CYIL vol. 8 (2017)

TOMÁŠ BRUNER CYIL 8 ȍ2017Ȏ over the past several decades, this rights rhetoric – with a few exceptions – has not been translated into rights reality.” 5 The tribal chiefs often presided over local courts, favoured customary law, and prevented participation of trained lawyers. 6 Constitutional commitments to human rights did not improve their factual protection, which became an impetus for establishment of an international human rights court. As early as 1961 the conference of International Commission of Jurists in Lagos, Nigeria adopted a document called Law of Lagos, which called for establishment of an international human rights court that would be “available for all persons under the jurisdiction of the signatory states.” 7 However, the establishment of the Organization of African Unity infringed those efforts. This institution was founded partly as a tool to fight the remnants of colonialism without any means to safeguard human rights. 8 The Charter of the Organization of African Unity strongly voiced the protection of independence, non-interference doctrine and sovereignty, which the founding states “jealously” guarded. 9 As a result of previous colonial experience, the OAU countries were neither willing to interfere in domestic affairs of their neighbours in favour of human rights protection nor to accept such interferences. Frequent human rights violations in Africa were subject to increasing criticism and calls for a solution on the basis of international law. The UN tried to motivate African states to establish a regional mechanism for human rights protection. The UN Commission on Human Rights sponsored several conferences and seminars. 10 Those activities peaked in 1977 when the UN General Assembly adopted resolution 32/127 Regional Arrangements for Protection and Promotion of Human Rights (1977). 11 The European countries also maintained close ties with former colonies in the field of human rights. The cooperation between the European Economic Community and African countries was embedded already in the 1957 founding Treaty of Rome, and human rights protection gradually became its important pillar. 12 This struggle for human rights protection resulted in adoption of the international convention in 1981: the African Charter on Human and Peoples’ Rights 13 (“the African Charter”). Although this Charter embodied a substantive human rights law regulation, conflicting interests of the adopting states impacted its articles. On the one hand, the Ibid ., 48. 6 RHYNE, Charles S., ‘Law in Africa: A Report on the Lagos Conference’ A.B.A. Journal , 1961, pp. 685. 7 International Commission of Jurists, ‘Law of Lagos’ in HAMALENGWA, Munyonzwe et al (eds), The International Law of Human Rights in Africa . Amsterdam: Springer Netherlands, 1999, p. 37. 8 UDOMBANA, Nsongurua, ‘Towards the African Court’ p. 55. VILJOEN, Frans, International Human Rights Law in Africa . Oxford, Oxford University Press, 2012, 411. 9 VILJOEN, Frans, ‘The Implementation of Legal Obligations in the Field of Human Rights by International Courts: Some Reflections from Africa’ in Implementace lidských práv a mezinárodní kontrolní mechanismy , Praha: Univerzita Karlova v Praze – Právnická fakulta, ediční středisko, 1999, p. 168. 10 BEKKER, Gina, ‘African Court on Human and Peoples’ Rights: Safeguarding the Interests of African States’ Journal of African Law , 2007, no. 1, pp. 151-172. 11 UNGA Res 32/127 Regional Arrangements for Protection and Promotion of Human Rights (16 th December 1997). 12 HEYNS, Christof (ed), Human Rights Law in Africa . The Hague: Kluwer Law International, 1998, p. 214-215. 13 African Charter on Human and Peoples‘ Rights (Banjul Charter) adopted June 27, 1981 (entered into force on 21 October 1986) O.A.U. Doc. CAB/LEG/67/3/Rev 5 (the African Charter). 5

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