The Rationale for Personality
Before embarking up on assessing the legal personality of the African Union both at international and domestic levels, it seems imperative to justify why we should bother about the legal personality of international organizations in general and that of the African Union in particular.
As you may recall from the course on the Law of Persons, the concept of personality is of paramount importance for any legally established entity to stand by itself and function accordingly. By the same token, legal personality is an indispensable requirement for an international organization to be able to appear in its own right in legal proceedings, whether at the international, or non-international level.
Member states of an organization have the option of creating an organization which has personality and can function as legal person. This primarily facilitates its activities and is deemed to be necessary for the functioning of the organization. This may not necessarily mean that the personality of an international organization has to be sated in black and white in the instrument that creates it. Not to go to the details, it suffices if you remember what you have student in on course the Law of International Organizations about the concept of functional personality.
To conclude, legal personality enables international organizations to acquire a status without which they would not be able to function as independent units. They would not even be able to conclude treaties with states, to rent buildings or perform other tasks of routine character which may demand an independent legal standing.
African Union’s Personality at an International Level
Having international personality for an international organization, like that of the African Union, implies that such entity can possess rights, duties, powers and liabilities as distinct from its members in international law. In past times, it was states alone which were used to be recognized as persons in public international law. Nowadays, however, the notion of absolute state sovereignty has become obsolete and international organizations are made to operate independently on the international level, distinct form the member states they have.
This may have a bearing on deciding whether the said organizations have international legal personality or not. To take a simple example, such an organization may not be in a position to conclude international treaties without securing unanimous consent of its member states so long as that treaty may have anything to deal with the internal affairs of a member states.
The African Union has, however transformed a lot as regards the issue raised above. Article 4 of its Constitutive Act makes the notion of non-interference to be restricted to a situation whereby a unilateral or otherwise interference of any member state in the internal affairs of another whereas it clearly establishes the right of the Union, in its own capacity, to intervene in such matters. This, and other similar considerations, suggest that the African Union can function in the international plane as distinct from its individual member states.
As is the case in most similar international organizations, the Constitutive Act of the African Union does not confer the status of international personality to the African Union in a black and white manner. This does not, however, mean that the Union can not be considered as an international legal person. In the absence of clearly indicated personality, it has become customary to look for what are commonly called ‘indicias’ of personality which implicate whether the said organization is intended , in its making, to have international legal personality or not.
As you might recall it from the course on the Law of International Organizations, there are different considerations which might be taken into account with regard to the above stated consideration. To put it in simple terms, there are two considerations. The first one is whether the achievement of the purposes of the organization indispensably requires the attribution of international personality or not. In light of this standard, the objectives of the organization will be studied to determine whether they can be achieved without international legal personality or not.
The second consideration, which is more or less similar with the first one, is that the organization must be intended to exercise and enjoy functions and rights which can only be explained on the basis of the possession of international personality.
Based on the aforementioned indicias of international legal personality, we can deduce the fact whether the African Union is intended to have international legal personality or not from the text of the Constitutive Act of the African Union.
As it would be articulated in detail in the preceding sections of the material as well as the discussions made hereinbefore, the African Union has got some supranational characteristics. To take the most obvious instance, the African Union is mandated to intervene in the internal affairs of a member state in cases of grave human rights violations. It is in pursuance of this aim that the Peace and Security Council of the African Union has been established. The Council can not discharge its responsibility unless the Union has international legal personality by its own. It has to be recalled that no individually member state of the Union can act individually in such circumstances. Rather, it is the Union as a distinct legal organ that is mandated to make the intervention. Therefore, we can conclude that the African Union has international legal personality.
The international legal personality of the African Union may as well be inferred from the similar personality that its predecessor i.e. the Organization of African Unity had by virtue of the General Convention of Privileges and Immunities of the OAU. Article 1 of the Convention reads as:
1. The Organization of African Unity shall posses juridical personality and shall have the capacity:
A. to enter into contracts including the rights to acquire and dispose of movable
and immovable property.
B. to institute legal proceedings.
If the Organization of African Unity had such legal personality, the African Union will obviously enjoy it. In fact, since the African Union has more supranational features than that of the Organization of African Unity, it necessarily has such personality.
African Union’s Personality within Its Member States
Legal personality in national law can often be based on the provision of the domestic law of the state in question. Some national laws, notably the United Kingdom, expressly grant to international organizations, of which the state is a member, legal personality or the capacity to contract, to acquire and dispose of property and to institute legal proceedings.
The problem would come to the fore in cases where the local law of the state concerned is silent as regards to the personality of the organization. While expressing their observation on this point,. Schermers and. Blokker have the following to say: “national courts have usually recognized the legal personality of international organizations as they apparently see no reason to deny the legal personality of organizations in which their own state participates.”
The case of the African Union does not seem to be different from the above mentioned international trend. In the first place, a member state to the African Union may clearly confer personality to the Union. If this does not happen to be the case, it seems logical to infer their legal obligation to do so from the Constitutive Act of the African Union and other subsequent declarations made by the latter.
To take a very simple example, a peace keeping force of the African Union can in no way be denied personality within the territories of a member state. Doing so, may amount to making the mission a fictitious one which cannot touch the ground. Article 24 of the Constitutive Act of the African Union ordains that the headquarters of the Union shall be in Addis Ababa and the Assembly of the Union may establish similar offices in the territory of other member states. Therefore, it can be said that the moment an African Union institution is established within the territory of a member state, the concerned state, ipso facto, recognizes the legal personality of the Union within its domestic jurisdiction. This is so because personality is a necessary requirement even to perform the day to day businesses of the organization.
The Foundation of the Powers of the African Union
When we look at the foundation of the powers of the African Union, it is not unique from other international organizations of similar character. As an international organization, the African Union is founded on the common consent of the member states. It has basically two types of powers. The first is the powers that it is clearly entrusted with in accordance with its Constitutive Act. The second source or foundation of its powers rests on what we call implied powers. Both types of powers will be discussed in the form of highlight in the preceding paragraphs. For the details, students are highly advised to look at their course material on the Law of International Organizations.
The Doctrine of Attributed Powers
The doctrine of attributed powers makes a clear distinction between states on one hand and international organizations on the other hand. In making this distinction, a certain scholar said the following: ‘states are sovereign in the sense that their powers are not dependent on any other authority; the powers of international organizations are limited to whatever it is necessary to perform the functions which their constitutions have defined.’
In other words, states are sovereign and no one can list down what powers they have. International organizations are, however, founded on the volition of their member states, and their jurisdiction is limited to areas which the member states designate for the consumption of the international organization. They can perform tasks which they are attributed to by virtue of the agreement that creates the international organization.
It is usually commented that the existence of the principle of attributed powers would seem to imply a guarantee for the members that the organization would not use powers other than those conferred upon it by the members. Generally speaking, the law relating to a particular organization will flow basically from the constitution of the organization.
In general, in political international organizations like that of the African Union, the so called attributed powers are most of the times defined in a boarder perspective. You will see this in the forthcoming sections of this chapter where it is indicated that the African Union has seventeen objectives and eighteen principles as per its Constitutive Act and the amendment thereto.
To conclude, the doctrine of attributed powers is one foundation of the powers of the African Union. Member states of the Union have mandated it to attain specified objectives according to the Constitutive Act. This is the basic foundation of the power of the African Union on which its legality rests on.
The Doctrine of Implied powers
The doctrine of attributed powers ordains that international organizations always need to have a legal basis for their activities. This, however, is far from reality mainly in case of general international originations like that of the African Union. Scholars suggest that, in such cases, it is not possible to lay down an exhaustive list of powers of the organizations in a constitution, inter alia, because any organization needs to respond to developments in practice which cannot be foreseen when it is created .This might be the reason why the objectives and principles of the African Union and other similar international organizations are framed in general terms that can encompass wide areas of coverage. This paves the way for other basis for the organization to emerge. Implied and customary powers are of this category.
Who Authors usually make distinctions between implied powers and customary powers. Speaking in general terms, the basis for implied powers are powers explicitly attributed to the organization in the constitution. The basis of customary powers, on the other hand, postdates the constitution and comes on a subsequent time. To understand the essence of what we call implied powers, let’s cite the words of a scholar named Skubiszewski who explains to implied powers as follows: “A term is being read in to the organization’s statute not in order to modify it or add to the members’ burdens, but in order to give effect to what they agreed by becoming parties to the constitutional treaty.” Therefore, implied powers are not new fabrications. Rather, they are the outcomes of interpretations of the very constitution which provides a list of attributed powers.
While dealing with the doctrine of implied powers,. Schermers and Blokker stated that the most fascinating aspect of the doctrine is its flexibility. They go on saying that by accepting the binding character of the (opening) articles of a constitution which deal with the purposes of an international organization, it can easily be concluded that the powers necessary to fulfill these purposes have been implied.
When we come to the case of the African Union,- it seems that the doctrine of implied powers might have a wider room of application. As it has been stated above, and as it is to be dealt with in the forthcoming sections of this material, the objectives and principles of the Union are framed in general terminologies .This might leave a space for one to make an implication of other implied powers from the very Constitutive Act of the Union. Take for example the eighth principle of the Union That establishes the right of the Union to intervene in a member state pursuant to a decision of Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. This is an attributed power of the Union. Based on this, a question might be raised whether it would be appropriate for the Union to have its own army in pursuance of that aim in a particular state. Here come the virtues of the doctrine of the implied powers. The need to have its own army may be implied from the eighth principle.
Reconciling the Attributed and Implied Powers Doctrines
We have seen genuine concerns on the side of the both doctrines. However, it is not an easy task to determine the extent of the powers that are going to be implied from the explicitly attributed ones. That is why we have to find out an appropriate scheme to reconcile both doctrines and find a solid basis for the foundation of the powers of the African Union.
While trying to look at a justified implication of powers, some authors made a distinction between powers implied from explicit powers and those that are implied from the purposes and functions of organizations. It is sometimes claimed that the basis of the latter implied powers is broader than that of the former. However, in most cases, purposes, functions and explicit powers are used interchangeably as a basis for implied powers.
Another method that is commonly used to determine the viable extent of implied powers is the question is the power in question necessary or essential for the organization to perform its functions?’ The problem with this method is the high degree of subjectivity it has. Opinions on such matters usually differ from person to person.
The above stated modes of reconciliation have several limitations. The most effective reconciliation between the two doctrines is the existence of a judicial organ empowered to define the scope of implied powers on a case by case basis. The Court of Justice of the African Union was mandated by its Statute to perform such tasks. Recently, there are trends to merge the Court of Justice of the African Union with the African Court on Human and Peoples’ Rights to form the African Court of Justice and Human Rights. This court will have the mandate to resolve the above stated dilemma.