Kilimanjaro Summer Academy on African Union Law and the Public Law of Africa- July- August 2024

In July and August of this year, I expanded my international law competence through partaking in a comprehensive academy course- the Kilimanjaro Summer Academy on African Union Law and the Public Law of Africa by the African Institute of International Law - Institut africain de droit international

I participated in the academy after being influenced to do so by Judge Abdulqawi A. Yusuph, while in at the The Hague Academy of International Law - Académie de droit international de La Haye, earlier this year.

The content was delivered by some of the most renowned international law practitioners.

I extend my sincere gratitude to all the Organizers, Instructing Professors and my fellow participants of the Kilimanjaro Summer Academy-2024

Inaugural Lecture: Pan-Africanism and The Public Law of Africa - By International Court of Justice Judge Abdulqawi Yusuph

“The essence of Pan-Africanism is to bring together different actors in international law and to better articulate on aspects of African Public Law in international law. Public Law of Africa is not international law, it is in essence regional law established to govern affairs of Africa, in a normative aspect of Pan-African Law of the African Region. International law in essence mostly comprises of European normative aspects, not taking into consideration th African values”.

Why Pan-Africanism?

Methodological perspective

1. Pan- Africanism symbolizes the unity of the African continent as a unified continent vs the whole world- (studying the whole of Africa as opposed to individual countries/ sub-regions
2. Through Pan-Africanism the activities/ attitudes of all African states towards international and law can be expressed as opposed to individual countries

Substantive perspective

1. Pan-Africanism offers a unique advantage point to study Africa’s encounter with International Law- African political institutions e.g. chiefdoms, kingdoms and other societal organizations, were excluded in the Eurocentric international law development- and the essence of normative development from the Eurocentric point of view- this is not the realty of International Law, despite the fact that it is referred to as the ‘law of nations’- civilized nations, it later accommodated other independent countries such as America.
2. This excludes Africa, Ottoman Empire, China, Japan, Thailand, although Europe had established contact with these; they felt that extension of the rules of International Law in these regions would mean that they’d have to afford them equal treatment, whilst they wanted to colonize them- colonial sentiments.
3. International Law (Eurocentric) was used as part of the colonial entreprises through; Introducing the concept of constitutive recognition- disregarding the formal existence of some countries for not meeting the sovereign requirement despite the fact that they had formal societal organizations e.g. chiefdoms, kingdoms, empires. Consider the International Court of Justice (ICJ) ’s advisory opinion on Western Sahara- ICJ stated that the Western Sahara had societal organization was not territorial nullus in the first place to not be regarded as a constitutive state.

This called for the 1st Pan-African conference on self-determination of African countries in the late 19th Century as a way to protest and fight for recognition- also early 20th Century- at the time Pan-Africanism was against international law.

Regional Body and the Law and Institutions of the African Union- By Professor Vincent O. Nmehielle (Secretary General of the African Development Bank (AfDB)) The Hague Academy of International Law - Académie de droit international de La Haye

The Professor also delivered the wonderful lecture together with an insightful seminar titled “Sanitizing the Murky Waters Surrounding the Operationalization of the Judicial Arm of the African Union”

African Charter on democracy- illegality of coups de tat, the Charter addresses the illegality of governments which come into power through unconstitutional change of government- but what is the definition of unconstitutional change of government, it is a grey area since the situations in Guinea, Niger, Burkina Faso were aimed at addressing unconstitutional governments- were these warranted or not?

Strengthening Regional Integration- AU agenda 2063- 100 years after the formation of the OAU. Launched in 2016. Policies derived from that should be implemented--> High fives of the African Development Bank (AfDB);??

• Light up and power Africa
• Feed Africa????????????????????????????????????????????????????????
• Integrate Africa??????????????????????????????????????????????? ????????????????????????????????????????????????????
• Industrialize Africa?????????????????????????????????????????
• Improve the lives of ordinary Africans

Legal Aspects of the Peace and Security Architecture of the African Union- By International Court of Justice Judge Dire Tladi

“…the situation had started changing before the death of the OAU in the 1980s and 1990s, could be because the OAU was not satisfied with the role of the UN in Africa, consider Apartheid in South Africa, the Rwanda genocide etc. hence with the Constitutive Act and establishment of the AU, peace and security was clearly emphasized. Although the central motive for AU is not peace and security as the UN (which was birthed from war), AU’s central motive is economic development- leaders had recognized the reasons for disputes and instability in Africa is economic underdevelopment."

Substantive Rules of Peace & Security under the AU Constitutive Act- Article 4 (f)-prohibition on the use of force- same principle as under the UN, in the African context, the AU text is a much better text than the UN, the UN version has qualifiers in areas where the force can be used regard it as undermining peace and security (as long as it does not undermine independence), the AU uses very simple language without qualifiers similar to the UN version- with exceptions self-defense and authorization by United Nations Security Council

- Article 4 (h) AU in intervening with other countries under grave circumstances (3 circumstances)- can such intervention be done out of the grave circumstances? Without approval of the concerned African State- Yes- if the Constitutive Act is interpreted in harmony with other international conventions e.g. Convection against genocide etc.

Comparison with the United Nations Charter

• Chapter 8 of UN Charter consideration of international arrangements but Article 15 on forcible action
• Article 4 (h) could be seen as freedom by African states to exercise their power with considerate interpretation of Article 2(4) of the UN Charter à Way around the Article 4 (h) dilemma is that AU can take action under Article 4 (h) and it shall be valid unless where the UN Security Council opposes it- principle of acquiescence.

IS THE PRINCIPLE OF ACQUIESCENCE A STRETCH AND A VIOLATION OF THE UN CHARTER?

• Is the principle of acquiescence as stretch and unreasonable -considering that supremacy of the UN in peace and security matters is well elaborated under the UN Charter-Chapter VIII—however it can be valid due to international law interpretation- treaties and practice. Therefore, legal reasoning in interpretation makes the principle valid.--The principle could be challenged but argued for as well.
• Also, it is not a stretch since Article 4(h) is valid in addressing African issues since the UN approach is not always implemented- consider the Rwanda genocide; Liberia & Sierra Leone UN SC non-intervention -, even where AU requests to intervene with the UN SC-usually no response is given-they usually give a post-factual approval--> Silence means approval?

Legal Implications of the Agreement Establishing the African Continental Free Trade Area (African Continental Free Trade Area (AfCFTA) Secretariat ) --> By Prof Melaku Geboye Desta (Coordinator United Nations Economic Commission for Africa)

Genesis of the AfCFTA

" Is the AfCFTA a novel idea copied from the European Union ? --> Not really the latter was ideated in 1963 by the OAU in the first meeting of the OAU Summit calling for economic cooperation and free trade in Africa- in essence a re-structurization of international trade within Africa. A special committee was formed" The ideation greatly stemmed from Africa being regarded as a source of raw materials subject to a lot of price volatility.

Various developments have led to the AfCFTA;

- 1974- Monrovia Declaration

- 1980-2000 Lagos Plan of Action for the Economic Development of Africa, (not a binding legal document, but has in-depth plans for the free-trade area- this led to the Abuja Treaty)

- 1991 Abuja Treaty- with a structured plan and timelines for free regional trade, with a resolution to have free trade-regional blocs to be later integrated to form a customs union continental free trade community the whole of Africa. This was not realized; a lot of regional integrations being formed to the extent that there was a resolution to prevent formation of new blocs.

- 1999- Sirte Declaration

- The 2008 establishment of the Tripartite Free Trade Area (TFTA) between COMESA (COMESA Secretariat), East African Community and SADC (SADC Secretariat )

- Decisions and Declarations on Boosting Intra-African Trade (BIAT) and the Establishment of a Continental Free Trade Area (CFTA)-2012 BIAT ; etc.

AfCFTA Agreement: Architecture

Implemented through a series of Protocols in two phases- some have entered into force some have not entered into force- have not even been opened for ratification despite their adoption.

Note: Eritrea is the only country which has not signed the AFCFTA Agreement, with many others signing but not ratifying the treaty.

AfCFTA is not a customs union- however a continental customs union remains as an objective- in the Abuja Treaty it was to be implemented under regional integrations- however this has not worked ?Qn: can it work under the ambit of the AU as a whole?

Issue: Harmonization of trade policies is not as easy --> consider the geographical boundaries (established during colonization of Africa) and the differences.

Issue: African traders in Africa face higher Trade Tariffs than non-African traders.

Qn: Divided allegiance on implementation of the AfCFTA objectives within progressed regional blocs- considering the EAC which has the Customs Union Protocol and Common Market Protocol with the plan of attaining a common currency level?

Response: No, Article 13 of the AfCFTA Agreement- allows for countries which have progressed in their regional integrations to proceed, also the layers of the AfCFTA as not as deep as those in the EAC. Also, the AfCFTA considers regional blocs and EAC usually speaks as one on AfCFTA matters. - Therefore, they complement each other. Read AfCFTA Agreement on the regional blocs’ participation.

Read: AfCFTA Protocol on Dispute Settlement--> Disputes between state parties (inter governmental disputes)- only states have standing.

The Legal Framework for the Protection of Human and Peoples’ Rights in Africa by Professor Frans Viljoen ( Centre for Human Rights, University of Pretoria )

African Commission on Human and Peoples' Rights

The commission plays a quasi-judicial function (often politically moved binding nature of opinions decisions)?

·???????? Diplomatic/political

·???????? Quasi-judicial (judicial-like recommendatory—advisory opinion)

·???????? Adjudicatory-like (judicial, binding decisions)

Case: Media Rights Agenda v Nigeria (during the era of dictatorship of Nigeria under Sani Abacha—on Article 9 (2) of the Charter.? -->the government relied on the claw-back clause to justify the decree forcing media to register and pay fees with an additional condition to have military personnel as a member.

The Commission in determining the matter reasoned the matter using the proportionality test to challenge the decree on the implementation of the claw-back clause. It was found that Nigeria was not able to justify the limitation implementation- with regard to Article 27 of the Charter under the Duties Chapter II

Role of Commission in advancing rights—through interpretation

Case: SERAC and Another v Nigeria

On the right to housing and food (not in the Charter as rights)- non-justiciable rights --> the Commission regarded them as rights under the Implied rights theory- deriving them from existent rights. Could have also used other rights such as the right to property and the right to health as justiciable rights- through a broader interpretation of the rights instead of implying new rights.

Referral of communications to court (African Court) 2010 Rules of Procedure

Read:? Rule 118 on compliance to recommendations; request for provisional measures; serious of massive violations of Human Rights

Instances where Commission did not refer matters to the court

Read: Endorois v Kenya case --> there was a problem to establish non-compliance

Additionally, the Commission feels a reluctance to have an appellate body--Also, cannot make referrals on non-state parties to the Protocol on the court e.g., Sudan Zimbabwe, Eswatini, Lesotho etc.

Inter-state communications

--> Under the Charter state parties can bring matters against states (also through committee and court)—compulsory/ automatic standing; through two routes mediation/ conciliation – direct resolution

Case: DRC v Burundi, Rwanda and Uganda --> exempted the exhaustion of local remedies (only inter-state case determined by the Commission --> the decision did not mention the pecuniary reparations.

The case went parallel with the Case before the International Court of Justice (ICJ) --> Armed Activities case (DRC v Uganda)- the ICJ judgement mentioned specific reparations amount to be paid in instalments

Developments: Inter-state case to the court -->DRC v Rwanda, in 20th August 2023 --> DRC’s request for expediting the case in 7th March 2024 has been dismissed since the Court has no such rules, it is however considering the case on a priority basis.

Qn: Why are there few inter-state cases within the established forums e.g. Commission

????????? Culture of non-intervention

????????? Existence of other forums e.g., ICJ

????????? Lacklustre performance

????????? Practical concerns (lack of awareness on the fora)

????????? Individual communications being brought as alternative means

International Investment Law in Africa by Professor Ndanga Kamau

Seminar: The Protection of Investments: Selected Topic

Matters to note:

• Decolonialization led to development of international investment law --> newly independent treaties needed ‘capital’ or rather investments for economic prosperity.
• Some BITs terms are vague and unclear on parties’ obligations- content is determined by the tribunals overtime (usually nit to the satisfaction of the states in question)- consider the interpretation of the most favoured nation treatment
• On the 1973 United Nations General Assembly? (UNGA) Resolution on PSNR and Charter of Economic Rights and Duties of States (CERDS)– and attempt to develop a new world economic order by newly independent African and Asian states

Argument: Could Africa abandon their singular BIT frameworks for a model African BIT arrangement? What of the role of the AFCFTA Protocol on Investment.

Dispute Resolution Mechanisms

International Centre for Settlement of Investment Disputes (ICSID) (ICSID)- for investor-state disputes concerning member-states to the ICSID Convention

Other institutions --> ICC Arbitration , London Court of International Arbitration (LCIA) etc. – dealing with commercial disputes referred for determination through institutional arbitration.

Consider, there are defects in the texts of the BITs – (replication of existent terms from other countries’ BITs --> poor governance leads to poor choices in contracts (BITs) negotiation and decisions on the terms of contracts --> Consequences are not well thought of.

Read: Tanzania’s termination of a BIT with the Netherlands due to CSOs pressure (the BIT has a sunset clause of 25 years—froze the terms from ever changing since the Netherlands had a plan to renegotiate more sustainable-modern clauses -Tanzania was not interested.

Governments need to look into the most favourable way to change their disadvantaged position in contracts—through an orderly legal way to renegotiate (amend negotiations etc.)

STANCE: African States need to Understand legal regimes and constitutional arrangements and obligations- African states need to take advantage of opportunities available for negotiation of the agreements and their frame-works.

Most African states do not fully participate in the negotiation arrangements especially of the arrangements do not require designated representatives to travel abroad for the negotiations.

Consider: The rigidity of international law on International Agreements --> considering unconscionableness of terms or contracting with elements of illegality (corruption, lack of due process in law e.g. Parliament approval) --> such terms being binding under International Law regardless their unconscionability and illegality --> terms which would not stand under domestic laws for contracts procured in such a nature and with such unconscionability.

State Immunity

Principle under international law that has attained the status of customary international law—is it necessary for the immunity to be asserted in a BIT or could it automatically apply by virtue of customary international law -or could the principle under customary international law be referred to where there is a lacuna in the BITs?

Qn: The law on state immunity in investment --> stems from the idea that all states are equal and thus no state ought to be subjected to prosecution before another state to be subjected to the jurisdiction of that other state.

--> Exceptions to the immunity or instances where the State waives its immunity- consider waivers under BITs. This also extends to enforcement of decisions against states; ach state has legal provisions on enforcement of awards/judgments state assets waiver of this is usually made under agreements such as BITs.

--> Enforcing court has to determine whether the state assets on enforcement are sovereign/ commercial assets; sovereign assets cannot be subjected to enforcements e.g., embassy buildings- could this be used as defence by the State.

Qn: Relationship between the law of treaty (VCLT) and the law of state responsibility – consider the draft Articles (ARSIWA)-->These set out the secondary regulations governing investments.

Critiques of ISDS as a system

--> Lack of diversity in the fora, rules and practitioners- however African states prefer these institutions and prefer foreign arbitrators and counsels—also under ICSID African states do not appoint the 4 required designees (look at ICSID’s website).

--> Lack of transparency (Look at the Mauritius Convention on Transparency) – states usually request for the proceedings and awards not to be published

--> Time duration and costs

--> ISDS—investment contract —limiting the state’s ability to make changes in the law- stabilization clauses

--> Treaties obligations amongst parties are asymmetrical -there are some reforms by UNCITRAL: United Nations Commission on International Trade Law

The African Legal Instruments on Environment Protection and Climate by Professor Hajer Gueldich ( African Union Legal Counsel)

Timelines for Major Milestones

????????? Pre-colonial environmental protection systems --> from African protection mechanisms

????????? Colonial era -->foreign mechanisms and frameworks

????????? Post-Independence National Environmental Law Frameworks

????????? Role of Pan-African Institutions --> through the OAU and AU

? Bamako Convention, Algiers Convention 1968

Major AU Environmental Legal Instruments

The African Convention on Conservation of Nature and Natural Resources (1968)-->Read the Appendix on the stated/ protected flora and fauna --> this was before the international global HR instruments --> the Convention was revised in 2003

Critiques against the Algiers Convention as Revised --> the context of the Convention has not changed rather there was an addition on the agreed concepts under Stockholm, Rio and Paris Agreements --> however, these are just incorporated texts, there is no actual implementation.

Historical Background

--> London Conservation Convention of 1900—on conservation of natural resources (national parks etc. by colonialists- never entered into force and was on the basis on colonial sentiments not considering the African position.

--> London Convention on the Preservation of Nature in Africa-1933 (entry into force in 1936)—UK, France, Belgium, Portugal, Italy and Germany

--> On decolonialization movement and de-colonial organizations geared at decolonialization-

--> Arusha Call of 1961 on questions of African International Environmental Law

--> The first Pan-African organization was formed in 1963 – OAU

--> In 1964 African started to revise the London Convention for context to include the African sentiments/approach

-->The OAU gathered environmental law experts and UNESCO , FAO , IUCN World Conservation Union amongst others to draft the Algiers Convention of 1968

--> Maputo Convention of 2003- African Convention on the Conservation of Nature And Natural Resources

2. Banjul Charter (African Charter on Human and People’s Rights)--> Environmental rights provisions- Article 9 of the Charter.

Cases:

• Ogiek Case- Case brought by the Ogiek Community of Kenya- alleging violation of their rights under the African Charter (on their eviction from Mau forest--rights to property, culture, religion, and access to natural resources).
• Ogoniland case- SERAC v Nigeria

Read: The role of the Banjul Commission and the African Court on HP’s Rights’ role in protecting and protection of environmental rights --> through recommendation and judicial decisions; interpretation of the Banjul Charter.

3. African Charter on the Rights of the Child

--> Article 11(2) (g)--> Environmental education-->The charter symbolizes Africa’s commitment to safeguard the wellbeing of children in protecting the environment

4. African Charter on the Rights of Women in Africa- Maputo Protocol

Article 18 --> participation of women in environmental protection and indigenous knowledge amongst others;

What can be done: ?leveraging women’s leadership; promoting sustainable development’ strengthening implementation

Challenges: Gender inequality and violence and suppression of women in many areas of Africa.

5. Convention for the Establishment of the African Center for Fertilizer Development (1981> HQ of the centre is in Harare, Zimbabwe)

6. African Nuclear-Weapon-Free Zone Treaty (Pelindaba Treaty)

Read: Consider ICJ’s position/decision not being as fruitful in the protection of the environment concerning nuclear-related materials.

Consider that the Treaty and the framework mostly deals with the regulation of the use of nuclear energy rather than nuclear weapons, since African countries are not involved in the nuclear weapons race.

7. The Kigali Amendment to the Montreal Protocol (2016)

--> Meant to act as an African extension of the 1987 Montreal Protocol initially targeting ozone-depleting substances (ODSs).

Read: African Union Climate Change and Resilient Development Strategy and Plan (2022); Great Green Wall Initiative (combating desertification in the Sahel region by 2030) à find out other AU strategies and plans in climate governance.

8. Overview of AU’s participation before the International Tribunal for the Law of the Sea/Tribunal international du droit de la mer and International Court of Justice (ICJ)

Note: The AU is showing interest in partaking engaging with the ICJ and ITLOS. Additionally, the AU has been backing African states in cases before the ICJ e.g., Somalia vs Kenya- Maritime Dispute. Also consider the role of the AU in Diplomatic Advocacy.

Read: 2023 -The AU’s submission on the Law of the sea- climate changes --> with Comoros taking the lead- climate justice.

9. The AU Position on Climate Change

--> Consider the current African Union (AU) Leads Historic Engagement in ICJ Advisory Proceedings on Climate Change and the ITLOS advisory opinion spearheaded by Comoros.

ECOCIDE

The history of ECOCIDE as an international --> History stems from 1954, 1972, In they specifically began to implement the idea as an international crime, however some states used their veto to oppose to the inclusion of ECOCIDE as a crime. The agreed international crimes were; genocide; crime of aggression; crimes of war; and crimes against humanity.

--> Later inclusion of ECOCIDE under the Rome Statute, therefore, it can be considered as a crime during war times but it is not a crime during peace time.

Ravi Bhookhun Aidan Tse-Stuart Judite Abdul Zandile Lungelo Mngadi

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