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The Role and Use of Soft Law Instruments in the African Human Rights System

Debra Long and Rachel Murray

Introduction

The proliferation and multifaceted nature of soft law within the human rights field, as noted in the Introduction to this volume, is nowhere more evident than in the work of the African Commission on Human and Peoples’ Rights (African Commission).

The African Commission is the primary regional body mandated to monitor implementation of and compliance with the rights set out under the African Charter on Human and Peoples’ Rights (African Charter).1 Soft law and soft law instruments are prevalent within the African human rights system and are arguably an inherent part of it. The African Commission is expressly mandated by the African Charter to take into account a range of binding and non-binding instruments when carrying out its functions^ In addition it has established a number of different procedures and activities which generate a range of outputs that are arguably soft law and soft law instruments.

These outputs of the African Commission have played an important role in developing the human rights framework within the region and have ‘potentially persuasive normative value’.3 They also reflect the variety of reasons identified in the Introduction to this book for which soft law may be developed, and the diverse types of instruments that in a broad interpretation may be categorized as ‘soft law instruments’ but which may have very different persuasive force or purpose in practice.4

  • 1 Art. 45 of the African Charter on Human and Peoples’ Rights.
  • 2 Arts 60 and 61 of the African Charter on Human and Peoples’ Rights states that the applicable principles the African Commission shall draw inspiration from and take into consideration include non-binding instruments from the African and UN human rights systems, as well as African practices and customs. This reference to non-binding instruments and concepts is unusual. See also: R. Murray, The African Commission on Human and Peoples’ Rights & International Law (Portland: Hart Publishing, 2000): 25.
  • 3 F. Viljoen, International Human Rights in Africa (Oxford: Oxford University Press, 2nd edn, 2012): 213.
  • 4 See also: R. Baxter, ‘International Law in Her Infinite Variety’, International and Comparative Legal Quarterly (ICLQ) vol. 29 (1980): 549—66; A. Boyle, ‘Some Reflections on the Relationship between Treaties and Soft Law’, ICLQ vol. 48 (1999): 901—9; C. Chinkin, ‘Normative Development in the International Legal System’, in Commitment and Compliance: The Role of Non-binding Norms in the International Legal System, ed. D. Shelton (Oxford: Oxford University Press, 2000): 30^; D. Shelton,

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

It is beyond the scope of this contribution and book to look in detail at all of the different types of soft law and soft law instruments emanating from the African Commission. Therefore this chapter looks in particular at the thematic instruments that have been adopted by the African Commission to elaborate on states’ obligations in respect of particular rights. These instruments are designed to guide and modify state behaviour by enunciating principles and measures required to implement and comply with specific rights. Consequently they form an important body of soft law within the human rights framework of the African Commission and have the potential to play a significant role in influencing policy and practice both at the national and regional levels.

This chapter draws on a four-year research project conducted by the authors that examined in what contexts soft law instruments of the African Commission are used in practice and what factors have an influence on their use and implementation.5 It uses as a case study the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). By tracking how the Robben Island Guidelines have been used in practice, trends in the use of thematic instruments of the African Commission generally can be observed and factors that influence their use in practice can be identified.

Therefore section 2 considers the prevalence and role of soft law instruments within the work of the African Commission. In particular it considers the reasons and process for the development of thematic instruments adopted by the African Commission. Then, using the Robben Island Guidelines as a case study, section 3 examines observable trends in their use both at the national and regional levels. Lastly, the contribution considers the key factors that have an influence on the degree of traction these thematic soft law instruments can gain.

 
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