Sources of International Law

1. Identify relevant sources of international law.
2. Demonstrate a knowledge of appropriate case studies.
3. Demonstrate a familiarity with key current or historical debates in international law as reflected in scholarly works.
4. Understand key theories of international law.

In the international scenario, the issues and the concerns of human rights are ones that are debated broadly in modern world. The reason for this is that the questions relating to human rights are fundamental in relation to humanity. The assignment deals with the claw back clauses that are evident in African Charter. The internationalization process related with human rights deals with the instruments that are international for the purpose of recognition of the need and requirement for the promotion and preservation of the human rights for maintaining the peace of the world.  

The adoption of Protocol that is related with the African Charter on the Human Rights and the setting up of an African Court based on the rights of the human and people was regarded as a significant and evident step in making the enhancement of the human rights that is regional in Africa. The said development is the effective signaling to make the dealing with the violations of human rights in a structured judicial process. The aim of such development is also to make the acknowledgment of the failure of the African Commission on Human Rights in making the meaningful effect on the maintenance and the development of the human rights and that too in the territory of Africa. The said failure emerges from the horse-trading in the political sense, and that resulted in the human rights disregard. As demarcated by Jean-Paul Masseron, the statesman of Africa possesses a motive to make the sacrifice of their personal liberties for making the safeguard of their national independence.

The African Court that is based on the human rights performs the function of development and maintenance of the human rights. Such maintenance and performance have to be done by reinforcing and complementing the protective mandate and the functions of the African Commission. The protocol adaptation was then followed by the formation of the Union of Africa. It is regarded as the supranational structure that bears similarity with the European Union (Abebe 2012). The African Union was necessitated due to the enhancement of the globalization and the expressed disenchantment by the people of Africa in relation with their economic, political and the social choices that are enhanced by those people’s respective government. The art of construction that is possessed by the African Union has to lead to the establishing of the Court of Justice of that Union. The year of 2008 saw the decision was taken by the African Union of merging with the African Court that is based on the human rights along with the African Court of Justice for making the streamline of the judicial system that is regional (Ali, 2013).

Case Studies on Human Rights

In spite of the optimism that surrounds the said developments there sustains the danger of not fulfilling the mandate of the Court as a result, of trading of the political horses as allured previously. The same incident may also occur in the event where the Court is engaged in legitimizing the institutional practices of the member states (Assefa 2014). In those cases, the biases that is apparent is in the favor of any certain government. The perception regarding the fact that injustice shall prevail and that would result in rendering the court a tool in the political sense about the Governments of Africa.

The leniency that is apparent by the said Court towards the government’s acts as a factor that is additional towards contributing towards the failure of the Court in meeting the mandate. Those factors are as follows:

Violation of the historical norms of human rights by the states that is contained in African Charter and also in the different instruments of the international human rights.

The factor of ethnic intolerance that emerges primarily in drawing the boundaries that are artificial by the pre-existed colonizing powers.

The principles such as the margin of appreciation make the allowance to the states to make the deviation from the application that is proper, of the norms of human rights that are accepted.

The usage of the excessive clause of claw-back that is evident in the African Charter.

The claw-back clauses help in instituting the restrictions that exist already in the provisions of human rights that are built already. The most notable provision is the African Charter (Burbano-Herrera and Viljoen 2014). The internal modifier makes the qualification of the rights and at the same time grants the permission to a state to make the restriction of such rights to that maximum extension that is permitted by the domestic law. The African Charter through Article 6 makes the provision that every individual shall possess the right of liberty and security. According to that Article in the African Charter, it is provided that no person should be deprived of the freedom of liberty except for the reasons and the conditions that are laid down by the law previously (Dhaliwal 2014). This provision in the first instance makes the recognition of the right to the security and liberty and afterward proceeds to make the removal of the certainty of that right in the subsequent instance. In the simple terms, it means that any individual is granted the right and then is deprived simultaneously because of its subject to the constraints of domestic that often make the deprivation of the populace of all the protection in the legal sense.

Current Debates in International Law

There has been a criticism among other critics by Dlamini for the extensive use of the claw-back clauses that is in the African Charter. The criticism of the extensive use is done because it limits the impact of the provisions of the African Charter by giving the member states too much autonomy and at this moment allowing them for making the violation of the human rights and that too with impunity (Durojaye 2013). In the view of Dlamini, the clauses make the allowance of the limitations that are discretionary. It is for this reason the claw-back clauses are considered as a weakness in the African system. 

The doctrine of the margin of appreciation states that there are certain situations, where at the domestic level, the States are allowed to make the exercise of a certain discretion degree in making the application and the implementation of the provisions of human rights that are guaranteed (Ekhator 2015). In the simpler terms, it means that the doctrine of the margin of appreciation is applied by any state in its discretion in the case when its conduct get challenged on that ground of making the violation of a right that is guaranteed and enshrined in the domestic treaty or the treaty of regional human rights.

The European Court’s jurisprudence is rich with those cases in which the doctrine has been applied. The case of Handyside v UK was considered as the first case where it was recognized that is was not possible to make the finding of the domestic law of the several states that are contracting by a uniform European morals conception (Elvy 2012). It is because every state that is contracting have a continuous and direct contact with the vital forces of the countries. The State authorities as compared to the international judges are in a better condition in making the judgment regarding the penalty or restriction that is to be rendered in the case of violation of human rights. It is for these reasons that the Court held that the domestic margin of the appreciation goes parallel with the European supervision (Gwaza and Garba 2015).

A regional court of human rights hence is given the duty of making the observance of the engagements of the member states. The doctrine of marginal appreciation makes the requirement that while doing the said function, the court must also take into its account the factual and the legal situations in the State with that result that the protection standards varies in place and time.           

Theories of International Law

The problem and the difficulty that the Court would face is at the time of making the determination of the procedure of the application of the doctrine when any complaint makes the allegation of the violation of the provisions of the African Charter and that also makes the inclusion of the calwback clause. The first step in making the consideration of the said question is to make the identification of the exact provisions of the African Charter that contains the claw-back clauses (Helfer 2015). The provisions that contain the claw-back clauses are the right to life that is provided in Article 4 of the Charter, the security and liberty rights of a person that is provided in Article 6 of the Charter. It also includes the freedom of profession, religion and conscience that is provided in Article 8 of the Charter, freedom to association that is provided in Article 10 of the Charter, the freedom of assembly that is provided in Article 11 of the African Charter. The claw-back clauses are also contained in the freedom of residence and movement that is provided in Article 12 of the Charter and the right to make the participation in the government that is provided in Article 13 of the African Charter (Hellum 2013).

The right of making the participation in the government is subject to the provision of the domestic law that carries with itself the implication that the right is not subject to violation in a one-party state. In addition to that, the military regimes are also accommodated with the claw-back clauses that is provided in Article 12 of the African Charter (Morel, C., 2014). It is because it gives the governments of Africa the wide discretion for making the determination of the type of political order that they would implement and makes the inclusion of a one-party state easily.

It is advised that the Court may not make the application of the doctrine of the margin of appreciation in those cases where the applicant makes the allegation of violation of a provision that contains in it a claw-back clause. The reason for this that the inclusion of a clause that is claw-back or an internal modifier is that right that is in question is since the inception of African Charter is subject to restrictions automatically (Ngwena 2014). The application of the doctrine of the doctrine of the margin of appreciation would lead to the destruction of the rights in complete terms. It would mean and indicate to some extent double jeopardy and would render the provision to a promise that is empty and would incorporate a feeling that those provisions should never have been incorporated in the African Charter from its inception (Onyoyo 2014).

The African Charter on Human Rights

The definition of the claw-back clause as an internal modifier makes the emphasis of the fact that the right that is in question suffers already from the drawback of having proper implementation, definition and application in that manner that makes the deprivation of the real substance. In case there happens the dual application of the claw-back clauses and the doctrine of the margin of appreciation, then there lies the risk of dire consequences. The states and their nationals where the system of institutional apartheid takes place or is practiced would face the dire consequences (Pascale 2014).

The disadvantage that the application of doctrine of the margin of appreciation to the above circumstances is not limited in relation to the immediate impact that the doctrine has on the individuals. The results of the application of the claw-back clauses are more sinister. The application of the claw-back clauses and the doctrine of the margin of appreciation would result in the failure of the of establishing a regime of regional human rights that is credible and workable longtime (Peter and Mwalimu 2012). It would leave the Africans with no or little recourse when such human rights are violated. Hence, this would leave the Court to act as a white elephant which is attacked by several criticisms that plagued the Commission of Africa.

It is also the duty of the Court to make the avoidance of the lethargy of the Commission of Africa. There is the requirement of a court of regional human rights. It would turn to be disastrous for the African territory in case the regional human rights procedure were to make the entry in the state that is based on regression. Such entry would be after the adoption of the Protocol (Peter and Steyn 2015). The protocol would turn to be a milestone that aids in the recognition of the tragedy of the failure of making the provision of a body of human rights that is judicial in nature in the Charter of Africa.

The said protocol is considered as a giant leap in the appropriate for the people of Africa who up to the date suffered firstly at the hands of the colonialists and subsequent to that at the hands of the leaders, whom they thought and expected to drive them out from the past’s darkness. The practicality and the reality has proven at several times that those leaders had no difficulty in subverting the norms of the human rights of their people. The government often made the use of the national laws in order makes the justification of the conduct of the State that derives from the values that are important such as freedom, dignity and equality that undermines the provisions of human rights in the African Charter (Reiter 2014). The said values are based on the sense of morality and are aimed at making the regulation of the human conduct in order to ensure the respect to the humans.

Formation of the African Court

The protocol adaptation is also considered as the recognition of the failure in the general sense of majority of the governments of the Africa in relation to the regulation of their conduct that in a way acts as the failure in respecting those people whom they govern. In the recent years, Africa has taken the initiative in the establishment of the Court that would indeed serve as a travesty of justice.

It is also expected that Court would also pay heed to the criticisms that have been leveled against the commissions and the courts of the human rights. The failure of the courts in paying heed to such criticisms would mean that the adoption of the protocol would become an exercise that is in futile. There is also no doubt in the fact that the Courts also need to make the development of the instruments of interpretation while making the deliberations in the light of wide differences that in the cultural, ethnic, political and religious opinion (Resmini 2015). It is because such opinions prevail in the continent that is dogged by supremacy of the politics that is above the rule of the law.

It is also necessary that there is the application of the doctrine in certain situations. Hence, it would considered as wise for the Court to make the application of the doctrine in a sense that is strict and also ensuring that the rule of the law prevails with respect for humans. Such rule of law must prevail over the political Machiavellianism. In case the states are allowed a broad margin of appreciation, primarily regarding the claw-back clauses, would mean to return Africa in such a point in which there is no existence of the regional court. The states would consider it free to divert the norms of human rights in that knowledge that the Court acts as a political institution and the primary concern of the Court is appeasing the government without making the achievement of its mandate.

It can be said that Africa has entered into a phase that is crucial for its development and there is also the requirement of a new approach and attitude to the human rights. The calwback clauses is the distinctive feature of the African Charter that permits the breach of the obligations for several reasons in the normal circumstances. The exercise of the maximum rights of the African Charter is subject to limitation through the uses of certain clauses such as “within the law”, ‘‘provided that individual abides by the law” etc.  By having regard to the other systems as regional and universal, the African Charter makes the inclusion of the clauses that are related with derogation. The clauses of derogation are different from the claw-back clauses  in the fact that the derogatory clauses itself makes the explicit provision of the circumstances where the rights are limited and the rights that are regarded as non-derogable  and should be respected and even when such derogation is permitted (Rudman 2015).

Challenges Facing the African Court

The African Charter makes a stronger focus to the subject of people’s rights. The African Charter could be distinguished as being the sole international tool that provides the detailed exposition of the people’s rights. In the African system the machinery of enforcement had rested long in the single institution that is the Commission of Africa. It is similar to the universal system that is performed in the enforcement that is monitored by the Committee of the United Nations Human Rights. But the enforcement machinery system had departed from systems related to regions. The system although got approved by the leaders of Africa in the year of 1981 is quite different from the system that conceived in the year of 1998 that resulted in the inclusion of the African Court on the rights of human and people besides the Commission (Viljoen 2013). The system later on joined Inter-American that has the said couple of institutions and still they departed from the European one that led to the suppression of the European Commission.

The organization of African Unity is the organ that is related with politics makes the creation of outlook for the Court’s success. However, the fact is imperative that the bench member seek the lessons of the experience of the European in case the Court makes the service of any real service in the territory of Africa (Windridge 2015). Although it is unlikely that the Court would be instrumental in making the development of enforceable and minimum standards of norms of human rights in Africa, it must also try to make the betterment of Africa as continent. It would serve as the success of the Court and it would play a significant role in the fulfillment of the African Union’s objectivities.   

Abebe, A.K., 2012. Limitations to the Rights of Indigenous Peoples in Africa: A Model for Balancing National Interest in Development with the Rights of Indigenous Peoples. Afr. J. Int’l & Comp. L., 20, p.407.

Ali, A.J., 2013. Derogation from Constitutional Rights and Its Implication Under the African Charter on Human and Peoples’ Rights. Law, Democracy & Development, 17.

Assefa, A.G., 2014. Advancing Children’s Rights in Africa: The Role of the African Children’s Charter and Its Monitoring Body. Mekelle ULJ, 2, p.66.

Burbano-Herrera, C. and Viljoen, F., 2014. Interim Measures Before the Inter-American and African Human Rights Commissions: Strengths and Weaknesses. In Human Rights and Civil Liberties in the 21st Century (pp. 157-177). Springer Netherlands.

Dhaliwal, S., 2014. Road Map for South Asian Human Rights Initiative: Lessons from the African Mechanism. Journal of Public and Private Law, 6, pp.168-178.

Use of Claw-Back Clauses

Durojaye, E., 2013. The potential of the Expert Committee of the African Children’s Charter in advancing adolescent sexual health and rights in Africa.The Comparative and International Law Journal of Southern Africa, pp.385-409.

Ekhator, E.O., 2015. The impact of the African Charter on Human and Peoples’ Rights on domestic law: a case study of Nigeria. Commonwealth Law Bulletin, 41(2), pp.253-270.

Elvy, S.A., 2012. Theories of State Compliance with International Law: Assessing the African Union’s Ability to Ensure State Compliance with the African Charter and Constitutive Act. Georgia Journal of International and Comparative Law, 41(1).

Elvy, S.A., 2013. Towards a new democratic Africa: The African charter on democracy, elections and governance. Emory Int’l L. Rev., 27, p.41.

Gwaza, P.A. and Garba, Y.M., 2015. The African Union Human Rights’ Framework: Challenges, and Prospects for Regional Peace and Integration.Available at SSRN 2583686.

Helfer, L.R., 2015. Sub-regional Courts in Africa: Litigating the Hybrid Right to Freedom of Movement. Available at SSRN 2653124.

Hellum, A., 2013. Gender, human rights and legal pluralities: experiences from Southern and Eastern Africa. Gender Justice and Legal Pluralities: Latin American en African Perspectives.

Morel, C., 2014. Indigenous as equals under the African Charter. Indigenous People in Africa.: Contestations, Empowerment and Group Rights, p.1.

Ngwena, C.G., 2014. Conscientious objection to abortion and accommodating women’s reproductive health rights: reflections on a decision of the Constitutional Court of Colombia from an African regional human rights perspective. Journal of African Law, 58(02), pp.183-209.

Nuwagaba, E., 2015. An analysis of the approaches of the African Commission to the socio-economic rights provisions of the African Charter: a comparative analysis with European and inter-American regional systems(Doctoral dissertation, University of the Western Cape).

Onyoyo, P.O., 2014. Understanding Enforceability Challenges Facing Equality Rights Under Art. 27 of the Constitution of the Republic of Kenya.

Pascale, G., 2014. African Charter and the Passive Electoral Right: The First Judgment Issued on the Merits by the African Court on Human and Peoples’ Rights. Diritti umani e diritto internazionale, (1), pp.208-214.

Peter, C.M. and Mwalimu, U.A., 2012. The African Charter on the Rights and Welfare of the Child. Yusuf, Abdulqawi A./Ougergouz, Fatsah (Hg.): The African Union: Legal and Institutional Framework. A Manual on the Pan-African Organization, Leiden/Boston, pp.477-493.

Peter, M. and Steyn, B., 2015. Share incentive schemes for Chief Audit Executives.

Reiter, A., 2014. Victims of human rights violations and victims of human rights restrictions. Temida, 17(1).

Resmini, M.T., 2015. Limiting Judicial Discretion in Kenya’s High Court: Towards a Statutory Framework for the Denial of Bails for Persons Arrested on Suspicion of Crimes of Terror. Available at SSRN 2601480.

Rudman, A., 2015. The protection against discrimination based on sexual orientation under the African human rights system. African Human Rights Law Journal, 15(1), pp.1-27.

Viljoen, F., 2013. From a cat into a lion? An overview of the progress and challenges of the African human right system at the African Commission’s 25 year mark. Law, Democracy & Development, 17, p.298.

Windridge, O., 2015. A watershed moment for African human rights: Mtikila & Others v Tanzania at the African Court on Human and Peoples’ Rights.African Human Rights Law Journal, 15(2), pp.299-328.