International institutional law is a body of law that dares to make a systematic study of the institutional problems which arise or may arise in all or most international organizations. International institutional law has to be distinguished from the general law of international organizations, as the former is limited in scope to the institutional aspects of the said organizations.
A writer named Jenks described the law governing the structure and general operations of public international organizations as the ‘personal law of the organization that governs its corporate life.’ He writes :
If a body has the character of an international body corporate, the law governing its corporate life must necessarily be international in character; it can not be the territorial law of the headquarter of the body corporate or any other municipal legal system as such with out destroying its international character. The law governing its corporate life will naturally cover such matters as the membership of the body, its competence, the composition and mutual relations of its various organs, their procedure, the rights and obligations of the body and its members in relation to each other, financial matters, the procedure of constitutional amendment, the rules governing the dissolution or winding up of the body and the disposal of its assets in such a contingency. It may also cover the mutual relations of the body, its members and its various organs in respect of matters involving third parties.
From the above reading, it can conclusively be inferred that the law governing the corporate aspects of international organizations is inevitably international in character, and hence it is international law in essence. As it has been said above, international institutional law focuses on the institutional and related law of public international organizations. To be specific, it normally covers such subjects as the interpretation of texts, membership, budgeting, international personality and capacities of the organization in issue.
When a study is made into international institutional law, a focus is bound to be made on the international organization that is being the focal point of the study. Each organization has its own features deserving a separate treatment of its own. In connection with this, Amerasinghe:
There are still no general rules or principles relating to international bodies corporate to which we can automatically turn when in search of their personal law. We have no recognized body of such rules or principles even as regards the existing types of international body corporate; as regards possible further types of international body corporate we are entirely in a realm of speculation. For the existing types we have the constituent instrument of each of the bodies concerned, amplified somewhat by its constitutional practice, and calling for interpretation in accordance with the general principles of treaty interpretation recognized by international law.
The theme of the above quotation suggests that there is no ‘law’ of international organizations but there are ‘laws’ of international organizations. One author stated that since the law governing each organization is to be found in or flows from its constitution, and constitutions are individualized instruments, there can be no general law nor general principles of applicable to all or several organizations.
Though each international organization has its own unique features in terms of its institutional operations and the law applicable to it, it does not mean that there is nothing in common between international organizations of different characters. To use the words of Amerasinghe, uniformity or similarities exist; for instance, in the general principles which apply (e.g. in interpretation) as a result of the application of conventional law (e.g. privileges and immunities), in customary international law which applies (e.g. responsibility of and to organizations) as a result of the applications of general principles of law ( e.g. ultavires and employment relations) and because there are (may be ) similarities in constitutional texts of different international organizations.
The followings are the significant and distinctive features of international institutional law in general:
- the constitutional texts and law creating practices of any organizational will establish law for that particular organization which law will not necessarily and as such be binding on other organizations (e.g. amendment and structure of organs);
- where constitutional texts are similar, the interpretation or development by practice of those texts by one organization may, however, provide precedents or guidelines for another organization ( e.g. membership);
- In some areas customary international law as being generally applicable will govern (e.g. responsibility of and to organizations and interpretation of texts.);
- there are general principles of law which are applied across the board in certain areas (e.g. the doctrine of ultra vires and employment relations);
- certain presumptions and implied principles (sometimes flowing from relevant judicial decisions) will apply as general law in the implementation and interpretation of organizational constitutional law( e.g. international personality, liability vis-à-vis third parties of members of an organization for its obligations); and
- In some areas general conventional law may be relevant to the operation of all or most. Organizations (e.g. immunities and privileges).
With all the above background, we can embark up on looking at the African Union law as part of the international institutional law.
The Position of the African Union in the Classification of International Organizations
This part deals with, the classifications of international organizations along with the place of African Union based on each method of classification. In so doing, an attempt has been made to compare and contrast the African Union with other international organizations such as the United Nations, the European Union and the Organization of American States.
When we try to assess the position of the African Union in the classification of international organizations, our focus would be limited to public international organizations and not to the private international organizations commonly known as the non-governmental organizations (NGOs). Hence, we discuss the indispensable criteria that a given international organization is bound to fulfill for it to be referred to as a public international organization.
The first element that is required from a public international organization is that it has to come into being by an international agreement. Creating such an organization by virtue of a multilateral treaty among sates is the most usual form of international agreement. But, it does not mean that a treaty is the only way to found an international organization. It is even possible for government representatives assembled in a conference to decide on the establishment of an international organization without using a treaty. There are different reasons why states prefer a treaty.
First of all, organizations which are not created by a treaty will have to prove the existence of an interstate agreement when they claim a public intergovernmental status. The interstate agreement is a clear indication of this status in most cases. It has also been accepted by the United Nations as the main criterion for distinguishing these organizations from non- governmental organizations.
Another reason why an international agreement is needed is to establish the separate legal personality of the new organization, and thus distinguish it from mere organs of organizations. It is this separate legal identity that gives organizations a degree of independence that mere organs of a given organization usually lacks.
When we examine the African Union in light of the first criterion or element required from public international organizations, the African Union can perfectly be referred as such. The African Union is a result of an international agreement between 53 African states that met in Lome, Togo on 11th of July, 2000 and adopt the Constitutive Act of the African Union.
The second element or criterion that is required to be fulfilled by a public international organization is that it should contain at least one organ formed by delegates of two or more states and should not be depended on any particular state. If a certain organization is fully dependent on one national government, it can, in no way, be considered as a public international organization even when a lower organ is partly formed by officials from other states.
The African Union fulfills the second element as it has so far established ten organs of its own and even mandated its Assembly of Heads of States and Government to decide to establish others, if a need arises, as per Article 5 of the Constitutive Act of the African Union. On top of that, the organs of the African Union, as will be discussed in the next chapter of this material, are based on the common will of the African states and is not dependent on any single African nation.
The third criterion or element of a public international organization is establishment under international law. Since international agreements are normally concluded under international law and as the African Union has been founded by virtue of the Constitutive Act, which by itself is an international agreement, we can safely conclude that it fulfills this criterion as well.
Having identified what we mean by public international organizations, we can safely embark up on classifying such organizations and find the place of the African Union therein.
Depending on the purpose of the study for which the classification is used, international organizations may be classified in many different ways. Taking the function of the organization may be taken as being appropriate for the purpose of our discussion . This may help one to see what distinguishes the African Union as an international organization from other international organizations.
We can classify international organizations in the following three methods of comparison: Universal Vs Closed organizations, Intergovernmental Vs Supranational organizations and finally Special Vs General organizations.
- Universal or Open Vs Closed Organizations
A universal organization is one which includes in its membership all the states of the world. This is not the case of any past or present international organization yet. Thus, it may be more accurate to use the terms “universalist” suggested by Schwarzenberger or “of potentially universalist character” used in the treatise of Oppenheim…While the organization is not completely universal, it tends towards that direction.
One can deduce from the above reading that what are normally referred to as general or open organizations are those whose membership is open to any state based on its volition. It has to be noted that the existence of certain conditions to be satisfied for admission thereto do not affect the “openness” of the organization. For instance, the United Nations, which is an ideal example of a general international organization, requires a state to accept and be bound by its Charter for it to be admitted to the United Nations.
As opposed to universal organizations, some organizations seek membership only from a closed group of states and no members from outside the group will be admitted in any case. There are three types of closed organizations: regional organizations, organizations of states with a common background (e.g. language or a political system,) such as the Common Wealth, and closed special organizations (e.g. Article 7 of the statute of the Organization of the Petroleum Exporting Countries (OPEC) provides that membership is open to any country with a fundamentally similar interests to those of member countries.
At this juncture, it seems easier to classify the African Union as a closed international organization mainly because it is a regional organization in which a country from out side of Africa can not be a member. Article 29 of the Constitutive Act of the African Union makes admission to membership open only to an African state. The European Union and the Organization American States share similar characteristics with the African Union, in this regard.
- Intergovernmental Vs Supranational Organizations
The distinction between intergovernmental and supranational organizations serves a lot in appreciating the legal mandates of a given organization. Before embarking up on taking a position as to whether the African Union is an intergovernmental or a supranational organization, it would be wise to see the fundamental characteristics of each type of organization.
The following are the most fundamental characteristics of intergovernmental organizations:
- The decision making powers are, in fact, exercised by representatives of governments. Organs composed of persons independent of member states, committees of experts or parliamentary assemblies may play, an advisory role; but they will generally not have the power to take final decisions.
- In important matters, governments can not be bound against their will. Intergovernmental organizations seek collaboration among governments, and are in no way superior to them. Although intergovernmental organizations can some- times make binding decisions, this is only possible where the decision in question enjoys the unanimous approval of all members .By voting against a draft decision, a government can thus prevent its adoption.
From the above fundamental characteristics, one can easily deduce that intergovernmental international organizations are like a common forum for member states in which they act on a collective basis whereas the organization by itself cannot act as a vanguard of its member states and make binding decisions concerning the latter. Unlike supranational international organizations, intergovernmental ones are established for cooperation between governments or governmental organs without involving the legislature, the judiciary and citizens of their member states.
Coming back to the supranational international organizations, the following are their most fundamental characteristics:
- The organization should have the power to take decisions binding the member states.
- The organs taking the decisions should not be entirely dependent on the cooperation of all the member states. Some independence may be obtained in two ways. First, by allowing binding decisions to be adopted by majority vote, so that the member states can be bound against their will. Second, by composing the decision making organs of independent individuals.
- The organization should be empowered to make rules which directly bind the inhabitants of the member states. This power enables the organization to perform governmental functions without the need or the possibility for national governments to transform the rules of the organization in to domestic law.
- The organization should have the power to enforce its decisions. Enforcement should be possible even without the cooperation of the governments of the states concerned. It may well be possible that other organs of the member states are used to aid the organization in this field. Thus, a national parliament and the national judiciary may coerce their government to fulfill its obligations to the organization.
- The organization should have some financial autonomy. The financing of organizations from funds entirely subscribed by the member states leads to a dependence extending beyond the purely financial field. By refusing to provide the organization with sufficient income to appoint qualified staff members or necessary equipment, governments could hamper the functioning of the organization.
- Unilateral withdrawal should not be possible. In a supranational organization, the members should not even have the power collectively to dissolve the organization or to amend its powers without the collaboration of the supranational organs. The organization can not rank above its members while it depends on their agreement for its continued existence.
The characteristics of supranational international organizations are stringent to be fully complied with by most of the international organizations that exist today. In the strict sense of its characters, there is no such organization to date. The European Union is usually cited as the only prominent example in this regard. This does not, however, mean that the European Union can fully suffice to be named a supranational organization. It is commented that even the most important decisions of the European Union are made by compromises between the participating governments.
As indicated above, so far, there is no organization which is fully supranational. This makes the term supranational a relative one. The formula suggested is that the closer the aforementioned characteristics are to being fulfilled, the more supranational the organization will be. It is with this parameter that the European Union is considered as being more supranational than others. “The following has been said about the United Nations. ‘The United Nations is not a supranational organization but it has the supranational characteristic of taking decisions by majority vote. Although the United Nations can take decisions on peace keeping against the wishes of some members, it has encountered difficulties when these members refused to pay the expenses related to these decisions.’
With all the above background, we will encounter an issue whether the African Union is an intergovernmental or it is a supranational organization. It has to be recalled that being supranational is a matter of relative assessment. So it would be wise to look at the institutional structure and functioning of the African Union to decide on the issue at hand. This, however, will take us too far. Hence, it would be more appropriate to take this issue as it is and single out the supranational characteristics of the organizations as we deal with the institutional structure of the African Union in the next chapter.
For the purpose of this section, we can safely conclude that the African Union has more supranational characteristics than that of its predecessor i.e. the OAU. To take one point of comparison, Article 36(b) of the OAU Charter named non-interference in the internal affairs of member states as one of its principles .This clearly denotes that OAU had no say over what is going on inside its member countries. The African Union, on its part, establishes “the right of the union to intervene in a member state pursuant to a decision by its Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” (Art 4(h) of the Constitutive Act). This suggests that African Union has more supranational characteristics than its predecessor.
To take another point that signifies the increasing supranational character of the African Union, it is better to see Article 35 of the Statute of the African Court of Justice and Human Rights. Under the proposed merged court, which is a relatively recent phenomenon, locus stand has been broadened to include individuals and relevant human rights organizations accredited to the African Union or any of its organs. Accordingly, the old requirement of an additional declaration to allow individuals and NGO petitions has been dispensed with, and the majority of victims can approach the proposed The African Court of Justice and Human Rights. This development shows that at least one of African Union’s organs has become accessible to non-state actors. This is a typical feature of a supranational (transnational) organization. The trend is going towards increasing the supranational character of the African Union though it can not be accurately referred to, as such, as it stands today.
- Special Vs General Organizations
Special organizations are those which are established to perform a specific function and are usually referred to as functional or technical organizations. Their main characteristics are the limited scope and technical nature of their tasks. The World Health Organization, which was founded for improving health, may be considered as an example in this regard. In such organizations, members usually delegate experts instead of diplomats to the meetings of the organization.
General or political organizations, on their part, are founded for achieving different goals. They are mainly characterized by the vastness of the fields they may cover and the presence of diplomats or politicians, instead of experts on particular issues, in the delegations of their member states.
The African Union, like the United Nations, the European Union and the Organization of American States, is a general organization as it is established to pursue seventeen objectives of multifaceted character.