78. The Court recalls that the Respondent State considers that the distinction made
by article 41(7)
of its Constitution
between the means
used
represents
a relationship
and the objective sought
of proportionality
in terms of protection
of its
sovereignty. However, in its submissions, the Respondent State has not provided
details
as to how
the
distinction
made
in article
41(7)
of its Constitution
is
necessary to protect its sovereignty or how its sovereignty would be jeopardized if
this provision was
repealed or amended,
for example. The Court is aware that,
under Article 27 of the Vienna Convention on the Law of Treaties, a State cannot
invoke
the
provisions
of its
internal
laws
to justify
the
non-fulfillment
of its
obligations under a treaty.?2
79. Specifically, in respect of the doctrine of margin of appreciation, the Court observes
that this doctrine has been
recurrent in international jurisprudence,
jurisprudence of the European Court of Human
“the ECHR’)
and also the former European
Rights (hereinafter referred to as
Commission
of Human
terms of definition, the margin of appreciation can be understood
which
international supervision
should
notably the
Rights.?° In
as “the line at
give way to a State Party’s discretion in
enacting or enforcing its laws.”24
80. The Court agrees with the Commission's position on the relevance of the margin
of appreciation for the interpretation and application of the Charter as stated
in
Prince v South Africa, where the Commission held that:
Similarly, the margin of appreciation doctrine informs the African Charter in that it
recognises
the respondent
state in being
better disposed
in adopting
rules, policies and guidelines in promoting and protecting human
rights as it indeed
resources,
national
and peoples'
has direct and continuous knowledge of its society, its needs,
economic and political situation, legal practices, and the fine balance
22 The Respondent State acceded to the Vienna Convention on the Law of Treaties on 12 April 1976, see:
https://treaties.un.org/Pages/ViewDetailslll.aspx?src=TREAT Y&mtdsg_no=XxXIll1&chapter=23&T emp=mtdsg3&clang = _en.
23 Lawless v Ireland, [1961] ECHR 2, Ireland v. United Kingdom [1978] ECHR 1, and Handyside v. UK
[1976] ECHR 5.
24 HC Yourow The Margin of Appreciation Doctrine in the Dynamics
Jurisprudence (1996: Kluwer Law International) 13.
22
of the European Human
Rights