On New "Judicial Animals": The Curious Case of an African Court with Material Jurisdiction of a Global Scope

Abstract

The paper aims to think anew about the jurisdiction ratione materiae of the African Court on Human and Peoples' Rights ('Court'). The Court, based in Arusha, enjoys a distinctive contentious jurisdiction which extends to the interpretation and application of any other relevant human rights instrument ratified by the States concerned. The Court's striking features set it apart from human rights bodies and most international courts. The Court's jurisdiction has been received with scepticism and fear arguing that, if the Court extends its jurisdiction over treaties other than the African Charter on Human and Peoples' Rights, this will lead to jurisprudential chaos and will undermine the formation of the African corpus juris. The article discusses the case law of the Court since 2013, when the Court started functioning, and it argues that these concerns are over-emphasised. The analysis underlines the shifting authority of specialised and/or regional courts; the need not to overstress but to appreciate positively instances of divergence; and the consideration of new conceptual and geographical topoi, in which international law is to be found and produced.

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University of Groningen
On New “Judicial Animals”
Rachovitsa, Adamantia
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Human Rights Law Review
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Jurisdiction of a Global Scope . Human Rights Law Review.
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Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
1
On New “Judicial Animals”:
The Curious Case of an African Court with Material Jurisdiction of a Global Scope
Dr Adamantia Rachovitsa*
Abstract
The paper aims to think anew about the jurisdiction ratione materiae of the African Court on
Human and Peoples’ Rights (‘Court’). The Court, based in Arusha, enjoys a distinctive
contentious jurisdiction which extends to the interpretation and application of any other
relevant human rights instrument ratified by the States concerned. The Court’s striking features
set it apart from human rights bodies and most international courts. The Court’s jurisdiction
has been received with scepticism and fear arguing that, if the Court extends its jurisdiction
over treaties other than the African Charter on Human and Peoples’ Rights, this will lead to
jurisprudential chaos and will undermine the formation of the African corpus juris. The article
discusses the case law of the Court since 2013, when the Court started functioning, and it argues
that these concerns are over-emphasised. The analysis underlines the shifting authority of
specialised and/or regional courts; the need not to overstress but to appreciate positively
instances of divergence; and the consideration of new conceptual and geographical topoi, in
which international law is to be found and produced.
KEYWORDS: judicial dispute settlement, international courts, African Court on Human and
Peoples’ Rights, jurisdiction ratione materiae
1. Introduction
The paper discusses and aims to think anew about the jurisdiction ratione materiae of
the African Court on Human and Peoples’ Rights (‘Court’ or ‘ACtHPR’). The Court, based in
Arusha, enjoys a distinctive contentious jurisdiction. Article 3(1) Protocol to the African
Charter on Human and Peoples’ Rights (‘ACHPR’) reads
The jurisdiction of the Court shall extend to all cases and disputes submitted
to it concerning the interpretation and application of the Charter, this Protocol
and any other relevant Human Rights instrument ratified by the States
concerned.
1
* Assistant Professor of Public International Law, Law Faculty, University of Groningen, The Netherlands. Email:
a.rachovitsa@rug.nl.
1
African Charter on Human and Peoples’ Rights, 1981, Organisation of African Unity, CAB/LEG/67/3 rev. 5
(1982) 21 ILM 58 (‘ACHPR’ or ‘Charter’); Protocol to the African Charter on Human and Peoples' Rights on the
Establishment of the African Court on Human and Peoples' Rights, 1998 (‘Protocol to the ACHPR’).

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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Article 7 Protocol to the ACHPR (sources of law) reads in identical terms.
2
The distinctiveness
of the ACtHPR’s jurisdiction lies in the fact that its mandate extends to the interpretation and
application of any other relevant human rights instrument ratified by the States concerned. In
contrast, the jurisdiction of the European Court of Human Rights (ECtHR) and the Inter-
American Court of Human Rights is limited to matters concerning the interpretation and
application of the European Convention on Human Rights (‘ECHR’)
3
and the Inter-American
Convention on Human Rights (‘IACHR’), respectively.
4
Equally narrow is the competence of
the United Nations (‘UN’) human rights bodies each of which have been entrusted with
monitoring a given treaty. Consequently, the ACtHPR deviates from the “prototype” of the
jurisdiction of a human rights court/body. The ACtHPR’s striking features set it apart also from
most international courts,
5
arguably qualifying it as a new “judicial animal” that introduces a
variance in ‘judicial genome mapping’.
6
The ACtHPR’s jurisdiction to apply, find a violation of, and monitor any other relevant
human rights instrument ratified by the States concerned has been received with scepticism
and fear. International law scholars, especially (African) scholars writing extensively over the
years on the African system on human rights, treat Article 3(1) Protocol to the ACHPR as a
problematic occurrence, a flaw in the design, or even a mistake in the drafting process.
7
They
argue that if the Court extends its jurisdiction over treaties other than the ACHPR, this will
lead to jurisprudential chaos
8
and will undermine the formation of the African corpus juris.
9
However, the ACtHPR has proved itself willing to exercise its material jurisdiction to the
fullest possible extent. It regularly examines and pronounces on breaches of UN, regional and
sub-regional treaties on human rights, and orders States to comply with their obligations under
2
‘The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by
the States concerned’.
3
1950, ETS 5. Article 32.
4
1969, OAS TS 36. Article 62.
5
Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’ (1999) 31 New York
University Journal International Law & Policy 709 at 721-722. See also Alter, Helfer and McAllister, ‘A New
International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107
American Journal International Law 737 at 738.
6
Higgins, ‘Foreword’ in Sands, Mackenzie and Shany (eds), Manual on International Courts and Tribunals, 1st
edn (1999) at vii.
7
Viljoen, International Human Rights Law in Africa, 2nd edn (2012) at 439, footnote 185.
8
Heyns, ‘The African Regional Human Rights System: In Need of Reform?’ (2001) 2 African Human Rights Law
Journal 155 at 167.
9
Ibid.; Mujuzi, ‘The African Court on Human and Peoples’ Rights and Its Protection of the Right to a Fair Trial
(2017) 16 Law & Practice of International Courts and Tribunals 187 at 193.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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those treaties. Curiously, not much has been written since 2013, when the Court started
functioning and delineating the contours of its jurisdiction.
10
This paper discusses the case law of the Court since 2013, and the ways in which it has
construed its jurisdiction. The case law of the Economic Community of West African States
Community Court of Justice (ECCJ) is also brought into specific parts of the discussion, for
the purpose of further illuminating the ACtHPR’s practice. Contrary to mainstream
scholarship, the paper submits that the ACtHPR’s different treaty design forms new
opportunities and introduces a welcome difference in judicial dispute settlement. A large part
of the criticism and scepticism towards the Court’s broad jurisdiction has inherited a tradition
of exaggerated and counterproductive anxiety regarding where the limitations of a specialised
and/or regional court lie — even when, as is the case of the ACtHPR, the court is explicitly
authorised to interpret and apply other treaties. This anxiety is connected to the limitations of
the jurisdiction of regional and/or specialised international courts (on human rights) and the
(alleged) ensuing risks of interpreting and developing international law.
It should be noted that the ACtHPR forms part of a series of developments in the
judicial settlement of international disputes. Although the multiplication of international courts
has taken place to a great extent on the basis of “templates” used to design other courts,
11
novelties have found their way onto this legal landscape. Such novelties include the emergence
of blended models of adjudication;
12
the creation of courts melding economic and human rights
matters into a single jurisdiction;
13
and the establishment of international courts on human
10
Some few, recent works are: Viljoen, ‘Understanding and Overcoming Challenges in Accessing the African
Court on Human and Peoples’ Rights’ (2018) 67 International Comparative Law Quarterly 63; Alter, Gathii and
Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’
(2016) 27 European Journal International Law 293; Mujuzi, supra n 9; Zschirnt, ‘Locking in Human Rights in
Africa: Analyzing State Accession to the African Court on Human and Peoples’ Rights’ (2018) 19 Human Rights
Review 97; Ondo, ‘Les Opinions Séparées des Juges à la Cour Africaine des Droit de l’Homme et des Peuples’
(2015) 104 Revue Trimistrielle des Droits de l’Homme 941.
11
For example, international economic courts tend to follow the model of either the Court of Justice of the
European Union or the World Trade Organisation, and international human rights courts follow the old or the new
model of the ECtHR. See Romano, Alter and Sebregondi, ‘Illustrations: A Reader’s Guide’ in Romano, Alter and
Shany (eds), The Oxford Handbook on International Adjudication (2014) 27 at 30; Alter, The New Terrain of
International Law - Courts, Politics, Rights (2014) at 87-91.
12
For instance, the options under UN Convention on the Law of the Sea (UNCLOS) (1982, 1833 UNTS 3) to
resort to the International Court of Justice or the International Tribunal on the Law of the Sea or to a (special)
arbitral tribunal; see Articles 287 and 288 UNCLOS. Another example is the World Trade Organisation model
under the Dispute Settlement Understanding, which ranges from arbitration to the Appellate Body. See, in general,
on the developments which seem to (partly) change the physiognomy of dispute settlement: Murphy,
‘International Judicial Bodies for Resolving Disputes between States’ in Romano, Alter and Shany, supra n 11,
181 at 192-193, 203; and Sands, ‘Introduction and Acknowledgments’ in Mackenzie, Romano, Shany, Sands
(eds) Manual on International Courts and Tribunals, 2 edn (2010) at xii-xiii.
13
For example, the Economic Community of West African States Community Court of Justice (Articles 9(1) and
16 Protocol A/P.1/7/91 on the Economic Community Court of Justice, 6 July 1991) or the African Court of Justice
and Human Rights. See footnote 21.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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rights, which are entrusted to exercise their jurisdiction over more than one human rights
treaty.
14
It is puzzling to account for the emergence of these new institutions within the context
of the existing categories of dispute settlement.
15
The question, therefore, is whether we are to
discuss and assess novel institutions against only the criteria and experience of existing bodies,
or shall we also account for and appreciate the foregoing bodies in new light. The present
discussion should also be read in light of the question of whether we duly value difference and
particularity, in times of emphasising convergence and harmonisation across human rights
treaties and the jurisprudence of international courts and bodies.
16
The following analysis is structured in three parts. The second part elucidates the
meaning of the qualifications attached to the ACtHPR’s jurisdiction as per Article 3(1) Protocol
to the ACHPR. The meaning of a ‘human rights treaty’ presents itself with some surprising
difficulties. The construction of the Court’s jurisdiction needs to be cautiously grounded in the
text of its constitutive instruments while, concurrently, limitations on the ACtHPR’s
jurisdiction cannot be presumed to exist, given the Court’s obligation to fulfil its mandate. The
third part of this analysis critically assesses the arguments that the Court’s broad jurisdiction
leads to “jurisprudential chaos”. This vague claim is tied to three concrete legal issues: first,
the anxiety of forum shopping; second, the anxiety that the ACtHPR — a regional and
specialised international court — monitors other human rights treaties; and third, the anxiety
of undermining African human rights law, by either risking its specificity or by fragmenting it.
The present author argues that these concerns are over-emphasised. The discussion underlines
the shifting authority of specialised and/or regional courts; the need not to overstress but to
appreciate positively instances of divergence; and the consideration of new conceptual and
geographical topoi, in which international law is to be found and produced.
Still, some of the legal issues raised regarding the ACtHPR’s wide jurisdiction contain
merit. Interestingly, the case law of the ACtHPR suggests that it may be developing a policy
14
In addition to the ACtHPR, the Economic Community of West African States Community Court of Justice and
the Arab Court on Human Rights also share this feature. According to Article 16(1) of the Statute of the Arab
Court of Human Rights (which has not started functioning yet) the Court has jurisdiction ‘over all suits and
conflicts resulting from the implementation and interpretation of the Arab Charter of Human Rights, or any other
Arab convention in the field of Human Rights involving a member State.’ (emphases added); adopted by the
Council of the League of Arab States, Ministers of Foreign Affairs during its (142) session by Resolution 7790,
available at: https://www.acihl.org/texts.htm?article_id=44&lang=ar-SA (last accessed 12 August 2018) (this is
an unofficial translation).
15
Romano, ‘A Taxonomy of International Rule of Law Institutions’ (2011) 2 Journal of International Dispute
Settlement 241 at 248.
16
For example, Buckley, Donald and Leach (eds), Towards Convergence in International Human Rights Law -
Approaches of Regional and International Systems (2016); Special Issue - Symposium on Comparing Regional
Human Rights Regimes, Çalı, Madsen and Viljoen, ‘Comparative Regional Human Rights Regimes: Defining a
Research Agenda’ (2018) 16 International Journal of Constitutional Law 128.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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of judicial self-restraint by not examining all of the claims submitted by applicants regarding
violations of other human rights treaties. Procedural economy, the court’s competence in
shaping the subject of a dispute, and the possibility of making a choice of applicable law are
distinct bases upon which propriety considerations could be introduced to the exercise of the
Court’s jurisdiction. Finally, the risk of undermining the specificity of African human rights
law is a valid concern but it is shown that this risk is more likely to materialise not as a result
of the ACtHPR’s broad jurisdiction, but in the context of the interpretation process.
The paper concludes by underlining that we cannot conceptualise the new and novel
according to the standards of the old and prevalent. It is not only that we need to think anew
about a different international court — the ACtHPR; conversely, the ACtHPR is also an
invitation to rethink how we approach both old and new international courts and to pave new
ways forward in international judicial settlement.
17
2. Clarifying the ACtHPR’s Jurisdiction to Interpret and Apply Other Human
Rights Treaties
The preparatory work of the Protocol to the ACHPR does not give any indication of
why the Court was entrusted with such a broad mandate.
18
Given the lengthy negotiations over
the creation of the Court dating back to the 1960s,
19
it is unlikely that Article 3 Protocol to the
ACHPR was a mistake in the drafting stage.
20
This conclusion is also supported by the equally
wide jurisdiction accorded to the African Court of Justice and Human Rights, which will merge
in the future the African Court of Justice with the African Court on Human and Peoples’
Rights.
21
The drafters, perhaps, thought that the requirement to make a separate optional
declaration accepting the Court’s competence (under Article 34(6) of the Protocol to the
17
Murray perceptively criticises how international lawyers have failed to focus on and use African institutions as
positive examples in human rights law and international adjudication; see Murray, ‘International Human Rights:
Neglect of Perspectives from African Institutions’ (2006) 55 International Comparative Law Quarterly 193.
18
Viljoen, supra n 7 at 439.
19
For a brief historical overview see Krisch, ‘The Establishment of an African Court on Human and Peoples’
Rights’ Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1998) 713 at 716-717.
20
Viljoen suggests this, supra n 7 at 439, footnote 185.
21
Protocol on the Statute of the African Court of Justice and Human Rights, adopted by the eleventh ordinary
session of the African Union Assembly, 2008, not in force, https://au.int/sites/default/files/treaties/7792-treaty-
0035_-_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf (last accessed 12
August 2018). The Protocol to the ACHPR was replaced by the Protocol on the Statute of the African Court of
Justice and Human Rights on 1 July 2008 merging the African Court on Human and Peoples' Rights and the Court
of Justice of the African Union into one single court. However, the Protocol on the Statute of the African Court
of Justice and Human Rights is not in force yet. See, in general, Viljoen, supra n 7 at 435-439. Article 28 reads:
“All legal disputes concerning, among others, the interpretation and the application of the African Charter, the
Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa, or any other legal instrument relating to human rights ratified by the States
Parties concerned; any question of international law”.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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ACHPR) balanced out the Court’s unusually broad jurisdiction. Thirty out of fifty-four African
States have ratified the Protocol to the ACHPR,
22
and only seven thus far (Burkina Faso,
Malawi, Mali, Tanzania, Ghana, Côte d’Ivoire and Benin) have consented to the Court’s
competence to receive complaints from individuals and NGOs.
23
This section argues that the text of Article 3(1) Protocol to the ACHPR leaves little
room to question the Court’s material jurisdiction to decide complaints regarding an alleged
violation of a human rights treaty in Africa (regional or sub-regional) or at the UN level.
24
Various arguments have been put forward to limit the Court’s mandate to hear such complaints,
but a restrictive construction of the Court’s jurisdiction ratione materie cannot be presumed,
since this would prevent the Court from discharging its role.
2.1 The Meaning of ‘a Human Rights Instrument Ratified by the States Concerned’
Article 3(1) Protocol to the ACHPR clearly stipulates that the Court may exercise its
jurisdiction over any other relevant human rights instrument insofar as it is ratified by the
State(s) concerned. Applicants have brought complaints regarding alleged violations of the
Universal Declaration on Human Rights (UDHR), even though the UDHR is not a treaty.
25
The
Court’s has treated such complaints inconsistently. Although the Court in Tanganyika Law
Society did not rule out the possibility of examining such complaints,
26
it subsequently
maintained that it lacked jurisdiction to entertain a claim concerning an alleged breach of the
UDHR while the UDHR can still be used as a source of inspiration for interpreting the
Charter.
27
However, in 2018 the Court found that the deprivation of the applicant's nationality
was contrary to Article 15(2) UDHR, and it declared a violation in the operative provisions of
its judgment.
28
22
Information available at: http://www.african-court.org/en/index.php/2-uncategorised/948-other-relevant-
documents (last accessed 12 August 2018).
23
Rwanda withdrew its 2013 declaration in February 2016. The withdrawal took effect in March 2017,
information available at: http://www.african-court.org/en/index.php/2-uncategorised/948-other-relevant-
documents (last accessed 12 August 2018).
24
Cf. Article 16(1) of the Statute of the Arab Court of Human Rights which refers only to ‘any other Arab
convention in the field of human rights’ (emphasis emphases).
25
For example, ACtHPR, Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’
Rights Movement v Burkina Faso 28 March 2014. A list of all judgments by the ACtHPR is available at:
http://www.african-
court.org/en/index.php/cases?4ea03332baad719f3a6b2ef8c979f25c=08339bd4cc7974b465c7358d9ecc78ed (last
accessed 12 August 2018).
26
ACtHPR, Tanganyika Law Society and Legal and Human Rights Centre and Reverend Christopher R. Mtikila
v United Republic of Tanzania 14 June 2013 at para 122.
27
ACtHPR, Frank David Omary and Others v The United Republic of Tanzania 28 March 2014 at paras 19, 72-
73.
28
ACtHPR, Anudo Ochieng Anudo v United Republic of Tanzania 22 March 2018 at paras 88, 132(v).

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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2.2. The Meaning of the Qualifications ‘States Concerned’ and ‘Relevant’
An argument raised with regard to limiting the material jurisdiction of the Court
concerns the construction of the qualification ‘instrument ratified by the States concerned’
(emphasis added) as referring to instruments ratified by all parties to the Protocol to the
ACHPR, and not only by the respondent State before the Court.
29
This idea cannot be supported
by reference to the Court’s constitutive instruments. A careful reading of the Protocol
demonstrates that the expressions ‘State(s) concerned’
30
and ‘States parties to the Protocol’
31
are employed in different ways — even within the context of a single provision (i.e. Article
25). If Article 3(1) had meant to set the requirement that all State parties to the Protocol need
to have ratified a human rights treaty, this would have been stated so explicitly.
It has also been suggested that the term ‘relevant’ concerns only treaties that explicitly
provide in their text that they are subject to the Court’s jurisdiction.
32
This suggestion, however,
is refuted by the fact that neither the African Charter nor the Protocol point in this direction;
additionally, the ordinary meaning of the term ‘relevant’ refers to the subject matter of the
complaint brought before the Court and the human rights involved therein.
33
This, of course,
does not answer the question of how one is to determine which human rights treaties are
relevant. Although the meaning of the term ‘relevant’ appears to be uncomplicated, this is
misleading.
34
For purposes of the present discussion, it suffices to underline that it can be a
burdensome task for the Court to research systematically all possible relevant human rights
treaties in every single case. The applicants’ claims and submissions can be useful in this
regard.
29
Viljoen, supra n 7 at 438. The Convention on the Rights of the Child (1989, 1577 UNTS 3) (CRC) would still
fall under the Court’s jurisdiction.
30
Article 7 (sources of law) and Article 3 (jurisdiction); Article 25; Article 26.
31
Article 12, Article 25(1), Article 30, Article 35(1).
32
Heyns, supra n 8 at 168.
33
Cf. the use of the term ‘relevant’ in Articles 5 and 31 (3)(c) Vienna Convention Law Treaties in which it refers
to the subject matter of a treaty or a treaty provision. Villiger, Commentary on the 1969 Vienna Convention on
the Law of Treaties (2009) at 433.
34
For detailed discussion on how the ECtHR has (not) addressed in its case law the issue of what rules of
international law are relevant, see Rachovitsa, ‘Fragmentation of International Law Revisited: Insights, Good
Practices and Lessons to be Learned from the Case Law of the European Court of Human Rights’ (2015) 28
Leiden Journal International Law 863 at 876-879.

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2.3 Back to the Basics: What is a Human Rights Treaty (within the Meaning of Article 3
Protocol to ACHPR)?
Certain qualifications attached to the Court’s contentious jurisdiction under Article 3
Protocol to the ACHPR may appear straightforward, but they are surprisingly challenging. This
is the case with the expression ‘human rights treaty’. The Court had the opportunity early on
in its case law to interpret and apply treaties whose human rights classification was under
dispute. In Tanganyika Law Society, the respondent State, Tanzania, argued that the 1993
Revised Treaty of the Economic Community of West African States
35
is not a human rights
treaty within the meaning of Article 3 Protocol and, therefore, it did not fall under the Court’s
jurisdiction. The Court did not address Tanzania’s objection. However, the Vice-President of
the Court, Fatsah Ouguergouz, devoted the greater part of his Separate Opinion to this issue.
36
The main thrust of the Vice-President’s position was that the Court should have drawn a
distinction between treaties which mainly dealt with the protection of human rights and treaties
which addressed other matters but contained provisions relating to human rights. Treaties of
the latter category placed obligations on State parties without necessarily according subjective
rights to individuals.
37
The Court scrutinised the matter of the meaning of a ‘human rights treaty’ in Actions
pour la Protection de Droits de l’Homme.
38
In this, the pressing question was whether the
African Charter on Democracy, Elections and Governance
39
and the ECOWAS Protocol on
Democracy and Good Governance supplementary to the Protocol relating to the Mechanism
for Conflict Prevention, Management and Resolution
40
were human rights instruments within
the meaning of Article 3 Protocol to the ACHPR.
41
According to the Court, this question should
be answered by examining the purpose(s) of these treaties. Such purposes ‘are reflected either
by an express enunciation of the subjective rights of individuals or by mandatory obligations
on State parties for the consequent enjoyment of the said rights.’
42
The conclusion was that
these treaties qualified as human rights treaties because the State parties’ obligation to establish
35
1993, 2373 UNTS 233 (‘ECOWAS Revised Treaty’).
36
Separate Opinion of Vice-President Fatsah Ouguergouz in Tanganyika Law Society, supra n 26 at para 1.
37
Ibid. at para 15.
38
ACtHPR, Actions pour la Protection des Droits de l’Homme (APDH) v Republic of Cote d’Ivoire 18 November
2016.
39
2007 (‘African Charter on Democracy’), available at: https://au.int/en/treaties/african-charter-democracy-
elections-and-governance (last accessed 12 August 2018).
40
Protocol A/SP1/12/01 (2001) (‘ECOWAS Democracy Protocol’).
41
Actions pour la Protection des Droits de l’Homme, supra n 38 at para 49.
42
Ibid. at para 57.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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independent and impartial electoral bodies is aimed at implementing the human rights provided
under the ACHPR.
43
This reasoning is tenuous, and prompts the following observations.
First, it is not clear from Actions pour la Protection de Droits de l’Homme how the
Court inferred that States’ obligations under these two treaties are aimed at implementing rights
provided in the ACHPR. The ECOWAS Democracy Protocol furnishes no obvious link with
human rights, neither in the preamble nor in its main text. The African Charter on Democracy
does contain certain references to the promotion of human rights in connection with good
governance and democracy, although these references are vague.
44
Moreover, even though
member States to the African Charter on Democracy have undertaken the obligations to
implement it in accordance with respect for human rights and democratic principles (Article
3(1)) and to ensure that citizens enjoy human rights (Article 6), there is no specific mention of
the ACHPR or human rights, such as the right to political participation. There is little, if any,
evidence to substantiate the ACtHPR’s position that the obligation incumbent on State parties
to the African Charter on Democracy to establish independent and impartial electoral bodies is
aimed at implementing human rights under the ACHPR. The commitment of the State parties
to the African Charter on Democracy to hold regular, transparent, free and fair elections
(Article 17), and to implementing said Charter in accordance with the principle of effective
participation of citizens in democratic and development processes and in the governance of
public affairs (Article 3(7)), are not compelling arguments in themselves either.
Second, even if the Court’s conclusion were sound and well-reasoned, the fact that a
treaty and/or a treaty provision was intended to implement a human right is not, on its own, a
determinative criterion for establishing that a given treaty is a human rights treaty. For instance,
if a bilateral investment treaty implements aspects of the right to property, does this make it a
human rights treaty within the meaning of Article 3 Protocol to the ACHPR?
Third, the Court cross-referenced the Mathieu-Mohin and Clearfayt v Belgium
judgment by the ECtHR, which reached a similar conclusion with respect to Article 3 of the
first Additional Protocol to the ECHR (Article 3 AP1).
45
This case concerned the question of
whether Article 3 AP1 gave rise to individual rights that are automatically conferred on
43
Ibid. at para 63. See also the arguments put forward by the African Institute for International Law when asked
by the Court to give its legal view on the issue; ibid. at paras 53-54.
44
The fifth preambular paragraph states that the member States of the AU are ‘Committed to promote the universal
values and principles of democracy, good governance, human rights and the right to development’. Article 2(1)
reads ‘The objectives of this Charter are to: […] Promote adherence, by each State Party, to the universal values
and principles of democracy and respect for human rights’. Article 4(1) reads ‘State Parties shall commit
themselves to promote democracy, the principle of the rule of law and human rights.’
45
1952, ETS 009. Actions pour la Protection des Droits de l’Homme, supra n 38 at para 64.

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
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everyone, or gave rise only to obligations between States.
46
The ECtHR in Mathieu-Mohin and
Clearfayt and by the ACtHPR in Actions pour la protection de droits de l’homme may have
reached the same conclusion, but the text of the treaties concerned and the courts’ reasoning
differ substantially. In contrast to the ACtHPR’s reasoning, the ECtHR showed clear evidence
confirming that Article 3 AP1 confers rights on individuals.
47
Since the ACtHPR has not elucidated questions which go directly to the core of its
material jurisdiction in a satisfactory fashion, the meaning of ‘human rights treaty’ in the
context of Article 3 Protocol merits further discussion. The analysis below highlights criteria
that are more concrete by drawing a distinction between treaties whose main purpose is the
protection of human rights, and treaties that contain provisions relating to human rights
although this is not their main purpose.
2.3.1 A Treaty Whose Main Purpose Is the Protection of Human Rights
A valid starting point for a discussion of the meaning of ‘human rights treaty’ under
Article 3 Protocol is to examine the object and purpose of a given treaty. A treaty may have
more than one object and purpose.
48
The purpose of a treaty refers to its raison d’être — the
reason(s) it was created in the first place — whereas the object of a treaty refers to the
reciprocal exchange of rights and obligations among parties to the treaty.
49
If the protection of
human rights is a treaty’s main purpose (or one of its main purposes), the treaty falls under the
ACtHPR’s jurisdiction ratione materiae (subject, of course, to the other qualifications set out
in Article 3 Protocol).
2.3.2 The Object of a Treaty: A Treaty Whose Main Purpose Is not the Protection of
Human Rights but Contains Provisions Relating to Human Rights
The next question is whether a treaty can be regarded as a human rights treaty for the
purposes of Article 3 Protocol even if its main purpose is not the protection of human rights.
50
46
ECtHR, Mathieu-Mohin and Clearfayt v Belgium 2 March 1987 (Plenary) at para 48. Article 3 AP1 reads ‘The
High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions
which will ensure the free expression of the opinion of the people in the choice of the legislature.’
47
Ibid. at para 49. Article 5 of the Protocol provides that the provisions of Articles 1, 2, 3 and 4 shall be regarded
as additional articles to the ECHR. The ECtHR also highlighted that Article 3 AP1 is of great importance to
fulfilling the aim of the ECHR as reflected in the preamble, according to which fundamental human rights are
best maintained by an effective political democracy ibid. at para 47.
48
Villiger, supra n 33 at 427.
49
Ibid. at 248-249; Boisson de Chazournes, La Rosa and Moise Mbengue, ‘Article 18’ in Corten and Klein (eds),
The Vienna Conventions on the Law of Treaties — A Commentary (2011) 369 at 383-388.
50
Viljoen, supra n 7 at 436.

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The ACtHPR, in Actions pour la Protection de Droits de l’Homme, stated that if a treaty
provision expressly confers subjective rights on individuals, or if such rights derive from
obligations incumbent on States, then this treaty falls under its jurisdiction. The IACtHR’s
approach lends further support to this position. The IACtHR, in the Advisory Opinion ‘Other
Treaties’ Subject to the Consultative Jurisdiction of the Court, was asked to clarify its advisory
function with regard to interpreting ‘other treaties concerning the protection of human rights
in the American states’.
51
It opined that a treaty is subject to its advisory jurisdiction as long
as it contains provisions concerning human rights, even if the protection of human rights is not
one of that treaty’s main purposes.
52
Nonetheless, the pronouncements of the IACtHR should
be appreciated with the caveat that the IACtHR endowed itself with a wide jurisdiction in the
exercise of its advisory function.
53
One should be cautious with “transplanting” its reasoning
when discussing the contentious jurisdiction of the ACtHPR.
Turning now to the precise criteria for determining when such a treaty can be regarded
as a human rights treaty, certain scholars have asserted that even when a treaty is not a human
rights treaty, it may still have a human rights dimension or human rights implications.
54
Similarly, the IACtHR held that it is empowered to invoke any treaty insofar as it has a bearing
upon, affects, or is of interest to the protection of human rights.
55
But how is one to establish
and assess such human rights implications, or the human rights dimensions of a non-human
rights treaty? Almost any treaty, including a trade agreement, has certain implications
concerning human rights. Is this a sufficient basis for the ACtHPR to exercise jurisdiction over
such treaties? If one follows this line of thought, the ACtHPR could, in practice, hear
complaints regarding alleged violations of potentially unlimited number of treaties.
Consequently, the foregoing considerations are not particularly helpful, since they establish
only a tenuous connection with the concept of a human rights treaty. One way forward is to
51
According to Article 64(1) IACHR, ‘The member states of the Organization may consult the Court regarding
the interpretation of this Convention or of other treaties concerning the protection of human rights in the American
states.’
52
IACtHR, Advisory Opinion, ‘Other Treaties’ Subject to the Consultative Jurisdiction of the Court (Article 64
American Convention on Human Rights) 24 September 1982 at para 11; IACtHR, Advisory Opinion, The Right
to Information on Consular Assistance in the Framework of Guarantees of the Due Process of Law 1 October
1999 at paras 72, 76.
53
Concurring Opinion of Judge Cancado Trindade in The Right to Information on Consular Assistance, supra n
52 at para 29.
54
Naldi and Magliveras, ‘Reinforcing the African System of Human Rights: The Protocol on the Establishment
of a Regional Court of Human and Peoples’ Rights’ (1998) 16 Netherland Quarterly Human Rights 431 at 435
(footnote 26); Van Der Mei, ‘The New African Court on Human and Peoples’ Rights: Towards an Effective
Human Rights Protection Mechanism for Africa?’ (2005) 18 Leiden Journal International Law 113, at 119-120
(footnote 46); Heyns, supra n 8 at 167.
55
The Right to Information on Consular Assistance, supra n 52 at paras 72, 76.

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focus on the object of the treaty by relying on specific treaty provisions, rather than on a treaty’s
human rights implications in the abstract.
56
The matter is straightforward when a treaty contains provisions which confer direct
entitlements and claims on individuals. However, this does not necessarily mean that these
individual rights also qualify as human rights. A relevant example is the interpretation of
Article 36(1) of the Vienna Convention on Consular Relations (VCCR), which concerns the
privileges relating to a consular post and, in particular, issues of communication and contact
with nationals of the sending State who are in prison, custody or detention.
57
The International
Court of Justice (ICJ) in the LaGrand case, having found that Article 36 VCCR confers rights
on individuals, concluded that those rights are not human rights.
58
The ICJ reaffirmed in an
obiter dictum in the Avena case that neither the text, nor the object and purpose of the VCCR,
nor any indication in the travaux preparatoires supported the argument that the VCCR confers
human rights on individuals.
59
Interestingly, the IACtHR, in The Right to Information Advisory
Opinion, found that the rights contained in Article 36 VCCR are human rights.
60
Therefore,
there are instances in which it is not clear whether individual rights are human rights.
It can be equally difficult to assess whether or not a treaty that imposes specific
obligations on State parties confers specific rights and claims on individuals. Even if the
fulfilment of these obligations leads to the enjoyment of specific rights and individuals benefit
from the application of a treaty,
61
it does not always follow that individuals derive these rights.
States may undertake to comply with treaty obligations in relation to individuals without
conferring direct entitlements on them.
62
This is a matter to be decided on a case-by-case basis
by ascertaining the object of the treaty and interpreting the exchange of rights and obligations
among State parties. A relevant example is whether the African Union Convention on
Preventing and Combatting Corruption
63
confers rights on individuals and, consequently,
whether it can be considered a human rights instrument according to Article 3 Protocol to
56
Viljoen, supra n 7 at 436-438.
57
1963, 596 UNTS 261.
58
LaGrand case (Germany v United States of America), Judgment, 27 June 2001, ICJ Rep. 2001, p. 466 at para
78.
59
Case concerning Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, 31
March 2004, ICJ Rep. 2004, p. 12 at para 124.
60
The Right to Information on Consular Assistance, supra n 52 at paras 83-84, 85-87.
61
Actions pour la Protection des Droits de l’Homme (APDH), supra n 38 at para 57.
62
Case concerning Avena and Other Mexican Nationals, supra n 59 at para 139. Simma, ‘Human Rights Treaties’
in Besson and d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (2017) 872 at 879-
881.
63
2003, available at: https://au.int/en/treaties/african-union-convention-preventing-and-combating-corruption
(last accessed 12 August 2018) (‘AU Convention on Corruption’).

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ACHPR. It has been argued that although provisions of the AU Convention on Corruption are
framed mostly as obligations placed on States, these obligations correspond to rights that can
be claimed by individuals.
64
At first glance, the protection of human rights does not appear to
be one of the main purposes of the AU Convention on Corruption. The preamble contains
references to ‘removing obstacles to the enjoyment of economic, social and cultural rights’
(eleventh paragraph), and the explicit reference to respect for human rights and the African
Charter (fourth paragraph). Nonetheless these references are very vague, and more importantly
they do not establish the promotion of human rights as one of the purposes of the AU
Convention on Corruption. It is rather the promotion of socio-economic development, which,
in turn, is supported by the removal of obstacles to the enjoyment of human rights.
65
Still, there
are indications that the object of the treaty furnishes a link to human rights. Pursuant to Article
3(2), State parties to the AU Convention on Corruption undertake to respect human and
peoples’ rights in accordance with the ACHPR and other relevant human rights instruments.
More specifically, Articles 13(3) and 14 provide the right to a fair trial, and Article 12(4)
provides aspects of the right to freedom of expression. However, with the exception of these
two rights one cannot make a convincing argument with regard to inferring, in general,
individual rights from State obligations enshrined in the AU Convention on Corruption.
To conclude, Article 3(1) Protocol to the ACHPR does not leave much room to question
the Court’s jurisdiction to decide complaints concerning other human rights treaties. Despite
the arguments that have been put forward in international law scholarship, one cannot presume
a restrictive construction of the Court’s jurisdiction ratione materiae. A more systematic and
rigorous examination of the meaning of ‘human rights treaty’ is expected of the Court,
especially since this is a prerequisite to exercise its material jurisdiction. When a treaty does
not have the protection of human rights as one of its main purposes, a vague discussion
concerning the human rights implications or dimension of that treaty is not informative in
practice. The focus should rather be placed on the object of the treaty and specific treaty
provision(s) in order to examine, first, whether a treaty provision that imposes specific
obligations on States confers specific rights on individuals, and second, whether such
individual rights qualify as human rights.
64
Viljoen, supra n 7 at 436.
65
According to Article 2(4), one of the objectives of the Convention is to ‘promote socio-economic development
by removing obstacles to the enjoyment of economic, social and cultural rights as well as civil and political rights’.

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3. The Anxiety of “Jurisprudential Chaos”
Despite strong concerns encouraging the Court to refrain from exercising its
jurisdiction over human rights treaties ratified by African States
66
or to tailor its mandate to the
narrow scope of the African Commission’s jurisdiction examining only alleged violations of
the ACHPR,
67
the ACtHPR has proceeded to fully explore the scope of its material jurisdiction.
Having discussed the meaning of the qualifications attached to the Court’s jurisdiction, this
section addresses scholars’ fears, namely that allowing complaints of violations of a variety of
human rights treaties to be brought before the Court will lead to ‘jurisprudential chaos’.
68
Jurisprudential chaos is a vague claim. The analysis in this section ties this claim to three
concrete legal issues underpinning the debate: first, the anxiety of forum shopping in light of
the multiplicity of international courts; second, the anxiety of the ACtHPR monitoring other
human rights treaties; and third, the anxiety of threatening African human rights law. The
analysis finds that the jurisprudential chaos claim generally reflects an anxiety associated with
repeatedly exaggerated concerns regarding the limits of the jurisdiction of regional and/or
specialised international courts, and the ensuing risks to interpreting and developing
international law. However, some of the concerns raised merit further discussion.
69
The case
law of the Court suggests that it may be developing a policy of judicial self-restraint by not
examining all of the submissions of the applicants regarding violations of other human rights
treaties. The case law of the ECCJ is also brought into specific aspects of the discussion, in
order to shed some light on the ACtHPR’s practice.
3.1 The Anxiety of Forum Shopping
The material jurisdiction of the ACtHPR allows applicants to submit complaints
regarding alleged violations of other human rights treaties in any of the following (non-
exhaustive) scenarios:
a) An applicant may bring a case claiming a violation of a right which is not protected
under the ACHPR but is envisaged by another treaty ratified by the State concerned,
66
Heyns, supra n 8 at 168.
67
Viljoen, supra n 7 at 438. According to Article 2 Charter and Article 8 Protocol to the Charter, the African
Court complements the protective function of the Commission. However, pursuant to Rule 29 of the Rules of
Procedure of the Court (April 2010, Arusha) this complementary relationship has no impact on the scope of the
complaint, the Court’s jurisdiction or the laws applicable when the Commission refers a case to the Court.
Moreover, if this line of reasoning were to be followed, it would also entail different treatment of applications
before the Court depending on whether a case had been referred by the Commission or submitted by other parties
in accordance with Article 5 Protocol.
68
Heyns, supra n 8 at 167.
69
Van der Mei, supra n 54 at 119-120; Krisch, supra n 19 at 722-724.

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such as the right to housing under Article 11 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
70
b) An applicant may rely on and allege a breach of a right which, although envisaged in
the ACHPR, is formulated in another treaty in a manner that ensures a higher level of
protection. This may be due to a broader protective scope of this right, or a more
restricted limitation attached thereto.
71
Lohé Issa Konaté is a case in point.
72
c) An applicant may claim a violation of a human right which is protected in the same
way under both the ACHPR and another treaty, but no mechanism is envisaged or is
available to the applicant under that other treaty. For example, many cases have already
been brought against Tanzania with regard to violations of the International Covenant
on Civil and Political Rights (ICCPR),
73
since Tanzania has not ratified the first
Optional Protocol to the ICCPR.
74
d) Finally, an applicant may choose to bring a complaint before the ACtHPR (instead of
or in addition to another international body) as part of a litigation strategy (i.e.
considerations of physical proximity to a forum and litigation costs).
75
The Court’s case law demonstrates that applicants are familiar with the claims and
arguments that they can raise in connection with other human rights treaties. The Court has
examined alleged violations of a series of treaties, including the ICCPR,
76
the ICESCR,
77
the
ECOWAS Revised Treaty,
78
the African Charter on Democracy,
79
the ECOWAS Democracy
Protocol,
80
the Convention on the Elimination of All Forms of Discrimination Against Women
70
1966, 993 UNTS 3.
71
Mbondenyi, ‘Invigorating the African System on Human and Peoples’ Rights through Institutional
Mainstreaming and Rationalisation’ (2009) 27 Netherlands Quarterly Human Rights 451 at 470; Udombana,
‘Toward the African Court on Human and Peoples' Rights: Better Late than Never’ (2000) 3 Yale Human Rights
& Development Law Journal 45 at 91.
72
ACtHPR, Lohé Issa Konaté v Burkina Faso 5 December 2014. See also ACtHPR, Ingabire Victoire Umuhoza
v Republic of Rwanda 24 November 2017 at paras 133, 136, 140 (confirming the Lohé Issa Konaté case).
73
1966, 999 UNTS 171.
74
Tanganyika Law Society, supra n 26; ACtHPR, Alex Thomas v United Republic of Tanzania 20 November 2015;
ACtHPR, Wilfred Onyango Nganyi & 9 Others v United Republic of Tanzania 18 March 2016; ACtHPR,
Mohamed Abubakari v United Republic of Tanzania 3 June 2016; Frank David Omary and Others, supra n 27.
75
Viljoen, supra n 7 at 438; Helfer, ‘Forum Shopping for Human Rights’ (1999) 48 University of Pennsylvania
Law Review 285.
76
Tanganyika Law Society, supra n 26 at para 76; Lohé Issa Konaté, supra n 72 at para 9; Alex Thomas, supra n
74; Mohamed Abubakari, supra n 74; Actions pour la Protection des Droits de l’Homme, supra n 38; Abdoulaye
Nikiema and Others, supra n 25.
77
Frank David Omary and Others, supra n 27 at para 76; ACtHPR, African Commission on Human and Peoples’
Rights v Republic of Kenya 26 May 2017 at para 2.
78
Lohé Issa Konaté, supra n 72 at para 12; Abdoulaye Nikiema and Others, supra n 25.
79
Actions pour la Protection des Droits de l’Homme, supra n 38.
80
Ibid.

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(CEDAW),
81
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women (Maputo Protocol)
82
and the African Charter on the Rights and Welfare of the
Child.
83
There are instances in which applicants have submitted violations of other relevant
human rights instruments ratified by the States concerned without invoking a violation of the
Charter. In the Frank David Omary and Alex Thomas cases, the applicants argued a violation
of the UDHR without mentioning any right under the Charter. The Court clarified that although
it had no jurisdiction over the UDHR, it did have jurisdiction to decide complaints concerning
either the Charter or other relevant human rights treaties (or both).
84
On other occasions, the
applicants submitted their complaints without referring to specific treaties. Tanzania, in the
Wilfred Onyango Nganyi and Kennedy Owino Onyachi cases, raised preliminary objections
ratione materiae arguing that the applicants had not invoked any human rights treaties.
85
The
Court maintained that the factual basis of the alleged violations was sufficient to ascertain
whether the complaints fall within the scope of specific rights under the Charter or other human
rights treaties.
86
In Kennedy Owino Onyachi, the Court found, on its own initiative, that the
applicants’ submissions contained alleged violations of the Charter and the ICCPR (even
though the Court did not proceed to discuss the ICCPR on the merits).
87
This is a sound
approach, since questions pertaining to the jurisdiction ratione materiae of international courts
are examined proprio motu.
88
However, in the recent Association Pour le Progrès et la Défence
des Droits des Femmes Maliennes (APDF) and The Institute for Human Rights and
Development in Africa v Republic of Mali judgment, the Court examined and decided alleged
violations of other treaties on human rights without bringing the ACHPR into play.
89
It is the
81
1979, 1249 UNTS 13. ACtHPR, Association Pour le Progrès et la Défence des Droits des Femmes Maliennes
(APDF) and The Institute for Human Rights and Development in Africa v Republic of Mali 11 May 2018 at paras
9, 95, 125, 135.
82
2003, Adopted by the 2nd Ordinary Session of the Assembly of the African Union, available at:
http://www.achpr.org/instruments/women-protocol/ (last accessed 12 August 2018). Association Pour le Progrès
et la Défence des Droits des Femmes Maliennes, supra n 81 at paras 9, 78, 95, 115, 125, 135.
83
1990, CAB/LEG/24.9/49. Ibid. at paras 9, 78, 115, 125, 135.
84
Frank David Omary and Others, supra n 27 at paras 74, 76; Alex Thomas, supra n 74 at para 45.
85
Wilfred Onyango Nganyi & 9 Others, supra n 74 at para 52; ACtHPR, Kennedy Owino Onyachi and Others v
United Republic of Tanzania 28 September 2017 at paras 35-36.
86
Wilfred Onyango Nganyi & 9 Others, supra n 74 at paras 57-58; Kennedy Owino Onyachi and Others, supra n
85 at paras 35-36, 156-157. See also Frank David Omary and Others, supra n 27 at paras 74, 76; Alex Thomas,
supra n 74 at para 45; ACtHPR, Peter Joseph Chacha v United Republic of Tanzania 28 March 2014 at para 114.
87
Kennedy Owino Onyachi and Others, supra n 85 at paras 35-36.
88
Shelton, ‘Jura Novit Curia in International Human Rights Tribunals’ in Boschiero et al (eds), International
Courts and the Development of International Law — Essays in Honour of Tullio Treves (2013) 189.
89
Association Pour le Progrès et la Défence des Droits des Femmes Maliennes, supra n 81 at para 135.

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first case in which the Court decided a complaint strictly on the basis of other treaties on human
rights without implicating the Charter.
It becomes clear that the ACtHPR can be — and, indeed, is — used as a forum for
bringing complaints regarding other human rights treaties. The argument against this practice
is that the existence and use of multiple venues for adjudicating international (human rights)
claims may lead courts to favour approaches to tailor their “clientele”, and may increase the
risk of conflicting judgments.
90
Forum shopping has acquired a negative connotation, even
though it is at least equally arguable that the term forum shopping is misleading and it does not
belong to the lexicon of international law due to the latter’s decentralised nature.
91
Choice of
forum is the inevitable consequence of the specialisation and deepening of international law
coupled with the multiplicity of international courts and other bodies. The multiplicity of
international courts embodies the complexity of relations between States (and other actors).
92
Increasing third-party settlement of international disputes through law-based forums makes
(human rights related) disputes justiciable, and paves the way for authoritative pronouncements
of international law. The risk of diverging interpretations of the law is largely exaggerated.
93
Choice of forum enables creativity through dialogue among courts.
94
The possibility of
multiple international courts being able to hear a dispute (or aspects thereof) not only proves
beneficial to the individuals concerned, but also entails a healthy level of competition among
courts, thereby improving the quality of their rulings and encouraging them to keep an eye on
one another.
95
It is frequently argued that States could take advantage of differing views of
international courts and bodies on human rights by acknowledging the milder view, and the
90
For example, Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice,
to the Sixth Committee of the General Assembly of the United Nations, The Proliferation of International Judicial
Bodies: The Outlook for the International Legal Order’, 27 October 2000 available at: http://www.icj-
cij.org/files/press-releases/1/3001.pdf (last accessed 12 August 2018) at 3-4.
91
Separate Opinion of Judge Cancado Trindade in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 639 at para 240.
92
Brownlie, ‘Blaine Sloan Lecture — The Peaceful Settlement of International Disputes in Practice’ (1995) 7
Pace University School of Law International Law Review 257 at 276.
93
Address to the Plenary Session of the General Assembly of the United Nations by Judge S.M. Schwebel,
President of the International Court of Justice, 27 October 1998, available at: http://www.icj-cij.org/files/press-
releases/7/3007.pdf (last accessed 12 August 2018) at 4.
94
Kingsbury, ‘Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?’ (1999)
31 New York University Journal International Law & Policy 679 at 681-682, 686; Abi-Saab, ‘Fragmentation or
Unification: Some Concluding Remarks’ (1999) 31 New York University Journal International Law & Policy 919
at 925; Brownlie, supra n 92; Murungi and Gallinetti, ‘The Role of Sub-Regional Courts in the African Human
Rights System’ (2010) 13 SUR — International Journal on Human Rights 119 at 131.
95
Pauwelyn and Salles, ‘Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible
Solutions’ (2009) 42 Cornell International Law Journal 77 at 80; Brownlie, supra n 92 at 276; Meron, Human
Rights Law-making in the United Nations (1986) at 241.

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lowest common denominator in human rights protection.
96
Yet, there is no State practice or
precedent to support this claim.
97
There is little evidence regulating the phenomenon of bringing multiple claims over the
same or a similar matter, successively or simultaneously, before different bodies.
98
In the
absence of explicit regulation of choice of forum by States (i.e. by inserting a specific treaty
clause), States and individuals may exercise all options available to them, including choice of
forum, simultaneous petitioning and successive petitioning.
99
The ACHPR is interpreted as
allowing all these options, with the exception of cases that have been settled by the States
involved (Article 56(7) ACHPR).
100
This suggests that the admissibility criterion requires not
only the finality of the settlement, but also settlement on an inter-State level (thereby excluding
claims by individuals against the State).
101
Moreover, successive petitioning concerning claims
under the ICCPR is permitted; is not allowed only if it is shown that the same matter is not
being examined under another procedure concurrently.
102
3.2 The Anxiety of Monitoring Other Human Rights Treaties
The ACtHPR systematically applies and finds violations of other human rights treaties,
including regional, sub-regional and global. It also monitors their implementation, and orders
the respondent States to comply with their respective obligations. Some examples from the
case law are the following. In Lohé Issa Konaté, the Court found that Burkina Faso’s Penal
96
For instance, Meron, supra n 95.
97
Helfer, supra n 75 at 357-358. Helfer correctly highlights the fact that a State would not be able to pursue the
lower denominator among different rulings and interpretations by different courts and bodies since, in most cases,
human rights treaties contain a more favourable protection clause preventing States from restricting the enjoyment
or exercise of any right or freedom recognised in treaty A by virtue of another treaty. Interestingly, this does not
apply in the case of the ACtHPR since the African Charter is one of the very few human rights treaties which does
not contain a more favourable protection clause. However, if a State party to the Charter is also a party to another
human rights treaty containing such a clause, then that State would be obliged not to invoke a lower level of
protection with regard to its obligations under that treaty. For examples of more favourable protection clauses,
see Article 5(2) ICCPR, Article 5(2) ICESCR and Article 41 CRC.
98
Lowe, 'Overlapping Jurisdictions in International Tribunals' (1999) 20 Australian Yearbook of International
Law 191 at 201; Shany, The Competing Jurisdictions of International Courts and Tribunals (2004).
99
Helfer, supra n 75 at 304.
100
Article 56(7) ACHPR sets as an admissibility requirement that ‘communications relating to Human and
Peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they […] do not deal
with cases which have been settled by those States involved in accordance with the principles of the Charter of
the United Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter’
(emphasis added).
101
Helfer, supra n 75 at 306.
102
Article 5(2)(a) Optional Protocol to the ICCPR (1996, 999 UNTS 171) reads ‘The Committee shall not consider
any communication from an individual unless it has ascertained that […] the same matter is not being examined
under another procedure of international investigation or settlement’.

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Code (prescribing custodial and non-custodial sentences for defamation), as well as the
sentencing of the applicant to imprisonment and excessive fines, were contrary not only to the
requirements of Article 9 Charter but also to Article 19 ICCPR and Article 66(2)(c) ECOWAS
Revised Treaty concerning the rights of journalists.
103
In another 2017 freedom of expression
case, Rwanda was held in violation of both Article 9(2) Charter and Article 19 ICCPR.
104
In
Actions pour la Protection des Droits de l’Homme, the Court proclaimed that Côte d’Ivoire
violated its obligations both to establish impartial and independent electoral bodies and to
provide equal protection under the law, as enshrined in Article 3 ACHPR, Articles 10(3) and
17 African Charter on Democracy, Article 3 ECOWAS Democracy Protocol and Article 26
ICCPR.
105
Côte d’Ivoire was ordered to bring its domestic law in compliance with the
requirements of these treaties. In Anudo Ochieng Anudo, Tanzania was found to have
arbitrarily expelled the applicant in violation of Article 7 Charter and Article 14 ICCPR.
106
In
a different cluster of cases, Tanzania’s systematic failure to protect various aspects of the right
to a fair trial led to a violation of Article 7 ACHPR and Article 14 ICCPR.
107
In 2018, the
domestic legislation of the Republic of Mali was found inconsistent with the State’s obligations
under CEDAW,
108
the Maputo Protocol,
109
and the African Charter on the Rights and Welfare
of the Child.
110
The Court ordered the Republic of Mali to amend its domestic law in
conformity with the standards set by the foregoing treaties.
It is worthwhile to note that the ECCJ, in tune with the ACtHPR, construes its material
jurisdiction to include alleged violations of the UDHR
111
and UN human rights treaties to
103
Lohé Issa Konaté, supra n 72 at paras 164, 167, 170, 176.
104
See also Ingabire Victoire Umuhoza, supra n 72 at paras 163, 173(ix).
105
Actions pour la Protection des Droits de l’Homme, supra n 38 at paras 135, 151.
106
Anudo Ochieng Anudo, supra n 28 at paras 106, 132(vii).
107
The rights to be heard and to defend oneself, to be tried within a reasonable length of time and to free legal aid
in Alex Thomas, supra n 74 at para 124. See also ACtHPR, Interpretation of the Judgment of 20 November 2015
— Alex Thomas v United Republic of Tanzania 28 September 2017 at paras 38-39. The obligation to provide free
legal assistance and to communicate all the elements of the charge to the applicant in a timely manner in Mohamed
Abubakari, supra n 74 at paras 145, 161.
108
Association Pour le Progrès et la Défence des Droits des Femmes Maliennes, supra n 81 at paras 9, 95, 125,
135.
109
Ibid.
110
Ibid. at paras 9, 78, 115, 125, 135.
111
ECCJ, Essien v The Republic of The Gambia and Another 14 March 2007 at paras 1, 11 available at:
http://www.chr.up.ac.za/index.php/browse-by-institution/ecowas-ccj/305-the-gambia-essien-v-the-republic-of-
the-gambia-and-another-2007-ahrlr-131-ecowas-2007-.html (last accessed 12 August 2018).
A list of all judgments by the ECCJ are available at:
http://www.courtecowas.org/site2012/index.php?option_com_content&view_article&id_157&Itemid_27 (last
accessed 12 August 2018). Some of the Court’s judgments from 2004 to 2009 are not available on the Court’s
website. From 2004 to 2009 the Court’s judgments have been published in an official reporter (2004–2009
Community Court of Justice ECOWAS Law Report), but it is not widely available and it is not available to the
author either. Selected decisions are available on other online databases, including the Centre for Human Rights,

Author’s/Original Version. This paper is forthcoming at Human Rights Law Review
20
which ECOWAS member States are parties,
112
such as the ICCPR,
113
the ICESCR,
114
the
CAT
115
and the CEDAW.
116
The SERAP case is the only instance in which a State challenged
the ECCJ’s jurisdiction ratione materiae.
117
Nigeria argued that the ECCJ did not have
jurisdiction to adjudicate on alleged violations of ICCPR and ICESCR because, first, the
Nigerian Constitution recognises only the jurisdiction of Nigerian courts over the ICCPR and
second, the ICESCR is not justiciable. The ECCJ dismissed the objection by stating that ‘[B]y
establishing the jurisdiction of the Court, [the Member States parties to the Revised Treaty of
ECOWAS] have created a mechanism for guaranteeing and protecting human rights within the
framework of ECOWAS so as to implement the human rights contained in all the international
instruments they are signatory to’.
118
The prospect of UN human rights treaties being justiciable and enforceable by a
regional human rights court is a source of uneasiness, to say the least. Entrusting such a task to
a regional human rights court is ‘highly unusual’.
119
Yet, the ACtHPR has clear jurisdiction to
apply and monitor UN human rights treaties (if ratified by the State concerned).
120
The same
can be said for the ECCJ, which has also been subject to criticism for exercising its jurisdiction
over UN treaties.
121
The ACtHPR’s jurisdiction ratione materiae deviates from the “prototype”
of the contentious jurisdiction of international courts on human rights, which is typically
limited to the interpretation and application of a specific regional treaty. For this reason the
ACtHPR does not sit well within the existing categories of adjudicative bodies
122
and,
consequently, the relevance of arguments concerning other international courts should not be
University of Pretoria, African Human Rights Case Law Database. Unless indicated otherwise, all judgments cited
herein are available at the Court’s website.
112
ECCJ, Sikiru Alade v Nigeria 11 June 2012 (judgment unavailable to the author) as discussed in Ebobrah,
‘Human Rights Developments in African Sub-Regional Economic Communities during 2012’ (2013) 12 African
Human Rights Law Journal 178 at 203; ECCJ, SERAP v Nigeria 14 December 2012 at para 28.
113
ECCJ, Pawimondom v Togo 19 February 2018 (in French) at 3; ECCJ, Jerome Bougouma and Others v Burkina
Faso 19 February 2018 (in French) at 3; ECCJ, Nosa Ehanire Osaghae v Nigeria 10 October 2017 at para 3.
114
ECCJ, Synecoci v Côte d’ Ivoire 19 February 2018 (in French) at 3; Nosa Ehanire Osaghae, supra n 113 at
para 3.
115
Pawimondom, supra n 113 at 3; ECCJ, Dorothy Chioma Njemanze and 3 Ors v Nigeria 12 October 2017 at 2-
3.
116
Dorothy Chioma Njemanze and 3 Ors, supra n 115; ECCJ, Mahamoudou and Others v Mali 7 May 2016 (in
French) at para 20; ECCJ, Koraou v Niger 27 October 2008 at para 28, available at:
http://www.chr.up.ac.za/index.php/browse-by-institution/ecowas-ccj/379-niger-koraou-v-niger-2008-ahrlr-
ecowas-2008.html (last accessed 12 August 2018).
117
Ebobrah, ‘Dual Mandate, Caried Authority: The Skewed Authority of the ECOWAS Community Court of
Justice’ iCourts Working Paper Series No. 57 (2016) at 12.
118
SERAP, supra n 112 at para 29.
119
Heyns, supra n 8 at 167.
120
Viljoen, supra n 7 at 438.
121
Ebobrah, supra n 112 at 203.
122
Romano, supra n 15 at 245. Romano, Alter and Shany, ‘Mapping International Adjudicative Bodies, the Issues
and Players’ in Romano, Alter and Shany, supra n 11, 3 at 9-10.

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taken for granted when addressing the ACtHPR. The following discussion engages with the
question of whether concerns raised with regard to the jurisdiction of the ACtHPR have certain
merit or merely project anxieties from dissimilar contexts, and, if yes, to what extent.
3.2.1 Towards a World Court on Human Rights based in Arusha?
One may argue that as far as African States are concerned, the ACtHPR functions as a
World Court on human rights based in Arusha.
123
Ideas about consolidating human rights
monitoring mechanisms into a single judicial body — a World Court on human rights — have
been debated for decades.
124
Clearly the design of the ACtHPR is not what was expected by
many, but it is an intriguing design in international judicial adjudication. It creates a mechanism
which does not consolidate monitoring mechanisms (as the envisaged World Court on Human
Rights does), but consolidates human rights obligations of State parties under the auspices of
a single judicial body on a regional level. The ACtHPR is ‘the judicial arm of the panoply of
human rights agreements concluded under the aegis of the United Nations’.
125
Notably this
model is expected to be strengthened, since the future African Court of Justice and Human
Rights is entrusted
126
not only with all legal disputes concerning the interpretation and the
application of the Charter and any other legal instruments relating to human rights ratified by
the States Parties concerned, but also with legal disputes concerning any question of
international law.
127
In this context, three main reasons may be discerned for treating the broad
jurisdiction of the ACtHPR as a problem, rather than a welcome variance, in dispute settlement.
The first reason for being distrustful toward the ACtHPR’s jurisdiction lies in the
authority of a regional court to apply, declare violations of, and monitor UN treaties.
128
The
function of an international court on a regional level or a given geographical area casts doubt
123
Meron, supra n 95. On the recurring theme on the need, desirability and feasibility for a World court on human
rights see Subedi, The Effectiveness of the UN Human Rights System — Reform and the Judicialisation of Human
Rights (2017) at 239-243; Kozma, Nowak and Scheinin, ‘A World Court of Human Rights - Consolidated Draft
Statute and Commentary’ (2010) available at:
http://www.eui.eu/Documents/DepartmentsCentres/Law/Professors/Scheinin/ConsolidatedWorldCourtStatute.p
df (last accessed 12 August 2018); and Alston, ‘Against a World Court for Human Rights’ (2014) 28 Ethics &
International Affairs 197.
124
Meron, supra n 95.
125
Romano, supra n 5.
126
According to Article 9 of the Statute of the African Court of Justice and Human Rights, the Protocol and the
Statute annexed to it shall enter into force thirty (30) days after the deposit of the instruments of ratification by
fifteen Member States. Six member States have ratified thus far, information available at:
https://au.int/sites/default/files/treaties/7792-sl-
protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_3.pdf (last accessed 12 August
2018).
127
Article 28 Protocol on the Statute of the African Court of Justice and Human Rights, supra n 21.
128
Separate Opinion of Vice-President Fatsah Ouguergouz, supra n 36 at para 16; Mbondenyi, supra n 71 at 470.

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onto its relevance at a global level.
129
An early and characteristic case in point was the Central
American Court of Justice. In 1944, Manley Hudson strongly opposed the creation of a regional
international court of general jurisdiction, because it would allegedly give rise to ‘a
particularistic development of international law’,
130
and it would risk the primacy and
universality of general international law.
131
This mindset is also reflected in the way that
scholars and practitioners systematise international courts, dividing them on the basis of their
regional and universal jurisdiction, respectively.
132
However, not everybody currently sees
these developments in a negative light.
133
As will be discussed below, regional and specialised
developments, as well as pronouncements of all international courts, inform
(general)international law.
134
This strongly suggests the need for a more nuanced approach
regarding the value and relevance of judgments and pronouncements by regional international
courts.
A second reason for treating the ACtHPR’s jurisdiction as a problematic circumstance
rests upon the prevailing view that specialised international courts create risks for diverging
interpretations of international law. For this reason, specialised international courts should not
extend their pronouncements beyond matters which ‘do not lie within the specific purview of
[their] jurisdiction’.
135
In the context of the present discussion, this entails that the ACtHPR
should refrain from exercising its jurisdiction over other treaties on human rights.
136
This line
129
Farrell, ‘Distribution’ in Schabas and Murphy (eds), Research Handbook on International Courts and
Tribunals (2017) 337 at 346.
130
Hudson, International Tribunals - Past and Future (1944) at 179.
131
Ibid. at 179.
132
For example, Tomuschat, ‘International Courts and Tribunals’, Max Planck Encyclopaedia of Public
International Law (last updated February 2011); Janis (ed), International Courts for the Twenty-First Century
(1992), parts II and III; French, Saul and White (eds), International Law and Dispute Settlement: New Problems
and Techniques (2010), part III; Schermers and Blokker, International Institutional Law: Unity within Diversity
(2011).
133
For example, Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 International
Comparative Law Quarterly 1 at 14-15.
134
There is no well-established definition of the notion of general international law. According to the International
Law Commission (ILC) (M. Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law’, Report of the Study Group of the International Law
Commission Finalized, UN Doc A/CN.4/L.682 (2006) at para 493), general international law includes customary
international law, general principles of law within the meaning of Article 38(1)(c) of the Statute of the ICJ, and
principles of the legal process. General international law may arguably include certain treaties (especially
codification conventions) which are law-making in nature and well-ratified on a global basis — such as the UN
treaties discussed herein — without implying that all widely ratified treaties are part of general international law.
See Wood, ‘The International Tribunal for the Law of the Sea and General International Law’ (2007) 22
International Journal Marine & Coastal Law 351 at 354-355. Cf. Tomuschat, ‘General International Law: A New
Source of International Law?’ in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights and the
Modernisation of International Law (2018) 185.
135
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43 at para 403.
136
Ebobrah, supra n 112 at 203.

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of thinking reflects the insistence to underline the alleged risks posed by international courts
entrusted with interpreting, applying, and monitoring a specific treaty and/or subject area,
because they ‘could lead to the destruction of the very foundation of international law’.
137
The
main concern is that different interpretations of similar or identical rules of international law
can undermine the integrity of general international law, and the overall consistency of
international law. This anxiety is all the more pronounced with respect to international courts
on human rights, which are typically regional and specialised in scope.
138
Lex regionis and lex
specialis have been formulated and developed as conjoined twins, and have defined the identity
of (and role served by) human rights courts. Nonetheless, this view disregards first that the
concept of divergence is over-emphasised, and second, that the distinction between courts of
general jurisdiction and courts entrusted with specialised and/or regional jurisdiction is elusive,
if not artificial.
139
As far as the first point on over-emphasising divergence, it regularly gets overlooked
that different interpretations and even divergences qualify as natural and welcome occurrences
of the nature and function of international law. The starting point of this discussion should be
that two international courts disagreeing over the content of rules of international law is a
healthy phenomenon.
140
In fact, given the nature of international law and in the absence of
explicit regulation by States, ‘there can be as many judicial interpretations as there are
[international] courts’.
141
Moreover, looking for and highlighting a handful of instances of
divergences and/or disagreements
142
over-stresses the phenomenon and distorts the overall
picture of communication and coordination among international courts.
143
It is also crucial how
one appreciates divergence. There is a thin line separating divergence from the development
of international law (or the potential to develop international law).
144
The Loizidou and Tadić
cases are the most well-cited examples of giving rise to wrong and impermissible divergences
137
Oda, ‘The International Court of Justice from the Bench’ (1993) 244 Hague Recueil des Cours 9 at 145. Cf.
Caminos, ‘The Growth of Specialised International Tribunals and the Fears of Fragmentation of International
Law’ in Boschiero et al (eds), supra n 88 55. See also Guillaume, supra n 90 and Schwebel, supra n 93; Schwebel’s
position is admittedly much more nuanced.
138
Romano, supra n 15 at 266; Schabas, ‘Introduction’ in Schabas and Murphy, supra n 129, 1 at 20.
139
Bodeau-Livinec and Giorgetti, ‘Developing International Law at the Bar - A Growing Competition among
International Courts and Tribunals’ (2016) 15 The Law and Practice of International Courts and Tribunals 177
at 185.
140
Schwebel, supra n 93 at 4.
141
Besson, ‘Legal Philosophical Issues of International Adjudications — Getting Over the Amour Impossible
between International Law and Adjudication’ in Romano, Alter and Shany, supra n 11, 413 at 425.
142
Shany, supra n 98 at 20-30. See for discussion Brown, ‘Review Essay — The Proliferation of International
Courts and Tribunals: Finding Your Way through the Maze’ (2002) 3 Melbourne Journal International Law 453.
143
Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’ (2006) 55 International & Comparative
Law Quarterly 791 at 797.
144
Oellers-Frahm, ‘Proliferation’ in Schabas and Murphy, supra n 129, 299 at 321.

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to (general) international law.
145
However, in retrospect Loizidou
146
is not treated anymore as
a divergence to the ICJ’s Advisory Opinion on Reservations to the Genocide Convention,
147
but as having paved the way for the enrichment of international law.
148
The Tadić case is treated
by many as hardly a drama,
149
given the different relevant contexts of the jurisdictions of and
cases before the ICJ and International Criminal Tribunal for the Former Yugoslavia,
respectively.
Returning to the second point on the implications of distinguishing between courts of
general jurisdiction and courts entrusted with specialised and/or regional jurisdiction, there is
a growing acceptance of the role and value of regional and/or specialised courts and other
bodies. The main frame of reference of this line of thinking is that international courts have
much to learn from each other
150
and that each international court, in one way or another,
applies the law whose content has been influenced by other international courts as well as other
bodies.
151
The ICJ, in a departure from its long-standing practice, now openly acknowledges
and appreciates the authority of regional and special international courts.
152
The ICJ affirmed
their contribution to ascertaining the formation and content of customary international law,
153
145
For example, Guillaume, supra n 90 at 4-6; Jennings, ‘The Judiciary, International and National and the
Development of International Law’ (1996) 45 International & Comparative Law Quarterly 1 at 6.
146
Loizidou v Turkey, 23 April 1995 (Grand Chamber) at paras 67-84.
147
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, 28 May 1951, ICJ Rep. 1951, p. 15.
148
Joint Separate Opinion of Judge Higgins, Judge Kooijmans, Judge Elabary, Judge Owada and Judge Simma,
in Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Rwanda) (New Application: 2002), Judgment, Jurisdiction of the Court and Admissibility of the Application, 3
February 2006, ICJ Rep. 2006, p. 6 at para 23; Higgins, ‘Human Rights in the International Court of Justice’
(2007) 20 Leiden Journal International Law 745 at 747; Thirlway, ‘The Proliferation of International Judicial
Organs and the Formation of International Law’ in Heere (ed), International Law and the Hague's 750th
Anniversary (1999) 433 at 437-438. The ILC Guide to Practice on Reservations to Treaties also affirm this. See
Report of the ILC on the Work of its 63rd session, GA, Official Records, 66th Session, Supplement No. 10,
Addendum 1, UN Doc. A/66/10/Add. 1, Guideline 1.3.2, Guideline 2.1.2 and accompanied commentary.
149
Prosecutor v Tadić, Appeals Chamber, IT-94-1-AR72, Interlocutory Appeal on Jurisdiction, 8 September 1995
at para 11. Cf Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America), Judgment, Merits, I.C.J. Rep. 1986, p. 14 at para 222; Application of the Convention
on the Prevention and Punishment of the Crime of Genocide, supra n 135 at para 403. Higgins, supra n 143 at
795.
150
Separate Opinion of Judge Cancado Trindade, supra n 91 at para 238.
151
Schwebel, supra n 93 at 4; Cançado Trindade, ‘The Development of International Human Rights Law by the
Operation and the Case Law of the European and Inter-American Courts of Human Rights’ (2004) 25 Human
Rights Law Journal 157 at 158.
152
Simma, ‘Mainstreaming Human Rights: The Contribution of the International Court of Justice’ (2012) 3
Journal International Dispute Settlement 1 at 12-14.
153
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012,
p. 99, at paras 72, 73, 76, 78, 90. See also the draft conclusions of the ILC on identification of customary
international law International Law Commission, 70th Session, Identification of customary international law -
Statement of the Chair of the Drafting Committee, Mr. Charles Chernor Jalloh, 25 May 2018, Draft Conclusion
13, 14, available at:
http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2018_dc_chairman_statement_icil.pdf&la
ng=E (last accessed 12 August 2018). Conclusion 13 reads ‘decisions of international courts and tribunals, in

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to discerning general principles,
154
and to interpreting international treaties. In 2010, within the
context of interpreting the ICCPR, the ICJ stated that ‘[a]lthough the Court is in no way
obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant
on that of the Committee, it believes that it should ascribe great weight to the interpretation
adopted by this independent body that was established specifically to supervise the application
of that treaty’.
155
The Court used the views of the CAT Committee to interpret the CAT,
156
the
views of the Human Rights Committee’s (HRC) to interpret the ICCPR,
157
and the views of
the African Commission on Human Rights to interpret the ACHPR.
158
Interestingly, in order
to confirm its construction of the ACHPR, the Court gave due regard to the case law of both
the ECtHR and IACtHR.
159
The foregoing points demonstrate that the possibility of different interpretations of UN
and other treaties by the ACtHPR or the alleged risk to the coherence of international (human
rights) law
160
should not be overemphasised. Such concerns can be mitigated as much as
possible by way of interpretation and cross-judicial dialogue.
161
In line with this, the ACtHPR
gives extensive discussion to the views of UN bodies
162
and the jurisprudence of other human
rights courts.
163
The ECCJ also follows the same approach.
164
particular of the International Court of Justice, concerning the existence and content of rules of customary
international law are a subsidiary means for the determination of such rules’. The decisions’ value primarily
depends on the quality of reasoning and on how they were received by States and future case law.
154
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,
I.C.J. Reports 2012, p. 324 at paras 13, 18, 24, 33, 40, 56.
155
Ahmadou Sadio Diallo, supra n 91 at para 66 (emphases added).
156
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, p. 422 at paras 100-102.
157
Ahmadou Sadio Diallo, supra n 91 at para 67.
158
Ibid. at para 67.
159
Ibid. at paras 67, 68. See also Separate Opinion of Judge Cancado Trindade, supra n 91 at paras 232, 237.
160
Ebobrah, supra n 112 at 203.
161
For detailed discussion on how the ACtHPR interprets the ACHPR by taking other international rules into
account see Rachovitsa, ‘The African Court on Human and Peoples’ Rights: A Uniquely Equipped Testbed for
(the Limits of) Human Rights Integration?’ in Bribosia, Rovine and Correa s(eds), Human Rights Tectonics —
Global Dynamics of Integration and Fragmentation (Intersentia, in press 2018).
162
On the ACtHPR taking into consideration of General Comments by the HRC and the ICESCR Committee as
authoritative statements on the interpretation of the provisions of the respective UN treaties see Tanganyika Law
Society, supra n 26 at para 107.4; African Commission on Human and Peoples’ Rights v Republic of Kenya, supra
n 77 at para 181.
163
On the ACtHPR giving due regard to the case law of the ECtHR and the IACtHR see Lohé Issa Konaté, supra
n 72 at paras 147-154, 158-163; Wilfred Onyango Nganyi & 9 Others, supra n 74 at paras 136-154; Alex Thomas,
supra n 74 at paras 146-147; Tanganyika Law Society, supra n 26 at para 82.1; Actions pour la Protection des
Droits de l’Homme, supra n 38 at para 95; Mohamed Abubakari, supra n 74 at paras 25-27.
164
Taking cognisance of the practice of the HRC (e.g. ECCJ, Benson Olua Okomba v Benin 10 October 2017 at
24); the case law of the ECtHR (e.g. Benson Olua Okomba, ibid. at 10, 13, 15, 16-17, 23; Dorothy Chioma
Njemanze and 3 Ors, supra n 115 at 34, 37; ECCJ, The Incorporated Trustees of Fiscal and Civic Right
Enlightenment Foundation v Nigeria 7 June 2016 at 44-46); or the case law of the IACtHR (e.g. Benson Olua
Okomba, ibid. at 10-11, 23; Dorothy Chioma Njemanze and 3 Ors, supra n 115 at 32, 39).

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Finally, a third reason for being particularly reluctant to entertain the possibility that a
regional international court may monitor UN treaties concerns specifically the conceptual and
geographical topos of the ACtHPR. The authority of regional bodies to construe international
law brings to the fore informal hierarchies among said international courts, and the structural
imbalance entrenched in the Euro-centred map of the international law landscape.
165
The fixity
of cities and spaces of delivering international justice, and developing international law, is well
reflected in the very limited number and geographical worldwide scope of those cities in which
these processes take place.
166
The “law of Geneva” and the “law of The Hague” assign
international law a location, and narrate a specific story of progress.
167
This inhibits us from
giving due regard to the seemingly unlikely places in which international law may be found.
168
The ACtHPR can be seen as part of a different plausible map of international law,
169
supporting
a plurality of loci for experimenting with, and articulating, variant designs. As far as our
perception is concerned, there is a geographical and conceptual distance to bridge between
envisaging Geneva as the seat of the proposed World Court on Human Rights on the one
hand,
170
and accepting the possibility that Arusha is the seat of the World Court on Human
Rights for African States, on the other hand. Bridging this gap challenges us to rethink human
rights law and institutions.
171
Murray has perceptively highlighted that international human
rights law and international human rights scholars have focused primarily on European and
Western sources and neglected other jurisdictions. Western scholars give the impression that
one has little to learn from African institutions and their experiences, under the pretexts that
the ACtHPR is a young institution, ineffective, or irrelevant.
172
One should add to this that it
is not only Western scholars but also African scholars who do not seem to value the unique
features and potential of the ACtHPR; they focus, instead, on the alleged risks posed by the
diversion from the mainstream “model(s) of success” of regional human rights courts as well
as, in general, the “templates” of designing mechanisms of international judicial dispute
settlement.
173
165
Pearson, ‘Spaces of International Law’ (2008) 17 Griffith Law Review 489 at 496.
166
Ibid. at 498.
167
Koller, ‘. . . and New York and The Hague and Tokyo and Geneva and Nuremberg and . . .: The Geographies
of International Law’ (2012) 23 European Journal International Law 97 at 98. See also how, more broadly, the
ordered categories of dispute settlement tell a powerful story in Romano, supra n 15 at 243.
168
Pearson, supra n 165 at 490.
169
Ibid. at 498.
170
Article 2 draft Statute of the World Court on Human Rights, supra n 123.
171
Murray, supra n 17 at 197.
172
Murray, supra n 17 at 193, 195.
173
Alter, Helfer, and McAllister, supra n 5 at 779 is a rare example of scholars who embrace the potential of the
ongoing ‘natural experiment’ in judicial dispute settlement in the African continent.

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3.2.2 Introducing Propriety Considerations in Exercising the ACtHPR’s Jurisdiction?
Interestingly, the ACtHPR may be developing a policy of exercising judicial restraint
when exercising its jurisdiction over other human rights treaties. The Court proclaimed that it
is not necessary to consider alleged violations of the ICCPR if it has already ruled on similar
alleged violations under the relevant provisions of the Charter.
174
In this way, the Court seems
to prioritise alleged violations under the Charter, but no criteria are articulated on when it is
unnecessary to examine other treaties. In other instances, the Court simply did not address the
applicants’ claims regarding alleged violations of the ICCPR and the ICESCR, without
elaborating on the reasons that it failed to do so.
175
The Court maintains an inconsistent practice
regarding the examination of similar or identical provisions given under different human rights
treaties. For example, in the cases of Lohé Issa Konaté and Ingabire Victoire Umuhoza, the
Court found that Article 19 ICCPR had been breached, whereas in Aboulaye Nikiema and
Others the Court deemed the examination of the alleged violation of Article 19 ICCPR
unnecessary.
176
Another cluster of cases concerning the right to free legal assistance under the
right to a fair trial provide further evidence of the discrepant case law. In its 2015 judgment in
the Alex Thomas case, the ACtHPR found that Tanzania had failed to comply with its
obligations under both the Charter and the ICCPR.
177
The subsequent Wilfred Onyango Nganyi
case mentions a violation only of the Charter.
178
Finally, in the 2016 Mohamed Abubakari
judgment, the Court framed the question before it as being one of whether the State was
compliant with Article 7 Charter and Article 14 ICCPR, and proceeded to affirm that by failing
to provide free legal assistance, Tanzania was in violation of both Article 7 Charter and Article
14 ICCPR.
179
On the other side of the spectrum, in the recent Association Pour le Progrès et
la Défence des Droits des Femmes Maliennes (APDF) and The Institute for Human Rights and
Development in Africa v Republic of Mali, judgment the Court decided solely on alleged
violations of other treaties on human rights without bringing the ACHPR into play.
180
174
Tanganyika Law Society, supra n 26 at para 123; Abdoulaye Nikiema and Others, supra n 25 at paras 115-117,
118, 157, 170, 188.
175
ACtHPR, The African Commission on Human and Peoples’ Rights v Libya 3 June 2016 at para 77; African
Commission on Human and Peoples’ Rights v Republic of Kenya, supra n 77 at para 2.
176
Lohé Issa Konaté, supra n 72 at para 176; Ingabire Victoire Umuhoza, supra n 72 at para 173(ix); Abdoulaye
Nikiema and Others, supra n 25 at para 188.
177
Alex Thomas, supra n 74 at para 124.
178
Wilfred Onyango Nganyi & 9 Others, supra n 74 at para 184.
179
Mohamed Abubakari, supra n 74 at paras 140, 145.
180
Association Pour le Progrès et la Défence des Droits des Femmes Maliennes, supra n 81 at paras 9, 78, 95,
115, 125, 135.

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It is notable that the ECCJ also appears to introduce certain caveats to the human rights
treaties that it is willing to discuss. In a more rigorously articulated justification compared to
the ACtHPR, the ECCJ, in SERAP, stated that ‘[V]arious articles of different instruments
sanction the same rights, the said instruments may, as far as those specific rights are concerned,
be considered equivalent. It suffices therefore to cite the one which affords more effective
protection to the right allegedly violated’.
181
The term ‘equivalent’ denotes norms which are
identical or similar, but whose interpretation is subject to the structure, aim, specificities and
development of their normative context.
182
Contrary to the ACtHPR, which favours the
application of the Charter over other human rights provisions, the ECCJ prefers to apply the
more favourable treaty. The ECCJ’s tendency to focus on the more favourable provision may
be due to the fact that it does not have a constitutive catalogue of human rights, as the ACtHPR
does. That said, since the 2012 SEPAP judgment, the ECCJ has given no indication that it
actually applies this statement in practice. In instances in which many treaties were applicable
to the facts of a case, the ECCJ found violations of a variety of human rights treaties and
instruments (i.e. the Charter, the ICCPR, CEDAW, or even the UDHR) in a cumulative fashion,
without choosing the more favourable and/or equivalent treaty provision.
The inconsistent case law of both courts does not allow for definite conclusions to
drawn as to whether they actually apply the foregoing caveats to the exercise of their
jurisdiction over treaties on human rights. It is possible that the two courts will create judicial
policies introducing propriety considerations, so as not to examine all relevant human rights
treaties. It is not uncommon for international courts to limit the scope of a ruling without
examining all submissions raised by the applicants or all possible legal bases. Different legal
justifications may be furnished to justify such a judicial practice. First, international courts may
do this due to reasons of procedural economy, or due to their reluctance to address a particular
question,
183
as long as a court’s approach is not unduly reductive.
184
Second, international
courts have the power to decide the scope of a claim, by determining how the legal grounds
establishing their jurisdiction and the nature of the claims shape the subject of a dispute.
185
A
court has the power to ascertain its competence to entertain a legal claim which means that,
181
SERAP, supra n 112 at para 92 (emphasis added).
182
Broude and Shany, ‘The International Law and Policy of Multi-Sourced Equivalent Norms’ in Broude and
Shany (eds), Multi-Sourced Equivalent Norms in International Law (2011) 1 at 5, 9.
183
Harris et al (eds), Harris, O’Boyle & Warbrick Law of the European Convention on Human Rights, 3rd edn
(2014) at 821-822 (concerning Article 14 ECHR).
184
Partly Dissenting Opinion of Judge Keller in ECtHR, Sükran Aydin and Others v Turkey 27 May 2013 at para
3.
185
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Merits, Judgment, 4 June
2008 [2008] ICJ Rep. 177 at paras 70-75; Kolb, The International Court of Justice (2013) at 188-190.

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even though it has jurisdiction to decide a complaint, it may deem it inappropriate to exercise
said jurisdiction.
186
Third, such a practice may relate to making a choice of applicable law in
cases in which many rules are applicable. This is not necessarily an issue of lex specialis, but
rather an issue of ‘locating the corpus of law at the heart of a difficult issue’.
187
An example of
this is the Legality of the Threat or Use of Nuclear Weapons, in which the ICJ answered the
question of the legality of nuclear weapons not by reference to human rights law (right to life
under the ICCPR) or principles of environmental law, but in connection to jus in bello.
188
This
was not an application of lex specialis, but a question of what norm and/or body of law is the
most relevant to the matter as it was submitted to and construed by the ICJ. In light of the
distinctive material jurisdiction of the ACtHPR extending over a variety of human rights
treaties, one could argue that the ACtHPR may develop a practice of “calibrating” the dispute
and finding the heart of the matter brought before it.
189
Nonetheless, such a practice presents a number of difficulties. It is not an easy task to
make and justify a choice of the human rights treaty, against which an applicant’s complaint
shall be assessed. If the ACtHPR or the ECCJ proceed with adopting such a practice, it is
strongly advisable that they elaborate on specific criteria as to whether or not a complaint under
a human rights treaty should be examined. This is dictated by considerations of legal certainty
and equal treatment of the applicants. The ACtHPR has implied that the Charter is at the
foreground in its judgments, whereas the ECCJ has stated that it will prioritise the more
favourable treaty provision — even though both courts do not seem to follow their statements
of principle. Furthermore, one needs to keep in mind the implications of such choices: there is
the possibility of unduly reducing the scope of the Court’s jurisdiction ratione materiae, on the
one hand; and the risk of (under)developing the standards of the ACHPR and a regional corpus
juris, on the other hand.
186
Although the ICJ usually considers the propriety of exercising its jurisdiction in its Advisory Opinions or in
cases of forum prorogatum, propriety considerations can be relevant in contentious proceedings too. See Thirlway,
The Law and Procedure of the International Court of Justice (2013) at 1658-1662. Certain Questions of Mutual
Assistance in Criminal Matters, supra n 185 at paras 70-75.
187
Higgins, supra n 143 at 792.
188
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 at paras 23-
34.
189
SERAP, supra n 112 at para 93.

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3.3 The Anxiety of Threatening African Human Rights Law
3.3.1 Undermining the Specificity of African Human Rights Law
Heyns argues that the broad jurisdiction of the ACtHPR poses a risk to the specificity
of the ACHPR because the latter becomes but one treaty among others before the ACtHPR.
190
Although he does not clarify in what way this is a risk, it is likely he means that the Court may
be satisfied with finding violations of other treaties at the expense of developing the Charter’s
standards, and nurturing an African human rights jurisprudence.
191
This is a valid concern. The
Court’s case law evidences that the Charter is at the core of its legal reasoning, and it
systematically discusses alleged violations of the Charter hand in hand with other treaties, as
shown in section 3.2. Nonetheless, this was not the case in the 2018 Association Pour le
Progrès et la Défence des Droits des Femmes Maliennes judgment. In this instance, the Court
found Mali in breach of its obligations under the CEDAW, the Maputo Protocol, and the
African Charter on the Rights and Welfare of the Child, without making any effort propio motu
to identify relevant provisions of the Charter, or to link the Charter with the facts of the case
and the applicant’s submissions. One may argue that the Court preferred to focus on specialised
treaties regarding women’s and children’s rights, but still, the Court should have furnished a
link with States’ obligations under the Charter too. It should be noted that on this occasion,
most of the treaties that the Court discussed (besides the CEDAW) are African treaties, and
hence, the Court is still developing the African corpus juris.
Creating a “variable geometry” of State parties’ obligations is another point raised
regarding the undermining of African human rights by the Court’s broad jurisdiction.
According to this argument, if the obligations of State parties differ depending on what other
human rights treaties a given respondent State has ratified,
192
this may result in a “variable
geometry” of obligations of African States under the Charter and, therefore, inhibit the
construction of an African human rights corpus juris. This is not a significant problem (or even
a problem in the first place), given that international law in its essence consists of many
different variable geometries of international obligations. It is possible for the Court to develop
the corpus juris of African human rights while considering and monitoring the implementation
of specific treaties, with regard to the specific respondent State(s) in each case.
190
Heyns, supra n 8 at 167.
191
Viljoen and Baimu, ‘Courts for Africa: Considering the Co-Existence of the African Court on Human and
Peoples' Rights and the African Court of Justice’ (2004) 22 Netherlands Quarterly Human Rights 241 at 253.
192
Heyns, supra n 8 at 167. See also Mujuzi, supra n 9 at 193.

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The risk of undermining the specificity of African human rights law is more likely to
materialise not as a result of the ACtHPR’s broad jurisdiction, but in the context of the
interpretation process.
193
The ACtHPR’s systematic reliance on the case law of the European
and Inter-American Courts of Human Rights may, in certain instances, raise the question of
whether such influence can be disproportionate. Conceptualising the development of the
ACHPR within the context of international human rights law is a challenging task for a young
international court. On the one hand, it is expected of the ACtHPR to take into consideration,
and benefit from, the long-standing jurisprudence of other regional human rights courts or the
views of UN bodies. On the other hand, coordination and convergence with global and other
regional standards should not lead to neglecting the development of a regional (African) human
rights’ understanding, the contours of which have already been established by the African
Commission.
194
This specificity is rooted in the unique characteristics of human rights in the
design of the ACHPR, including the equal weight accorded to civil and political rights,
economic, social and cultural rights and also peoples’ rights, as well as the local (legal) reality
in State parties to the ACHPR. This particularity gives rise to, and justifies, different
interpretations of specific human rights (compared to how the same or identical rights are
interpreted under other treaties).
195
In this regard, the ways in which the ACtHPR selects and uses relevant international
instruments and views of other monitoring bodies and international courts when construing the
Charter is an important factor. A few concrete examples are called for. When the ACtHPR is
in the process of discerning the ordinary meaning of a provision in the ACHPR its starting
point and primary focus should be the text of the ACHPR, without resorting prematurely to the
case law of the ECtHR regarding the interpretation of an equivalent right under the ECHR.
This is what happened in Wilfred Onyango Nganyi, when the ACtHPR, in establishing the
meaning of ‘trial within a reasonable time’ under Article 7(1)(d) ACHPR, took recourse to the
criteria of reasonableness developed throughout the extensive case law of the ECtHR.
196
Moreover, the ACtHPR should engage in its reasoning with both the global and other regional
standards in a balanced and consistent manner — especially if the respondent State is bound
193
Rachovitsa, supra n 161.
194
Perrin, ‘African Jurisprudence for Africa’s Problems: Human Rights Norm Diffusion and Norm Generation
Through Africa’s Regional International Court’ (2015) American Society International Law Proceedings 32 at
32-33.
195
Brems, Human Rights: Universality and Diversity (2001) at 116-117, 126-128, 133-136.
196
Wilfred Onyango Nganyi & 9 Others, supra n 74 at paras 136-154; Mujuzi, supra n 9 at 218.

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by said global standard(s).
197
Otherwise, the ACtHPR runs the risk of ‘Europeanising’ or ‘Inter-
Americanising’ its jurisprudence,
198
in the sense of overemphasising the relevance and
influence of other regional human rights treaties. One should also be mindful that the criteria
set out by the jurisprudence of other international courts need to be tailored and applied in light
of local circumstances and legal reality in African countries. In Mohamed Abubakari, the fact
that the judgment was not delivered publicly should have arguably been given more weight in
the assessment of the alleged violation of the right to a fair trial under the ACHPR since, unlike
in Europe, it is not common practice in many African States to have immediate access to the
text of the judgment.
199
Moreover, it is arguable that the ACHPR in the Association Pour le Progrès et la
Défence des Droits des Femmes Maliennes judgment case should have brought into play the
ACHPR and, more specifically, it should have engaged with the question of whether and, if
yes, how the duties of individuals toward the community (Articles 27 and 29 ACHPR) could
have a legal relevance to the interpretation of women’s and children’s rights.
Another example of the potentially problematic use of other international instruments
and views of other bodies when interpreting the Charter is the ways in which the ACtHPR
addresses peoples’ rights under the ACHPR, since ‘[C]ontrary to other human rights
instruments, the ACHPR establishes the link between the right to life and the inviolable nature
and integrity of the human being’,
200
and violations of economic, social and cultural rights may
engender conditions unfavourable to a decent life. In the African Commission on Human and
Peoples’ Rights v Republic of Kenya case, the Ogiek people claimed that limited access to and
removal from their ancestral home amounted to a violation of the community’s right to decent
survival, under Article 4 ACHPR. Even though the ACtHPR recognised the Ogiek as an
indigenous population, and it held that the expulsion of the Ogiek from their ancestral lands
against their will and without prior consultation violated their communal ownership rights
under the right to property, it left unclear whether this violation was pronounced with regard
to the individual members of the Ogiek or the Ogiek as a people.
201
In that judgment, the
197
This was underlined in the Partly Dissenting Opinion of Vice-President, Justice Thompson in Mohamed
Abubakari, supra n 74 at paras 9-10 and the Dissenting Opinion of Judge Rafâa Ben Achour, ibid. at paras 15-17.
198
Mujuzi, supra n 9 at 218-219.
199
Ibid.
200
African Commission on Human and Peoples’ Rights v Republic of Kenya, supra n 77 at para 152.
201
The ACtHPR reserved its judgment on reparations, which is currently pending. See African Commission on
Human and Peoples’ Rights v Republic of Kenya, supra n 77 at paras 128-131, 223. Cf. African Commission on
Human and Peoples’ Rights, Social and Economic Rights Action Center (SERAC) and Center for Economic and
Social Rights (CESR) v Nigeria 27 October 2001 at paras 60-67 in which the African Commission acknowledged

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ACtHPR took cognisance of the practice of the African Commission, the views and General
Comment of the ICESCR Committee and the case law of the IACtHR. This leaves one but to
wonder to what extent the practice of these bodies is of sufficient relevance to the ACHPR’s
broader and more promising provisions, which are not to be found in other human rights
treaties.
202
3.3.2 Fragmenting African Human Rights Law
Whereas the previous analysis addressed how the ACtHPR may raise legal concerns
regarding its engagement with other human rights treaties, the present subsection focuses on
the alleged risk of undermining the Charter due to differing interpretations of the Charter by
the ACtHPR and the ECCJ. This brings to the foreground the regional vis-à-vis the sub-
regional levels of analysis.
In the absence of a catalogue of human rights in the ECOWAS Revised Treaty, the
ECCJ decides human rights complaints by adopting the Charter as its standard of assessment.
203
It maintains that the Charter instantiates the ‘African regional human rights framework’.
204
The
ECCJ’s interpretation, application and monitoring of the Charter is seen by some as leading to
possibly diverging interpretations or conflicting judgments, and hence fragmentation of
African human rights law.
205
Moreover, the ACtHPR and the ECCJ could, in theory, impose
different obligations upon States which have accepted the ACtHPR’s competence to receive
individual complaints and are also ECOWAS member States.
206
Finally, this could also mean
that the same matter may be submitted consecutively before both courts. The ACHPR,
that the Ogoni peoples’ right to property, right to housing and right to a dignified life were violated as collective
human rights.
202
Cf. IACtHR, Kaliña and Lokono Peoples v Suriname 25 November 2015 at paras 107-114; Partially Dissenting
Opinion of Judge Alberto Pérez Pérez, ibid. at para 9.
203
According to Article 19(1) Protocol (A/P.1/7/91 on the Economic Community Court of Justice, 6 July 1991)
the ECCJ ‘shall apply the Treaty, the Rules of Procedure and, as necessary, Article 38 ICJ Statute’. The ECCJ
established its jurisdiction over the ACHPR by reference to Article 4(g) of the 1993 Revised Treaty of ECOWAS,
which reads: ‘the High Contracting Parties, in pursuit of the objectives stated in Article 3 of the Treaty solemnly
affirm and declare their adherence to the following principles: […] (g) recognition, promotion and protection of
human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’
Rights’.
204
ECCJ, Omar Jallow v Gambia 10 October 2017 at 10. See also ECCJ, Ugokwe v The Federal Republic of
Nigeria 7 October 2005 at para 29 available at:
http://www.chr.up.ac.za/images/files/documents/africancases/institution/ecowas/Jerry%20Ugokwe%20v%20Ni
geria.pdf (last accessed 12 August 2018).
205
For example, Ebobrah, ‘Critical Issues in the Human Rights Mandate of the ECOWAS Court of Justice’ (2010)
54 Journal African Law 1 at 14.
206
Four out of the seven ECOWAS member states are also subject to the ACtHRP’s jurisdiction: Benin, Burkina
Faso, Côte d’Ivoire, Ghana and Mali.

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however, does not have a provision precluding this scenario, and the Statute of the ECCJ
prohibits only the concurrent submission of an application concerning the same matter before
another international court.
207
It is striking how this discussion transplants the arguments and anxieties from the
context of general bodies/global courts vis-à-vis regional/specialised courts into the context of
regional vis-à-vis sub-regional courts on human rights. First, it is assumed that any tensions
and different approaches in the case law of the ACtHPR and the ECCJ are negative, even
though as previously discussed, such differences can be productive and meaningful, and in any
event, not detrimental. Another recurring theme revolves around the protection of the integrity
of the global and regional standards which are allegedly threatened by the regional/specialised
and sub-regional courts, respectively. One cannot fail to notice the irony of scholars who argue
that the inclusion of other (non-African treaties) into the jurisdiction of the ACtHPR
undermines the specificity of African human rights law (as discussed in the previous sub-
section) and, at the same time, dismiss the opportunity to have two African courts enhancing
the specificity of the regional bill of rights. The dominant perception in international law is that
other bodies should not engage with, construe or monitor other treaties; and that the global or
regional courts and standards are challenged or undermined by the regional and sub-regional
courts and standards, respectively.
208
Our frame of reference should not be that a court holds a
monopoly over its constitutive treaty. Neither the ACHPR nor the Protocol establishing the
ACtHPR confer exclusive jurisdiction to ACtHPR.
209
Our starting point should be, instead, that
international courts have a “shared ownership” over the regional bill of rights and pursue a
common endeavour.
210
Crucially, there is nothing in the case law of the courts to substantiate the concern about
lowering the standards of the regional bill of rights.
211
On the contrary, the two courts seem to
share a vision of exercising a “shared ownership” over the regional bill of rights which sets the
minimum standard. The use and application of the Charter by the ECCJ strengthens the clarity
207
Article 10(d) of Supplementary Protocol A/SP.1/01/05 Amending Protocol A/P.1/7/91 relating to the
Economic Community Court of Justice, 19 Jan 2005. Cf. Article 6(2) Protocol to the ACHPR and Article 56(7)
ACHPR. See discussion in Murungi and Gallinetti, supra n 94 at 126.
208
Viljoen, supra n 7 at 496, suggests that the ‘subregional courts follow the African Court’s interpretation, when
such an interpretation exists, or by working a system of referral to the African Court for interpretative guidance’.
Murungi and Gallinetti, supra n 94 at 135 argue that the ACHPR is in a hierarchical position vis-à-vis sub-regional
human rights instruments and, hence, the use of the ACHPR by the ECCJ blurs the normative hierarchy.
209
Ebobrah, supra n 117 at 11. See also in general Besson, supra n 141 at 425.
210
Helfer, supra n 75 at 349-353.
211
Murungi and Gallinetti, supra n 94 at 130.

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of international law and deepens human rights protection.
212
In general, the overlap between
the UN covenants and regional and sub-regional human rights law, and their respective
monitoring bodies, enhances the influence of the UN covenants in the domestic sphere of
African States and consolidates human rights standards.
213
The courts’ systematic engagement
with UN treaties, the references to and use of the practice of the HRC and the case law of other
regional courts on human rights point toward this direction.
214
In addition to this, important
and interesting issues (some of which have not found their way before the ACtHPR yet) are
being litigated before the ECCJ,
215
since the EECJ enjoys a broad jurisdiction and grants direct
access for individuals without a requirement to exhaust domestic remedies.
216
The subject
matter of cases heard by the ECCJ spans across slavery, electoral systems and the right to
political participation; independence of the judiciary; gender-based discrimination with regard
to inheritance rules; reparation for terrorism victims and procedural aspects of the right to life;
effective remedy; self-determination and natural resources.
As long as the ECCJ gives due regard to the pronouncements of the ACtHPR and the
African Commission, any tensions or differing interpretations shall be mitigated appropriately.
This, of course, goes both ways — the ACtHPR also needs to take the ECCJ’s judgments into
account with regard to the ECCJ’s pronouncements on both the Charter and other regional and
sub-regional treaties and instruments on human rights which form the African corpus juris.
The continental ACtHPR regularly applies and declares violations of regional treaties such as
the African Charter on Democracy,
217
and sub-regional treaties, including the ECOWAS
Revised Treaty,
218
the ECOWAS Democracy Protocol
219
and the Protocol to the African
Charter on Human and Peoples’ Rights of Women in Africa.
220
The absence of any discussion
on why it is only a sub-regional but not a regional court on human rights that may undermine
212
Alter, Helfer, and McAllister, supra n 5 at 778; Ebobrah, ‘Litigating Human Rights before Sub-Regional Courts
in Africa: Prospects and Challenges’ (2009) 17 African Journal of International & Comparative Law 79 at 88.
213
Besson, ‘The Influence of the Two Covenants on States Parties Across Regions: Lessons for the Role of
Comparative Law and of Regions in International Human Rights Law’ in Moeckli and Keller (eds), The Human
Rights Covenants at 50 - Their Past, Present, and Future (2018) 243 at 261-262, 269-273.
214
See footnotes 161–164 and accompanying text.
215
Alter, Helfer, and McAllister, supra n 5 at 738.
216
Cf. Article 10(d) of Supplementary Protocol A/S P.1/01/05 Amending Protocol A/P.1/7/91 relating to the
Economic Community Court of Justice, 19 Jan 2005 with Article 6(2) Protocol to ACHPR in conjunction with
Article 56(5) and (6) ACHPR and Rules 34 and 40, Internal Rules of the ACtHPR, supra n 67.
217
Actions pour la Protection des Droits de l’Homme, supra n 38.
218
Lohé Issa Konaté, supra n 72 at para 12; Abdoulaye Nikiema and Others, supra n 25.
219
Actions pour la Protection des Droits de l’Homme, supra n 38. See Jerome Bougouma and Others, supra n 113
at 3.
220
Dorothy Chioma Njemanze and 3 Ors, supra n 115 at 2–3.

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the African corpus juris reinforces the argument that unfounded, informal hierarchies among
international courts are very well entrenched in the way we survey the legal horizon.
4. Conclusions
The ACtHPR’s distinctive jurisdiction to interpret, apply and monitor not only the
ACHPR, but also other human rights treaties, gives rise to a unique institutional design in
judicial adjudication. It is expected that the subject matter of the complaints brought before the
Court will further diversify in the future, and that the Court will have more opportunities to
clarify the scope of its jurisdiction, as well as to nurture the specificities of the ACHPR and the
African corpus juris.
The present author does not find it, in principle, problematic that the UN and other
treaties may be justiciable and enforceable by a regional and specialised court on human rights,
since the ACtHPR has specifically been endowed with the authority to do so. More generally,
international courts should have as their frame of reference a vision of “shared ownership” over
international law. The analysis demonstrated that many international courts, including the ICJ,
are gradually adopting this framework. The possibility of divergent interpretations of similar
or identical rules of international law is largely overstressed in legal scholarship. Moreover,
differences in courts’ approaches also need to be appreciated as being productive and
meaningful and, in any event, not that detrimental.
Although many of the concerns expressed by international law scholars regarding the
exercise of the Court’s jurisdiction are generally overemphasised, the Court’s jurisdiction is
not without issues to address. The analysis highlighted certain difficulties regarding the concept
‘human rights treaty’ as a prerequisite for the Court to exercise its jurisdiction. The introduction
of propriety considerations to the ACtHPR’s jurisdiction is not deemed necessary or desirable.
The Court does not have a consistent case law, either. However, should the Court proceed with
adopting a judicial policy of not examining all complaints concerning other human rights
treaties, it is strongly advised to clarify concrete criteria for making such a choice. Finally, the
development of the ACHPR’s standards and the construction of a regional human rights corpus
juris have nothing to fear from the wide jurisdiction of the ACtHPR (or the ECCJ); rather, the
Court be cautious of the relevance and weight attached to other treaties, and the jurisprudence
of other international courts and bodies in the context of the interpretation process of the
Charter.

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A critical factor that will determine the Court’s role, the development of a sustainable
jurisprudence, compliance on behalf of the respondent States and a possible increase of the
number of States accepting the Court’s jurisdiction is the quality of its judgments.
221
This
includes the clarity of its reasoning, and the comprehensiveness of the grounds of its decisions.
The Court needs to address all points raised by the parties to a case in a satisfactory manner,
and to properly deal with issues pertaining to its jurisdiction.
222
221
For the ECtHR, see Merrills, The Development of International Law by the European Court of Human Rights,
2nd edn (1993) at 21; for the ICJ, see Lauterpacht, The Development of International Law by the International
Court (1958) at 37-44 and Damrosch, ‘Article 56’ in Zimmermann, Tomuschat and Oellers-Frahm (eds), The
Statute of the International Court of Justice — A Commentary, 2nd edn (2012) 1366, at 1374-1375.
222
Murray, ‘A Comparison between the African and European Courts of Human Rights’ (2002) 2 African Human
Rights Law Journal 195 at 220.