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The importance of clarity

Various commentators have noted that there can be a wide variety of reasons for creating soft law instruments and they can take many forms/5 It can be observed that the level of specificity of a soft law instrument has a significant impact on the extent to which it is used and perceived to be useful, and that it must be seen to have ‘added value’.

For example, the Robben Island Guidelines were intended to elaborate on the general obligation to prohibit torture and other ill-treatment contained in Article 5 of the Charter. As noted in section 3, there are a few instances where the Robben Island Guidelines had been used by stakeholders, for example in discussions on the development of national law to criminalize torture; in a handful of cases before the African Commission; and also as a means to create a platform for dialogue around the ratification of the Optional Protocol to the UN Convention against Torture within African States.

However, many stakeholders appeared to be unclear of the ‘added value’ of the Robben Island Guidelines and consequently how they could be used to assist their work. We identified a number of reasons for this: first, although the provisions of the Robben Island Guidelines do elaborate on the obligations contained in Article 5 of the African Charter, they do not necessarily ‘fill a gap’ generally as many of their provisions restate or paraphrase obligations and standards found in UN instruments. Secondly, linked to this, some of the provisions of the Robben Island Guidelines are vaguely worded or extremely broad and are not as specific as those found in related UN instruments. Therefore many stakeholders who were aware of the Guidelines nevertheless made a strategic decision to use other soft law instruments because they are more specific. As Shelton notes, ‘[a]mbiguity and openendedness of international standards can limit efforts to secure compliance’.[1]

However, despite the limited traction the Robben Island Guidelines has gained, it is arguable that they have already served an important, perhaps their primary, purpose namely the establishment of a Special Mechanism with a mandate to promote the prohibition and prevention of torture and other ill-treatment at the national and regional level. Although the Robben Island Guidelines can have a role in initiating and strengthening dialogue with states and other actors, or as evidence of the existence of a particular right, perhaps there are misplaced expectations on what their role should be? The Robben Island Guidelines are not as detailed as other thematic instruments adopted by the African Commission therefore it is perhaps unreasonable to expect them to be used in the same contexts and to the same degree. Thus the purpose for and subsequent use of thematic instruments within the African human rights system may vary and not always be as simple as ‘filling a gap’ within the normative framework. Consequently, the thematic instruments of the African Commission are illustrative of the diversity and multifaceted nature of instruments that can be categorized as ‘soft law instruments’—they may carry the same label but have very different purposes and uses. It is also perhaps indicative of the problems that can arise when there is a lack of clarity around the purpose and content of a soft law instrument.

  • [1] Shelton (2000): 14.
 
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