FEMI FALANA V AFRICAN UNION APPLICATION NO. 001/2011

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