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Ratification of African Union Treaties by Member States: Law, Policy and Practice

By Maluwa, Tiyanjana | Melbourne Journal of International Law, November 2012 | Go to article overview

Ratification of African Union Treaties by Member States: Law, Policy and Practice


Maluwa, Tiyanjana, Melbourne Journal of International Law


The African Union ('AU') seeks to achieve its policy goals through the adoption of treaties. The realisation of these goals requires that the treaties be signed, ratified and implemented by the member states. As an institution, the AU lacks powers to compel member states to ratify its treaties and comply with their provisions. This article assesses the practice of A U member states in relation to treaty ratification, against the context of competing conceptual theories explaining state behaviour and decision-making with respect to treaty ratification: in particular, rationalism, constructivism and liberalism. The article surveys the constitutional and legislative procedures of AU member states on treaty ratification. By focussing on the basic ratification-signature correlations of these treaties, the article seeks to identify the type of treaty policy areas in which A U members have recorded high, standard and low treaty commitment. The article also examines the major factors that impede expeditious ratification of A U treaties and makes recommendations on how to overcome them. The article suggests that the legal, political and statistical information offered in the discussion can be used as indicators of future treaty success within the AU, and to predict policy areas and the type of treaties that will be maximally or minimally accepted by member states. A general conclusion of this article is that treaties that do not create any tension with the domestic legal regime and structure, and only require minimal changes to existing national law, stand a better chance of getting ratified.

CONTENTS

I    Introduction
II   Treaty Ratification: Some Conceptual and Procedural Issues
       A Consent to Be Bound by a Treaty: Signature, Ratification,
         Acceptance, Approval and Accession in OAU/AU Treaty Practice
           1 Definitive Signature
           2 Ratification, Acceptance and Approval
           3 Accession
           4 Provisional Application of a Treaty before Its Entry into
             Force
       B Why Do States Ratify Treaties?
III  Ratification Procedures of AU Member States: A Brief Overview
IV   Ratification-Signature Correlation of OAU/AU Treaties
       A Foundational Legal Instruments and Institutions
       B  Trade, Economic and Technical Cooperation
       C  Privileges and Immunities of the Organisation
       D  Human Rights and Refugees
       E  Environment
       F  International Security and Crimes
       G  Culture
       H  Conclusion on the General Policy Area Trends
V    Measures to Encourage Ratification of OAU/AU Treaties
VI   Conclusion

I INTRODUCTION

The ability of the African Union ('AU') (1) to advance enduring substantive policy goals through treaties adopted under its auspices depends on two interrelated factors: the political will of its member states and their ability to translate treaty undertakings into binding norms. As with most international organisations, the AU has provided its members with a forum, through which they have collectively adopted policies and positions on a wide variety of issues. These issues include economic integration, conservation and management of natural resources, environmental protection, counter-terrorism, peace and security, non-proliferation of nuclear weapons, refugees and internally displaced persons, democracy, human rights, corruption, non-aggression and defence. While some of these policy goals and positions are couched in the resolutions, declarations and decisions that have been adopted over the years at various levels by the AU and its predecessor, the Organization of African Unity ('OAU'), the more important or significant of these are enshrined in treaties to which the great majority of AU member states are signatory.

At the time of writing, 42 treaties have been adopted by AU member states under the aegis of the organisation. (2) Twenty-three of these treaties were adopted under the auspices of the OAU between 1965 and 2002.

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