Regional Integration as an Instrument of Human Rights: Reconceptualizing ECOWAS

Abstract

Acknowledging the classic conflict between the trade and human right regimes, this paper argues that the realities of the least developed regions create an instance where the fundamental motivation for economic integration regimes like ECOWAS is not at odds with the human rights principle. Rather, such economic integration regimes are in themselves the very mechanism for the achievement of human rights as conceptualized within the normative framework of the African human rights system.

Through an examination of the ECOWAS Revised Treaty provisions and an exposition on the evolution of the ECOWAS Community Court of Justice, this paper argues that the drafters of the Revised Treaty created a document that took cognizance of human rights. With the key goal being the achievement of development, ECOWAS's greater legitimacy derives from the lack of development in its constituent parts. As such, ECOWAS fulfills the Article 22(2) development duty imposed on member states by the African Charter and is increasingly fine-tuning its activities to follow the Articles 22(1) and 24 guidance on this duty.

Therefore, ECOWAS as a mechanism for the achievement of the human right to development collapses Garcia's chasm between the underpinning principles of trade and human rights because it presents regional integration as a utilitarian mechanism for the achievement of deontological rights. While enforcement is crucial to maintaining the commitment for which ECOWAS exists, the lack of enforcement does not obliterate the theoretical interpretation of ECOWAS as a rights tool; it only impeaches the political will of its member states.

Nneoma Nwogu is a 2007 JD Candidate at the University of Michigan Law School. A 2004 Paul and Daisy Soros fellow, she received her BA in Philosophy and Africana Studies atWellesley College and read the MPhil in Development Studies at Oxford University.

For the best parts of this paper, the author remains grateful to Professor Christopher McCrudden of the University of Michigan Law School and Oxford University and Molly Moeser of the University of Michigan Law School.

Notes

1. The African human rights framework is delineated by the African Charter on Human and Peoples' Rights. African Charter on Human and Peoples' Rights, 21 I.L.M 58 (1982).

2. The development and prevalence of regional economic regimes is one of the main trends of globalization (Howse and Mutua 2000). Therefore, globalization and regional economic regimes share the same meaning in this paper.

3. Musungu, in his comment on the conceptual linkages between economic integration and human rights in Africa, argues that “there exists very clear and promising entry points for integrating human rights into the economic rules, institutions and practices” of African economic integration regimes (Musungu 2003).

4. The three generations of rights, namely, civil and political (first generation), economic, social, and cultural (second generation), collective and solidarity (third generation), are deemed inseparable. The African Charter juxtaposed the three generation of rights in a single rights instrument; thus placing them on an equal footing unlike its international counterparts that distinguished rights through the use of two instruments, the International Covenant on Civil and Political Rights, ICCPR, (first generation and limited third generation) and International Covenant on Economic, Social and Cultural Rights, ICESCR, (second and limited third generation). The international community followed the African approach when in 1993, the Vienna Declaration and Programme of Action recognized the indivisibility and equal priority of all rights — economic, social, cultural, and civil and political—and underscored that democracy, development, and human rights are interdependent and mutually reinforcing. (See Vienna Declaration and Programme of Action, World Conference on Human Rights 1993; The UNHCHR World Summit on Sustainable Development Report [The Office of the High Commissioner for Human Rights 2002].)

5. Mutua argues that this is distinct from the Western approach to rights where the language of rights solely creates claims for individuals against states. In the African context, there is a “complex web of individual and community duties and rights” that requires the balancing of the often competing claims of the individual and society.

6. Compare with The International Covenant on Economic, Social and Cultural rights, art. 1 (“All people shall have the right of self-determination.”). The right to self determination was eventually deemed “fundamental” in the Declaration on the Right to Development. Declaration on the Right to Development, adopted by, General Assembly resolution 41/128 of December 4, 1986, available at: http://www.unhchr.ch/html/menu3/b/74.htm

7. Compare International Covenant for Civil and Political Rights, art.1 and International Covenant for Economic and Social and Cultural Rights, art.1, both available athttp://www.ohchr.org/english/law/index.htm.

8. ECOWAS included all sixteen West African States until Mauritania left the organization in 2002.

9. ECOMOG was the main military force to bring an end to the civil wars in Liberia and Sierra Leon. See Africa Week, “Still Waiting for the ECOWAS Effect”, available at: http://www.africaweekmagazine.com/news/comment.php?pageNum_r_comm=2&totalRows_r_comm=22, last visited on February 5, 2006.

10. Economic Community of West African States (ECOWAS): Revised Treaty, 35 I.L.M. 660, (1996). The Revised Treaty expanded the ECOWAS institutions formerly made up the Authority of Head of States, Council of Ministers, and the Secretariat to include a Parliament, regional Court with juridical powers, Economic and Social Council, and the Fund for Cooperation, Compensation and Development. The new additions seem to be part of ECOWAS's efforts to make its activities more democratically legitimate. The Parliament, made up of member-state parliament delegates and currently without any real powers, does not add much to the dynamic restructuring that the regional Court has brought to the ECOWAS forum.

11. The European Union is the quintessence of such arrangements with human rights as a core value of its founding treaty and affirmed in the Charter of Fundamental Rights. Texts on the European Union and human rights are available at http://europa.eu/pol/rights/overview_en.htm.

12. Compare with the 1975 Treaty that does not contain a single acknowledgment, recognition, or protection of rights nor does it provide for consultations with trade unions or any other rights-based organizations.

13. Assessing Regional Integration in Africa, Policy Research Report, Economic Commission for Africa, July 2004, available at: http://www.uneca.org/aria/ARIA%20English_full.pdf

14. Theoretically, there can be many ways for states to ensure their citizen's right to economic development. ECOWAS as an economic integration regime may not be the most outcome effective way in the absence of other factors but the increase of world trade, multiplicity of regional trade arrangements, and the balance of power in the global market makes economic regional integration for developing regions the most outcome-effective tool for achieving economic development.

15. This argument is distinct from Peterman position that characterizes trade as an individual human right (Petersmann 2002). I argue that trade/regional integration is a mechanism for the achievement of peoples' human right to development.

16. The human rights discourse experienced a wider prevalence with the end of the Cold War at the end of the 1980s. This prevalence of human rights discourse and the resulting pressure for a largely undemocratic West Africa towards democratization in the 1990s, among other international changes, inevitably affected the drafting of the Revised Treaty.

17. In West Africa, seventy-five percent of poor people live in the rural areas. See Assessment of Rural Poverty: Western and Central Africa, International Fund for Agricultural Development Report, December 2001, p. vii, available at: http://www.ifad.org/poverty/region/pa/english.pdf

18. See www.ecowas.int. (Click on Community Court of Justice.)

19. This is distinct from the provisions in the Protocol establishing the African Court of Human and Peoples' Rights that provides that a judge who is a national of a State that is party to a case, shall not hear the case. Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT(III). The text was adopted unmodified from the Draft Protocol reprinted in 9 Afr. J. Int'l & Comp. L. 953 (1997), art. 22; Cf. American Convention on Human Rights, Nov. 22 1969, art.55(1), 114 U.N.T.S. 123, O.A.S.T.S. No. 36 (1970) (entered into force July 18, 1978) (“If a judge is a national of any of the States Parties to a case submitted to the Court, he shall retain his right to hear that case.”).

20. Of the seven members of the current Court, three are women, one of whom is the reelected President of the Court.

21. The 1991 Protocol makes no reference to human rights that is consistent with the absence of human rights provisions in the 1975 Treaty. The Revised Treaty had not yet been drafted.

22. This was a replication of the Revised Treaty provision that gave the Court jurisdiction only after attempts between member-states to resolve the dispute amicable have failed. See Revised Treaty, art. 76.

23. Not only is it possible that a state may not always effectively represent its citizens and corporations due to unsynchronized interests, there may also be an outright conflict of interest where member-states are the violators of rights of individuals and corporate bodies.

24. See ECOWAS Throws Out Suit Against Nigeria Over Land Border Closure With Benin, Vanguard (Nig.), April 28, 2004, also available at 2004 WLNR 7109799.

25. See ECOWAS Court: Individuals to Have Access, This Day (Nig.), February 9, 2005, also available at 2005 WLNR 1832047.

26. For example, under the Supplementary Protocol, the CCJ would still be unable to adjudicate Olajide Afolabi v. Federal Republic of Nigeria since the right being litigated is not a human right but a right conferred by the Treaty and such rights could only be litigated against ECOWAS officials.

27. While the Community Court tested its boundaries through its injunction against a domestic parliament, it seemed reluctant to chart a bold course similar to the Van Gend en Loos decision by the European Court of Justice (ECJ) where the ECJ grounded its broad interpretation of the EU treaty and consequently, its jurisdictional powers primarily on the general spirit and purpose of the treaty. See Van Gend en Loos v. Nederlandse Administratie Der Belastingen, Case 26/62, [1963] ECR 1. On the contrary, the Community Court confines itself to textual interpretations and guidance. This may be a cautious strategy for building legitimacy and ensuring enforcement by the executive arm of member-states where state power is often concentrated.

28. For example, the European Court of Justice addresses both executive and judicial arms of member-states and is deemed a classic supranational institution.

29. The CCJ does not have dissents because it is a collegiate court, like the European Court of Justice. This is probably because of the geographic nature of the selection of judges. As such, dissents that track geographic lines may threaten the legitimacy of the CCJ.

30. Nongovernmental groups like Open Society Initiative West Africa are already building cases of human rights violations to be heard before the ECOWAS court. See Lillian Okenwa, “West Africa: ECOWAS Court Must Uphold Citizenship, Human Rights,” This Day (Nig.), Aug 29, 2006, also available at: http://www.justiceinitiative.org/db/resource2?res_id=103398.

31. See http://ec.europa.eu/external_relations/human_rights/intro/index.htm.

32. EU-ECOWAS Ministerial Meetings 2002.

33. This tension highlights one of the primary difficulties with the definition of peoples; whereas the right to development under ECOWAS envisions the peoples of West Africa, member-states might sometimes be motivated to prioritize the development right of the peoples of its particular state. Therefore, the African Charter's Article 22(2) duty that allows for states to act individually or collectively presents its own tension since states may be torn between the desire to act individually on one hand and collectively on the other.