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AUCIL Journal of International Law a Journal of the African Union Commission on International Law ISSN 1821-8962 AUCIL Journal of International Law A Journal of The African Union Commission on International Law 1. The African Union Commission on International Law (AUCIL): An Elaboration of its Mandate and Functions of Codification and Progressive Development of International Law Adelardus KILANGI 2. Regional Child Rights Instruments on the African Continent: The African Charter on the Rights and Welfare of the Child Kamel FILALI 3. La Traite des Africains fut-elle Licite? Une Problématique des Réparations de la Traite Blaise TCHIKAYA 4. African Union’s Principles on Peace and Security Minelik Alemu GETAHUN 5. Legal Personality, Responsibility and Immunity of the African Union: Reflection on the Decision of the African Court on Human and Peoples’ Rights in the Femi Falana Case Adelardus KILANGI Issue No. 1, 2013 AUCIL Journal of International Law A Journal of International Law of the African Union Commission on International Law Issue No. 1, 2013 Current Members of the African Union Commission on International Law (May 2013) Mr. Rafaâ Ben ACHOUR, Tunisia Mr. Daniel Makiese MWANAWANZAMBI, Democratic Republic of the Congo Mr. Boniface Obina OKERE, Nigeria Mr. Kholisan SOLO, Botswana Mrs. Naceesay SALLA-WADDA , Gambia Mr. Ebenezer APPREKU, Ghana Mr. Minelik Alemu GETAHUN, Ethiopia Mr. Filali KAMEL, Algeria Mr. Adelardus KILANGI, Tanzania Mr. Blaise TCHIKAYA, Congo Mr. Cheikh Tidiane THIAM, Senegal The African Union Commission on International Law (AUCIL) AUCIL Journal of International Law A Journal of International Law of the African Union Commission on International Law Issue No. 1, 2013 ©African Union Commission on International Law, 2013 ISSN 1821-8962 published by The African Union Commission on International Law (AUCIL) Contents page 1. The African Union Commission on International Law (AUCIL): An Elaboration of its Mandate and Functions of Codification and Progressive Development of International Law Adelardus KILANGI . 1 2. Regional Child Rights Instruments on the African Continent: The African Charter on the Rights and Welfare of the Child Kamel FILALI .....................................................29 3. La Traite des Africains fut-elle Licite? Une Problématique des Réparations de la Traite Blaise TCHIKAYA . .47 4. African Union’s Principles on Peace and Security Minelik Alemu GETAHUN .........................................63 5. Legal Personality, Responsibility and Immunity of the African Union: Reflection on the Decision of the African Court on Human and Peoples’ Rights in the Femi Falana Case Adelardus KILANGI . .95 Foreword It gives me great pleasure and appreciation to introduce to you the AUCIL Journal of International Law, a journal of international law published by the African Union Commission on International Law (AUCIL). The AUCIL was established to be an independent advisory organ of the African Union on matters of international law, charged with the responsibility of facilitating the codification and progressive development of international law in the African continent. One of its functions in this regard is to promote the teaching, study, research and dissemination of international law and African Union law in the continent. Therefore, the publication of a scholarly journal like this is seen as one of the positive efforts towards the implementation of its functions. It is particularly satisfying to note that, the publication and launch of the first issue of this Journal coincide with the 50th Anniversary celebrations of the OAU/AU, which are governed by the spirit of ‘Pan- Africanism and African Renaissance’. Indeed, a retrospection into the past fifty years in the continent of Africa have shown determination, resolve and sense of purpose as the continent struggled to address the numerous challenges that it, and its people, have faced. In these struggles, the relevancy and centrality of international law has been vivid, because right from the establishment of the OAU, and later the transformation into the AU, the continent has experienced many challenges requiring the invocation of international law. These include: colonialism and denial of the right to self-determination; apartheid in South Africa; border and boundary disputes; the problem of refugees and internal displacement; interference in the internal matters of African states, especially by vi former colonial powers; the problem of unconstitutional change of government; intra-state and inter-state armed conflicts; violation of human rights including gender inequity; and the problem of unequal terms of trade between Africa and the developed world, among others. On the positive side, however, Africa is envisaging more integration and positive engagement with the rest of the world. In this paradigm, Africa is seen as a continent with greater opportunities for growth, given its vast resources and a young population, and driven by the vision of an ‘Integrated, Prosperous, and Peaceful Africa’. Again, in this endeavour the role of international law remains pertinent and well defined. Therefore, the decision to publish this Journal is highly welcome, and it is my expectation that the Journal will serve as a forum for African scholars to publish scholarly articles and engage in scholarly discourses on matters of international law for the continent of Africa. It is further expected that these discourses will contribute to promoting the teaching, study, research, and wider appreciation of international law in Africa. However, while this initiative is welcome, it is understood that any such pioneer work has challenges. Therefore, the challenges that have been faced by the AUCIL in making this endeavour a reality are appreciated, and improvements are envisaged in the future. But, with determination, focus, and commitment, the Journal will become one of the major ways of contributing to the development of international law in Africa. Dr. Nkosazana Dlamini-Zuma Chairperson African Union Commission May 2013 The African Union Commission on International Law (AUCIL): An Elaboration of its Mandate and Functions of Codification and Progressive Development of International Law Adelardus KILANGI1 Abstract The African Union Commission on International Law (AUCIL) was established as the chief advisory organ of the African Union on matters of international law, and its main functions are to deal with the codification and progressive development of international law in the continent of Africa. These functions appear similar to those of the International Law Commission (ILC), hence creating a confusion regarding what the AUCIL is actually supposed to do vis-à-vis what the ILC is supposed to do. But, it is also a fact that initiatives towards codification and progressive development of international law have been in existence in the world for more than 1,000 years. This fact also creates questions on what concept of codification and progressive development is the AUCIL going to subscribe, and what inspiration is it going to draw from. This paper, therefore, attempts to respond to some of these questions by attempting to elaborate on the mandate and functions of the AUCIL. 1 Adelardus Kilangi is a Member (and currently the President) of the African Union Commission on International Law (AUCIL). He is also currently the Dean of the School of Law at St. Augustine University of Tanzania in Tanzania, and an Advocate of the High Court of Tanzania. He is also Member of the East African Law Society, the Pan African Lawyers Union, and the International Law Association. 2 AUCIL JOURNAL OF IL, ISSUE NO. 1, 2013 1. Introduction 1.1 Background to the Establishment of the AUCIL: A Desire to Have a Consultative Body on Matters of International Law One of the key pre-cursors to the aspirations in Africa of having a consultative body on matters of international law is the initiative to establish, in 1956, the Asian-African Legal Consultative Committee, currently known as the Asian-African Legal Consultative Organization (AALCO). It was established at a time when most the African countries had not yet attained independence. It was established by seven states, where Africa was represented by one state only and which was also part of a larger entity comprising of one state from Africa and one state from Middle East, in the form of the then United Arab Republic. The United Arab Republic was made up of Egypt and Syria. In the current membership, there are sixteen African Member States, which are: Egypt, Botswana, Cameroon, Gambia, Ghana, Kenya, Libya, Mauritius, Nigeria, Senegal, Sierra Leone, Somalia, South Africa, Sudan, Tanzania, and Uganda.2 The AALCO, since its inception, has worked on a wide range of area of international law issues including: law of diplomatic relations, extradition law, treatment of foreign nationals, state immunity and commercial transactions, issues of the law of the sea, Indian Ocean as a zone of peace, dual citizenship, ionosphere sovereignty, divorce laws, free legal aid, ILC’s continuing agenda items, legality of nuclear tests, conflict of laws in international sales, double tax avoidance, law of treaties, Afro-Asian view of the UN Charter, Vienna Conventions of diplomatic and consular relations, Convention on Civil Liability for Nuclear Damage, law of outer space, principles of peaceful coexistence, law of international rivers, South West Africa cases, uniform transport law, legal advisory services in foreign offices, environmental law, territorial asylum, succession of States in respect of treaties, reciprocal assistance in respect of economic offences,
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