May 26, 2011, marked the ten-year anniversary of the establishment of the African Union, and with the sudden death of Muammar al Gaddafi, who was instrumental in the creation of the African Union, the time is ripe to fully re-assess the ability of the African Union to ensure state compliance with the Constitutive Act of the African Union (Constitutive Act) and the African Charter on Human and Peoples’ Rights (African Charter). The African continent has a long history of massive human rights abuses. Prior to 2001, the Organization of African Unity (OAU) was responsible for ensuring that African states complied with international law and respected the human rights of their citizens. Given the OAU’s many failures, including its inability to stop or prevent human rights violations, member states of the OAU elected to overhaul the OAU and establish the African Union on May 26, 2001. Previous writings by legal scholars on the African Union have generally concluded that the African Union, like its predecessor the OAU, has been unable to protect human rights in Africa or ensure state compliance with the democratic and human rights principles set forth in the African Charter.
This Article contributes to the body of scholarship on the effectiveness of the African Union by analyzing the African Union’s response to the political and humanitarian crises in Madagascar, Guinea-Conakry, Zimbabwe, Libya, and Kenya from both a realist and institutionalist perspective on state compliance with international law. This Article argues that while the African Union’s handling of the crises in Madagascar and Guinea-Conakry indicates that the African Union is successfully providing incentives for its smaller and less powerful member states to comply with the Constitutive Act and the African Charter, the African Union’s ultimate resolution of the crisis in Zimbabwe and its feeble responses to the political turmoil in Libya and Kenya signal that the African Union continues to be plagued by a number of problems, including, but not limited to, the following: limited political will, failure to timely and uniformly impose sanctions, state reporting failures, and inadequately drafted governing instruments. This Article will propose a number of solutions to these problems, such as revising the African Charter to eliminate claw-back clauses, amending the Constitutive Act, revising the protocol establishing the Peace and Security Council to remove the principle of equitable regional representation and rotation, better utilizing the African Union Commission on International Law, and revising the protocols establishing the African Court on Human and Peoples’ Rights and the African Court of Justice and Human Rights.
41 Ga. J. Int'l & Comp. L. 75 (2012-2013)