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African Union Law Teaching Material Developed By: 1) Hiruy Wubie (University of Gondar, Faculty of Law) 2) Zelalem Tsegaw (Mekele University, College of Law and Governance, Department of Law) Sponsored by the Justice and Legal System Research Institute 2009 Table of Contents Page Preface……………………………………………………………………………... 1 Course Information…………………………………………………………...… 2 Course Objectives………………………………………………………………………. 2 Chapter One 1. Background and Overview to the African Union……………………………………. 4 1.1. Historical Background of African Union………………………………….. 4 1.1.1. OAU as a predecessor to the African Union…………………. 7 1.1.2. Strengths and Weaknesses of the OAU……………………... 14 1.1.3. The Rationale for the Establishment of the African Union…. 16 1.2. The Relationship of African Union and NEPAD………………………… 20 1.2.1. Origin and Mandate of NEPAD…………………………….. 20 1.2.2. NEPAD as Part of the African Union System………………. 22 1.3. The Relation between African Union and Sub-Regional Organizations in Africa..24 Unit Summary……………………………………………………………………. 27 Chapter Two 2. The African Union as Part of International Institutional Law: Its Legal Personality, Principles and Objectives……………………………………………… 29 2.1. The Concept and Nature of International Institutional Law……………… 29 2.2. The Position of the African Union in the Classification of International Organizations……………………………………………………………... 32 2.3. Legal Personality of the African Union………………………………….. 40 2.3.1. The Rationale for Personality…………………………………. 40 2.3.2. African Union’s Personality at an International Level………… 41 2.3.3. African Union’s Personality Within its Member States……….. 41 2.4. The Foundation of the Powers of the African Union…………………….. 44 2.4.1 The Doctrine of Attributed Powers……………………………... 44 2.4.2. The Doctrine of Implied powers ………………………………. 45 2.4.3. Reconciling the Attributed and Implied Powers Doctrines….... 47 2.5. Objectives of the African Union…………………………………………... 48 2.6. Principles of the African Union …………………………………………... 49 Unit Summary………………………………………………………………………… 53 Chapter Three 3. The Organs of the African Union Along With Their Respective Mandates and Modes of Operation……………………………………………………………. 55 3.1. The Assembly…………………………………………………………….. 55 3.1.1. Powers and Functions of the Assembly………………………… 56 3.1.2. The Mode of Operation of the Assembly………………………. 58 3.2 The Executive Council…………………………………………………….. 64 3.2.1 Its Composition and Functions ………………………………..... 64 3.2.2 The Mode of Operation of the Executive Council………………. 66 3.3. The Commission…………………………………………………………... 67 3.4. The Pan African Parliament……………………………………………….. 68 3.5. The Court of Justice……………………………………………………….. 70 3.5.1. Salient Features of the Court of Justice………………………… 70 3.5.2. The Decision to Merge the African Court on Human and Peoples’ Rights and the Court of Justice……………………….. 71 3.5.3. The Proposed Mode of Operation of the Merged Court………... 72 3.6. The Permanent Representatives’ Committees……………………………... 73 3.7. The Specialized Technical Committees……………………………………. 76 3.8. The Economic, Social and Cultural Council………………………………... 77 3.9. The Peace and Security Council …………………………………………… 77 3.9.1. Background……………………………………………………... 78 3.9.2. Objectives, Functions and Composition of the Peace and Security Council..80 3.9.3. The Mode of Operation of the Peace and Security Council……. 83 3.10. Financial Institutions………………………………………………………. 83 3.10.1. The African Monetary Fund……………………………..…… 83 3.10.2. The African Central Bank ……………………………………. 85 3.10.3. The African Investment Bank………………………………… 85 Unit Summary…………………………………………………………………………. 86 Chapter Four 4. African Union: Membership, Representation and Failure to Make Financial Contributions..88 4.1. Membership to the African Union…………………………………………... 88 4.1.1. Admission to Membership…………………………………........ 90 4.1.2. Continuity, Creation and Succession of States ………………… 92 4.2. Suspension of Membership…………………………………………………... 94 4.3. Termination of Membership…………………………………………………. 95 4.3.1 Possible Causes of Termination………………………………… 95 4.3.1.1 Withdrawal by the Member …………………………... 96 4.3.1.2 Expulsion by the Organization………………………..98 4.3.1.3. Disappearance of a Member or Loss of Essential Qualifications..98 4.3.1.4. Dissolution of the Organization…………………….. 99 4.3.2. The Dilemma Created by Amendment of the Constitutive Act. 99 4.4. Representation………………………………………………………………. 100 4.5. Effect of Failure to Make Financial Contributions ……………………….... 101 Unit Summary………………………………………………………………………… 103 Chapter Five 5. Privileges and Immunities of the African Union……………………………………. 105 5.1. The Rationale of International Immunities…………………………………. 105 5.2. Immunities of the African Union Organization perse……………………….… 108 5.2.1 Property, Assets and Funds …………………………………… 108 5.2.2 Premises and Archives……………………………………….... 110 5.2.3 Currency and Fiscal Matters…………………………………... 112 5.2.4 Communications………………………………………………. 113 5.3. Privileges and Immunities of African Union Personnel …………………... 114 5.3.1 Representatives of Member States …………………………… 115 5.3.2 Officials of the African Union ……………………………….. 117 5.3.3 Experts on Missions for the African Union………………...… 119 Unit Summary………………………………………………………………………… 121 Chapter Six 6. Legal Instruments in the African Union…………………………………………….. 122 6.1. Theories of Law-making…………………………………………………….. 122 6.2. The Vienna Convention on the Law of Treaties and AU instruments………. 132 6.3. Categories of instruments: ………………………………………………….. 135 6.3.1. Human Right Instruments……………………………………………. 135 6.3.2. Non Human Right Instruments………………………………………. 171 6.4. Non-binding instruments…………………………………………………… 171 Unit Summary………………………………………………………………………… 174 Chapter Seven 7. The Role of the African Union in the Protection of Human Rights and Maintenance of Peace and Security in Africa………………………………………………………... 175 7.1. The Competence of the African Union……………………………………... 180 7.2. The Power to Intervene in the Affairs of Member States…………………... 184 7.3. Peace Keeping Mission and Operations of the African Union……………... 184 7.4 The Relationship of the African Union with other International Human Rights Organizations………………………………………………... 189 Unit Summary………………………………………………………………………… 191 Chapter Eight 8. Responsibility to and of the African Union under the Law Governing Relations Between International Organizations and other Parties……………………………... 192 8.1. Responsibility to international organizations……………………………….. 194 8.2. The Right to Bring and Defend Claims under International Law…………... 198 8.3. Responsibility of International Organizations to the African Union………... 202 Unit Summary………………………………………………………………………… 204 Chapter Nine 9. Amendment of the Constitution of the African Union …………………………….. 205 9.1. Introduction………………………………………………………………….. 205 9.2. The Consensus Principle…………………………………………………….. 210 9.3. The Majority Principle………………………………………………………. 212 9.4. The Consensus and Majority Principles Combined…………………………. 213 Unit Summary………………………………………………………………………… 214 Chapter Ten 10. Dissolution and Succession of the African Union ………………………………… 215 10.1. The Modalities of Dissolution……………………………………………... 216 10.2. Dissolution under the African Union Constitutive act……………………... 219 10.3. Succession………………………………………………………………….. 220 Unit Summary………………………………………………………………………… 214 Chapter Eleven 11. Dispute Settlement in the Framework of the African Union……………………… 223 11.1. The African Court of Justice……………………………………………… 224 11.2. Its Procedure……………………………………………………………… 225 11.3. Its Jurisdiction…………………………………………………………….. 226 11.4. Enforcement of its Decisions……………………………………………... 228 Unit Summary………………………………………………………………………… 229 Chapter Twelve 12. The Intended United States of Africa……………………………………………… 230 12.1. The Prospects……………………………………………………………… 231 12.2. The Challenges…………………………………………………………….. 232 12.2.1. External Challenges………………………………………………. 233 12.2.2. Internal Challenges……………………………………………….. 236 Unit Summary………………………………………………………………………… 241 References…………………………………………………………………………… 243 Preface This teaching material provides somehow detail perspectives on the African Union Law. It was mainly the joint effort of the authors, though some other people and institutions (directly and indirectly) have extended their help in order for this material to be a reality. Hence, we are indebted to the constructive contributions of all who have helped us. With respect to the specific contents of the material, we have tried to figure out the possible points related to the course. As it is apparent from the first chapter, great effort has been exerted to give a bird‟s-eye-view on the historical beginning of the OAU and then how it transformed to the present organ i.e. the African Union. An attempt has been made to pinpoint the day‟s debate among the African leaders on the feasibility and likelihood of the accomplishment of the intended United States of Africa. However, the general organization of the material is based on the African Union, as it stands now. Accordingly, the material revolves on the legal frameworks and structural organization within the African Union and its roles and relations with other international institutions. The material is prepared in a simple, but not simplistic manner to equip anyone who wants to know about the African Union Law and in particular to all law students of the nation about the basics. To that end, we tried, to the extent possible, to use simple words in expounding points in the entire text. This material uses brainstorming questions in each and every contentious issue. In general,
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