I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows, which are extremely fluid, but the number of asylum-seekers may range from around17,000 to over 30,000, mostly from the African countries mentioned above.¹ The number of refugees recognized under the Convention by Israel since ratification in 1954? One-hundred and seventy (170). The bulk of these asylum seekers began to arrive in 2005 and although many have since left the country, there are still thousands who remain with precarious status in Israel.

These asylum seekers arrive in Israel by way of a treacherous journey through the Sinai desert and across the Egyptian border, but this is hardly the last barrier they face. Some are immediately sent back to Egypt (so-called “hot returns”), in violation of the peremptory norm of non-refoulement which intends to prevent refugees from being returned to the site of their persecution. This is particularly egregious as the abuse of these migrants by Egyptian authorities is well documented; last spring a principled company of Israeli Defence Forces (IDF) soldiers serving on the border refused to carry out the return of African refugees as they knew the Egyptian border police routinely shot at, sexually assaulted, and even murdered these migrants.

Provided they pass the border successfully, there is still the threat of detention: as of 2009, two thousand asylum seekers were detained in Israeli prisons for indeterminate periods of time, even as unaccompanied minors.² The government distinguishes between those asylum seekers who have contacted the UN High Commissioner for Refugees (UNHCR) to file a petition and those who are apprehended before doing do — the latter are arrested, detained indefinitely, and are eligible for deportation. This places those who arrive at the border and make a claim for refugee status at a disadvantage to those who are able to evade the authorities until they reach Tel Aviv to make a claim with the Commissioner.³

Israel began to assume control over its refugee status determination (RSD) from the UNHCR in 2002 and it now has full control over the system. This process is problematic as the country has no refugee law: asylum seekers have effectively no right representation, appeals must be made to the body responsible for the first decision, and issues of standards obviously arise in attempting to coordinate efforts amongst two bodies with divergent institutional interests.⁴ Asylum seekers’ rights to earn a livelihood and to move freely around the country are restricted: the conditional release documents given to the vast majority do not permit them to work and they often restrict the holder from traveling to or living in key labour market areas.⁵ They are also excluded from receiving social assistance.

What’s more, many asylum seekers are stamped as enemy nationals automatically upon arrival. Last March the Israeli parliament passed a first reading of a bill to update an old emergency measure that the government is currently using to restrict migration flows. The Infiltration Prevention Bill would reaffirm a policy that allows the government to detain “infiltrators”, defined as citizens of an enemy country, for up to seven years; anyone caught with a weapon, even a knife, could face 20 years. The Sudanese government is hostile to Israel and is therefore an enemy country, like most Arab states and Iran. This means that all of its nationals are automatically deemed a security threat and this law could be used to prevent their recourse to flee from the conflict in the region. This is in clear contravention of Article 3 of the convention which forbids receiving countries to discriminate against applicants on the basis of race, religion, or country of origin. Furthermore, anyone who would assist asylum seekers in easing their stay in Israel would also be subject to the same maximum penalties of 20 years behind bars. This means that the dynamic and committed Israeli citizens we met on a field visit with the Hotline for Migrant Workers in Tel Aviv could be potential criminals, all for working to promote the human dignity of refugees and migrant workers.

While Israel has ratified the Refugee Convention, it has not implemented it into its domestic law. Still, the country’s supreme court has affirmed has accepted the Convention as an interpretive guide and in El-Tai’i v. Minister of Interior the court affirmed that the principle of non-refoulement is binding.⁶ This case is yet another testament to the limits of international treaties and human rights standards. How Israel will deal with these asylum seekers is not a simple question of respect or non-respect of the Refugee Convention; the country has underlying identity issues that complicate matters greatly.

As Tally Kritzman-Amir of the Van Leer Jerusalem Institute reminds us⁷, Israel is unlike many other democracies in that to protect the Jewish character of the state, its immigration regime grants citizenship only to Jews and their relatives. Demographics cause the country a great deal of anxiety; it has an interest in maintaining a population advantage over the 20% Arab minority. The reception of African refugees, particularly those from the Sudan who are mostly Muslim (apart from the South Sudanese Christian minority), cannot be assessed without regards to these ethno-religious overtones. Since immigration regimes are governed by the sovereign will of the state, the policy of Jewish return is not in question here. However, this prerogative cannot seep into Israel’s commitments to the international refugee regime if it is to remain an institution based on the principles of non-discrimination.

This influx of migrants is, without a doubt, a massive destabilizing agent in a country of seven million. Still, Israel is actually under no international legal obligation to naturalize these asylum-seekers and refugees; indeed, many of the 170 who obtained refugee status were resettled to other countries like Canada.⁸ The country must only make good on its commitments to international refugee law by giving asylum seekers, regardless of origin, a fair chance at RSD. Donors would jump at the opportunity to fund Israeli efforts to integrate and resettle refugees and display their commitment human rights. And it costs nothing to grant the thousands of asylum seekers in the country the right to work legally and with dignity while their cases are reviewed. Israel describes itself as “the only democracy in the Middle East” and in keeping with this, it should aspire to develop a more cosmopolitan refugee regime, not one that would marginalize some of the most vulnerable people under the banner of security and sovereignty.

The most common reasons propagated for this trend include the low volume of global trade emanating from and to Africa, African countries’ inability to navigate the complicated and expensive DSS, and a lack of expert trade lawyers. Whilst these factors are accurate and helpful in explaining African absenteeism in the DSS, it is important to examine the WTO DSS itself. It is vital to consider the functioning, structure and jurisprudence of the system itself for potential failings that can assist in helping explain African countries’ minimal involvement. A key area to consider is the implication of jurisprudence on African countries despite their engagement in the DSS as primary parties. Dispute Panels and Appellant Body render significant decisions that often have a direct impact on African countries’ trade policies with little to no contribution by the very African countries that stand to gain or lose a great deal.

An example of a pivotal and far reaching Panel and Appellant Body ruling has been the India-Quantitative Restrictions (QR) on Imports of Agricultural Textile and Industrial Products case (August 1999). The Appellate Body upheld the Panel’s finding that WTO panels are competent to hear any complaints regarding measures for which a GATT Article XVIII balance-of-payments justification is evoked as a defence to a trade violation sanction. GATT Article XVIII:B is a special provision for developing countries which allows their economies that can only support “low standards of living and are in the early stages of development”, to restrict imports if they face balance-of-payments problems.

Essentially, this ruling brought – within the WTO’s dispute settlement jurisdiction – matters that should be handled by the political organs internal to the WTO. The Balance-of-Payments Committee and the General Council are two such political bodies. This decision makes this provision much less effective and thereby takes away a mechanism for developing countries to correct trade imbalances. In the long run, it weakens their position even further. The immediate implications are that countries with balance-of-payments problems  – including many African countries – have lost the opportunity to discuss this issue in a diplomatic forum such as the General Council, where development challenges could be better articulated than in the dry legalistic dispute settlement system.

This is only one example where it is clear that the WTO DSS has failed to be sensitive and accommodating to the unique situations of developing countries. In particular, the Appellant Body failed to anticipate and appreciate the long term negative effects of their ruling on African countries. This example is one of the possible reasons that helps explain African countries’ failure to take advantage of the WTO DSS.

To conclude, on one hand, the fact that the majority of WTO is made up of African countries counts for nothing until this presence is coupled with a strong understanding of the DSS mechanism. This issue is of pressing importance simply because African countries, especially the weakest of them, need the WTO DSS. As the Dispute Settlement System evolves along with International Economic Law, it will serve African countries well to get involved in reshaping new sets of legal principles and procedures that govern the system. However, on the other hand, there is clear evidence that the integration of African countries into the multi-lateral Dispute Settlement System has been a process leaving much to be desired. There is a great need for reform and sensitivity of the system that will ultimately enhance the long-term stability, predictability and legitimacy of the WTO Dispute Settlement System. A failure to reform could mean that the DSS will remain fundamentally prejudicial to the long-term position of African Countries and other developing economies in the global trading system.

Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?

One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically requiring the transfer of all information (with regard to art. 73(e), UN Charter) about states to the peoples of those territories. However, in defining a colonial situation, Resolution 1541 introduced what has become known as the ‘salt water test’ or salt-water thesis. A colonial situation is “a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it” (Principle IV). Any subjugated entity geographically separate, by ocean or sea, qualifies as a colonial entity – hence the title, ‘salt-water’. Any internal domination or adjacent colonization – not geographically separated – did not count as colonial.

The constricted definition of colonialism was contested at the time by a more expansive notion. Peter Thornberry explains how the salt-water test came about in contrast to the more radical ‘Belgian Thesis’.1 Belgian representatives argued that a ‘Non Self-Governing Territory’ under Chapter IX of the UN Charter could have a meaning beyond ‘across-the-sea’ colonialism. For example, many indigenous groups of the Americas had territories within defined limits, and were homogenous peoples distinct culturally, linguistically and ethnically from the dominant society. This thesis failed to garner support from enough nations. Critics argued it would enable the fragmentation of countries by minority groups. Later one Belgian diplomat admitted it was a ploy to detract from the larger decolonization issue. Nevertheless, the problem still remained: many subjugated groups were excluded from the 1960 definition.

As mentioned above, the legitimation of emancipation struggles by international institutions, exemplified by Resolutions 1514 and 1541, coincided with the emergence of a host of newly independent nations. Countries followed the principle of uti possidetis juris, which holds that post-colonial borders should stay the same. This resulted in many internal political struggles. Today, Western Sahara’s legal status is still ambiguous – with competing claims from the Kingdom of Morocco and the Western Sahara-based Sahwari Arab Democratic Republic. When Spain left in November 1975, both adjoining states, Mauritania and Morocco annexed parts of its territory. The same year, an advisory decision was rendered by the International Court of Justice, sought by the UN General Assembly in December 1974. While a majority of judges in the decision found some legal ties to both Morocco and Mauritania, Judge Hardy Dillard offered this maxim, “it is for the people to determine the destiny of the territory and not the territory the destiny of the people.” Still today, in conflicts like that of Western Sahara, the limited 1960 definition only serves to murky the waters rather than offer a clear road to self-determination.

The salt-water test leaves much to be desired. Self-determination is still a problem in post-colonial states. One scholar asserts Resolution 1514 “purg[ed] the colonial taint from the letter of international law”, but this view does not consider the wider context.2 The importance of these resolutions must be considered in a nuanced way – not as a simply effervescent response of the international community to the liberation struggles of the global south, but instead as geopolitical posturing of Western powers using international legal instruments. Remnants of colonial discourse remains within United Nations institutions – art. 38 of the statute of the International Court of Justice, in listing the sources of international law, mentions the laws of “civilized nations”, thereby implicitly recognizing an uncivilized Other. In evaluating the development of international law and its norms, we must be wary of taking an approach which ignores the socio-political factors of the context. Resolutions 1514 and 1541 helped usher an important shift in the dialogue of international law but was a hesitant response to global events, not prosaic law-making on the part of the United Nations.

_____________________________
1. P. Thornberry, “Self-Determination, Minorities, Human Rights: A Review of International Instruments,” The Int’l and Comp. L. Quarterly, Vol. 38, No. 4 (Oct., 1989), 867-889.
2. N. Berman, “The International Law of Nationalism” in D. Wippman, International Law and Ethnic Conflict, Cornell UP, 1998, 39.

Economists project that China will soon become Africa’s largest trading partner with trade figures set to hit a record high of more than $100 billion in 2010. The International Monetary Fund recently predicted that growth for Sub-Saharan Africa, which typically includes 47 countries (excluding North Africa), should reach 5% this year, up from an earlier prediction of 4.5%.[1] In 2011, it said, growth could rise to 5.5%.[2] Increased trade with China is a significant contributor to this better-than-expected growth. A key indicator of the new strategic trade partnership between Africa and China was the high-profile visit of President Jacob Zuma of South Africa, Africa’s emerging economy, to Beijing this past August. He travelled with a delegation of almost 400 business executives and 11 Cabinet members. The two nations signed a number of Memorandums of Understanding to deepen and broaden trade in strategic sectors such as mineral resources, environmental management, and transport infrastructure. More importantly, the two leaders pledged to step up legislative cooperation to cement the China-SA bilateral strategic partnership.

However, many scholars have raised concerns as to whether African countries have the necessary legal and regulatory institutions to deal with this influx of Chinese investment. In a recent online debate held by The Economist Online, George Ayittey, a renowned Ghanaian economist at the American University in Washington asserted that the nature of the Chinese deals bother him.[3] Such deals tend to be secured through secrecy, bribery, payment of kickbacks and building presidential palaces. Judicial weakness and underdeveloped regulatory regimes are central to these concerns. Particularly troubling is the recent news that on the 15th October 2010, 11 miners, whilst protesting low wages and poor working conditions at the Collum Coal Mine in southern Zambia, were shot by their Chinese managers. This questions whether domestic labour laws are robust enough to protect the rights of Zambian and other African workers. Many are also sceptical as to whether the Zambian judicial system can withstand political pressure from the executive branch not to severely punish the valuable Chinese investors.  In addition to this incident, in 2005 an explosion at a copper plant owned by China Nonferrous Metal Mining Group killed 46 miners.  This tragedy raised concerns about the ability of African safety regulatory regimes to mitigate operational risks and to protect the environment – especially in extractive industries. Critics claim China has taken advantage of the snail-paced rate of institutional reform, weak judicial systems and poor safety enforcement in African countries.

Notwithstanding the above reservations, the China-Africa story is not all doom and gloom. For example, consider the perceived negative relationship between Chinese investment and good governance. Against prevailing conventional wisdom, there is no evidence that Chinese companies are more attracted to dictatorially run, conflict-ridden African nations. Certainly, the examples of Gabon and Sudan amongst others are used to exemplify the negative effects. Nevertheless, the Chinese also heavily invest in countries like Mauritius, Ghana, Botswana and South Africa, which are beacons of good governance on the continent. In regard to addressing institutional weaknesses, many African governments are beginning to use international mechanisms that can assist in mitigating their institutional shortcomings and enhance transparency.  For instance, approximately 20 African countries are seeking candidacy in the Extractive Industries Transparency Initiative (EITI). The EITI requires that governments publish what they have received in the form of revenues, royalties, and other payments from extractive companies; and companies publish what they have paid to governments.

To conclude, African countries have long been neglected as viable trading partners by many Western countries (beyond the oil industry).  The Chinese have engaged beyond oil and minerals (although these constitute a large part of their African investments), trading in equipment and machinery for construction and building telecommunications infrastructure which are helping pull Africa into the 21st century. In fact, China’s single largest investment on the continent is the purchase of a 20% stake in South African Standard Bank. While it is undeniable that Chinese companies must improve labour conditions, transparency and safety standards, ultimately it is the responsibility of African governments to grow strong institutions that deal effectively with the externalities of the vast Chinese investment.

[2] Ibid.

[3] The Economist: Africa and China. http://www.economist.com/debate/days/view/465 (Accessed on Nov 2 2010)

Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative source of normative shifts.

The ACHPR found Kenya to be in violation of Articles 1, 8, 14, 17, 21 and 22 the African Charter which included the rights to free practice of religion, property, education, culture, natural resources and development. (An interesting documentary detailing exactly how the Kenyan government infringed each right can be found here). The case (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya ), is a landmark decision in that it is the first time an international tribunal has recognized the right to development. The Commission seemingly utilizes Article 22 – the right to development – as an umbrella to safeguard numerous human rights including the right to property, religion and culture. In recent years, the right to development has remained a backdrop legal right, therefore this decision can be seen as a judicial indication of the direction of this debate in the global South.

The Right to Development

While the discourse surrounding developmental issues has traditionally taken a political and economic approach, the advent of documents like the Declaration on the Right to Development as well as the African Charter has allowed the discourse to take on a legal dimension.  However, the right to development remains a controversial tool because it is a group right designed to serve the collective. But does the ACHPR go too far regarding the right? Is this right to development too broad and subsequently is it in danger of collapsing upon itself? Or is this decision a recognition that collective rights are needed in communal societies?

The ACHPR grounded its finding of a violation of the right to development on the government’s failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) to the Endorois. While the decision reflects the ideals of the African Charter, it continues to raise key questions regarding the right to development.  The basis for the decision seemingly moves this judicial organ beyond its conventional role into a politicized corridor. The broadness of the right to development allows it to touch upon the overall development process including largely political aspects like financial allocation. Ostensibly, as a result of this political aspect, the exact intersection between the right to development and human rights will continue to be illusive. Though the Endorois decision is a general step forward for the right to development, it seemingly reinforces the disconnect between the right and human rights.

The political dimension means that whether the decision will translate into concrete results remains to be seen.

Future considerations

The decision from the ACHPR requires the Kenyan government to compensate the Endorois and allow them to return to their lands. This decision, though not binding, has potential and precedential value. As Clive Baldwin, co-counsel for the Endorois, has stated:  “The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes.”  He continues by stating that “the African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them.” However, it is important to take a measured approach in ensuring that this decision does not slip through the cracks and disappear. All the key actors must be engaged. The Kenyan government, the larger African community, the Endorois and NGOs are equally important pillars that must cooperate to ensure that the decision rendered by the Commission is adhered to. Particularly, the decision takes the significant step of spotlighting an indigenous group as a stakeholder in the developmental project. An approach that continues to underscore the importance of indigenous groups as well as the more widely recognized actors will likely reinforce this decision and it will subsequently serve as a key step towards a legally recognized right to development.

Ideally, South Africa’s partnership in the Southern African Development Community (SADC) means that such migrants may have a right to be here – at least on a limited basis. Article 5 of the SADC Treaty calls for the “the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally….” Article 2 of the SADC Draft Protocol on Facilitation of the Movement of Persons aims to allow citizens free movement within the group of member states. With that in mind, the interpretation of South African immigration and refugee law can also lend itself to the theory that an economic migrant can qualify as an asylum seeker.[1] Indeed, key constitutional rights have been granted to foreign nationals who have entered South Africa illegally.[2] More often than not, migrants are arrested and deported without trial, only to attempt passage into South Africa again. Those who do make it across legally are sometimes blocked access to return to South Africa as casual labourers should they return home to visit their families. The courts have tried to stem this by requiring more clarity in the entry visa renewal administration process.[3] Yet, few migrant labourers have the resources to mount adequate legal cases against the South African government.

The South African Constitution does not mention issues of immigration or refugee law. Yet it does hold that national security issues “must be pursued in compliance with the law, including international law.”[4] The Constitution also holds:

When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.[5]

In this fashion, the constitution itself enshrines international law, including that created through treaty such as the SADC open border initiative.

South African immigration law takes a firm stand in favour of the open border initiative:

…the  contribution of foreigners in the  South  African  labour  market does not adversely impact on existing labour  standards  and the rights  and expectations of South African  workers. [6]

Yet, the reality on the ground is that hundreds of thousands of Zimbabwean people (if not millions) are in South Africa illegally. This issue has become the most pressing issue in South African immigration law. Law students at the University of Cape Town undergo a whole course unit on the Zimbabwe question in studying refugee law, and universities across the country have opened up advanced level research centres to tackle the issue.

Another reality looms over this question: the personality of President Robert Mugabe of Zimbabwe. Mugabe is ferociously attacked in the Western media. He governs a nation that suffers from unimaginable social problems. Yet, besides an aging Nelson Mandela, few major African leaders have condemned his leadership, and he retains, among a certain section of Zimbabwean and African society at large, a positive reputation in that he helped liberate the former Rhodesia from white, minority rule.[7] Zimbabweans on the whole seem uninterested in regime change and it is not certain that Morgan Tsvangirai can offer a more viable leadership to the ailing nation.

For readers who are not soccer fans, 2010 marks the coming of the FIFA World Cup in South Africa. Normally soccer has little to do with refugee and immigration law, but the tournament means an immense spotlight is soon to be placed on South Africa. As such, the government wishes to ‘clean up’ some of its worst social ills – the Zimbabwe migrant question being one of them. South African officials have resorted to using minute changes in policy to stem traffic at the border. Social activists are criticizing the host nation for spending too much time preparing for the tournament, and not tackling issues that are more important to the nation.

As pressure mounts, the government will no doubt continue this immigration and crime crackdown in the coming months. It is plausible that with the lack of a clarified set of laws, economic refugees could find their way into South Africa legally through a sympathetic courts system. If the laws are clarified and such economic migrants are excluded, what will come of the international commitments on immigration made via treaty within the SADC? South Africa is the power player within the SADC. Will politics, political influence, and the domestic agenda of the ANC outweigh South Africa’s commitments under international law?

[2] Lawyers for Human Rights and Other v Minister of Home Affairs and other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) at para 26ff.

[3] Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23 (25 August 2009) at para 60ff.

[4] Constitution of the Republic of South Africa, No. 108 of 1996, C.11 s. 198(c).

[5] Ibid at C. 14 s. 233.

[6] Immigration Act 2002, No. 13 of 2002 at Preamble (i).

[7] The author cannot back this up with any academic texts, but has had numerous conversations over the years in Ethiopia, Senegal and recently in South Africa with African professors, professionals, students and others who back Mugabe’s rule in the face of Western opposition. Of course, one can hardly blame citizens of post-colonial southern African nations for having an ‘us vs. them’ mentality – colonial or white rule ended only a generation back in most nations south of the Democratic Republic of Congo!

“Africa could rightly be described as the major theatre of contemporary cases of shared sovereignty.”[1]

It is the hope of many African leaders that greater cohesion in African trade will lead to more firm patterns of national development. Formalizing the international trade sector within Africa could lead to greater national tax revenues, a freer exchange of ideas, labour and technology across borders, the stabilization of regional agricultural and natural resource markets, and greater cooperation over shared infrastructure projects such as the creation of highways, waterways development, and even the deployment of green technology such as wind energy projects.[2]

While more flamboyant African leaders such as Muammar Gaddafi stress the need for pan-African unity (Gaddafi even calling for a United States of Africa), smaller regional unification bodies are already active. Most Westerners might be surprised that much of West Africa, the nations of the Economic Community of West African States (ECOWAS), already has a unified currency between fifteen nations. Since its creation by treaty in 1993, ECOWAS trade commissioners from a diverse array of fields attempt to integrate trans-national policies on social affairs, water resources, energy, and security matters. Just as NATO intervenes in foreign conflicts, when civil unrest unfolds in member states, such as recently in Guinea, ECOWAS applies strong diplomatic and military pressure to uphold the rule of law.

The East African Community (EAC) was first launched in 1967, but was then dissolved and later re-launched after a treaty agreement was signed in 1999 between its three original member states: Kenya, Tanzania and Uganda. Burundi and Rwanda later became full members of the EAC. The EAC has worked to harmonize national and municipal laws and strengthen the training of the judiciary within the community. The East African Passport was introduced with the creation of the modern EAC, and alongside efforts to decrease trade tariffs it has been integral to helping people and goods move across borders with relative ease. Citizens of NAFTA countries should be so lucky! The EAC envisages sharp integration in terms of foreign policy and a full monetary union under its common market – although no timetable has been set for this.[3]

Another strong regional body in Africa is the Southern African Development Community (SADC), which was established in its modern form during the waning days of Apartheid via treaty in 1992. The SADC also tackles a variety of issues, including the reduction of drug trafficking, preservation of shared waterways, and legal harmonization. A free trade area was launched in August 2008 and the SADC’s member states are now collectively pursuing investment in their national economies. The relatively light hand applied to the deteriorating situation in Zimbabwe demonstrates that the SADC lacks the diplomatic strength of a body like ECOWAS. Instead, the organization seems to focus on shared goals in economic development more than on the cultivation of shared political institutions.

An interesting development has been the launching of the Common Market for Eastern and Southern Africa (COMESA), which since its creation via treaty in 1993 has fostered closer links between the nations of the SADC and the EAC, among other nations. The United Nations Economic Commission for Africa (ECA) has long pushed for regional integration in this region,[4] which is bound together through aspects of its colonial and post-colonial identity, as well as geographic avenues of trade that makes such integration beneficial to regional development goals.[5] COMESA also extends to other nations not involved in formal regional political integration schemes, such as Ethiopia, Eritrea, Egypt and Libya. However, not all nations of the aforementioned bodies have taken part in COMESA, notably Tanzania who quit its involvement in the year 2000.

It is also notable that the nations of the Maghreb and North Africa have to this date made very few concrete efforts to engage in regional economic integration. While The League of Arab States has as its goal the promotion of commercial relations between Arabic speaking peoples, this has not translated into large-scale economic integration in the Arab world, including North Africa. Rather, the Arab League has served as a socio-political organization. Maghreb states have toyed with the idea of further economic and political integration but planning is still in the development phase.

ECOWAS, the EAC, the SADC and COMESA can all play a role in driving economic development in Africa. In particular, they can help businesses feel safe to expand across borders through more strict and clear regulation and through ensuring that proper arbitration systems are in place. Amazu Asouzu writes that post-colonial African states have traditionally not trusted larger arbitration regimes such as the International Centre for Settlement of Investment Disputes (ICSID). These states viewed “arbitration as an alien system of justice devised to subvert the institutions and interests of developing states.”[6] Political enforcement of such legal mechanisms, through mutually beneficial regional development, can play a role in helping businesses enter new markets, create jobs, and improve the lives of African peoples.

The right to development stresses the indivisibility off human rights, and the inter-linkages between civil and political rights, on the one hand, and economic, social and cultural rights, on the other.[7]

However, this brand of economic development must be coupled with a human rights and social agenda in mind – one that is backed up by diplomatic and military force if national leaders get out of hand. ECOWAS, however belatedly or poorly, has flexed its muscles to bring its member states into line on these issues. The SADC has failed to recognize these principles in its dealings with Zimbabwe. Using a dualistic socio-economic approach, the aforementioned regional bodies can be active members in helping African peoples recognize their collective right to development.

[The author will spend six months in 2010 blogging from Cape Town, South Africa, covering topics related to regional integration issues in African governance, particularly energy, trade, and security concerns.]

[2] Henry Kibet Mutai, Compliance with International Trade Obligations: The Common Market for Eastern and Souther Africa (Boston: Kluwer Law International, 2007) at 104.

[3] Ibid at 119.

[4] Ibid at 129.

[5] Ibid.

[6] Amazu A. Asouzu, International Commercial Arbitration and African States (Cambridge: Cambridge University Press, 2001) at 412.

[7] Tiyanjana Maluwa, International Law in Post-Colonial Africa (Boston: Kluwer Law International, 1999) at 312.