Faculty Snapshot: Idriss Fofana

Idriss Fofana, Assistant Professor of Law

What are you working on now?

2022-23 Lewis Fellow

One of the central animating questions of my scholarship at the moment is understanding the constraints that weaker states face within the international legal order, historically and today. Looking at the 19th century, for example, how did Asian and African polities and peoples try to use international law and international norms to protect themselves in the face of European imperialism, and was that effort futile? And how, in the period of decolonization, did Asian and African states use international law to reform international institutions, or change international law itself, and to what degree were they successful?

I recently completed a Ph.D. in history at Columbia University, and am turning my dissertation into a book. It looks at how these dynamics manifest themselves in the context of labor migration in the 19th and early 20th centuries. A lot of work on the transatlantic slave trade, and the so-called Chinese coolie trade — bringing Chinese laborers into different locations in the Americas — focuses on the Western recruiting parties, but I’m really interested in how Chinese and West African institutions sought to regulate migration and respond to Western demand for laborers from those regions, and how the interaction between these non-Western polities and the Western powers generated a global regime to manage labor migration.

I’m also working on an edited volume with scholars who are thinking about the history of international law in Africa before the 20th century. Part of the goal in that project, and in my work generally, is to move away from history that really focuses on Europe or the West and think about other legal systems of international order, notably in Africa, and about African perspectives on the legal aspects of interaction with Europe in this period.

I’ve been interested in law and history since I was a kid. I’m from Côte d’Ivoire; starting in 2002, there was a conflict there, and the UN was trying to broker peace between the different sides. There was a general sense that decisions were being made by foreign powers and UN officials instead of the national institutions, and trying to understand the role of the UN and other countries in that war was what first drew me to international law.

I’ve looked at history as a way to explain why things are the way they are now. As an undergraduate, I did an independent research project on Chinese students who were studying abroad in France during World War I. The program was initiated by anarchist thinkers, who saw it as another form of education — the students were supposed to combine their studies with work in factories. The lack of financial support and the outbreak of World War I made it nearly impossible for most students to continue their studies. Some of them therefore seized the opportunity to work with Chinese laborers sent to France and Belgium to assist with the Allied war effort. There was a literacy program, but they were also teaching the workers about patriotism and nationalism. After college, I continued to study history in China and at Columbia. But the old interest in international law was in the back of my mind, and I thought it would be really interesting to combine the two.

During law school, I found opportunities to work at firms outside of the United States and to focus on international law and arbitration. For example, I spent my first summer at Herbert Smith Freehills in Paris, in their international arbitration group. They had a lot of cases coming out of Africa, and it was great exposure to what the practice of international law at a firm would look like.

The clinical work I did in law school, relating to immigration and citizenship, was also very formative. In the early days of the Trump administration, when they restricted travel to the United States by nationals of several Muslim-majority countries, we worked with U.S. citizens and residents of Yemeni descent who had family members they wanted to bring to the U.S. Because of the war in Yemen, their relatives’ visa cases had been moved to the embassy in Djibouti, and they were stuck there for months, without knowing what to do. We went to Djibouti and spoke to people waiting for their visas, and to the U.S. ambassador there, and published a report on the waiver process that was later submitted during the Supreme Court’s consideration of the travel ban. This wasn’t international law per se, but it was a very rich and insightful experience because we got to see how the situation affected people concretely.

After law school, I did a clerkship with a judge at the International Court of Justice in The Hague, which gave me a chance to see how international law functions, or is developed. One of the cases I worked on involved the maritime delimitation between Somalia and Kenya. This got me interested in the Court’s case law on boundary disputes in Africa and its considerations of historical treaties between the former colonial powers and the Indigenous peoples who were living there. I was already interested in historical treaties between Western and non-Western powers, and this work pushed me to continue studying them.

You’re teaching a comparative law workshop with Professor William Alford in the fall. What are some of the questions you might explore?

We’ll be thinking about how different societies tackle analogous problems with different tools, and what we can learn from that. Another question we’ll ask is what happens when you take a legal rule, or concept, or framework from one system and bring it to another? Does it have the same effect as in the system that you took it from, or does it have a different effect?

We’ll have a significant focus on China, and more broadly on Asia, Africa and Islamic law. The challenge is that we’re in a time when most non-Western countries have adopted legal systems based on Western systems, whether that’s a common law system or a civil law system. But in some places, if you limit yourself to examining that formal legal structure, you’re only scratching the surface. They may also have less formal or state-centered systems that reflect Indigenous or local practices and norms, and it’s interesting to see how the systems interact.

For example, either now or in the past, many countries, including Côte d’Ivoire, have prohibited financial transactions tied to marriage, such as the payment of bride price or dowry. Yet these practices often persist because many people consider them to be important in bringing the families together. So in some cases, the payment may be described as an “engagement” rather than “marriage” which is a semantic distinction to avoid the legal issue. And yet, the obligations surrounding these practices may be enforced after marriage with varying degrees of formality. For example, in some countries, courts may enforce an obligation to repay the bride pride in case of divorce, despite the formal legal prohibition on the transaction. But in many cases, a family repays the bride price out of recognition that they have an obligation to do so or following an adjudication by customary authorities. The whole area of family law is one where you often see a clash between the law on the books and the way people operate in their daily lives.

In a way, looking at places where this is more visible allows us to look at societies like the U.S. and actually see the same dynamic. If you think about the way American farmers organize themselves to prevent property disputes, or control how their animals graze, or how communities organize themselves to prevent crime, they’re not necessarily interacting with the formal justice system. Looking at other societies, then looking back at your own, is always enriching and helps you learn.

I think it is. Studying legal history really gets you to understand why rules are the way they are today. What are the interests they were meant to serve or protect?

There’s a tendency, not just among lawyers but politically, to think that every new challenge or crisis is unprecedented and requires new norms. When you’re historically informed, you realize that maybe it’s just a question of adapting existing norms to the new problem, but it also makes you more careful about how creating a new rule may undermine certain systemic interests that are protected by the existing order.

As a practitioner, you’re trying to serve your client, but also potentially to construct a broader movement to change or inform the law. I think history tells us a lot about what works or doesn’t work, and about the things you lose depending on the choices you make. For example, upon decolonization, many states considered to what extent to engage with an existing system of international law, which they saw as being born, at least in part, out of practices that entrenched forms of oppression. By engaging with the system, they could potentially help reform it to ensure it also reflected their views and served their interests. But their engagement also risked legitimizing the very system which had facilitated their exclusion or oppression. At the same time, while a certain interpretation of international law may serve a state’s immediate individual interests, the same interpretation may have negative systemic consequences that harm the state’s interests in the long term.

There have been cases when states and advocacy groups have espoused a restricted view of the prohibition on the use of force to push for armed interventions to end human rights violations. However, these cases have then served as precedents for armed interventions by other states which the original proponents of the restricted view opposed. These cases suggests that those wishing to advocate for reforms to achieve an outcome in a particular case should consider the systemic implications of such reforms — and history offers clues as to what these systemic implications may be.