PROBLEMAS DE INVASIÓN Y OCUPACIÓN INDEBIDA DEL ESPACIO PÚBLICO

The emergence of intergovernmentalism as a theory can be traced back to the intellectual discourse on integration of the 1960s advanced by Hoffman.90 It is essentially a critique of the neo- functionalism theory attributed to Haas.91 Rosamond summarises the essence of intergovernmentalism by foregrounding how the theory is underpinned by the assertion that the state is the primary actor in international relations.92 The state, therefore, consciously relinquishes a portion of its sovereign authority, in the interest of commonly shared objectives, with regards to the integration process.93 However, the state still retains its place as the principal entity in the integration process.94

90 _{S Hoffmann, “Obstinate or Obsolete? The Fate of the Nation-state and the Case of Western Europe” (1966) 95(3)}

Daedalus 862-915.

91 _{The neo-functional theory is elaborated in two of Haas’ works, EB Haas “International Integration; the European} and Universal Process” (1961) 15(3) International Organisation 366-392; and EB Haas, “The Study of Regional Integration: Reflections on the Joy and Anguish of Pretheorising” (1970) 24(4) International Organisation, 606-646. 92_{B Rosamond, “Conceptualising the EU Model of Governance in World Politics” (2005) [7]} <http://wrap.warwick.ac.uk/1098/1/WRAP_Rosamond_9570885-150709-rosamond_efar_05.pdf.> accessed on 15th December 2018. See also B Rosamond, “The Uniting of Europe and the foundation of EU studies: Revisiting the neo- functionalism of Ernst Haas” (2005) 12(20) Journal of European Public Policy 291-309.

93_{B Rosamond, Theories of European Integration (Palgrave Macmillan, Hampshire 2000) 51-52. See also, S Hoffman,} “Reflections on the Nation-State in Western Europe Today” (1982) 20(1-2) Journal of Common Market Studies 20 21-37.

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Intergovernmentalists argue that the state does not become obsolete because of integration but rather remains a primary actor in the integration process through negotiation and direction.95 Therefore, the state is not weakened through delegating a portion of its powers to the integrated unit but, to the contrary, is strengthened in the process by expanding its sphere of influence beyond its territory.96

A contemporary version of intergovernmentalism has since emerged, with its main proponents described by Andrew Moravcsik as liberal intergovernmentalists.97 _{The fundamentals}

of the theory remain the same as with classical intergovernmentalism, with states prevailing as the central actors in integration. However, it should be highlighted that, liberal intergovernmentalism incorporates the liberal model of integration into traditional notions of intergovernmentalism. This model underscores the role of the state in asserting its preferences and pursing them through its bargaining powers.98 In contrast to neo-functionalists, liberal intergovernmentalists consider institutions to be of limited importance in the integration process.99 Moravcsik posits that liberal intergovernmentalism fundamentally takes a two–stage approach. In the first stage, national preferences are primarily determined by constraints and opportunities imposed by economic interdependence, while in the second stage intergovernmental integration negotiations largely depend on the state’s bargaining power and desire to control the domestic agenda.100

Moravcsik goes on to expound liberal intergovernmentalism as exhibiting three essential elements: the assumption of rational behaviour, a liberal theory of national preference formation

95_{S Dosenrode, “Federalism Theory and Neo-Functionalism: Elements for Analytical Framework” (2010) 2(3)}

Perspectives on Federalism 23.

96 _ibid.

97_{A Moravcsik, “Preferences and Power in the European Community: A liberal Intergovernmental Approach”} (1993)31(4) Journal of Common Market Studies 473-525. See generally, A Moravcsik, The Choice for Europe: Social Purpose and State Power, from Messina to Maastricht (1st _{ed Cornell University Press, Cornell 1998).}

98_{A Moravcsik, “Federalism in the European Union: Rhetoric and Reality” in, K Nicolaidis and R Howse (eds), The}

Federal Vision: Legitimacy and Levels of Governance in the US and the EU (Oxford University Press Oxford 2001) 161-187, at 181.

99 _ibid.

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and an analysis of inter-state negotiation.101 The assumption of rational state behaviour provides a general framework for the analysis, describing the cost and benefits of economic interdependence as the primary determinants of national preferences.102

However, intergovernmentalism is not without criticism. Intergovernmentalism has been faulted for understating the role of supranational institutions in integration by emphasising the state-centric approach.103 _{The effect of this has been to diminish or minimise the influence and}

ultimate independence of integration institutions, therefore slowing the deepening of the integration process.104

Further criticism is laid on the intergovernmentalists’ view of the limited importance of supranational institutions. The liberal intergovernmentalists’ view of limited importance of supranational organs has been disproved by the development of strong and effective supranational organs of the EU, which is the context in which the approach bases its fundamental theories. An illustration is found in the jurisdictional and competence tensions between the EU and national organs. For instance, Siegfried Bross, a German Judge, has called for a separate court to preside over disputes which overlap in competencies or jurisdictional questions of the ECJ and national courts of member states. This court would preside particularly over questions of national constitutional law.105 In fact, in Bross’ opinion, the ECJ cannot make decisions on national constitutional law. Similarly, national courts are disempowered because they cannot rule on the interpretation of EU law.106 Additionally, the principle of subsidiarity offers no relief for the competence or confusion despite the fact that the EU should only act if the goal cannot be

101_{A Moravcsik (1998), (n) 97, 480.} 102 _{ibid, 480-481.}

103 _{PG Colletz, Introducing the European Union; Between Supranationalism and Intergovernmentalism (2013)}

<https://euroculturer.eu/2013/11/04/introducing-the-european-union-between-supranationalism-and- intergovernmentalism/ p.1.> accessed on 27th _{June 2018.}

104_ibid.

105_{J Weiler and M Kocjan, “The Law of the European Union. Principles of Constitutional law: The Relationship} between the Community Legal Order and the National Legal Orders: Competencies” (2004/5)

https://jeanmonnetprogram.org/wp-content/uploads/UNIT6-EU-2004- accessed on 27th _{June 2018, 56} 106 _ibid.

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successfully achieved by its member states.107 This, Bross observes, is primarily because of the fact that when the EU member states transfer powers to the supranational level, they implicitly acknowledge that a decision is better made at the EU level and cannot, therefore, invoke the subsidiarity principle at a later stage.108

The intergovernmental approach to integration is common place in the African integration process. Most RECs in Africa are intergovernmental units with some exhibiting limited supranational features or organs.109 _{Most integration efforts in Africa are spearheaded by states}

which wield influence over the organs created in the integration efforts. In essence, African integration efforts are intergovernmental and state-centric. Intergovernmentalism, therefore, seems to find favour on the African continent, largely because of its assurance of the state’s retention of its sovereign authority with little, if any, of it ceded to the integration organs.

On the other hand, commentators such as Senghor and Forere prefer to view and discuss Africa’s integration through the lenses of functionalism and neo functionalism, and for good reason.110 African states want to protect their sovereignty while fostering international co- operation and incrementally, through the establishment of regional organisations to promote

107 _{ibid, 129-171. The principle of subsidiarity has been praised and criticised in equal measure but remains a critical} pillar of the European integration process. In the African context, Kaaba and Fagbayibo (2019), argue that the principle of subsidiarity can be a useful tool for the AU in ensuring observance of democratic ideals, the rule of law and respect for human rights. See, O Kaaba and B Fagbayibo, “Promoting the Rule of law through the Principle of Subdiarity in the African Union: A Critical Perspective” (2019) Global Journal of Comparative Law 27-51.

108_ibid.

109 _{The AEC, AfCFTA, IGAD, EAC, ECOWAS, SADC, COMESA and TFTA are all intergovernmental efforts at} integration. The OHADA effort is an attempt at a supranational approach to integration. For a discussion of the attempts at supranationalism in Africa and challenges thereto, see, B Fagbayibo, (n) 32, 32-69.

110 _{J C Senghor, “Theoretical foundations for Regional Integration in Africa: An Overview” in, PA Nyong’o (ed.)} (1990) 17(18) Regional Integration in Africa: Unfinished Agenda African Academy of Sciences; and M Forere (n) 81, 31.

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economic development.111 This, according to Forere, resonates well with the functionalist and neo- functionalist approaches in which common interest is seen as a key motivation for integration.112

However, there is also compelling evidence which points to Africa’s integration efforts as something which strongly gravitates towards intergovernmentalism. Ibrahim, Ogbeid and Adams113 advance that the AU is itself an intergovernmental body although, as Fagbayibo observes, the original idea was to create organs with supranational authority under the intergovernmental AU.114 _{Senghor and Forere conclude that since the principal decisions made by}

the AU are taken by member states, these states control the integration process according to their own interest, and that African states are unlikely to surrender their hard earned sovereignty for an uncertain union of African states.115

Maluwa cites pan-Africanism as one of the factors which triggered the birth of the AU and its predecessor, the OAU.116 Ibrahim, Ogbeid and Adams define pan-Africanism as a “[r]acial universal or Afro-continental feeling of solidarity and shared ancestry among Africans”.117 Maluwa envisions the collective ambition of Africans immortalised in the pan-African spirit as a rallying call towards the continent’s political and economic integration.118 W.E.B Dubois is regarded as the founding father of pan-Africanism or the pan-African movement, which, from

111 _{M Forere, (n) 81, 31.}

112 _{ibid. Functionalism and its off-shoot neo-functionalism, are discussed in part 2.2 of this chapter.}

113_{Ibrahim and Ogbeid and Adams, ‘An Intergovernmentalist Approach to Regional Integration in Africa: The} Efficacy of the African Union” (2015) 1(1) International Journal of Multidisciplinary Research and Modern Education (IJMRME) 461-479 [461].

114_{B Fagbayibo, “A Supranational African Union? Gazing into the Crystal Ball” (2008) De Jure 493-503, at 498.} 115 _{Ibrahim and Ogbeid and Adams, (n) 113, 461.}

116 _{T Maluwa, “The Constitutive Act of the African Union and Institution-Building in Post-colonial Africa” (2003) 16}

Leiden Journal of International Law, 157-170, at 161.

117 _{Ibrahim and Ogbeid and Adams, (n) 113, 465.} 118 _{T Maluwa, (n) 116, 161.}

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conception, sought to fight against the western domination of Africa, and to restore dignity, self- determination, and unity within Africa and its diaspora.119

It has been observed that Africa’s integration has always been advanced by strong charismatic leaders who ride on the pan-African philosophy.120 _{The formation of the OAU was}

spearheaded by the then Presidents of Tanzania, Julius Nyerere, Egypt’s Gamal Abdel Nasser and Ghana’s Kwame Nkrumah.121 _{Similarly, the transformation of the OAU into the AU, and reform}

of the latter’s structures, had Presidents Olusegun Obasanjo of Nigeria, Thabo Mbeki of South Africa and Mummar Al-Ghaddafi of Libya as prime movers.122 The common theme running through both eras of Africa’s integration is the strong leaning towards an intergovernmental approach and the ideology of pan-Africanism as a rallying call.

Despite its popularity on the continent, intergovernmentalism has still endured criticism. Ibrahim, Ogbeid and Adams advance that much of the OAU’s failure can be attributed to its policy of non-interference in member states’ internal affairs.123 This, they observe, weakened the OAU’s ability to prevent and manage conflicts, civil wars and even colonialism.124 This was partly because

119_{A Badre, “Supranational Versus Intergovernmental Structure: The European Union vs. the African Union” (2014)} 1 Goethe University Fourth International Studies Conference 1- 58, 11 <https://www.researchgate.net/publication/315655664_Supranational_Integration_Versus_Intergovernmental_Struct ure_The_European_Union_vs_the_African_Union> accessed on 25th _{September 2018. In the colonial era, most} African liberation movement leaders favoured a supranational political Union of the continent. After independence, and having tasted power, most leaders were no longer interested in a political union or supranational OAU but preferred to engage as sovereign states in an intergovernmental approach. Few leaders, like Nkrumah, still advocated for a supranational integration of the continent. For a discourse of the relationship between Nkrumah’s approach to African Integration and intergovernmentalism, see generally, B Fagbayibo (2018), “Nkrumahism, Agenda 2063, and the Role of Intergovernmental Institutions in Fast tracking Continental Unity” (2015) 53(4) Journal of African Studies 629-642.

120_{A Biney, “The Legacy of Kwame Nkrumah in Retrospect” (2008) 2(3) Journal of Pan African Studies 129-159, at} 147.

121_{A Badre, (n) 119, 11.} 122 _{Badre, (n) 119, 147.}

123 _{Ibrahim and Ogbeid and Adams, (n) 113, 475.} 124 _ibid.

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of the intergovernmental approach adopted which caused the AU’s predecessor, the OAU, to shy away from establishing organs with an overarching supranational authority to ensure peace and security on the continent.125 However, the policy of non-intervention in internal affairs of partner states always stood in the way. Notwithstanding, it appears that the Constitutive Act of the AU has reversed the policy on non-interference in internal affairs of member states. Article 4(h) of the Constitutive Act of the AU provides for “the right of the Union to intervene in respect of grave circumstances such as war crimes, genocide and crimes against humanity.” 126

At the sub-regional level, the intergovernmental approach of “integrating for self- interest” has been exhibited by African states resulting in their forming a multiplicity of RECs, and the undesirable “spaghetti bowl effect” in integration.127_{Other examples of intergovernmental self-}

interest moves, at sub regional REC levels in Africa, were seen in the 1989 move by Mauritania to pull out of the Economic Community of West African States ECOWAS and become a founding member of the Arab Maghreb Union (AMU).128 Morocco unilaterally withdrew its membership of the then OAU in 1984 when the continental body took a decision that was perceived to be inimical to its national interest by recognising the disputatious Sahrawi Arab Democratic as an independent state.129 However, Morocco was re-admitted to the AU in January 2017.