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Individual and NGO participation in human rights litigation before the African Court of Human and Peoples' Rights: lessons from the European and Inter-American Courts of Human Rights

Published online by Cambridge University Press:  28 July 2009

Abdelsalam A. Mohamed
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Extract

In terms of article 6(1) of the Protocol Establishing the African Court of Human and Peoples' Rights, the Court may entitle both relevant non-governmental organizations (NGOs) with observer status before the African Commission on Human and Peoples' Rights (the Commission), and individuals to institute directly before it, urgent cases or cases of serious, systematic or massive violations of human rights. In deciding the admissibility of cases brought under article 6(1), the Court may request the opinion of the Commission which must give its opinion as soon as possible. Additionally, article 25(2) of the Protocol provides that the Court may receive written and oral evidence and other representations including expert testimony and it shall make a decision based on such evidence and representations.

Type
Research Article
Information
Journal of African Law , Volume 43 , Issue 2 , Autumn 1999 , pp. 201 - 213
Copyright
Copyright © School of Oriental and African Studies 1999

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References

1 All references to the Protocol are to the text resulting from the Second Governmental Legal Experts Meeting on the Establishment of an African Court of Human and Peoples' Rights, 11–14 04, 1997, Nouakchott, Mauritania.Google Scholar

2 See art 6(2) of the Protocol.

3 See Naldi, G. and Magliveras, K., “The proposed African Court of Human and Peoples' Rights: Evaluation and comparison”, (1996) 8 RADIC 944 at 951 and 962. In the case of the European Court of Human Rights, direct access by individuals and NGOs and the practice of filing amicus curiae briefs have been codified under Protocol 11.Google Scholar

4 Art. 3(1) of the Protocol.

5 Art. 3(2).

6 Art. 4(1).

7 Ibid. The Court is required to give reasons for its advisory opinions provided that every judge is entitled to deliver a separate or dissenting opinion: see art. 4(2) of the Protocol.

8 See art. 5(1).

9 Article 5(2).

10 The Cape Town Draft Protocol required that “exceptional grounds” be demonstrated before NGOs and individuals could institute cases before the Court. See Ibrahim Badawi El-Sheikh, A., “Draft Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples' Rights: Introductory note”. (1997) 9 RADIC 943 at 947.Google Scholar

11 The wording of art. 6(2) does not make clear whether the Court is obliged to request the Commission's opinion on the admissibility of cases filed by NGOs and individuals or whether it has only a discretionary power to do so.

12 See art. 6(3) of the Protocol.

13 See art. 6(4) of the Protocol.

14 See art. 6(5).

15 During the process of drafting the Protocol, some delegations wanted possible direct NGO access to the Court to be limited only to African NGOs. But this was obviously rejected. See El-Sheikh, above, 947.

16 Under art. 56 of the Banjul Charter, non-state communications relating to human and peoples' rights received by the Commission shall be considered if they: (1) indicate their authors even if the latter request anonymity, (2) are compatible with the OAU Charter or the Banjul Charter, (3) are not written in disparaging or insulting language directed against the state concerned and its institutions or the OAU, (4) are not based exclusively on news disseminated through the mass media, (5) are sent after exhausting local remedies, if any, unless it is obvious that such procedure is unduly prolonged, (6) are submitted within a reasonable period from the time the local remedies are exhausted or the Commission is seized with the matter, and (7) do not deal with cases which have been settled by the states involved in accordance with the principles of the UN Charter, OAU Charter or the Banjul Charter.

17 Naldi and Magliveras, above, 953–954.

18 See El-Sheikh, above. 950.

19 Ibid. at 951.

20 See below, n. 34.

21 Black's Law Dictionary (6th ed.), 1990, 82.

22 Ibid.

23 Note that sometimes, the amicus intervenes at the request of the court or at the request of one of the parties (see Ennis, B. J., “Effective amicus briefs”, 33 Cath. U.L.Rev 603, at 606 where the author cites the example of a case,Google ScholarMetromedia, Inc. v. San Diego 453 US 490 (1981), in which counsel for the plaintiffs asked the American Civil Liberties Union (ACLU) to file an amicus brief in support of their case).Google Scholar

24 See Angell, E., “The amicus curiae: American development of English institutions”, (1967) 16 I.C.L.Q. 1017.CrossRefGoogle Scholar

25 See Ennis, above at 604–605.

26 See Murray, C.. “Litigating in the public interest: Intervention and the amicus curiae”, (1994) 10 South African Journal of Human Rights 240 at 250 andCrossRefGoogle ScholarShelton, D.. “Non-governmental organizations and judicial proceedings”, 88 AJIL 611 at 618.CrossRefGoogle Scholar

27 See Krislov, S., “The amicus brief: From friendship to advocacy”. 72 Yale Law Journal, 694 at 711.CrossRefGoogle Scholar

28 See Ennis, above at 606 607.

29 See Shelton above.

30 See Ennis, above at 608.

31 Ibid. at 603.

32 See Shelton, above at 611.

33 Ibid.

34 Ibid. at 630.

35 See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe. European Treaties, ETS No. 155. Strasbourg. 11.V. 1994.

36 Ibid. art. 36(2).

37 In this regard the Court relied on Rule 38(1) which provides that “[t]he Chamber may, at the request of a Party or of Delegates of the Commission or proprio motu, decide to hear… in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its task”. This is the rule that has now been incorporated into Protocol 11, art. 36(2) with very little modification.

38 See Lester, A., “Amici curiae: Third party intervention before the European Court of Human Rights”, in Matscher, F. and Pertzold, H. (eds.), Protecting Human Rights: The European Dimension, (1988) 343 and Shelton, above at 632.Google Scholar

39 See Shelton, , above citing the case of Leander v. Sweden, 116 Eur. Ct. H. R. (Ser. A) (1987) where the National Council for Civil Liberties, on behalf of three British Trade Unions representing Government employees, requested permission to file information in the case concerning secret police registers.Google Scholar

40 Ibid.

41 In Ruiz-Mateos v. Spain, 262 Eur. Ct. H. R. (Ser. A) (1993) Germany and Portugal filed as amici curiae with respect to the applicability of article 6(1) of the Convention to Constitutional Courts. The ECHR, in its plenary opinion considered the arguments of the amici and noted, at para. 56, that they supported the position of the Spanish Government. The Court however held by 18 votes to 6 that there was a violation of art. 6(1) of the Convention by the Spanish Constitutional Court.Google Scholar

42 276 Eur. Ct. H. R. (Ser. A) (1993).Google Scholar

43 103 Eur. Ct. H. R. (Ser. A) (1986).Google Scholar

44 See Shelton, . above, at 634.Google Scholar

45 62 Eur. Ct. H. R. (Ser. A) (1984).Google Scholar

46 See Lester, , above, at 344.Google Scholar

47 Ibid. at 345.

48 See Shelton, , above, at 635.Google Scholar

49 Soering v. United Kingdom, 161 Eur. Ct. H. R. (Ser. A) (1989).Google Scholar

50 Ibid. para. 102.

51 Observer & Guardian v. United Kingdom, 216 Eur. Ct. H. R. (Ser. A) (1991);Google ScholarSunday Times v. United Kingdom, 217 Eur. Ct. H. R. (Ser. A) (1991).Google Scholar

52 See Observer & Guardian v. United Kingdom, above, para. 60.

53 For instance Judge Morenilla, in his partly dissenting opinion discusses and quotes from “the United States case law cited by Article 19” in regard to prior restraints on publications.

54 243A Eur. Ct. H. R. (Ser. A) (1992).

55 See Shelton, , above, at 636.Google Scholar

56 246 Eur. Ct. H. R. (Ser. A) (1992).Google Scholar

57 At para. 40.

58 258B Eur. Ct. H. R. (Ser. A) (1993).

59 Article 15 of the European Convention confers the right on States Parties to take measures derogating from certain of the rights enshrined in the Convention in times of war or public emergency threatening the life of the nation.

60 See in particular paragraph 3 of the decision where Judge Martens states:

(F)or my part, I found Amnesty International's arguments against so deciding persuasive, especially where Amnesty emphasized developments in international standards and practice in answer to world-wide human rights abuses under cover of derogation and underlined the importance of the present ruling in other parts of the world. Consequently, I regret that the Court's only refutation of those arguments is its reference to a precedent which is fifteen years old.… The old formula was also criticized as unsatisfactory per se by both Amnesty International and Liberty, Interights and the Committee on the Administration of Justice.… I agree with these criticisms.

61 104 Eur. Ct. H. R. (Ser. A) (1986);Google Scholar 105 Eur. Ct. H. R. (Ser. A) (1986).Google Scholar

62 Shelton, , above, at 637 and 638.Google Scholar

63 See for instance art. 64(1) of the American Convention on Human Rights.

64 See Shelton, , above, at 638Google Scholar

65 See Buergenthal, G., “The advisory practice of the Inter-American Human Rights Court”, (1985) 79 AJIL, 1 at 15.CrossRefGoogle Scholar

66 Ibid.

67 In contrast, art. 34(1) has been cited as the basis for the submssion of amicus briefs by certain private organizations. For example, in the case entitled “Other Treaties“ Subject to the Advisory Jurisdiction of the Court. (Art. 64 American Convention on Human Rights), 1 Inter-Am. Ct. H. R. (Ser.A) (1982), the Urban Morgan Institute asserted that: [I]t is our considered ipinion that the Statute of the Inter-American Court of Human Rights permits the Court to receive and consider this brief amicus curiae in the present case:Google Scholar see Brief for Urban Morgan Institute for Human Rights, pp. 144, 151.Google Scholar

68 See Buergenthal, above.

69 See above, n. 67.

70 Advisor Opinion OC-14/1994 of 9 December, 1994, Inter-Am. Ct. H. R. (Ser. A) No. 14 (1994).

71 See Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 46, 47, 50 and 51 of the American Convention on Huma n Rights), 13 Inter-Am. Ct. H. R. (Ser. A) para. 9 (1993).Google Scholar

72 Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica. Advisory Opinion OC-4/84 of 19 January, 1984. Inter-Am. Ct. H. R. (Ser. A) (1984). See also Buergenthal, above at 16.

73 Advisory Opinion OC-5/85 of 13 November, 1985, Inter-Am. Ct. H. R. (Ser. A) No. 5 (1985).

74 Above, at 641.

75 Above, at 17.

76 Above, at 20.

77 See generally Clark, R. S., “The International League for Human Rights and South West Africa 1947 1957: The human rights NGO as catalyst in the international legal process”, (1981) Human Rights Quarterly 101, at 136.Google Scholar