The Optional Declarations Regime as a Lawful Tool to Develop the Jurisprudential Interaction Between the African Court on Human and Peoples’ Rights and the National Authorities

Abstract

The starting point for this paper is the problem of limited individual access to the African Court on Human and Peoples' Rights under Article 5(3) and Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the Court. While such a restriction imposed upon its personal jurisdiction is a standard element of political constraint introduced by states to protect their interests, it is argued that the aforementioned provisions may be also perceived differently, namely as constituting a platform enabling dialogue between the judicial organ and the sovereigns. It is asserted in particular that judges of the Court may stimulate expansion of the individual access striking a fair balance between the tendency to interpret human rights obligations of the states progressively and the relevant policy considerations echoing the more conservative approach in their perception of human rights. The paper presents such a judicial tactic as reflecting a particular environment of the international society and possibly remaining in line with international law of treaty interpretation and judicial impartiality.