The Status of New Rights before the African Human Rights Commission and Court

Abstract

In 1986, the United Nations General Assembly (UNGA) adopted Resolution 41/120, which provides quality control for introducing new rights under international law. Under the Resolution, five criteria
must be fulfilled: the new rights must (1) be consistent with existing international human rights; (2) be of fundamental character; (3) be sufficiently precise; (4) provide realistic and effective implementation; and (5) attract broad international support. Despite this heightened standard, the effort to introduce new rights has continued in the 21st century, with more than fifty new rights in queue. These new rights are either derivative from existing rights or freestanding. For its part, the UNGA seems to have been abiding by the UNGA resolution’s quality control practice. Over the last twelve years, it has recognized only two new rights through its resolutions—the right to a clean, healthy, and sustainable environment in 2022 and the right to water and sanitation in 2010.

This method of recognizing new rights through UNGA resolutions raises an issue. On the one hand, UNGA resolutions are generally not binding under international law. On the other hand, the meticulousness and the time taken by the UNGA before recognizing these new rights could lead to the view that those rights have become customary international human rights norms. Yet, any attempt to argue that all new rights recognized by the UNGA through its resolutions have become customary international law is likely to be controversial.

Notwithstanding any controversy on the status of new rights recognized through UNGA resolutions, this Article argues that the African Commission and Court on Human and Peoples’ Rights, as quasi-judicial and judicial bodies respectively, may give effect to the new rights as contained in UNGA resolutions. Because human rights quasi-judicial and judicial bodies must be reliable and must apply clear principles of international law to ensure compliance from States, this Article delves into the existing jurisprudence of the African Commission and Court to find the basis for giving effect to those new rights contained in UNGA resolutions. The Article finds two ways in which the African Commission and Court may recognize new rights: Article 60 of the African Charter or by using a derivative method

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[147]
MUJIB JIMOH*
The Status of “New Rights” Before the
African Human Rights Commission and Court
Abstract ............................................................................................ 148
Introduction ...................................................................................... 149
I. Overview of New Rights ....................................................... 153
A. The Concept of New Rights .......................................... 154
B. Criticisms of New Rights ............................................... 159
II.The Status of New Rights Contained in UNGA Resolutions
Before the African Human Rights Commission and Court .. 162
A. The African Commission ............................................... 163
1. Principles for the Recognition of New Rights by
the African Commission .......................................... 164
2. Approaches for the Recognition of New Rights ...... 168
3. Arguments for and Against the Approaches ............ 170
4. Limitations to the Approaches ................................. 171
B. The African Court .......................................................... 174
1. The Jurisdiction of the African Court ...................... 174
2. The African Court’s Basis for the Recognition of
New Rights in UNGA Resolutions .......................... 175
3. Concern About the Recognition of New Rights in
UNGA Resolutions by the African Court ................ 176
Conclusion ....................................................................................... 177
*Mujib Jimoh, LL.B. (First Class); B.L., LL.M. (Duke University School of Law); Judy
Horowitz Scholar and Salzburg Cutler Fellow in International Law. I thank Professors
Laurence L. Helfer, Jayne Huckerby, Aya Fujimura-Fanselow, and Monica Iyer for critical
discussions. However, the views expressed here are solely mine.

148 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
ABSTRACT
In 1986, the United Nations General Assembly (UNGA) adopted
Resolution 41/120, which provides quality control for introducing
new rights under international law. Under the Resolution, five criteria
must be fulfilled: the new rights must (1) be consistent with existing
international human rights; (2) be of fundamental character; (3) be
sufficiently precise; (4) provide realistic and effective implementation;
and (5) attract broad international support. Despite this heightened
standard, the effort to introduce new rights has continued in the 21st
century, with more than fifty new rights in queue. These new rights are
either derivative from existing rights or freestanding. For its part, the
UNGA seems to have been abiding by the UNGA resolution’s quality
control practice. Over the last twelve years, it has recognized only two
new rights through its resolutions—the right to a clean, healthy, and
sustainable environment in 2022 and the right to water and sanitation
in 2010.
This method of recognizing new rights through UNGA resolutions
raises an issue. On the one hand, UNGA resolutions are generally not
binding under international law. On the other hand, the meticulousness
and the time taken by the UNGA before recognizing these new rights
could lead to the view that those rights have become customary
international human rights norms. Yet, any attempt to argue that all
new rights recognized by the UNGA through its resolutions have
become customary international law is likely to be controversial.
Notwithstanding any controversy on the status of new rights
recognized through UNGA resolutions, this Article argues that the
African Commission and Court on Human and Peoples’ Rights, as
quasi-judicial and judicial bodies respectively, may give effect to the
new rights as contained in UNGA resolutions. Because human rights
quasi-judicial and judicial bodies must be reliable and must apply
clear principles of international law to ensure compliance from States,
this Article delves into the existing jurisprudence of the African
Commission and Court to find the basis for giving effect to those new
rights contained in UNGA resolutions. The Article finds two ways in
which the African Commission and Court may recognize new rights:
Article 60 of the African Charter or by using a derivative method.

2024] The Status of “New Rights” Before the 149
African Human Rights Commission and Court
INTRODUCTION
he idea of “new rights” stems from the view that to address
contemporary issues, human rights should be constantly updated
to keep up with changing circumstances. Over the years, the United
Nations General Assembly (UNGA) has advanced new rights through
its resolutions, while academics have proposed similar rights through
legal scholarship. For instance, during the seventy-sixth session of
the UNGA in July 2022, the UNGA adopted a resolution recognizing
a new right—the “right to a clean, healthy and sustainable
environment.”1 The resolution was approved by 161 Member States
with no votes against it.2 Prior to this, the United Nations Human Rights
Council (UNHRC) had adopted a resolution recognizing the right
during its forty-eighth session in 2021.3 The UNHRC resolution, too,
was widely supported by “more than 1,300 civil society organizations
. . . 15 UN agencies . . . and the Global Alliance of National Human
Rights Institutions.”4 The Preamble to the UNGA resolution notes that
the right had already been recognized by a vast majority of States and
that the right is contained in national constitutions, legislation,
international agreements, laws, and policies.5 But the resolution does
not state with specificity which treaties or constitutions recognized the
right, nor does it expressly declare the right as part of the customary
international law of human rights. The silence of the resolution on these
points has implications under international law with respect to how
States, treaty bodies, and regional human rights commissions and
courts will recognize the right.
This Article aims to address the international law implications of
new rights declared by UNGA resolutions. Specifically, when a new
right is recognized under international human rights law through a
UNGA resolution, what is its status before the African human rights
1See G.A. Res. 76/300, The Human Right to a Clean, Healthy and Sustainable
Environment (July 28, 2022).
2However, eight States abstained. UNGA Recognizes Human Right to Clean,
Healthy, and Sustainable Environment, IISD (Aug. 3, 2022), https://sdg.iisd.org/news/unga
-recognizes-human-right-to-clean-healthy-and-sustainable-environment [https://perma.cc
/U43B-V599].
3See Human Rights Council Res. 48/13, The Human Right to a Clean, Healthy and
Sustainable Environment (Oct. 8, 2021).
4UN Body Adopts Universal Right to Healthy Environment, IISD (Nov. 4, 2021), https://
sdg.iisd.org/news/un-body-adopts-universal-right-to-healthy-environment [https://perma
.cc/FJ86-PW69].
5G.A. Res. 76/L.75, para. 19 (July 26, 2022).
T

150 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
commission6 and court?7 At the domestic level, the answer to this
question might be inconsistent: If the new right is not part of customary
international law,8 a rule of jus cogens,9 or contained in any treaty in
force,10 the domestic court may choose not to enforce the new right.11
Or, the court may choose to enforce it.12 For international human rights
commissions and courts, the reliability of their practice is germane to
ensure compliance with their decisions.13 As such, they might want to
6The African Commission on Human and Peoples’ Rights (the African Commission)
was established by the African Charter on Human and Peoples’ Rights. African Charter on
Human and Peoples’ Rights, art. 30, June 27, 1981, 1520 U.N.T.S. 217 [hereinafter African
Charter].
7The African Court on Human and Peoples’ Rights (hereinafter the African Court)
was established by the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights. Protocol to the
African Charter on Human and Peoples’ Rights on the Establishment of an African Court
on Human and Peoples’ Rights, art. 1, June 10, 1998, https://au.int/sites/default/files/treaties
/36393-treaty-0019_-_protocol_to_the_african_charter_on_human_and_peoplesrights_on
_the_establishment_of_an_african_court_on_human_and_peoples_rights_e.pdf [https://
perma.cc/JAV5-XB4Y] [hereinafter Protocol].
8See Richard B. Lillich, The Growing Importance of Customary International Human
Rights Law, 25 GA. J. INT’L & COMPAR. L. 1, 1 (1996). See generally Thomas Buergenthal,
The Evolving International Human Rights System, 100 AM. J. INT’L L. 783 (2006).
9A jus cogens norm is a peremptory rule of international law that means the international
law shall prevail over any conflicting rule or agreement. Such a norm permits no derogation
and may “be modified only by a subsequent norm . . . [of] the same character.” See Mujib
Jimoh, U.N. Resolutions as “Hard-Law” in Armed Conflict, 51 S. U. L. REV. (forthcoming
2024); Magdalena Matusiak-Fracczak, Jus Cogens Revisited, 26 REV. COMPAR. L. 55, 56
(2016); Anthony J. Colangelo, Procedural Jus Cogens, 60 COLUM. J. TRANSNAT’L L. 377,
379 (2022).
10 See MALCOLM N. SHAW, INTERNATIONAL LAW 95 (6th ed. 2008) (“[P]arties that do
not sign and ratify the particular treaty in question are not bound by its terms.”). See
generally Arthur M. Weisburd, The Effect of Treaties and Other Formal International Acts
on the Customary Law of Human Rights, 25 GA. J. INT’L & COMPAR. L. 99 (1996).
11 See Legal Resources Foundation v. Zambia, Communication 211/98, African
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 60 (Apr. 23, 2001),
https://achpr.au.int/en/decisions-communications/legal-resources-foundation-zambia-21198
[https://perma.cc/N3T5-54MC] (“[I]nternational treaties which . . . are not part of domestic
law and which may not be directly enforceable in the national courts . . . .”) (emphasis
added).
12 Domestic courts may give effect to some rights contained in U.N. resolutions. See
Gregory J. Kerwin, The Role of United Nations General Assembly Resolutions in
Determining Principles of International Law in United States Courts, 32 DUKE L.J. 876,
884 (1983) (“United States Court of Appeals for the Second Circuit, in Filartiga v. Pena-
Irala, also accorded significant weight to UN General Assembly Resolutions.”). See also
Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens and
General Principles, 12 AUSTL. Y.B. INT’L. L. 82, 86 (1988).
13 See Joseph Raz, Human Rights in the Emerging World Order, 1 TRANSNAT’L L.
THEORY 31, 43 (2010); LI-ANN THIO, THE HERITAGE FOUND., EQUALITY AND NON-
DISCRIMINATION IN INTERNATIONAL HUMAN RIGHTS LAW 23 (2020).

2024] The Status of “New Rights” Before the 151
African Human Rights Commission and Court
steer clear of the inconsistent domestic approach by reliably giving
effect to the new rights. To do otherwise may be bad for human rights
advocacy because it could truncate efforts to address contemporary
problems with the new rights. But if human rights commissions and
courts are to recognize and uphold the new rights passed through a
UNGA resolution, they must do so within the established principles of
international law, and not capriciously.14
Additionally, if the new rights contained in the UNGA resolutions
arise without becoming part of customary international law,15 the
available literature on the binding nature of UNGA resolutions posits
that they are, generally, not binding in international law.16
This Article aims to find ways by which new rights adopted in
UNGA resolutions may be recognized within the African human rights
system. Article 60 of the African Charter provides that both the African
14 It is important for human rights commissions and courts to ground their decisions on
clearly known principles. See Christof Heyns, The African Regional Human Rights System:
In Need of Reform?, 2 AFR. HUM. RTS. L.J. 155, 158 (2001) (“[T]he rule of law demands
that law is predictable, and as a result words used in legal texts should be given their ordinary
meaning as far as is possible. To retain its integrity, the [African] Charter should in this
sense be understood to say what it means, and to mean what it says. Where there are
deviations, these need to be rectified, even if that means that the Charter has to be
amended.”).
15 There is a possibility that this will occur. To Swanson, new rights are developed at the
international level, possibly by a Treaty Body. See Julia Swanson, The Emergence of New
Rights in the African Charter, 12 N.Y. L. SCH. J. INT’L. & COMPAR. L. 307, 315 (1991)
(“The new rights, on the other hand, are conceived directly in international fora, where they
are presented for endorsement as rights, before they have received the benefit of careful
prior scrutiny.”).
16 See, e.g., Stephen M. Schwebel, The Effect of Resolutions of the U.N. General
Assembly on Customary International Law, 73 AM. SOC’Y. INT’L. L. PROC. 301 (1979).

152 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
Commission17 and the African Court18 may “draw inspiration from . . .
instruments adopted by the United Nations”19 in performing their
mandates.20 Does this “inspiration” extend to recognizing a new right,
as set out in a UNGA resolution, within the African human rights
system? To answer this question, this Article will draw upon the
existing principles of international law applicable to the African
Commission and Court.
This Article is divided into three parts. After this introduction, Part
I will discuss the concept of “new rights.” This Part will be divided into
two sections. Its first section will be an overview of new rights, whereas
the second section will consider the criticisms leveled against the
introduction of new rights. Part II examines the status of new rights
contained in UNGA resolutions before the African Commission and
Court. This Part will be broadly divided into two sections. Section A
provides a brief overview of and discusses the principles, approaches,
and arguments for and against the recognition of new rights. Section B
focuses on the African Court. It provides a brief overview of the Court
and examines its jurisdiction under the Protocol establishing it and its
17 Article 60 of the African Charter expressly refers to the “Commission.” African
Charter, supra note 6, art. 60. This is because the African Court was not included in the
African Charter but came later via the Protocol. Compare Swanson, supra note 15, at 330
(“Lastly, the African Charter does not provide a court system for the settlement of
disputes. . . . The authors of the Charter insisted that this feature, like much of the Charter,
is more suited to traditional methods of settling disputes through friendly arbitration than to
the adversarial approach of the West.”), with Gina Bekker, The African Court on Human
and Peoples’ Rights: Safeguarding the Interests of African States, 51 J. AFR. L. 151, 171
(2007) (“[African States] were more concerned with sovereignty and the maintenance of the
status quo than with the protection of the individuals and groups within the state. This is
evidenced by the manner in which the African Charter is framed, providing for a weak
enforcement mechanism (the African Commission) that is lacking in funding and
independence, largely subservient to the political machinery of the OAU/AU, and unable to
provide meaningful redress to victims of human rights abuses.”). Swanson’s view seems to
have more support. See generally Rachel Murray & Debra Long, Monitoring the
Implementation of Its Own Decisions: What Role for the African Commission on Human
and Peoples’ Rights?, 21 AFR. HUM. RTS. L.J. 836, 837 (2021).
18 See Protocol, supra note 7, art. 3. Although Article 60 of the African Charter expressly
mentions the “Commission,” it is equally applicable to the African Court; African Charter,
supra note 6, art. 60. See also Laurence Burgorgue-Larsen, “Decompartmentalization”: The
Key Technique for Interpreting Regional Human Rights Treaties, 16 INT’L. J. CONST. L.
187, 191 (2018) (“This interpretation function naturally expanded to the African Court
following the adoption of the Protocol on its establishment.”).
19 For discussion on such instruments, see infra Section II.A.1.
20 The African Commission has four mandates. African Charter, supra note 6, art. 45.
For discussion on the mandate, see Mujib Jimoh, A Critique of the Seizure Criteria of the
African Commission, 22 AFR. HUM. RTS. L.J. 362, 365–66 (2022). The African Court has
only the protective mandate. See Protocol, supra note 7, art. 2.

2024] The Status of “New Rights” Before the 153
African Human Rights Commission and Court
Rules of Procedure. It also considers the African Court’s basis for
recognizing new rights contained in any UNGA resolutions and related
concerns regarding such recognition. I will then conclude that the
African Commission and Court may utilize two methods to recognize
the new rights. They may use Article 60 of the African Charter or adopt
a derivative approach, whereby the new rights are derived from the
existing rights in the African Charter.
I
OVERVIEW OF NEW RIGHTS
The concept of “new rights” implies the introduction of novel,
contemporary human rights to existing human rights. International law,
however, requires some conditions that must be fulfilled for new rights
to emerge. The new rights must be consistent with existing
international human rights; be of fundamental character; be sufficiently
precise; provide realistic and effective implementation; and attract
broad international support.21
Aside from these criteria, there are two views on how these new
rights may originate under international law. One view is that new
rights germinate from the domestic system. According to Julia
Swanson, a right must undergo a “maturation process” from the
domestic system, which may take many years to complete—either
through litigation, refinement, or revision—before introduction to the
international order.22 Swanson’s view presupposes that, prior to being
introduced and recognized by the international community, legitimate
new rights should have already become popular at the domestic level.23
If we agree with this view, it would make little difference that these
new rights are contained in a UNGA resolution, as the notoriety of the
new rights domestically may invite the view that the new rights have
become a norm of customary international human rights, with the
UNGA resolution serving as evidence. Yet, it is controversial to claim
that once a new right is recognized by the UNGA through a resolution,
21 G.A. Res. 41/120, Setting International Standards in the Field of Human Rights, para.
4 (Dec. 4, 1986). See also Barbara Stark, Conceptions of International Peace and
Environmental Rights: “The Remains of the Day,” 59 TENN. L. REV. 651, 672 (1992).
22 Swanson, supra note 15, at 315.
23 See, e.g., G.A. Res. 76/L.75, supra note 5, para. 19. See also UNGA Recognizes
Human Right to Clean, Healthy, and Sustainable Environment, supra note 2 (noting that the
right to a clean, healthy, and sustainable environment is said to have been “five decades in
the making”).

154 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
that right has become part of customary international human rights
norms.24 The second view is a flexible approach to originating new
rights. Under this approach, new rights may either originate from the
domestic system or from international bodies.25
The following Section provides a background on the concept of new
rights. It discusses issues such as the approaches for new rights, the
U.N. requirements for the recognition of new rights, and the new rights
in queue awaiting recognition. The Section concludes by examining the
criticisms leveled against the concept of new rights.
A. The Concept of New Rights
New rights are said to be new in the sense that they are nonexistent
“when first conceived.”26 Swanson credits the idea of “new rights” to
Karel Vasak27—which Vasak termed the “third generation of human
rights.”28 To Vasak, these rights,
are new in that they may both be invoked against the State and
demanded of it; but above all (and herein lies their essential
characteristic) they can be realized only through the concerted efforts
of all the actors on the social scene: the individual, the State, public
and private bodies and the international community.29
The need for new rights is rooted in the notion that law changes, and
that human rights law should not be an exception30—moreover, the
24 There are debates on whether there are such things as customary human rights norms.
See Hugh Thirlway, Human Rights in Customary Law: An Attempt to Define Some of
the Issues, 28 LEIDEN J. INT’L. L. 495 (2015). See also WILLIAM A. SCHABAS, THE
CUSTOMARY INTERNATIONAL LAW OF HUMAN RIGHTS (2021); Brandon L. Garrett et al.,
Closing International Law’s Innocence Gap, 95 S. CAL. L. REV. 311, 350–51 (2021).
Although scholars do not express the view that new rights must be recognized as customary
international law before giving them recognition, they express the view that the new rights
should enjoy “acceptance by ‘states and international bodies.’” Id.
25 Kerstin von der Decken & Nikolaus Koch, Recognition of New Human Rights:
Phases, Techniques and the Approach of ‘Differentiated Traditionalism,’ in THE
CAMBRIDGE HANDBOOK OF NEW HUMAN RIGHTS: RECOGNITION, NOVELTY, RHETORIC 7,
8 (Andreas von Arnauld et al. eds., 2020).
26 Id.
27 Swanson, supra note 15, at 310–12. See Stephen P. Marks, Emerging Human Rights:
A New Generation for the 1980s?, 33 RUTGERS L. REV. 435, 441 (1981). See also Carolina
Pereira Saez, New Rights: The End of an Era?, 76 PERSONA & DERECHO 93 (2017) (calling
new rights “fourth generation”).
28 Marks, supra note 27, at 441.
29 Id. (third emphasis added).
30 Luisa Netto, Criteria to Scrutinize New Rights: Protecting Rights Against Artificial
Proliferation, 8 REVISTA DE INVESTIGACOES CONSTITUCIONAIS 11, 11 (2021) (“[T]he
recognition of implicit and new rights appears unavoidable and desirable as history and its
evolving circumstances permanently present new challenges to human dignity.”).

2024] The Status of “New Rights” Before the 155
African Human Rights Commission and Court
Universal Declaration of Human Rights (UDHR), the International
Convention on Civil and Political Rights (ICCPR), and the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) are not perfect as they do not capture human rights needed
to address all contemporary problems.31
Von der Decken and Koch posit that new rights emerge in three
phases—the idea, the emergence, and full recognition—noting,
however, that these phases are not rigid.32 If new rights can emerge
without fulfilling all three phases,33 Swanson’s “maturation process”
will seem to conflict with these flexible phases, as there is nothing
preventing international organizations or a treaty body from originating
nonexistent new rights directly.34 But this may be replete with
challenges at the domestic level, which may require the new rights to
be codified in the nation’s constitution before recognition.35 At the
regional human rights level, however, waiting for such codification
before recognition will be unhelpful; States already have recognized
doctrines—clawback clauses in Africa,36 Margin of Appreciation in
Europe37—which could be used to confine even existing human
rights.38
31 Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century, 16 HUM.
RTS. L. REV. 409, 431 (2016).
32 von der Decken & Koch, supra note 25, at 8 (“The lines between the phases will
remain blurred and, hence, so will any claim at ‘localising’ a right subject to dispute.”).
33 Id. (“Furthermore, not all human rights go through all phases: some may be brought
to full recognition directly (e.g., by a groundbreaking judgment and thus, more or less,
skipping the ‘phase of emergence’, [sic] as seen with the right to be forgotten as developed
by the European Court of Human Rights (ECtHR)).”).
34 Mart Susi, Novelty in New Human Rights: The Decrease in Universality and
Abstractness Thesis, in THE CAMBRIDGE HANDBOOK OF NEW HUMAN RIGHTS:
RECOGNITION, NOVELTY, RHETORIC 21, 23 (Andreas von Arnauld et al. eds., 2020).
35 Netto, supra note 30, at 42 (“They are not born as constitutional norms; if they carry
substantial fundamentality, they ought to be constitutionalized.”).
36 For discussion, see Mujib Jimoh, Investigating the Responses of the African
Commission on Human and Peoples’ Rights to the Criticisms of the African Charter, 4
RUTGERS INT. L. & HUM. RTS J. (forthcoming 2024). See also Gino J. Naldi, Limitation of
Rights Under the African Charter on Human and Peoples’ Rights: The Contribution of the
African Commission on Human and Peoples’ Rights, 17 S. AFR. J. HUM. RTS. 109, 109
(2001).
37 See generally Andreas Follesdal & Nino Tsereteli, The Margin of Appreciation in
Europe and Beyond, 20 INT’L. J. HUM. RTS. 1055 (2016).
38 Richard Gittleman, The African Charter on Human and Peoples’ Rights: A Legal
Analysis, 22 VA. J. INT’L L. 667, 692 (1982).

156 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
Proponents of new rights argue that their introduction presupposes
the “inadequacy of protection thesis”39: either (1) that there is a lacuna
in the implementation of the “established human rights” because it does
not cover a certain group of people40 or (2) that the existing human
rights are insufficient to address certain social goals.41 Thus, new rights
are thought to be important to address contemporary problems that the
existing rights cannot address. Scholars have explored different
methods and approaches to ground the basis for recognizing new rights.
For instance, von der Decken and Koch discuss the “Treaty Approach,”
the “Customary International Law Approach,” and the “Derivation
Approach”;42 while Susi discusses the “Epistemic Aspect” and the
“Ontic Aspect”43—it seems that both the “Derivative” and
“Freestanding” approaches have incorporated all these approaches.44
Under the Derivation Approach, the new rights will be extracted
from existing rights,45 showing some form of “intersection” between
the new rights and the existing ones.46 For example, the African
Commission extracted the right to food47 and the right to water and
39 Susi, supra note 34, at 22.
40 Id. at 33. See Corina Heri, Justifying New Rights: Affectedness, Vulnerability, and the
Rights of Peasants, 21 GERMAN L.J. 702 (2020) (discussing the basis for the clamor for the
rights of peasants).
41 Id. See also Garrett et al., supra note 24, at 332–34.
42 von der Decken & Koch, supra note 25, at 11.
43 Susi, supra note 34, at 21.
44 For discussion, see Garrett et al., supra note 24, at 332. The Freestanding Approach
is also called the Stand-Alone Approach. For usage of both concepts, see id. at 334.
45 For discussion on the various methods of extraction, see id. at 333 (“The process
deriving a ‘new’ right involves ‘identifying previously unarticulated aspects of old human
rights’ or articulating ‘newly recognized aspects of existing rights.’ . . . There are different
means by which such derivative processes occur. Evolutive interpretation that recognizes
human rights treaties as ‘living instruments’ is one of the most common methods.”).
46 See Lea Shaver, The Right to Read, 54 COLUM. J. TRANSNAT’L L. 1, 49 (2015) (“It is
possible, however, to locate the right to water at the intersection of previously recognized
rights to life, health, food, and an adequate standard of living.”).
47 Soc. & Econ. Rts. Action Ctr. (SERAC) v. Nigeria, Communication 155/96, African
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶¶ 64–65 (May
27, 2002), https://achpr.au.int/en/decisions-communications/social-and-economic-rights
-action-center-serac-and-center-economic-15596 [https://perma.cc/A7Q6-SERS].

2024] The Status of “New Rights” Before the 157
African Human Rights Commission and Court
sanitation48 from the existing human rights in the African Charter.49 As
for the Freestanding Approach, new rights that are “stand-alone” are
developed independent of existing human rights,50 perhaps because,
even with evolutive and liberal implementation and interpretation of
the existing human rights,51 certain social goals cannot be derived.52 No
attempt has been made by the African Commission or Court to adopt
the Freestanding Approach to recognize a new right within the African
human rights system.
In the 1980s and 1990s, there were numerous new rights in the
queue. For instance, Professor Philip Alston provided a list of twenty
new rights proposed by Galtung and Wirak53 and the International
Association of Democratic Lawyers.54 However, only seven of them
48 See Free Legal Assistance Group v. Democratic Republic of Congo, Communication
25/89, 47/90, 56/91, 100/93, African Commission on Human and Peoples’ Rights
[Afr. Comm’n H.P.R.], ¶ 47 (Apr. 4, 1996), https://achpr.au.int/index.php/en/decisions
-communications/free-legal-assistance-group-lawyers-committee-human-rights-union
-interafr [https://perma.cc/FJY2-R48S].
49 The right to food is derived from arts. 4, 16, and 22. The right to water and sanitation
was derived from arts. 4, 5, 15, 16, 22, and 24. African Charter, supra note 6. See African
Commission on Human and Peoples’ Rights (ACHPR), Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights in the African Charter on Human
and Peoples’ Rights, at 48, 51 [hereinafter Principles and Guidelines], https://archives.au
.int/bitstream/handle/123456789/2063/Nairobi%20Reporting%20Guidelines%20on%20
ECOSOC_E.pdf?sequence=1&isAllowed=y [https://perma.cc/RVY3-QX7H].
50 Susi, supra note 34, at 32.
51 Garrett et al., supra note 24, at 333.
52 Id. at 334.
53 Philip Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, 78
AM. J. INT’L L. 607, 610 (1984) (“[T]he right to sleep; the right not to be killed in a war; the
right not to be exposed to excessively and unnecessary heavy, degrading, dirty and boring
work; the right to identity with one’s own work product, individually or collectively (as
opposed to anonymity); the right to access to challenging work requiring creativity; the right
to control the surplus resulting from the work product; the right to self-education and
education with others (as opposed to schooling); the right to social transparency; the right
to co-existence with nature; the right to be a member of some secondary group (not
necessarily the family); the right to be a member of some secondary group (not necessarily
the nation); the right to be free to seek impressions from others (not only from media); and
the right to be free to experiment with alternative ways of life.”).
54 Id. at 611 (“[T]he right of every individual and people to permanent peace; the right
of every individual to enjoy the highest attainable standard of physical and mental health,
and in particular, the right to freedom from genetic mutation or damage; the right of all
individuals and peoples to an environment of such quality as to enable them to live with
dignity and enjoy a state of well-being; the right of all individuals and peoples to live in a
peaceful region which is to become neither the theater of an armed conflict nor the subject
of that conflict; the right of every individual and all peoples to live in freedom from threats;
the right of all individuals and peoples to disarmament; and the right of all individuals and
peoples to progress and development.”).

158 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
were thought to be “serious candidates.”55 Alston, Stephen Marks, and
Swanson were part of the earliest scholars to discuss the concept of new
rights under international human rights law. The effort to introduce
more new rights by scholars56 and the UNGA57 has continued in the
twenty-first century and is unrelenting.58 In recent years, due to the
advent of modern technology, other rights joined the queue. Now, there
are recurring arguments to include new rights for some vulnerable
peoples, like the LGBTQIA community, people with HIV/AIDS,
children born of wartime rape, Indian Dalits, etc.59
In a recent work, twenty broad new rights are discussed by various
human rights scholars.60 Other new rights contained in recent
scholarship include the right to have descendants,61 the right to a green
55 See Swanson, supra note 15, at 313 (“[T]he right to development, the right to the
environment, the right to peace, the right to communicate, to right to share in the common
heritage of mankind, the right to be different, and the right to receive humanitarian
assistance.”).
56 Andreas von Arnauld & Jens T. Theilen, Rhetoric of Rights: A Topical Perspective on
the Functions of Claiming a ‘Human Right to…,’ in THE CAMBRIDGE HANDBOOK OF NEW
HUMAN RIGHTS: RECOGNITION, NOVELTY, RHETORIC 34 (Andreas von Arnauld et al. eds.,
2020).
57 The UNGA recognized two new rights in the last twelve years—the right to a clean,
healthy, and sustainable environment and the right to water and sanitation. The right to water
and sanitation was recognized by G.A. Res. 646/292, The Human Right to Water and
Sanitation (Aug. 3, 2010).
58 von Arnauld & Theilen, supra note 56, at 34 (discussing the various new rights
proposed).
59 See MARTA CARTABIA, THE AGE OF “NEW RIGHTS” 9 (2010); Clifford Bob,
Introduction: Fighting for New Rights, in THE INTERNATIONAL STRUGGLE FOR NEW
HUMAN RIGHTS 13 (Clifford Bob ed., 2009).
60 These are right to water; right to housing and land; right to health; right to a clean
environment and rights of the environment; rights of older persons; rights to gender identity;
rights of indigenous people; animal rights; right to internet access; the right to be forgotten;
reproductive rights; genetic rights; right to bodily integrity; right to mental integrity; rights
relating to enforced disappearance; right to democracy; right to diplomatic and consular
protection; right to good administration; the right to freedom from corruption; and the
right of access to law. See THE CAMBRIDGE HANDBOOK OF NEW HUMAN RIGHTS:
RECOGNITION, NOVELTY, RHETORIC v–ix (Andreas von Arnauld et al. eds., 2020)
[hereinafter THE CAMBRIDGE HANDBOOK].
61 Miguel Ángel Presno Linera, Derechos fundamentals, derecho europeo y derecho de
familia: Nuevas familias, nuevos derechos [Fundamental Rights, European Law, and
Family Law: New Families, New Rights], 6 DIREITOS FUNDAMENTAIS & JUSTICA 33 (2009)
(Braz.).

2024] The Status of “New Rights” Before the 159
African Human Rights Commission and Court
future,62 the right to be able to live,63 a right not to be left alone,64 and
even a “right to be loved.”65 Netto recently developed a list of eight
criteria to test whether a new right is fundamental.66 Chief among them
is the notion that new rights must aim to complement and have some
form of relationship with the right to human dignity.67 However,
whether all new rights must be tied to the right to human dignity is not
within the scope of this Article.68
B. Criticisms of New Rights
The idea of new rights is not without controversy and division
among scholars and commentators.69 Yet, proponents have constantly
maintained that there is no clear basis for the controversy, citing the
introduction of new rights to the African Charter as proof of their
success.70 Criticisms against new rights have been really harsh.71 But
sometimes, the criticisms have been mild.72
Perhaps the most prominent of the criticisms is the notion that new
rights will cause human rights inflation73 due to their proliferation.74
62 See generally RICHARD HISKES, THE HUMAN RIGHTS TO A GREEN FUTURE:
ENVIRONMENTAL RIGHTS AND INTERGENERATIONAL JUSTICE (2009).
63 V. Ramaswamy, A New Human Rights Consciousness, 9 NETH. Q. HUM. RTS. 50
(1991).
64 Lisa Grans, A Right Not to Be Left Alone – Utilising the Right to Private Life to Prevent
Honour-Related Violence, 85 NORDIC J. INT’L. L. 169, 169 (2016).
65 See S. MATTHEW LIAO, THE RIGHT TO BE LOVED (2015). See also von Arnauld &
Theilen, supra note 56 (discussing other rights).
66 Netto, supra note 30, at 45 (noting that “fundamentality” is a requirement under U.N.
GA Resolution 41/120). See Garrett et al., supra note 24, at 349–50.
67 Netto, supra note 30, at 45 (“[I]n the testing process, the argumentation burden ought
to be adequately fulfilled showing that the new right is required by or enhances the
protection and the promotion of human dignity.”).
68 For instance, it seems that Unger’s new right of immunity contains some elements not
related to dignity. See Andrew Halpin, New Rights for Old, 53 CAMBRIDGE L.J. 573, 575
(1994).
69 See Swanson, supra note 15, at 312 n.41.
70 Id. at 315.
71 Id. at 312 n.41.
72 Hannum, supra note 31, at 412 (“[W]e should welcome this process, although
proclaiming too many new norms without ensuring that meaningful consensus exists within
all regions of the world can be problematic, as discussed further in the section on new
rights.”).
73 von Arnauld & Theilen, supra note 56.
74 See Bridget Lewis, Quality Control for New Rights in International Human Rights
Law: A Case Study of the Right to a Good Environment, 33. AUSTL. Y.B. INT’L L. 55, 57–
58 (2015).

160 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
Human rights inflation is the condition of devaluing human rights as a
result of producing “too much bad human rights currency.”75 When the
proliferation is left unchecked, new rights can potentially weaken the
“legal and political worth” of human rights.76
Another popular criticism is that new rights share a close
relationship with economic, social, and cultural rights (ESCRs), which
are themselves controversial.77 Though ESCRs have been recognized
under international law,78 they still continue to generate many
concerns.79 Prominent amongst these concerns are that they are
undemocratic;80 that they are dependent on the availability of
resources;81 and that they are still valued less than negative rights
(civil and political rights),82 so, they are “at best, programmatic ideals
realisable at the discretion of governments.”83 Notwithstanding these
concerns, it has been advocated that these should generally not deter
the formulation of new rights, as these are generic concerns for
ESCRs,84 with proof that civil and political rights also face similar
concerns.85
75 James Nickel, Human Rights, in SANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward
N. Zalta ed., 2021).
76 Netto, supra note 30, at 63.
77 Ramaswamy, supra note 63.
78 Danwood M. Chirwa, Access to Water as a New Right in International, Regional
and Comparative Constitutional Law, in THE CAMBRIDGE HANDBOOK OF NEW HUMAN
RIGHTS: RECOGNITION, NOVELTY, RHETORIC 55, 58 (Andreas von Arnauld et al. eds.,
2020).
79 See generally Paul O’Connell, The Death of Socio-Economic Rights, 74 MOD. L. REV.
532 (2011). For philosophical consideration, see generally Malcolm Langford, Socio-
Economic Rights: Between Essentialism and Egalitarianism, in MORAL AND POLITICAL
CONCEPTIONS OF HUMAN RIGHTS: IMPLICATIONS FOR THEORY AND PRACTICE 258 (Reidar
Maliks & Johan Karlsson Schaffer eds., 2017).
80 Aryeh Neier, Social and Economic Rights: A Critique, 13 HUM. RTS. BRIEF 1, 2
(2006).
81 Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 VALPARAISO U. L. REV.
359, 369 (1988); SAMUEL MOYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD
101 (2018).
82 Philip Alston, Dialogue on Human Rights in the Populist Era, 9 J. HUM. RTS. PRAC.
1, 9 (2017).
83 Chirwa, supra note 78, at 61. Chirwa states other concerns that ESCRs are “vague . . .
making it difficult to define their content and the obligations they entail, to implement them
immediately or to enforce them judicially.” Id. at 57 (footnotes omitted).
84 See Alston, supra note 82, at 99. See also Chirwa, supra note 78, at 57 (“Much of the
controversy about the existence of the right of access to water has more to do with concerns
about socio-economic rights in general than with concerns about the right to water itself.”).
85 Chirwa, supra note 78, at 57.

2024] The Status of “New Rights” Before the 161
African Human Rights Commission and Court
Other criticisms include the fact that new rights are seen as “vague
and exaggerated.”86 Another criticism is the view that new rights can
disrupt87 and restrict existing rights. Ironically, on one hand, it is
claimed that new rights are susceptible to neglect by States.88 On the
other hand, it is said that States might entangle too much with new
rights, mixing them with politics—for instance, by using new rights to
create obligations—to the extent that the new rights will lose their main
purpose.89 Another criticism is that because new rights sometimes cater
to the vulnerable by filling a gap in the existing rights with new rights,
they are “anti-establishment”90 and lead to controversies.91 Hannum
collects other criticisms from scholars and sums them up:
Both critics and some supporters of the human rights movement have
expressed concern over what Eric Posner terms the ‘hypertrophy’ of
rights: ‘The more human rights there are, and thus the greater variety
of human interests that are protected, the more that the human rights
system collapses from an undifferentiated welfareism in which all
interests must be taken seriously for the sake of the public good.’
Michael Ignatieff argues that ‘rights inflation—the tendency to
define anything desirable as a right—ends up eroding the legitimacy
of a defensible core of rights’. [sic] Allen Buchanan similarly
observes that ‘unbridled proliferation damages the very idea of
international human rights by abandoning the notion of
extraordinarily high priority norms in favour of an ever-expanding
list of protected interests.’92
To work around these criticisms, some scholars insist on the
development of only extremely important and feasible new rights.93
Despite this, numerous rights are being recommended.94 It seems,
86 Swanson, supra note 15, at 314.
87 Id.
88 Id.
89 Saez, supra note 27.
90 von Arnauld & Theilen, supra note 56, at 41.
91 Issa G. Shivji, Constructing a New Rights Regime: Promises, Problems and Prospects,
8 SOC. & LEGAL STUD. 253, 254 (1999).
92 Hannum, supra note 31, at 431 (footnotes omitted) (quoting ERIC POSNER, THE
TWILIGHT OF INTERNATIONAL HUMAN RIGHTS 85 (2015)) (quoting Michael Ignatieff,
Human Rights as Idolatry, in HUMAN RIGHTS AS POLITICS AND IDOLATRY 90 (Amy
Gutmann ed., 2014)) (quoting ALLEN BUCHANAN, THE HEART OF HUMAN RIGHTS 286
(2013)).
93 See generally MAURICE CRANSTON, WHAT ARE HUMAN RIGHTS? (1973); Pablo
Gilabert, The Feasibility of Basic Socioeconomic Rights: A Conceptual Exploration, 59
PHIL. Q. 6, 659 (2009).
94 See THE CAMBRIDGE HANDBOOK, supra note 60.

162 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
however, that the UNGA has been able to apply “quality control”95 to
these new rights. For instance, over the past twelve years, the UNGA
has recognized only two new rights—the right to water and sanitation
in 2010, and the right to a clean, healthy, and sustainable environment
in 2022. This makes it enticing to think that the meticulousness and the
duration usually taken96 by the UNGA in recognizing new rights denote
that new rights are announced after developing into customary human
rights norms.
II
THE STATUS OF NEW RIGHTS CONTAINED IN
UNGA RESOLUTIONS BEFORE THE AFRICAN HUMAN RIGHTS
COMMISSION AND COURT
UNGA resolutions are, as a general rule, not binding in international
law,97 except when they are accepted by States as binding.98 There are
three ways States may accept a UNGA resolution as binding. First,
States may accept the resolution as binding through “a special
agreement” to treat it as such. Second, it may be accepted as binding
where States treat UNGA resolutions as binding under customary
international law. Third, a resolution may be accepted when the
UNGA expresses the intention to treat that resolution as binding.99
“Nevertheless, it is generally accepted that such resolutions in certain
specified circumstances may be regarded as evidence of customary
international law or can contribute—among other factors—to the
creation of such law.”100 Overall, most scholars agree that UNGA
95 For discussion on quality control for new rights, see generally Alston, supra note 53.
96 Swanson, supra note 15, at 316 (“[U]nless and until [rights] attain the status of
customary international law, the occurrence of which is a function of time and general
acceptance by the world community . . . .”).
97 There are numerous works on this. See Schwebel, supra note 16; Kerwin, supra note
12, at 876; Christopher C. Joyner, U.N. General Assembly Resolutions and International
Law: Rethinking the Contemporary Dynamics of Norm-Creation, 11 CAL. W. INT’L. L.J.
445, 452 (1981); F. Blaine Sloan, Binding Force of a Recommendation of the General
Assembly of the United Nations, 25, BRIT. Y.B. INT’L L. 1, 1 (1948); Gabriella R. Lande,
The Changing Effectiveness of General Assembly Resolutions, 58 AM. SOC’Y INT’L L.
PROC. 162, 169 (1964).
98 See JEFFREY DUNOFF ET AL., INTERNATIONAL LAW: NORMS, ACTORS, PROCESS
77 (5th ed. 2020) (citing Texaco Overseas Petroleum Company/California Asiatic Oil
Company and the Government of the Libyan Arab Republic, 17 I.L.M. 1 (1977)).
99 Jimoh, supra note 9, at 24 (citing Sloan, supra note 97).
100 DUNOFF ET AL., supra note 98, at 79 (quoting SEDCO, Inc. v. Nat’l Iranian Oil Co.
and the Islamic Republic of Iran, 10 Iran-U.S. Cl. Trib. Rep. 180 (1986)).

2024] The Status of “New Rights” Before the 163
African Human Rights Commission and Court
resolutions are not binding.101 For this reason, and in the absence of an
express pointer that States have accepted a UNGA resolution as
binding, how can new rights contained in a UNGA resolution be
recognized by the African Commission and the Court?
In Africa, both the African Commission and the African Court are
the main regional, quasi-judicial102 and judicial bodies for claims about
violations of human rights.103 While the African Commission is
established by the African Charter,104 the African Court is established
by the Protocol.105 Each body has its own rules of procedure and
practice.106 This Part examines the rules, decisions, and practices of
both the African Commission and the African Court to determine the
status of new rights contained in UNGA resolutions.
A. The African Commission
As part of its protectional role,107 the African Commission uses the
communication procedure to hear complaints alleging any violations
of rights in the African Charter.108 Communications may be submitted
either by a State that is party to the Charter against another State109
or by nonstate actors, either nongovernmental organizations or
individuals, against a State. The African Commission will not proceed
101 See Jimoh, supra note 9.
102 The African Commission is quasi-judicial. See Manisuli Ssenyonjo, Analysing the
Economic, Social and Cultural Rights Jurisprudence of the African Commission: 30 Years
Since the Adoption of the African Charter, 29 NETH. Q. HUM. RTS. 358, 358 (2011). The
African Court is a judicial body. See FRANS VILJOEN, INTERNATIONAL HUMAN RIGHTS
LAW IN AFRICA 410 (2d ed. 2012).
103 Jimoh, supra note 20, at 365.
104 African Charter, supra note 6, art. 30.
105 Protocol, supra note 7, art. 1. For discussion on the reasons, see Bekker, supra note
17, at 152.
106 The African Commission’s current rules were made in 2020. See African
Commission on Human and Peoples Rights Rules of Procedure, https://www.achpr.org
/rulesofprocedure. The African Court’s current rules were made in 2020 too. See Rules of
Court: African Court on Human and Peoples’ Rights, https://www.african-court.org
/en/images/Basic%20Documents/Rules_of_Court_-__-_25_September_2020.pdf.
107 African Charter, supra note 6, art. 45, § 1.
108 Jimoh, supra note 20, at 366.
109 This has rarely been used. See id. at 364 (“[O]nly three communications have been
received by the African Commission with respect to communications between state
parties.”).

164 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
with a communication if the alleged breach is brought against a State
that has not ratified the African Charter.110
The African Charter contains numerous rights—including both
individual111 and collective rights112—from which a complainant may
allege a violation.113 Where, however, a right is not contained in the
African Charter, and that same right is contained in a UNGA resolution,
would that new right be recognized by the African Commission?
1. Principles for the Recognition of New Rights by the African
Commission
There are conflicting principles that may be gleaned from the
jurisprudence of the African Commission in determining whether it
will recognize new rights contained in UNGA resolutions.114 The first
inferred principle (Principle 1) could be that the African Commission
will require a communication to specify which right in the Charter is
violated before considering such communication. Under this view, if a
communication cannot point to a right existing in the African Charter,
the African Commission will refuse seizure,115 and decline to proceed
with admissibility of the communication.116 If this principle is correct,
then by implication, the African Commission may not recognize new
rights from any other source, including UNGA resolutions, except
those expressly contained in the African Charter. Support for this view
110 African Freedom of Expression Exchange & 15 Others (Represented by FOI
Attorneys) v. Algeria & 27 Others, Communication 742/20, African Commission on Human
and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 40 (Apr. 26, 2021), https://achpr.au.int
/en/decisions-communications/african-freedom-expression-exchange-foi-attorneys-algeria
-74220 [https://perma.cc/V8LM-X3UQ] (declining jurisdiction against Somaliland and
Morocco since they had not ratified the African Charter). This is a rule of international law.
See SHAW, supra note 10, at 95 (“[P]arties that do not sign and ratify the particular treaty in
question are not bound by its terms. This is a general rule and was illustrated in the North
Sea Continental Shelf cases where West Germany had not ratified the relevant Convention
and was therefore under no obligation to heed its terms.”).
111 African Charter, supra note 6, arts. 1–18.
112 Id. arts. 19–26.
113 For discussion on individual and collective rights in the Charter, see Mujib Jimoh,
The Place of Digital Surveillance under the African Charter on Human and Peoples’ Rights
and the African Human Rights System in the Era of Technology, 1 AFR. J. LEGAL ISSUES
TECH. & INNOVATION 113, 116–20 (2023).
114 I define jurisprudence here to mean the African Commission’s application and
interpretation of the African Charter, its communication decisions, and its rules of
procedure.
115 For discussion on seizure, see generally Jimoh, supra note 20.
116 For discussion on admissibility, see generally Sabelo Gumedze, Bringing
Communications Before the African Commission on Human and Peoples’ Rights, 3 AFR.
HUM. RTS. L.J. 118 (2003).

2024] The Status of “New Rights” Before the 165
African Human Rights Commission and Court
may be found in the work of Gumedze,117 and the decision of the
African Commission in Jawara v. The Gambia.118 Gumedze opines,
though, on another subject,119 that,
Communications before the Commission must be limited to
violations of international human rights standards. The Charter is the
yardstick for testing whether or not there has been a violation of an
international standard within the African human rights system.120
. . . .
In submitting a communication before the Commission, the rights
allegedly violated should be contained in the Charter.121
Likewise, in Jawara, while deciding the compatibility of the military
regime’s acts with the provisions of the Charter, the African
Commission held that “[t]he position of the Commission has always
been that a communication must establish a prima facie evidence of
violation. It must specify the provisions of the Charter alleged to have
been violated.”122
The pronouncement seemingly suggests that rights claimed before
the African Commission must be present in the African Charter, though
the communication in Jawara did not refer to new rights and the
African Commission’s justification for their reasoning is unclear from
the pronouncement. If this principle were strictly applied, the African
Commission would not give effect to new rights contained in any other
document. Furthermore, it also suggests that a right which originates as
customary international law will not be considered by the African
Commission, since it is not contained in the African Charter. This
would be contrary to another provision in the African Charter,
embodied by the second principle.123
The second principle (Principle 2) is that new rights could be
claimed at the African Commission. This principle may be extracted
from the African Charter and the practice of the African Commission
117 Id. at 123.
118 See Jawara v. Gambia, Communication 147/95-149/96, African Commission on
Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 41 (May 11, 2000), https://achpr.au
.int/en/decisions-communications/sir-dawda-k-jawara-gambia-14795-14996 [https://perma
.cc/7G6Z-VSUR].
119 Gumedze’s article is not on new rights, but on the communication procedure of the
African Commission. See generally Gumedze, supra note 116.
120 Id. at 123 (emphasis added).
121 Id. at 124 (emphasis added).
122 Jawara v. Gambia, ¶ 41 (emphasis added).
123 See African Charter, supra note 6, art. 61.

166 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
with respect to its Rules of Procedure. According to Article 60 of the
African Charter, the African Commission is required to,
draw inspiration from international law on human and peoples’
rights, particularly from . . . other instruments adopted by the United
Nations and by African countries in the field of human and peoples’
rights as well as from the provisions of various instruments adopted
within the Specialised Agencies of the United Nations of which the
parties to the present Charter are members.124
The African Charter further requires the African Commission to take
into consideration customs generally accepted as law.125 New rights, by
their nature, enjoy “broad international support,”126 and, where coupled
with other actions suggesting opinio juris,127 they arguably qualify as
custom generally accepted as law.
Furthermore, the practice of the African Commission with respect to
its Rules of Procedure, suggests that it has downplayed the importance
of communications containing the specific provision(s) of the African
Charter alleged to have been violated.128 For instance, under its 1995
Rules, the African Commission required a communication “to specify
in particular, Provision(s) of the Charter allegedly violated.”129 Under
the 2010 and 2020 Rules, however, a communication may be seized by
the African Commission “even if no specific reference is made to the
Article(s) alleged to have been violated.”130 Whether the African
Commission’s inspiration, drawn from the adopted U.N. instruments,
can be used to give effect to an entirely freestanding new right, not
contained in the African Charter, is yet to be seen.131
124 African Charter, supra note 6, art. 60.
125 Id.
126 See Stark, supra note 21, at 672.
127 See Continental Shelf (Libya v. Malta), Judgment, 1984 I.C.J. 3, ¶¶ 13, 29 (Mar. 21)
(“[Customary law must be] looked for primarily in the actual practice and opinio juris of
states.”). See also Jordan J. Paust, The Complex Nature, Sources and Evidences of
Customary Human Rights, 25 GA J. INT’L & COMPAR. L. 147, 151 (1995). See generally
David H. Culmer, The Cross-Border Insolvency Concordat and Customary International
Law: Is It Ripe Yet?, 14 CONN J. INT’L L. 563 (1999).
128 See Gumedze, supra note 116, at 124 (emphasizing this provision contained in the
1995 Rules of Procedure of the African Commission).
129 AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, RULES OF PROCEDURE
104(1)(d) (1995).
130 AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, RULES OF PROCEDURE
93(2)(g) (2010); AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, RULES OF
PROCEDURE 115(2)(g) (2020).
131 So far, the new rights recognized by the African Commission have been derivative.
See generally Principles and Guidelines, supra note 49.

2024] The Status of “New Rights” Before the 167
African Human Rights Commission and Court
A third principle (Principle 3) that may be gleaned from the
jurisprudence of the African Commission is that it could adopt the
evolutive132 and derivate approaches and give recognition to a new
right contained in a UNGA resolution, instead of recognizing a new
right outright. This approach seemingly has been adopted by the
African Commission in SERAC.133 In that communication, the
complainants (representing the people of Ogoniland) alleged that the
government of Nigeria, then under military rule through its state-
owned oil corporation and Shell Petroleum Development Corporation,
caused severe environmental degradation leading to the contamination
of their land and water.134 The communication alleged that instead of
addressing the concerns of members of Ogoniland, the Nigerian
Government deployed military forces who further destroyed their
villages.135
Principally, the communication alleged that the activities of the
Nigerian Government made farming and fishing (the two primary
means of livelihood of the Ogoni) impossible; this affected their
sustenance and right to food.136 But, the right to food is not expressly
contained in the African Charter. Recognizing the challenge this
situation posed, the complainants argued that the right to food is
implicit in some provisions of the African Charter.137 Specifically,
complainants claimed that the right to food is implicit in the right to
life; the right to health; and the right to economic, social, and cultural
development.138 The complainants submitted that by violating these
explicit rights, the Nigerian Government also violated the implicitly
guaranteed right to food.139 Rather than deriving the right to food from
the articles submitted by the complainant, the African Commission
132 See generally Mujib Jimoh, The Evolutive Interpretation of the African Charter on
Human and Peoples’ Rights, 10 INDON. J. INT’L & COMPAR. L. 43 (2023).
133 Soc. & Econ. Rts. Action Ctr. (SERAC) v. Nigeria, Communication 155/96, African
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 65 (May 27, 2002),
https://achpr.au.int/en/decisions-communications/social-and-economic-rights-action-center
-serac-and-center-economic-15596 [https://perma.cc/A7Q6-SERS].
134 Id. ¶¶ 1–6.
135 Id. ¶ 7.
136 Id. ¶ 9.
137 Id. ¶ 64.
138 Id.
139 Id.

168 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
derived the right from the right to human dignity.140 This possibly gives
some credence to Netto’s thesis.141 The African Commission held that,
[t]he right to food is inseparably linked to the dignity of human
beings and is therefore essential for the enjoyment and fulfilment of
such other rights as health, education, work[,] and political
participation. The African Charter and international law require and
bind Nigeria to protect and improve existing food sources and to
ensure access to adequate food for all citizens.142
Similarly, in Free Legal Assistance,143 the African Commission
derived the right to water and the right to electricity from the right to
health.144 The African Commission held that the “failure of the
Government to provide basic services such as safe drinking water and
electricity . . . constitutes a violation of Article 16.”145 Under Principle
3, the African Commission would be able to recognize a new right if it
can justify the right as deriving from existing rights in the African
Charter.
2. Approaches for the Recognition of New Rights
There are two approaches that the African Commission may use to
recognize new rights contained in UNGA resolutions. First, the
African Commission may adopt Principle 2.146 Principle 2 allows the
African Commission to ground its recognition of new rights upon
“other instruments adopted by the United Nations.”147 The African
Charter does not define “instruments,” but resolutions are generally
regarded as instruments.148 The African Commission itself has used
140 African Charter, supra note 6, art. 5.
141 See Netto, supra note 30, at 45 (arguing that the fundamentality of a new right is
determined by its furtherance of human dignity).
142 Soc. & Econ. Rts. Action Ctr. (SERAC) v. Nigeria, Communication 155/96, African
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 65.
143 Free Legal Assistance Group v. Democratic Republic of Congo, Communication
25/89, 47/90, 56/91, 100/93, African Commission on Human and Peoples’ Rights
[Afr. Comm’n H.P.R.], ¶ 1 (Apr. 4, 1996), https://achpr.au.int/index.php/en/decisions
-communications/free-legal-assistance-group-lawyers-committee-human-rights-union
-interafr [https://perma.cc/FJY2-R48S].
144 African Charter, supra note 6, art. 16.
145 Free Legal Assistance Group, Communication 25/89, 47/90, 56/91, 100/93, African
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 47.
146 See supra Section II.A.1.
147 African Charter, supra note 6, art. 60.
148 See Stewart Patrick, World Order: What, Exactly, Are the Rules?, 39 WASH. Q., no.
1, 2016, at 7, 13 (“[T]hanks to overwhelming support for major international instruments
including the Non-Proliferation Treaty (NPT) and its watchdog, the International Atomic
Energy Agency (IAEA); the Chemical Weapons Convention (CWC); the Biological

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African Human Rights Commission and Court
the word “soft law instruments” to describe its General Comments.149
Rachel Murray, one of the leading scholars on the African human
rights system, has also described the terms “resolutions,”
“recommendations,” “observations,” and “guidelines” by the African
Commission as “instruments.”150 Thus, resolutions of the UNGA
will equally qualify as instruments. The African Commission may use
Principle 2 as a means to “draw inspiration” from U.N. instruments to
recognize new rights contained in UNGA resolutions. Since the sources
of international human rights are not limited to treaties,151 when this
recognition is made, it will be made based not only on the fact that it is
contained in a UNGA resolution but also because the new right has
enjoyed broad international support and some act evidencing the
State’s intent to be bound (opinio juris). However, as a human rights
body, it should take a flexible approach to opinio juris.152
Second, the African Commission may adopt Principle 3, as seen in
the SERAC and Free Legal Assistance Group cases, to recognize new
rights in UNGA resolutions. Under this approach, the African
Commission should look through the rights contained in the African
Charter to derive the new rights. When applying this principle, the
African Commission should be brave and consistent.153 For instance,
Weapons Convention (BWC); UNSC Resolution 1540 (obliging U.N. Member States to
prevent transfer of WMD and related technology) . . . .”) (emphasis added). See also
U.N. Library & Archives, Research Guides, https://libraryresources.unog.ch/c.php?g
=462687&p=3163267 [https://perma.cc/5CKB-URHT] (also classifying resolutions as
instruments).
149 See, e.g., Resources, AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS,
https://achpr.au.int/en/category/soft-law [https://perma.cc/4U99-4ND5].
150 DEBRA LONG & RACHEL MURRAY, The Role and Use of Soft Law Instruments in the
African Human Rights System, in TRACING THE ROLES OF SOFT LAW IN HUMAN RIGHTS
88, 91 (Stéphanie Lagoutte et al. eds., 2016).
151 Swanson, supra note 15, at 315.
152 See Alston, supra note 53, at 615 (“[The right should] be eligible for recognition on
the grounds that it is an interpretation of UN Charter obligations, a reflection of customary
law rules or a formulation that is declaratory of general principles of law.”). The proof of
intent should be flexible. This may be through national constitutions, legislation, and/or
international behavior. See SHAW, supra note 10, at 87 (“This means taking a more flexible
view of the opinio juris and tying it more firmly with the overt manifestations of a custom
into the context of national and international behaviour.”).
153 See, e.g., Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication
245/02, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.] (May
15, 2006); Zimbabwe Lawyers for Human Rights & Associated New Notes of Zimbabwe v.
Zimbabwe, Communication 284/2003, African Commission on Human and Peoples’ Rights
[Afr. Comm’n H.P.R.], (Apr. 3, 2009) (including “sexual orientation” as a prohibited ground
for discrimination, despite that the African Charter does not include sexual orientation as a

170 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
Abdi Jibril Ali expresses his frustration on what he called a
“bifurcated” jurisprudence of the African Commission.154 Ali notes,
using Nubian Community in Kenya v. The Republic of Kenya155 and
Mbiankeu Genevieve v. Cameroon156 as examples, that the African
Commission failed to find a violation of a separate right to housing in
the former but did so in the latter.157
3. Arguments for and Against the Approaches
One criticism of these two approaches is that the African
Commission could be recognizing new rights to which the States party
to the African Charter did not accept to be bound.158 Surely, uncertainty
of rights in the African human rights system might be an implication of
this.159 Robert Wundeh Eno’s views will appear contrary to the two
approaches identified above. To him, “the African Commission may
not interpret or apply any human rights instrument other than the
African Charter under its contentious jurisdiction. While the Charter
may be interpreted drawing inspiration from other international human
rights instruments, all cases must be decided with reference to the
African Charter.”160
As a justification for his view, Eno cites the provision of Article 45
section 2 of the African Charter,161 which provides that the African
Commission shall “ensure the protection of human and peoples’ rights
under conditions laid down by the present Charter.”162
There are two possible counterarguments against Eno’s view. First,
the provisions of Articles 60 and 61 of the African Charter are part of
prohibited ground). However, these decisions have been described as obiter as the African
Commission has not shown the bravery to move further with this interpretation. See Afr.
Comm’n on Hum. & Peoples’ Rts., Ending Violence and Other Human Rights Violations
Based on Sexual Orientation and Gender Identity, at 31 (2016).
154 Abdi Jibril Ali, Interpretation of Economic, Social and Cultural Rights under the
African Charter on Human and Peoples’ Rights, 30 J. ETH. L. 1, 17 (2018).
155 Nubian Community in Kenya v. Republic of Kenya, Communication 317/2006,
African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], (Feb. 28,
2015).
156 Mbiankeu v. Cameroon, Communication 389/10, African Commission on Human
and Peoples’ Rights [Afr. Comm’n H.P.R], (Aug. 1, 2015).
157 Ali, supra note 154, at 17.
158 Ssenyonjo, supra note 102, at 378.
159 Id.
160 Robert Wundeh Eno, The Jurisdiction of the African Court on Human and Peoples’
Rights, 2 AFR. HUM. RTS. L.J. 223, 226 (2002).
161 Id.
162 African Charter, supra note 6, art. 45, § 2 (emphasis added).

2024] The Status of “New Rights” Before the 171
African Human Rights Commission and Court
the “conditions laid down by the present Charter.”163 They cannot be
excluded.164 They are contrary to Eno’s view because they allow the
African Commission to draw inspiration from sources other than the
Charter. Second, the new rights to be recognized by the African
Commission must have met the five criteria for new rights.165 This
implies that the new rights already enjoy a “broad international
support.” The African Commission may ground its reasoning on this
fact.
4. Limitations to the Approaches
There is a need to qualify the approaches to avoid criticisms from
State party to the African Charter. First, a new right that contradicts the
express rights contained in the African Charter either in interpretation,
application, or by implication, should not be recognized by the African
Commission. Since the Charter is the main human rights instrument in
Africa, other human rights instruments should complement, rather than
contradict, its provisions. Human rights can conflict with each other.166
Where a new right contradicts an express right in the Charter, it
becomes morally impossible for the African Commission to place the
new right above the express rights in the Charter. This is because the
African Commission itself derives its authority from the Charter.
Secondly, the new rights to be recognized should not be contrary
to traditional African values to ensure compliance.167 The traditional
African values requirement was inserted in the African Charter’s
preamble by its drafters to further their mandate to make an instrument
which “reflect[s] an African conception of Human Rights.”168 The
163 Id.
164 See Vienna Convention on the Law of Treaties art. 31, § 1, May 23, 1969, 1155
U.N.T.S. 331 (“[Treaties] shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms . . . .”).
165 Stark, supra note 21, at 672.
166 JAMES GRIFFIN, ON HUMAN RIGHTS 58 (2008).
167 For a discussion on the importance of African values in the African Charter, see
Ebow Bondzie-Simpson, A Critique of the African Charter on Human and Peoples’ Rights,
31 HOW. L.J. 643, 648 (1988). See generally Ziyad Motala, Human Rights in Africa: A
Cultural, Ideological, and Legal Examination, 12 HASTINGS INT’L. & COMPAR. L. REV. 373
(1989).
168 See N.S. REMBE, THE SYSTEM OF PROTECTION OF HUMAN RIGHTS UNDER THE
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS: PROBLEMS AND PROSPECTS 3
(1991) (citing OAU Doc. CM/112/Part 1, Nairobi, June 1981, at 31).

172 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
drafters felt that to make the African Charter truly “African”169 and
unique from the other human rights instruments before it,170 there
was a need to include, in its preamble, a requirement for the rights
to reflect the African “historical tradition and the values of African
civilization.”171 Although ultimately, the African Charter was primarily
influenced by the ICESCR and the American Convention on Human
Rights.172 The inclusion of this traditional African values requirement
in the African Charter’s preamble, in a bid to assert Africa’s
independence, has, over the years, proved to have far-reaching
implications for human rights in Africa.
This requirement manifests three problems. First, the African
Charter does not define what it means by traditional African values and
which period should be used to determine what are traditional African
values—precolonial values, values at the time of drafting the African
Charter, or values at present. While the travaux préparatoires of the
African Charter could help clarify this,173 the African Charter is
notorious for having few available travaux préparatoires.174 Second,
what makes African culture unique is not sameness but diversity175—
even if it is slight.176 There is no guidance on which cultural values
should be used. Third, the requirement is susceptible to abuse,177 and
169 For discussion, see Mujib Jimoh, The Quest for Information Privacy in Africa: A
Critique of the Makulilo–Yilma, 1 AFR. J. PRIV. & DATA PROT. 1, 14 (2023).
170 The Charter is the last main regional human rights instrument after the International
Bill of Human Rights; the European Convention on Human Rights; and the American
Convention on Human Rights. See Jimoh, supra note 36.
171 African Charter, supra note 6, at cl. 4.
172 Rachel Murray & Frans Viljoen, Towards Non-Discrimination on the Basis of Sexual
Orientation: The Normative Basis and Procedural Possibilities before the African
Commission on Human and Peoples’ Rights and the African Union, 29 HUM. RTS. Q. 86,
89 (2007).
173 A. Bolaji Akinyemi, The African Charter on Human and Peoples’ Rights: An
Overview, 46 IND. J. POL. SCI. 207, 223 (1985).
174 Misha Ariana Plagis & Lena Riemer, From Context to Content of Human Rights: The
Drafting History of the African Charter on Human and Peoples’ Rights and the Enigma of
Article 7, 23 J. HIST. INT’L L. 556, 563 (2021).
175 Moeketzi Letseka, In Defence of Ubuntu, 31 STUD. PHIL. & EDUC. 47, 48 (2011);
Albert K. Barume, Re-Instating Traditional Values and Cultures as Pillar of a People-
Centered Development in Africa, 4 PROLAW STUDENT J. RULE L. FOR DEV. 1, 7–8 (2017).
176 See Gabriel E. Idang, African Culture and Value, 16 PHRONIMON 97, 100 (2015).
177 Rose M. D’sa, Human and Peoples’ Rights: Distinctive Features of the African
Charter, 29 J. AFR. L. 72, 74 (1985).

2024] The Status of “New Rights” Before the 173
African Human Rights Commission and Court
African States have used it to justify violations of fundamental
rights.178
In treaty interpretation literature, two extremes have emerged on the
nature of the preamble.179 If we accept the “substantive extreme,”180 the
inclusion of the requirement in the African Charter’s preamble thus
conveys that “in the discovery, explication, application and limitation
of rights in [the African Charter],”181 all the rights must be interpreted
to reflect traditional African values. Conversely, if we agree with the
“ceremonial extreme,”182 then the African Commission need not make
the rights in the African Charter reflect traditional African values—for
whatever reason. However, if it does not, the African Commission risks
compliance problems from African States.183 Flowing from the two
extremes and peculiarity of the requirement to African human rights
jurisprudence, the African Commission has to interpret the provisions
of the Charter as reflecting traditional African values—either out of
necessity (a consequence of the “substantive extreme”) or practicality
(to ensure compliance). In effect, rights in the African Charter should
not be interpreted in a way that is incompatible with African values.184
Thus, it may be reasonable to expect the African Commission to give
effect to new rights that are compatible with traditional African
values.185 Save for these two caveats, it appears nothing prevents the
178 The traditional African values requirement has been used to violate the rights of the
LGBTQIA people in Africa. See Paul Johnson, Homosexuality and the African Charter on
Human and Peoples’ Rights: What Can Be Learned from the History of the European
Convention on Human Rights?, 40 J.L. & SOC’Y 249, 262 (2013).
179 Max H. Hulme, Preambles in Treaty Interpretation, 164 U. PA. L. REV. 1281, 1288
(2016).
180 This elevates the importance of preambles. See id. at 1289.
181 Tsega Andualem Gelaye, The Role of Human Dignity in the Jurisprudence of the
African Commission on Human and Peoples’ Rights, 5 AFR. HUM. RTS. Y.B. 116, 126
(2021) (discussing the role of the provision of dignity in the Charter’s preamble).
182 Hulme, supra note 179, at 1289. See, e.g., B. Obinna Okere, The Protection of Human
Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative
Analysis with the European and American Systems, 6 HUM. RTS. Q. 141, 142–43 (1984)
(“[Preambles are,] at best, . . . expressions of an ideological function, a program of action
and a distillation of principles of interpretation; [which] do not import any strict legal
obligation.”).
183 States are likely to reject such interpretation under the pretext of traditional African
values. See Jimoh, supra note 132, at 66–69.
184 Swanson, supra note 15, at 323.
185 Save for human right issues involving groups such as the LGBTQIA, which are
controversial in Africa, most new rights proposed by scholars and those recognized by the
UNGA resolutions do not appear to be incompatible with the African values. See generally

174 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
African Commission from recognizing new rights from UNGA
resolutions.
B. The African Court
The African Court came into existence in 2006,186 even though the
required number of ratifications of its Protocol was completed in
2004.187 While this Article does not provide a full analysis of the
jurisdiction of the African Court, a brief consideration of the
jurisdiction of the African Court is necessary to determine if it may
give effect to new rights contained in UNGA resolutions.
1. The Jurisdiction of the African Court
Though the African Court generally complements the African
Commission,188 it enjoys a higher status than the African
Commission.189 For the purposes of this Article, two articles of the
Protocol are relevant. First, Article 3 provides that “[t]he 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.”190 Second, Article 7 provides the sources of law for
the African Court. It states that the “Court shall apply the provisions of
the Charter and any other relevant human rights instruments ratified by
the States concerned.”191 That still leaves the question of whether these
provisions may be used to recognize new rights contained in UNGA
resolutions, discussed in the section below.
Siri Gloppen & Lise Rakner, LGBT Rights in Africa, in RESEARCH HANDBOOK ON GENDER,
SEXUALITY AND THE LAW 194 (Chris Ashford & Alexander Maine eds., 2020).
186 Tom Gerald Daly & Micha Wiebusch, The African Court on Human and Peoples’
Rights: Mapping Resistance Against a Young Court, 14 INT’L J.L. CONTEXT 294, 294
(2018). This Article will not discuss the history or the extensive consideration of the
provisions of the Protocol in detail. There are many scholarly works on this. See generally
Eno, supra note 160.
187 N. Barney Pityana, Reflections on the African Court on Human and Peoples’ Rights,
4 AFR. HUM. RTS. L.J. 121, 121 (2004).
188 Id. at 126; Protocol, supra note 7, art. 2; Bekker, supra note 17, at 169.
189 Ibrahim Ali Badawi Elsheikh, The Future Relationship Between the African Court
and the African Commission, 2 AFR. HUM. RTS. L.J. 252, 257 (2002).
190 Protocol, supra note 7, art. 3, § 1.
191 Id. art. 7. The rules of procedure of the African Court are similarly worded. See
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS, RULES OF COURT 29 (2020).

2024] The Status of “New Rights” Before the 175
African Human Rights Commission and Court
2. The African Court’s Basis for the Recognition of New Rights in
UNGA Resolutions
The jurisprudence of the African Court contains little guidance
regarding the basis for recognizing new rights in UNGA resolutions.
This is because the jurisprudence of the African Court is still
developing: it first issued a full merits judgment in 2013.192 However,
a quick formula may be developed to ascertain whether the African
Court may recognize new rights contained in UNGA resolutions: if the
interpretation of Articles 3 and 7 of the Protocol that relate to the
sources of law for the African Court means that its sources of law are
more expansive than that of the African Commission, then the African
Court may, like the African Commission, be able to recognize new
rights using the two approaches discussed above.193 Here, there will be
no need to investigate any further basis grounding the Court’s
reasoning in recognizing the new rights. But where the African
Court’s sources of law are more restrictive than that of the African
Commission, further inquiry may be required to determine which other
basis the African Court may adopt to recognize the new rights.
Opinions are divided on this question.
One view is that the African Court’s sources of law are more
expansive than that of the African Commission.194 Another view
disagrees, stating that the African Court’s sources of law are more
restrictive than that of the African Commission.195 I submit that both
the African Commission and Court have equal sources, although a
visible difference between the sources is that the African Court shall
include “any other relevant human rights instrument ratified by the
States concerned” as part of its sources.196 It may be argued that under
Articles 60 and 61 of the African Charter, the African Commission may
also give effect to “any other relevant Human Rights instrument ratified
by the States concerned.”197
192 Daly & Wiebusch, supra note 186, at 297.
193 See supra Section II.A.2.
194 Pierre De Vos, A New Beginning – The Enforcement of Social, Economic and Cultural
Rights Under the African Charter on Human and Peoples’ Rights, 8 L. DEMOCRACY & DEV.
1, 15 (2004).
195 Pityana, supra note 187, at 127 (“[T]he jurisdiction of the Court is confined to the
interpretation and application of the African Charter and any other international human
rights instruments ratified by the states concerned. For me this serves as a limitation.”).
196 Protocol, supra note 7, art. 7.
197 Id. art. 3, § 1.

176 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 147
Since the African Court is empowered to assume jurisdiction on any
question concerning the “interpretation and application of the
Charter”198 and the African Charter itself allows199 the drawing of
inspiration from “other instruments adopted by the United Nations,”200
UNGA resolutions recognizing new rights, insofar as they are within
the limitations set above,201 may be recognized by the African Court.
3. Concern About the Recognition of New Rights in UNGA
Resolutions by the African Court
Generally, African States have been heavily criticized with respect
to human rights: they are said to be notorious for human rights
violations,202 and they refuse to comply with decisions finding them in
breach of human rights.203 Speaking on the effects of allowing claims
contained in other human rights instruments to bind African States,
Bekker noted:
This provision, by allowing for the possibility of complaints being
brought not only on the basis of the African Charter, but on the basis
of any other human rights instrument ratified by the state, may lead
to diluted international standards and consequently a weakened form
of human rights protection for Africa.204
I note that the recognition of new rights contained in UNGA
resolutions may further escalate this concern. But if the African human
rights system is to develop, African States should be bound by their
practices under international law. Since the African Court will merely
be restating the new rights, it is not creating an obligation, but giving
effect to it. I submit that the limitations to the approaches discussed
198 Id.
199 I note that the word “Commission” is referred to in Article 60 of the African Charter.
But the Protocol supplements the African Charter, which is the main treaty, and will
be interpreted to harmonize it. See United Nations Forum on Forest, An Overview of
International Law Working Draft, 5, https://www.un.org/esa/forests/wp-content/uploads
/2014/12/background-3.pdf [https://perma.cc/27YZ-XKYK]. Since the African Court came
at a later date, and there is nothing in the Protocol excluding the African Court’s power to
apply any provisions of the African Charter, Article 60 may be said to also apply mutatis
mutandis to the African Court.
200 African Charter, supra note 6, art. 60.
201 See supra Section II.A.4.
202 Daly & Wiebusch, supra note 186, at 294.
203 Frans Viljoen & Lirette Louw, State Compliance with the Recommendations of the
African Commission on Human and Peoples’ Rights, 1993–2004, 101 AM. J. INT’L L. 1, 33
(2007).
204 Bekker, supra note 17, at 169.

2024] The Status of “New Rights” Before the 177
African Human Rights Commission and Court
above address any concerns that exist about the recognition of new
rights contained in UNGA resolutions.205
CONCLUSION
New rights are important to address contemporary issues that
existing human rights do not or cannot address. Many new rights have
originated in human rights literature. Some of these new rights have
also emerged from State practice, and the UNGA has subsequently
given effect to them. It becomes important to consider the status of
these new rights since most of them are not contained in treaties. The
two new rights recently recognized by the UNGA are contained in its
resolution, although UNGA resolutions are not binding under
international law. Yet, the new rights must be given effect and made
claimable by individuals before human rights quasi-judicial and
judicial bodies can advance human rights. To do this, the human rights
bodies need to ground their recognition of these new rights on
established international law principles. This Article explores the
principles that may be used by the African Commission and Court to
recognize these new rights. This Article argues that the African
Commission and Court may use two approaches in recognizing new
rights contained in UNGA resolutions. The first is that they may use
Article 60 of the African Charter as the basis for the recognition. Under
this provision, they are allowed to draw inspiration from “UN
instruments.” UNGA resolutions qualify as “UN instruments.” Second,
the African Commission and Court may adopt the derivative approach.
This approach uses an expansive interpretation of provisions of the
African Charter to recognize new rights contained in UNGA
resolutions. However, this Article includes two caveats to these
approaches. First, this Article notes that the new rights to be recognized
should not contradict, either expressly or impliedly, rights expressly
contained in the African Charter. Second, the new rights to be
recognized should not be contrary to traditional African values. With
these caveats in place, the African Commission and Court may advance
human rights jurisprudence with these new rights since the new rights
are usually introduced to address problems the existing rights cannot
address.
205 See supra Section II.A.4.

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