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From Reluctance to Acquiescence: The Evolving Attitude of African States Towards Judicial and Arbitral Settlement of Disputes*

Published online by Cambridge University Press:  30 July 2015

ABDULQAWI A. YUSUF
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Abstract

The attitude of African states towards judicial and arbitral settlement of disputes has substantially evolved since their accession to independence. The original reluctance to resort to the judicial settlement of disputes was due to a lack of trust in the system of ‘international law’ from which they were excluded prior to the UN Charter era and the rules of which were sometimes used to justify their colonization. There was also the issue of under-representation in international judicial or arbitral organs. That initial reluctance has more recently evolved into acquiescence at the universal level. Judicial institutions are also being established by the African states themselves.

Keywords

AfricaarbitrationInternational Court of Justiceregional courts
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 28 , Issue 3 , September 2015 , pp. 605 - 621
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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Footnotes

*

This article is based on a speech delivered by the author at the UCL/Baker & McKenzie Fourth Annual Lecture, on 14 May 2014, at University College London.

References

1 Charter of the Organization of African Unity, 479 UNTS 39, Art. 3.

2 Protocol of Mediation, Conciliation and Arbitration, Charter of the Organization of African Unity, 21 July 1964, 3 ILM 1116 (1964).

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11 Ibid.

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15 Nationality Decrees Issued in Tunis and Morocco, PCIJ Rep. (1923) Series B No. 4, at 7.

16 Ibid.

17 Oscar Chinn, Judgment, PCIJ Rep. (1934) Series A/B No. 63, at 65.

18 Ibid., at 89.

19 Phosphates in Morocco, PCIJ Rep. (1938) Series A/B No. 74, at 10.

20 Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment of 27 August 1952 [1952] ICJ Rep. 176.

21 Ibid., at 212–3.

22 See Elias, supra note 13, at 1.

23 Draft resolution, submitted by Afghanistan, Burma, Cambodia, Cameroun, Central African Republic, Ceylon, Chad, Congo (Brazzaville), Congo (Leopoldville), Cyprus, Dahomey, Ethiopia, Federation of Malaya, Gabon, Ghana, Guinea, India, Indonesia, Iran, Iraq, Ivory Coast, Jordan, Laos, Lebanon, Liberia, Libya, Madagascar, Mali, Morocco, Nepal, Niger, Nigeria, Pakistan, Philippines, Saudi Arabia, Senegal, Somalia, the Sudan, Togo, Tunisia, Turkey, United Arab Republic and Upper Volta. UN Doc. A/L. 323 and Add. 1–6, (28 November 1960).

24 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/RES 1514 (XV), 14 December 1960. Also see UN. Doc. A/PV.947 (14 December 1960), at 1274.

25 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/RES 1514 (XV), 14 December 1960, para. 1.

26 Asian-African Conference: Communiqué, Bandung, 24 April, 1955, available at <http://www.cvce.eu/obj/final_communique_of_the_asian_african_conference_of_bandung_24_april_1955-en-676237bd-72f7-471f-949a-88b6ae513585.html> (accessed 5 May 2015).

27 Resolution Adopted by All-African Peoples' Conference, First Conference, Accra, 5–13 December 1958, see G. King (ed.), Documents on International Affairs 1958 (1962), at 583.

28 Resolution Adopted by the All-African Peoples' Conference, Second Conference, Tunis, 25–30 January 1960, see R. Hott, J. Major, and G. Warner (eds.), Documents on International Affairs 1960 (1964), at 349.

29 Resolution Adopted by the All-African Peoples' Conference, Third Conference, Cairo, 23–31 March 1961, see C. Legum, Pan-Africanism: A Short Political Guide (1962), at 247.

30 South West Africa Advisory Opinion of 21 June 1971, supra note 12, at 31.

31 Ibid.

32 South West Africa Judgment of 18 July 1966, supra note 10.

33 Ibid.

34 Ibid., at 34, para. 48.

35 See Bedi, S., ‘African Participation in the International Court of Justice: A Statistical Appraisal’, in Yusuf, A. A., (ed.) African Yearbook of International Law (1988), at 134Google Scholar. The discontent of African states played a significant role when the triennial election of 1966 took place. The Afro-Asian group challenged the Court's composition and lobbied for an additional African judge. Their advocacy was repeated in the triennial election of 1969, and since then it has become practice to have three African judges on the Court.

36 South West Africa Advisory Opinion of 21 June 1971, supra note 12; Western Sahara Advisory Opinion of 16 October 1975, supra note 12.

37 For a criticism of that approach, see Jiménez de Aréchaga, E., ‘International Law in the Past Third of a Century’, (1978) 159 Recueil des Cours 101Google Scholar.

38 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 221, at 233, para. 19 (Dissenting Opinion of Judge Gerald Fitzmaurice).

39 South West Africa Advisory Opinion of 21 June 1971, supra note 12, at 31, para. 53.

40 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/RES 1514 (XV), 14 December 1960.

41 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES 2625 (XXV), 24 October 1970.

42 Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, [1982] ICJ Rep. 18.

43 Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, [1985] ICJ Rep. 13.

44 Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986, [1986] ICJ Rep. 554.

45 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment of 10 December 1985; Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, [1982] ICJ Rep. 18; Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, [1985] ICJ Rep. 13; Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986, [1986] ICJ Rep. 554; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, [1991] ICJ Rep. 53.

46 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, [1994] ICJ Rep. 6; Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal), Order of 8 November 1995, [1995] ICJ Rep. 423; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objection, Judgment of 27 February 1998, [1998] ICJ Rep. 9; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objection, Judgment of 27 February 1998, [1998] ICJ Rep. 115; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, [2002] ICJ Rep. 303; Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, [1999] ICJ Rep. 1045; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment of 25 March 1999, [1999] ICJ Rep. 31; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, [2010] ICJ Rep. 639; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi), Order of 30 January 2001, [2001] ICJ Rep. 4; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Order of 30 January 2001, [2001] ICJ Rep. 6.

47 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi), Order of 30 January 2001, [2001] ICJ Rep. 4; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Order of 30 January 2001, [2001] ICJ Rep. 6.

48 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3; Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005, [2005] ICJ Rep. 90; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment of 3 February 2006, [2006] ICJ Rep. 6; Certain Criminal Proceedings in France (Republic of the Congo v. France), Order of 16 November 2010, [2010] ICJ Rep. 635; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] ICJ Rep. 177; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, [2012] ICJ Rep. 422; Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013, [2013] ICJ Rep. 44.

49 See 1991 Protocol A/P.L/7/91 on the Community Court of Justice, 1975 Treaty of The Economic Community of West African States (ECOWAS), 28 May 1975, UNTS Volume 1010 I-14843; 1993 Revised Treaty of the Economic Community of West African States (ECOWAS), 24 July 1993, UNTS Volume 2373, I-42835.

50 1996 Convention Régissant la Cour de Justice de la C.E.M.A.C., 05 July 1996, available at: <http://www.cemac.int/sites/default/files/documents/files/Convention_Cour_de_Justice.pdf> (accessed 5 May 2015).

51 1994 The Common Market of Eastern and Southern Africa (COMESA) Treaty, Art. 7.

52 1992 Treaty of The Southern African Development Community, Art. 9.

53 1999 Treaty for the Establishment of the East African Community, Art. 9.

54 Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA), see also Common Court of Justice and Arbitration.

55 2004 Protocol for the Establishment of the East African Community Customs Union.

56 See Yusuf, A., Pan-Africanism and International Law (2004) at 18Google Scholar.

57 Katabazi v. Secretary General of the East African Community, (Ref. No. 1 of 2007) [2007] EACJ 3 (1 November 2007), available at <http://www.saflii.org/ea/cases/EACJ/2007/3.html> (accessed 5 May 2015).

58 Mike Campbell (Pvt) LTD and Others v. Republic of Zimbabwe, SADC (T) 02/2007, Judgment of 13 December 2007, available at <http://www.sadc-tribunal.org/?cases=mike-campbell-pvt-ltd-and-another-v-the-republic-of-zimbabwe-2> (accessed 5 May 2015).

59 Ibid.

60 2009 Agreement for the Establishment of the African Legal Support Facility, available at <http://www.afdb.org/fileadmin/uploads/afdb/Documents/Legal-Documents/Agreement%20for%20the%20Establishment%20of%20the%20African%20Legal%20Support%20Facility%20%28ALSF%29.pdf> (accessed 5 May 2015); Decision on the Establishment of an African Institute of International Law in Arusha, The United Republic of Tanzania, Doc: Assembly/AU/14(XVIII) Add.5, 2012.

61 2013 Agreement Between the Government of Canada and the Government of the Republic of Benin for the Promotion and Reciprocal Protection of Investments.

62 2007 Investment Agreement for the COMESA Common Investment Area.

63 Ibid.

64 Ibid., Art. 1.

65 SADC Model Bilateral Investment Treaty Template with Commentary, July 2012, Article 12–18, Available at <http://www.iisd.org/itn/wp-content/uploads/2012/10/SADC-Model-BIT-Template-Final.pdf> (accessed 5 May 2015).

66 Daele, K., ‘Investment Arbitration Involving African States’, in Bosman, L. (ed.), Arbitration in Africa: A Practitioner's Guide (2013), at 418Google Scholar.

67 Ibid.

68 Ibid., at 418.

69 2000 Constitutive Act of the African Union, Art. 5.

70 2003 Protocol of The Court of Justice of The African Union.