991, at 2, available in LEXIS, World Library (noting that the “resulting increase in human suffering [during the past decade] has given new impetus to demands for an end to totalitarian rule in most of Africa’s 54 countries” and has “forced at least 20 formerly autocratic regimes to hold elections, share power, or leave office”).

¹⁷⁴ Much more of that nation’s resources must be allocated to their welfare under principles of basic equity, and South Africa must protect such allocations with constitutional laws and norms. See L.A. Times, Nov. 3, 1991, at M–3 (noting that de Klerk rejected massive state intervention to redistribute wealth on grounds that it would hinder economic growth); Christian Sci. Monitor, Sept. 6, 1991, at 20 (editorial criticizing de Klerk’s constitutional proposal giving white South African minority disproportionate power); N.Y. Times, Oct. 13, 1991, §1, at 7 (observing that ANC has shifted away from its 1955 position on broad nationalization as provided in its Freedom Charter).

¹⁷⁵ See, e.g., Franklin & Moss, supra note 11, at 66–68.

¹⁷⁶ Brownlie, supra note 27, at 597 (re self-determination as incorporating equality of peoples within a state).

¹⁷⁷ N.Y. Times, Dec. 14, 1992, at A8.