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The Legal Regime of Compliance with Regional Norms in Africa: Reframing the Paradigms of Engagement

Document Cited in Related
Vincent
DOI10.3366/ajicl.2019.0283
Date01 August 2019
Pages446-465
Published date01 August 2019
INTRODUCTION

The setting up of transnational governance structures remains one of the key components of political development in postcolonial Africa. The design of these structures has also pushed to the fore the imperative of strengthening their competences to address many of Africa's developmental challenges. At both the continental and sub-regional levels, a raft of legal instruments exists to stress the central role of normative institutions in fostering such agenda. At the heart of the development of transnational structures is the issue of compliance, an act that has been described as a ‘normal organisational presumption’.1 The relationship between member states and transnational norms has thus over the years occupied a central position in the discourse of international law and international relations. The presumption that ‘almost all nations observe almost all the principles of international law and almost all their obligations at the same time’2 has not always proved positive. The reality of recurrent non-compliant behaviour has ensured the broadening of the consideration of why states comply or fail to comply, the role of non-state actors, the effectiveness of sanctions for non-compliance, and the need for designing a multifaceted ‘toolbox’ for managing the politics of adherence with transnational norms.3

In the African context, the high incidence of non-compliance with regional norms remains a major issue.4 The routine disregard of organisational norms and the pervasive delay in attaining key integration targets and goals have pushed to the fore the need to pay attention to the specific factors undercutting commitment. The peculiarity of the multilevel governance structure of African integration suggests the importance of devising suitable measures for ensuring compliance. In this regard, the compliance milieu in Africa is defined by national, sub-regional and continental structures that in theory should be collaborative but in most cases are competitive and working at cross purposes. The lack of clear and workable harmonisation frameworks at the sub-regional and continental levels is, therefore, a major impediment.5 Underlining this lack of coordinative engagement are other factors such as the non-conferral of requisite authority to regional institutions, little or no technical capacity at national and/or regional institutions, vagueness of treaty language on enforceability and the lack of political will to comply.6 These obstacles thus require a concerted approach that re-evaluates the modus of interface between stakeholders and the normative principles governing the African integration process. In other words, the terms of engagements have to be reframed in order not only to take into account the peculiarities of the African integration process but also make compliance less complicated.

In addressing the foregoing, this article starts with a discussion on the nature of adherence with transitional norms in Africa by looking at the theoretical context and challenges obfuscating effective compliance. It then proceeds to examine the specific measures that should guide the reframing of the operational paradigm of compliance in Africa. It ends with a brief conclusion.

 THE NATURE OF COMPLIANCE WITH REGIONAL NORMS IN AFRICA Compliance Theories

There are a number of theories underpinning compliance with international law. For the purpose of this article, only three of such theories will be briefly discussed. These are the rational choice, the managerial and the legitimacy theories.

The rational choice theory is based on the assumption that self-interest is often at the core of non-compliant behaviour.7 To remedy this, the theory offers two strategies: the deviant-centred strategy and the complier-centred strategy.8 The deviant-centred strategy proposes that, if self-interest is the primary reason for non-compliance, then institutional design should aim to put in place measures that increase the motivation for compliance.9 Crafting such a motivation will, however, vary, depending on the interests of member states. Because of its custom-built allowance for motivation, this theory prescribes coercive measures of enforcement for any deviation from laid down principles.10 The complier-centred strategy on the other hand eliminates the prospect of self-interest and motivations by assuming that an association of like-minded entities will ensure compliance.11 To guarantee this, the complier-centred strategy prescribes that members must go through some sort of screening or vetting process.12 An example is the strict membership criteria of the European Union (EU).13

The managerial theory rejects the claim that non-compliance is a result of the calculated interests of member states.14 According to this theory, the question of interest is superfluous since concerns of member states are usually dealt with during negotiations preceding the enactment of treaties.15 Therefore, the failure to adhere to treaty regulations stems from factors ranging from the ambiguity of treaty language, lack of financial or administrative capacity for implementation, and the absence of ‘a period of transition’ between the adoption of the treaty and the expected time of compliance.16 To address these, this theory de-emphasises formal enforcement measures by advocating an interactive approach which accentuates cooperation between organisations and states and states inter se.17 In specific terms, Chayes and Chayes argue that managerial compliance is best achieved through the following measures: transparency, dispute settlement, capacity building and persuasion.

Transparency is described as:

The availability and accessibility of knowledge and information about (1) the meaning of norms, rules, and procedures established by the treaty and practice of the regime, and (2) the policies and activities of parties to the treaty and of the regime as to matters relevant to treaty compliance and regime efficacy.

In order to ensure effective transparency, it is recommended that self-reporting on compliance measures and data collection by member states should be enhanced. With regard to data collection, it is suggested that civil society should be placed at the core of verifying the authenticity of such data.18 In terms of dispute settlement, it is noted that a far less contentious adjudicatory mechanism such as a plenary body, the secretariat or a designated body of the organisation will be more effective than formal judicial organs in preventing potentially non-compliant behaviour.19 With regard to capacity building, it is argued that the lack of technical and bureaucratic capabilities and financial resources is considered one key reason behind non-compliance. It is thus suggested that treaties should stipulate the provision of technical assistance for countries to comply.20 Persuasion in this context refers to the involvement of stakeholders such as member states, regional institutions and civil society in influencing the errant state to comply.21 This process places more emphasis on negotiation rather than on punishment

The third is the legitimacy theory. Legitimacy, according to Franck, is ‘the quality of a rule which derives from a perception on the part of those to whom it is addressed that it has come into being in accordance with right process’.22 The quest for legitimacy of international law rules is predicated on the perceived disregard and violation of its rules and regulations.23 This theory holds that the violation of international rules is as much an issue of legitimacy deficiency (of rules and rule-making institutions) as it is the lack of an instrument of enforcement.24 Thus the focus should be on how to enhance the legitimacy of international law rules as an essential means of ensuring voluntary or non-coercive compliant behaviour from member states.25 In order to achieve this, Franck identifies the core factors necessary for guaranteeing the legitimacy of rules as determinacy,26 symbolic validation,27 coherence28 and adherence.29

 Features of the Legal Regime of Compliance in Africa

The landscape of compliance in Africa is defined by a number of continental and sub-regional frameworks. This part of the article highlights some of the broad features that govern the procedure of compliance. However, before this discussion, it is important to emphasise that these features exist within the context of the absence of a clearly articulated legal framework to synergise the operations of the African Union and the regional economic communities (RECs). The AU Constitutive Act mandates the AU to harmonise the structures and policies of the RECs.30 In pursuance of this principle, a Protocol on the Relations between the AU and RECs was drafted in 2007, to replace the 1998 protocol that was adopted under the aegis of the defunct Organisation of African Unity (OAU).31 The 2007 Protocol is, however, yet to come into force.32 The Protocol is broadly drafted with little emphasis placed on specificities and thresholds of coordination.

In Article 5(e) of the Protocol, reference is made to the alignment of policies of the AU and RECs, without providing detailed measures of achieving this. The omission of clearly articulated guidelines raises the questions of the sequencing of action, the delimitation of competences and the hierarchy of normative prescriptions between the AU and RECs. Article 21(1) provides that the AU will open a liaison office in the headquarters of each REC; however, there are no specific...

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