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 women. Mtikila 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…