This essay revisits the relationship between Article 4(h) of the African Union Constitutive Act and the R2P concept with a particular focus on military intervention. After unfolding the narrative of equation between the two norms, we explore their content and highlight their clear differences. We also observe the conceptual glissement concerning Article 4(h) from a right to a duty to intervene, which is not backed up by international practice. Furthermore, we examine the possible impact of the narrative of equation on the use of force architecture and particularly, on the relationship between the African Union and the United Nations. Finally, we analyse the normative implications of the equation for the R2P concept and conclude that the above equation fails to produce tangible legal consequences. What remains are its political motivations that sharply depart from the ‘higher’ ideals permeating the R2P and thus undermine its logic and realization.
Exploring the Relationship between R2P and Art. 4(h) of the African Union Constitutive Act with Regard to Military Intervention
In the last decade, the United Nations and the African Union have forged a close partnership in matters of international peace and security. This article attempts to shed light on the multifaceted role of the un in the strategic and operational planning and evolution, as well as the funding, of regional (African Union) peace support operations. Such involvement goes well beyond a simple authorization by the un Security Council and raises crucial questions in respect of the allocation of responsibility between the un and the African Union. The analysis of the relevant responsibility allocation clauses showcases that a holistic approach should be adopted that does not micromanage the different aspects of the un involvement in regional missions, but treats them as an aggregate that should be taken into account as a whole when allocating responsibility. Otherwise, the soft or indirect (but crucial) influence exercised by the un will inevitably escape responsibility.
The ilc Guidelines on Reservations between a Rock and a Hard Place
In a contribution to the Mélanges Virally in 1991, Jean Combacau deplored the choice made in Article 19(c) of the Vienna Convention on the Law of Treaties, which consecrates an “objective” test of compatibility with the object and purpose that can only be fulfilled subjectively. This logique de validité, as Combacau calls it, is tested in the International Law Commission’s (ilc) guidelines on reservations to treaties. The conclusion is not encouraging: the ilc fails to deliver the promise of the logique de validité and creates an inconsistent and at times untenable regime. By announcing that it will flesh out the consequences of Article 19(c), the Commission places itself in an impossible position. Its only way-out is the concept of reservations dialogue that highlights the informal and political nature of reservations and proves that the promise of the logique de validité cannot but remain always immanent.