The institutional context

Some commentators have noted that the respect accorded to the institution generating soft law instruments is an important factor in their subsequent use and implementation.[1] As noted, it has been observed that many stakeholders prefer to use the mechanisms and instruments of the UN human rights system over the African Commission. One of the reasons that can be identified for this is that the international instruments have a much higher profile and arguably therefore a greater persuasive force than instruments emanating from the African Commission. This is perhaps inevitable because the international nature and scope of these instruments means that more has been written on them and this international profile creates a greater awareness across regions and nationally.

In addition the level of ownership demonstrated over a finding by the adopting body has a crucial role to play in its subsequent use by other actors. The UN human rights bodies and other mechanisms have a better record of making reference to their own instruments and decisions within their activities. Unfortunately, the failure of the African Commission to make use of its own instruments in a systematic and comprehensive way has had a number of consequences. First, it has had an impact on the level of visibility of its instruments, and its work generally, thus stakeholders are unaware of instruments that could be useful to their work. Secondly, linked to the above, it has impacted on the perceived legitimacy and utility of its instruments: if the adopting body itself does not use its own instruments can others be expected to?

  • [1] F. Viljoen and L. Louw, ‘State Compliance with the Recommendations of the African Commissionon Human and Peoples’ Rights’, AJIL vol. 101 (2007): 1—34 at 13; Shelton (2000): 15.
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