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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

 

Comments on Shany’s “No Longer a Weak Department of Power?”

Published on June 11, 2009        Author: 

 From July 2009, Professor Laurence Helfer will be the Harry R. Chadwick, Jr. Professor of Law at Duke University School of Law. His publications include: “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community”, (2009) 103 Am. J. Int’l L. 1 (with Karen Alter and Florencia Guerzovich); and  Why States Create International Tribunals: A Response to Professors Posner and Yoo,” 93 California Law Review 899 (2005) (with Anne-Marie Slaughter)

 Yuval Shany is a leading international law scholar of international courts and tribunals.  His many publications, including two books in Oxford University Press’s International Courts and Tribunals Series, have literally mapped the field’s coordinates.  His work has explored both the horizontal connections among the burgeoning number of international adjudication mechanisms and vertical relations between international judges and their national colleagues.

 In his recent article, No Longer a Weak Department of Power? Reflects on the Emergence of a New International Judiciary, Professor Shany provides a clear-eyed and succinct overview of changes “in the ethos underlying the operation of international courts” that are the result of an increase in the number of such courts and an expansion of their authority.  Whereas the ground norm that once informed international adjudication was dispute resolution, Professor Shany argues that the new international judiciary emphasizes different values-”the advancement of specific normative and institutional goals,” the maintenance of subject-specific international regimes, and “strengthening the rule of law.”  After describing these “new ethoi,” No Longer a Weak Department of Power? provides a brief tour of the contemporary international judicial landscape, including its peaks (such as the adjudication of international trade disputes and the role of national courts in applying international law) and its valleys (jurisdictional and normative conflicts and compliance problems).

 In this comment, I first highlight what I see as the principal contributions of Professor Shany’s  article.  I then discuss one small ambiguity in the article concerning whether international courts can or should resolve “high politics” and “high profile” disputes, such as those involving the use of force and terrorism.  I conclude by arguing for a more empirically-grounded approach to the study of international courts and tribunals, an approach that includes paying greater attention to the distinctive characteristics of the many regional and sub-regional courts outside of Europe whose increasing activity has been ignored by most scholars.

Read the rest of this entry…

 
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