n Comparative and International Law Journal of Southern Africa - Beneath it all lies the principle of subsidiarity : the principle of subsidiarity in the African and European regional human rights systems
|Article Title||Beneath it all lies the principle of subsidiarity : the principle of subsidiarity in the African and European regional human rights systems|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Publication Date||Nov 2007|
|Pages||425 - 448|
The establishment of a three-tier international human rights system by nation states which entails the promotion and protection of human rights on the international, regional and municipal levels, has spawned the development of an elaborate hierarchy of legal instruments; institutions and norms. The nature and content of the relations between these three tiers is not as self-evident as may be implied by the hierarchy created as nation states are central to the functioning at all three levels. This article explores the structural relations between African and European human rights systems and their member states respectively via the principle of subsidiarity, which Carozza asserts is an implicit structural principle in international human rights systems. The article will show how this principle has manifested in the European system before analysing the African system to demonstrate that the very structure of the African system is also based on the principle. It shall also be shown that, in spite of this, the African Commission has failed to apply the tenets of the principle in its adjudication. This has led to undesirable and unforeseen consequences. Finally, the article calls for an explicit recognition of the importance and role of subsidiarity in the African system.
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