The keynote speaker at the 2022 International conference of the ECOWAS Court has called on ECOWAS Member States to show more commitment to their Community obligations to dismantle national obstacles militating against the creation of a functional ECOWAS common market.
While acknowledging that there has made a visible transformation of the ECOWAS over the past 47 years, particularly in the efforts to strengthen the Community institutions to play a more central role in the integration process, Professor Solomon Ebobrah, who is the Director the Institute for Niger-Delta Studies at Nigeria’s Niger-Delta University, argued that ECOWAS remained largely an intergovernmental arrangement because the common market over which Community institutions can exercise supranational authority has been too slow to emerge completely.
“A big obstacle remains the fact that no real ECOWAS Market outside the national control of the Member States exists, over which the Authority or any other Community institution can exercise regulatory control” Professor Solomon Ebobrah said in his presentation. As a result, he argued that the national laws and policies of Member States continue to regulate even economic and related matters which ought to come under the regulatory purview of the ECOWAS Community institutions.
In the 26 page presentation which explored various aspects of the ECOWAS Integration Model, the Professor of Law identified three distinct epochs in the evolution of ECOWAS, with each succeeding epoch characterised by an apparently stronger determination by Member States to transfer more powers to ECOWAS institutions as a means to ensure a faster realisation of the integration objective.
Drawing from the robust literature on regional integration in Europe, Professor Ebobrah traced the emergence of concepts such as regionalism, intergovernmentalism and supranationalism. Citing the works of European integration scholars like Ernest Haas, Schimmiter, Claude and Schutze, the guest speaker pointed out that the loss of some attributes of sovereignty and the creation of ‘common and permanent institutions capable of making decisions binding on members’ were unavoidable features of successful integration.
Professor Ebobrah attributed the uniqueness of European Union integration model to its readiness to imbibe the critical aspects of integration. Moreover, member states of the European Union were willing to shift from the regular form of inter-state relationship recognised in public international law and abandon the ordinary forms of international treaties to achieve its regional integration objectives.
He added: “Effectively, it can be said that the European style of integration is an invitation for states to move beyond the privileges of statehood and diplomacy associated with public international law, to the extent that Europe-style integration requires those states to sacrifice some attributes and thus, some attendant consequences of sovereignty that public international law takes for granted.”
Over time, he said, the European Union acquired a ‘constitutional character’ extending beyond the boundaries of public international law which transformed nature and scope of rights and obligations for states and citizens.
Citing Alec Stone Sweet and Thomas Brunell, he said, “constitutionalism in European integration is ‘the process by which the EC treaties evolved from a set of arrangements binding upon sovereign states, into a vertically integrated legal regime conferring judicially enforceable rights and obligations on all legal persons and entities, public and private within the sphere of application of EC law”.
He identified the unique feature of the EU integration process as its subscription to the convergence of ‘international and constitutional’ in contrast to intergovernmentalism founded basically on public international law, emphasising that integration necessarily emerges as a creation of international law with its intergovernmental attributes but can grow into a sophisticated supranational organisation. Professor Ebobrah argued that while both intergovernmentalism and supranationalism can exist in a continuum in the integration process,
Consequently, he called for a deep reflection on the claim to the existence of a unique ECOWAS model of integration and the legal implications of ECOWAS’ present mode of operation during the four day conference which opened on Monday, 9 th May 2022 in Praia, Cabo Verde.
He said that economic integration can be viewed from the perspective of a market- creating part ‘which requires congregating states to remove national constitutional, legal and other obstacles to the emergence of the proposed or agreed form of integration’ while the ‘market-regulating part involves the enactment, monitoring and enforcement of norms in the market so created.’
He added that “the market-creating function is more suited to the intergovernmental approach while the market-regulating function entails a supranational approach which may be either in the form of a pooling of sovereignties or some delegation of sovereignty to supranational organs of the created organisation.”
He stated that ECOWAS was at the market-creating stage of integration which required the Member States to implement decisions and comply with obligations undertaken through their intergovernmental legislative actions. Prof Ebobrah stressed that ECOWAS Member States do not have lesser legal obligations as regards compliance and implementation even if majority of these obligations arose from intergovernmental acts of Member States themselves, pointing out that the principles of the Vienna Convention on the Law of Treaties applied strictly to these Community obligations.
Furthermore, he described integration as a process rather than an event, adding that though ECOWAS institutions were created to help build the integration process, they were not yet empowered to function independent of the governments of Member State as a supranational entity.
Prof Ebobrah emphasized that supranationality does not come about by legislative or judicial fiat but required the commitment of Member States to actualise a deeper level of integration. He therefore reminded Member States of the need to surrender parts of their sovereignty in order to move the region’s integration process from a mere cooperation among states as well as accept mutual interference in one another’s domestic affairs as desirable for the Community interest
The statement by the regional court said that the four-day hybrid conference was attended by participants from the academia, the judiciary, representatives of civil societies and ECOWAS national units in Member States.
“A total of 25 presentations were made under seven sub-themes flowing from the central theme of: ECOWAS Integration Model: The Legal Implications of Regionalism, Sovereignty and Supranationalism,” it added.
GIK/APA