Tension between the African Union and the United Nations Security Council: the pursuit of balance between international legal formalism and its development
Abstract
In the wake of increased regionalisation within Africa and beyond, the legitimacy and authority of the United Nations Security Council (UNSC) has become a controversial area within the sphere of public international law. Contentious issues regarding certain legal frameworks of regional organisations, which ultimately ensure their potential efficacy and efficiency, have become a popular topic of debate within the various branches of the African Union (AU) and the United Nations (UN). Since the advent of the UN, the conduct of the AU has been subject to the legal and operational constraints imposed upon it by the Charter of the UN.[1] More specifically, AU member states’ ratification of articles 39, 41, 42 and 53(1) of the UN Charter has often compromised their ability to comply with their responsibilities and duties owed to the AU.[2] Even though the outgoing Chairperson of the AU, Jean Ping, clearly asserted that the AU aims to place greater value on the improvement of the strategic partnership between the AU and the UN,[3] tension between the two organisations subsists. Two core areas where such discord has been aggravated pertain primarily to the conflicting and often overlapping provisions of the Constitutive Act of the AU (the Constitutive Act) and the Charter of the UN (the Charter) within the ambit of intervention in African states, and secondly to the beleaguered nexus between the AU, UN Security Council and the International Criminal Court (ICC).
In light of the aforementioned, this article will first provide a brief account of the history and development of the AU and its institutions which are relevant to the development of international law. Secondly, the tensions between the AU and UN Security Council will be expounded upon, focussing specifically on two central components: the issue of AU and UN legal formalism in relation to provisions associated with intervention in African member states, and the AU’s disillusionment with the UN Security Council’s politicisation of the ICC’s Rome Statute. Lastly, an elucidation of the impact such tensions have had on international law generally, and international criminal law specifically, will be briefly outlined with a view to providing solutions as to how AU-UN Security Council tensions can be addressed through the law.
