Resetting the Agenda: Koram’s Uncommon Wealth

by | 30 Mar 2022

Reading this compelling book, it struck me that the metaphor of the “own goal” might have also been a good pivot for its analysis of the relationship between the conduct by Britain (formerly “Great”) of its imperial affairs and the state in which it (only formally “Great”) now finds itself. But Kojo Koram has used, instead – and more fittingly, I think – the metaphor of the boomerang. Closely identified with Australian Indigenous Peoples, the origins of the word are disputed and may lie in one of the many lost Indigenous languages. The function of the boomerang, however, is well-known. It comes back – not by accident, but by design. How appropriate that this metaphor, recalling the cultural property of a people that the law of the British invaders deemed not to exist, is being used to frame an analysis of the way in which the policies and practices of imperial Britain resound through its current self-inflicted subjection to the forces of international capital.

British colonial policy was no accident. The moral basis and subsequent conduct of the colonial project was a matter of public debate. The conclusion of this discourse was authoritatively expressed in Lord Lugard’s so-called “dual mandate”, according to which colonialism was justified as part of the universal historical mission of the imperial powers, which were under two connected moral duties:[1]“to bring the blessings of Western civilisation to the inhabitants of the tropics and to activate neglected resources in ‘backward’ countries for the benefit of the world economy”.[2] An extra-special blessing of this Western “civilisation” was the globalization of the common law system, with its fixation on the primacy of private property and contract, which have proved to be ideal devices for appropriating, protecting and circulating resources within the private domains of capital.

And there is no space better adapted to this than that of the modern multinational corporation, the direct descendant of the colonial trading companies. “Of all the inventions the British Empire gave to the world, perhaps the most significant, despite being rarely mentioned, was the modern commercial corporation” (p 54). Nominally independent from the state, these corporations functioned as vectors of imperial control. Colonialism, as Koram notes, was by and large “a corporate endeavour, with private companies serving as makeshift state governments across the world” (p 58). The resources of the colonies were made available to the world economy through their (mis)appropriation by corporate interests. And the rights of these corporations to their booty were sustained in the courts of the imperial state where property and contract reigned supreme.

The threat posed to this colonial free-for-all by the large wave of post-World War Two decolonization was semi-neutralized by the imposition of the international economic law system at Bretton Woods. By enabling state-backed access to resources on preferential terms, this system created the ideal conditions for the flourishing of the multinational corporation. At the same time, as this book eloquently demonstrates, it made decolonization a damp squib for the former colonies. What’s the point of political sovereignty when it doesn’t extend to control over natural resources, when it’s little more than a change in the methods of appropriating them? Of course, this post-colonial state of affairs very soon became evident to the new, but not very sovereign, states. A central plank of their international campaign for a New International Economic Order was a UN Code of Conduct on Transnational Corporations. But the empire, led by the UK and the US, struck back. The threat that the movement for a New International Economic Order posed to corporate-led economic globalization, and to Western control of that process, was derailed by a series of political decisions in the Global North that put in place what we now know as the neoliberal order.

This history is written all over our lives. It echoes in every corner of the globe. Koram traces the links between the delegation of imperial control to undertakings like the East India Company and the pernicious modern practice of outsourcing state functions to private corporations. In tandem with his own story as a child in Ghana under yet another post-independence structural adjustment regime, he examines the way in which loan conditionalities imposed by the Bretton Woods institutions act as a means to extract resources from borrowing states on unfair terms. He shows us how the bizarre private system of international investment arbitration, operating under the auspices of the World Bank and pitting sovereign states against multinational corporations, is linked to the primacy of contract and property in the common law. He exposes the ways in which the identity of empire as an offshore corporate-managed world employing “innovative legal structures and techniques which allowed corporations to disappear into a jurisdictional escape pod” (p 185) laid the basis for modern corporate tax havens: “In reality, it is the protection that tax havens provide to transnational capital that are the real continuation of empire’s dynamics of extraction and exploitation” (p 186).

This book explodes the idea that it is boring and uncool to talk about money, balance sheets, contracts, trusts and private property. It calls critical attention to the way in which the realities of global capital accumulation undercut every protection offered by so-called public law, every protection offered by constitutions, every protection offered by human rights. It exposes the way in which the meaninglessness of the public law/private law distinction matches that of the political/economic distinction. It forces us to confront the chimera of sovereignty in the context of the global economy: “True sovereignty would be empowering working people to challenge the interests of global capital. It would also require confronting the aftermath of empire, and asking how the UK could limit the spaces capital has used to accelerate inequality all over the world in recent decades” (p 213)

A convincing analysis of how and why the private is public and the personal is political, this book also has an important message for the discipline of international law.  It raises questions about the long academic obsession with the systems of law established under the auspices of the United Nations. It challenges us to think about the human costs of failing to call the system of international economic law to account. And it urgently calls upon us to reset the agenda for critical international law scholarship.

[1] Lord Frederick J D Lugard, The Dual Mandate in British Tropical Africa (Frank Cass & Co, 1922)

[2] Jürgen Osterhammel, “Colonialist Ideology” in Colonialism: A Theoretical Overview (trans. Shelley L Frisch) (Markus Winer, 1997), 109-110.


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