CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS … countries wanted to show commitment to human rights and satisfy the internal and external demands and pressures. On the other hand, they desired to keep their own independence. As a result, the Charter was filled with clawbacks: 14 “despite the near-universal ratification, the African Charter has not become a vehicle for significant human rights improvement on the African continent. One of the reasons for this fact lies in the provisions of the Charter equating the level of supra-national protection with that of the domestic legal system.” 15 Domestic regulation may thus effectively replace the provisions of the Charter. Those clawbacks may be seen as the first compromise between human rights and sovereignty preservation. The idea of a human rights court was discussed during the drafting of the African Charter. Nonetheless, it encountered strong resistance: “The experts who drafted the Charter contended that they favoured negotiation and diplomatic and bilateral settlement of disputes in an amicable manner rather than adjudication, arguing that African culture frowned upon litigation, the adversarial and adjudicative procedures common to Western legal systems. Third party adjudication is generally considered confrontational, whereas it is often argued that Africans favour consensus and amicable settlement of disputes.” 16 The establishment of the African Commission on Human and Peoples’ Rights (“the African Commission”) with rather conciliatory functions was regarded as a more proper and regionally-sensitive solution. 17 Again, the African Commission was supposed to be an African compromise offering human rights protection, but respecting the sovereignty of African states and cultural specificity of African legal systems. The belief about the inappropriateness of a continental human rights court for Africa persisted till the 1990s. In this decade, several processes shifted the opinion of the OAU and majority of African states. Firstly, liberal thinking flourished after the end of the Cold War. Liberal institutionalism, interconnecting human rights, economic cooperation, development and democracy, became more persuasive. 18 Secondly, economic development was connected with human rights. The African Economic Community (AEC) Treaty adoption in 1991 paved the way to the Court, as several statesmen expressed their belief during negotiations that the Court could contribute to economic development in Africa. 19 The Lomé convention 20 between African states and the European community was signed in 1989 and amended in 1995. As Article 5, paragraph 1 of the amended Convention suggested, human rights commitment was a cornerstone as well as precondition of cooperation between Europe and Africa. Also the financial aid of other international actors, such as the International Monetary Fund or the World Bank, was conditioned with changes in the field of human rights protection. 21 Thirdly,

14 CF. NEUMAYER, Eric, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ The Journal of Conflict Resolution , 2005, no. 6, p. 939.

15 VILJOEN, Frans, ‘The Implementation of Legal Obligations’, p. 165. 16 UDOMBANA, Nsongurua, ‘Towards the African Court’, p. 60. 17 BEKKER, Gina, ‘African Court on Human and Peoples’ Rights’, p. 152.

18 CF. KEOHANE, Robert, ‘Twenty Years of Institutional Liberalism’ International Relations , 2012, no. 2, pp. 125-138; DOYLE, Michael, W. ‘Three Pillars of the Liberal Peace’ The American Political Science Review , 2005, no. 3, pp. 463-466. 19 UDOMBANA, Nsongurua, ‘Towards The African Court’, p. 77-80. 20 Fourth ACP-EEC Convention (Lomé IV Convention) signed at Lomé December 15, 1989, ECC Cat. no BX- 71-91-073-EN-C. 21 WACHIRA, George M., African Court on Human and Peoples’ Rights: Ten years on and still no justice. Geneva: UNHCR Minority Rights Group International, 2008, p. 7.

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