Home Articles posted by Karen J. Alter, James T. Gathii and Laurence R. Helfer

EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…

Filed under: EJIL, EJIL Article Discussion

Backlash Against International Courts in West, East and Southern Africa

Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).

Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.

Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded. Read the rest of this entry…

Filed under: EJIL, EJIL Article Discussion
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