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The AU/ECOWAS Unilateral Humanitarian Intervention Legal Regimes and the UN Charter

Document Cited authorities 1 Cited in Related
Vincent
Published date01 October 2013
Date01 October 2013
DOI10.3366/ajicl.2013.0074
Pages489-519
AuthorJohn-Mark Iyi
<disp-quote> <p>International law makes sense only in the context of the lived history of the peoples of the Third World … The experience of colonialism and neo-colonialism has made Third World peoples acutely sensitive to power relations amongst states and to the ways in which any proposed international rule or institution will actually affect the distribution of power between states and people.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p>A. Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, 2(1) <italic>Chinese Journal of International Law</italic> (2003): 77–103, at 78.</p></fn></p> <p>Africa cannot count on the world outside to solve its crises. It is largely on its own. This is at least as true in ending human rights abuses as in ending conflicts.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref><fn id="fn2"><label>2</label><p>‘Rwanda: The Preventable Genocide, International Panel of Eminent Personalities Report on the Genocide in Rwanda’, July 2000, ch. 21, para. 12, available at <ext-link ext-link-type="uri" xlink:href="http://www.africa-union.org/official_documents/reports/Report_rwanda_genocide.pdf" xlink:type="simple">http://www.africa-union.org/official_documents/reports/Report_rwanda_genocide.pdf</ext-link> (accessed 25 July 2010) (hereinafter ‘IPEP Report’).</p></fn></p> </disp-quote> INTRODUCTION

The objective of this article is threefold: first, it outlines specific provisions of AU/ECOWAS instruments relating to humanitarian intervention in order to deconstruct their normative contents. Second, it considers the relationship between these provisions and relevant provisions of the UN Charter and outlines the arenas of apparent normative conflict or ambiguities. Third, it examines the justifications and possibility of normative compatibility between the regimes. Both the AU and ECOWAS instruments are examined simultaneously. The term ‘unilateral humanitarian intervention’ as used here means humanitarian interventions not authorised by the UNSC.

We argue here that there are three main arenas of normative clash between the ECOWAS/AU regimes and the UN Charter: first, the Charter prohibits the use of force except in self-defence under article 51 and enforcement action under chapter VII.3

For the view that this no longer represents the jus ad bellum on the use of force see generally A. C. Arend and R. J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm, Routledge (1993).

By providing for new legal grounds on which force could be used outside these two grounds, article 4(h) of the AU Act and article 10(d) of the ECOWAS MCPMRPS Protocol are in conflict with article 2(4) of the Charter. A second arena of normative ambiguity arises from the question of which agency, between the UN, AU and ECOWAS, has primary responsibility for the maintenance of peace and security in Africa (in the case of the AU), and West Africa (in the case of ECOWAS), in view of the following provisions: article 24 of the UN Charter, articles 16 and 17 of the AUPSC Protocol, and articles 22 and 25 of the ECOWAS MCPMRPS Protocol. The third arena of normative clash arises from the question of which agency between the AU-ECOWAS and the UN authorises the use of force in Africa in view of the following provisions: articles 16 and 17 of the AUPSC, and articles 10(c) and 25 of the ECOWAS MCPMRPS, all suggesting that the AU and ECOWAS do not require UNSC authorisation to use force in their regions, contrary to article 53(1) of the UN Charter that requires regional organisations to obtain UNSC authorisation for enforcement actions. This is then situated in the context of the supremacy clause in article 103 of the Charter, which prohibits UN Member States from entering into treaties whose obligations are inconsistent with their Charter obligations. Finally, the attempt at normative compatibility by scholars is considered in the context the global search for a framework for the implementation of the military intervention component of R2P and the utility of the African initiatives BACKGROUND TO THE AU/ECOWAS REGIONAL HUMANITARIAN INTERVENTION LEGAL REGIMES

The sudden end of the Cold War and the consequent neglect of Africa presented African leaders with a set of new challenges, the foremost being how to manage the increasing intra-state conflicts on the continent.4

Max Sesay, ‘Civil War and Collective Intervention in Liberia’, 23(67) Review of African Political Economy (1996): 35–52, at 50.

African leaders’ efforts to deal with these challenges have required innovation and creativity, and, ironically, have resulted in novel norm-creation described as some of the most important post-Cold War developments in international law.5

H. J. Richardson III, G. McDougal, H. Caminos, G. Mikell and B. Esperanza Hernadez, ‘Effects of the New World Order on the Third World’, 87 American Society of International Law Proceedings (31 March–13 April 1993): 37, at 38.

 For example, as at the time of the intervention in Liberia, there was no extant legal instrument specifically dealing with such situations under ECOWAS law, but ECOWAS created ECOMOG in response, and the resulting legal quandary led to the unprecedented provisions in the 1993 ECOWAS Revised Treaty and the 1998 MCPMRPS Protocol.6

D. Wippman, ‘Enforcing the Peace: ECOWAS and the Liberian Civil War’, in L. F. Damrosch (ed.), Enforcing Restraints: Collective Intervention in Internal Conflicts, Council of Foreign Relations (1993), pp. 157–203, at p. 189. ECOWAS has adopted several protocols dealing with defence and security in the sub-region. It signed the Protocol on Non-Aggression on 22 April 1978 in Lagos, Nigeria, and the Protocol Relating to Mutual Assistance in Defence, in Freetown, Sierra Leone, on 29 May 1981, A/SP3/S/81. Apparently, given the lessons learnt from the intervention in Liberia, in 1992 ECOWAS commissioned a review of its founding treaty and the result was the ECOWAS Revised Treaty of 1993 and the subsequent peace and security protocols, which built on the lessons of Liberia and shifted the focus of the Organisation from regime security to a people-oriented policy of human security as a supra-national organisation. See M. T. Ladan, Introduction to ECOWAS Community Law and Practice: Integration, Migration, Human Rights, Access to Justice, Peace and Security, Ahmadu Bello University Press (2009), p. 1.

 Taking its cue from ECOWAS interventions in Liberia and Sierra Leone and its subsequent efforts to create a legal framework for future interventions, the defunct OAU sought to create an interventionist legal regime for the continent as a whole. Beginning with the Kampala Document, the OAU took a comprehensive assessment of the precarious peace and security condition of Africa, and proposed a new approach to the new challenges facing the Continent.7

See Draft Kampala Document for a Proposed Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA), Kampala, Uganda, 22 May 1991, available at http://www.au2002.gov.za/docs/key_oau/cssdca.htm (accessed 6 February 2013).

 This was followed by the adoption of the OAU Mechanism for Conflict Prevention, Management and Resolution in 1993, which built on the Kampala Document. Against the backdrop of the numerous challenges faced by Africa, particularly in the area of peace and security, and the debilitating impact they were having on socio-economic development in the context of the major changes taking place in the world, the OAU set out the framework that would later underpin the major transition from the OAU principle of non-interference to the future AU's doctrine of non-indifference.8

See Declaration of the Assembly of Heads of State and Government on the Establishment of a Mechanism for Conflict Prevention, Management and Resolution (1993) AHG/Decl. 3/(XXIX) adopted by the 29th Session of the Assembly of Heads of State and Government at Cairo, Egypt, from 28–30 June 1993, available at http://www.africa-unioin.org/official_documents/Heads%20%of%20State%20Summit/hog/3HofGAssembly1993.pdf (accessed 7 February 2013).

 From 1994, the OAU started rethinking its position on non-intervention in internal affairs but it was ECOWAS that set the agenda for an interventionist legal regime on the continent

This paradigm shift should be understood in its historical context. At inception in 1963, the cardinal objective of the OAU was the decolonisation of Africa.9

See Article 2(d) of the Charter of the Organization of African Unity adopted at Addis Ababa on 25 May 1963 (479, UNTS 39), which came into force on 13 September 1963. To this end it sought to promote the consolidation of independence already won and solidarity with those still under the yoke of colonial domination.

The OAU mobilised for this objective using the platform of the UN and employing the instrumentality of international law.10

For example, the OAU was at the vanguard of pushing for the UN Declaration on the Granting of Independence to Colonial Countries and Peoples General Assembly Resolution 1514 (XV) of 14 December 1960; the International Convention on the Suppression and Punishment of the Crime of Apartheid, General Assembly Resolution 3068 (XXVIII) of 30 November 1973 which entered into force on 18 July 1976.

 It was important at that stage to guard the newly won independence, hence the principle of sovereignty and non-interference was viewed as central to the OAU's objectives and was enshrined in article 3(2)&(3) of its Charter.11

Which provides ‘The Member States in pursuit of the purposes stated in article II, solemnly affirm and declare their adherence to the following principles: (1) the sovereign equality of all Member States; (2) non-interference in the internal affairs of states; (3) respect for the sovereignty and territorial integrity of each state and its inalienable right to independent existence.’

 The emphasis was on consolidation of sovereignty, promotion of unity and solidarity in Africa; however, the OAU was sometimes confronted with a contradiction in its avowed principles of sovereignty, domestic jurisdiction and non-interference on the one hand, and its condemnation of the racist domestic policies of Apartheid South Africa, for example, on the other.12

C. E. Welch, Jr., ‘The...

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