INTRODUCTION
In the next few posts we will bring to you excerpts from a very important decision of the African Court in a case filed by the Nigerian human rights activists Femi Falana (SAN) challenging the compatibility of Article 34(6) of the Protocol of the Court requiring the deposit by a state of a declaration accepting the court's jurisdiction over it in the case of matters brought by individuals or non governmental organizations before it, with certain sections of the African Charter. Even though the majority judgment declined jurisdiction over the matter, the dissenting opinion is also quite striking and should be considered on the merits. We shall present the majority judgement without any comment, then the dissenting judgment, before we conclude it with a commentary on the pros and cons of the decisions.
ON JURISDICTION TO HANDLE CASES BROUGHT AGAINST THE AFRICAN
UNION
63. In the view of the court, the fact that a non-state entity
like the African Union is not required by Article 34(6) of the Protocol to make
the declaration does not necessarily give the court jurisdiction to accept
applications brought by individuals against such entity; there may be other
grounds on which the court may find that it has no jurisdiction. In the present
instance, what is specifically envisaged by the Protocol and by Article 34(6)
in particular is precisely the situation where applications from individuals
and NGOs are brought against State Parties. In this regard, Article 3(1) of the
Protocol which deals with the jurisdiction of the Court is referring t
interpretation and application of human rights instruments ratified by the “States
concerned.” Similarly, Article 34(6) of the Protocol itself refers only to a “State
Party”.
67. “In the practice of the African Union, although the adoption
of treaties is done formally by the Assembly of Heads of State and Government,
their signature and ratification are still the exclusive prerogative of its
member States. This is confirmed, inter alia, by Article 34(1) of the Protocol
which provides hat “it shall be open for signature and ratification or
accession by any State Party to the Charter” (see also Article 63(1) of the
Charter). THUS, IN THE VIEW OF THE COURT, THE MERE FACT THAT THE PROTOCOL HAS
BEEN ADOPTED BY THE ASSEMBLY OF HEADS OF STATE AND GOVERNMENT DOES NOT
ESTABLISH THAT THE AFRICAN UNION IS A PARTY YO THE PROTOCOL AND THEREFORE CAN
BE SUED UNDER IT. (Para. 67)
68. Regarding the Applicant’s contention that the African Union
can be sued as a corporate community on behalf of its Member States, it is the
view of the Court that, as an international organization, the African Union has
a legal personality separate from the legal personality of its Member States.
As the International Court of Justice stated in its Advisory Opinion on
Reparation for injuries suffered in the service of the United Nation:
“It must be acknowledged
that its Members [United Nations], by entrusting certain functions to it, with
the attendant duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the
Organization is an international person. That is not the same thing as saying
that it is a State, which it certainly is not, or that its legal personality
and duties are the same as those of a State. … What it does mean is that it is
a subject of international law and capable of possessing international rights
and duties … .
69. In this regard, however, in principle, international
obligations arising from a treaty cannot be imposed on an international
organization, unless it is a party to such a treaty or it is subject to such obligation
by any other means recognized under the international law.
70. In the present case, the African Union is not a party to the
Protocol. As a legal person, an international organization like the African
Union will have the capacity to be a party to a treaty between states if such a
treaty allows an international organization to become a party. As far as an
international organization is not a party to a treaty, it cannot be subject to
legal obligations arising from the treaty. This is in
line with Article 34 of the 1986 Convention on the Law of Treaties between States
and International Organizations or between International Organizations which
provides:
“A treaty does not create either obligations or rights for a
third State or a third organization without the consent of that State or that
organization.” (see also, Article 34 of the 1969 Vienna Convention on the Law
of Treaties) – (par 70)
71. Therefore, in the present case, the African Union cannot be
subject to obligations arising from the Protocol unless it has been allowed to
become a party to the Protocol and it is willing to do so, both of which do not
apply. In the same vein, the mere fact that the African Union has a separate legal
personality does not imply that it can be considered as a representative of its
member States with regard to obligations that they undertake under the
Protocol. (Para. 71)
72. It is therefore the opinion of the Court that the African
Union cannot be sued before the Court on behalf of its Member States. (para 72)
73. At this juncture, it is appropriate to emphasize that the
Court is a creature of the Protocol and that its jurisdiction is clearly
prescribed by the Protocol. When an application is filed before the Court by an
individual, the jurisdiction of the Court ratione personae is determined by
Article 5(3) and 34(6) of the Protocol, read together, which require that such
an application will not be received unless it is filed against a state which
has ratified the Protocol and made the declaration. The present case in which
the Application has been filed against an entity other than a State having
ratified the Protocol and made the declaration, falls outside the jurisdiction of
the Court. Therefore, the Court has no jurisdiction to entertain the
Application.
74. Since the Court has concluded that ti does not have
jurisdiction to hear the Application, it does not deem it necessary to examine the
question of admissibility of the Application and the merits of the case.
75. in view of the foregoing
THE COURT by a majority of seven votes to three:
Holds that in terms of Article 5(3) and 34(6) of the
Protocol, read together, it has no jurisdiction to hear the case instituted by
Femi Falana, Esq. against the African Union.
IN FAVOUR: President NIYUNGEKO; judges MUTSINZI, GUINDO,
OUGUERGOUZ, RAMADHANI, TAMBALA and ORE
AGAINST: Vce-President AKUFFO; Judges NGOEPE and THOMPSON
