Page: International Law
The areas of International Law, International Trade and Development have been neglected in African Law Schools and this is having a negative impact on the ability of African Governments to conduct diplomatic relations and negotiate complicated Treaty documents in International Relations. We will post cases and other texts on this site with the aim of making such materials easily accessible to students of international law and other persons engaged in the conduct of international relations.
FOREIGN SOVEREIGN IMMUNITY
ICJ and ICC
INTERNATIONAL COURT OF JUSTICE
- Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria
The ICJ decision in the land and maritime boundary case between Cameroon and Nigeria is significant in many respects but mostly because it settled a long standing land dispute between two African countries that originated from the artificial boundaries drawn by the colonial powers in the quest for the partition of Africa. The decision involved the interpretation of colonial treaties imposed on the peoples in the region between Germany, France and Britain and subsequently the Treaty of Versailles which ended the First World War resulting in the transfer of German territories to France and Britain under the League of Nations Trusteeship which was later replaced by the UN Trusteeship at the end of the Second World War. However, the Maritime boundaries post date the independence of both countries and were subject to legal instruments concluded by both countries. A summary of the ICJ judgment is posted here as well as the full judgment.
Summary of ICJ of Land and Maritime Boundary between Cameroon and Nigeria.
ICJ of Land and Maritime Boundary between Cameroon and Nigeria
- ICJ Advisory Opinion Requested by the United Nations General Assembly on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
In a stunning endorsement of the right to self-determination by a majority of judges of ICJ and dissenting opinions from the third world that championed this right for decades, the ICJ decided that Kosovo’s declaration of independence did not violate International Law. This opinion was arrived at despite Security Council resolutions on Kosovo endorsing the sovereignty of Serbia over Kosovo which until now refuses to accept the declaration of independence as a violation of its sovereignty. The ICJ uncharacteristically found that the Security Council did not address its resolutions to the people of Kosovo but to States and the United Nations which was granted administrative rights over Kosovo. No matter that by declaring itself independent unilaterally the majority in Kosovo disregarded the rights of the minority Serbs in the territory which the UN was duty bound to safeguard and defied the UN mandate which at times connived to its fulfillment. It remains to see how the opinion will affect other breakaway regions such as Putland and Somaliland to mention just a few less volatile for no other reason that the central authority Somalia is moribund.
- Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
In a landmark decision, the International Court of Justice entertained a complaint by Congo against Uganda arising from the intervention by the Great Lakes States to aid Kabila the elder and salvage the people of Congo from the tight grip of Mobutu Sesseko and the carnage that ensued by Congolese militias. Uganda became the scapegoat of what was at the time a free for all when land and air forces from Rwanda, Zimbabwe, Angola and Uganda scrambled for influence over the fledgeling/fledgling Kabila Sr. regime. Kabila Jr. decided to institute a case against Uganda, after the SADC coalition of Zimbabwe and Angola assisted his father him to regain control of the capital Kinshasa and neighboring areas. The alleged atrocities levelled/leveled against the Ugandan forces still continue unabated despite the departure of both Rwanda and Uganda soldiers from Eastern Congo. It is hoped that President Kabila of Congo and President Museveni of Uganda can reopen dialogue to try and to settle this dispute in the African tradition of reconciliation and brotherhood. Uganda’s intervention saved many lives, albeit admittedly, some bad soldiers in the Ugandan Army misbehaved and took advantage of the situation to enrich themselves. There was a war being fought by many sides in Eastern Congo no doubt. The and the Ugandan tax payer should not be penalised/penalized to pay billions of dollars for the misadventures of a few Ugandan soldiers, but also many other players in the Congo war zone that included many other nations and local Congolese militias, when the overall intention of Uganda was to liberate the Congo from tyranny and civil strife.
- The African Court of Justice and Human Rights is a result of the the merger of the African Court of Justice of the African Union, established under the Constitutive Act of the African Union and the separate court established by the Protocol to the African Charter on Human and Peoples’ Rights. The Protocol on the Statute of the African Court of Justice and Human Rights provides that the African Court shall consist of two Sections with separate judges, namely a General Affairs Section and a Human Rights Section each composed of eight judges. The General Section has jurisdiction over all cases over which the African Court of Justice of the African Union had competence, except those “concerning human and/or peoples’ rights which are reserved for the Human Rights Section. The first case decided by the African Court of Human and Peoples’ Rights is profiled in the Section below.
Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights
Protocol on the Statute of the African Court of Justice and Human Rights
- We include here the first Judgment of the African Court of Human and People’s Rights which though decided on a preliminary point of jurisdiction is still significant. The Court declined to assume jurisdiction over a claim by an individual against the State of Senegal challenging that country’s decision to amend its Constitution so that it can, retroactively, try the former President of Chad, Hissein Habre for crimes against humanity, war crimes and torture of his own citizens. The Court’s recusal was based on the fact that Senegal had not at the time of ratification of the Additional Protocol the Establishment of an African Court of Human and People;s Rights filed a declaration under its Article 34(6) allowing the Court to hear human rights petitions initiated by individuals. The Majority correctly in our view decided to treat the question as meriting a decision by the Court instead of rejecting the claim summarily as a matter of procedure, as not satisfying the jurisdictional basis of the Court, as was advocated in the separate opinion of one of its Judges. Such questions deserve the attention of the Court and should not be left to Registrars, especially when the Court is only beginning to assert itself. The public has the right to know what cases are brought to the court, however flimsy, for simple fact that issues of human rights are intricate and only rise to the level of litigation after great deliberation and courage due to the consequences for litigants back home from their Governments which still exercise plenary powers over their peoples.
Editorial Note by David Bederman on ACJ First
Judgment: Michelot Yogogombaye vs. Republic of Senegal
Separate Opinion of Judge Fatsah Ouguergouz
- In a process parallel to that before the African Court, the Court of Justice of the Economic Community of States of West Africa (ECOWAS), was seised with an application by Hissein Habre against the State of Senegal for violation of his human rights and violation of fundamental principles of law. He alleged that by amending its Constitution to try him for alleged offenses that were not criminal offenses under the laws of Senegal at the time they were committed, Senegal was in breach of the non-retroactivity of criminal law enshrined, generally, in international legal instruments and, in particular, in Article 7.2 of the African Charter on Human and Peoples’ Rights. A Note analyzing the ECOWAS judgment and the Judgment itself are attached.
Introductory Note on the ECOWA Court in Habre V. Senegal: by Jan Arno Hessbruegge
Judgment of the ECOWAS Court in Hissein Habre V. Republic of Senegal
- Bosnia and Rwanda
- Uganda and Kony (LRA)
- Transfer of Technology
“The Charter of the United Nations was signed by States Members at San Francisco on 26 June 1945 and came into force on 24 October 1945. A corner stone of the Charter is the collective determination to “maintain international peace and security’ to save “succeeding generations from the scourge of war”. The Charter attempts to obtain this objective by providing in Article 2 five pillars on which the United Nations stands:
- Sovereign equality of all its Members;
- Obligation to settle their international disputes by peaceful means;
- Commitment by Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations;
- Non-interference, even by the United Nations, “in matters which are essentially within the domestic jurisdiction of any state”; and
- To achieve international co-operation through, inter alia, promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
In order to ensure the commitment by Members to maintain international peace and security, the Charter provides for collective action to address threat to international peace and security through the Security Council, established under Chapters V, VI and VII. Essentially, the Security Council is charged with the primary responsibility for the maintenance of International peace and security and its decisions are binding on Member States. The powers of the Security Council, include investigating disputes to determine whether they endanger the maintenance of international peace and security; making recommendations for settlement of disputes referred to it, including reference of the parties to the International Court of Justice in the case of legal disputes – now this includes reference to the International Criminal Court under the Statute establishing that Court. The Security Council, under Chapter VII, is required to determine the existence of any threat to the peace, breach of the peace, or act of aggression and “shall make recommendations, or decide what measures shall be taken”, under the Charter, to maintain or restore international peace and security. Such action may include economic sanctions, severance of diplomatic relations, interruptions of communications as well as such punitive actions as blockade, by air, sea or land forces of Members of the United Nations.
The powers conferred on the Security Council under the Charter, for the maintenance of international peace and security, override the other requirements under the same Charter to respect the sovereign equality of states, non-use of force against the territorial integrity of such states and non-interference in the domestic affairs of states. There are, however, two exceptions to the plenary authority of the Security Council and these are contained in Articles 51 (self-defense) and Article 52 (regional collective action). Another possible exception arising from the commitments by Members under the Charter to respect human rights and fundamental freedoms, is the right of humanitarian intervention, not specifically prescribed under the Charter.
The right of self-defense which is enshrined in Article 51 of the Charter, is formulated in the following terms:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
The Charter preserves the right of states to form regional arrangements and agencies for dealing with “such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and principles of the United Nations”. This provision in paragraph 1 of Article 52 would suggest that the primary role of these arrangements and agencies are to promote pacific settlement of disputes, leaving enforcement action to the Security Council. Article 52 reads:
- Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.
- The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.
- The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
- This Article in no way impairs the application of Articles 34 and 35.”
The article attached here, entitled: “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, examines the scope of Article 52 and state practice and concludes that while the United Nations Charter preserves primacy of regional arrangements or agencies over pacific settlement of dispute for maintenance of international peace and security consistent with the Principles and Purposes of the United Nations, in the recent decades, however, regional organizations, rather than the UN Security Council, have also taken a first-instance role in peacekeeping involving the use of force, a development not foreseen under the Charter.
Comments on this discussion of an important aspect of International Law are cordially invited and will be reported here for the benefit of users. Please address your comments to: firstname.lastname@example.org.”
- Constitutive Act of the African UnionWe begin in this database by producing the text of the Constitutive Act of the African Union adopted at Lusaka, Zambia 2001. The Act is unique not only for its brevity but also for the extraordinary provisions incorporated in it for an African blue print. The Act espouses democratic governance and sanctions military takeovers with sanctions for defiant States. It provides for collective action to prevent humanitarian catastrophes such as occurred in Sierra Leone and Rwanda, and other acts of genocide. The Union will, however, be judged on its success to incorporate the ambitious program of the African Economic Community Treaty which called for progressive eradication of trade barriers and eventual economic integration of Africa. Left without institutions, the AEC Treaty still remains a mere set of aspirations, dependent on the success of the regional economic unions, which it supports. It thus remains to be seen if the African Union institutions will act to make the AEC Treaty a reality. Please see AU Constitutive Act and African Economic Community.
- The Banjul CharterThe database also includes the African Charter on Human and Peoples’ Rights, popularly referred to as the ‘Banjul Charter’, the capital city of The Gambia, where the Charter was drafted, or just ‘The African Charter’. The African Charter is unique among the other regional human rights instruments, such as the Latin American Charter of Human Rights and the European Human Rights Charter, which take as their point of reference the rights of the individual person. The African Charter, while acknowledging the rights of the individual, identifies and deposits as universal norms, not only the rights of the individual but also the duties of such individual to his/her family, community, country and the international community. Thus the individual has a duty to respect and care his/her parents and to serve the interests of hi/her country. The African Charter then goes farther to recognize the rights of groups, which in itself is an innovation, especially, as regards such groups national as liberation movements, in their struggle to attain the right to self-determination, another right not universally acknowledged. The Charter also proclaims additional rights such as the right to development and states that civil and political rights cannot be dissociated from economic, social and cultural rights. There is currently moves to establish a Human Rights Court, which it is hoped will have the jurisdiction to interpret, develop and implement the rights postulated in the Charter, although given the aversion for adversarial dispute resolution mechanisms, Governments in Africa might not be as amenable to this form of human rights enforcement as the more conciliatory method established in the Charter, through investigations by the Human Rights Commission and diplomatic representations. Please refer to Banjul Charter.
- East African CommunityThe East African Economic Community, which brings together Tanzania, Kenya and Uganda is one of the oldest regional economic groupings in Africa. The current Treaty which was concluded on 30 November 1999 was a revival of the Treaty which had been concluded in 1967, setting up the East African Community but which was dissolved in 1977. Prior to independence, Tanzania, Kenya and Uganda, operated a common customs union under the East African High Commission, established in 1947, with subsequent revisions, until it was replaced by the East African Community. The three countries had common railways, harbours, an airline, and customs arrangements including a common currency and University Council. The push for sovereign independence led to gradual disbandment of these institutions until the total rupture of the carefully nurtured East African Common Market in 1977.The revival of the Community has given hope to possible closer economic ties and even a political union some day. There is also a movement to include other states in the Great Lakes region such as Rwanda and Burundi. A greater political union would be a solution to the civil strife which has plagued the region. The free exchange of goods and freedom of movement would spur economic development and eliminate petty differences among largely homogenous peoples.
The East African Community Treaty, as currently constituted, aims essentially at reducing trade barriers through tariff reductions for locally manufactured goods and establishing a common customs union for imported goods. The Treaty establishes an East African Court for resolution of disputes arising from implementation of the Treaty provisions. This court, however, is a far cry to the court of the same name which heard appeals from the superior courts of the three territories. The current court has no such jurisdiction.
It is hoped that the three countries will explore and develop those areas where there is common interest and gradually find common ground to unite the peoples of Eastern Africa in a political federation that can generate economic prosperity for the region. Please see East African Community Treaty.
- New River Nile AgreementThe signing of the Nile River Agreement (see attached newspaper article), by the riparian States, Uganda, Rwanda, Kenya and Ethiopia, marks a milestone in this international controversy between states using the waters of the Nile River that has occupied the best minds in resource management and regulation of international waterways. Please see The Nile River Agreements: New Vision and Nile River Agreement by Valerie Knobelsdorf.
In this database, we include the demarcation decision in the Ethiopia-Eritria boundary dispute which should be of interest to legal scholars and legal practitioners. Other decisions of interest will be posted from time to time.
- ICJ Judgment in the Congo and Uganda Case
- Summary of ICJ of Land and Maritime Boundary between Cameroon and Nigeria.
- ICJ of Land and Maritime Boundary between Cameroon and Nigeria
- ICJ Judgment in the Congo and Uganda Case
- Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights
- The Nile River Agreements: New Vision
International Criminal Law
Under Article 13 of the Rome Statute, the ICC has jurisdiction if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. 23
Certain Member States of the African Union have been vocal about how, when and why ICC has jurisdiction. This is reflected partly in the January 30, 2017 resolution adopted by the AU, calling for mass withdrawal from the ICC by its African Members, and the individual threats to withdraw from the ICC by such States as Uganda and Kenya as well as submission of actual notices of withdrawal from the Court by Burundi, South Africa and Gambia.24 Though actual withdrawal is not universally subscribed to by all African ICC member States or civil so- ciety, 14the chorus of discontent is widely expressed in Africa as a protest against what, on the face of it, appears to be ICC’s predilection for only investigating cases in the African continent. At the same time, some members of African civil society, including NGOs in South Africa and Kenya have spoken in support of the ICC. They have urged their countries to cooperate with the ICC and reaffirmed the need for the Court in Africa. However, as has been raised by others, including Obiora Chinedu Okafor and Uchechukwu Ngwaba “one can support the ICC and still argue that it should not be in a kind of geo-stationary orbit above only Africa.” Although the tensions between the Court and the African Union are complex, one reason that is often cited as a cause for the discord is whether Heads of State enjoy immunity from arrest on an ICC warrant. South Africa’s Executive branch decided to withdraw from the ICC mainly due to the conflicting interpretations of Article 98 of the ICC Statute, and the controversy that arose when it failed to arrest President Al-Bashir while he was in South Africa to attend an AU meeting in 2015. See: Engendered Discontent: The International Criminal Court in Africa. By Francis M. Ssekandi and Netsanet Tesfay (Article under “E”)