Busingye Kabumba

The body of public international law that may be known as ‘African Union (AU) law’, that is to say, the treaties, resolutions, constitutive documents, jurisprudence and practices of the AU, now constitute a respectable corpus of legal material. However, not only is this body of law under-theorised and under-studied by general public international law scholars, the nature of its reception and application within the domestic legal orders of AU member states is even more neglected. This article seeks to address the dearth of scholarship in this regard by critically analysing the judicial reference to AU law in one African country – Uganda – having particular regard to the reception of human rights related AU law.

The phenomenon of soft law has generated significant debate, and controversy, in international legal scholarship. Nevertheless, soft law instruments remain an increasingly important feature of norm generation in international society. This chapter suggests that the resilience of soft international law can only be properly understood by having regard to another contemporary idea in international law – the concept of legitimacy. To this end, the chapter proposes a general theory for understanding the interaction between soft law and legitimacy in international law. This theory is then applied as a lens for analysing the nature, role and impact of soft law in the African Union system, using the Pretoria Principles on Ending Mass Atrocities Pursuant to Article 4(h) of the Constitutive Act of the African Union as a case study. The chapter demonstrates that soft law can be a powerful tool in the hands of non-traditional actors in international law, one which should be applied conscientiously and deliberately to democratise and humanise international law, rather than to entrench its more hegemonic aspects.

This chapter examines the approach that courts in Uganda have taken with regard to the application on international law. Judges have on many occasions not been comfortable engaging with questions of international law that have arisen in domestic cases. In these instances, they have chosen to substantially avoid engaging with the international law aspects of the disputes by deciding the cases on municipal law grounds where possible. However, sometimes the failure to invoke applicable international legal norms has been a deliberate strategy on the part of advocates who might either have felt that arguments based on international law may not be availing, or were themselves not adequately conversant with the relevant norms. At other times, courts have used international law as an aid to interpretation of domestic law, particularly in the context of constitutional litigation. The courts’ use of international law constitutes a recognition that the Constitution of Uganda (1995), and the Bill of Rights in particular, was inspired by and based upon the international human rights law regime. Judges have therefore felt comfortable having regard to the jurisprudence of international and regional human rights tribunals to shed light on the scope of constitutional provisions that mirror those in various conventions on human rights.