The african union—A new dawn for africa?

International and Comparative Law Quarterly

Volumn 51, Issue 2, 2002, Pages 415-425

  Magliveras, Konstantinos D ^a   Naldi, Gino J ^b  

^a UNIVERSITY OF THE AEGEAN   (Greece)

^b UNIVERSITY OF EAST ANGLIA   (United Kingdom)

Author keywords

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EID: 85023112311     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/51.2.415     Document Type: Article

References (48)

1. EAHG/Dec.1(V). The Constitutive Act of the African Union is reproduced in (2000) 12 RADIC 629.
2. Art 33(1) of the Act states, ‘This Act shall replace the Charter of the Organisation of African Unity. However, the Charter shall remain operative for a transitional period of one year or such further period as may be determined by the Assembly, following the entry into force of the Act, for the purpose of enabling the OAU/AEC to undertake the necessary measures regarding the devolution of its assets and liabilities to the Union.’ All OAU treaties are currently being reviewed with a view to their adoption by the Union, see Council of Ministers, 74th Ordinary Session, CM/Dec 588 (LXXIV) (8 July 2001).
3. The OAU was endowed with legal personality by virtue of Article I of the General Convention on the Privileges and Immunities of the Organisation of African Unity 1965, 1000 UNTS 393, reproduced in G Naldi, Documents of the Organisation of African Unity (Mansell, 1992), 38.
4. Nevertheless, the Union appears to satisfy the test for international legal personality as set out by the International Court of Justice in the Reparations for Injuries Case (1949) ICJ Rep 174 at 179.
5. The OAU Secretary-General has been authorized to undertake the necessary measures for the devolution of the OAU's assets and liabilities, see OAU Assembly, 37th Ordinary Session, AHG/Dec 160 (XXXVII), para 12 (11 July 2001).
6. See Art 4(1)(d) of the Treaty Establishing the African Economic Community 1991, (1991) 30 ILM 1241, reproduced in Naldi, above n 4, 203.
7. Generally, see G Naldi and K Magliveras, ‘The African Economic Community: Emancipation for African States or Yet Another Glorious Failure?’ (1999) 24 North Carolina Journal of International Law and Commercial Regulation 601.
8. See Art II (1) of the OAU Charter, 479 UNTS 39, reproduced in Naldi, above n 4, 3.
9. For comment, see Naldi, The Organization of African Unity: An Analysis of its Role, 2nd edn (Mansell, 1999), 4.
10. It should be observed that in 1981 the OAU adopted the African Charter on Human and Peoples' Rights, entered into force 1986, (1982) 21 ILM 58
11. reproduced in Naldi, above n 4, 109.
12. For comment, see Naldi, above n 7, 5–14.
13. See the controversial judgment of the Supreme Court of Zimbabwe in Magaya v Magaya [1999] 3 LRC 35.
14. But cf Attorney-General v Unity Dow [1992] LRC (Const) 623 (Botswana Court of Appeal).
15. Currently, the OAU is formulating a draft protocol to the African Charter on Human and Peoples' Rights relating to the Rights of Women in Africa, see Council of Ministers, 74th Ordinary Session, CM/Dec 618 (LXXIV) (8 July 2001).
16. See Report by the UN Secretary General on the Question of the Death Penalty, UN Doc E/CN.4/1999/52.
17. See Naldi, above n 7, 29–33.
18. See Commercial Farmers Union v. Minister of Lands, Agriculture and Resettlement and Others 2001 (3) BCLR 197 (ZS). Not only has the order of the Supreme Court been ignored but the Chief Justice was coerced into resigning his post and other members of the judiciary have been threatened.
19. See K Magliveras, Exclusion from Participation in International Organisations: The Law and Practice Behind Member States' Expulsion and Suspension of Membership (Kluwer Law International, 1999), 171–4.
20. See Magliveras, The Adoption of Punitive Measures by the European Community and the European Union Against Recalcitrant Member States: Analysis, Criticism and Some Proposals, European Public Law Series, Volume VII (Bruylant, 1999).
21. The Action Programme was adopted during the Auckland Summit Meeting of Nov 1995, reproduced in [1996] The Round Table 123.
22. See Magliveras, above n 16, 168 et seq.
23. Despite the OAU's emphasis on the principle of non-interference, in practice this rule has often gone unobserved in Africa, see Naldi, above n 7, 6–11.
24. In fact, it is difficult to argue with the observation of then UN Secretary-General Boutros Boutros-Ghali that ‘the time of absolute and exclusive sovereignty’ has passed, Agenda for Peace, UN Doc S/24111 (17 June 1992), reproduced in (1992) 31 ILM 953, para 17.
25. It ought to be stressed that the African Commission on Human and Peoples' Rights has condemned military seizures of power, see, eg, Eighth Annual Activity Report, Resolution on the Human Rights Situation in Africa (1996) 3 IHRR 245–6.
26. Cf Art 58(1) of the African Charter on Human and Peoples' Rights, above n 8, which refers to ‘a series of serious or massive violations of human and peoples’ rights’. In Organisation Mondiale Contre la Torture and the Association Internationale des Juristes Democrates and Others v Rwanda, Communication Nos 27/89, 46/91, 49/91, 99/93, (1999) 6 IHRR 816 the African Commission on Human and Peoples' Rights relied on this provision to find that the violence in Rwanda amounted to gross violations of human rights.
27. See also, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Provisional Measures, Order of 1 July 2000, (2000) 39 ILM 1100, para 42, where the ICJ observed that it was not disputed that grave violations of human rights had occurred on the territory of the Democratic Republic of the Congo.
28. Genocide and crimes against humanity have been established by the International Criminal Tribunal for Rwanda, see The Prosecutor v Akayesu, Judgment of 2 Sept 1998, (1998) 37 ILM 1399
29. The Prosecutor v Kambanda, Judgment of 4 Sept 1998, (1998) 37 ILM 1411.
30. The intervention by ECOWAS in Liberia is particularly intriguing in this context because the Security Council retrospectively legitimised its operation under Chapter VII of the Charter, see A Parsons, From Cold War to Hot Peace: UN Interventions, 1947–1995 (Penguin 1995), 215–19.
31. See further, KO Kufuor, ‘The Legality of the Intervention in the Liberian Civil War by the Economic Community of West African States’, (1993) 5 RADIC 525.
32. See Security Council Resolutions 794 (1992) and 837 (1993).
33. In accordance with Art 5(2) of the Act the OAU Assembly has incorporated the Mechanism for Conflict Prevention, Management and Resolution, mandated with the adoption of anticipatory and preventive measures to resolve disputes, as one of the Union organs, AHG/Dec 160 (XXXVII), para 8(a)(ii). The aims of the Mechanism for Conflict Prevention, Management, and Resolution, have been subsequently adopted by the OAU Assembly as an integral part of the objectives and principles of the Union, AHG/Dec 160 (XXXVII), para 8(a)(i). On the Mechanism, see further, Naldi, above n 7, 32–3.
34. See Naldi, above n 7, 2.
35. The OAU has usually operated by consensus, Naldi, above n 7, 19.
36. Consensus is also required for reaching decisions in the supreme organ of the Common Market for Eastern and Southern Africa, the Authority; see Art 8(7) of the Treaty Establishing COMESA 1993, (1994) 33 ILM 1067.
37. The OAU Charter did envisage a quasi-judicial organ, the Commission of Mediation Conciliation and Arbitration which, however, never became operational. According to Article XIX, Member States pledged to settle all their disputes peacefully by referring them to that Commission, whose composition, functions and organisation was laid down in the Protocol of the Commission of Mediation Conciliation and Arbitration of 21 July 1964, (1964) 3 ILM 1116
38. reproduced in Naldi, above n 4, 32.
39. See further, Naldi, above n 7, 24–9.
40. See Naldi and Magliveras, above n 6, 610–15.
41. Reproduced in (2000) 12 RADIC 187.
42. Generally, see Naldi and Magliveras, ‘Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples’ Rights’, (1998) 16 Netherlands Quarterly of Human Rights 431.
43. Although COREPER is expressly mentioned in Art 207(1) of the Consolidated Version of the Treaty Establishing the European Community, it is classified as an ‘auxiliary body’ ; see Case C-25/94 Commission v Council (Re FAO Agreement) [1996] ECR I-1469 at 1505.
44. Signed on 24 July 1993
45. (1996) 35 ILM 660
46. (1996) 8 RADIC 187.
47. See Magliveras, ‘African International Organisations: Suspension and Expulsion of Members’ [1999] Australian International Law Journal 158, 169–170.
48. Admittedly, the monitoring of the implementation of Union policies has been entrusted to the Assembly. However, the determination of non-compliance is a function completely different from monitoring.