i
LLM Thesis
International and European Law Public International Law University of Amsterdam
The Katuna border closure dispute between Rwanda and Uganda: A legal analysis of international dispute/conflict settlement mechanisms within the East Africa Community system. The way forward!
Dalton Odomoch
Thesis Supervisor: Dr Rosanne van Alebeek
23 July 2020
A Research paper submitted in partial fulfilment of The Degree of Master of Laws (LLM) in Public International and European Law
ii TABLE OF CONTENTS Contents Acknowledgement ... iv Dedication ... v Abbreviation ... vi ABSTRACT ... 1 CHAPTER ONE ... 2 INTRODUCTION ... 2 CHAPTER TWO... 6
DISPUTE/CONFLICT RESOLUTION MECHANISMS AND THE ORGANS RESPONSIBLE FOR DISPUTE/CONFLICT MANAGEMENT UNDER THE EAC SYSTEM. ... 6
2.1. Diplomatic and legally binding means of International Dispute Settlement(IDS) ... 6
2.1.1. Introduction ... 6
2.2. Institutional Framework of the EAC ... 8
2.3. Peace and Security Framework (PSF) ... 10
2.4. The Mechanism for the Prevention Management and Resolution of Conflict (CPMR) ... 11
2.5. The East African Court Of Justice (EACJ) ... 14
2.6. Situations Relating to Customs and Trade within the EAC. ... 17
CHAPTER THREE... 20
3.0. COMPARATIVE ANALYSIS OF OTHER INTERNATIONAL ORGANISATIONS AND REGIONAL BLOCS. ... 20
3.1. Introduction ... 20
3.2. The Organisation of American States (OAS) ... 20
3.3. The Organization of African Unity (now, the African Union) ... 23
3.4. The European Union (EU) and the Council of Europe (CoE)... 25
CHAPTER FOUR ... 32
4.0. RECOMMENDATIONS AND CONCLUSIONS ... 32
5.0. BIBLIOGRAPHY ... viii
5.1. LEGISLATION ... viii
5.2. CASES ...ix
5.3. TEXTBOOKS, JOURNALS, ARTICLES. ...ix
5.4. NEWSPAPER ARTICLES ... xii
iii
Declaration
I, Dalton Odomoch, declare that this research study is my original work and has not been presented for a degree award at any other University.
Signed...Date... Dalton Odomoch
This project has been submitted for examination with my approval as University Supervisor; Signed...Date...
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Acknowledgement
Special thanks go to my thesis supervisor, Dr Roseanne van Alebeek. Her patience, guidance, and expert insights in this field of law have made this an inspiring experience.
Gratitude goes to the leadership of the Uganda Peoples Defense Forces (UPDF) represented by the JCOS, Lt. Gen. J.B Musanyufu, the CPA, Maj. Gen. George Igumba, the UPDF-DA to the Netherlands, Maj Gen. Moses Rwakitarate, the UPDF Chief of Legal Services, Brig.Gen. Dr Goddard Busingye and the UvA-UPDF Alumni in Uganda represented by Lt. Col(s) Susan Mwanga, James Kiiza, and Lt. Daniel Mayombo for all the support rendered towards the completion of my research studies.
Uniquely, appreciation goes to the fantastic team of Legal experts at the Netherlands Defence Forces led by Brig. Gen Aart Jan De Haan, Head of Legal Services, NL-DF, Col. Arthur te Lintello, LegAd NL-DF, and Point of Contact during my stay and studies in the Netherlands, assisted by academic mentors: Capt(s) Harry de Veld, Jantine van Delft and Marijn Akveld, AP. Elesen (Provost MEA.) Their reviews and mentorship provided helpful insights and perspectives for this paper.
Appreciation also goes to the distinguished academic and administrative staff of the UvA Law School represented by Prof. Marjoline Zieck, Marlies Dale, Johanna Vogel, Paco Mens, and Ellen Schurman for their unwavering support and assistance throughout the study at the UvA.
Finally, thanks go to the UvA LLM-PIL 2019/2020 classmates, and friends for their support during the compilation of this dissertation.
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Dedication
This research is dedicated to family, friends, and UPDF fraternity. A special feeling of gratitude goes to my loving parents Eng. John.A.O. Odomoch (RIP), Esther Winifred Serubula, and Serubula Fred whose words of encouragement and push for resilience ring in my ears, and my siblings Dickens, Dorothy, Diana, Sharon, Wasswa, Kato, and Derrick who have never left my side and are very special. To my friends; Alastair Roderick, Victor Nabwami, Sophia Zademack, Sathiabama Sathiamoorthy, Veronica Boehlke, Isaac Tibasiima, Alex Kiwanuka, Abdallah Hessi, Ivan Hortal, Sally Afram, Luke Meaton, Osman Kiyemba, Nisha Kit, Anna Khote, Ellina Lauterbach, Gessa Simplicious, Pennie Nairuba, Raymond Okot, Paul Mugoya, Maj. Innocent Ahimbisibwe, Maj. Charles Ssekayita, Capt. Tashobya Wazarwa, Lt. John Mpunga, and Lt. Kiiza Anselm; this study is dedicated to your selfless and generous nature. Special thanks go to my best friend Charlotte Cory Sasha, my wonderful daughters Hadline Esther and Darlene Amari for being there for me throughout the entire Master's program. All of you have been my best cheerleaders.
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Abbreviation
ADR - Alternative Dispute Resolution AMISOM – African Mission In Somalia
ANAW - African Network For Animal Welfare AU - African Union
CAR – Central African Republic
CERD – International Convention On The Elimination Of All Forms Of Racial
Discrimination
CIAV - Comision International De Apoyo Y Verification. (The International Support And
Verification Commission)
COE - The Council Of Europe CSG – Contradora Support Group
CPMR - Conflict Prevention Management And Resolution
Mechanism
D/SG - Deputy Secretary-General
DRC - The Democratic Republic Of Congo EAC - East African Community
EACJ - East African Court Of Justice
EAC-SG - East African Community Secretary General
EACEWARN - East Africa Community Early Warning Mechanism EADB - East African Development Bank
EALA - East African Legislative Assembly
ECPSD - European Convention For Pacific Settlement Of Disputes ECHRT - European Court Of Human Rights
EU - European Union
EUGS - European Union Global Strategies
FDLR - Democratic Forces For The Liberation Of Rwanda GCM - General Court-Martial
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GERD - Grand Ethiopian Renaissance Dam ICJ - International Court Of Justice
ICTS - International Courts And Tribunals IDS- International Dispute Settlement IOS - International Organisations
JSCCDISFD – Joint Sectoral Council On Cooperation In Defense, Interstate, Security, And
Foreign Policy Coordination
MOU - Memorandum Of Understanding MOX - Mixed Oxide Fuel
NATO -The North Atlantic Treaty Organisation NEWC - National Early Warning Centres OAS - Organisation Of American States OAU - Organisation Of African Unity
OSCE - Organisation For Security And Cooperation PCA - Permanent Court Of Arbitration
PCIJ - Permanent Court Of International Justice PEP - Panel Of Eminent Persons
PF - Peace Facility
PSF - Peace Security Framework PIL - Public Interest Litigation
POLISARIO- The Popular Front For The Liberation Of Saguia El-Hamra And Rio De Oro REWC- Regional Early Warning Center
RNC - Rwanda National Congress ROS - Regional Organisations RPF - Rwanda Patriotic Front
TEEC - Treaty For The Establishment Of The European Economic Community TEU - The Treaty Establishing The European Union
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TFEU - The Treaty Establishing The Functioning Of The European Union UN - United Nations
UNGA - United Nations General Assembly UNSC - United Nations Security Council
UNSCR - United Nations Security Council Resolution UPDF - Uganda Peoples Defence Forces
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ABSTRACT
The East African Community (EAC) consists of the following countries: Kenya, Tanzania, Uganda, South Sudan, Rwanda, and Burundi. The EAC is one of the vibrant regional organizations on the African Continent. Through a constitutive treaty framework, the EAC seeks to realize effective social, economic, and political integration in the region by the year 2024. Unfortunately, member states are embroiled in inter-state conflict/ disputes. This threatens the cohesion and the integration process within the EAC. One such situation is the current Uganda-Rwanda Katuna border closure situation. This situation requires urgent attention of the relevant EAC organs and structures mandated to deal with conflict and dispute management under the EAC treaty. The Uganda-Rwanda conflict is not the only one plaguing the community. Other disputes include the Migingo Island dispute between Uganda and Kenya; the issue of the delayed completion of the interstate standard gauge railway by member states; the protest by Kenya against Uganda's decision to reroute the crude oil pipeline construction to the sea through Tanzania and not Kenya as had earlier been agreed; the dispute between Burundi and Rwanda over allegations of political interference by Rwanda in Burundi’s internal affairs; just to mention a few. It is noteworthy that the EAC once collapsed in 1977 because similar disputes at the time were not properly addressed or managed.
This research investigates whether the EAC system has well-functioning dispute settlement/conflict resolution mechanisms in place. It further seeks to establish how the system's capacity to deal with conflict/disputes can be enhanced to avoid a repeat of the 1977 EAC collapse. The perceived weakness and absence of the EAC involvement in the various conflict/ dispute management process, particularly those of an interstate political nature tests the credibility of the EAC. This perception affects the integration process and slows down the roadmap to the envisioned EA political federation. This generally undermines the confidence of member states to resort to its organs and structures to solve any conflict or disputes likely to arise. Whereas the EAC treaty enjoins member states to use peaceful dispute settlement mechanisms, member states have violated this obligation; a phenomenon this study investigates to ascertain why EAC member states are not making the full use of the IDS mechanisms embedded in the EAC system and are not using the existing organs to manage and resolve conflict/disputes, and finally to come up with relevant recommendations that can optimize the EAC's capacity to resolve conflicts and disputes peacefully within its legal framework.
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CHAPTER ONE INTRODUCTION
Former allies, Yoweri Kaguta Museveni and Paul Kagame are presidents of their respective countries, Uganda and Rwanda for now 34 and 20 years respectively. The alliance soured as tensions escalated sharply in early 2019 when both countries accused each other of espionage and supporting rebel activities against their governments. Rwanda closed its border with Uganda at Katuna, halting cross border trade and issuing travel advice; warning Rwandans against traveling to Uganda, alleging that their safety and liberties cannot be guaranteed in Uganda.1 Uganda claims Rwanda infiltrated her intelligence apparatus, insists that some Rwanda state agents and collaborators are involved in espionage in Uganda. Both countries made several arrests, deportations, and detentions of suspects. For example, in 2017, a Rwandan ex-soldier, Rene Rutangugira was arrested in Kampala, Uganda. Rutangugira was charged for espionage and for the abduction of Joel Mutabazi, an ex-presidential bodyguard who had fled Rwanda and sought asylum protection in Uganda. Uganda had granted Mutabazi refugee status protection before his unlawful refoulement to Rwanda with the help of suspected collaborators and “moles” within the Ugandan security apparatus. Rwanda protested Rutangugira's arrest and trial and further protested the detention and trial of other Rwandan nationals then facing trial at the GCM. Rwanda insists there is a witch-hunt against ethnic Banywaranda- sic, demanding they be set free or produced in civil court to face trial without delay.2 Sam Kutesa, Uganda's foreign affairs minister in response, stated that Uganda had deported Rwandan spy agents for security reasons or for their being involved in espionage and subversive activities. After a series of protracted diplomatic efforts, nine Rwandans including Rutangugira were recently released by Uganda and handed over to Rwanda.3
Additionally, Rwanda accused Uganda of supporting hostile rebel groups/dissidents namely, the RNC and FDLR, outlawed Rwandan Opposition groups. However, both
1Al Jazeera News, “Presidents of Rwanda and Uganda Sign a pact to ease tensions” (21 August 2019)
www.aljazeera.com/news/2019/08/presidents-rwanda-uganda-sign-pact-ease-tensions-190821134138867html
(Accessed on 25/02/2020).
2 See https://allafrica.com/stories/202002100574.html and
https://www.softpower.ug/details-uganda-rwanda-talks-turn-comic-as-rwanda-rejects-neutral-team-to-verify-allegations/
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countries vehemently deny the claims by each other thus the conflict/dispute.4 In direct response to the situation, Rwanda closed the Katuna border, at first claiming major road repairs were on-going at Katuna border. However, it later admitted it was a response to Uganda's treatment of Rwandan nationals in Uganda and it would only reopen the border crossing once Rwanda’s demands and concerns were addressed. This was the genesis of the current Rwanda-Uganda dispute. The Rwanda-Uganda dispute is an indictment of the EAC system’s deficiencies.
The EAC is a regional inter-governmental organization comprising six countries: Kenya, Tanzania, South Sudan, Burundi, Uganda, and Rwanda. Rwanda and Uganda are key actors in the integration agenda of the EAC.5 The Treaty for the Establishment of the East African Community, hereafter the EAC Treaty, entered into force on 7 July 2000 after its ratification by Uganda, Tanzania, and Kenya originally. Subsequently, Rwanda and Burundi joined the EAC on 1 July 2007.6 South Sudan, the youngest nation of the regional community, joined the EAC in April 2016.7 Under the EAC treaty, member states are obliged to peacefully settle any dispute/conflict with each other using the EAC organs and structures peacefully.8 The objectives of the EAC are enshrined in the EAC treaty and its protocols.9 However, there is little indication that critical EAC organs have initiated any tangible actions concerning the current Uganda-Rwanda conflict. In that regard, various dispute settlement mechanisms initiated have been ad hoc and dependent on multilateral relations, dialogues outside the EAC framework, to de-escalate the situation.10
International Organisations (IOs) and Regional Organisations (ROs) possess the cardinal function of facilitating the pacific settlement of international conflict/disputes. For example, the UN continuously promotes world peace by using peaceful means such as
4 See Hamza Kyeyune, “Tension between Uganda, Rwanda near breaking point,” All Africa News, 30/01/2020 available on url http://www.aa.com.tr/en/Africa/tension-between-uganda-rwanda-near-breaking-point/1719046
(Accessed on 06/04/2020).
5 A. Bainomugisha and S. Rwengabo, The Promise and Efficacy of the East African Community, ACODE Policy Briefing Paper Series No. 41, 2016 at pp. 18,21,23 and 25, available at
http://www.acode-u.org/Files/Publications/PBP_41_EAC.pdf (accessed on 2nd April 20, 2020).
6 See “Overview of the EAC” available at https://www.eac.int/overview-of-eac, (accessed on 10/05/2020) See also Henry G. Schermers and Niels M. Blokker (1995), International Institutional Law, Martinus Nijhoff Publishers, The Hague, pp. 505–885. See also Article 2 of the EAC treaty EAC ( 2002 xiv, 111p.: 230mm (EAC Publication, No.1) ISBN: 9987 - 666-01-9)
7https://www.eac.int/eac-partner-states/south-sudan (accessed on 06/04/2020). 8 See EAC Treaty, Articles 6 (c), 32, 38, 123 (4) (d), 124 (1)
9 EAC Treaty Article 5.1. 10 Emphasis added.
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Mediation, Good Offices, Conciliation, and Negotiation in its efforts to resolve conflicts/disputes that threaten global peace.11 IOs and ROs, therefore, can engage in preventive diplomacy to prevent the escalation of situations that undermine or threaten world peace.12 In practice, IOs and ROs offer member states malleable mechanisms for peaceful resolution of conflict/disputes; for example, matters entailing the interpretation and application of treaties and their constitutive acts.13 In volatile situations, IOs have deployed observers and military missions to preserve the peace, special representatives to investigate, negotiate, and conduct fact-finding missions.14
In light of the above, this thesis' principal investigative question is: Does the EAC have well-functioning dispute settlement/conflict resolution mechanisms in place, and if not, what lessons can be learned from other international or regional organizations in this respect?
The thesis will mainly make inquiries as to the following sub-questions: -
• What legal provisions, exist within the EAC treaty system, relevant to the pacific settlement of situations of dispute/conflict; that partner states can resort to and why do member states seldom use them?
• How effective are the EAC treaty provisions on conflict/dispute management in light of the current Katuna border closure dispute between Rwanda and Uganda?
• What conflict/dispute resolution mechanisms exist within other regional and International blocs concerning political disputes of similar nature?
• What conclusions can be drawn, and what recommendations can be adopted in respect of the EAC?
This research paper is a culmination of the qualitative design method and an on desk-based inquiry into the progress and efficacy of the dispute/conflict settlement mechanisms within the EAC system. Chapter two will show the mapping tools, modes of dispute/conflict settlement mechanisms, the organs, and their roles within the EAC treaty system. Chapter three will briefly discuss aspects of international dispute and conflict settlement mechanisms and what they entail and later scan into a comparative study into the available mechanisms and practices
11 See, Chapter VI UN Charter (Arts 33–38).
12 Alain Pellet, Peaceful Settlement of International Disputes, MPEPIL, vol VIII, Rudifer Wolfrum (ed), Oxford University Press, August 2013, pp 212-215, paras 41-52.
13 Ibid, para 53.
14 For example, ECOWAS deployed in Sierra Leon and Liberia in the early 90s to avert a humanitarian crisis. AMISOM is currently deployed in Somalia as a peace keeping mission since 2007.
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within other regional or international organizations. Finally, chapter four will formulate conclusions and recommendations.
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CHAPTER TWO
DISPUTE/CONFLICT RESOLUTION MECHANISMS AND THE ORGANS RESPONSIBLE FOR DISPUTE/CONFLICT MANAGEMENT UNDER THE EAC SYSTEM.
This chapter identifies the various international dispute settlement mechanisms; specifically zooming into the EAC Institutional Framework and the different conflict and dispute settlement mechanisms existing under the EAC system.
2.1. Diplomatic and legally binding means of International Dispute Settlement(IDS)
2.1.1. Introduction
Although the terms Dispute and Conflict are used interchangeably in this thesis, it is pertinent to distinguish between the two terms. A Dispute entails a "...disagreement on a point of law or fact...,” a variance or clash of legal views or interests on a matter between parties;”15 the determination of which, being a matter of substance and objective determination16 but not of form.17 In contrast, Conflict is long term in nature, with fundamentally entrenched issues perceived by the parties involved as being non- negotiable. A conflict/situation does not imply that a difference of views exists between the parties concerned.18
The various modes of disputes settlement under general international law emanate from the concept in customary international law that the out-turn of the prohibition of the use of force vests in the notion that states must resolve their international disputes by peaceful means.19 Therefore, states should desist from the illegal use of force. States must respect the customary international legal obligation to settle disputes peacefully.20 The ensuing means considered are
15 Alain Pellet ( n 12), pp 202, part A, para 1. Additionally see, PCIJ ruling in Mavrommatis Palestine Concessions (Greece v. U.K), Jurisdiction case, File E.c. III Docket V.I Judgment No. 2, 30 August 1924, para 19.
16 See Interpretation of Peace Treaties with Bulgaria (Hungary vs Romania,) Phase I, A.O, I.C.J. Reports 1950, pg 13, para 74.
17 See ICJ ruling in Application of CERD (Georgia v Russian Federation) Preliminary Objections, 2011 para. 30 18 Interpretation of Peace Treaties (n 16), pp. 13, para 74.
19 See Articles 2 (3) and 33 of the UN Charter.
20 See ICJ judgement in Aerial Incident of 10 August 1999 (Pakistan v India) Jurisdiction of the Court, 2000, para.53, In “Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America);” Merits, ICJ, 27 June 1986, para. 290.
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Inquiry, Mediation, Negotiation, and Conciliation.21 Moreover, the use of Good Offices22 and Consultations23 constitute other forms of diplomatic/political disputes/conflict management.24 These modes of dispute settlement entail particular elements.
Negotiation entails deliberations between parties concerned to establish opposite positions and views to harmonize the differences. Negotiations help to clarify and elucidate the opposing contentions. Negotiations offer sufficient opportunity to settle disputes because they are discretional, and deemed a form of "self-initiative" in nature, parties engage each other directly in the process, and interposition in the process by a third party is unnecessary.25 During Negotiations, parties engage directly with each other. However, in Inquiry, Mediation, and Conciliation, a third actor intervenes. In the latter three, a third actor suggests a solution. Additionally, in Negotiation and Mediation, rules of procedure are absent, but in Inquiry and Conciliation, pre-set rules of procedure are laid down. Other peaceful mechanisms of disputes/conflict resolution are adjudicative. These include Arbitration and litigation before an International Court or Tribunal(ICT).26 In the premises, a third actor mentions a feasible solution to the dispute, hinged on legal grounds.27
Mediation and Good Offices involve an arbiter undertaking to bring conflicting parties together to resolve the dispute/conflict. The acquiescence of parties is not an initial requirement, but ultimately, Mediation proceedings may be started without their assent. A mediator ardently participates in reaching agreement on the issue and does not concern himself with ensuring negotiations happen and or remain on course."28
Conciliation entails resolving a dispute by inviting a uniquely established organ tasked to appraise the facts and issues and make recommendations to the parties concerned to consider
21 See Handbook on the Peaceful Settlement of Disputes between States (New York, United Nations, 1992), pp. 9–55.
22 See Merrills JG, International Dispute Settlement (6th edn Cambridge University Press 2017), pp 26-42. 23 See Gleider Hernandez, International Law, Oxford University Press, 2019, pg 301, para 12.2.2.
24 Merills JG (2017) (n 22 above) pp. 10. 25 Gleider Hernandez (n 23), pp. 301, para 12.2.1.
26 For example, ICJ, PCA, PCIJ, WTO-DBU etc, have all made significant jurisprudential and juridical contributions in that regard.
27 Ramírez Robles, Edna, Training Module on Dispute Settlement Mechanisms for Trade Agreements (August 2012). UNCTAD & TradeMark South Africa, 2012. Available at SSRN: https://ssrn.com/abstract=2563178 page 5, para 2.
28 See Gleider Hernandez (n 23 above) pp. 301-302, See also Walid Abdulrahim, ‘Peaceful Settlement of Disputes,’ Private site for Legal Research and Studies, (available at:
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and reach a consensus. Note that the proposals of conciliators, like that of mediators, are without binding effect on the parties who can assent to or decline them.29
Inquiry generally refers to the process in which information is gathered concerning a disputed factual issue. The credibility of an Inquiry under international law is generally predicated on there being an impartial record of the facts which helps the stakeholders determine the fault, causation, and how to arrive at the value of loss and injury.30
The myriad of diplomatic techniques available to parties to resort to is complemented by the existence of mechanisms that are binding, triadic in nature, and based on legal principles; namely Arbitration and Adjudication.31 The 1899 Hague Convention for the Pacific Settlement of Disputes defines Arbitration as the resolution of differences between parties based on respect for the law by a judge identified and selected by parties.32
On the other hand, Adjudication entails the resolution of international disputes through a permanent judicial body with fixed rules of procedure and the power to issue binding judgments. Adjudication has become popular judging- sic by the proliferation of international, regional and supranational courts and tribunals.33
2.2. Institutional Framework of the EAC
The revived EAC was formed under Article 2 of the Treaty for the Establishment of the East African Community. The EAC currently comprises six countries from the African sub-Saharan region; they are Burundi, Kenya, Rwanda, South Sudan, Tanzania, and Uganda. However, its origins date as far back as 1967 when it was formed. It collapsed in 1977 due to mistrust, political disputes, poor leadership and bad governance, disagreements over the sharing of the resource allocations, and variant economic models pursued at the time.34 On 7 July 2000, the
29 Gleider Hernandez (n 23), pp. 304, para 12.2.4. 30 Ibid, see also Arts 9-36 1899 Hague Convention.
31 Greenhouse, Carol J. “Mediation: A Comparative Approach.” Man, vol. 20, no. 1, 1985, pp. 90–114 at pp 1. JSTOR, www.jstor.org/stable/2802223. Accessed 6/06/2020.
32 The 1899 Hague Convention for the Pacific Settlement of Disputes art. 15. See also, Art. 37 of the 1907 Hague Convention for the Pacific Settlement of Disputes.
33 Gleider Hernandez (n 23) pp. 308, para 12.3.2.1-3.
34 See generally, Mshomba R.E. “The Rise and Fall of the Former East African Community,” Economic Integration in Africa: The East African Community in Comparative Perspective (Cambridge University Press 2017) pp. 49-73.
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EAC was revived after the coming into force of the Treaty establishing the EAC in 2000. The principal organs of the EAC include the Summit, the Council of Ministers, the Coordination and Sectoral Committees, the East African Court of Justice (EACJ), the East African Legislative Assembly (EALA), and the Secretariat. Other semi-autonomous institutions that morphed into being part of the EAC structures include the East African Development Bank (EADB) (1980), the Lake Victoria Fisheries Organization (1994) just to mention a few.35 The analysis in this thesis, however, will focus mainly on the relevant key EAC Organs and institutions.
Under the preamble of the Treaty for the Establishment of the EAC,36 the critical mission of the EAC is to "...widen and deepen cooperation among the partner states in the political, economic, social and cultural integration for their mutual benefit..."37 In that regard, the EAC Customs Union, the Common Market, and other key EAC organs, discussed below, were formed. However, the much foretold Monetary Union is yet to become a reality.
Therefore, this chapter provides an overview of the role and importance of the EAC Institutional framework concerning dispute/conflict resolution mechanisms. Specifically, it analyses the critical mapping tools within the EAC system.
The EAC system recognizes the relevance of some of the mechanisms highlighted above. It duly assigns particular organs/institutions with specific or broad mandates to activate or apply some of the dispute/ conflict settlement mechanisms as will be discussed below. The overview will begin with the Peace and Security Framework because it outlines the overall broad political mandate assigned to the EAC organs in the pursuit of realizing the EAC vision towards peace-building within the East Africa region. Secondly, this chapter underscores the EAC's Conflict Prevention Management and Resolution Mechanism (CPMRM) and the institutions thereunder. It will draw attention to the East African Court of Justice (EACJ) which plays a pivotal role in adjudication, and finally, because the Rwanda-Uganda conflict involves some trade disputes, the mechanisms available in the different relevant EAC Protocols and the applicable organs will be surveyed.
35 See “About EAC: EAC Institutions” available at https://www.eac.int/eac-institutions (accessed on 06/07/2020).
36 As amended on 14th December 2006 and 20th August 2007.
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2.3. Peace and Security Framework (PSF)
EAC member states tasked the EAC with broad political authority focused on preventing conflict, building peace, addressing volatile situations, and seeking to resolve disputes arising between partner states peacefully. Under Article 5(3) of the EAC Treaty, the EAC can intervene in any situation affecting peace in the region. This mandate includes addressing security issues likely to affect peace in the hemisphere. In tandem with the objectives of the EAC, the above provision requires the EAC to promote stability, peace, security, and good relations among member states (cooperation). Therefore, the cardinal objective of the PSF is to advocate for the equable, non-belligerent resolution of conflicts and disputes mainly through cooperation in political affairs.38 Article 123 of the EAC Treaty further provides for the establishment of conventional "foreign and security policies" geared at the peaceful settlement of disputes in the community. Therefore, Article 123 reinforces Article 5 of the Treaty which lays out the objectives of the EAC.
Additionally, the Summit of Heads of State39 and the Council of Ministers40 is tasked with the responsibility of addressing matters of political and security cooperation viz-a-viz the integration agenda through negotiation and policy adoption. The guiding legal framework of the activities and decisions of the above organs are the EAC treaty, the Protocol for Peace and Security, and the Strategy for Regional Peace and Security.41 Under Article 123(5), the EAC has created an institutional framework that requires the Sectoral Councils and Committees to steer policy and give guidance; identifying areas for cooperation in matters of Defence, Inter-State Security, and Foreign Policy. The Sectoral Councils include the Sectoral Council on Cooperation in Defence, Joint Sectoral Councils on Defence, Sectoral Council on Inter-State Security, Sectoral Council on Foreign Policy Coordination; Inter-State Security, and Foreign Policy Coordination.42 The EAC's Department for Peace and Security oversees the Sectoral Councils mentioned above.43
38 See Chapter 23 of EAC Treaty. 39 Article 11(3) of the EAC Treaty. 40 Article 14 of the EAC Treaty. 41 Article 123 ibid.
42 See paper by Beatrice Kiraso, then D/SG EAC at the EAC Peace and Security Conference- Kampala, 5 October 2009 entitled “EAC Integration Process And The Enabling Peace And Security Architecture” available at http://repository.eac.int/bitstream/handle/11671/248/EAC [accessed on 07/06/2020].
43 See, Isabelle Wafubwa (Editor & contributor,) “Towards Political Federation in the East African Community: Achievements and Challenges” EAC Publication (2014), (available at
http://eacgermany.org/wp-content/uploads/2015/03/Achievements-and-Challenges-Towards-EAC-Politcal-Federation.pdf) [accessed on 07/06/2020] pp 26, section 3.2.
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Article 124 of the EAC treaty entrenches its aspirations for peace and security in the region. To the extent, the Strategy on Peace and Security was adopted by the Council of Ministers in November 2006.44 In 2010, the Council of Ministers endorsed a strategic plan for the implementation of the EAC Peace and Security Strategy that was updated in 2016 and is still in use today. The strategy seeks to address the current security challenges within East Africa, such as genocide, genocidal ideology, crime management, food security, piracy, just to mention a few.45 In March 2008, the Sectoral Council on Interstate Security was formed to nurture regional cooperation among partner states and to make policy guidelines for the oversight over the sector.46
In 2012, the EAC Peace and Security Protocol was adopted by the Summit after protracted negotiations that lasted five years. On 15th February 2013, the Protocol took effect after it was ratified at the Meeting of the Joint Sectoral Council of Cooperation in Defense, Inter-State Security, and Foreign Policy Coordination. The Protocol lays down an obligatory framework for the realization of peace, security, and stability in the East African region. It entails over 10 objectives to promote regional stability, peace, and security.47 Besides, the Protocol provides for the creation of other institutions48 such as the Directorate for Peace and Security, tasked with overseeing the implementation of the Protocol.
2.4. The Mechanism for the Prevention Management and Resolution of Conflict (CPMR)
In January 2012, the Joint Sectoral Council on Cooperation in Defence, Interstate Security, and Foreign Policy adopted the CPMR. It was approved by the Council of Ministers in August 2012. The CPMR provides the legal framework for prevention, management, peaceful resolution and mitigation of conflicts in the EAC region through the use of preventive
44 EAC, “Peace and Security,” available at https://www.eac.int/security (accessed on 06/07/2020). 45 EAC, “EAC Development Strategy (2011/12 – 2015/16), Deepening And Accelerating Integration, One People, One Destiny” available online at
https://www.preventionweb.net/files/EAC%20development%20strategy.pdf (accessed on 07/07/2020) 46 Isabel Wafubwa (2014) op cit, pp. 26, para 3.2.
47 Article 3 of EAC Protocol on Peace and Security. See also UN Economic Commission for Africa website publication “EAC - Peace, Security, Stability and Governance” available at
https://www.uneca.org/oria/pages/eac-peace-security-stability-and-governance [accessed on 07/10/2020] 48 See article 15 of the EAC Protocol on Peace and Security.
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diplomacy by way of negotiations, dialogue, and cooperation, to facilitate peace support interventions, conflict management, and peace-building efforts.49
Additionally, the EAC has adopted an Early Warning Mechanism (EACEWARN) to enable timely anticipation, preparedness, and responses to situations developing and likely to affect peace and stability in the region.50 The EACEWARN structure comprises the Regional Early Warning Center (REWC-Situation Room) under the Department for Peace and Security that is overseen by the EAC Secretariat.51 It is significant because the Secretariate ought to beware of all volatile situations like the “Rwanda-Uganda conflict” and address it appropriately. Moreover, the National Early Warning Centres (NEWC) present in all Partner States complements the role of the REWC.52 The NEWC was created to compliment the CPRM and align its early warning alerts with congruous timely responses.53 According to Isabelle Wafubwa, EAC Secretariat, the EACEWARN relies on open-source information such as media reports, field reports, and structural attributes and data to verify, analyze, disseminate, and share information.54 The EACEWARN gathers data, analyses it, and designs an appropriate response such as developing policies for consideration by the EAC to remedy a situation. Also embedded in the current EACEWARN is a roadmap that lays out areas for prioritization and commitment of resources for operationalization of the EACEWARN.
Another vital institution under the EAC's CPMR is the Panel of the Eminent Persons (PEP) established under Articles 6, 123, and 124 of the EAC Treaty. Its main task is to advise and guide the Summit, the Council, and the Secretary-General on sensitive issues affecting the community, especially matters relating to peace, security in the region.55 The PEP is mainly engaged in offering competent counsel to the critical organs of the EAC and uses their eminence to advocate for peaceful resolution of conflicts.56 Accordingly, the PEP comprises 49 United Nations Economic Commission for Africa “EAC- Peace, Security, Stability and Governance,”
available at url: https://www.uneca.org/oria/pages/eac-peace-security-stability-and-governance (accessed on 07/07/2020).
50 Ibid.
51 See generally, Charles Njoroge,Ebs Eac Deputy Secretary General (Political Federation) “Silencing the Guns in Africa: Nexus between Peace, Security, Governance and Development” Presentation by the East African Community, available at
https://www.un.org/en/africa/osaa/pdf/events/20151//012/statements/njoroge20151012pm.pdf (accessed on 07/07/2020).
52 Isabelle Wafubwa (n 43) pp. 28, para 3.2.1.3. 53 Isabelle Wafubwa (n 43) pp. 28
54 Ibid
55 Isabelle Wafubwa (n 43), pp 28, para 3.2.1.4.
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one eminent, highly distinguished, knowledgeable, respected, and reputable person from each EAC member state. A member of the PEP is usually someone who has contributed immensely to the realization of peace and security at various levels including national, to say the least. In February 2012, the EAC adopted the modality for the functionality and facilitation of the PEP. The Mediation Unit of the EAC Secretariat is tasked to support the activities and efforts of the PEP and ensure that disputes are resolved peacefully. The PEP is guided by the customary tenets of preventive diplomacy to achieve the aims and objectives for its existence; that is to say; to de-escalate tension, facilitate the amicable resolution of disputes, and encourage harmony among the Partner States. The PEP encourages member states to use peaceful mechanisms such as Good Offices, Dialogue, Mediation, Conciliation Negotiation, and Arbitration in a bid to facilitate peacemaking and peace-building strategies.57
Articles 2(2) and 4(1) of the EAC Peace and Security Protocol provide the basis for the creation of the Peace Facility (PF) as a mechanism under the CPMR. In February 2013, the PF was established by the Joint Sectoral Council on Cooperation in Defense, inter-state Security, and Foreign policy.58 The crucial role of the PF is to operationalize the CPMR by allocating resources for its action plans and budget framework. However, the PF's contribution towards peaceful resolutions of conflict/disputes in the region is negligible as there is hardly any record of its performance. Isabelle Wafubwa (2014) notes that the PF is currently underfunded and relies heavily on external donor funding.59
In respect to the Rwanda-Uganda conflict, it should be noted that this is the fourth time the two former country allies have come to the brink of armed conflict since the British government helped mediate to prevent an all-out war in 2001. In each case, the personal commitment of the two presidents was the last ray of hope of de-escalation of the tensions. Therefore, the absence of involvement of crucial EAC institutions and reliance on personal envoys means that interventions remain personalized, unpublished or secretive, frothy, and militarized. There is hardly any record to support the argument that EAC's Conflict Prevention Management and Resolution (CPMR) mechanisms and institutions like the paper glossy REWC-Situation Room, The Situation In Burundi” 2015 for emphasis of the role the PEP has within the EAC system particularly on guiding the Council, the Summit and the Secretariat available at
https://reliefweb.int/sites/reliefweb.int/files/resources/COMMUNIQU%C3%89_%203RD (accessed on 07/07/2020).
57 See Isabelle Wofubwa, op. Cit. pp. 28. 58 Isabelle Wofubwa, op. Cit. pp. 30. 59 Isabelle Wofubwa, op cit, pp 30.
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NEWC, PEP, and the PF believed to be robustly involved in managing and resolving conflict in the region. A detailed search for information in the public and private domain, relating to the activities of the EAC-CPMR in IDS yielded inconclusive results, an outcome that further supports the need for drastic recommendations for changes in the EA system.
Moreover, it is reported that the spark off for the rapidly deteriorating relations between Rwanda and Uganda was a damning report of the UN Working Group of Experts on the DRC which led Rwanda to believe that dissident opposition groups had formed a militia group calling itself the 'Platform Five' ( P5) and that P5 was allegedly being armed and trained by Uganda, Burundi, and the DRC60 to destabilize Rwanda. The P5 is said to be dominated by former high ranking RPF government officials, ex-intelligentsia, and ex-RDF military officials; the vast majority of who are believed to have served in Uganda military and government before.61 Whereas the main task of the EACEWARN is to gather actionable data and intelligence information to monitor and analyze any security concerns in the region, it is the UN system that appears to be doing the real groundwork of gathering intelligence and investigating activities likely to disturb peace in the great lakes region including East Africa. According to the UN report, even after receiving repeated appeals by the UN for investigations or information on the subject, there was no response or significant policy action taken by the countries implicated in the report nor has the EAC sought to address the conflict/situation.62
2.5. The East African Court Of Justice (EACJ)
The EACJ is the principal juridical organ of the East Africa Community.63 It was founded under the provisions of the EAC Treaty.64 It is tasked with ensuring "...the adherence to law in the interpretation and application of and compliance with..." the EAC treaty.65 The EACJ has two chambers namely: The Division of First instance and the Appellate Division/Chamber.66
60 See “Letter dated 18 December 2018 from the Group of Experts on the Democratic Republic of the Congo addressed to the President of the Security Council,” Ref: S/2018/1133, accessed from
https://reliefweb.int/sites/reliefweb.int/files/resources/Midterm%20report% (Accessed on 07/07/2020) para 17, 41, 103 and 1041.
61 Paul Nantulya, “Escalating Tensions Between Uganda And Rwanda Raise Fear Of War,” July 3, 2019, Africa Center For Strategic Studies available at https://africacenter.org/spotlight/escalating-tensions-between-uganda-and-rwanda-raise-fear-of-war/ (accessed on 07/07/2020).
62 See Letter to UNSC, Ref: S/2018/1133 ( n 60 above) at para 104. 63 Article 23 of the EAC Treaty.
64 Ibid. 65 Ibid.
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Generally, the EACJ comprises a maximum of 15 judges; that is to say: ten Judges for the First Instance Division and five judges for the Appellate Division.67 Under Article 24 (1) (a) and (b) pf the EAC Treaty, each partner state can appoint no more than two judges to the court of the First Instance and one judge to the Appellate Division.68 In Article 28 of the Treaty, the EACJ after a referral by a partner state is competent to hear and determine the legality of any act or conduct of a partner state in respect of the EAC treaty. To date, no member state has exercised this right even in the case of triable issues such as the legal implications of the on-going Rwanda-Uganda Katuna border closure dispute. Member states prefer to engage in "preventive diplomacy" than face off with each other before the EACJ. Besides, the Secretary-General, with the approval of the Council, can refer a dispute or situation to the EACJ if the Council is unable to resolve a matter concerning infringement of an EAC treaty provision but not before referring the matter to a state party concerned as a way to allow it to respond or address the issues in question.69
Where parties to an Arbitration proceeding are dissatisfied with the outcome of the award or the conduct of the proceedings, they can refer the matter to the EACJ for adjudication. The court can also give advisory opinions on legal issues emanating from the application of the EAC treaty.70 However, the EACJ has no jurisdiction over matters touching on the question of "...jurisdiction conferred by the EAC treaty on the organs of Partner states...,"71 The EACJ does not also have jurisdiction over petitions by legal or natural persons pertaining “...an Act, regulation, directive, decision or action...” that is a preserve under the EAC Treaty; for an institution of a Partner State."72 The EACJ has the power under the EAC treaty and where special jurisdiction has been conferred upon the EACJ by the Council, to hear original, appellate, human rights petitions, and disputes touching on implementation of EAC protocols.73
As per the information posted on the EACJ’s website, the First Instance Division of the EACJ has determined about 14 cases only relating to principles of the community and a few cases
67 Article 24 (1)(a)-(b) of the EAC Treaty. 68 Article 24 of the EAC Treaty.
69 Article 28 of the EAC Treaty. 70 Article 36 of the EAC Treaty. 71 Article 27 (1) of the EAC Treaty. 72 Article 30 (3) of the EAC Treaty.
73 See Article 27 (2) of the EAC Treaty which permits the Council to extend the court’s jurisdiction at “...suitable subsequent date.” See also The East African Center For Trade Policy and Law vs The Secretary General of the East African Community, Reference No.9 of 2012, paras 85, 86, 87, 90.
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have been handled as additional applications and appeals.74 The EACJ First Division has delivered close to 127 judgments since 2006-2019.75 This is an unimpressive scorecard in comparison to the performance of similar juridical institutions of other international systems such as the European Court of Human Rights which delivered 823 judgments in 2015 alone and 891 in 2014 respectively76 and 704 by the CJEU in 2016;77 which have delivered more binding judgments in a year than the EACJ since its creation. However, the EACJ’s performance scorecard is excusable considering it is still in its tender years as opposed to other more established and experienced ICTs like the ICJ, PCA, ECHR, and CJEU. The EACJ’s current composition of 15 judges (5 Judges in the Appellate Division and 10 Judges in the First Instance Division,)78 does not help matters on the EACJ’s standing and performance.
Possi A. (2018) summarizes the EACJ’s gains and weaknesses quite well. He concludes: “...the EACJ is falling short of its authority in matters directly linked to EAC integration, such as trade. The shortcomings are caused by the existence of gaps in the EAC Treaty and the narrow interpretation of the role of the EACJ. Consequently, the EACJ has failed to establish its role in shaping the EAC integration agenda. On trade, integration laws, including EAC law, are not designed to regulate daily activities in the business sector. As a result, business actors resort to national law or any other relevant law in resolving trade disputes. The EACJ has not played a meaningful role in trade issues. Much of the blame can be placed on the Court's limited jurisdictional scope and remedial authority as well as its lack of compliance mechanisms. The newly adopted Protocol could have addressed these issues, but the opportunity was wasted by the Member States. This might give rise to the perception that the Member States are not ready to see the EACJ as effectively authoritative. As long as these constraints persist, the EACJ will not be used by commercial actors. The cross-border activities in the region constantly trigger disputes, mostly on business matters, which the EACJ cannot adequately deal with at the moment. Major integration projects such as roads, ports, railways, oil, gas, and minerals are
74 EACJ website: https://www.eacj.org/?page_id=4878 (accessed on 07/07/2020). 75 Ibid.
76 ECHR – Analysis of Statistics 2015, pg 10/60 available at
https://www.echr.coe.int/Documents/Stats_analysis_2015_ENG.pdf (accessed ib 21/07/2020).
77 See Court of Justice of the European Union PRESS RELEASE No 17/17 Luxembourg, 17 February 2017 at pg 1, available at https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-02/cp170017en.pdf (accessed on 21/07/2020).
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underway and are likely to give rise to disputes.”79 He paints a grim picture, and rightly so, for the EACJ.
2.6. Situations Relating to Customs and Trade within the EAC.
Trade disputes relating to the tax and customs regimes of EAC partner states are to be resolved per the principles enshrined in the EAC Protocol on the Establishment of the East African Customers Union80 and in tandem with the regulations laid down in Annex XI of the Protocol.81 The Protocol recognizes the option for an equable and harmonious resolution of a trade and customs related dispute through Good Offices, Mediation, and Conciliation; initiated by the parties or at their behest upon initial consultation with each other.82 This mechanism can be invoked where disputes arise in respect of measures aimed at curbing dumping of goods, the grant of unfair subsidies and in respect of infringements of duties levied or in violation of the respective tax regimes of member states; and in respect of any other matter envisaged under the said Protocol. The Protocol stipulates that if concerned parties do not hold consultations within the prescribed period of 10 days for perishable goods and 30 days for non-perishable items, the matter may set for determination by a panel formed upon request by the parties to the Committee on Trade Remedies.83 The regulations require that such a panel is established within 07 days of the meeting of the Trade Remedies Committee, comprising members drawn and selected from an indicative list held by the Secretariat, and approved annually by the Partner States.84
Parties enmeshed in a trade dispute may pronounce themselves or critique the report of the Panel, as well as comment on the preliminary report prepared by the Committee.85 Notice of the final report is furnished to the Committee on Trade Remedies which has the last say on whether or not to adopt the Report.86 Its decision is imperatively binding once reached. A reasonable period can be agreed upon to enable the full implementation of the Panel's Report.
79 Possi A. "An Appraisal of the Functioning and Effectiveness of the East African Court of Justice" PER / PELJ 2018(21) – DOI: https://doi.org/10.17159/1727-3781/2018/v21i0a2311 at pp 32-33.
80 Article 41 of the Protocol on the Establishment of the EAC Customs Union.
81 East African Community Customs Union (Dispute Settlement Mechanism) Regulations. 82 See Regulation 5(1) and Regulation 6, Annex IX to the Customs Union Protocol.
83 Article 6.3 and 8.1 EAC Customs Union Dispute Settlement Mechanism Regulations (Annex XI). 84 Article 8.4 and 8.7, ibid.
85 Article 15, ibid. 86 Article 16, ibid.
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Such timelines are reached either voluntarily, mutually, or by an arbitral award.87 The Council of Ministers maintains under its watch, the resolutions of the Committee.88 Besides, parties to a trade and customs dispute are free to elect to use other peaceful means mean to resolve the dispute. These options include the use of binding arbitration procedures89 as well as recourse to litigation before the East Africa Court of Justice. The latter option is seeing an increase in its usage even though, no interstate adjudication has been held at the time of conducting this study even as we see increasing proliferation of mainly interstate trade and customs related disputes and conflicts between member states mainly.90
Furthermore, EAC member states adopted the Protocol on the Establishment of the East African Community Common Market in July 2010. It contains Annexes regulating social, political, cultural, and economic aspects of free and unrestricted movement of workers and persons across borders, respect for the right of establishment, guarantees to right of residence, enabling free movement of capital, and facilitation of trade in services in the region.91 Under Article 54 of the Protocol, "Any dispute between the partner states arising from the interpretation or application of this protocol shall be settled under the provisions of the treaty." It states further that "...the competent judicial, administrative or legislative or any other competent authority, shall rule on the rights of the person seeking redress."92 Thus, persons who have been denied access to the border crossing and traders affected by the standoff between Uganda and Rwanda can petition the EACJ and other relevant EAC organs to expeditiously address the impasse and remedy the legal injuries arising for the conduct of both states.
Consequently, no specific IDS mechanisms under the Protocols have been invoked by the EAC organs or member states to resolve the Uganda-Rwanda dispute per se. Nevertheless, it is pertinent to mention that some civil societies groups namely: The Eastern African Sub-regional Support Initiative for Advancement of Women ( EASSI), Southern and Eastern Africa Trade Information and Negotiation Institute (SEATIN)- Uganda and Center for Food and Adequate
87 Article 21.2.a, b and c, ibid. 88 Article 21.4 a, b and c, ibid. 89 Article 7 and 20, ibid.
90 For example, the Kenya and Uganda long standing dispute over trade restrictions and protectionism that resulted in the seizing of several tones of Lato Milk from Uganda by Kenya, Details available at url:
https://www.businessdailyafrica.com/markets/marketnews/Uganda-resists-trade-war-push/3815534-5441524-im8fyiz/index.html (accessed on 20/06/2020).
91See EAC website on “Common Market” available at https://www.eac.int/common-market (Accessed on 20/06/2020).
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Living Rights (CEFROHT) filed a case against the Governments of Rwanda and Uganda in 2019 at the EACJ over the continued arbitrary border closure.93 SEATIN avers that the border closure is in contravention of the EAC Treaty and the Common Market Protocol. SEATINI's prayer is that the EACJ pronounces itself on the continued impunity and arbitrary border closure, that the court should declare that this blatant impunity must not be allowed to happen anywhere else within the EAC. Their plaint further demands that EACJ issues a permanent injunction against the two governments of Rwanda and Uganda to never close border posts between themselves and ensure the unfettered movement of persons and trade facilitation. The suit filed against the two governments aims to ensure that losses incurred by the business community and society at large are audited, and concerned parties are adequately compensated.94
93 See Press Statement on a PIL case on the closure of Uganda- Rwanda Border available at
https://eassi.org/wp- content/uploads/2019/07/Press-statement-on-a-public-interest-litigation-case-on-the-closure-of-uganda-rwanda-border.pdf (accessed on 21/06/2020).
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CHAPTER THREE
3.0. COMPARATIVE ANALYSIS OF OTHER INTERNATIONAL ORGANISATIONS AND REGIONAL BLOCS.
3.1. Introduction
The UN Charter (UNC) reiterates the significant role of IOs and ROs perform in ensuring world peace prevails. It stipulates the modalities applicable in fulfilling their roles such as enabling and facilitation of the peaceful settlement of disputes in their respective regions and sub-regions.95 Chapter VI, Articles 33-38 of the UNC reinforces the customary international obligation to ensure peaceful and equable settlement of disputes. Article 33 outlines explicitly the modes of pacific dispute settlement which includes the involvement of regional agencies. This chapter encompasses a brief comparative description of three regional blocs and their IDS legal framework, citing some examples of the IDS mechanisms invoked and a brief description of procedures involved in the settlement of disputes/ conflicts with specific regard to the adroitness and efficacy of the select systems thereunder.
3.2. The Organisation of American States (OAS)
The OAS has been uninterruptedly extant since 1948. It comprises 35 sovereign states of the Americas.96 The OAS system enjoins members states to use peaceful means to settle disputes likely to arise between members by laying down the obligations in the OAS Charter.97 Following the amendment of Article 23 of the Charter by the "Protocol of Cartagena de Indias," the system requires state parties to an international dispute likely to arise between them to proffer to the equable procedures enshrined in the OAS Charter. The provisions of the charter are binding on member states and it enjoins them to use direct Negotiations, Mediation, Investigation, Good Offices, Conciliation Arbitration, and Juridical processes to resolve international disputes.98 In the same breath, the Charter allows members states to use any other means which they may agree to in the premises. In this context, the unique attribute is that the charter grants choice to the parties concerned to agree on alternative peaceful mechanisms they
95 Article 52, United Nations Charter.
96 Karns, M. et. al. (2004,) International Organizations: The Politics and Processes of Global Governance, Boulder: Lynne Rienner Publishers, pp. 195-199.
97 See Generally Chapter 5 of OAS and particularly Articles 24 and 27 of OAS Charter. 98 Article 25 of OAS Charter.
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may elect to resolve their dispute,99 especially wherein the view of the parties concerned, the diplomatic means spelt out in Article 25 of the Charter are unlikely to enable them to reach a solution. On that basis, parties may use other peaceful means to address the matter.100 Key in the OAS system is The Permanent Council of the OAS, created under Chapter VII of the Charter, comprises of a representative from each partner state.101 Among other functions, the Council serves as a consultative organ for the OAS102; it may investigate situations threatening peace within the community,103 ensure friendly relations endure among members104 , and exercise diplomacy through the application of peaceful means to resolve disputes.105 The OAS system also features a Consultative Organ106 comprising of foreign ministers of member states, tasked with monitoring and reporting on volatile situations in the region. The system also boasts the nuance of a Peace Fund that is used to fund requests by member states to fund peaceful dispute resolutions proceedings.107
The OAS system, like the EAC system, has a General Secretariat, a permanent and crucial organ of the organization.108 Under chapter XVI of the OAS Charter, the tasks of the OAS Secretary-General relevant to IDS include directing the affairs of the Secretariat,109 calling the attention of the General Assembly and the Permanent Council to any matter threatening peace in the region.110 This encompasses disputes of such magnitude likely to cause war or affect the human rights index in the hemisphere. Besides, the Secretariat is tasked with promoting cooperation in all aspects of concern to the Organisation.111
The OAS system is unique and relatively successful compared to the EAC system. A vivid example of the effectiveness of the OAS system is its handling of the border conflict involving Costa Rica and Nicaragua, where the Permanent Council played a crucial role in trying to
99 Ibid.
100 Article 26 of the OAS Charter. See also “Handbook on the Peaceful Settlement of Disputes between States, United Nations,” New York, 1992, United Nations publication Sales No. E.92.V.7, ISBN 92-1-133428-4 Copyright, page 84.
101 Article 80 of the OAS Charter. 102 Article 61 and 83 ibid. 103 Article 87 ibid. 104 Article 84 ibid. 105Articles 85 to 88 ibid. 106 Article 61 ibid.
107 OAS, Resolution 1756 (XXX-O / 00) para 1-5, available at
http://www.oas.org/juridico/english/agres_1756_xxxo00.htm(accessed on 06/07/2020). 108 Article 107 ibid.
109 Article 107 and 109 ibid. 110 Article 110 ibid.
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resolve it peacefully. Briefly, the dispute involved a series of clashes from 1948 to 1949 because militia groups would cross from one border to another to fight the governments in their respective home countries and flee to refuge across the porous borders. Following complaints by Costa Rica to the OAS, the Permanent Council took an interest in the matter and appointed temporary diplomatic outposts/ peace observers at the border. These outposts became the "eyes" and ears" of the organization dubbed the "first peace observers" of the OAS.112
The OAS Secretariat has played an instrumental role in mediating talks to resolve various conflicts that had rocked the hemisphere for many years. For example, The Secretariat rendered support to peace initiatives reached by member states of the Contadora peace accord and the Contadora Support Group(CSG) in the 1970s. H.Dana Simms and Vilma Petrash (1987) describe the Contadora process as part of a peace initiative which emerged from the efforts of the foreign ministers of Venezuela, Colombia, Mexico, and Panama over the nations facing instability from the fighting activities and sabotage of the paramilitary groups operating within the region.113 The question of the activities of the contras in the region, the USA's support to the contras would eventually boomerang and haunt the USA in the famous case of the Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. the United States of America).114 The ICJ reiterated the principle of customary
international law that requires all states to peacefully resolve any international dispute, which is a cardinal principle mirrored in Article 33 of the UN Charter.115
Additionally, one cannot undertake an analytical discourse of the OAS system without referring to "The Pact of Bogota" (1948)116 which spells out the general legal obligation of state parties "to settle disputes by pacific means."117 It was adopted under Article XXIII of the OAS Charter. As the name suggests, the pact was signed in Bogota, Columbia in 1948 by the
112 See, Jack Child, “Peacekeeping and the Inter-American Military System” in L. Mokhtari (ed), “Peacemaking, Peacekeeping and Coalition warfare: The Future Role of the United Nations,” Proceedings of a Conference Cosponsored by the National Defense University and Norwich University, National Defense University Press Publications ( 1994), pp 243.
113 Sims, H. D., & Petrash, V. (1987). The Contadora Peace Process. Journal of Conflict Studies, 7(4). Retrieved from https://journals.lib.unb.ca/index.php/JCS/article/view/14775, pp 5.
114 Merits, International Court of Justice (ICJ), 27 June 1986, available at: https://www.refworld.org/cases,ICJ,4023a44d2.html [accessed 8 July 2020]. 115 Ibid, para 290-291.
116 American Treaty on Pacific Settlement (1948) “The Pact of Bogota,” UN Registration: 05/13/49 No. 449 Vol. 30.
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American states present at the Ninth international conference of American states.118 The accord is an excellent example of a special treaty enacted under the OAS system that expressly commits member states to respect the obligation to use equable means to resolve disputes or conflict. For instance, the Bogota pact was invoked by Costa Rica in 1988 after the filing of the ICJ Case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras.)119
Nicaragua, a member state had filed a case against Costa Rica and Honduras respectively. However, Nicaragua was forced to drop judicial proceedings against Costa Rica in the spirit of breathing life into the "Esquipulas II" pact120 while it maintained its claim against Honduras for undermining its territorial and sovereign integrity. Whereas Honduras averred that the ICJ did not have jurisdiction over the matter, the ICJ concluded, agreeing with Nicaragua, that it had jurisdiction over the case under article XXXI of the Pact of Bogota121 a "creature" of the effectiveness of the OAS system. Furthermore, the Bogota Pact is comprehensive and elaborate on the various peaceful mechanisms available to members states to use, another unique attribute of the OAS system that is traceable in the EAC system. Therefore, it is arguable that the OAS system is effective in reducing regional tensions and preventing disputes from escalating into inter-state armed conflict.122
3.3. The Organization of African Unity (now, the African Union)
In 1963, the OAU was formed under Article 1 of the Charter of the Organisation of African Unity (1963), following a consensus reached among African leaders that there was a need to unite, progress, and form a continental bloc working towards the liberation, cooperation, development and independence of all states on the African continent.123 In 2002, the African Union succeeded the OAU, thus becoming the continental body bringing together now 55 member countries that have ratified its constitutive act.124 Article III (4) of the Charter lists among its principles, compliance with the principle of "...peaceful settlement of disputes by
118 See Preamble of American Treaty on Pacific Settlement (Pact Of Bogotá) (1948), UNTS NO. 449. 119 See Case Concerning Border And Trans-border Armed Actions (Nicaragua V. Honduras) (Jurisdiction on Admissibility) ICJ Judgment Of 20 December 1988).
120 Ibid, See generally overview of summary of Border and Transborder Armed Actions (Nicaragua v. Costa Rica) available at https://www.icj-cij.org/en/case/73 (accessed on 21/06/2020).
121 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, L C.J Reports 1988, p. 69 and p.195.
122 Sonia Boulos (2017), The Role of the Organization of American States in Peaceful Settlement of Disputes. Iuris Dictio 20, 211-240. ISSN 1390-6402 / e-ISSN 2528-7834. DOI: http://dx.doi.org/10.18272/iu.v20i20. 909 pp. 193-199.
123 See the Preamble of the OAU Charter and Article 1 the OAU Charter.
124 Article 2 of the Constitutive Act of the African Union (2000). See also the preamble of the Act for the detailed reasoning for the transition from the OAU to the AU.
