CHALLENGES FACING AFRICAN UNION'S NEW REGIONALISM

CHALLENGES FACING AFRICAN UNION IN THE NEW
REGIONALISM AND INTERNATIONAL LAW-

UNANSWERED QUESTIONS
Dr. Peter Onyango Onyoyo - School of Law, University of Nairobi (expert in international
law and foreign policy)
ABSTRACT: In this research the authors seek to critically evaluate the practice of
regionalism within the meaning of the United Nations Charter and the reactions from the
African Union. It appears that there are some unanswered questions that keep on re-shaping
the international order and legal framework. The authors admit that African states are
putting renewed effort to fulfil their promise to render Africa a peaceful region in consistence
with the spirit and letter of the Charter. However, it is also imminent that such desire to work
within the UN system brings some resistance from State members. This investigation is
revealing some of the key challenges determining new regionalism and African position in
the post hegemonic era and neoliberalism.
Keywords: Regionalism, regional integration, development integration, cooperation,
resistance, globalization, predicaments, unanswered questions, AU region.
I. ACRONYMS
ASEAN ASSOCIATION OF SOUTH EAST ASIAN NATIONS
AU AFRICAN UNION
COMESA COMMON MARKET OF EAST AND SOUTHERN AFRICA
EAC EAST AFRICAN COMMUNITY
ECOWAS ECONOMIC ORGANIZATION OF WEST AFRICAN STATES
EU EUROPEAN UNION
LAS LEAGUE OF ARAB STATES
MERCOSUR COMMON MARKET OF LATIN AMERICA
1
NAFTA NORTH AMERICAN FREE TARIFFS ASSOCIATION
NATO NORTH ATLANTIC TREATY ORGANIZATION
OAS ORGANIZATION OF AMERICAN STATES
OAU ORGANISATION FOR AFRICAN UNITY (REPLACED BY THE AU)
SAARC SOUTH ASIAN ASSOCIATION REGION COOPERATION
UN UNITED NATIONS
WTO WORLD TRADE ORGANIZATION (REPLACED GATT)
TABLE OF CONTENT
I. ACRONYMS ..................................................................................................................................... 1
II. INTRODUCTION ............................................................................................................................... 3
III. CHALLENGES OF THE GLOBAL TRADE AND REGIONALISM ......................................................... 6
IV. RESISTING THE ICC ...................................................................................................................... 8
Types of regionalism ........................................................................................................................... 9
V. UNANSWERED QUESTIONS IN THE AFRICAN UNION REGION ...................................................... 10
Imperialism and resistance ............................................................................................................... 10
Historical Slave Trade and Afro-Slavery: Human Rights Abuse ........................................................ 11
International Law Concept of alienation .......................................................................................... 12
Stagnated Development Process (economic problems): .................................................................. 13
Challenges of the International and Universal Jurisdiction: ............................................................. 15
Reactionary Approach rather than Engagement: ............................................................................. 16
Cultural Diversity of the Continent is still a Problem: ....................................................................... 16
VI. INTERNATIONAL COMMUNITY ................................................................................................. 16
After September 11th ....................................................................................................................... 17
Promotion and Enforcement of International Human Rights Law and Democratic Principles: ....... 19
Promoting Peace and International Security .................................................................................... 19
Pariah or rogue States in Africa: ....................................................................................................... 20
The role of Africa in Global Affairs: ................................................................................................... 21
VII. AFRICAN REGIONALISM VERSUS THE ICC ................................................................................. 21
2
Defending one of their own against the ICC justifies the AU anti-universalism regional agenda: ... 21
The New Regionalism and global constitutionalism: ........................................................................ 23
VIII. PREDICAMENTS ......................................................................................................................... 24
African Union Position and its legitimacy: ........................................................................................ 24
Common Policy Agenda .................................................................................................................... 26
Resentment from the Region and Questions ................................................................................... 27
International Debt and unanswered questions ................................................................................ 28
Regional harmony and border disputes: .......................................................................................... 30
African theory of Sovereignty: .......................................................................................................... 31
IX. REMARKS................................................................................................................................... 32
X. REFERENCES .................................................................................................................................. 33
II. INTRODUCTION
Chapter VIII of the United Nations Charter has provisions on regional arrangements stating
under Art. 52(1) that 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.
International peace and security sets the pace in the above provision for regionalism as means
to maintain international public order. If regional arrangement can promote international
peace and maintain security then the UN Security Council shall not interfere with such moves
and Art. 53(1) provides that the Council can as well use such arrangements to enforce action
under its authority1.
Regionalism encompasses efforts by different groups of nations to enhance their economic,

political, social or cultural interaction. It includes regional integration, markets integration
and development integration2. It is a regional arrangement by States to form organizations
within their own geo-political areas to deal with pertinent issues including peace and security.
1
Charter of the United Nations: Chapter VIII: Regional Arrangements
<http://www.un.org/en/documents/charter/chapter8.shtml> accessed 4 February 2015.
2
Article 7 <http://www.polis.sciencespobordeaux.fr/vol10ns/arti6.html> accessed 6 February 2015.
3
Regionalism is the expression of a common sense of identity and purpose combined with the
creation and implementation of institutions that express a particular identity and shape
collective action within a geographical region3.
Before the end of the Cold War, States would align themselves with ideologies whereas like-
minded Nation-States would form alliances to get more support during international armed
conflicts. In the post-Cold War era this is no longer the case as States seek more coordinated
regional arrangements to shape their collective action, usually in collaboration with the
United Nations Security Council as required by the Charter. In the neo liberal world there is
tendency (1980s) of neoliberal structural adjustments4of 1970s and deregulation policies
linked to diversification of global economy, world trade and politics5.
Regionalism is a practice by States of making treaties that bring them politically, socially,
economically, perhaps, culturally and legally together. African nations have viewed
regionalism as a viable strategy for uniting the continent both politically and economically6.
However, regionalism derives its legal meaning from the UN Charter7 and State practices.
Some international law scholars see antithesis in the sense of regionalism and
universalism. It is surrounded by the debate between centralism and local governance
that believes that local modes of problem solving are seen to be more efficient, and
based on a better understanding of the specific circumstances and better placed to
take account of local realities that may be cultural or otherwise8.
Neo-regionalism, understood in the above citation, tends to undermine the universalism of the
international law as studies clearly reveal9 while, at the same time, tends to cement it10. Such
contraposition admits that international law landscape is never stable. Arguably, international
3
Regionalism (international Relations), , Wikipedia, the free encyclopedia (2015)
<http://en.wikipedia.org/w/index.php?title=Regionalism_(international_relations)&oldid=642143596>
accessed 4 February 2015.
4
Adebayo O Olukoshi and Liisa Laakso, Challenges to the Nation-State in Africa (Nordiska Afrikainstitutet;
Institute of Development Studies, Univ of Helsinki; 1996) <http://www.diva-
portal.org/smash/record.jsf?pid=diva2%3A277324&dswid=-3276> accessed 6 February 2015.
5
Regionalization - Google Scholar
<http://scholar.google.com/scholar?hl=en&q=regionalization&btnG=&as_sdt=1%2C5&as_sdtp=> accessed 6
February 2015.
6
Article 7 (n 2).
7
Charter of the United Nations: Chapter VIII: Regional Arrangements (n 1).
8
Regionalism in International Law - Google Search
<https://www.google.com/?gws_rd=ssl#q=regionalism+in+international+law> accessed 4 February 2015.
9
Peter Malanczuk, Akehursts Modern Introduction to International Law (Routledge 2002).
10
Mario Tel, European Union and New Regionalism: Competing Regionalism and Global Governance in a Post-
Hegemonic Era (Ashgate Publishing, Ltd 2014).
4
relations chronologically keep on changing from one period to the other. The Period prior to
the First World War, the Period During the First World War, the Period of the League of
Nations, the period of the Second World War, the Period of the United Nations, the period of
the Cold War and after bipolar Cold War11. All these periods have remarkable scenarios in
the codification process and development of the international law. One of the best scenarios
is the practice of regionalism in the international law.
Regionalism is a custom recognized and promoted by the United Nations Charter as one of
the strategic means to achieve more expediency in harmonizing the world politics and
bringing sovereign States into consensus with each other12. At geo-political level regionalism
has been very effective in aligning international community members behind general
principles of international and ensuring adherence to international legal framework and some
operational understanding from sovereign States. It has involved inter alia, international
trades and diplomatic relations. But new regionalism emerges in 1989, when the Soviet
Union collapsed bringing down the Cold-War era13 and bi-polarization.
The European Union (EU) has set the pace for many other intra-regional arrangements in
terms of free market14. In attempt to adapt African regional arrangement to suit the European
model, the Organization for African Unity (OAU) phased out and it was replaced by the
Constitutive Act of 2001, in Sirte (Libya), which created the African Union (AU). It is the
Union as opposed to Unity that Africa sought to establish in the year 2001 in the new
regionalism concept. One of the aims of the Union is to participate in the codification and
development of the international law having its own commission to this effect.
The Union Assembly have decided to establish An African Institute for International Law in
Arusha (Doc. Assembly/AU/14(XVIII) Add.5) for the first time in the region. This is a
bright move towards developing African international law in the new regionalism.
Three theories emerge from regionalism process: regional cooperation of States, market
integration and development integration15. However, critiques of African regionalism argue
that such regionalization in Africa must take open market approach, that is, integrating the
African economy to the world which is changing. But this comes with some fears that Africa
11
Olukoshi and Laakso (n 4).
12
Charter of the United Nations: Chapter VIII: Regional Arrangements (n 1).
13
Tel (n 10).
14
Article 7 (n 2).
15
Ibid.
5
may lose its potential ability to develop to the already aggressive and competitive regional
arrangements and economies in the neo-liberal market integration. There is integration
without integrity in the African region as compared to the volatile world economic system.
There are risks as well as opportunities. Following the failure of the Uruguay Round of the
World Trade Organization in 198616 and the on-going onslaught from ASEAN, APAC,
Mercosur (regionalism in Latin America), NAFTA, WTO, and EU17, Africa is still
considered a weaker player in the global trade. The great fear is that its opportunities in terms
of natural resources may be overtaken by stronger regions in the intra-regional integration
and trends of global value change.
What this research is seeking to investigate and determine in this symposium paper is how
Africa is participating in the regionalization process and at the same time resisting globalism
that comes along with it. The position of some critical international lawyers and their views
in this regard shall be forthrightly supplemented with practices, political resistance in
consistency with the general principles of the international law and the United Nations.
III. CHALLENGES OF THE GLOBAL TRADE AND REGIONALISM

Following the Uruguay Round in 1986, that replaced GATT with WTO the world global
trade has entered the concept of regionalism through various trade zone agreements.
Multinational system has entered into the regionalisation process and international law. Third
Word and developing countries are seeking more access to the global market and regionalism
is the best option for weaker States in the trade system.
African Union is a weaker player among the mega trade blocs such as the EU, the NAFTA
and now the ASEAN and SAARC. This is a process that requires dialogue and exchange of
views in the multilateral trade system. There is increasing number of regional agreements and
the WTO is at the centre of the whole worrying trade system and relationship among states18.
AU region is also part of the WTO but a smaller partner of the World Economic Forum. The
new mechanism aims at integrating the weaker partners in the global trade system which is
concerned with global value change. Principles of reciprocity, equity, and solidarity are taken
16
WTO | Understanding the WTO - The Uruguay Round
<http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact5_e.htm> accessed 7 February 2015.
17
The GATT Uruguay Round and the World Trade Organization
<http://www.ces.ncsu.edu/depts/agecon/trade/seven.html> accessed 7 February 2015.
18
WTO | Understanding the WTO - The Uruguay Round (n 16).
6
into close consideration by the new mechanism put in place by the WTO after the failure of
GATT19.
Subsidies directed to developing countries are regulated by agreements within the WTO
taking into consideration of each regional situation. Through bilateral regional free trade
negotiations are also taken into consideration by the new mechanism on the global trade,
GDP and Population20.
There emerges fragmented trade system. Regional agreements tend to operate on their own
other than depending on the agreements of the WTO21. In this manner fragmentation of the
system brings about a new rule creating system. Such rule creating system is based on
individual region that tend to create their own regional rules and tariff policies that may not
necessarily conform to the WTO rules22.
There is also possibility of the WTO recognizing regional rules and pacts in the process of
intra-regional integration in the global system. Negotiations made at regional level shall be
taken into consideration at WTO to lay out a global system.
African Union region adopts the tendency of coming up with bilateral as well as regional
trade negotiations23 such as COMESA, ECOWAS, EAC24 and SADC. Such negotiations
have impact on Doha and multilateral negotiations at WTO level. In this manner AU is part
of the world GDP therefore an indispensable partner in the world trade relationship. Most of
the African sub-regions are very weak due to scarcity of resources making Africa a problem
in the whole world system. Weak states have weak regional organization creating threat to
security system.
Regional negotiations shall come with restrictions on none member partners making tariffs on
them. In this case AU region may develop rules independently from the WTO and get into
trade arrangement with other regions. They may join countries that do not comply with the
WTO rules making it dangerous for the future of the world trade system. It is one of the risks
19
The GATT Uruguay Round and the World Trade Organization (n 17).
20
21
22
23
EASTAFRICANTRADENEGOGIATIONSACT2008.PDF
<http://kenyalaw.org/kl/fileadmin/pdfdownloads/EALA_Legislation/EASTAFRICANTRADENEGOGIATIONSACT2
008.PDF> accessed 9 February 2015.
24
Ibid.
7
of neo regionalism and how AU can either benefit or lose in the new trend of the WTO and
international trade negotiations.
What is revealed today is that some states and regions fail to comply with the international
regulations and policies under the pretext of regionalism. Some regions are reluctant to apply
the uniform trade rules. Multilateral trading system is faced with challenges incurred by
regionalism. In the regional trade integration Africa is the most challenged region as it seems
not to apply best practices, standards, and compliance to the Uruguay Round agreement.
General Agreement on Tariffs and Trade (GATT) failed to fulfil the trade needs of the world
economy however its successor WTO25 is neither at ease with regional based agreements.
African region requires more capacity and transparency in order to function as an active
partner in the new world trade system and regionalism.
IV. RESISTING THE ICC

It is from the recent orchestration of some leaders from the African Union (AU) making
declaration against the Rome Statute that created the International Criminal Court (ICC)26,
and resentment towards universalism (international law), that underlie this intellectual
discussion.
Rome Statute is not opposed to any regional arrangement in the spirit of the UN Charter. The
ICC is meant to be the court of last resort while it seeks also to enter into close cooperation
with the signatory States through complementarity principle. Justice Cassese admits the
admissibility of the domestic criminal law and practices in the international criminal law27.
African Union is becoming an experiment for political cooperation among the African
sovereign States28 and international organizations such as the ICC and the entire UN system.
The AU and its sovereign members suspect that the ICC is influenced by its European
members who are also its main funders29 though the region has no tangible proof in regard.
25
26
Eric Pichon, The African Union and the International Criminal Court: What Is at Stake?
<http://epthinktank.eu/2014/06/12/au-icc/> accessed 7 February 2015.
27
Antonio Cassese, Casseses International Criminal Law (Oxford University Press 2013).
28
Tel (n 10).
29
Pichon (n 26).
8
Types of regionalism
There are various kinds of regionalism but three waves are prominent: first an aggressive
nationalism and imperial regionalism; second an economic regionalism and third post-
hegemonic regionalism. Each of the three waves tend to determine international order. But in
all of them it is a practice in which States form alliances based mostly on the regional
proximity and interests, such as the European Union, American Free Tariff Trade Area
(AFTA), Mercosul-Mercosur (Common market of the South); North America Free Trade
Agreement (NAFTA); Association of South-East Asian Nations (ASEAN)30 South Asia
Association for Regional Cooperation (SAARC), League of Arab States (LAS); Organization
of American States (OAS); North Atlantic Treaty Organisation (NATO); African Union (AU)
and many others31.
It is a fact that regionalism in so far as customary international practice is becoming a

permanent and prominent reality in the international system 32 and a shift of paradigm in the
international order. Each region is adapting itself to other models based on interests. For
instance, African regionalism is using European Union model to set up a strong and effective
regionalism that would suit its vision in the 21st Century.
However regionalism does not come without its own sui generi socio-economic, political,
cultural and legal problems. The new regionalism emerging in the pluralistic international
order following the end of the Cold War (1947-1989) is characterised with various ideologies
and failure to have centralized powers as was the case. African states that used to align
themselves with former colonial powers are seeking new partnerships within a complex
power axis that pushes them towards the centre (United Nations System) with the United
States of America in control. In the post-hegemonic regionalism period, there is also evidence
of resistance as regions tend to define their centres of power in the international geo-politics.
US is still maintaining global military primacy but she is not willing or able to influence the
global ideas and ideologies. At the same time she is still holding the world economy through
the use of US Dollars as the world currency. This is a reality that faces some serious
opposability from other regions especially the Peoples Republic of China.
Some scholars instigate the resistance from African State members (AU) as an act of reaction
towards the historical colonization, frustrations, and threats coming from the Western States
30
Richard Stubbs, ASEAN Plus Three: Emerging East Asian Regionalism? (2002) 42 Asian Survey 440.
31
Tel (n 10).
32
Ibid.
9
such as the United States of America and Europe in the post-hegemonic era. Some scholars
go beyond this simplistic way of analysing the challenges 33 facing regionalism in Africa and
seeks to discuss some unanswered questions underlying the opposability.
This article is more interested in the core issues that render members of the African Union
persistent objectors of some rules and customs of the international law in the 21st Century. By
investigating some critical issues, this research shall as well overtly make it clear, the global
response making academic predictions of the future of African regionalism in comparison to
the codification progress and development of the international law within the auspices of the
United Nations.
V. UNANSWERED QUESTIONS IN THE AFRICAN UNION

REGION
Historical injustices done by aggressive nationalism and European imperialism34: Africa was
used and dumped. Such sentiment creates some emotive reactions from some members of the
African Union in the post-hegemonic era.
Imperialism and resistance

Perpetuated decolonization attitude is increasingly persistent in the African region even after
the independence of African states from European Imperialism35. Onwuka and Sesay have
discussed nicely the future of regionalism in Africa explaining the past, present and future 36.
They have discussed trials and failures that affect the continent37.
African continent has unanswered questions some of which have been taken to court. For
instance, some veterans of the Mau-Mau warfare against the British successfully filed the
case for compensation in London and won in 2011.
In April 2011, a landmark hearing before the High Court in London found that the
British government had a case to answer concerning abuse and torture allegedly
carried out by British officials in Kenya during the Mau Mau counter-insurgency38.
33
34
Ibid.
35
Ibid.
36
RI (comp) Onwuka and A (comp) Sesay, The Future of Regionalism in Africa. 285 pp.
37
Ibid.
38
David M Anderson, Mau Mau in the High Court and the Lost British Empire Archives: Colonial Conspiracy
or Bureaucratic Bungle? (2011) 39 The Journal of Imperial and Commonwealth History 699.
10
The resistance of Ethiopians during the heights of colonization has demonstrated the African
opposability of European imperialism. Ethiopia under Emperor Menelik in 1896 humiliated
Italians at Adwa in Ethiopia in a serious battle. Such is a sign that African powers by then
had realised their sovereignty and resisted external occupation.
Equality of States in the International law39: The international legal system had become a
White-Man club of which Non-European States would join only with evidence that it was
civilised40. Growing inequality is reducing the capacity of governments and existing
organizations to manage their problems effectively41.
Historical Slave Trade and Afro-Slavery: Human Rights Abuse

The prohibition of the slave trade under the name of humanity in the 18 th/19th Century
marked an important episode in the development of international law. Selling of African
slaves to Europeans by Arabs has been seen, by and large, as the world worst violations of
human rights42. Even if slave trade was abolished and prohibited by international law
thereafter, the relationship between the Africans, Arabs and Europeans has scars and wounds
that require thorough reconciliation and reparation in order for the new regionalism to work.
The most wounded region in this inhuman slave trade has been the African region. Within the
international relations, the consequences of this criminal trade in human beings has not only
degraded the humanity and dignity of the Africans but also has caused them discrimination in
the new regionalism practice in the international law. Bitterness and discontent are the
aftermaths that African leaders tend to demonstrate in the international plathora.
African slave trade remains one of the unanswered questions within the international justice
system which agitates regionalism. General Acts of the Brussels Conference in 1890 did not
provide proper clue to how Africans should be compensated for the damage caused thereof.
The diplomatic conferences stopped the trade but the practice of slavery was maintained for
quite some time in the Western regions. Apartheid regime of South Africa by Dutch
Governments caused African nationalists more pain and anger situating need for truth,
reconciliation and justice.
39
Andrew Hurrell and Ngaire Woods, Inequality, Globalization, and World Politics (Oxford University Press
1999) <http://econpapers.repec.org/bookchap/oxpobooks/9780198295662.htm> accessed 3 February 2015.
40
Peter Malanczuk, Akehursts Modern Introduction to International Law (Routledge 2002).
41
Hurrell and Woods (n 39).
42
My Recommendations - AfricanLawLibrary.net
<http://www.africanlawlibrary.net/web/16346331/~/15430077/my-
recommendations?selectedDocId=africanlawlib:5732784> accessed 9 February 2015.
11
Historical wars of liberation in Africa are proofs that colonists committed serious
international crimes against the African population by violating self-determination principle
and human rights.
Colonization: Berlin West African Conference of 1884/5: Partition of Africa into European
colonies and extended foreign powers brought about the historical colonization of the
Continent by European Imperialists43.
International Law Concept of alienation

It is no longer the case that international law is handled as a European issue. It has become a
world issue and African States are part and parcel of the international law. However, the
concepts of the international law linked tightly to natural law and positive law theories are
still less accommodative to other legal families such as African legal concepts. The sentiment
from some African states opposing international legal system includes the fact that certain
concepts may not be compatible with the African wisdom such as prosecuting a sitting
President. It is still seen as an affront to the territorial integrity and sovereignty but also
demeaning to the human dignity and cultural rights of the African nations.
African customary law, also known as ancestry law, has always honoured the role of the elder
or rulers within the meaning of African law. The Panel of the Wise within the African Union
is an indication that African justice system approach is traditional. In this perspective,
imagining a set of law that would subject an African leader to criminal prosecution would be
an assault to African identity.
It is clear from records that the time the ICC indicted President Omar Al-Bashir44 of Sudan45,
President Muammar Gaddafi of Libya, and President Uhuru Kenyatta of Kenya 46, the
relationship between the African Union members and the Western powers started to
precipitate into cold-war47. Those who were indicted after existing power such as Charles
Taylor of Liberia and Laurent Gbagbo, who was the President of Ivory Coast from 2000 to
2011 when he was arrested, did not create resistance from the AU.
43
44
African Union and the ICC - Google Search
<https://www.google.com/?gws_rd=ssl#q=African+Union+and+the+ICC> accessed 7 February 2015.
45
African Union Declaration Against the ICC Not What It Seems - FPIF (Foreign Policy In Focus)
<http://fpif.org/african_union_declaration_against_the_icc_not_what_it_seems/> accessed 4 February 2015.
46
Pichon (n 26).
47
Mike Pflanz, African Leaders Vote to Give Themselves Immunity from War Crimes Prosecutions (2 July
2014) <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/10940047/African-leaders-vote-
to-give-themselves-immunity-from-war-crimes-prosecutions.html> accessed 5 February 2015.
12
African Union that replaced the defunct OAU in 2001, proves that certain general principles
of international law still need review with African inputs. The regional organization has a
feeling that it has not been involved in the entire development process of the international
law.
Most independent States were under alien rules during the formation of the international law
and there was no way their personal legal interests would create new impact48.
Stagnated Development Process (economic problems):

It is a reality that many African states are still living in poverty. At the 23rd Ordinary Session
that took place in Malabo, known as Malabo Declaration, poverty eradication has been given
priority by the African Union sitting in Guinea Equatorial. The position of the AU says that:
Member States to ensure that the overarching goal of the Common African Position, which is
to eradicate poverty in all its forms, is the key message in the intergovernmental negotiation
process on the post-2015 development agenda, and to be vigilant about what Africa is
negotiating49.
Decision on Post- 2015 Development Agenda makes it clear that the whole region is yet to
take action on development issues. African economy has been over reliant on foreign aid and
borrowing which the region continues to do so. This reality is one of the unanswered
questions that shall determine the African regionalism and participation of Africa in the
international order. Science and technology must be taken seriously if the region is to develop
its own sustainable economy. African Monetary Fund is one of the positions this meeting
took to ensure that there is a system in place.
However, Africa has had a long history of exploitation by the European Imperialists 50. The
African States are known for oil rich regions which the Western States need for their
economies. It is likely to be part of the reaction from the AU to develop its own markets and
make profit out of the natural resources within its territories. Many African States have been
faithful to the traditional rule of international law prohibiting expropriation of foreign owned
48
Malanczuk (n 9).
49
Malabo, 26-27 June 2014 - Decisions, Declarations and Resolution of the Assembly of the Union Twenty-
Third Ordinary Session | African Union <http://www.au.int/en/content/malabo-26-27-june-2014-decisions-
declarations-and-resolution-assembly-union-twenty-third-ord> accessed 4 February 2015.
50
13
property without compensation51. The acceptance of the traditional rule was also seen to be a
way of encouraging foreign investments to develop their economies.
Since 1973, the Third Word States have been under pressure of poverty and need for
development. UN became the best platform for the African states to make their claim in the
new international economic order52. The force on the African states to remain within the
international community is stronger than the need to walk out of it53. AU members still need
the support from the United Nations and Western States to develop their economies and
manage their operations as regional organization.
Feeling of resentment towards economic exploitation of industrialised states mainly in the

Western hemisphere may be real or imagined54. Such reactions are much weaker than
expected. There is no much possibility of changing international law without consensus and
in this case, some States just break it as in the case of the Rome Statute. States may refuse to
alter a treaty unless they are forced to do so55. Severally AU members have sought the
attention of the UN General Assembly but the Assembly is not a legislature in real sense. It
cannot amend or abrogate a treaty. The Republic of Kenya has even tempted to seek
resolution from the UN Security Council concerning her cases in the ICC but failed to get a
nod. The other alternative is to propose another multilateral treaty to weaken the Rome
Statute, that is African Criminal Court under what is referred to as African solution to
African problems.
Territorial Integrity and State Sovereignty: Independent African States have been threatened
by security issues. The insurgences and resurrections within the region emanating from
transnational terrorism such as Boko Haram, Al-Shabaab and Arab springs covering most of
the North African States such as Tunisia, Libya, and Egypt are creating more threats to the
state sovereignty and territorial integrity in the modern Africa. Since terrorism 56 is an
51
Malanczuk (n 9).
52
Ibid.
53
Marc Howard Ross, Urban Dynamics in Black Africa: An Interdisciplinary Approach by William John Manna
and Judith Lynne Hanna Chicago, Aldine-Atherton, 1971. Pp. x+390. $9.75.Popular Government in an African
Town: Kita, Mali by Nicholas S. Hopkins Chicago and London, University of Chicago Press, 1972. Pp. Xxi + 246.
4.30.Urban Challenge in East Africa Edited by John Hutton Nairobi, East African Publishing House, 1972. Pp.
285. E.A. Shs. 42.00. (1973) 11 The Journal of Modern African Studies 498.
54
Malanczuk (n 9).
55
Ibid.
56
A Anangwe, International Terrorism and East African Sub-Regionalism: Developing a Sub-Regional Tourism
Industry in the Face of War (2004) 7 African Journal of International Affairs
<http://www.ajol.info/index.php/ajia/article/view/57217> accessed 7 February 2015.
14
international reality that can only be dealt with by international law regime, single States
usually feel helpless when it comes to such experiences of massive insecurity57 and escalating
violence among and within regions58.
Mature economic activity is shrinking in the AU region. Despite some improvement in a

few countries, the bulk of African countries are either stagnating or moving backwards when
it comes to industrialization59.
Challenges of the International and Universal Jurisdiction:

The tendency of some State to get into internal affairs of other states is posing another major
problem in the international law. Arresting African nationals accused of perpetrating some
criminal offences in the European States has not been received well by some African states. It
is like, African states are treated as un-equals in the international community. However, when
Charles Taylor was arrested by Nigeria and sent to face justice in Sierra Leone, it did not
create any bad atmosphere within the AU. Ongwen was arrested in the Central African
Republic and sent to The Hague to face criminal justice and this action has not created any
resistance. However, arresting H.E. Mr Omar Hassan Ahmed El Bashir by African States has
been resisted by the same signatories to the Rome Statute despite several calls by the ICC to
urge States to do so60. In the decision of the AU Assembly/AU/Dec.221XII) in 2009 the AU
was opposed to the arrest warrant61. The Assembly argued that in view of the delicate nature
of the peace processes underway in the Sudan, approval of this application would seriously
undermine the on-going efforts aimed at facilitating the early resolution of the conflict in
Darfur. AU Member States shall not cooperatefor the arrest and surrender of President
Omar al Bashir of Sudan62.
Development of struggle for African justice is both promising and disturbing. But these
allegations still is subject to investigations, discussions and advanced research.
57
58
Adluri Subramanyam Raju (ed), Terrorism In South Asia: Views From India (Cavendish Square Publishing
2005).
59
Africa Development, Volume 39, N 1, 2014 / CODESRIA
<http://www.codesria.org/spip.php?article2131&lang=en> accessed 9 February 2015.
60
African Union and the ICC - Google Search (n 44).
61
Addis Ababa, 03 February 2009-Assembly of the African Union at the Twelifth Ordinary Session. | African
Union <http://au.int/en/content/addis-ababa-03-february-2009-assembly-african-union-twelifth-ordinary-
session> accessed 4 February 2015.
62
African Union Declaration Against the ICC Not What It Seems - FPIF (n 45).
15
The reality of the modern international law is more of global oriented than a mere club of
members as it used to be the case. It is more value oriented than interests. There is more
insistence on cooperation and mutual benefit63 than before. Jus cogens and international
public order are two new concepts that are emerging.
Reactionary Approach rather than Engagement:

AU members prefer emotive approach to their resistance to the Rome Statute other than
rational engagement. The Republic of Kenya has tried to demonstrate some use of de facto
political powers to compel the ICC64 to unconditionally surrender its cases, refer or defer
them using its regional muscles. However, the withdrawal of the case facing the President
was received as a victory not only by the Republic of Kenya but the entire region (AU). Some
African States switched to the use of their national and regional politics to defy international
criminal justice system and Kenya has set up a precedent which similar states may follow to
pursue their interests to shield them from the international justice system.
Cultural Diversity of the Continent is still a Problem:

Africa is vast and complex in terms of cultures, politics and economy65 bringing together 54
sovereign states. It has a reality that is not homogenous which always deprives it of the
benefit of common stand in the international law and politics. Such diversities and
complexities in the history and existence of States render it difficult for the vast continent to
field strong regional agenda66 within the dynamic new world order.
VI. INTERNATIONAL COMMUNITY

Developing a stronger International Criminal Justice System:
Change from traditional conception of the international law, as a nation-state67 affair, to the
recognition of individual as part and parcel of the subjects of international law has created a
gigantic transformation in the international legal order. For instance, the rules for the
protection of refugees upgrading the status of human beings in the international law. The
codification of human rights law in the international, regional and national level is a new
trend making international law stronger than it had been before. The advancement of
63
Malanczuk (n 9).
64
Pichon (n 26).
65
66
Ibid.
67
Ibid.
16
international humanitarian law from the 4 Geneva Conventions of 1949 and Additional
Protocols of 1977 are all new realities making the international law system more effective.
It is also correct to admit that despite the tendency to form a global governance there is
tendency to strengthen nation-state to an extent of making them look powerful and
independent from the globalised rules. African Union is one of the regions whose resistance
is widely felt within the international community followed by the League of Arab States
(LAS) and ASEAN68 Region. The resistance towards Western civilization is ever strong
despite the need to enforce democracy and rule of law mapped on the Euro-American
conceptions.
Arab spring characterized by the need to create an Islamic Caliphate and have States ruled
by Islamic law is a new reality that is rapidly emerging within the region. Crisis in the Middle
East and Arab Israeli war, the Palestinian Israeli war, to the internal crisis of Syria, Libya,
Yemen and Iraq reveal that anti-Western sentiment is building up within the international
community. The end of cold war that enabled the Western world to claim victory is more
than over. Islamic State organization is a new threat worrying the entire world with its
members claiming lives of many innocent people.
The Islamic militants fighting alongside terror groups prove that they can destabilize the
international order by creating mayhem without being linked to any State power. This is a
new war that shall see the international community forging for new coalitions and need to
empower State Sovereignty once again. The stability of every State and its functionality
within the international community is paramount within the United Nations. If strong and
powerful regionalism69 may be the solution to the emerging challenges then, the world will
support the stands of such organisations as African Union with no much resistance.
After September 11th

War on terror declared by President George W. Bush in 2001 after the 9/11 has marked
another critical episode in the development of the international law. Terrorists emerge from
various regions and the effort to destroy them is ever slim because of the cooperation against
trans-national crimes and terrorism70. Terrorists do not represent any State or government but
they operate within sovereign states whose governments appear to be weak and incapable of
68
Stubbs (n 30).
69
Ross (n 53).
70
Terrorism and Regionalism - Google Search
<https://www.google.com/?gws_rd=ssl#q=terrorism+and+regionalism> accessed 7 February 2015.
17
effectively handling security issues such as Somalia, Yemen, Iraq, Syria, among others. As
international crimes linked to terrorism71 is getting viral, cooperation may have double
functions. It may either encourage the spread of trans-national crimes and terrorism or put in
place security measures that may deal with the situation72.
The world opinion has been divided whether to support the undemocratic regime of Al-
Hassad or side with the rebels in Syria. The rebels also tend to incorporate the terrorists in the
fight creating more confusion on how to deal with security issues in the region. Such
lawlessness has spilled over into Iraq. The LAS region is affected and this may spill over to
AU region upheavals facing the rgion.
Fighting Impunity and Crimes connected to State Behaviour: The Rome Statute was created
to deal with international crimes, war crimes, crimes against humanity and crimes of
aggression73. The third edition of Cassese's International Criminal Law provides a clear
account of the main substantive and procedural aspects of international criminal law.
Adopting a combination of the classic common law and more theoretical approaches to the
subject, it discusses: the historical evolution of international criminal law; the legal
definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus
aggression, torture and terrorism; the forms and modes of criminal responsibility; and the
main issues74.
The mandate of the ICC is still significant in bringing criminal justice to the heartless world
inter alia the African region. However, in the customary international law, nation-states have
tendency to resist any law that would subject their sovereignty to criminal justice75. African
states use the regionalism and cooperation within the continent to resist international criminal
jurisdiction.
The international law has managed to tame international armed conflicts but is now faced
with the so called Non-International Armed Conflicts that have increased. The existing
international laws of war such as the International Humanitarian Law are still faced with need
to revise such laws and make necessary amendments through protocols in order to meet the
emerging needs.
71
Anangwe (n 56).
72
Terrorism and Regionalism - Google Search (n 70).
73
Cassese (n 27).
74
Ibid.
75
Pichon (n 26).
18
Promotion and Enforcement of International Human Rights Law and
Democratic Principles:
Fighting tyranny and non-democratic regimes; Environmental Law (global interests);
unfolding international reality is that each sovereign state and government must be fully
supported by others. The paradox engulfing the defunct nation-state ideology is that, what
would happen if wrong leaders get into power and use state sovereignty, privileges and
immunity to commit serious international crimes?. Adolf Hitler, with his Nazi government
in Germany, caused the world most serious act of genocide76, holocausts followed by others,
Balkans and Rwanda in 1994. The attempt to allow states to assume more powers above the
international law is therefore overruled by the progressive codification and development of
the international law. More emphasis on the value and worth of humanity is slowly taming
the act of impunity in various state behaviours.
Promoting Peace and International Security

Humanity principle in the international law has been entrenched as one of the sources of
international law. It became clear that the international system was capable of hunting down
and trying those accused of horrendous crimes no matter what their rank or influence77. Men
and women such as Justice Cassese will be remembered for their ample contribution to the
development of international criminal law.
Every State is obligated to respect humanity through human rights and humanitarian rules
according to the opinion of Justice Cassese during the United Nations International Criminal
Tribunal of Yugoslavia (1991). The human dimension of the international law has become a
undisputed reality. Justice Cassese makes it clear that the United Nations failed to tame some
of the world serious atrocities78. The need for democracy and the rule of law are both
principles that now AU members are seeking to enforce within their jurisdictions. If said and
done, the AU region may appear strong and within the requirements of international law but
if resisted then AU members may still find themselves in the limbo of the international law.
Encouraging More Participation of other Non-State Players in the International Law: The
period following the 1945 has seen International Organizations, Non-International
Organisations joining States and governments as personalities of the international law. It is in
76
77
Cassese (n 27).
78
Nulyarimma v Thompson (includes two corrigenda dated 2 September 1999) [1999] FCA 1192.
19
this perspective that the codification of the human rights law in domestic legal systems is
finding its leeway into liberal internationalism79.
Such decision to allow Non-State Actors in the international community, vis--vis, subjects
of the international law is a smart strategy to tame the State sovereignty while keeping it
effective. Eventually, civil society has been recognised within the UN system as a force of its
own. It creates checks and balances with State behaviour and makes acceptable reports on the
It became clear that the international system was capable of hunting down and trying those
accused of horrendous crimes no matter what their rank or influence.violation of international
law80.
Like many commentators on the subject, he laments at the failure of the United
Nations to react promptly and effectively, and to put a stop to massacres in many of
the worlds trouble spots. Naturally there are very strong political forces at work
here, coupled with the fact that States have religiously clung to the customary
international non-intervention principle, as specified also in art 2(7) of the UN
Charter. It is to the great credit of the human rights movement, principally
comprising NGOs, practitioners and academics committed to the enforcement of
fundamental rights and the prosecution of those who breach these rights in a serious
way, that States have come to accept the inevitability, as well as the legal and moral
force, of a system designed to bring perpetrators to justice81..
Pariah or rogue States in Africa:

States that fail to comply with their obligation in the international law, its provisions and the
customs of international law, fall into a category of pariah or rogue states. Such States may
suffer from sanctions (embargoes) backed by UN Security Council Resolutions such as Libya
during President Gaddafi and Zimbabwe during the rule of Robert Mugabe. The reality is
that, whichever State fails to comply and respect the international rules is likely to face the
wrath of law both at regional and international level. However, AU region does not have such
kind of rigidity in the application of the rule of law as is experienced in the EU jurisdiction.
79
Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future
of International Law (Social Science Research Network 2002) SSRN Scholarly Paper ID 333381
<http://papers.ssrn.com/abstract=333381> accessed 3 February 2015.
80
{Citation}
81
Freeland, Steven --- Antonio Cassese, International Criminal Law Oxford University Press Oxford 2003 (472
Pages) *2004+ AUJlHRights 25; (2004) 10(2) Australian Journal of Human Rights 25
<http://www.austlii.edu.au/au/journals/AJHR/2004/25.html> accessed 4 February 2015.
20
Rather AU behaves as if none of its members can be sanctioned regionally nor internationally
without collective resistance.
The international law is no longer deemed to be soft-law in terms of lacking teeth to bite as it
had been before. There is tendency to enforce jus cogens, rule of law and constitutionalism at
international and universal levels. Similar circumstance has faced Russia after attacking the
territorial integrity of Ukraine and EU and NATO members imposed economic sanctions.
Imposing economic embargo has been applied to Zimbabwe while the AU went ahead early
2015 to elect H.E. President Robert Mugabe its Chairman for one year, a decision that may
see the EU changing its stand on the imposed embargo.
The role of Africa in Global Affairs:

Since the development of international law in the 20th Century, the role plaid by African
States in its formation has been minimal and almost invisible. Africa has not been a great
player in the development of the international law as a region. However, such ungrounded
sentiment of exclusion from the international order might have been caused by the behaviour
of African States themselves other than their former colonial masters.
Taming the Race to Developing Atomic Power: The development and use of atomic power is
regulated by international law. However, several developing States are insisting on launching
their atomic energy for development. African States are also making similar claims but with a
lot of resistance from the international community. The reason is usually based on the attempt
of developing atomic weapons that may threaten the international peace and security. There
are doubts whether African States may be allowed to develop their own atomic energy and
use it for development other than weapons.
VII. AFRICAN REGIONALISM VERSUS THE ICC

Defending one of their own against the ICC82 justifies the AU anti-
universalism regional agenda:
The African Union (AU) has urged its members to "speak with one voice" against criminal
proceedings at the International Criminal Court against sitting presidents83. It is clear that
the African Union has taken its position in determining the international criminal justice84,
alleging some mischief emanating from the Western imperialism. At the same time the AU
82
Union (n 61).
83
Pichon (n 26).
84
Ibid.
21
affirms in verbatim its commitment to fighting impunity and promoting democracy,
constitutionalism and the rule of law85 within the region. However, it is not true that all
members of the African Union are opposed to the ICC and its operations in bringing criminal
justice to African personalities86 referring to the court as international colonial court87.
African leaders have claimed that the ICC was created to bully them.
The ICC has made contribution to building stronger African Union ever since. It has brought
some leaders closer together in support of withdrawal position a countervailing trend that
suggests resistance of universalism and preference to regionalism88.
Regional law-making has resulted into a regional approach to international law. Some
international lawyers argue the legislative conception of regionalism and theoretical approach
are affecting the unity of international law in which the change from jus publicum europaeum
moved to international legal order in the 20th Century.
African States contribution to the development of the law of the sea:
Strengthening African Court by creating African Criminal Court (proposal): This court is
different from the Court of Justice of the European Union (CJEU) whose mandate is to
interpret EU law89. The proposed African Criminal Court is presumed to have criminal
jurisdiction within the African Union geo-political area.
African regionalism is getting increasingly concerned with its criminal justice to supplement
the ICC. Whether this is to challenge the cases pending in the ICC is not yet approved by
international law experts. The African Union (AU) intends to establish a Criminal Chamber
within the African Court of Justice and Human Rights (the Criminal Chamber) to prosecute
persons responsible for international crimes in Africa. This article argues that calls by the
AU to establish the Criminal Chamber arise from a chain of events beginning with the
indictment and prosecution of some African individuals, including state officials, by the
Prosecutor of the International Criminal Court (ICC), and the authorities in domestic courts
85
Union (n 61).
86
Ibid.
87
The International Criminal Court in Africa: A Failed Experiment? (openDemocracy, 9 November 2014)
<https://www.opendemocracy.net/openglobalrights/mwangi-s-kimenyi/international-criminal-court-in-africa-
failed-experiment> accessed 4 February 2015.
88
Regionalism (international Relations) (n 3).
89
EUROPA - Court of Justice of the European Union <http://europa.eu/about-eu/institutions-bodies/court-
justice/index_en.htm> accessed 4 February 2015.
22
of European states90 This is a bold move by the region. Many other regions including EU
have not managed to establish their own regional criminal court effectively and how Africa
will do it is still a question of time. Nothing suggests that it is impossible. In reality the
seriousness of such high profile decisions may require a lot of technicalities, procedures and
also the approval of the international community.
The modern international law system is promoting domestic laws and regional laws that
would promote justice among members ensure that the region conforms to the general
international principles and customs of the international law. Within the African Union the
criminal justice must be done in a credible way for the rest of the world to believe. Contrary,
if this move is made to convince the ICC to stop prosecuting African personalities91, then it
would be unfortunate.
The legality of such criminal chamber in the African court may appear to be breach to the
Rome Statute for signatory members. By creating another criminal court to challenge the ICC
is in violation of the treaty and AU may either be ordered to stop the process or seek other
opinion about how to create such chamber within the stipulations of the Rome Statute.
The New Regionalism and global constitutionalism:

European Society of International Law conference paper No. 8/2012 makes it explicitly clear
the effect of regionalism on the unity of international law. Two allegedly opposite trends
taking place in the contemporary international legal order: global constitutionalism on one
side and the regional fragmentation of international law on the other92.
African Union is one of the biggest and the most fragmented regional realities with the
largest number of member States. Its operations involve several other sub-regional bodies
that also need to operate within the Union system. At the same time the Union must work
closer to the United Nations and other world geopolitical regions such as the European Union
and international and regional institutions.
90
Chacha Bhoke Murungu, Towards a Criminal Chamber in the African Court of Justice and Human Rights
(2011) 9 Journal of International Criminal Justice 1067.
91
Pichon (n 26).
92
European Society of International Law - 1097_SSRN-id2193752.pdf
<http://www.ces.uc.pt/myces/UserFiles/livros/1097_SSRN-id2193752.pdf> accessed 5 February 2015.
23
It is right to argue that African Union is also in globalization process and international
regionalism that should not go unchecked. The two processes tend to create a new
international order in which international law stands as the unifying factor.
Seeking new Partners Mostly from the Oriental Region (China/Japan/India): Globalizations
are understood as processes of social relations that are developing at a high rate in the new
regionalism. Such globalization process is not lineal and homogenous as it may appear to be.
It is also conflictive in terms of diversified interests presented by geopolitical trends. Besides
the regional alliances there are also inter-regional alliances. Regions are also engaged in
public relations and diplomatic arrangements. Whether this kind of social relations created by
globalizations and international regionalization shall build a strong unified international law
or not is still a subject of wider discussion.
Due to perpetual interconnectedness within the international regionalism the AU may not
afford excluding stronger regions such as the European Union and the Organization of the
American States. As any other regional arrangement, AU shall seek its identity within the
complexity of regionalization but shall not depart from general principles of the international
law and customs of international that have been cementing international public relations.
African Union is a critique of the European Union for some historical pertinent reasons as has
been discussed among the unanswered questions. But the possibility of the African Union
breaking-up its relations may be malicious and ill advised.
VIII. PREDICAMENTS
African Union Position and its legitimacy:
The prominent resistance of the AU to the ICC regarding the prosecution of its personalities
has been demonstrated as anti-universalism sentiment in the region93. It is within the
prerogative of regional arrangements and for States to disagree with multilateral treaties and
even to threaten to walk out en masse if they fail to amend the law. However, this may not be
easy due to interconnectedness of the international system in terms of economic, cultural,
social, scientific and technological, and institutional globalizations. States need each other
and regions also need each other. However, in this embedded in trans-state networks an
effective and strong legal system must be in place, and in this case it must be international
law.
93
Pichon (n 26).
24
For instance, the predicament based on international criminal offences in the AU region may
not be expeditiously dealt with by single regional arrangements without involving other
regional entities and United Nations. War crimes, crimes against humanity, and other serious
crimes including genocide94 have adversely occurred in the African region and out of
experience, the intervention from other extra-regional entities intervened using the
international law. For instance, the use of the UN Peacekeeping mechanism in the African
region has created positive impact in conflict situations and to some extent reversed such
offences. Another instance is the humanitarian aid directed to the AU region from other
regions. In situations of humanitarian crisis African States have pleaded for help from other
regions in customary solidarity among States and among regions within the aegis of
international law system.
It is also true that Africa has been hosting some deadly criminal organizations that kill,
murder, maim and indiscriminately exterminate human beings. Militant groups in Africa have
been the cause of humanitarian disaster in the region. There is no way African Union can
stand alone to deal with its domestic crimes without the involvement of the United Nations
and other stronger regions as stipulated by the international law.
If the position taken by the African Union to stop the ICC from prosecuting its sitting Heads
of State and Government95, then some States may re-embark on old anarchy and lawlessness.
For instance, Africa has had periods of bloodshed, arbitrary assassinations, ethnic cleansing,
civil wars, guerrilla wars (wars of liberation), insurgences, political instability96, terrorism,
violations of human rights and humanitarian law. Africa is still associated with deadly
conflicts, food crisis, and looming poverty97. The same African region has had many despotic
governments branding it a non-democratic society tainted by use of violence and arrogance
(emotive approach).
Impunity, corruption, despotism and lack of respect of human rights98 have rendered the vast
and diversified AU region one of the most insecure geographical spaces in the world map.
Despotic African states used violence against their own citizens to an extent of ruining the
African intelligentsia. The rulers sought to occupy colonial state rather than transforming it
94
95
Pichon (n 26).
96
Article 7 (n 2).
97
Africa Development, Volume 39, N 1, 2014 / CODESRIA (n 59).
98
25
into what is expected. Repressive governments switched to use of arrogance and military
approach to oppress democracy and bully their former imperial powers.
In the new trends of regionalism, Africa is still creating more questions than answers when it
comes to good governance, rule of law and democracy99. The primary reasons for creating
regionalism in Africa are: enhancing political unity and pan-African agenda100 other than the
orthodoxy of regionalism.
Common Policy Agenda

Most of the African sovereign states have been involved in bilateral agreements based on
north-south and not south-south axis. The AU members are yet to get involved in the real
economic integration. Such integration is not free from regional politics and distrusts.
Another issue is the socio-cultural variation across the African region which hinders full
understanding. For instance, the Francophone, Anglophone, and Lussophone regions tend to
have certain kind of culture, practices, politics and way of understanding their model of
development that require strong social policies within the complex panorama in the region.
As has been discussed, political stability in the region and democratic issues is another area
that demands certain autonomy in the region. AU regional panorama has had years of
democratic instability and socio-economic imbalance that keeps on straining its efforts
towards integration and forming common policy agenda.
Presidents and Heads of governments dominate the policy agenda. The AU negotiations tend
to take political approach and this is not very good for regionalism. Whenever AU deliberates
trade negotiations what emerges shall be domestic agenda rather than regional agenda.
Due to over reliance on the power of Presidents there is little involvement of the academia
and scholars in the region. The people are not usually involved in several negotiations taking
place at the AU level. Civil society organizations are scarcely involved in the whole plan.
This is a challenge to quality and focused deliberations within the region. This behaviour
gives African region a false self-image but fails to meet the standard of other regions.
99
Why Have There Been so Many Despotic Governments in Africa? (Yahoo Maktoob News) <https://en-
maktoob.news.yahoo.com/why-many-despotic-governments-africa-110100732.html> accessed 4 February
2015.
100
Article 7 (n 2).
26
Resentment from the Region and Questions
Shall Africa Defy Her long time Masters? The perpetuated anti-colonial attitude in Africa is
likely to be another critical predicament. Certainly, Africa has so many unanswered questions
from the former imperial powers. Colonialism blundered and committed so many crimes to
the region and the African people101. Nation-statism102 as Davidson Basil had rightly put it
incurred several damages to Africa, in what he calls the Blackmans Burden. However, It also
left legacies including building structures and social systems on which post-colonial states
ride.
At the international law perspective African Union cannot have a strong case to charge the
EU for historical colonial offences without incriminating itself. Former European Imperial
powers assisted African States to set-up their systems including legal systems and
constitution writing. The injuries and some damages were done but they may be considered
as collateral damages other than intentional offences.
Shall African Economy Support what she needs to become an economic superpower? Can
Africa rely on its own natural resources in order to build up a stable economy without open
door policy? There are some predictions that Africa shall determine the future of the world
economy but such predictions are disputable. Generally most of the African sub-regions
demonstrate weak and fragile economy. Regulations and institutional structures are still
weak. Education systems adopted by many AU states are still not effective while
globalization process is also weakening the State capacity to control its education system.
Africa becoming an economic superpower is a good dream whose time has not come due to
unanswered questions ailing the continent.
African Union and its sub-regional institutions still rely heavily on international borrowing
schemes (IMF/WB)103 in order to manage their needs for development. In this set-up, Africa
may propose African Monetary Fund, African Development Bank, African regional currency,
African monetary integration and Tariff zones, but this may need not only more time but also
focus, determination, education, and compliance with global economic standards.
101
102
Ibid.
103
27
Already East African Community is discussing monetary integration in the same way as Euro
Zone in the EU model. This is a dream engineered by politicians but not African economists,
intellectuals and experts in the field.
Market integration based on EU model has failed in the African continent. African
governments continue to adopt it believing the strategy will enhance their economic growth
and development104.
How will African States Deal with their Problems of International Peace and Security?
African Union is faced with serious challenges as any other region in the world. It is not
possible in this post hegemonic era to imagine regional peace and security without seeking
additional help from other regions and most importantly from international law system. This
is one of the disturbing reasons why AU cannot fully support the total withdrawal from the
ICC. International terrorism is a serious challenge that requires more cooperation among
States and commitments. No single region can effectively deal with the war of terror without
involve others. The emerging Islamic Caliphate and other criminal ideologies are spreading
with speed and spilling over from one region to the other. The need for unity in the
international law is stronger than the need for regional arrangements. However, both global
and regional organization are complementary and one may not do without the other.
The trans-national criminality and terrorism105 tend to concentrate in some regions than
others. Every region is concerned with the question of peace and security. The best example
is the EU region and the introduction of Europol agency to deal with trans-border crimes.
However, African region is still far from integrating its security system to satisfy the
demands. This difficulty is one of the reasons why AU may not estrange itself from mega
regions such as NAFTA, and EU.
International Debt and unanswered questions

The international economic order operates on the platform of lending and borrowing. States
are the biggest borrowers and whenever each state feels that its domestic economic may not
support its budget and development needs, then the alternative is to engage into bi-lateral
arrangements that are mutually binding. Such lending and borrowing practices are what
amounts to international public debts, in which African region is the most indebted region.
Imagining AU members becoming economically stable while accruing huge debts is still a
104
Article 7 (n 2).
105
Anangwe (n 56).
28
far-fetched dream. Debts incurred by States must be paid under international obligations.
Now the question is, how much more pressure are these nations expected to bear? 106
World Social Forum held in Nairobi in 2007 and anti IMF riots did not succeed to convince
the Western lenders on foreign debt cancellation to ease development process107and make
things better in the neoliberal world. Only some few States agreed to cut down their foreign
debts to some percentage but with conditions. Most States including US and some EU States
rejected the cancellation theory that ignited serious protests108across the world. Africa is
caught up in an international debt crisis as several States cannot settle their debts then
concentrate on their internal economic development. Such accrued debts also grow with
interests while some States have not tamed their borrowing appetite 109 to facilitate their
development desires. Such debt crisis is a result of short-sighted financial markets and short-
sighted governments110.
It is a fact that the Peoples Republic of China is investing hugely in Africa adding to
Africa-Rising narrative111. Such investments are transacted in lending and borrowing bi-
lateral arrangements. Concerned African States shall have to pay back with interest for a long
period of time, a binding reality that shall antagonize development in the region. Whether
such indebted African States shall use the Chinese money to pay the European creditors 112 is
still a serious predicament and disturbing international commercial law lawyers113.
International Monetary Fund working paper has defined international debt crisis in terms of
defaults that come with the repayment difficulties114. Episodes of foreign debt servicing
difficulties in the 1980s in Latin America and Africa have led to a number of studies on the
determinants of sovereign default risk (see McDonald and Donough (1982), Edwards (1984),
106
107
April 2007: The World Social Forum in Nairobi (Canadian Centre for Policy Alternatives)
<https://www.policyalternatives.ca/publications/monitor/april-2007-world-social-forum-nairobi> accessed 5
February 2015.
108
World Social Forum Opens in Kenya BBC (20 January 2007)
<http://news.bbc.co.uk/2/hi/africa/6281649.stm> accessed 5 February 2015.
109
110
Ibid.
111
Ibid.
112
Legal Principle Debt Must Be Paid - Google Search
<https://www.google.com/?gws_rd=ssl#q=legal+principle+debt+must+be+paid&start=20> accessed 9
February 2015.
113
114
Debt Crises and the Development of International Capital Markets - Andrea Pescatori and Amadou N. R. Sy
- IMF Working Paper WP/04/44 - wp0444.pdf <https://www.imf.org/external/pubs/ft/wp/2004/wp0444.pdf>
accessed 5 February 2015.
29
and Eichen green and Mody (1998, 1999) among others)115. AU region is experiencing debt
crisis that may hinder its development vision for some years to come. Moreover such
sovereign debt crisis is also determined by the world economic depression which is tilting
financial policies towards new models. The region is losing 6% of its wealth every year
according to the business press116.
African region is faced with ecological debt, excessive public expenditure, high borrowing
tendency, excessive consumption of resources, excessive financial and trade integration into a
volatile world economy and climate change damages117.
South Africas role in the Brasil-Russia-India-China-South Africa (BRICS) block is a

gateway yet to another disaster118. Chances for the AU region benefitting from this new
regionalism are remote and it they are like going back to pre-structural adjustment period.
The assumption is that BRICS region is a strategy to fight the IMF/WB institutions shifting
the economic paradigm from the West to the new economic region. Such combative approach
may not benefit Africa but other members of the economic alliance.
Under the circumstances, most of Africa experienced a rising fiscal deficit and higher
public debt. Most central banks imposed lower interest rates after 2009 than
prevailed in 2007. Most let their money supply rise, in part to compensate for private
credit contraction. A few countries went further: new exchange controls helped
Tanzania, Rwanda and Kenya fend off hostile financial forces119.
Regional harmony and border disputes:

African independent States adopted the borders as had been designed by the colonial powers
applying the principle in the customary international law known as Uti Possidetis ac
necessitatis In the African geopolitical region, border disputes are there. States question
their borders leading to them referring cases to the International Court of Justice of the
United Nations. The colonial borders did not take into account African interests such as
ethnic groups and cultures but it was based on the European interests in the Continent. For
115
Ibid.
116
117
Ibid.
118
Ibid.
119
Ibid.
30
the sake of international peace and security, the principle of adopting the borders as they were
during the colonial time is another predicament of African regionalism.
African theory of Sovereignty:

Somehow linked to the theory of sovereignty of Vattel, a Swiss legal writer, African states
still see their sovereignty in terms of inherent natural rights which states derived from natural
law but said that they were only accountable to their own consciences for the observance of
duties observed by natural law120. The theory of sovereignty began as an attempt to analysis
the international structure of the state. Writers severally make references to Machiavelli
(1469-1527); Jean Bodin (1530-1596); and Thomas Hobbes (1588-1679). But John Austin
(1790-1859) wraps it all in his famous definition of law as general command from a
sovereign backed by threat. African states have picked on the general overtone of being
above the law which is problematic to the international relations among the States121. What
international lawyers mean by sovereign state is just that it is independent and it does not rely
on other states for its decisions. They do not mean that it is in any way above the law 122.
Sovereignty is not a legal term but emotive term used by leaders to show their resistance to
some international obligations especially emanating from multilateral treaties, such as the
Rome Statute (2002).
History of international law has it that some Western lawyers developed the concept of
sovereignty to an extent that it brought about nation-state123 politics leading to some major
wars especially in Europe. The modern tendency is that Western worlds have rejected old
dogmas and conceptions of sovereignty and inherent rights of the states that show a state
having powers above the law. Wimbeldon case in 1923, the Permanent Court of International
Justice said: The Court declines to see, in the conclusion of any treaty by which a state
undertakes to perform or refrain from performing a particular act, an abandonment of its
sovereignty124. This particular case influenced the Montevideo Convention on Rights and
Duties of a State in 1933 which added ability to enter into diplomatic relations as an attribute
to the definition of Statehood.
Rome Statute under Art. 27 is seen by some African States as depriving them of their
independence, sovereignty and autonomy. It is hard to draw a line between independence and
120
Malanczuk (n 40).
121
Malanczuk (n 9).
122
Ibid.
123
124
Malanczuk (n 9).
31
loss of independence. It is a question of degree and opinion. Even independence shares some
of the emotive quality of sovereignty125.
The idea of joining a supranational organization such as the African Union is becoming
stronger day by day in the neo-liberal era. Position taken by AU against the ICC may be a
shield to international criminal justice. Human Rights Watch said that African leaders are
shielding themselves from criminal justice. African leaders vote to give themselves
immunity126.
A new pan-African court set up to prosecute the continents worst crimes will not be allowed
to try sitting heads of state or their cronies after they voted to give themselves immunity. It is
now quite evident that African leaders in mala fide have decided to set-up an African
Criminal Court in which none of them will face criminal justice. It may be a court to
prosecute political rivals and those who have no power. Such decision may not be compatible
with the spirit of the international criminal justice and global judicial governance.
IX. REMARKS
African region seems to be missing the golden chance in the neoliberalism, globalization and
new world order. The sense it attaches to the neo regionalism is more of political reactions,
self-defence in the wrongful acts of the states, shielding tyrants from international criminal
justice, perpetuating arrogance and blaming the past mistakes.
The region can only emerge stronger if Africa puts regionalism in perspective and grabs the
golden chance to establish serious economic cooperation and market integrity that is not
based on the European model. Africa has all it takes to embark on its own approach based on
African values and systems other than those from the former European imperialism. In the
same way of argument, Africa cannot successfully pursue its development goals by relying
on the technology, man-power and skills borrowed from the Asiatic regions.
The failure to emerge with its own clear policies on development, market integration,
regional integration, Africa may not possibly achieve what it needs. At the same time, its
policies and economic agenda must remain outward oriented as well as inward oriented. It is
in this sense that the continent shall cleverly emerge among the world economies.
125
Ibid.
126
Pflanz (n 47).
32
African region though may not be compared fully with Latin America in the global context
both fail to demonstrate strong leadership and focus in the neo regionalism trend. The AU
region still needs capacity in coming up with proper strategy that would put it in the right
platform with the rest of the world in a multidimensional way. Fiscal union without clear and
uniform monetary and fiscal policies are not yet clear within the African economic
community zones even if the idea is appraised by politicians and AU Heads of States and
Governments.
In conclusion, the EU model is not the right one for the AU region unless miracles will
happen. Africa still needs a functioning bureaucratic system, work on cooperation and clear
measures of regional integration. However, there are more unanswered questions that will
still keep the AU region off from benefitting substantially from the world volatile economy.
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CHALLENGES FACING AFRICAN UNION'S NEW REGIONALISM

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CHALLENGES FACING AFRICAN UNION IN THE NEW

REGIONALISM AND INTERNATIONAL LAW-

Keywords: Regionalism, regional integration, development integration, cooperation,

resistance, globalization, predicaments, unanswered questions, AU region.

COMESA COMMON MARKET OF EAST AND SOUTHERN AFRICA

EAC EAST AFRICAN COMMUNITY

ECOWAS ECONOMIC ORGANIZATION OF WEST AFRICAN STATES

LAS LEAGUE OF ARAB STATES

MERCOSUR COMMON MARKET OF LATIN AMERICA

NATO NORTH ATLANTIC TREATY ORGANIZATION

OAS ORGANIZATION OF AMERICAN STATES

OAU ORGANISATION FOR AFRICAN UNITY (REPLACED BY THE AU)

SAARC SOUTH ASIAN ASSOCIATION REGION COOPERATION

WTO WORLD TRADE ORGANIZATION (REPLACED GATT)

Regionalism encompasses efforts by different groups of nations to enhance their economic,

III. CHALLENGES OF THE GLOBAL TRADE AND REGIONALISM

IV. RESISTING THE ICC

It is a fact that regionalism in so far as customary international practice is becoming a

V. UNANSWERED QUESTIONS IN THE AFRICAN UNION

Imperialism and resistance

Historical Slave Trade and Afro-Slavery: Human Rights Abuse

International Law Concept of alienation

Stagnated Development Process (economic problems):

Feeling of resentment towards economic exploitation of industrialised states mainly in the

Mature economic activity is shrinking in the AU region. Despite some improvement in a

Challenges of the International and Universal Jurisdiction:

Reactionary Approach rather than Engagement:

Cultural Diversity of the Continent is still a Problem:

VI. INTERNATIONAL COMMUNITY

After September 11th

Promoting Peace and International Security

Pariah or rogue States in Africa:

The role of Africa in Global Affairs:

VII. AFRICAN REGIONALISM VERSUS THE ICC

African States contribution to the development of the law of the sea:

The New Regionalism and global constitutionalism:

Common Policy Agenda

International Debt and unanswered questions

South Africas role in the Brasil-Russia-India-China-South Africa (BRICS) block is a

Regional harmony and border disputes:

African theory of Sovereignty:

Africa Development, Volume 39, N 1, 2014 / CODESRIA

African Union and the ICC - Google Search

Anangwe A, International Terrorism and East African Sub-Regionalism: Developing a Sub-

Article 7 <http://www.polis.sciencespobordeaux.fr/vol10ns/arti6.html> accessed 6 February

Cassese A, Casseses International Criminal Law (Oxford University Press 2013)

EUROPA - Court of Justice of the European Union <http://europa.eu/about-eu/institutions-

European Society of International Law - 1097_SSRN-id2193752.pdf

Legal Principle Debt Must Be Paid - Google Search

Malanczuk P, Akehursts Modern Introduction to International Law (Routledge 2002)

, Akehursts Modern Introduction to International Law (Routledge 2002)

Olukoshi AO and Laakso L, Challenges to the Nation-State in Africa (Nordiska

Raustiala K, The Architecture of International Cooperation: Transgovernmental Networks

Regionalism in International Law - Google Search

Regionalism (international Relations), , Wikipedia, the free encyclopedia (2015)

Regionalization - Google Scholar

Terrorism and Regionalism - Google Search

The GATT Uruguay Round and the World Trade Organization

World Social Forum Opens in Kenya BBC (20 January 2007)

WTO | Understanding the WTO - The Uruguay Round

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