An Arusha-based World Court on Human Rights for African States?

The Arusha-based African Court on Human and Peoples’ Rights (ACtHPR) enjoys a distinctively broad contentious jurisdiction extending to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR)). The ACtHPR’s striking feature sets it apart also from most international courts. One may even argue that, as far as African States are concerned, the ACtHPR functions as a world court on human rights by consolidating human rights obligations of State parties under the auspices of a single judicial body on a regional level. In this post I will offer a few, brief thoughts on some of the legal issues pertaining to the material jurisdiction of the ACtHPR. For a detailed analysis of these matters see my recent article in the Human Rights Law Review.

The ACtHPR’s approach

The ACtHPR has proved itself willing to exercise its material jurisdiction to the fullest possible extent. It systematically applies, and finds violations of, other human rights treaties, including regional, sub-regional and UN treaties, and it orders the respondent States to comply with their respective obligations. Some scenarios on how applicants submit complaints are:

1. bringing a case claiming a violation of a right which is not protected under the ACHPR but is protected by another treaty ratified by the State concerned;
2. alleging a breach of a right which, although included in the ACHPR, is formulated in another treaty in a manner that ensures a higher level of protection (see, Lohé Issa Konaté);
3. claiming a violation of a human right which is protected in the same way under both the ACHPR and another treaty, but no mechanism is envisaged or is available to the applicant under that other treaty to bring an individual complaint (see Tanganyika Law Society);
4. choosing to bring a complaint before the ACtHPR (instead of, or in addition to, another international body) as a litigation strategy (e.g., physical proximity to a forum, litigation costs, avoidance of stricter admissibility criteria before UN human rights bodies).

New designs and old anxieties

The ACtHPR’s extensive material jurisdiction has been described by some scholars as a flaw in the design. Many argue that, if the ACtHPR extends its jurisdiction over other human rights treaties, this will lead to “jurisprudential chaos”. The analysis below ties the vague claim of “jurisprudential chaos” to certain concrete legal issues and explains why most concerns are exaggerated and, in fact, reflect long-standing (also exaggerated) anxieties regarding the role of regional and/or specialised international courts.

The anxiety of forum shopping

In the absence of explicit regulation of choice of forum by States (for example, by inserting a specific treaty clause), States and individuals may exercise all options available to them, including choice of forum, simultaneous petitioning and successive petitioning. Article 56(7) ACHPR allows all these options, with the exception of cases that have been settled by the States involved.

The arguments against forum shopping are that the existence and use of multiple venues for adjudicating human rights claims may lead courts to favour approaches tailored to their “clientele”, and may increase the risk of conflicting judgments. Forum shopping has acquired a negative connotation, even though it is equally arguable that forum shopping does not belong to the lexicon of international law due to the latter’s decentralized nature. The singular focus on the risk of diverging interpretations of the law is largely over-emphasised. Choice of forum enables creativity through dialogue among courts and a healthy level of competition among courts improves the quality of their rulings and encourages them to keep an eye on one another. It is frequently argued that States could take advantage of differing views of international courts and bodies on human rights by acknowledging the lowest common denominator in human rights protection but there is no precedent to support this claim.

The anxiety of monitoring other human rights treaties

The prospect of other, and especially UN, human rights treaties being justiciable and enforceable by a regional human rights court is a source of uneasiness. Entrusting such a task to a regional human rights court is admittedly unusual. Yet, since the ACtHPR has clear jurisdiction to apply and monitor UN human rights treaties (if ratified by the State concerned), why are we so distrustful towards the ACtHPR’s authority?

The first reason for being distrustful lies in the authority of a regional court to apply, declare violations of and monitor UN treaties. The function of an international court on a regional level casts doubt onto its relevance at a global level. The preoccupation with the risk of a particularistic development of international law dates back to the objections raised to the creation of the Central American Court of Justice. A second reason for treating the ACtHPR’s jurisdiction as a problematic circumstance rests upon the view that specialised international courts create risks for diverging interpretations of international law. This line of thinking insists on underlining the alleged risks posed by international courts entrusted with interpreting, applying and monitoring a specific treaty and/or subject area because different interpretations of similar or identical rules could undermine the integrity and the overall consistency of international law.

The risk of divergence is over-stressed. Looking for and highlighting a handful of instances of divergences and/or disagreements distorts the overall picture of communication and coordination among international courts. Moreover, it regularly gets overlooked that different interpretations and even divergences qualify as inevitable consequences of the nature and function of international law. One’s starting point should be that international courts disagreeing over the content of rules of international law is a healthy phenomenon. It is also crucial how one appreciates divergence. There is a thin line separating divergence from the development of international law (or the potential to develop international law).

Notably, there is a growing acceptance of the role and value of pronouncements by regional and/or specialised courts and other bodies. The ICJ, in a departure from its long-standing practice, now openly appreciates the authority of regional and specialised international courts (see cases of Jurisdictional Immunities of the State; Ahmadou Sadio Diallo, Compensation; Questions relating to the Obligation to Prosecute or Extradite). The International Law Commission in its draft conclusions on the identification of customary international law also acknowledges the value and relevance of judgments by all international courts (see Draft conclusion 13).

An unlikely topos of international law?

Is it also likely that we are reluctant to entertain the scenario that a regional international court may monitor UN or other global treaties because of the specific topos of the ACtHPR? The fixity of cities and spaces of delivering international justice, and developing international law, is well entrenched in the limited number and geography of the cities in which these processes take place. The ‘law of Geneva’ and the ‘law of Strasbourg’ assign international law a location, and narrate a specific story of progress. This arguably inhibits us from giving due regard to the seemingly unlikely places in which international law may be found. The ACtHPR can be seen as part of a different plausible map of international law articulating a design which is variant from the mainstream “model(s) of success” of regional human rights courts and, in general, the “templates” of international adjudication mechanisms.

Introducing propriety considerations in exercising the ACtHPR’s jurisdiction?

That being said, and depending on the cases brought before the ACtHPR in the future, there may be merit in finding ways to manage its broad material jurisdiction. The ACtHPR may be in the process of developing a policy of judicial restraint when exercising its jurisdiction over human rights treaties other than the ACHPR. It proclaimed that it is not necessary to consider alleged violations of the ICCPR, if it has already ruled on similar alleged violations under the relevant provisions of the Charter. However, no criteria are articulated on when this is unnecessary and, overall, the ACtHPR’s practice is inconsistent. Recently it found violations of other treaties on human rights without bringing the ACHPR into play at all.

Different legal justifications may be furnished to justify such a judicial practice. First, international courts have the power to decide the scope of a claim, by determining how the legal grounds establishing their jurisdiction and the nature of the claims shape the subject of a dispute. Second, international courts may not address all submissions by the applicants or all possible legal bases regarding the complaint(s) due to reasons of procedural economy as long such an approach is not unduly reductive. Third, it is also possible to make a choice of applicable law when many rules are applicable. This is not necessarily an issue of lex specialis, but rather an issue of ‘locating the corpus of law at the heart of a difficult issue’, as Higgins has stated (see, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons).

To conclude, the ACtHPR is an international court with novel features. The question, therefore, is whether we are to discuss and assess novel institutions against only the criteria and experience of existing bodies, or shall we also account for and appreciate the foregoing bodies in new light. Conversely, the ACtHPR is also an invitation to rethink how we approach both old and new international courts and to pave new ways forward in international judicial settlement.