Exception as norm: the local remedies rule in the context of socio-economic rights in the African human rights system

It is widely acknowledged that rights and freedoms guaranteed in the African Charter on Human and Peoples' Rights are justiciable. However, any complaints about violations of the Charter's guarantees are admissible before the African Commission on Human and Peoples' Rights only if they are lodged after local remedies available in the domestic legal system of the implicated state are exhausted. The local remedies rule can be bypassed, however, when such remedies are unavailable, inadequate, ineffective or unduly prolonged. This article argues that normative incompatibility between the charter's socio-economic rights undertakings and the status of the rights in domestic legal systems in numerous local jurisdictions in Africa makes it apparent that there is a clear lack of necessary preconditions for justiciability of and remedies to this category of rights. Local remedies to socio-economic rights in such jurisdictions could simply be lacking or are ineffective or inadequate. Thus, the application of the local remedies rule could well be less relevant to socio-economic rights complaints at the regional level and hence constitute an exception in relation to numerous African States. Consequently, direct invocation of charter-based remedies, supposedly an exception, may supplant the rule until and unless state parties to the charter ensure normative compatibility between their charter-based undertakings and domestic legislation and practices relative to socio-economic rights enshrined in the charter

Towards rights-duties congruence: Extraterritorial application of the human right to water in the African human rights system

Since 85 per cent of African freshwater comes from international rivers, the realisation of the newly emerging human right to water depends on the volume and quality of shared water resources. Each continental African State shares a river with at least one other State. Thus, a State has the capacity to hamper the realisation of the right in other co-riparian States by reducing the volume or polluting the shared river unless they are legally prevented from jeopardising the right abroad. The right would prove an empty promise for the right holders unless they are given legal avenues to hold third States accountable for their (in)actions that produce extraterritorial consequences. This article examines the extraterritorial reach of States'human rights duties in the African human rights system in the light of the regional case law and comparative jurisprudence

Africa's engagement with the Universal Periodic Review: commitment or capitulation?

The UPR presents a striking similarity to the state reporting procedure that has been established under African Charter on Human and Peoples� Rights (ACHPR). Not only are both procedures based on constructive dialogue as a tool, and seeking to enhance introspection and inspection of state�s human rights performances, they also aspire to gauge the degree of compliance with the whole gamut of rights and freedoms. Both procedures are invariably incumbent on all African states, now that the ACHPR has been unanimously ratified by all states of the Continent. The first twenty years of state reporting under the ACHPR saw a myriad of problems, hence dubbed a procedure that has faced implementation crises of dangerous proportions: non-reporting, poor quality reports, poor quality of state delegates, diplomatic rather than honest dialogue, lack of concluding observations and other problems plagued the system. Overall, as one author notes, the reporting procedure under the ACHPR has �tend[ed] to be descriptive, formalistic, legalistic and self-congratulatory, rather than reflective and focused on substance and practical realities, and problems encountered." It is instructive therefore to ask the reasons underlying all African states� almost uniform timely reporting under the UPR and the quality thereof. This paper set out to address the question of whether African states� regular submission of reports under the UPR, which report they failed to submit under the regional instrument, was inspired by capitulation or compliance. It seeks to compare the efficacy of the state reporting procedure under the ACHPR during its first twenty years and the first round of reports under the UPR in the light of the roles of the triple actors involved in the processes - the reporting states, the UN Human Rights Council and NGOs � and the resultant progresses that might have been made in the domestic implementation of the human rights norms being monitored

The emergence of the human right to water in international human rights law: Invention or discovery?

Not until the UN Committee on Economic, Social and Cultural Rights (�CESCR�) issued General Comment No 15 on the human right to water in 2002 was access to drinking and sanitation water authoritatively defined as a human right. The CESCR carved the right to water out of other related rights, an approach that has been criticised as �revisionist�. Some argue that the CESCR went beyond state practice, inventing a previously non-existent right in an attempt to remedy a gap that states should have filled through treaty amendment. This article contends that the CESCR has in fact articulated a pre-existing right that had a prior autonomous, if latent, existence in the International Covenant on Economic, Social and Cultural Rights (�ICESCR�). It also suggests that the CESCR approach to the analysis of the human right to water grounded the right on a narrowly defined legal basis, and that the CESCR inadvertently limited the scope of its scrutiny to the mainstream human rights regime. The article further argues that a meaningful analysis of the normative basis of the human right to water should read the ICESCR in conjunction with rules and principles of international environmental law and international water law. The combined use of these three legal regimes reveals that the right is not so much an �invention� as a �discovery�, since it has been recognised in the relevant rules of international treaties and is supported by growing state practice