publication . Article . 2015

Intervention pursuant to article 4(h) of the Constitutive Act of the African Union without United Nations Security Council authorisation

Gabriel Amvane;
Open Access English
  • Published: 01 Jan 2015
  • Publisher: Centre of Human Rights, Faculty of Law, University of Pretoria
Abstract
Article 4(h) of the Constitutive Act of the African Union (AU) establishes the right of the Union to intervene in a member state to prevent grave violations of human rights. It does not state whether the AU should request prior authorisation from the United Nations (UN) Security Council, leading to many interpretations. Many articles were written on this issue at a time when the AU and the Security Council were not in confrontation. However, the situation has changed since the controversy over the arrest of President Al Bashir of Sudan, and the intervention by NATO in Libya in 2011. The AU's right of intervention may be the next controversy. This article examine...
Subjects
free text keywords: African Union, United Nations, military intervention, authorisation, Sociology, Constitutive Act of the African Union, Legitimacy, Principle of legality, Law, Human rights, media_common.quotation_subject, media_common, Charter, Member state, Authorization, Security council
Related Organizations
31 references, page 1 of 3

7 Yusuf (n 1 above) 14.

8 Resolution of the Security Council S/RES/1593 (2005), adopted on 31 March 2005.

9 Thirteenth ordinary session of the Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, 1-3 July 2009. See Assembly/AU/Dec.245(XIII) Rev 1 para 10.

10 See PSC/PR/COMM.2(CCLXV), Communiqué of the Peace and Security Council on 10 March 2011, para 6, where the PSC 'reaffirms its strong commitment to the respect of the unity and territorial integrity of Libya, as well as its rejection of any foreign military intervention, whatever its form'.

11 Echoing the AU, President Zuma stated: 'Critical to building a stronger relationship will be to avoid a situation such as that which transpired during the conflict in Libya. The AU's plan was completely ignored in favour of the bombing of Libya by NATO forces.' See Statement of President Zuma before the Security Council on the 6702nd meeting of the Council S/PV.6702 3.

12 A Acharya 'Norm subsidiarity and regional orders: Sovereignty, regionalism and rule making in the Third World' (2011) 55 International Studies Quarterly 97.

13 U Villani 'Les rapports entre l'ONU et les organisations régionales dans le domaine de maintien de la paix' (2001) 290 Collected Courses of the Hague Academy of International Law 239.

14 President Wilson's Address at the Metropolitan Opera House, New York, 27 September 1918, http://query.nytimes.com/gst/abstract.html?res=F20916F73E 5511738DDDA10A94D1405B888DF1D3 (accessed 20 December 2013).

15 JM Yepes 'Les accords régionaux et le droit international' (1947) 71 Collected Courses of the Hague Academy of International Law 259.

22 L Goodrich et al Charter of the United Nations: Commentary and documents (1969) 365.

23 Second sentence of art 41 of the UN Charter.

24 Borgen (n 19 above) 806.

25 S/PV.874, Record of the 874th meeting of the Security Council, 18 July 1960. Cuba brought the case before the Security Council. The United States and many other states were of the view that the OAS was the appropriate organisation to solve the problem in the first instance. The US first invoked the Inter-American Treaty of Reciprocal Assistance, signed at Rio de Janeiro on 2 September 1947,

25 and the Charter of the Organization of American States, signed at Bogota on 30 April 1948, arguing that '[u]nder these treaties the American Republics contracted to resolve their international differences with any other American states first of all through the Organization of American States' (S/PV.874 para 97). The US also reminded that the 'UN Charter indicates to go to the regional organization first and to the United Nations as a place of last resort' (para 102). Apart from those legal arguments, and as some other states mentioned, the US maintained that to directly bring the differences before the Security Council would undermine the actions of the OAS, and some non-American states, such as the Soviet Union, could aggravate the situation (para 101).

26 PSC/PR/COMM.(CLXXXI), Communiqué of the Peace and Security Council on 20 March 2009, para 3.

31 references, page 1 of 3
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publication . Article . 2015

Intervention pursuant to article 4(h) of the Constitutive Act of the African Union without United Nations Security Council authorisation

Gabriel Amvane;