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2 United Nations Charter, 26 June 1945, 59 stat 1031, TS 993, 3 Bevans 1153, 24 October 1945, (UN Charter), art 2(1).

3 Weatherill, SCases and Material on EU Law (8th ed, 2007, Oxford University Press) at 5Google Scholar.

4 UN Charter, art 1(2).

5 Id, art 1(3).

6 Haas, EB “The study of regional integration: Reflections on the joy and anguish of pretheorizing” in Lindberg, NL and Gold, SA Schei (eds) Regional Integration: Theory and Research (1971, Harvard University Press) 3 at 3Google Scholar.

7 Regional co-operation involves routine inter-governmentalism without necessarily affecting the sovereignty of the relevant states. By contrast, regional integration is concerned with explaining “how and why states cease to be wholly sovereign, how and why they voluntarily mingle, merge and mix with their neighbours so as to lose factual attributes of sovereignty” (id at 6). Regional integration, unlike co-operation, has the effect of diminishing, limiting or pooling sovereignty. This effect of integration on sovereignty introduces both territorial and institutional dimensions into the distinction between regional integration and co-operation; these institutional consequences of regional integration are simply translated as the coming together of “national units to share part or all of their decisional authority” through or with an international organization (see Schmitter, PC “A revised theory of regional integration” (1970) 24/863International Organization 161CrossRefGoogle Scholar). The new institution created through regional integration acquires a new personality under international law, distinct from that of its constituent members; this is the key distinction between regional integration and regional co-operation.

8 Haas “The study of regional integration”, above at note 6 at 6.

9 30 October 1947: 61 stat A-11, TIAS 1700, 55 UNTS 194 as amended, art XXIV.

10 15 December 1993: 33 ILM 1167 (1994), art V.

11 27 November 1979.

12 See list of regional trade agreements in Africa, available at: <http://rtais.wto.org/UI/PublicSearchByCrResult.aspx> (last accessed 26 August 2010).

13 GATT, art 1.

14 Id, art XXIV(8)(a) and (b).

15 Id, art XXIV; GATS, art V.

16 GATT, ibid.

17 JC Senghor “Theoretical foundations for regional integration in Africa: An overview” in Nyong'o, PA (ed) Regional Integration in Africa: Unfinished Agenda (1990, African Academy of Sciences) 17 at 18Google Scholar.

18 Ibid.

19 Holland European Integration, above at note 1 at 15.

20 Ibid.

21 Economic Community of West African States Treaty (ECOWAS Treaty), 28 May 1975, 14 ILM 1200; revised 24 July 1993, 35 ILM 660, (1996) 8 African Journal of International and Comparative Law 187, preamble at paras 5 and 15.

22 Senghor “Theoretical foundations”, above at note 17 at 19.

23 Id at 26.

24 Ibid.

25 Haas “The study of regional integration”, above at note 6 at 19.

26 Senghor “Theoretical foundations”, above at note 17 at 20.

27 Ibid.

28 Schmitter, PC “A revised theory of regional integration” in Lindberg, and Gold, Schei (eds) Regional Integration, above at note 6, 232 at 235Google Scholar.

29 Holland European Integration, above at note 1 at 17.

30 Ibid.

31 Ibid.

32 Id at 28.

33 UN Economic Commission for Africa (UNECA) Assessing Regional Integration in Africa (2004, UNECA) at 9Google Scholar.

34 GATT, art I.

35 Id, art XXIV.

36 Enabling Clause, above at note 11.

37 Balassa, BTheory of Economic Integration (1962, Allen and Unwin) at 1Google Scholar.

38 Examples of economic integration include the following. (i) FTA: This arrangement occurs when a group of countries decide substantially to eliminate tariffs and other trade barriers between them; see GATT, art XXIV(8)(b). Each member maintains its own external trade policy against non-members. A good example of an FTA is the North American free trade agreement. The inherent problem with an FTA is the import of goods through low tariff member countries and trans-shipment to higher tariff member countries. This problem can however be curbed with the introduction of rules of origin, which also have their inherent problems; see Howse, R and Trebilcock, MThe Regulation of International Trade (2nd ed, 2000, Routledge) at 28Google Scholar. (ii) Customs union: A group of countries form a single customs territory in which: tariffs and other barriers are eliminated on substantially all trade between the constituent countries for products originating in these countries; and there is a common external trade policy (common external tariff) that applies to non-members. A customs union is therefore equivalent to an FTA, with the addition of a common external tariff; see GATT, art XXIV(8)(a). (iii) Common market: In addition to eliminating trade barriers and introducing a common external tariff, members agree to allow free movement of the factors of production, such as capital and labour, across national borders within the integration area; see Howse and Trebilcock, id at 26. The positive effects of a common market are that production is undertaken in the area that suits it best. In addition, it ensures that, where there is an advantage in the large-scale production of a commodity, it will be produced on a large-scale in one place or a few places, for the whole area, instead of being produced on an uneconomically small scale in a number of places; see UNECA Assessing Regional Integration in Africa, above at note 33 at 14. (iv) Economic union: This is a common market with unified monetary and fiscal policies, including a common currency. The best example that illustrates both a common market and economic union is the EU; see UNECA, id at 10.

39 Jacob, PE and Toscano, JVThe Integration of Political Communities (1964, JB Lippincott Company) at 10Google Scholar.

40 Haas, EBThe Uniting of Europe: Political, Social and Economic Forces 1950–1957 (1958, Stevens & Sons Limited) at 11Google Scholar.

41 Jacob and Toscano The Integration of Political Communities, above at note 39 at 10.

42 UNECA Assessing Regional Integration in Africa, above at note 33 at 10.

43 Haas The Uniting of Europe, above at note 40 at 11.

44 Lindberg, L “Political integration as a multidimensional phenomenon requiring multivariate measurement” in Lindberg, and Gold, Schei (eds) Regional Integration, above at note 6, 45 at 46Google Scholar.

45 Birch, APolitical Integration and Disintegration in the British Isles (1977, George Allen & Unwin) at 32Google Scholar.

46 Haas The Uniting of Europe, above at note 40 at 13–14.

47 Id at 16.

48 Id at 12.

49 Ibid.

50 Senghor “Theoretical foundations”, above at note 17 at 24.

51 Id at 29.

52 Constitutive Act of the African Union, 11 July 2000 (AU Constitutive Act) in (2005) African Journal of International and Comparative Law 25, art 3(c) read with art 3(i).

53 Ibid.

54 The Treaty Establishing the African Economic Community, adopted 3 June 1991, Abuja, Nigeria, entered into force 12 May 1994 (Abuja Treaty), available at: <http://www.africa-union.org/root/au/Documents/Treaties/Text/AEC_Treaty_1991.pdf> (last accessed 31 October 2011).

55 Lagos Plan of Action for the Economic Development of Africa (Lagos Plan of Action) and the Final Act of Lagos (Final Act of Lagos), each adopted in Abuja, Nigeria, April 1980.

56 Abuja Treaty, art 4(2)(d).

57 Id, art 4(2)(g).

58 Id, art 4(2)(h).

59 Ibid.

60 Accra Declaration: 9th ordinary session of the AU Assembly, Accra, Ghana, 3 July 2007, available at: <http://www.commit4africa.org/declarations/42/accra/0/0> (last accessed 31 October 2011).

61 The heads of state and government noted that “the formation of a Union Government must be ‘based on a multi-layered approach’ whereby after basic internal contradictions at the national level are reviewed and resolved … the next logical step must be to identify and clearly assign specific roles to states, sub-regional entities and the continental political framework”: AU “The study on the union government towards the United States of Africa” at 4, available at: <http://www.africa-union.org/Doc/study_on_AUGovernment_june2006.pdf> (last accessed 19 December 2009). This means therefore that the multi-layered approach entails that efforts towards achieving continental integration are not solely based on the RECs; integration activities are also carried out at the national and AU levels through mechanisms such as the New Partnership for Africa's Development, which is a socio-economic programme of the AU and is regarded as an historic commitment by African leaders to accelerate integration and development on the continent; see M Mkwezalamba and EJ Chinyama “Implementation of Africa's integration and development agenda: Challenges and prospects” (2007) 1/1 African Integration Review 2.

62 The others are the: EAC; Common Market of Eastern and Southern Africa (COMESA); Economic Community of Central African States; Community of Sahelo-Saharan States; Arab Maghreb Union; and Inter-Governmental Authority for Development. It is important to highlight the progress made in COMESA and EAC, which are also among the functional RECs. COMESA was founded in 1993 as a successor to the Preferential Trade Area for Eastern and Southern Africa (PTA) which was established in 1981. The establishment of COMESA fulfilled the requirements of the PTA treaty, which provided for the PTA to be transformed into a common market ten years after the treaty entered into force. COMESA's vision is to be a fully integrated economic community for prosperity, internationally competitive, and ready to merge into the AU. COMESA member states comprise Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. COMESA is now a customs union and has made progress in the following areas: (i) trade liberalization and customs co-operation, through a free trade area covering 14 states; (ii) introducing a robust programme for eliminating non tariffs barriers, consisting of organizational structures at regional and national levels involving institutional systems and modalities; (iii) trade in services: a draft policy framework on liberalizing services has been prepared and is awaiting finalization, to facilitate trade in services like air transport, motor vehicle insurance, insurance, shipping and roads, as well as a regional system of guarantee; (iv) implementing a unified computerized customs network across the region; (v) establishing a regional competition commission to implement competition policy; and (vi) establishing a bank, which has been very active in promoting investment and providing trade financing facilities; the bank's authorized capital was increased to USD 2 billion in 2007 and the bank posted a profit of USD 4.5 million in 2006 from its operations; in 2007, project finance approvals were USD 128 million and those for trade finance were USD 156 million; see AU Assembly “Status of implementation of the regional integration agenda in Africa”, 11th Ordinary Session, 30 June 2008 – 1 July 2008: Assembly/AU/12/(XI) at 33. On the other hand, the EAC is the regional intergovernmental organization of the republics of Burundi, Kenya, Rwanda, Uganda and the United Republic of Tanzania. It is the longest standing REC in Africa, whose journey has not been easy. However, the regional integration process reached its peak in 2007 and the EAC is now a customs union. There are on-going negotiations for an East African common market as well as the underpinning process towards east African federation; see AU Assembly, id at 98.

63 These were the leaders from frontline states in the fight for political liberation from colonial rule in the southern Africa region; they were from Angola, Botswana, Mozambique, Tanzania and Zambia.

64 Ng'ong'ola, C “Regional integration and trade liberalisation in Southern Africa Development Community” (2000) 3 Journal of International Economic Law 485CrossRefGoogle Scholar.

65 African Development Bank African Development Report 2000: Regional Integration in Africa (2000, Oxford University Press) at 152Google Scholar.

66 Memorandum of understanding on the institutions of the SADCC, concluded in Harare, 20 July 1981.

67 African Development Bank African Development Report 2000, above at note 65.

68 Treaty of the Southern African Development Community (SADC Treaty), 32 ILM 120.

69 Id, art 5.

70 Profile: ECOWAS, available at: <http://www.africa-union.org/root/AU/recs/ECOWASProfile.pdf> (last accessed 16 September 2009).

71 See note 21. The treaty was revised in 1993.

72 Okolo, JE “Integrative and cooperative regionalism: The Economic Community of West African States” (1985) 39/1International Organisation 121 at 128CrossRefGoogle Scholar.

73 AU “The study on the union government towards the United States of Africa” at 32, available at: <http://www.africa-union.org/Doc/study_on_AUGovernment_june2006.pdf> (last accessed 19 December 2009).

74 Ibid.

75 Accra Declaration, above at note 60, art 2(c).

76 AU “Decision on the report of the Executive Council on the audit of the union and the report of the ministerial committee on the union government”: Doc.Assembly/AU/8 (X).

77 AU “Decision on the report of the committee of twelve heads of state and government on the union government”: Doc.Assembly/AU/11 (XI).

78 AU “Decision on the special session of the Assembly on the union government”: Assembly/AU/Dec.233(XII).

79 ECOWAS Treaty, preamble at paras 9 and 10; SADC Treaty, preamble at para 11.

80 SADC Treaty, ibid.

81 ECOWAS Treaty, preamble at paras 5 and 15.

82 Id, art 3(1).

83 Id, art 3(2)(d).

84 Abuja Treaty, above at note 54 and Lagos Plan of Action, above at note 55.

85 SADC Treaty, art 5(1)(a)–(k).

86 Senghor “Theoretical foundations”, above at note 17 at 22.

87 SADC Protocol on Trade, adopted in Maseru, Lesotho, August 1996, entered into force 25 January 2000.

88 SADC Regional Indicative Strategic Development Plan (RISDP), August 2003 at para 4.10.5.

89 SADC Protocol on Trade, above at note 87, art 2(5).

90 AU Assembly “Status of implementation”, above at note 62 at 63.

91 Id at 58.

92 Dallado, BIntegration and Disintegration: An Economic Interpretation (1995, Dartmouth Publishing Company) at 20Google Scholar.

93 Protocol Relating to the Fund for Co-operation, Compensation and Development of the Economic Community of West African States, adopted in Lomé, 5 November 1976 (Compensation Fund Protocol).

94 Id, art II(a) and (b) respectively.

95 AU Assembly “Status of implementation”, above at note 62 at 27.

96 Ibid.

97 Ibid.

98 SADC Protocol on Trade, above at note 87, art 3(c).

99 AU Assembly “Status of implementation”, above at note 62 at 29.

100 Howse and Trebilcock The Regulation of International Trade, above at note 38 at 216.

101 ECOWAS “The trade commissioner expresses confidence over functional common external tariff in 2010”, available at: <http://news.ecowas.int/presseshow.php?nb=122&lang=en&annee=2010> (last accessed 5 August 2010).

102 RISDP, above at note 88.

103 AU Assembly “Status of implementation”, above at note 62 at 58.

104 Ibid.

105 COMESA customs union, launched in June 2009 at Victoria Falls, Zimbabwe.

106 “COMESA, EAC and SADC to form a single free trade area by 2012”, available at: <http://www.comesa.int/lang-en/component/content/article/34-general-news/306-comesa-eac-and-sadc-to-form-a-single-free-trade-area-by-2012> (last accessed 5 August 2010).

107 AU Assembly “Status of implementation”, above at note 62 at vii.

108 Tironi, E “A case study of Latin America” in Seers, D and Vaitsos, CIntegration and Unequal Development: The Experience of the EEC (1980, St Martin's Press) 46 at 50Google Scholar.

109 The Treaty Establishing the East African Community, adopted in Arusha, Tanzania, 30 November 1999, preamble at para 4.

110 ECOWAS Supplementary Protocol on the Implementation of the Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, Right of Residence and Establishment (ECOWAS Protocol on the Right of Establishment), art 4(1): A/SP.2/5/90.

111 AU Assembly “Status of implementation”, above at note 62 at 29.

112 SADC Protocol on the Facilitation of Free Movement of Persons, adopted in Gaborone, Botswana, 18 August 2005.

113 Id, arts 13 and 14.

114 Id, arts 17, 18 and 19.

115 Oucho, JN and Crush, J “Contra free movement: South Africa and the SADC migration protocols” (2001) 48/3Indiana University Journal 142 at 143Google Scholar.

116 Ibid.

117 Id at 144.

118 AU Assembly “Status of implementation”, above at note 62 at 66.

119 Ibid.

120 Protocol on Relations between the African Union and the Regional Economic Communities, entered into force 25 February 1998, available at: <http://www.afrimap.org/english/images/treaty/AU-RECs-Protocol.pdf> (last accessed 19 December 2009).

121 Oppong, RF “The African Union, African Economic Community and Africa's regional economic communities: Untangling a complex web” (2010) 18/1African Journal of International and Comparative Law 92 at 93Google Scholar.

122 Ibid.

123 There is no mention of a merger in the REC treaties, nor do their respective objectives reflect any merger.

124 Salami, I “Legal considerations for devising the governance structure of the African Union” (2008) 16/2African Journal of International and Comparative Law 262 at 265CrossRefGoogle Scholar.

125 See <http://www.bidc-ebid.org/en/index.php> (accessed 5 August 2010).

126 AU Assembly “Status of implementation”, above at note 62 at 22.

127 West African Gas Pipeline Company “WAPCo ready to deliver gas to customers in Togo and Benin” (19 May 2011), available at: <http://www.wagpco.com/index.php?option=com_content&view=article&id=137%3Awapco-ready-to-deliver-gas-to-customers-in-togo-and-benin-&catid=58%3A2011-news&Itemid=134&lang=en> (last accessed 23 November 2011).

128 AU Assembly “Status of implementation”, above at note 62 at 22.

129 West African Power Pool “Revised ECOWAS master plan for the generation of and transmission of electrical energy, October 2011” at 9, available at: <http://www.ecowapp.org/?page_id=136> (last accessed 23 November 2011).

130 AU Assembly “Status of implementation”, above at note 62 at 25.

131 Id at 60.

132 Id at 61.

133 Ibid.

134 Ibid.

135 Ibid.

136 SADC Regional HIV Prevention Strategy and Action Plan for Universal Access (2008–10); Framework of Action for Harmonisation, Alignment and Monitoring of HIV and AIDS Funds; Regional HIV and AIDS Research Agenda; Framework of Action for Building Effective Partnerships Between National AIDS Authorities and Civil Society Organisations; and Training Guide on Mainstreaming HIV and AIDS for Policy Makers.

137 AU Assembly “Status of implementation”, above at note 62 at 59.

138 Ibid.

139 Senghor “Theoretical foundations”, above at note 17 at 22.

140 Id at 29.

141 Ibid.

142 Oppong “The African Union, African Economic Community and Africa's regional economic communities”, above at note 121.

143 Abuja Treaty, art 4(2)(d), (g) and (h).

144 AU Constitutive Act, art 3(i), read with Abuja Treaty, art 4(1)(d) and 4(2); Accra Declaration, arts 1 and 2(a).

145 Lindberg “Political integration”, above at note 44 at 46.

146 Holland European Integration, above at note 1 at 7.

147 SADC Protocol on Trade, art 2(5); ECOWAS Treaty, art 3(2)(d).

148 ECOWAS Treaty, id, art 23.

149 ECOWAS Protocol on the Right of Establishment, above at note 110.

150 ECOWAS “Decision relating to the adoption of ECOWAS monetary co-operation programme”: A/Dec.2/7/87.

151 West African Monetary Agency “Background information”, available at: <http://www.amao-wama.org/en/present.aspx> (last accessed 14 December 2009).

152 AU Assembly “Status of implementation”, above at note 62 at 29.

153 AU Constitutive Act, art 3(c) and (i); Accra Declaration, arts 1 and 2(a).

154 Accra Declaration, ibid.

155 AU Rationalization of the Regional Economic Communities (RECs): Review of the Abuja Treaty and the Adoption of Minimum Integration Programme (2007, AU Economic Affairs Department) at 29Google Scholar.

156 EAC “Commencement of fully fledged customs union”, available at: <http://www.eac.int/customs/index.php?option=com_content&view=article&id=126:commencement-of-fully-fledged-customs-union&catid=27:newflash> (last accessed 5 February 2010); COMESA customs union, above at note 105.

157 “Sirte declaration on the review of the Abuja Treaty”, adopted at the 4th extraordinary session of the AU Assembly of Heads of State and Government, 9 September 1999 at para 8.ii.a.

158 Abuja Treaty, art 6(2)(c).

159 AU Rationalization of the RECs, above at note 155 at 21.