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Murray, Long, Ayeni and Somé/Monitoring implementation of decisions
implementation of cases from the African Court and Commission, as
well as the regional treaty bodies in Europe and the Americas and some
of the treaty bodies in the UN. It has taken a handful of cases from nine
States, three in each of the regions (Africa, the Americas and Europe),
and examined the extent to which the recommendations or reparations
ordered have been implemented by the State. Desk-based research, and
interviews with government officials, the victims, litigants,
parliamentarians, the judiciary, national human rights institutions
(NHRIs), civil society and others, as well as representatives from the
respective treaty bodies, have enabled us to identify factors that impact
on the implementation of these decisions and judgments.4
This article focuses on the monitoring of implementation of
decisions and judgments of the African Commission and African Court,
and not on other findings such as Concluding Observations or
resolutions issued by the African Commission. We use the term
‘implementation’ to refer to the process by which individual or
collective measures are taken (through legislation, judicial decision,
administrative action, executive decree, or other steps) to give effect to
an adverse judgment or decision.5 This is distinguished from
‘compliance’, which is a status that is attained if and when a State’s law
and practice are in line with the requirements of the judgment or
decision, as interpreted by the responsible international body.6 Thus,
compliance is understood as the outcome of implementation: a state
implements a judgment or decision in order to ensure that it is in
compliance with its obligations under this ruling. African human rights
bodies use the terms ‘monitoring’ or ‘following-up’ decisions and
judgments that we consider broader terms to cover the formal and
informal processes of oversight of the human rights bodies, and it is
these which this article examines. While acknowledging that the
monitoring of implementation cannot be the sole responsibility of the
respective treaty bodies, this article concentrates specifically on the role
of two human rights treaty body mechanisms (the Commission and the
Court) established within the AU. The contribution of the other AU
organs, including the Assembly of the Union (AU Assembly), Executive
Council, Peace and Security Council (PSC), Permanent Representatives
4
For information on the project, see http://www.bristol.ac.uk/law/research/centresthemes/hric/projects/implementationandcompliance/#d.en.278672
(accessed
10 October 2017). This is an independent research project funded by the Economic and
Social Research Council (ESRC) of the United Kingdom. Interviews have been
conducted under the University of Bristol’s rules on ethical research. This has required
that interviewee consent be obtained to attribute them in publications arising from the
research and anonymity, if requested, will be respected at all times. Therefore,
quotations cited in this article do not identify their authors. All interviews are held on
file with the research team, which includes the co-authors of this article.
5
See M Burgstaller Theories of compliance with international law (2004) 4; R
Murray & D Long The implementation of the findings of the African Commission on
Human and Peoples’ Rights (2015) 28; VO Ayeni ‘Introduction’ in VO Ayeni (ed) The
impact of the African Charter and the Maputo Protocol in selected African states (2016)
9.
6
K Raustiala ‘Compliance and effectiveness in international regulatory cooperation’
(2000) 32 Case Western Reserve Journal of International Law 388-391; B Kingsbury
‘The concept of compliance as a function of competing conceptions of international law’
(1998) 19 Michigan Journal of International Law 345.
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