“El futuro del Derecho africano pasa por el desarrollo de un sistema propio, sin forzar una especie de occidentalización”
"The future of African law lies in the development of its own system, without forcing a kind of Westernization."
The thesis defended by Luis G. Franceschi delves into the legal consequences of the African Charter on Human Rights.
"The future of African law lies in the development of a system of its own, without forcing a kind of westernization". This is what Luis G. Franceschi states in his thesis The African Human Rights Judicial System: a proposal for streamlining structures and domestication mechanisms viewed from the foreign affairs power perspective. From an African perspective, work analyzes the legal consequences of the African Charter on Human Rights.
According to Franceschi, "it is necessary to carry out a constitutional audit that examines how African countries regulate their foreign affairs. This will show how efficient each state is in the incorporation of international law, which is fundamental when it comes to incorporating and executing international judgments at subject on human rights".
Currently, there is a Court of Human and Peoples' Rights in Africa, although a merger with the still non-existent African Court of Justice has been proposed. The merger protocol proposes to form a single institution, to be called the African Court of Justice and Human Rights. For the author, the problem lies in the fact that the latter "does not present clear solutions for the enforcement of international judgments, which is a serious problem for avoiding future conflicts in Africa, where a kind of judicial impunity reigns, with only 12% of international decisions being enforced".
According to Franceschi, the merger is "well founded" although, in his opinion, "the merger protocol should propose the path of absorption and not that of substitution. That is to say, the new merged court would have to absorb the existing court, but never replace it, as foreseen in the merger protocol , because such replacement would mean starting from scratch, losing all the tradition and institutional report , while absorption would protect the report and tradition of the existing court". The thesis also suggests, among others, an expansion of the African jurisdiction to facilitate individual access to justice.
Finally, Franceschi's work warns of the importance of the economic and financial consequences of the merger "being taken into account" in order to guarantee the sustainability and independence of the court.