The PSC Protocol and Third Party African States
39 Pages Posted: 22 Nov 2009 Last revised: 9 Dec 2009
Date Written: November 22, 2009
With the metamorphosis of the Organisation of African Unity (OAU) to the African Union (AU) the legal framework of the continent also underwent drastic change. The Constitutive Act and the Protocol relating to the Establishment of the Peace and Security Council of the African Union (PSC Protocol) are the two most progressive instruments of the continent. The latter is essential to the causes of peace, security and human rights in Africa. Although it is commendable that the Constitutive Act and the PSC Protocol have already acquired 53 and 43 ratifications respectively, it is also important to note that certain parts of the latter instrument have application on third party African States. There are many ways by which the Protocol applies (binds) the ten African countries that have not ratified it. (1) The textual reading of the Protocol simply engulfs third parties and an argument can be made to the effect that African leaders intended the Protocol to bind all AU members without the need for their consent. Indeed, this argument is plausible because to a large extent, the Protocol is an implementation mechanism of grand principles accepted by all African countries under the Constitutive Act. (2) The exception principles of the Vienna Convention on the Law of Treaties (1969) (VCLT), under which circumstance a treaty binds a third party State, seem to apply to PSC Protocol. (3) The Protocol also embodies customary international and African law which binds all African States independent of their consent.
Keywords: African Union Peace Security Council Non-Member States Vienna Convention Law Treaties
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