The move from institutions? Examining the phenomenon in Africa.

INTRODUCTION

The recently issued National Security Strategy of the United States (March 2006), reaffirms the preference for informally created institutions or networks with selective membership increasingly favored in U.S. policy. It describes them as partnerships that emphasize international cooperation, not international bureaucracy; rely on voluntary adherence rather than binding treaties; and are oriented towards action and results rather than legislation and rulemaking. (1)

Some commentators have concluded that these networks manifest a move away from institutions. One of my copanelists, Prof. Eyal Benvenisti, has described this trend in his presentation and in a forthcoming publication as thus:

This new attitude toward international obligations reflects both the

availability of novel ways for governments to interact across

political borders, as well as new concerns about international legal

tools, especially the formal international institutions. This

preference for informal lawmaking suggests that international

cooperation can be achieved without recourse to international legal

tools and that the informality offers significant benefits

to some governments. (2)

The phenomenon of "coalitions of the willing" as an informal mechanism for circumventing the bureaucratic strictures and international rule-making or legislative processes of formal international institutions has become more pronounced lately with the proliferation of various coalitions of like-minded states led or inspired by the United States. Yet, the history of this phenomenon has a far longer and more complex life. (3) Most of these coalitions involve countries from the global North, but they are by no means limited to these states. Similar developments--albeit of a limited nature and scope, and of more recent pedigree--can be identified among states of the global South as well.

My presentation focuses on the emergence of this phenomenon in the global South and is aimed at demonstrating that the move away from institutions may be occurring not only with respect to the universal or global institutions but also at the level of regional institutions, such as the African Union (AU). In my view, the New Partnership for Africa's Development (NEPAD) presents the closest example of this phenomenon in Africa.

NEPAD: A MOVE FROM THE AU?

NEPAD is nowadays commonly described as an integral program of the AU, the regional organization that superseded the Organization of African Unity (OAU) in July 2002. Yet, NEPAD originally was conceived as a separate framework for interaction and cooperation among a self-selected group of African states, operating as a parallel structure to the OAU. Although African political leaders subsequently decided to adopt it as a program of the OAU, I would argue that NEPAD was intended to be, and remains, an exclusive, voluntary coalition of like-minded states. From a structural and operational point of view, it remains a separate entity from the AU, notwithstanding the political rhetoric suggesting otherwise. The establishment of a separate small, "core" secretariat for NEPAD in Midrand, South Africa, away from the headquarters and international bureaucracy of the AU in Addis Ababa, Ethiopia, is itself a manifestation of this position. In addition, the different approaches taken by the AU and NEPAD leaders in presenting the two initiatives to African governments, civil society groups and Africa's external development partners, in particular the G8 countries, reinforces this view.

Time constraints do not permit me to discuss in any meaningful detail the history, process and content of NEPAD or its relevance for solving Africa's developmental problems, etc. In any case, not all these issues are pertinent or relevant to the examination of the phenomenon of the move from institutions. But a brief historical outline is necessary.

A Brief Historical Background

NEPAD is an amalgamation of two originally separate initiatives. The first started off as the Millennium Africa Recovery Plan (MAP), which was conceived principally by President Thabo Mbeki of South Africa, with the collaboration of Presidents Obasanjo of Nigeria and Bouteflika of Algeria in 2000, as part of his drive for an "African Renaissance." MAP merged with the OMEGA Plan developed by President Abdoulaye Wade of Senegal to form the New African Initiative (NAI) which was subsequently endorsed by the OAU summit held in Lusaka, Zambia, in July, 2001, after much debate. The title NAI was later changed to NEPAD by the Heads of State and Government of the Implementation Committee (HSGIC) at its meeting on October 23, 2001, in Abuja, Nigeria. The amalgamation of the two initiatives was based on the recognition of the synergies and complementarities between them: they were both grounded on the conviction that Africa must take responsibility for eradicating poverty and placing itself on a path to sustainable growth and development, and thus halting the marginalization of the continent in the globalization process. This vision remains at the heart of the NEPAD initiative. (4)

The debate over the apparent duplication in the MAP and OMEGA plans was only one thing. A more serious debate revolved around the suspicion that the originators of these initiatives were seeking to establish exclusive frameworks for cooperation and development partnerships among selected African states and the international community operating outside, and parallel to, the OAU. In other words, the suspicion that these initiatives perhaps represented the beginnings of a move away from the continental institution. Of course, this was not expressed in as many words, nor was the language of "coalition of the willing" used yet. President Mbeki's own vision of his original MAP initiative was expressed as follows:

[Our] aim is to be as inclusive as possible. [The] implementation of

the plan will commence as soon as briefings have been completed and

commitments made by a critical number of African countries.

[Countries] that are not ready will be welcome to join later. (5)

Although the process is claimed to be "as inclusive as possible," it really is an exclusionary and two-tiered approach that has remained the basis for participation in the NEPAD process and its implementation mechanism, the African Peer Review Mechanism (APRM). This has remained the case despite the clear call by the AU summit in Maputo, Mozambique, in July, 2003 for the "formal" integration of NEPAD into the structures and processes of the AU within a three-year time frame. There is no sign that this will happen any time soon. Rather, there is every indication that for some time to come, NEPAD will continue to work as a separate, though at least rhetorically affiliated, program of the AU. Its supposed integration into the AU is essentially a nod to the imperative of African solidarity and the spirit of Pan-Africanism.

A number of factors appear to have played a critical part in the creation of the NEPAD process: first, the discourse about an "African Renaissance"; second, disillusionment with the inability of the then-continental organization, the OAU, to address effectively the twin challenges of globalization and economic integration that African states were laced with as from the last decade of the twentieth century; third, the skepticism that some of the major African powers--Egypt, Nigeria, and South Africa--harbored towards (Libyan leader) Muammar Gaddafi's obsessive push for the creation of a new organization, the AU, to replace the OAU and suspicion about his true intentions and motives, including suspicion of an agenda for personal aggrandizement.

Objectives and Principles of NEPAD and the APRM

Although the NEPAD initiative primarily focuses on economics, as a development strategy it is unique in that it expressly recognizes, inter alia, that "peace, security, democracy, good governance, human rights and sound economic management are conditions for sustainable development." (6) States that volunteer to join the NEPAD process thus commit themselves to respect their obligations, assumed under the relevant regional and international treaties, in the areas of democracy, good governance and human rights. These principles have been buttressed by further undertakings embodied in the Declaration on Democracy, Political, Economic and Corporate Governance. Compliance with these undertakings is to be monitored by the APRM. Arguably, they represent a separate set of norms and new types of standard-setting, perhaps even soft law, for the participating countries.

The Declaration was prepared by the HSGIC and adopted by the AU summit in Durban in July, 2002. The states endorsing the Declaration reaffirm their commitment to the promotion of democracy and its core values in their respective countries. In addition, they undertake to work with renewed determination to enforce a range of human rights principles and obligations, including:

[The] rule of law; the equality of citizens before the law and the

liberty of the individual; individual and collective freedoms,

including the right to form and join political parties and trade

unions, in conformity with the constitution; equality of opportunity

for all; the inalienable right of the individual to participate by

means of free, credible and democratic political processes in

periodically electing their leaders for a fixed term of office; and

adherence to the separation of powers, including the protection of the

independence of the judiciary and effective parliaments. (7)

The Declaration goes on to set out other commitments in human rights and economic and corporate governance. In some respects, the commitments and obligations set out here go beyond those to be found in other African human rights instruments, including the African Charter on Human and Peoples' Rights. It incorporates various human rights and rule of law initiatives and obligations previously assumed under the auspices of the OAU and the United Nations. Of course, as a Declaration, it is not as such binding. But it is supported by a Memorandum of Understanding on the APRM: this is the actual legal instrument that all AU member states who want to be part of the NEPAD process are encouraged to accede to voluntarily. Once a state elects to join this process, it submits to a peer review of its compliance with the commitments and obligations set out in the Declaration and other relevant instruments.

Both NEPAD and the AU have been endorsed by virtually all international aid agencies as the general framework for development in Africa and as a tool for advancing human rights, the rule of law, democracy and good governance in the continent, and for consolidating compliance with existing legal obligations, based on treaties and other soft law instruments, in this field. However, it is generally agreed that it is NEPAD that has really achieved international name recognition, rather than the other documents of higher legal standing and more detailed content adopted by the OAU or AU. (8)

Impact and Implications of NEPAD for the AU

As with the phenomenon of coalitions of the willing, the move away from institutions is predicated on the idea of interstate or intergovernmental interaction deliberately oriented toward action and results rather than legislation and rule making. As such, it has been suggested that the process might well manifest the desire of actors in the international arena to try new things to make existing rules of international law either relevant or irrelevant in their relationships. It may also involve shifts from traditional notions of international law to innovations aimed at making the international legal process more realistic in terms of the ideals of particular entities that function in the international arena. NEPAD and the APRM both aim at ensuring compliance with the obligations of participating African states with a variety of principles, standards, values, and codes of conduct established by the founding states as the basis for their interstate interaction. The principal mandate of the APRM is to "ensure that the policies and practices of participating states conform to the agreed political, economic, and corporate governance values, codes and standards contained in the Declaration on Democracy, Political, Economic and Corporate Governance." (9) Some of these principles, standards, codes, and values are not necessarily grounded in international treaties or other prescriptive instruments that the states have adopted under the aegis of the AU (or OAU). Thus, their incorporation may represent a shift in African regional international law and relations. This is likely to be the case, especially, with respect to the principles and standards relating to human rights.

At this writing, 26 countries, nearly half of the members of the AU, have signed up to join the APRM process. By contrast, less than a third of the 53 AU member states have ever submitted their mandatory periodic country reports under the African Charter on Human and Peoples' Rights during the last twenty years. The critical consideration here is the incentive of gaining access to external development aid based on a favorable review of their compliance with the NEPAD human rights and good governance obligations. This might suggest a preference for informal lawmaking over binding treaty obligations. It also raises some questions: What is the potential for the informal NEPAD standards, values and codes to shape the responses of governments in Africa, including those of non-participating states? What impact is NEPAD likely to have on the AU as a parallel, informally created process? Will it turn out to be better suited for producing results rather than legislation?

CONCLUSION

I share the view that the ability of NEPAD and the APRM to shift the normative framework will depend on their willingness to accede to objective voluntary peer evaluation and pressure, rather than punitive and overly prescriptive measures. (10) If implemented as originally proposed, the peer review mechanism would allow an unprecedented degree of intrusion into matters that have always been shielded behind the principle of state sovereignty. However, NEPAD started off as a parallel structure to the OAU/AU, allowing for a two-track process. Its rhetorical incorporation into the AU, the inclusion of certain countries, such as Libya, into the HSGIC and the adherence to the APRM of states (for example Ethiopia and Sudan) that are not known for their respect for human rights and some of the fundamental principles and values set out in the Declaration may have changed all that. It may, therefore, be premature to conclude with any degree of certainty that NEPAD manifests a complete move away from the AU. On current evidence, it is only a partial, but significant, move.

(1) NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 46 (2006), available at <http://www. whitehouse.gov/nsc/nss.pdf>.

(2) Eyal Benvenisti, "Coalitions of the Willing" and the Evolution of informal International Law, in "COALITIONS OF THE WILLING"--AVANTGARDE OR THREAT? (C. Calliess, G. Nolte & P.-T. Stoll eds., forthcoming 2006).

(3) See remarks by Leonard S. Spector, International Coalitions of the Willing, 99 ASIL PROC. 251 (2005).

(4) See NEPAD Document (October 2001), [paragraph] 67, available at <http://www.nepad.org/AA0010101.pdf>.

(5) Thabo Mbeki, Africa's People Central to Success, of Recovery Programme, ANC Today, Feb. 2, 2001, available at <http://www.anc.org.za/ancdocs/anctoday/2001/at02.htm>.

(6) See supra note 4, [paragraphs] 49, 71, 79.

(7) See Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235 (XXXVIII) Annex I, art. 7, available at <http://www.nepad.org/2005/files/documents/2.pdf>.

(8) B. Manby, The African Union, NEPAD, and Human Rights: The Missing Agenda, 26 HUM. RTS. Q. 983, 984 (2004).

(9) African Peer Review Mechanism, AHG/235 (XXXVIII), Annex I, art. 28, available at <http://www.nepad.org/ 2005/files/documents/2.pdf>.

(10) V. O. Nmehielle, The African Peer Review Mechanism Under the African Union and Its Initiative: The New Partnership for Africa's Development, 98 ASIL PROC. 240, 245 (2004).

Tiyanjana Maluwa, H. Laddie and Linda P. Montague Professor of Law, Pennsylvania State University, Dickinson School of Law.