An Inquiry Into the Compatibility of the Demo-Conditionality with State Sovereignty in International Law

An Inquiry into the Compatibility of the Demo-Conditionality with State Sovereignty in International Law An Inquiry into the Compatibility of Demo-Conditionality with State Sovereignty in International Law Special Focus: The Relations between the European Union and the African, Caribbean and Pacific Countries Richard Juma Nyabinda Doctoral Thesis presented at Uppsala University to be publicly examined in Auditorium Minus, Gustavianum, Uppsala, Friday, January 21st, 2011,at 10.15 for the degree of Doctor of Laws. The examination will be conducted in English. Abstract Juma-Nyabinda, R., 2009. An Inquiry into the Compatibility of the Demo-Conditionality with State Sovereignty in International law. With Special Focus on The European Union and the African, the Caribbean and the Pacific Countries Relations. Faculty of Law. 313 pp. ISBN 978-91-506-2170-9 This study examines the issue of compatibility of demo-conditionality with state sovereignty in international law. From a practical perspective, it examines the state of the science with respect to the enforcement of demo-conditionality, in the context of the unique relationship between the European Union and the African, Caribbean and Pacific countries. The practicality of any argument declaring certain norms to be compatible with state sovereignty rests on an assumption that it is possible to distinguish which norms are compatible from those which are not. The validity of such an assumption depends on whether a universal workable test with which to draw this distinction, and its accompanying requirements, has been or can be developed. Therefore, the starting point of this study is to investigate whether such a universal test exists, and if so, what its requirements are. The author reaches a legally appropriate conclusion as to which norms are compatible with the principle of state sovereignty and which not in the international legal system. Thereafter, an investigation is undertaken with regard to the legal premises invoked to justify the compatibility of the demo-conditionality with state sovereignty. To this end, two levels of analysis (also referred to here as two paths) are followed. The first level of investigation concerns the proposition for demo-conditionality’s being premised upon adherence to new treaty obligations governing the parties’ observance of democratic norms. In this context, the examination focuses on Article 25 of the International Covenant on Civil and Political Rights, 1966 as the relevant provi- sion. Other single-issue human rights instruments are also examined to establish whether they compliment Article 25. The second level of investigation explores the possibility for demo- conditionality's compatibility being premised upon obligations of State parties, which arise from the various development co-operation instruments adopted over the years. Here, emphasis is placed upon the question of whether or not these instruments advocate the inclusion of demo- conditionality in development co-operation between donors and recipients of aid. This study ulti- mately reaches a legally appropriate conclusion, at both levels of analysis, concerning demo- conditionality's compatibility with the principle of state sovereignty. At this juncture, a recommen- dation is made as to which of the two paths is the legally safer one for the pursuit of the demo- conditionality in development co-operation. On the question of what constitutes a more successful international approach to the establish- ment of democratic governments in the South, this study has undertaken a comparative analysis, making suggestions with respect to two models: the "Enforcement Model", based upon coercive enforcement measures, and the "Managerial Model", based upon an approach of co-operative dialogue. Finally, the study examines the state of the science with respect to enforcement of demo- conditionality, with a focus on the special relationships between the European Union and the Afri- can, Caribbean and Pacific countries. This is designed to provide a degree of insight into the practical aspects associated with the enforcement of demo-conditionality. Key words :International law, State Sovereignty, Donors and Recipients, Development assistance, Human Rights, Free and Fair Elections, Democracy-conditionality, and the European-the African, the Caribbean and the Pacific countries. Richard Juma-Nyabinda, Department of Law, Box 512, 751 20 Uppsala, Sweden. © Richard Juma-Nyabinda ISBN 978-91-506-2170-9 urn:nbn:se:uu:diva-136109 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-136109) Printed in Sweden by Universitetstryckeriet, Uppsala 2010. To my Father : Nyabinda Kondigo Acknowledgements I have now reached the point where it is now time to thank all those who have assisted, supported or simply been available around me during my time as a doctoral candidate. First of all, I express my sincere gratitude to my supervisor on this project, Professor Pär Hallström of the Department of Law, Umeå University. With great expertise, dedication and intense , Pär has been able to read my manuscript and engage in discussions with me. My sincere thanks also goes to now Professor emeritus Staffan Westerlund. Staffan guided me with very impressive expertise, i.e., reading the entire manuscripts and making very useful comments. He has also been of great assistance with regard to the environmental law part of this thesis. Due to the inherent loneliness involved in writing a doctoral thesis, it is very important to have others who can read and discuss the manuscripts. Therefore, I have been quite fortunate as a doctoral candidate to find someone to pose the question: "What is the subject-matter of your doctoral thesis?". I have had to respond to this particular question verbally, or through availing of my manuscript, to various persons at different forums. In this context, I therefore thank my doctoral candidate colleagues at the Faculty of Law, Uppsala for having created a pleasant atmos- phere conducive to this kind of study. My thanks also goes to the colleagues from other faculties I met during: the 2003 Teaching Course for University Lecturers, Uppsala University, and the 2004 Leader- ship Course for Doctoral Candidates, Uppsala University. The atmos- phere was novel, academically stimulating, encouraging and most interesting. My thanks also goes to the colleagues I worked with and the students whom I have been teaching international law, and in particular human rights, in the various universities in Sweden over the years; namely: Uppsala University, Orebrö University, Karlstad Uni- versity, and Umeå University. I have had the privilege of meeting a number of international law- yers, human rights academicians and activists through my study visits to several institutions. It is only fitting to express my thanks to the decent and warm people who welcomed me and discussed the subject of my thesis with me. Included are also the library staffs of those institutions, who made it easier for me to consult the relevant materials. In this context, I thank the following institutions: the four visits to the United Nations Office-Centre for Human Rights, Geneva; the Univer- sity of Warwick, UK; the Centre for Democracy and Human Rights (the Banjul-the Gambia); the Leuphana University in Luneburg, Ger- many; the Utrecht Institute of Human Rights (Holland); the Dag Hammarsjöld Foreign Affairs Library, Stockholm; The Raoul Wallen- berg Institute of Human Rights and Humanitarian Law, (Lund). This research has gained a great deal from my participation in various international conferences, amongst others: the 1993 Nordic Re- gional Conference for Human Rights Conference, Lund University; the 1993 World Conference on Human Rights, Vienna, Austria; the 2005 Dag Hammarskjöld Symposium on ”Respecting International Law and International Institutions", Uppsala; the 2005 Tenth Year IDEA, Stockholm; the 2006 Seminar on International Law, Foreign Affairs Ministry, Stockholm, Sweden; the 2007 Seminar on Interna- tional law, Foreign Affairs Ministry, Stockholm, Sweden; and the 2007 Global Conference on Challenges to Building Democracy, Stockholm. This project has been financed partly through Swedish Education system and by Uppsala University. The Faculty of Law has financed all the research trips referred to above. The proof reading and the printing costs also have been covered by by the Faculty of Law, Upp- sala. I remain very grateful for the assistance of all of these institutions for their generosity. Stress, frustration, and even anxiety are inherent problems during the period in which one writes a doctoral thesis. Therefore, thanks to those who have simply been around me. To my friends I say a sincere thank you for the long-drawn support. My sincere gratitude goes to my family : Tonie, Allan and Belinda, for their extraordinary patience, constant support and encouragement throughout this project. And of course, in the last moments of this project, the arrival of Kiam Osiyo Juma is highly acknowledged here as well. Uppsala, 21 January 2011 Richard Juma-Nyabinda Contents List of Abbreviations ....................................................................................16 PART I THEORETICAL FRAMEWORK..................................................19 1 The Subject Matter of the Inquiry and Framework of the Study ............21 1.1 The Subject Matter of Study..........................................................21 1.2 Delimitation of the Study...............................................................24

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