The African Court on Human and Peoples' Rights: (2008)
AuthorsBortfeld, Mathiasshow all
This thesis focuses on the establishment and operation of the latest regional Human Rights Court: The African Court on Human and Peoples' Rights. For the development of human rights protection mechanisms within regional organizations the governments of the member states are of special relevance. They pull the strings to either foster and develop a system or to disrupt it. Therefore, following a brief historical introduction, the first chapter gives an overview of the regional African organization, the former Organization of African Unity (OAU) and today's African Union (AU) which was instrumental in the establishment of the African Human Rights System and has now enhanced it by adding a judicial authority. However, it will become clear that is has taken a long time for the OAU to put human rights violations within the borders of its own member states on its agenda: Not until there was increasing international pressure due to never-ending excrescences of violence in the dictatorial regimes in Africa did the OAU carefully attend to this matter in the late 1970s. Its efforts culminated in the adoption of the African Charter on Human and Peoples' Rights (the eponymous Banjul Charter) which entered into force in 1981. The body for the protection created by the Charter was the African Commission on Human and Peoples' Rights which took up its function in 1987. Since the newly established African Court is not supposed to replace the Commission but rather to strengthen it, the Court operates in concert with the Commission. Therefore the old protection system will still be applicable which deems a portrayal of the system in the following chapter necessary. Here, it will be outlined, that the competences of the Commission remain very limited and that its judicial impact on the State parties involved in its protection procedures has been nearly nil up to this very day. Against this background the next chapter focuses on the Protocol to the Banjul-Charter establishing the African Court on Human and Peoples' Rights. First, the historical-political background and the protocol's juridical formulation process are examined. Here it will be shown that the end of global bipolarity has had a remarkable impact on the political protagonists in Africa with the effect that the increasing demands for a human rights Court within the OAU no longer remained completely unheard. It will also be outlined that the path towards the adoption of the protocol has been long and difficult. After a short survey of the organisational structure of the Court it will become clear that the protocol follows to a large extend its Inter-American counterpart concerning the institutional embodiment. However, a remarkable and, in international comparison, a unique achievement has also been achieved by the institutional regulations by making gender equality has one of the key issues to encompass when it comes to the nomination and election of judges. The following chapters outline the jurisdiction of the Court and the judicial process before the Court. In this connection the admissibility criteria will be highlighted in which two remarkable regulations stand out: First, it will become clear that in contrast to other regional human rights courts individuals and NGOs alike are entitled to file a complaint with the African Court (even though initially with the help of the Commission, since the protocol makes the complaint authority of individuals and NGOs dependent of a special declaration of acceptance of the State Parties concerned). Moreover, also unique compared to international two-tier human rights procedures, the protocol does not include a provision according to which a complainant would be obliged to go through a prior Commission procedure before filing a complaint with the Court. Individual complainants rather have direct access to the Court once a declaration of acceptance has been submitted by a State Party to the protocol. Following short remarks on the competence of the Court to issue provisional measures which, among other things, reveal that these measures have, in contrast to those of the ECtHR, binding effect the procedural termination of a complaint comes into focus. Here, the possible contents of the rulings and the control mechanisms for their implementation are being contemplated in a detailed fashion. This last aspect most probably will have great influence on the fate of the Court since the Commission for its part had to a large extent no success due to the fact that it had no conventional implementation procedures to rely on. Therefore, in the vast majority of cases the findings of the Commission trailed off without any State Party concerned paying any attention to it. The drafters of the protocol establishing the Court obviously have learned this lesson since the protocol provides for a quite remarkable implementation mechanism that may be able to impose political and legal pressure alike on State Parties if the Court deems that they have not properly complied with a Court's ruling. Even sanctions within the African Union against a recusant State come into question from a legal point of view - a quantum leap regarding the legal situation under the Banjul Charter. The last chapter rehearses the main findings of the thesis and concludes with a positive outlook on the future development of the African human rights system.
KeywordsInternational law; human rights law; regional human rights protection; human rights in Africa; Human Rights Court; Human Rights Commission; African Court of Human Rights
RightsCopyright Mathias Bortfeld
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