Two Paths in the Future Relationship of the European Court of Human Rights and the African Court of Human and Peoples’ Rights

ABSTRACT

There are two potential paths in the future relationship between the African and European Human Rights Courts. One path, brimming with optimism, sees a ‘global community of courts’ engaging in judicial dialogue that contributes to global human rights law. A second path has emerged in a Concurring Opinion to ND and NT v. Spain, a judgment legitimizing pushback of migrants at the borders of Europe. Judge Pejchal suggested that the application should have been struck out, as the applicants could have brought their claim to the African Court if they were unsatisfied with the human rights situation in their home country. This remains the sole reference to the African Court in the jurisprudence of the European Court. It takes place in a context of backlash against both courts in politically fraught areas, and in shared territorial experiences of waves of migration from Africa to Europe. This article presents the two paths of these regional courts and their intertwining futures, focusing on the judicial practices that facilitate dialogue. We explore these paths empirically and argue that aspirations of unity and the cynicism of insularity are likely to be prominent and overlapping themes in the future of regional human rights courts.

KEYWORDS:

• International human rights law
• European Court of Human Rights
• African Court of Human and Peoples’ Rights
• regional human rights courts
• judicial dialogue

Disclosure Statement

No potential conflict of interest was reported by the authors.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Jorge Luis Borges, ‘The Garden of Forking Paths’ Collected Fictions (Andrew Hurley tr, Penguin Books 1999) 127.

2 Solomon T Ebobrah, ‘International Human Rights Courts’ in The Oxford Handbook of International Adjudication (Oxford University Press 2013) 248.

3 ‘Kampala Declaration’ <www.african-court.org/en/index.php/news/press-releases/item/322-kampala-declaration/>.

4 A recording of the Forum is available at ‘Cedh – 20210325/1 (EN)’ (European Court of Human Rights/Cour Européenne des Droits de l’Homme) <https://vodmanager.coe.int/cedh/webcast/cedh/2021-03-25-1/en/>. This process largely reflected the academic discourse on transnational judicial dialogue as an indicator of unity and cooperation. See e.g. Mads Tønnesson Andenæs and Eirik Bjørge, A Farewell to Fragmentation Reassertion and Convergence in International Law (Cambridge University Press 2015); Mario Prost, The Concept of Unity in Public International Law (Bloomsbury 2012).

5 ND and NT v Spain, Apps Nos 8675/15 and 8697/15 (2020) (ECtHR Grand Chamber).

6 Ibid. Concurring Opinion of Judge Pejchal, 4.

7 That context shapes the work and authority of international courts has been a prominent research theme in the last ten years. See e.g. Karen Alter, Laurence Helfer and Mikael Madsen (eds), International Court Authority (Cambridge University Press 2018).

8 A broader statistical picture for relations between the three regional human rights courts and the UN Human Rights Committee is available in Wayne Sandholtz, ‘The ECtHR, Transregional Dialogues and Global Constitutionalism’ (2020) 9 Global Constitutionalism 543. The relationship between the Inter-American Court and the ECtHR is discussed in depth in Eduardo Ferrer Mac-Gregor, ‘What Do We Mean When We Talk about Judicial Dialogue: Reflections of a Judge of the Inter-American Court of Human Rights’ (2017) 30 Harvard Human Rights Journal 89.

9 Tom Gerald Daly and Micha Wiebusch, ‘The African Court on Human and Peoples’ Rights: Mapping Resistance Against a Young Court’ (2018) 14 International Journal of Law in Context 36.

10 See further ‘African Court Cases | Home’ <http://www.african-court.org/cpmt/> accessed 16 May 2022.

11 James Thuo Gathii and Jacquelene Wangui Mwangi, ‘The African Court of Human and Peoples’ Rights as an Opportunity Structure’ in The Performance of Africa’s International Courts (Oxford University Press 2020).

12 Adamantia Rachovitsa, ‘On New “Judicial Animals”: The Curious Case of an African Court with Material Jurisdiction of a Global Scope’ (2019) 19 Human Rights Law Review 255.

13 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights 1998, arts 3 and 7.

14 Rev Christopher R Mtikila v United Republic of Tanzania [2013], App No 011/2011 (African Court HPR).

15 Houngue Eric Noudehouenou v Republic of Benin [2020] App No 003/2020 (African Court HPR).

16 Excluding courts with overlapping jurisdiction, such as the ECOWAS Court of Justice.

17 There are also 16 references to the International Court of Justice and 7 references to international criminal courts: the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Court.

18 See Mac-Gregor (n 8) 108.

19 ‘Semantic authority refers to an actor’s capacity to find acceptance for its interpretative claims or to establish its own statements about the law as content-laden reference points for legal discourse that others can hardly escape.’ Ingo Venzke, ‘Semantic Authority’ in Jean d’Aspremont and Sahib Singh, Concepts for International Law (Edward Elgar 2019) 815.

20 On the complementary value of citation networks for legal methodology, see Urska Šadl and Henrik Palmer Olsen, ‘Can Quantitative Methods Complement Doctrinal Legal Studies? Using Citation Network and Corpus Linguistic Analysis to Understand International Courts’ (2017) 30 Leiden Journal of International Law 327.

21 Alex Thomas v United Republic of Tanzania [2015], App No 005/2013 [2015] African Court HPR App No 005/2013 [95].

22 Ally Rajabu and Others v United Republic of Tanzania [2019] App No 007/2015 (African Court HPR) [149].

23 Alex Thomas (n 21) [104].

24 Wilfred Onyango Nganyi & 9 Others v United Republic of Tanzania [2016], App No 006/2013 (African Court HPR) [136].

25 2nd International Human Rights Forum (Regional Courts), 25 March 2021. Organized by the European Court of Human Rights. Remarks by Judge Ben Achour. ‘Cedh – 20210325/1 (EN)’ (n 4).

26 See Martin Lolle Christensen, The Use of External Judicial Decisions by Regional Human Rights Courts (European University Institute 2021).

27 Gathii and Mwangi (n 11) 252.

28 Ibid.

29 Daly and Wiebusch (n 9).

30 Apollin Koagne Zouapet, ‘“Victim of Its Commitment … You, Passerby, a Tear to the Proclaimed Virtue”: Should the Epitaph of the African Court on Human and Peoples’ Rights Be Prepared?’ (EJIL: Talk!, 5 May 2020) <www.ejiltalk.org/victim-of-its-commitment-you-passerby-a-tear-to-the-proclaimed-virtue-should-the-epitaph-of-the-african-court-on-human-and-peoples-rights-be-prepared/>.

31 See generally Lize R Glas, ‘From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?’ (2020) 20 Human Rights Law Review 121; Jakub Czepek, ‘The Application of the Pilot Judgment Procedure and Other Forms of Handling Large-Scale Dysfunctions in the Case Law of the European Court of Human Rights’ (2018) 20 International Community Law Review 347.

32 Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487.

33 T Kleinlein, ‘The Procedural Approach to the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution’ (2019) 68 International and Comparative Law Quarterly 91.

34 Mikael Rask Madsen, ‘“Unity in Diversity” Reloaded: The European Court of Human Rights Turn to Subsidiarity and Its Consequences’ (2021) 15(1) Journal of Law and Ethics of Human Rights 1.

35 Laurence Burgorgue-Larsen, ‘“Decompartmentalization”: The Key Technique for Interpreting Regional Human Rights Treaties’ (2018) 16 International Journal of Constitutional Law 187; Adamantia Rachovitsa, ‘The Principle of Systemic Integration in Human Rights Law’ (2017) 66 International and Comparative Law Quarterly 557.

36 Burgorgue-Larsen (n 35).

37 See Figure 1 in Erik Voeten, ‘Why Cite External Legal Sources?: Theory and Evidence from the European Court of Human Rights’ in Chiara Giorgetti and Mark Pollack (eds), Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition among International Courts and Tribunals (Cambridge University Press 2022).

38 For a positive assessment of the ECtHR’s practice as a coordinating function of judicial dialogue, see Wayne Sandholtz, ‘The ECtHR, Transregional Dialogues and Global Constitutionalism’ (2020) 9 Global Constitutionalism 543.

39 See Martin Christensen and William Byrne Hamilton, ‘The European Court of Human Rights Vis-a-Vis the African Court of Human and Peoples Rights |’ (The ACtHPR Monitor, 3 March 2020) <https://www.acthprmonitor.org/the-european-court-of-human-rights-vis-a-vis-the-african-court-of-human-and-peoples-rights/> accessed 10 February 2021.

40 ND and NT v Spain (n 5).

41 Ibid. Concurring Opinion of Judge Pejchal, 1 and 3.

42 Ibid. 6.

43 Ibid.

44 The sentiment of the Kampala Declaration is indicative of the ECtHR’s optimism: ‘Kampala Declaration’ (n 3).

45 Maximilian Pichl and Dana Schmalz, ‘“Unlawful” May Not Mean Rightless: The Shocking ECtHR Grand Chamber Judgment in Case ND and NT’ (VerfBlog, 14 February 2020) <https://verfassungsblog.de/unlawful-may-not-mean-rightless/>.

46 See Mikael Rask Madsen, ‘Two-Level Politics and the Backlash Against International Courts: Evidence from the Politicisation of the European Court of Human Rights’ (2020) 22(4) The British Journal of Politics and International Relations 728.

47 See further Ralph Wilde, ‘The Unintended Consequences of Expanding Migrant Rights Protections’ (2018) 11 AJIL Unbound 487.

48 Hirsi Jamaa and Others v Italy, Application no 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012.

49 Sharifi and Others v Italy and Greece (Application No 16643/09), 21 October 2014 (Second Chamber).

50 Khlaifia and Others v Italy, Application no 16483/12, Council of Europe: European Court of Human Rights, 15 December 2016.

51 ND and NT v Spain (n 5) [144]–[151].

52 The judgment was voted the worst judgment of 2020 by over 50% of the participants on Strasbourg Observers, ‘Poll: Best and Worst ECtHR Judgment of 2020’ (Strasbourg Observers, 29 January 2021) <https://strasbourgobservers.com/2021/01/29/poll-best-and-worst-ecthr-judgment-of-2020/>.

53 Thomas Gammeltoft Hansen, Mikael Rask Madsen and Henrik Palmer Olsen, ‘The Limits of Indirect Deterrence of Asylum Seekers’ blog post <https://verfassungsblog.de/the-limits-of-indirect-deterrence-of-asylum-seekers/>.

54 ND and NT v Spain (n 5) [187].

55 Hirsi Jamaa and Others v Italy, Application no 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012, para 147.

56 Martin den Heijer, ‘The Practice of Shared Responsibility in Relation to Refoulement’ SHARES Research Paper 84 (2016), ACIL (Amsterdam Centre for International Law) 2016-09.

57 ND and NT v Spain (n 5) Concurring Opinion of Judge Pejchal, para 7.

58 Elisabeth Lambert Abdelgawad, ‘The Practice of the European Court of Human Rights when Striking Out Applications’ (2018) 36(1) Netherlands Quarterly of Human Rights 7.

59 Emmanuelle Bribosia and Isabelle Rorive, Human Rights Tectonics: Global Perspectives on Integration and Fragmentation (Intersentia 2018).

60 Susan Marks, ‘Human Rights and Root Causes’ (2011) 74 The Modern Law Review 57.

61 To the extent to which this change has already happened, see Christensen (n 26).

62 Martti Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in Intenational Law as a Profession (Cambridge University Press 2017).

63 Martti Koskenniemi, ‘Speaking the Language of International Law and Politics: Or, of Ducks, Rabbits, and Then Some’ in Jeff Handmaker and Karin Arts (eds), Mobilising International Law for ‘Global Justice’ (Cambridge University Press 2018) 42.

64 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 The Modern Law Review 1, 25.

65 Borges (n 1) 125.