Sovereignty and the ‘United States of Africa’ Insights from the EU George Mukundi Wachira ISS Paper 144 • June 2007 Price: R15.00 Introduction to cede some of their sovereignty to bring about an effective union and institutions that have the powers to The transformation of the Organisation of African execute common competencies. Thus the realisation Unity (OAU) into the African Union (AU) has heralded of a continental government or governing framework is new hope and aspirations for unity and integration for premised on the willingness by states to give up some the continent. However, one of the greatest hurdles of their sovereignty – as experiences in other parts of to such unity has been African states’ grip onto their the world portray. sovereign powers (Naldi in Evans & Murray 2002:1). This is despite the fact that since the World War II, While there may be other models1 from which Africa international law has increasingly transformed the could seek inspiration in its pursuit for a United traditional concept of sovereignty. International and States of Africa, the European Union (EU) model is intergovernmental bodies such as the AU, the UN, the examined for comparative purposes in this paper. World Trade Organisation (WTO) and This is done in a bid to illustrate how sub-regional economic bodies have also states have and are willing to cede urged states to give up some of their some of their sovereignty to effectively sovereignty if they are to realise their achieve common competencies through full economic and political potential. The needs of a supra-national entity. The choice of Indeed, the future of the nation state in our separate the EU2 as a model for this survey is the global arena in terms of political and premised on the fact that there has economic influence is dependent on countries can be been close integration within the EU closer cooperation and integration, as is and are being that has warranted and occasioned its aptly captured by Nyerere: constituent states to cede some of their ignored by the rich sovereignty to the supra-governmental Africa must unite … Together we the and powerful body. The choice of the EU is also based peoples of Africa will be incomparably on the recurring argument that the EU is stronger internationally than we are ‘emerging as the new form of a federal now with our multiplicity of unviable union’ almost akin to the United States states. The needs of our separate of America (Backer 2001:176). These countries can be and are being ignored by developments have resonated in the concept of the the rich and powerful. The result is that Africa proposed ‘United States for Africa’ and could inform is marginalized when international decisions emerging debates on the proposed structure. The affecting our vital interest are made. Unity will experiences and lessons from the model, it is hoped, not make us rich, but it can make it difficult for will inform the architects of the African continental Africa and the African peoples to be disregarded dream, and also inspire policy- and decision-makers in and humiliated. And it will, therefore increase the African countries to forge ahead. effectiveness of the decisions we make and try to implement for our development. My generation This paper has five main parts. In the following part, the led Africa to political freedom. The current concept of state sovereignty and its application within generation of leaders and peoples of Africa must the modern state discourse is traced, albeit briefly. In pick up the flickering torch of African freedom, the next part, the concept of sovereignty in the pursuit refuel it with their enthusiasm and determination, for Africa’s integration is dealt with. The focus is on and carry it forward (Nyerere 2006:21). the AU and the extent to which states in Africa have transferred some of their sovereign powers to the AU However, the journey towards Africa’s closer is discussed. The next part looks at the EU model and integration is arduous. Furthermore, states will have how its member states have ceded some of their state Sovereignty and the ‘United States of Africa’ • page 1 Paper 144 • June 2007 sovereignty to the EU institutions. How some EU states domestic jurisdiction of any state (art 2, para 7). The have sought to address the ceding of state sovereignty OAU, the precursor to the current AU, also prohibited to the EU within their domestic legal framework is also interference in the domestic affairs of a state (OAU addressed. In the last two parts, some points for further Charter, art 3(2)). thought and a conclusion is offered. However, the use of the term ‘sovereignty’ today State sovereignty in the modern state discourse is commonly linked to the ‘totality of international rights and duties recognized by international law State sovereignty is a concept that attracts varied as residing in an independent territorial unit - the interpretations and applications within domestic state’ (Brownlie citing the Reparations Case, ICJ and international discourses (Crawford 2006:32). Report 1949:174, 180).3 Developments within the Sovereignty was traditionally understood to connote international community and the continued breach ‘unlimited and absolute power within a jurisdiction’ of international norms by states whilst hiding behind (Zick 2005:231; see also Lee 1997:243). Therefore the veil of state sovereignty, has called into question sovereignty meant ‘the whole body of rights and the non-interference principle (Oppenheim 1992:25). attributes which a state possesses in its territory, to the While generally giving regard to the concept of exclusion of all other states, and also in its relations state sovereignty, the international community has with other states’ (the Corfu Channel case, 1949 ICJ acknowledged that intervention is required in the 39, 43). This was the exclusive right to exercise political case of certain acts, such as serious violation of authority which inter alia encompasses executive, human rights and threats to international peace legislative and judicial competencies within the state. and security (Brownlie 2003:293; see also Zick The traditional understanding, which can be regarded 2005:235 and art 4(h) and (j) of the Constitutive Act as the classical concept of sovereignty, can be traced of the AU, and art 4(j) of the Protocol Relating to the back to the 1648 Treaty of Westphalia. In Peace and Security Council of the AU). terms of what has since become known as Therefore, while the interaction among ‘the Westphalian concept of sovereignty’ states is largely dependent on consent, the nation state had absolute power lack of express consent on the part of and authority over its internal affairs States have a state has not prevented international without external interference, political organisations and even members of the and foreign policy autonomy and border increasingly international community from executing control (Jackson 2003:786). acknowledged or making decisions that impact on that state (Brownlie 2003:290, UN Charter, Sovereignty and equality of states that certain chap 31). It can be argued though that are also closely linked and ‘represent problems affect once a state commits itself to a treaty or the basic constitutional doctrine of them collectively to membership of an organisation, that the law of nations which governs a act implies agreement to be bound by community primarily of states having decisions from those institutions that are a uniform legal personality’ (Brownlie responsible for implementing and giving 2003:287). According to Brownlie effect to the treaty.4 (citing the Declaration on Principles of International Law Concerning Friendly Relations Increased international interactions, inter- and supra- and Cooperation Among States 1970), the principal governmental organisations, globalisation, human corollaries of the sovereignty and equality of rights and humanitarian law among other development states are: have indeed challenged the Westphalian concept of sovereignty (see for example Annan 1999 and Ghali • A jurisdiction, prima facie exclusive, over territory 1992; 1995). The modern application and use of the and the permanent population living there term have limited the absolute sovereign power of • A duty of non-intervention in the area of exclusive states in international law and relations.5 States have jurisdiction of other states increasingly acknowledged that certain problems affect • The dependence of obligations arising from them collectively and consequently their effective customary law and treaties on the consent of resolution can only be attained through global efforts. the obligor These issues include nuclear proliferation, trade, pollution and other global environmental issues, Sovereignty therefore demands that states are equal refugees, and criminal law issues such as war crimes, and, irrespective of their size, have legal personality crimes against humanity, genocide and terrorism. in their relationship with other states. This means that It is on these and similar matters that international states must ‘refrain from intervention in the internal or law through treaties, international customary law external affairs of other states’ (Brownlie 2003:290; and related measures ‘seeks either to regulate the see also Wachira & Ayinla 2006:474). The UN Charter activities or to coordinate national regulation efforts’ prohibits intervention on matters essentially within the (Tangney 1996:400). Sovereignty and the ‘United States of Africa’ • page Paper 144 • June 2007 Membership of international, intergovernmental and In the next section the extent to which member states supra-governmental institutions such as the EU has of the AU have transferred some of their sovereign also transformed the traditional conceptualisation of powers to the body and organs of the AU, and which sovereignty.6 Some states have been willing to accept has the potential of achieving the dream of a United decisions, directives and regulations adopted by these States of Africa, are examined. For purposes of this institutions, in essence ceding some of their sovereign discussion the relevant sovereign powers are those powers to the institutions (Tangney 1996).