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Outlines and evaluates the political, legal, and ethical objections to humanitarian intervention. In so doing, it questions not only whether the doctrine of ‘sovereignty as responsibility’ has taken hold in international society, but also whether it should – particularly in the form suggested by Western states. The author argues that the ethical position of pluralism – as articulated by non-Western states – represents the most compelling case against humanitarian intervention, by emphasizing the impact on international society of relaxing the norm of non-intervention. Despite these pluralist objections, military intervention in cases of supreme humanitarian emergency can be defended on moral grounds, provided the intervention meets certain tests of legitimacy. Given the unintended consequences of military action, the author also suggests that more attention should be paid to the non-military means of operationalizing ‘sovereignty as responsibility’.

After the end of the Cold War, many in the West viewed Africa as a testing ground for the solidarist argument that sovereignty was no longer an absolute principle and that the international community could intervene to protect individual from human rights violations. This argument seems particularly challenging in the African context, given the continental leadership’s historic commitment to territorial integrity and non-intervention. However, as the author shows, African leaders from 1945 to 1990 were largely upholding the pluralist international norms of the time. In other words, the case for humanitarian intervention – and the problems posed by the practice – are not region-specific. The early 1990s, during which the United Nations intervened in Somalia, seemed to confirm the solidarist position. However, the failure to intervene in Rwanda in 1994, and the more recent experience of interventions in Sierra Leone, present a more mixed picture. Humanitarian intervention remains a controversial practice because of its coercive means, and its tendency to attribute blame or responsibility in what are often very complex civil conflicts.

This chapter presents four case studies covering all of the substantive domains in which international courts operate. The case studies show World Trade Organization (WTO) litigation pressuring the US Congress to change a tax policy that promoted US exports; the Andean Tribunal facilitating a retreat on the issuing of “second use patents”; and the Community Court of the Economic Community of West African States (ECOWAS) leading Niger to compensate Hadijatou Mani for enslavement in the customary family law system, as well as the indictment and arrest of Charles Taylor for crimes committed in a neighboring country. In all of these case studies, the ability of ICs to offer a remedy mobilized litigants, and ICs' rulings constructed focal remedies that compliance supporters could demand.

This chapter explores the strategies (or lack thereof) employed by the Economic Community of West African States (ECOWAS) and the UN for their exits from Sierra Leone. It compares ECOWAS’s lack of an exit strategy and its dependence on one troop contributor, Nigeria, with the UN Mission in Sierra Leone, which had an exit strategy that was based on key benchmarks—the most successful exit process by the UN to date. ECOWAS’s exit from Sierra Leone was dictated largely by domestic political developments in Nigeria, which proved problematic. While progress in revamping Sierra Leone’s security and political institutions has been relatively easy to achieve, the same cannot be said for revitalizing Sierra Leone’s postwar economy. This points to a huge deficit in international responses to postconflict reconstruction, despite the establishment of the Peacebuilding Commission, which in its initial period has fallen short of expectations.

This chapter examines the legitimation efforts of ECOWAS from three perspectives: norms, institutions, and compliance. It highlights how military interventions by ECOWAS to address the civil wars in Liberia and Sierra Leone in the 1990s strongly challenged its legitimacy in the eyes of a number of some of its member states, not least because they were seen at odds with the traditional principle of non-intervention. It shows that this resulted in efforts by ECOWAS members to develop a new regional norm emphasising “non-indifference” over the traditional norm of “non-interference”, and the strengthening of its security architecture to enforce the principle of non-indifference and legitimise ECOWAS’s new role. Through several examples, the chapter also highlights the limits of ECOWAS’s legitimation efforts, not least the reliance on the regional hegemon, Nigeria, to provide the necessary resources to enforce ECOWAS’s decisions.

This chapter examines the international parliamentarization of the Economic Community of West African States (ECOWAS). ECOWAS was founded in 1975 without an international parliamentary institution (IPI). An IPI was only created in 1993 in the context of general treaty reform. In particular, the democratization process in the region, the promotion of pan-African community building and the example of other successful regional organizations motivated the initiative for an ECOWAS Parliament. Moreover, the ECOWAS Parliament represents an attempt by elites to strengthen the links between the international organization and the citizens. However, the ECOWAS Parliament took until 2001 to become operational and did not have legislative functions until 2017.

Despite the growing demands for a coherent approach on international investment policy, African States are yet to clearly develop a unified and original approach towards the development of an authentic initiative that evinces an African experience. It is the basic argument of this chapter that the current reform initiatives in Africa, whether at the regional, continental or national level, not only lack conference, but also require further philosophical thinking. Such reforms must be based on continental consensus with a clear vision on the expected results and they must also take account of and provide avenues for the representation of all stakeholders, including foreign investors.

This concluding chapter summarizes the book’s findings, and considers the emergence of cosmopolitan legal systems beyond Europe. Under the tutelage of its Court, the ECHR regime has helped post-authoritarian states transition to constitutional democracy, provoked reform of domestic legal systems, and sustained dialogues that have served to raise the standards that officials must meet wherever they exercise authority over persons. Beyond Europe, it is a brute fact that many powerful states reject the model of a rights-based constitutional structure. However, there are also reasons for optimism. The Inter-American Convention on Human Rights, the Economic Community of West African States (ECOWAS), and other international regimes have gradually developed capacity to influence domestic systems in unexpected and significant ways. As this book documents, progress toward achieving a Rightful condition has been made, but the process will continue to be an arduous one, as Kant had predicted.

Building on Liberia’s social and political inheritance, this chapter places the Liberian civil war in historical context and shows how conflict dynamics affected the development of extralegal groups. It examines the period of political instability leading up to the war (1979–89) and the post-conflict transition period that followed it (post-2003), as well as the war itself (1989–2003). The emphasis is not on the battles fought, nor the military tactics employed. Instead, the intention is to understand how the practices and interactions that were specific to Liberia’s war impacted upon the emergence of extralegal groups. Understanding the war economy, its incentives, and the patterns of interaction embedded within it is critical to the commodity chapters that follow. War leaves behind a legacy of conflict capital, and this legacy of relationships, interactions, and social expectations persists long after war ends.

This chapter examines whether the ECOWAS Community Court of Justice (ECCJ or Court), as an international court operating in the West African region with its peculiar sociopolitical and economic context, enjoys any form or degree of actual authority in any of its main functions. The ECCJ’s two contrasting epochs represent a variation in the authority of the Court. Whereas under its 1991 Protocol, the Court enjoyed limited de jure authority with little potential for growing its de facto authority, the 2005 Supplementary Protocol introduced expansions that increased the potential for enhanced de facto authority. Ultimately, the Court’s authority varies significantly both in terms of areas of competence, as among different court-users and in relation to wider communities in its State Parties. Arguably, these variations indicate that different factors influence the responses that the Court attracts from different user-groups.

This Introduction summarizes the book’s major arguments. The central claim is that Africa’s international courts have important impacts that have so far been underemphasized or entirely ignored. The chapters show that litigation in Africa’s international courts is part of a broader strategy to pursue the agenda of interest groups, litigants, and opposition political parties and politicians. The book shows that by bringing a domestic political dispute to an international court, litigants internationalize their dispute. In so doing, they mobilize law and capitalize on the litigation process to advance and promote their commitment to their ideals and immediate goals. These actors use the opportunity to enforce treaty commitments relating to human rights, the rule of law, and democracy to mobilize against those in control of dominant and authoritarian party regimes and to seek public support. The chapters therefore put the users of Africa’s international courts and their broader strategies at the center of the analysis. In addition, this book takes scholarship on Africa’s international courts a step further through in-depth case studies of how litigation in these international courts impacts political, legal, and social mobilization. It delves into the messy world of legal and political mobilization and the organizational choices made by activists, litigants, and opposition parties who bring litigation before these international courts. The book complements the attention to legal and doctrinal questions as well as the challenges of compliance with decisions of these courts that the first generation of scholarship on Africa’s international courts emphasized.

This chapter examines the extent to which the human rights case-law of the Community Court of Justice of the Economic Community of West African States is either pro-elite or pro-poor. Without assuming that “pro-human rights” necessarily translates to “pro-poor,” the chapter discusses how the Court functions more as a resource for local pro-poor activists than as a tool in the hands of anti-poor elements. The chapter conceptualizes expressions such as “the poor,” “sovereign hurdles,” “brainy relays,” and “flipped strategic social constructivism” to undergird its analysis. For example, the authors analyze the extent to which activists’ forces, acting as brainy relays, co-created and enhanced normative resources in a process styled in the chapter as “flipped strategic social constructivism.” The chapter also demonstrates the ways in which the court has been a valuable resource to the domestic activist forces who together with the Court have worked to advance the social conditions of the West African poor. Finally, the chapter examines the gaps that militate against such pro-poor activism.

This chapter fills the gap in the judicialization of mega-political disputes before the Economic Community of West African States (ECOWAS) Community Court of Justice (ECOWAS Court). Judicialization of mega-political disputes in this Court has until now been understudied. Although the ECOWAS Court lacks an express mandate to adjudicate over political disputes, the Court has been innovative in assuming jurisdiction over mega-political disputes when these disputes are intertwined with actual or potential human rights violations. The Ugokwe doctrine, enunciated in the case of, Dr. Jerry Ugokwe v. The Federal Republic of Nigeria and Dr. Christian Okeke, established the “cause of action” for the judicialization of mega-political disputes before the ECOWAS Court. By examining cases that have largely remained obscure, the chapter uncovers the judicialization of political disputes, particularly of electoral cases, before the ECOWAS Court. Unlike the traditional scholarship that measures effectiveness based on compliance with the decisions of the courts, the chapter argues that the significance of the mega-political disputes judicialized before Africa’s regional courts derives from the instrumental objectives of the litigants. By incorporating the social, political, and economic contexts that gave rise to the francophone and anglophone cases analyzed, the chapter illuminates the judicialization of mega-political disputes in ways that are not wedded to the traditional analyses of the functions of regional economic courts.

This chapter argues that Africa’s international courts are involved in a new supranational constitutionalism that is anchored outside national constitutions. The value of Africa’s international courts, the chapter argues, lies more in their potential to promote constitutional justice in the long term through direct and indirect impact than in delivering individual justice in the short term. The chapter focuses on two courts: the East African Court of Justice (EACJ) and the Community Court of the Economic Community of West African States (ECOWAS Court). The chapter argues that the EACJ has mainly acted as a declaratory human rights court while the ECOWAS Court has operated as a protective (executory) human rights court. The authors argue using cases from the EACJ and the ECOWAS Court that international law as produced in the judgments of international courts can be, and are useful even in the absence of clear compliance. In doing so, the chapter presents the following four roles of sub-regional courts in Africa: flagging violations and acting as early warning systems, expanding the normative and institutional scope and protection of human rights, progressing norm development, and setting the boundaries of acceptable behavior. By emphasizing these roles, the chapter shows that even in the face of apparently low levels of judgment compliance, the impacts of litigation activities before those courts contributes to what it terms constitutional justice.

This chapter discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other Member States ultimately defeated Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the East African Court of Justice (EACJ) and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the Member States agreed to restructure the EACJ in ways that have significantly affected the Court’s subsequent trajectory. In Southern Africa, after the Southern African Development Community (SADC) Tribunal ruled in favor of white farmers in disputes over land seizures, Zimbabwe prevailed upon SADC Member States to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of community secretariats, civil society groups, and sub-regional parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.

This chapter is a general introduction to the eight active international courts in Africa, and the ninth inactive court, the Arab Maghreb Union (AMU) Judicial Organ. The international courts in Africa stem from two sources: from the sub-regional economic integration arrangements and the regional human rights system of the African Union. The African Court on Human and Peoples’ Rights is the regional human rights court in Africa. The chapter presents an overview of the general characteristics of these courts. First, excluding the AMU Judicial Organ, they all allow, or have allowed, cases from individuals and non-governmental organizations (NGOs), in addition to states against states. Second, excluding the African Court for cases by individuals or NGOs, these courts have compulsory jurisdiction. Third, although all of these courts allow states to file cases against each other, bar one exception, there have been none. The guide starts with the human rights-oriented courts: East African Court of Justice (EACJ); Economic Community for West African States (ECOWAS) Community Court of Justice (ECCJ); South African Development Community (SADC) Tribunal; and the African Court and Commission. It then discusses the Common Market for Eastern and Southern Africa (COMESA) Court of Justice, and courts that focus on economic disputes: Organization for the Harmonization of Business Law in Africa Common Court Justice and Arbitration (OHADA CCJA); Court of Justice of the Central African Economic and Monetary Community (CEMAC) Court of Justice; the West African Economic and Monetary Union (WAEMU) Court of Justice; and the least active of them, the AMU Judicial Organ.

Two low-level armed conflicts, Indonesia’s East Timor and Ivory Coast’s post-2010 election crises, provide detailed qualitative evidence of highly structured intergovernmental organizations (IGOs) engaging in effective civil warpreventing activities in member-states. Highly structured IGOs threatened and sanctioned each of these states and offered (long-term) benefits conditional on successful crisis resolution. The governments were aware of and responded to these IGOs’ concerns, as did the rebels in these respective cases. The early stages of the conflict in Syria in 2011 provide a counterpoint. With Syria’s limited engagement in only few highly structured IGOs, the Syrian government ignored international calls for peace. And, without highly structured IGOs’ counterweight to curtail the government, the rebels saw little reason to stop their armed resistance. The result was a brutal and deadly civil war that continues today.

In contrast to the other chapters in Part V, Nina Wilén’s focus is on multilateral military interventions at the regional level: She explores the relationship between sovereignty, intervention, and the international normative order, by examining how ECOWAS, an African regional organization, justified its intervention in Liberia’s civil war referring to international norms. Based on a critical discursive analysis of the speeches related to ECOWAS’ decision to intervene in Liberia in 1990, as well as the responses the justifications provoked from the UN and the United States, it is argued that ECOWAS’ intervention and the justifications which accompanied it were clearly influenced by an international normative order where sovereignty is the key constitutive norm and non-intervention the main regulative norm. Yet the fact that ECOWAS also violated the very same norms through its intervention, created a precedent for future regional interventions and implied long-term consequences for the international normative system.