10.1007@978 3 319 94848 5

Stefan Kadelbach · Thilo Rensmann
Eva Rieter Editors
Judging
International
Human Rights
Courts of General Jurisdiction as Human
Rights Courts
Judging International Human Rights
Stefan Kadelbach • Thilo Rensmann • Eva Rieter
Editors
Judging International
Human Rights
Courts of General Jurisdiction
as Human Rights Courts
Editors
Stefan Kadelbach Thilo Rensmann
Faculty of Law Faculty of Law
Goethe University Augsburg University
Frankfurt am Main, Germany Augsburg, Germany
Eva Rieter
Faculty of Law
Radboud University
Nijmegen, The Netherlands
ISBN 978-3-319-94847-8 ISBN 978-3-319-94848-5 (eBook)

https://doi.org/10.1007/978-3-319-94848-5
Library of Congress Control Number: 2018961463
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In memory of Richard B. Lillich (1933–1996)
Preface
The present volume brings together a group of distinguished international experts to

discuss the way in which “courts of general jurisdiction” implement and develop
international human rights law. This broad approach, which is specifically designed
to look beyond specialized “human rights courts”, reflects the increasingly important
role played by international and domestic courts in upholding the ideal of a world
governed by human rights as formulated in the Universal Declaration of Human
Rights in 1948. Seventy years down the road, it appears that we are gradually
moving away from the realization of this bold vision. At the international level,
we are increasingly confronted with the reality of a multipolar “post-human rights”
world. At the domestic level, populist movements vilifying international human
rights as undermining traditional national values and the “true” will of the people are
on the rise. In such a political environment, international and domestic courts
become the last bastions of human rights and it remains to be hoped that they will
be able to stand their ground as trustees of the “inalienable rights of all members of
the human family.”
This book builds on research undertaken by the International Human Rights Law
Committee of the International Law Association (ILA) between 2008 and 2016.
Initial drafts of some of the contributions to this volume were prepared, presented,
and discussed by members of the Committee at its meetings in June 2012 at the
Bellagio Center of the Rockefeller Foundation. In December 2013, the late Sir Nigel
Rodley hosted a meeting at Wivenhoe House in Colchester, England, which allowed
the Committee to push forward with the first part of its Final Report. At the invitation
of Judge Paulo Pinto de Albuquerque of the European Court of Human Rights, the
Committee met in May 2016 at the Court in Strasbourg. This meeting was central to
the completion of the Committee’s Final Report and Guidelines. The discussions in
the open working sessions in Washington, 2014, and Johannesburg, 2016, in which
members from other ILA Committees participated, also made a valuable contribu-
tion to the development of this book. In addition to members of the Committee,
several external experts were invited by the editors to add their views and
perspectives.
vii
viii Preface
We are grateful to all authors for the effort and care with which they prepared
their contributions, as well as their cooperation and patience during the genesis of
this volume. Wherever possible, the contributions initially written in preparation of
the Committee’s Final Report were subsequently revised to keep abreast of devel-
opments in the intervening period. Most contributions were updated as of late 2017.
There is, of course, always potentially game-changing “subsequent practice,” but we
trust that this book will also remain relevant in the analysis of such new
developments.
During the editorial process, we received invaluable support from our colleagues
and staff at the Universities of Augsburg, Frankfurt, and Nijmegen. We are partic-
ularly grateful to Johannes Baier, Marie Dickel, Marc Egle, Rosa Möhrlein, and
Theresa Neumann for their assistance and comments.
Last but not least, we would like to express our thanks to our publisher for sharing
our belief in the importance and topicality of this volume and, in particular, Dr.
Brigitte Reschke and Manuela Schwietzer for their advice and support.
The book is dedicated to the memory of Richard B. Lillich, whose project it was
to take human rights before courts. Professor Lillich served as rapporteur and
chairman of the ILA Human Rights Law Committee from 1976 to 1996.
Frankfurt am Main, Germany Stefan Kadelbach

Augsburg, Germany Thilo Rensmann
Nijmegen, The Netherlands Eva Rieter
November 2018
Contents
Part I General Introduction

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Stefan Kadelbach, Thilo Rensmann, and Eva Rieter
The International Court of Justice and Its Contribution
to Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Eva Rieter
The Domestic Implementation of Judgments/Decisions of Courts
and Other International Bodies That Involve International
Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Stefan Kadelbach
Part II International and Regional Courts of General Jurisdiction as

Human Rights Courts
The International Court of Justice and Diplomatic Protection . . . . . . . . 103
Kimio Yakushiji
The International Court of Justice and Provisional Measures
Involving the Fate of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Eva Rieter
The European Court of Justice and Human Rights Law . . . . . . . . . . . . 171
Stefan Kadelbach
Courts of Regional Economic Communities in Latin America
and Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Marcilio Toscano Franca Filho, Lucas Lixinski,
and Belén Olmos Giupponi
ix
x Contents
Courts of Regional Economic Communities in Africa and Human

Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Solomon T. Ebobrah
Part III Obligations Imposed by Human Rights Treaties with Regard

to the Implementation of Human Rights by Domestic Courts
State Obligations Under Universal Human Rights Treaties . . . . . . . . . . 257
Johannes van Aggelen
State Obligations in the European System . . . . . . . . . . . . . . . . . . . . . . . 279
Paulo Pinto de Albuquerque
State Obligations in the Inter-American System . . . . . . . . . . . . . . . . . . 291
Christina Cerna
State Obligations in the African System . . . . . . . . . . . . . . . . . . . . . . . . . 313
Yakaré-Oulé (Nani) Jansen Reventlow and Rosa Curling
Part IV The Role of Courts in the Domestic Implementation

of International Human Rights
General Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Matthias Herdegen
Argentina and Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Christina Cerna
Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Liliana Lyra Jubilut and Marcilio Toscano Franca Filho
Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Daniel Heilmann
Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
Jonas Christoffersen
France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
Saïda El Boudouhi and Gesa Dannenberg
Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Thilo Rensmann
Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Elena Sciso
Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Koji Teraya
Kenya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543
Duncan M. Okubasu
Contents xi
Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563
Dragica Wedam Lukić
United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589
Mark Weston Janis
ILA Johannesburg Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
About the Contributors
Christina Cerna is adjunct professor of law at the Georgetown University Law

Center, Washington, DC, USA. She retired at the end of 2011 from the Inter-
American Commission on Human Rights after 33 years with the Organization of
American States.
Jonas Christoffersen is executive director of the Danish Institute for Human

Rights (DIHR), Copenhagen, Denmark’s national human rights institution.
Rosa Curling is an international human rights and public law solicitor. She cur-
rently advises and represents clients before the African regional human rights courts.
Gesa Dannenberg is assistant professor of law at the Université de Cergy-Pontoise,

France. She specializes in international dispute settlement, in particular individual
rights in inter-state litigation.
Solomon T. Ebobrah is professor of law at the Niger Delta University, Nigeria. He

is extraordinary lecturer at the Centre for Human Rights at the University of Pretoria,
South Africa, and affiliated researcher at the Centre of Excellence for International
Courts (iCourts) at the University of Copenhagen, Denmark.
Saïda El Boudouhi is professor of public international law at the Université de

Valenciennes et du Hainaut-Cambrésis, France. She works, inter alia, on the appli-
cation of international law by national judges, notably through her coordination of
the French section of international law in domestic courts.
Marcilio Toscano Franca Filho is visiting professor at the Università degli Studi
di Torino, Italy. He is a professor of the Federal University of Paraíba (UFPB),
Brazil, and alternate arbitrator at the MERCOSUR Permanent Review Court,
Asunción, Paraguay. He is also a member of the ILA Executive Council.
Daniel Heilmann is country director of the Hanns Seidel Foundation in Indonesia.

xiii
xiv About the Contributors
Matthias Herdegen holds the chair for public law, European law, and international
law and is director of the Institute for Public International Law at the University of
Bonn, Germany.
Mark Weston Janis is William F. Starr Professor of Law at the University of

Connecticut, USA. He is visiting fellow and formerly reader in law at the University
of Oxford, United Kingdom.
Yakaré-Oulé (Nani) Jansen Reventlow is the founding director of the Digital

Freedom Fund in Berlin, Germany, and an associate tenant at Doughty Street
Chambers in London, United Kingdom. She is an affiliate at the Berkman Klein
Center for Internet and Society at Harvard University, USA.
Liliana Lyra Jubilut is professor of the Postgraduate Program in Law of the

Universidade Católica de Santos, Brazil. She was a member (alternate) of the ILA
International Human Rights Committee from 2011 to 2017 and is currently a
member (alternate) of the ILA Human Rights in Times of Emergency Committee.
Stefan Kadelbach is professor of public, international, and European law at the

Goethe University in Frankfurt am Main, Germany. From 2014 to 2016, he served as
co-rapporteur on the ILA International Human Rights Law Committee.
Lucas Lixinski is an associate professor at the University of New South Wales,

Australia. He has held visiting appointments at Central European University,
Universidad de Los Andes, Sherbrooke University, McGill University, and Sidney
Sussex College, Cambridge University.
Duncan Okubasu is an advocate at the High Court of Kenya and lecturer in

constitutional law at Kabarak University, Kenya. He is based in Nairobi and has
argued several cases in Kenya’s superior courts as a constitutional and a human
rights litigation lawyer.
Belén Olmos Giupponi is a senior lecturer in EU and international law at the

Liverpool Hope University, United Kingdom. Throughout her career, Dr Olmos
Giupponi has undertaken research in EU law, general international law, international
economic law, human rights, and environmental law.
Paulo Pinto de Albuquerque is a judge at the European Court of Human Rights

and professor catedratico at the Law Faculty of the Catholic University in Lisbon,
Portugal.
Thilo Rensmann is a professor of public, international, and European law at the

University of Augsburg, Germany. From 2014 to 2016, he served as co-rapporteur
on the ILA International Human Rights Law Committee.
About the Contributors xv
Eva Rieter is senior researcher and assistant professor in public international law
and human rights law at Radboud University, Nijmegen, the Netherlands. From
2012 to 2014, she served as co-rapporteur on the ILA International Human Rights
Law Committee.
Elena Sciso is full professor of public international law, international economic and
environmental law, and international organizations and human rights at Luiss Uni-
versity of Rome, Italy. She is managing director of the Research Centre on Interna-
tional and European Organizations.
Koji Teraya is professor of international law at the Graduate Schools for Law and
Politics, University of Tokyo, Japan. He has been a member of the Committee on
Enforced Disappearances since July 1, 2017.
Johannes van Aggelen is professor of international law, Brasilia, Brazil, and

formerly senior human rights officer (OHCHR), Geneva, Switzerland.
Dragica Wedam Lukić is professor emeritus of the University of Ljubljana,

Slovenia. Until 2012, she was professor of law at the Faculty of Law of the
University of Ljubljana. From 1998 to 2007, she served as judge at the Constitu-
tional Court of Slovenia and from 2001 to 2004 as its president.
Kimio Yakushiji is professor of law at the Ritsumeikan University, Kyoto, Japan.

He is a former member of the Committee on Enforced Disappearances. He is also
former president of the Japanese Society of International Law.
Part I
General Introduction
Introduction
Stefan Kadelbach, Thilo Rensmann, and Eva Rieter
This book concerns the role played by international and domestic courts of general
jurisdiction in implementing and developing international human rights law. For the
purposes of this volume, such “courts of general jurisdiction” differ from “human
rights courts” proper in that they have not been established to deal specifically and
exclusively with human rights. As such, courts of general jurisdiction also encom-
pass regional (economic) integration courts and all other courts with jurisdiction
over non-human rights matters.
Courts of general jurisdiction and specialized human rights courts differ in their
approach to international human rights. In analyzing these differences, the double
function of human rights as protecting individual liberties on the one hand and
constituting “objective,” transformative values or principles on the other needs to be
borne in mind.1 In practice, many courts are thus entrusted not only with providing a
remedy for human rights violations in individual cases but also with addressing more
systemic changes to the legal system required by the “radiating effect” of human
rights law on other fields of “general” law.
In this sense, courts of general jurisdiction in certain cases may be even better
placed than human rights courts to implement international human rights and
1
On this distinction, see Rensmann, Germany, in this Volume.
S. Kadelbach
Goethe University, Frankfurt am Main, Germany
e-mail: s.kadelbach@jur.uni-frankfurt.de
T. Rensmann
University of Augsburg, Augsburg, Germany
e-mail: thilo.rensmann@jura.uni-augsburg.de
E. Rieter (*)
Radboud University, Nijmegen, The Netherlands
e-mail: e.rieter@jur.ru.nl
© Springer International Publishing AG, part of Springer Nature 2019 3

S. Kadelbach et al. (eds.), Judging International Human Rights,
https://doi.org/10.1007/978-3-319-94848-5_1
4 S. Kadelbach et al.
therefore have a more significant impact on the “humanization” of law. For example,
while human rights courts also take other law and the general interest into account
when interpreting limitation clauses, they cannot apply “general law” directly2 and
must accordingly rely on their views being implemented by courts of more general
jurisdiction, as well as other competent institutions.
However, courts of general jurisdiction also face problems in relation to the
application of international human rights law. International (non-human rights)
courts are often restrained by their limited jurisdiction, which is frequently restricted
ratione personae to inter-state proceedings and ratione materiae to a specific
(non-human rights) treaty. Even though domestic courts are typically not bound by
such jurisdictional limitations, their room for maneuver in taking cognizance of
international human rights is normally constrained by the different constitutional
doctrines governing the relationship between international and municipal law.
These are only some of the aspects against the backdrop of which the contribu-
tions in this volume explore the manner in which courts of general jurisdiction
develop and implement international human rights law. The focus of these enquiries
lies on the actual practice of courts rather than on the competence assigned to them
on paper.
This volume builds on research undertaken by the International Human Rights
Law Committee of the International Law Association (ILA) (2008–2016) on the
related topics of “The impact of international human rights law on the International
Court of Justice” and “The domestic implementation of decisions and judgments of
the ICJ and other international courts and tribunals that involve international human
rights.” While many of the authors contributing to this volume were therefore
Committee members, the editors have also invited several external experts to
contribute.
This book consists of four parts, starting in Part I with the two parts of the Report
finalized by the ILA Committee Rapporteurs in 2014 and 2016, respectively. The
ILA Report is based on input by other Committee members provided at various
stages and was approved and adopted by the Committee following discussions at the
plenary biannual ILA meetings in Washington, DC, and Johannesburg.
The contributions in Parts II to IV complement and expand on the ILA Report.
Together with this introduction, they put the ILA Report in context, discuss subse-
quent developments, and offer different perspectives on the various issues raised by
courts of general jurisdiction acting as human rights courts.
Part II deals with a sample of international and regional courts not specialized in
human rights and analyzes the extent to which they function as human rights courts.
The chapters are devoted to the question as to how the International Court of Justice
2
On the African Court’s explicit mandate to assess human rights violations under other international
treaties see Jansen Reventlow and Curling, State Obligations in the African System, section 4.2, in
this Volume.
Introduction 5
(ICJ) and regional courts in Africa, Latin America, and Europe deal with human
rights. At the international level thus defined, the question can be framed more
specifically in terms of competencies, legal techniques, and the predisposition to
integrate human rights law into the practice of dispute settlement and of development
of the law.
The ICJ is of paramount interest when it comes to ascertaining the role of human
rights in the process of adjudication at the international level. One reason is that the
ICJ, as the principal judicial organ of the UN, is perceived as a particularly
authoritative body when it comes to restating general international law. Since the
ICJ often takes a reluctant stance with respect to progressive development of the law,
it is particularly significant when it does pronounce on the impact of human rights.
This raises the question as to the extent to which the continuous development of
international human rights law has influenced the practice of the ICJ or, conversely,
whether the ICJ has played a role in enhancing the authority of human rights law,
also with respect to more specialized courts, tribunals, and dispute settlement bodies.
A particular focus is placed on provisional measures and diplomatic protection since
in these contexts human rights are often invoked.
Clearly, if more states were to accept its compulsory jurisdiction, the ICJ would
be able to make better use of its expertise as a court of general jurisdiction and take
an integrated approach to the impact of human rights obligations on general inter-
national law rather than being restricted, by a compromissory clause, to a particular
treaty. This would be the case in the context of disputes directly concerning human
rights complaints by one state against another and also with regard to cases where
human rights law is relevant for properly addressing the dispute, even though it was
not as such invoked by the states themselves.
From a human rights perspective, ICJ cases can be read through different lenses.
In relation to the principles of equality of arms, proper administration of justice, and
access to justice, there are particular problems inherent in the inter-state nature of the
ICJ’s jurisdiction in contentious proceedings. This is the case even if the balance to
be struck, as required in provisional measures, tips not toward consent as the
jurisdictional basis but toward the Court’s role as an international law court
concerned with the general interest. Owing to the ICJ’s exclusively inter-state
jurisdiction, the human beings at the center of these conflicts cannot speak for
themselves before the Court, even with a “humanized” interpretation of the substan-
tive law being applied.
This situation is not in sync with the enhanced and more prominent status of the
individual in international law. In fact, the more central role attributed to the
individual has been argued to apply beyond human rights, with a view to elevating
the importance of individual rights more generally.3 The latter is relevant in the
discussion on equality of arms, proper administration of justice, and access to justice
in general. It also triggers a substantive discussion on which individual rights
included in non-human rights treaties can be classified as human rights or are at
3
Peters (2016).
least relevant in the interpretation of existing human rights obligations. The right to
consular access and information, for instance, currently classified by the ICJ as an
individual right, is clearly distinguishable from, for example, due process rights of
companies4: It concerns fundamental rights of natural, rather than legal, persons and
is aimed at securing an equal level of protection, including due process, to both non-
nationals and nationals who may be facing imprisonment or even death.5
Thus, despite the central role of the individual in current international law, he or
she is still procedurally absent before the ICJ. One main reason why the suggestion
to create a world court of human rights resurfaces regularly is the increased impor-
tance attached to ensuring access to justice. Such a court would provide individuals
with direct access and deal with complaints concerning violations of all UN human
rights treaties in an integrated manner, so long as the complaint is made against a
state that has ratified the treaties invoked and the state in question has recognized the
statute of the new court.
States promoting the cause of human rights protection and of access to justice for
individuals also have the possibility of assisting them in initiating complaints against
other states, for instance by making legal aid schemes accessible, also to
non-nationals in order to allow them to bring their complaints before courts in
other regional or domestic jurisdictions or before UN treaty bodies. This could
include complaints by refugees against their home state.
In addition, for exclusively inter-state tribunals such as the ICJ, it is indeed
important to give “great weight”6 to the interpretation adopted by independent
supervisory bodies, which are established specifically to monitor the application of
the human rights treaty at hand. Giving “great weight” includes serious discussion of
the relevant case law of the supervisory bodies that are able to deal directly with
individual complaints. The mere fact that individual victims can participate in the
proceedings before international human rights bodies warrants examination of their
decisions and justifies giving due consideration to their interpretations. This does
not, of course, compensate as such for the procedural absence of the individual
concerned in the proceedings. However, invoking and respecting to as great a degree
as possible the interpretation developed by bodies dealing directly with applications
of individuals contributes in itself to integrating human rights law in the jurispru-
dence of courts of general jurisdiction.
Another development that could improve access to justice would be to adapt
existing UN internal complaint mechanisms to comply with UN human rights
norms. At some point, the ICJ may indeed follow up on its veiled indication in the
IFAD Advisory Opinion that “next time” it will not accede to a request for an
4
Of the human rights treaties, only the ECHR includes due process rights of companies.
5
For a further discussion, concluding that these rights are “an element of the fair trial guarantee for
foreigners” but “not human rights per se,” see Peters (2016), pp. 348–387.
6
Cf the ICJ itself in Diallo, para 66.
Introduction 7
advisory opinion under similar conditions.7 As Judge Greenwood stressed in his

Declaration:
The Court should not be asked to participate in a procedure whose inequality is at odds with
contemporary concepts of due process and the integrity of the judicial function. I agreed that
the Court should give an Opinion in the present case only because I believed that the Court
should not, without warning, withdraw its participation in a procedure for challenging
Tribunal decisions which has been in place for many years and has therefore formed part
of the assumptions made by all concerned — employees as well as employers — in
proceedings before the Tribunal. However, the inequality of access which exists at present
cannot be allowed to persist into the future. The need for reform of Article XII of the ILOAT
Statute is urgent and it is very much to be hoped that a new procedure for challenging
judgments of the Tribunal can be put in place within a short period of time.8
In addition, an effective internal mechanism would be necessary to allow com-

plaints by alleged victims against UN peacekeeping decisions and other UN actions
allegedly in violation of human rights law and/or humanitarian law. Ideally, such a
mechanism would also be available to individuals complaining against binding UN
Security Council decisions.
Apart from access to justice, another lens through which ICJ case law can be
examined from a human rights law perspective concerns the way in which states use
the tool of diplomatic protection. Generally, diplomatic protection as a tool seems to
have evolved9 and to have become more inclusive and pro homine,10 in terms of
both the range of persons on whose behalf a state may act11 and the awareness of the
principle that reparations awarded for violations of human rights should be trans-
ferred from the “injured state” to the “injured party.” States invoking human rights
7
See ICJ, Judgment No 2867 of the Administrative Tribunal of the International Labour Organi-
zation upon a Complaint Filed against the International Fund for Agricultural Development
(advisory opinion), ICJ Reports 2012, 10, paras 42, 44–47. See generally on equality of arms, the
separate opinion by Judge Cançado Trindade.
8
ICJ, Judgment No 2867 of the Administrative Tribunal of the International Labour Organization
upon a Complaint Filed against the International Fund for Agricultural Development (advisory
opinion), ICJ Reports 2012, 10, declaration of Judge Greenwood, para 3. See also his pertinent
observation about the approach of IFAD to the proceedings before the ICJ which “amounted to
treating Ms Saez García as a spectator rather than a participant in proceedings whose outcome
would have a direct and substantial effect upon her. In the end, I believe that the action taken by the
Court prevented that approach from giving rise to a denial of justice but it is a graphic reminder of
the deficiencies inherent in a system in which a judgment in favour of a staff member is challenged
in proceedings to which the employing organization, but not the staff member, has direct access to
the Court,” para 5.
9
See further Yakushiji, The International Court of Justice and Diplomatic Protection, in this
Volume, and the references therein and Peters (2016), pp. 388–407.
10
See already e.g. IACtHR, Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) (advisory
opinion), OC-5/85, Inter-Am Ct HR (Ser A) No 5 (1985), para 52.
11
See e.g. ITLOS, Arctic Sunrise Case (Kingdom of the Netherlands v Russian Federation), order of
22 Nov 2013; cf Rieter (2014), pp. 603–619. See also Miles (2017), pp. 360–363 criticizing the
inclusion in the diplomatic protection of persons unrelated to the boarding and detention of the
Arctic Sunrise.
norms, which in fact include the right to reparation, and claiming that other states
have violated the rights of individuals and groups should act in accordance with this
line of argument when in receipt of financial compensation for the harm done to
these persons. Their credibility would be undermined if they were to fail to channel
this compensation to the individuals involved or, should that not be possible in any
given case, to a fund monitored by an independent body to benefit those individuals
and their dependents. While the ECtHR has been more explicit, the ICJ has merely
implied that this is expected from the state espousing claims on behalf of
individuals.12
Non-human rights courts recognizing human rights and interpreting the concom-
itant obligations may implicitly, or explicitly, confirm the existence of these rights
and contribute to their implementation. The ICJ has contributed in its jurisprudence
to the clarification of the obligations of states in the field of human rights, as
discussed in Part 1 of the ILA Report,13 but recently appears to have become more
cautious and averse to taking up cases involving human rights claims and other
general interest issues.14 The Court has created additional hurdles in the admissibil-
ity of cases, most notably in the Marshall Islands judgments (2016),15 where it
introduced the requirement for applicant states to show that the respondent state was
“aware or could not have been unaware” of the existence of the legal dispute in
circumstances where the respondent’s views were “positively opposed” by the
applicant state.16 This new approach may undermine the flexibility of the Court
and establish a formalism not necessarily conducive to the judicial function. As
several dissenting judges pointed out, the purpose of the dispute requirement is to
guarantee the judicial function. The Court should therefore not impose the formal-
istic requirement of “objective awareness” on the part of the respondent state or insist
on “prior notice” by the applicant state.17
12
On ICJ Diallo (reparations judgment) see also ILA Report (Part 1), The International Court of
Justice and its Contribution to Human Rights Law, in this Volume. For further references to Diallo,
the recommendations by ILC Rapporteur Dugard and the ECtHR judgment in Cyprus v Turkey
(reparations), see Yakushiji, The International Court of Justice and Diplomatic Protection, in this
Volume, and Peters (2016), pp. 488–407.
13
ILA Report (Part 1), The International Court of Justice and its Contribution to Human Rights
Law, in this Volume.
14
See Yakushiji, The International Court of Justice and Diplomatic Protection, and Rieter, The
International Court of Justice and Provisional Measures Involving the Fate of Persons, both in this
Volume.
15
See ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v India, Pakistan and the UK) (preliminary
objections), judgment of 5 Oct 2016. See further, e.g. the respective contributions by Vincent-
Joël Proulx, Ingo Venzke, and George Galindo, to the Symposium on the Marshall Islands Case in
AJIL Unbound, Vol 111. All available under https://www.cambridge.org/core/journals/american-
journal-of-international-law/ajil-unbound. Accessed 21 Dec 2017.
16
See e.g. Marshall Islands v India, para 38.
17
See e.g. the separate opinions by Crawford, Cançado Trindade, Bennouna and Robinson.
Introduction 9
The ICJ has also become more cautious with regard to its use of provisional
measures. Whereas the Court used them in some cases involving the fate of
individuals and groups in order to prevent aggravation of the dispute, it now also
requires a link to the claim. While the Court previously stressed the importance of
not prejudging the merits, its order in Ukraine v Russia (2017) instead now requires
extensive evidence of plausibility of the merits of the claim.18
International courts and tribunals with non-human rights jurisdiction other than
the ICJ include inter-state arbitral tribunals (ad hoc or under the auspices of an
institution, such as the Permanent Court of Arbitration (PCA)), the dispute settle-
ment system of the World Trade Organization (WTO), tribunals for the settlement of
investment disputes, the International Tribunal of the Law of the Sea (ITLOS), and
international criminal courts. For these courts and tribunals, human rights play
different but restricted roles. Conceptually, arbitral tribunals, in the same way as
the ICJ, can hear any case agreed on by the parties to a dispute, and human rights can
also find their way into their case law. One example is the Arctic Sunrise case, in
which an arbitral tribunal held that the freedom of the high seas encompassed its use
for political purposes. Thus, when a ship chartered by environmental activists
demonstrated at a Russian oil platform against oil drilling in the Arctic Sea, this
fell within the scope of freedom of navigation in the exclusive economic zone.19
Likewise, human rights have found their way into the jurisprudence of ITLOS.20
Concern for human rights can also be seen in the decision by ITLOS to extend the
group of persons covered by diplomatic protection. It did so in its 2013 order for
provisional measures in the Arctic Sunrise case brought by the Netherlands against
Russia.21 In fact, it considered the rights of all crew members, including those of
Russian nationals. As the ILA Committee on Human Rights Law pointed out in
2014, this is a good example of the development from traditional “diplomatic
protection” to “diplomatic human rights protection.”22 Judges Wolfrum and Kelly
expressed this as follows: “We have voted in favour of the order to release the vessel
Arctic Sunrise and all persons on board [. . .]. In our view it is mandatory that the
order to release covers all persons regardless of their nationality.”23
Similar considerations apply to specialized dispute settlement in trade and invest-
ment law. It is increasingly becoming accepted that human rights need to be taken
18
See Rieter, The International Court of Justice and Provisional Measures Involving the Fate of
Persons, in this Volume.
19
PCA, The “Arctic Sunrise” Arbitration (Netherlands v Russia), case 2014-02, judgment of
14 Aug 2015, paras 197, 226–228.
20
See Rieter, The International Court of Justice and Provisional Measures Involving the Fate of
Persons, in this Volume.
21
ITLOS, Arctic Sunrise Case (Kingdom of the Netherlands v Russian Federation), order of 22 Nov
2013. Arctic Sunrise is an icebreaker which flies the flag of the Netherlands and is operated by
Greenpeace International. See also Rieter (2014), pp. 603–619.
22
See ILA Report (Part 1), The International Court of Justice and its Contribution to Human Rights
Law, para 64, in this Volume. For a different view, see Miles (2017), p. 361.
23
Joint separate opinion Wolfrum and Kelly, para 1.
into consideration if they conflict with trade and investment, such as in the case of
import bans on merchandise produced by child labour or the protection of conces-
sions for the exploration of resources in areas inhabited by indigenous peoples.24 So
far, there have been hardly any attempts by the WTO Dispute Settlement Body to
integrate human rights systematically into WTO law. High-profile decisions with the
potential of triggering a discussion on “humanizing the WTO” comparable to the
“greening the GATT” debate in the wake of the Shrimp Turtle dispute with respect to
environmental protection25 seem to be lacking to date.26 In relation to investment
law, the issue of human rights has attracted more attention in the context of the
intense public debate on investor–state dispute settlement in the new generation of
free trade agreements.27 It is interesting to see how various investment awards have
referred to human rights law. In its decision refusing annulment, the ICSID ad hoc
Committee in Tulip Real Estate v Turkey (2015) invoked the principle of systemic
integration, as spelled out in the rule of interpretation in Article 31 (3) (c) VCLT, and
gave several examples of references made to human rights treaties and human rights
case law in previous arbitral decisions.28 It then noted: “Provisions in human rights
instruments dealing with the right to a fair trial and any judicial practice thereto are
relevant to the interpretation of the concept of a fundamental rule of procedure as
used in Article 52 (1) (d) of the ICSID Convention. This is not to add obligations
extraneous to the ICSID Convention. Rather, resort to authorities stemming from the
field of human rights for this purpose is a legitimate method of treaty interpreta-
tion.”29 In this context, the acceptance of human rights counterclaims under a
bilateral investment treaty (BIT) in the ICSID Urbaser award (2016) is also of
interest.30
In the field of international criminal law, human rights are of obvious significance
for all parties concerned. The very purpose of conducting investigations and, if need
be, initiating further proceedings is to put an end to impunity for perpetrators of the
most serious crimes of concern to the international community. International
24
As to the latter example, see Glamis Gold, Ltd. v United States of America, UNCITRAL
(NAFTA), award of 8 June 2009.
25
Mavroidis (2000), pp. 73–88.
26
On WTO Dispute Settlement and human rights see e.g. Marceau (2002), pp. 753–818; Pauwelyn
(2005), pp. 205–231. See further Lorenzmeier (2015), pp. 147–166; Joseph (2011), Joseph et al.
(2009) and Abbot et al. (2006).
27
See e.g. Balcerzak (2017), Simma (2011), pp. 573–596; Simma and Kill (2009), pp. 678–707;
Dupuy et al. (2009).
28
See e.g. IBM World Trade Corp. v Republic of Ecuador, ICSID Case No ARB/02/10, decision on
jurisdiction, 22 Dec 2003, para 72 and El Paso v Argentina, award, 31 Oct 2011, para 598; Hesham
Talaat M. Al-Warraq v Republic of Indonesia, UNCITRAL, final award, 15 Dec 2014, paras
556–621. See Tulip Real Estate v Turkey, decision refusing annulment, 30 Dec 2015, paras 86–91.
29
Tulip Real Estate v Turkey, ICSID Case No ARB/11/28, decision refusing annulment, 30 Dec
2015, para 92.
30
Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa and The
Argentine Republic, ICSID Case No ARB/07/26, award of 8 Dec 2016. See e.g. Guntrip (2017) and
Yilmaz-Vastardis (2017). Both available under https://www.ejiltalk.org/. Accessed 21 Dec 2017.
Introduction 11
criminal law thus contributes to the investigation and prosecution of these crimes,
where the states involved are unable or unwilling to do so themselves. Moreover, for
the accused, human rights mark the limits of what is permissible in the course of the
criminal proceedings and punishment. While some consider international criminal
tribunals to be a special type of human rights court, others are skeptical and question
the current manner of cross-fertilization between international criminal and human
rights law.31
Given the restricted impact of human rights on the practice of these courts and
tribunals and the embryonic stage of their human rights jurisprudence, the practice of
these specialized bodies will not be analyzed in detail in this volume. Apart from the
ICJ, this book focuses on courts of regional organizations of economic integration
for two reasons. The first reason is that such courts have the task of defining the
framework of a new legal order. They thus allow us to observe the significance of
human rights in the process of an international subsystem, which is committed to the
rule of law, unfolding as an autonomous legal order. Secondly, such courts compare
more closely to domestic courts than international courts. The regional integration
regimes to which the courts belong have, depending on the range of powers
attributed to them, taken up many tasks formerly fulfilled by their Member States.
On the other hand, regional organizations as such are not members of any interna-
tional human rights protection system. Their courts thus bridge the gap between
international human rights courts and domestic courts. The degree to which they
follow the rule of law is a yardstick for the depth of integration of their Member
States, and the impact of human rights law on their jurisprudence is an indicator for
the extent to which these emerging legal orders subscribe to the rule of law.
It is tempting, therefore, to compare the jurisprudence of European, Latin Amer-
ican, and African courts of regional integration. Within the European Union, the
European Court of Justice (ECJ) has developed human rights, or fundamental rights
in EU terminology, out of the constitutional traditions and international law obliga-
tions of the EU Member States, in particular the European Convention on Human
Rights, as compensation for European law taking unconditional precedence over
even national constitutions and their fundamental rights catalogs. In a community of
law, the claim to general supremacy cannot be upheld without the recognition of
individual rights as a counterbalancing force. Similar observations apply, to varying
degrees, to regional integration in Latin America and in Africa.
The ECJ has served as a prototype for regional courts such as the Court of Justice
of the Andean Community of Nations (CAN), which has jurisdiction over claims
brought by natural or legal persons against CAN institutions or Member States,
despite the fact that at the time of its statute being drafted, human rights review was
not considered to be among its tasks.32 Case law, however, has remained scarce. At
the other end of the spectrum, the MERCOSUR dispute settlement system is
modeled along the lines of traditional inter-state arbitration in keeping with the
31
See e.g. the contributions in Lobba and Mariniello (2017).
32
Rodriguez Lemmo (2002), pp. 863–930; Porrata-Doria (2012), pp. 385–388.
intergovernmental character of the organization.33 As a consequence, human rights

do not play a major role in its jurisprudence.
In contrast to its Latin American counterparts, the courts of justice of the
Economic Community of West African States (ECOWAS) and of the East African
Community (EAC) seem to follow the integration logic of a community of law.
Whereas the East African Court has derived jurisdiction from general principles of
law, comparable to the ECJ, the ECOWAS Court found its basis of competence in
the founding treaties of its parent organization.34 While the Latin American regional
systems have basically left human rights protection to the inter-American human
rights institutions, ECOWAS and the EAC have adopted the African Charter of
Human and Peoples’ Rights as the human rights catalog of their respective organi-
zations. Such adoption opens the door for the harmonization of the case law of the
regional integration organization with the jurisprudence of the competent human
rights institutions of the African system. In this sense, the courts of regional
economic communities in Africa also complement the regional human rights system
at subregional level and at times provide useful alternative routes to achieve access
to justice.
Parts III and IV deal with the domestic implementation of human rights law,
including international human rights decisions. These two parts focus on domestic
courts as “human rights courts.” Part III concerns the requirements established by
human rights treaties with regard to the implementation of human rights by domestic
courts, while Part IV is comparative in nature, analyzing the stance taken toward
international human rights law in different jurisdictions in Africa, the Americas,
Asia, and Europe.
Part III, which includes chapters on the UN treaty body system and on regional
systems, seeks to identify the requirements set by human rights treaties for the
implementation of human rights by domestic courts. The contributions show how
the supervisory treaty bodies in these systems have tried to grapple with the issue of
state responsibility.
The supervisory bodies of the protection systems start from different bases. The
nine human rights treaties concluded under the auspices of the UN, by reason of their
universal character, have very heterogeneous communities of States Parties. The
committees competent for the supervision of compliance with these treaties are not
permanent courts but rather composed of experts who serve in an honorary capacity
and sit only in defined session periods. Whether they are entitled to deal with
individual applications depends on previous acceptance of this type of procedure
by the State Party concerned. The reports, decisions, views, and general comments
33
See Franca Filho, Lixinski and Olmos Giupponi, Courts of Regional Economic Communities in
Latin America and Human Rights Law, in this Volume.
34
As explained in detail in the contribution by Ebobrah, Courts of Regional Economic Communities
in Africa and Human Rights Law, in this Volume.
Introduction 13
of these committees, while authoritative,35 are not legally binding. This book follows
the general custom of referring to these bodies as “quasi-judicial” in their determi-
nation of conflicts between individuals and states about the meaning and application
of the binding treaty provisions, on the basis of a set procedure.
Each of the three regional protection systems possesses a Court of Human Rights.
In the African and inter-American systems, the respective court can be seized only
on the condition that the State Party concerned has recognized its jurisdiction. In
both systems, a Commission of Human Rights dealing with individual complaints
was already in existence and continued to take cases.
While these systems and their respective supervisory bodies are different, their
requirements with regard to the implementation of human rights obligations by the
States Parties overlap in some respects. They have all developed a notion of duties to
implement their respective decisions. They distinguish between negative (respect)
and positive (ensure/secure) obligations, hold the respondent state accountable for
violations found, consider all branches of government of the States Parties bound to
take appropriate measures to end and to remedy human rights violations, and, with a
view to more effective redress, have derived procedural rights from substantive
guarantees of the respective treaties. All systems have dealt with the conformity of
Member State law with human rights, and even a quasi-judicial body like the
HRCtee has repeatedly recommended an amendment of domestic legislation.36
When it comes to spelling out specific duties as to how to bring domestic law into
line with human rights obligations, differences become visible. These differences are
already found in the conventional bases of jurisdiction, which vary in the range of
measures of reparation available to victims of a violation and in the scheme of
execution of human rights courts’ judgments. Whereas Article 41 ECHR generally
refers to “just satisfaction of the injured party,” Article 63 ACHR authorizes the
IACtHR to rule “that the consequences of the measure or situation that constituted
the breach [. . .] be remedied and that fair compensation be paid.”
Whereas the ECtHR started from a general notion of just satisfaction, but
gradually began to formulate specific individual and general measures to be taken,
the IACtHR looks back to a long tradition of also resorting to non-pecuniary means
of compensation. Over time, all three courts have intensified their scrutiny of review
with respect to the obligations of states to take measures on the domestic plane.
Under general international law, compliance basically means an obligation of result.
The IACtHR began early on to demand that states give domestic effect to the ACHR
by adjusting their legal orders and to monitor implementation accordingly.37 It could
35
As to the ICJ referring to the UN Human Rights Committee, see ILA Report (Part 1), The
International Court of Justice and its Contribution to Human Rights Law, paras 29–46, in this
Volume.
36
See ILA Report (Part 2), The Domestic Implementation of Judgments/Decisions of Courts and
other International Bodies that Involve International Human Rights Law, paras 19–20, in this
Volume.
37
See, for instance, IACtHR, Almonacid Arellano v Chile, judgment of 26 Sept 2006, Series C
154, para 124.
be argued that an adapted version of this doctrine of “control of conventionality” has

meanwhile also been adopted by the ECtHR.38 The African Court, established much
more recently, also appears to have embarked upon elaborating its assessment of
domestic legislation.39 General and individual measures, which the courts regard as
appropriate to be taken to halt human rights violations, differ in breadth and depth.
Compared to the other supervisory bodies, the IACtHR goes farthest in spelling out
requirements to be fulfilled domestically.
In the respective treaties applicable, the regional human rights courts, as well as
the UN Human Rights Committee, stress the obligation to take legislative and other
measures to give effect to the rights and freedoms guaranteed in the treaty.40 The
African Commission and Court have taken the position that a violation of a specific
Charter provision necessarily involves a finding of a violation of Article 1 of the
Charter entailing the obligation to “undertake to adopt legislative or other measures”
to give effect to the rights in the Charter.41 The Inter-American Commission and
Court take a similar approach.42
One element by which the different approaches by the systems dealt with in this
book can be illustrated is the issue of impunity. What the treaty bodies and courts
have in common is that they all consider states to have a due diligence duty entailing
an obligation to investigate, prosecute, and, if warranted, punish perpetrators of
human rights crimes. However, this expectation is derived and spelled out
differently.
For the IACtHR, this obligation follows from the remedies clause in Article
63 ACHR referred to above,43 even though in its view the failure to prosecute
perpetrators may in itself also constitute a human rights violation.44 The ECtHR,
in contrast, construes the guarantee of the right to life (Article 2 ECHR) and the
prohibition of torture and inhuman and degrading treatment (Article 3 ECHR) to
encompass a procedural limb requiring states to put in place a system that allows for
the investigation, prosecution, and punishment of human rights crimes.45 At first
38
Flauss (2009), pp. 37–38.
39
Cf Abebe (2016), pp. 549–554.
40
The UN HRCtee, for instance, has found violations of the right to an effective remedy in Art 2
(3) ICCPR, read in conjunction with Art 7 of the Covenant, because of the lack of effective
investigation of torture allegations. See e.g. UN HRCtee Tyan v Kazakhstan, case No 2125/2011,
16 Mar 2017.
41
For a recent example see African Court on Human and Peoples’ Rights, African Commission on
Human and Peoples’ Rights v Republic of Kenya (Ogiek case), judgment of 26 May 2017, referring
to Art 1 ACHPR, paras 214–217.
42
See e.g IACtHR, Case of López-Álvarez v Honduras (merits, reparations, and costs), judgment of
1 Feb 2006, Series C No 141, paras 169 and 174.
43
See, for instance, IACtHR, Miguel Castro – Castro Prison v Peru, judgment of 25 Nov 2005,
Series C 160, paras 255 and 344.
44
Starting from IACtHR, Velasquez Rodriguez v Honduras, judgment of 29 July 1988, para 174;
see the contribution by Cerna, State Obligations in the Inter-American System, in this Volume.
45
ECtHR, Mocanu v Romania, judgment of 17 Sept 2014, no 10856/09, paras 314–326.
Introduction 15
sight, the outcomes required by the two courts seem similar. However, whereas
criminal law consequences are a systemic characteristic of the protection scheme for
the IACtHR, the ECtHR adheres to an individual justice pattern. Accordingly, the
IACtHR prefers to treat punishment in the context of general measures, whereas the
ECtHR develops such requirements out of individual guarantees for individual
cases. The criteria for an effective investigation are defined in much more detail
by the courts than by the UN treaty bodies, and the IACtHR sets a higher standard
than the European Court when it comes to condemning amnesty laws. Both courts
are quite detailed in their jurisprudence as to the meaning of an “effective investi-
gation.” Even though the African Commission derived the obligation to investigate,
prosecute, and punish from substantive guarantees in the same way as the ECtHR, its
pertinent practice is largely inspired by the IACtHR, and it has developed detailed
diligence standards for dealing with crimes perpetrated by non-state actors.46 These
standards are concerned with combating impunity, providing access to remedies,
exclusion from immunity, the burden of proof on a respondent state with respect to
having satisfied its obligation to investigate, and appropriate compensation of
victims and close relatives, including non-pecuniary measures. The catalog of
measures includes reform of legislation, the institution of a judicial framework,
and restoration of infrastructure in areas devastated in the course of mass atrocities.
The African Court has reviewed the reactions of responsible States Parties with
regard to the duration of investigations, methods of inquiry, promptness of court
proceedings, impartiality of personnel, intensity of the procedure, and use of
evidence.47
Part IV is devoted to a study of the practice of domestic implementation of
(international and regional) human rights law and human rights decisions in a
range of states. Even though nonjudicial means of implementation by governmental
practices and parliamentary oversight play an important role in some states, the
emphasis in this book is on the judiciary.
Domestic courts can take their share of responsibility for the implementation of
human rights obligations pro homine. Some domestic courts do so to a considerable
extent, also by giving “great weight”48 to the interpretation adopted by independent
supervisory bodies established specifically to monitor the application of human
rights treaties ratified by their states. Other courts demonstrate reluctance, which
can be due to institutional self-confidence within a constitutional system of checks
and balances and also to resistance by the respective states to the concept of human
rights in general or to their domestic effect in particular.
The comparative section of this book includes an introductory chapter on hori-
zontal issues across legal orders and eleven reports on countries from four conti-
nents. The selection shows a bias toward states with a functioning judiciary and does
46
For these requirements, see in detail Jansen Reventlow and Curling, State Obligations in the
African System, in this Volume.
47
Ibid; cf AfCtHR, Zongo v Burkina Faso, judgment of 28 Mar 2014, no 013/2011; Abubakari v
Tanzania, judgment of 3 June 2016, no 007/2013.
48
See supra n 6.
not claim to be representative.49 Most of the authors provided background material

for the second part of the ILA Report, which was compiled with the objective of
identifying “good practices” of domestic courts. Even though the legal orders
selected differ in their legal traditions, the respective role of the judicial branch,
their overarching political systems, and the human rights obligations incurred, all
chapters contribute to finding answers to the following questions: Can any common
elements or interesting features in the practice of the diverse states discussed be
identified? How do domestic courts of general jurisdiction deal with human rights
obligations? Do they enhance the implementation of human rights in the light of the
interpretations by the human rights supervisory bodies or clarify ensuing
obligations?
Several parameters are of interest in approaching these questions. On the inter-
national plane, a decisive element is obviously the human rights treaty to which the
respective state is a party. Not only does it make a difference whether the final
decisions of the responsible supervisory body are formally binding under interna-
tional law or not, but the regional courts, as we have seen, have also developed a
much stricter standard of scrutiny with a view to a principled “control of conven-
tionality” and have expanded the reach of measures to be taken by a state to remedy
human rights violations. Several Latin American constitutional courts have
responded accordingly; others are more hesitant.50
At the level of constitutional law, the stance taken by a system toward the
domestic status of international law in general and human rights treaties in particular
is a central criterion. At first sight, one might gain the impression that more monist
systems tend to be more open toward international human rights obligations than
more dualist systems. However, each of these systems has correctives to mitigate
strict consequences. Courts in monist states may apply a notion of self-executing
norms, which bars international treaties from direct effect, and the impact of
international treaty law varies according to the interpretation of the provision at
issue. Since international law does not predetermine the domestic effect of human
rights treaties, the actual effect can differ substantially from one (monist) state to
another. The administration of a dualist system, on the other hand, can be mitigated
toward an international law-friendly attitude by techniques of consistent interpreta-
tion. Within one and the same jurisdiction, the attitude vis-à-vis international law in
general can be different from the status attributed to human rights treaties; in some
countries, the constitution expressly provides them with a special rank and effect,
and in others a similar result is achieved by court practice. Irrespective of the forms
of dealing with human rights law, what is decisive is whether procedures are in place
by virtue of which individuals can invoke their rights. It may happen that the
49
See further, e.g., Shelton (2011), Müller and Kjos (2017), Nollkaemper (2011) and Conforti and
Francioni (1997).
50
See Cerna, Argentina & Mexico, in this Volume; but see e.g. Tribunal Supremo de Justicia de
Venezuela – Sala Constitucional, Sentencia n 1939, de 18 de diciembre de 2008; and Tribunal
Constitucional de República Dominicana, Exp. TC-01-2005-0013, Sentencia TC/0256/14 de
4 noviembre 2014 (involving the Rafael Chavero Gazdik case).
Introduction 17
judiciary of a state with a generally satisfactory human rights record assumes a

critical stance with respect to external influences on its practice, a tendency that can
be observed in countries such as Japan or the United States.51
A further feature of interest is how courts deal with international material. Usage
may range from ignoring reports, decisions, and judgments altogether to a practice of
intensive judicial dialog or a completely deferential attitude. Some courts apply
human rights conventions as part of their domestic law52; others formulate caveats
and place human rights under the prerogative of national law.53
In analyzing these components of judicial human rights practice, it must be
appreciated that countries place different emphases on methods or forms of protec-
tion. Scandinavian states traditionally attribute protective functions to parliamentary
bodies or independent ombudspersons or other agencies. A routine of ex ante
examination of bills to be presented to parliament in the light of human rights
obligations or of the consequences of ratification of a human rights treaty for the
domestic legal order can help to avoid judicial proceedings at a later stage and be just
as effective as cooperative court practice. Hence, domestic courts in legal orders with
such traditions have a more modest role to play.54
A comparative view of the implementation of human rights obligations by
different states against the background of the requirements developed by the various
protection systems may contribute to the identification of “good practices” of
judicial implementation and to the development of general standards of domestic
engagement with human rights, as attempted by the ILA Committee in the second
part of its final report.55
Domestic and international courts of general jurisdiction are developing judicial
human rights practice in various ways. In so doing, they consider, to a greater or
lesser extent, the practice of regional human rights courts and quasi-judicial human
rights bodies. These have provided some guidance on the requirements for the
domestic implementation of human rights derived from the specific human rights
treaties they monitor. The ongoing process by which the international and domestic
non-human rights courts discussed in this book develop and implement international
human rights law deserves continued scrutiny. This book aims to offer a contribution
to this discussion.
51
Cf Weston Janis, United States of America, and Teraya, Japan, both in this Volume.
52
See, e.g., Wedam Lukić, Slovenia, in this Volume.
53
See Sciso, Italy, in this Volume.
54
See Christoffersen, Denmark, in this Volume.
55
other International Bodies that Involve International Human Rights Law, and the ILA Johannesburg
Guidelines, both in this Volume.
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The International Court of Justice and Its
Contribution to Human Rights Law
Final Report of the ILA International Human Rights
Law Committee (Part 1)
Eva Rieter
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2 References by the ICJ to Decisions of Human Rights Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.2 An Evolving Approach to Case Law by Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3 The Attitude of a General Court Toward the Position of the Individual . . . . . . . . . . . . . . . . . . . . 30
3.1 General Contribution by the ICJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.2 Diplomatic Protection or Human Rights Protection? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Extraterritorial Application of Human Rights Treaties and Armed Conflict . . . . . . . . . . 37
3.4 Provisional Measures Involving Human Beings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Finalized by Eva Rieter

This is a slightly edited version, for purposes of this volume, of paras 19–88 of the interim report of
the ILA Committee on International Human Rights Law, Washington Conference 2014,
reprinted in ILA Report 2014, at 476–501. The report was finalized by ILA Rapporteur Eva
Rieter, with input by the other Committee members, in particular Stefan Kadelbach, Liliana
Jubilut, Christina Cerna, the late Nigel Rodley and the late Peter van Krieken, as well as by those
participating in the ILA committee meeting in Bellagio, Italy, June 13–14, 2012. The findings of
the report were endorsed by the ILA Johannesburg Conference in Resolution No. 2/2016,
reprinted in ILA Report 2016, at 20–21.
E. Rieter (*)

https://doi.org/10.1007/978-3-319-94848-5_2
20 E. Rieter
1 Introduction
1.–18. [. . .].1
19. Consistent with the Committee’s position in its previous report, this Committee
considers that human rights law should be part of general international law, whereby
“general international law must accommodate the special, non-reciprocal nature of
international obligations in the field of human rights.”2
20. Given that international and regional human rights supervisory bodies deal with
individuals as parties before them and have a specific adjudicatory task under
particular human rights treaties, it is not surprising that these bodies have often
been more explicit and human rights protective in their approaches than the ICJ.
21. The impact of human rights law on the development of general international law
is an ongoing process. The extent to which general international law accommodates
the special, non-reciprocal nature of international obligations in the field of human
rights can be judged in part by a scrutiny of the recent case law of the ICJ.3
22. This part of the report takes up and expands on the ILA Committee’s 2008
report by examining the impact of the case law developed by the human rights
bodies on the case law of the ICJ. In addition, it focuses on some of the contributions
by the ICJ to human rights law in specific areas, even without a clear direct impact of
the case law of the human rights bodies on its approach.
23. Clearly, the current state of international law when dealing with the interests of
individuals and groups, rather than just the reciprocal rights of states, should not be
determined by looking at the interpretation of the ICJ alone.4 The case law devel-
oped by other international bodies, such as the human rights bodies, is equally
relevant but will be examined in the context of the second mandate. The Interna-
tional Tribunal on the Law of the Sea (ITLOS) will also supplement this discussion.
1
Paras 1–18 and 25, which are not reproduced here, refer to the drafting history of the Washington
Conference Report 2014.
2
ILA Resolution 4/2008, endorsing this approach.
3
For references to ICJ case law subsequent to 2013, see Kadelbach, Rensmann and Rieter,
Introduction, in this Volume; see also Rieter, The International Court of Justice and Provisional
Measures Involving the Fate of Persons, in this Volume. For case law involving human rights by
European, Latin American and African courts of regional integration see Kadelbach, The European
Court of Justice and Human Rights Law; Franca Filho, Lixinski and Olmos Giupponi, Courts of
Regional Economic Communities in Latin America and Human Rights Law, and Ebobrah, Courts
of Regional Economic Communities in Africa and Human Rights Law, all in this Volume.
4
As noted, in this report the Committee focuses on the role of courts, domestic and international, not
on subjects of international law, nor on the role played by civil society, although these may
obviously arise in the discussion.
The International Court of Justice and Its Contribution to Human Rights Law 21
Attention to a range of adjudicators has also been the approach of the ILC,5 and
indeed, as discussed below, the ICJ itself has similarly referred to case law devel-
oped by various human rights bodies.
24. The subject matters selected for discussion in this part of the report were the
ICJ’s treatment of decisions by human rights bodies; its attitude toward the position
of the individual in general, with a focus on its case law on diplomatic protection; its
case law on the extraterritorial application of human rights treaties; its treatment of
human rights obligations in the context of armed conflict; and its practice regarding
provisional measures involving human beings. Several other topics that had been
suggested at the start of the project, but eventually could not be taken up, were the
question whether the ICJ could assume a new role in judicial review of individual-
ized Security Council sanctions, the usefulness of an International Human Rights
Chamber in the ICJ, and the question of a possible International Court of Human
Rights.
25. [. . .].
26. An attempt to answer the question how the ICJ currently accommodates the
special, non-reciprocal nature of international obligations in the field of human rights
is divided into a question as to its attitude toward decisions by human rights bodies,
on the one hand, and its attitude toward the position of the individual in general, on
the other hand. While the first question could be labeled one of process and the
second one of substance, both approaches are obviously interrelated.
27. The first question, the ICJ’s attitude toward decisions issued by human rights
bodies, is examined by surveying recent references to such decisions. Such refer-
ences in the judgments are indicative of the Court’s awareness of their relevance.
This applies also, but to a lesser extent, to references in individual opinions.6
28. Many of the relevant cases on diplomatic protection, the relationship between
human rights law and humanitarian law, and the extraterritorial application of human
rights treaties in fact concern not just single individuals but groups of people. This
also applies to the provisional measures ordered in those cases.7
5
See e.g. Commentary to the ILC Draft Articles on State Responsibility 2001 (hereinafter referred to
as ARSIWA). As to the text and commentary of the Draft Articles, see YBILC 2001, Vol. II Part
2, 26–143.
6
This approach does not apply a contrario. Obviously, the fact that the judgment itself does not
mention existing case law by other adjudicators does not necessarily mean that no judges were
aware of it or even brought it up.
7
In the past, the world court has contributed to clarifying the rights of minorities (PCIJ) and to
establishing the status of the prohibition of apartheid and of the right to self-determination (ICJ). See
also e.g. Zybery (2013).
22 E. Rieter
2 References by the ICJ to Decisions of Human Rights

Bodies
2.1 Introduction
29. To achieve more coherence, international treaties should cross-reference, where

relevant, and international supervisory bodies and courts should consider other
applicable law. This is referred to as the principle of soutien mutuel or mutual
supportiveness.8 In this light, it is noteworthy that the supervisory bodies for UN
human rights treaties, in particular the UN Human Rights Committee (HRCtee),
have come to be included in the international judicial cross-referencing, and some-
times indeed in what is referred to as an international judicial dialog. It is no longer
possible to ignore their authority regarding the interpretation and application of the
treaties they supervise. This has now also been acknowledged by the ICJ, even if
only haltingly at times.
2.2 An Evolving Approach to Case Law by Others
30. The membership of Rosalyn Higgins, Peter Kooijmans, Thomas Buergenthal,

Bruno Simma, and Antonio Cançado Trindade triggered increased attention to
human rights and familiarity with human rights discourse within the ICJ.9 Each of
them had served on at least one international human rights body prior to being
elected to the ICJ.10 With the exception of Judge Cançado Trindade, the others are
now no longer with the ICJ, but they left a legacy in the Court’s case law. Higgins
wrote in 2007 that the “critical mass” of persons “particularly versed in human rights
law” has contributed to “human rights being viewed as in the centre of what the
8
Boisson de Chazournes and Mbengue (2007).
9
Quantitative research was carried out by V.A. Alves (from Universidade Federal da Paraíba),
A.M. Cavalcante de Lima and F. Ribeiro da Silva (from Universidade Católica de Santos) under the
supervision of Professor L. Jubilut, November 2013, concluding that the ICJ started by making
references mainly to the Universal Declaration of Human Rights and the UN Charter provisions
related to human rights. This then evolved to mentioning different human rights instruments, mainly
of an international, rather than regional character. Toward the end of the 1990s there has been an
increase in ICJ references to human rights instruments and bodies. Moreover, with the appointment
of Judge Cançado Trindade there has been a considerable increase in the (range of) references to
decisions by human rights bodies in individual and dissenting opinions. Another survey of ICJ
judgments was conducted by L. Huijbers (from Radboud University Nijmegen) under the supervi-
sion of Eva Rieter, Oct 2013. In fact, the increase in references to “others” is not limited to decisions
by human rights bodies, see Cogan (2013), specifying references to ITLOS and arbitral tribunals in
Territorial and Maritime Dispute (Nicaragua v Colombia), judgment of 19 November 2012.
10
Professor Thomas Buergenthal served first on the IACtHR and then on the UN Human Rights
Committee (HRCtee).
Court does, not at the margin” and that the “passage of time, and the change of
judicial culture more generally, have played their role, too.”11
31. The ICJ is not the only court that initially found it difficult to refer to findings by
other international bodies, apart from findings of a factual nature. Judge Bruno
Simma noted that the ICJ, as a matter of general policy, avoided supporting its
own conclusions by reference to the findings of other international courts and
tribunals but that it reversed this position in 2007 in the Genocide case.12 The
ECtHR normally is still more likely to refer to fact-finding reports than to legal
interpretations by other courts and supervisory bodies and only exceptionally
explicitly refers to case law by other bodies.13
32. The ICJ clearly endorsed and validated the case law developed by the HRCtee
in its Wall opinion,14 where it referred to Lopez Burgos v. Uruguay and Celiberti de
Casariego v. Uruguay and to the passport cases.15 In 2009, Judge Buergenthal
called this reference to HRCtee case law, when dealing with the question of the
extraterritorial application of Article 2(1) ICCPR, a “particularly telling example.”
As he points out, this is “international judicial cross-fertilization that enriches and
strengthens contemporary international law.” 16 In addition, the ICJ found that the
restrictions to the freedom of movement in Article 12(2) ICCPR, “(a)s the Human
Rights Committee put it,” “must conform to the principle of proportionality” and
“must be the least intrusive instrument amongst those which might achieve the
desired result.”17
33. Sometimes strong individual opinions also contribute to the development of law
or, in any case, to the dialog about the law, in particular when several members of the
Court share an approach. A case in point is the contribution to the international law
on reservations by several members of the Court in DRC v. Rwanda, also supportive
of the role of supervisory bodies.18
11
Higgins (2007), p. 746.
12
Simma (2012b), p. 14.
13
Cf Sect. 3.3 on extraterritorial application of human rights treaties.
14
ICJ, Legal consequences of the construction of a wall in the occupied Palestinian territory
(hereinafter: Wall opinion), Advisory Opinion of 09 July 2004, paras 109–112, as confirmed
(without another explicit invocation) in Armed Activities on the Territory of the Congo (DRC v
Uganda), judgment of 19 Dec 2005, paras 180 and 216. In DRC v Uganda, the ICJ found violations
of humanitarian law as well as of the ICCPR, the Children’s Convention and its Optional Protocol
and the ACHPR. It did not refer to specific case law developed under these treaties.
15
See Wall opinion, paras 109–110, referring to the relevant cases, as well as the state reporting
procedure before the UN HRC. When it discussed the extraterritorial application of the ICESCR is
equally referred to statements by the supervisory body to that treaty, para 112.
16
Buergenthal (2009), p. 405. Cf on the interactions between the ICJ and other international courts
and tribunals as well as quasi-judicial bodies Zyberi (2008), pp. 347–430.
17
ICJ, Wall opinion, para 136. The ICJ quoted from HRCtee General Comment 27, para 14.
18
ICJ, Armed activities on the territory of the Congo (DRC v Rwanda), judgment on jurisdiction of
03 Feb 2006, joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada, Simma, paras
24 E. Rieter
34. It was in 2010, in its Diallo merits judgment, that the ICJ expressed itself most
clearly on the relevance of the jurisprudence developed by the international and
regional treaty bodies and determined whether violations of the ICCPR and the
ACHPR had been committed by the DRC. In respect of the circumstances in which
Mr. Diallo had been expelled, it found that the DRC had violated Article 13 of the
ICCPR and Article 12, paragraph 4, of the ACHPR.19 It also found that, in respect of
the circumstances in which Mr. Diallo had been arrested and detained with a view to
his expulsion, the DRC had violated Article 9 (1) and (2) ICCPR and Article
6 ACHPR.20
35. The ICJ pointed out that its interpretation of provisions of the ICCPR and the
ACHPR was “fully corroborated by the jurisprudence of the [HRCtee] established
by the ICCPR to ensure compliance with that instrument by the States parties.”21 It
noted that while “the Court is in no way obliged, in the exercise of its judicial
functions, to model its own interpretation of the Covenant on that of the Committee,
it believes that it should ascribe great weight to the interpretation adopted by this
independent body that was established specifically to supervise the application of
that treaty.”22
36. Not only the increased awareness of and sensitivity to human rights law but also
the general discourse on cross-fertilization and the unity of international law trigger
something more than judicial courtesy. The ICJ stated: “The point here is to achieve
the necessary clarity and the essential consistency of international law, as well as
legal security, to which both the individuals with guaranteed rights and the States
obliged to comply with treaty obligations are entitled.”23 It added that the same
applied when the Court is asked to apply a regional human rights instrument. It must
then “take due account of the interpretation of that instrument adopted by the
independent bodies which have been specifically created, if such has been the
12–13, 15–16 and 22–24 and dissent of Judge Koroma, para 15. There has been much discourse on
this and an evolving approach within the International Law Commission, culminating in the Guide
to Practice on Reservations to Treaties prepared by ILC Rapporteur Pellet (Report of the ILC on the
Work of its 63rd session, General Assembly, Official Records, 66th Session, Supplement n
10, Addendum 1, UN Doc. A/66/10/Add.1).
19
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), judgment
of 30 Nov 2010, para 165, subpara 2 of the operative part.
20
Ibid, para 165, subpara (3) of the operative part.
21
Ibid, para 66. In this respect, the ICJ gave the examples of HRCtee, Maroufidou v Sweden, No
58/1979 para 9.3; and General Comment No. 15: The Position of Aliens under the Covenant. It
explained that “[s]ince it was created, the Human Rights Committee has built up a considerable
body of interpretative case law, in particular, through its findings in response to the individual
communications which may be submitted to it in respect of States parties to the first Optional
Protocol, and in the form of its “General Comments,” para 66. This concerned Art 13 of the ICCPR.
Regarding Art 9 of the ICCPR, the ICJ later referred to HRCtee General Comment No. 8 of 30 June
1982 concerning the right to liberty and security of the person, para 77.
22
Diallo, para 66.
23
Ibid.
case, to monitor the sound application of the treaty in question.” It pointed out that its
interpretation of Article 12(4) ACHPR “is consonant with the case law of the African
Commission on Human and Peoples’ Rights established by Article 30 of the said
Charter.”24 Finally, it also referred to case law developed in other regional systems.
It noted that the provisions in the ECHR and the ACHR were close in substance to
those of the ICCPR and the ACHPR, and it observed that the interpretations by the
IACtHR and ECtHR were consistent with the ICJ’s interpretation.25
37. While the most recent cases are in fact too recent to be able to assess the ensuing
discourse, they are indicative of the ICJ’s willingness to invoke the interpretations by
the supervisory bodies to human rights treaties.
38. One of these cases shows that invocation of case law developed by human rights
bodies does not always come down in a manner hoped for by human rights lawyers.
In Jurisdictional Immunities (2012),26 the ICJ invoked ECtHR case law to back up
its approach that the nature of the rights involved (the right to a remedy to claim
reparations for established violations of humanitarian law) does not impact on the
jurisdictional immunities of the state against which the claim is brought.27 It was of
the view, in light of its analysis of domestic case law and other domestic practice,
“that customary international law continues to require that a State be accorded
immunity in proceedings for torts allegedly committed on the territory of another
State by its armed forces and other organs of State in the course of conducting an
armed conflict. That conclusion is confirmed by the judgments of the ECtHR to
which the ICJ has referred.”28 It found that Italy was to “ensure that the decisions of
24
Id, para 77, giving the examples AfCHPR, Kenneth Good v Republic of Botswana, No 313/05,
para 204 and World Organization against Torture and International Association of Democratic
Lawyers, International Commission of Jurists, Inter-African Union for Human Rights v Rwanda,
Nos 27/89, 46/91, 49/91, 99/93.
25
ICJ, Diallo, para 68. Cf Bjorge (2011), 539–540. See also Adenas (2011) and Ghandhi (2011).
26
ICJ, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), judgment of
03 Feb 2012. Judge Gaja’s dissent focused on the scope of the territorial tort exception, in the
context of the ius cogens nature of the norms involved; Judge Yusuf in his dissent stressed the right
to a remedy and Judge Bennouna did so in his separate opinion; Judge Cançado Trindade, in his
dissent, considered that there was no state immunity for “for international crimes, for grave
violations of human rights and of international humanitarian law.”
27
Much has been written about this case and much will be. For thoughtful examples see e.g. van
Albeek (2012). Gowlland-Debbas contrasts the “more daring” Namibia and Wall opinions with the
1962 South West Africa cases and the 2012 Jurisdictional Immunities case; see Gowlland-Debbas
(2013), p. 28. The subject matter may explain this difference in approach, given that the ICJ is
particularly cautious in cases involving some form of immunities, more than by the fact that with the
departure of many of the human rights judges the openness to human rights concerns is gone. In
addition, the difference may partly be due to the fact that the Court’s approach to a request for an
Advisory Opinion is different from its approach to a contentious case.
28
ICJ, Jurisdictional Immunities of the State, para 78. When discussing customary law, the Court
referred to ECtHR case law in paras 72, 73 and 76. See also its approach to the second issue,
whether the applicability of customary international law on state immunity was affected if it
concerned a rule of ius cogens: paras 90 and 96, referring to ECtHR, Al-Adsani v United Kingdom,
26 E. Rieter
its courts and those of other judicial authorities infringing the immunity which the
Federal Republic of Germany enjoys under international law cease to have effect.” It
was to do so “by enacting appropriate legislation, or by resorting to other methods of
its choosing.”29 In this case, the ICJ extensively discussed the scope of the custom-
ary rule of state immunity, by reference to domestic court judgments, including their
reasoning.30 Subsequently, domestic courts implemented the ICJ judgment.31
39. In Belgium v Senegal (2012), the ICJ found Senegal in violation of Articles
6 and 7 of the Convention Against Torture (“Torture Convention”). It also referred to
case law by the UN Committee Against Torture (CAT) interpreting the Conven-
tion.32 Yet it only did so to back up an additional opinion to the effect that the
obligation to prosecute perpetrators under the Torture Convention just applied to acts
of torture that occurred after its entry into force for the state concerned.33 It invoked
early case law by CAT to this effect34 but did not discuss later case law showing that
the Committee does not distinguish between acts allegedly committed before the
entry into force for Senegal and those allegedly perpetrated afterward. It only
observed that CAT did not deal with the issue of the temporal scope of the
obligations under the Convention in its discussion of “Mr Habré’s situation.”35 It
did not consider the question whether this approach constituted an established line of
case law by the CAT36 or the question whether it was necessary to introduce this
App No 35763/97, judgment of 21 Nov 2001, and Kalogeropoulou and others v Greece and
Germany, App No 59021/00, judgment of 12 Dec 2002. See in turn ECtHR, Jones et al v UK, App
No 34356/06 & 40528/06, judgment of 14 Jan 2014, paras 88–93, 198, referring to the 2012 ICJ
judgment.
29
ICJ, Jurisdictional Immunities of the State, para 139, subpara 4.
30
ICJ, Jurisdictional Immunities of the State, paras 83–90, which includes the references to the
interpretation by the ECtHR.
31
In fact, this judgment serves as a good example of domestic implementation of ICJ judgments,
both through domestic court cases and legislation, see for examples Cogan (2013), p. 590.
32
ICJ, Questions relating to the obligation to prosecute or extradite (Belgium v Senegal), judgment
of 20 July 2012, para 101.
33
Id, para 100.
34
UNCAT, O.R. et al v Argentina, 23 Nov 1989, Com Nos 1/1988, 2/1988 and 3/1988, para 7.3.
35
ICJ, Belgium v Senegal, para 101. On the merits, CAT had found violations of Arts 5 (2) and 7 of
the Convention Against Torture. Senegal was obliged to prosecute Habré. UNCAT, Guengueng
et al v Senegal, 17 May 2006, Com No 181/2001, para 9.8. In addition, since 19 Sept 2005, when
Belgium made a formal extradition request, the state party “had the choice of proceeding with
extradition if it decided not to submit the case to its own judicial authorities for the purpose of
prosecuting” him, para 9.10. By refusing to comply with this extradition request the state party had
“again failed to perform its obligations under Art 7 of the Convention,” para 9.11. Senegal was to
prosecute Habré, “or, failing that, since Belgium has made an extradition request, to comply with
that request” or, if relevant with another extradition request by another state, para 10.
36
In his separate opinion, Cançado Trindade argues that the Committee has “ever since adopted a
different approach,” as illustrated by UNCAT, Bouabdallah Ltaief v Tunisia, 14 Nov 2003, Com
No 189/2001 and, of course, Guengueng et al v Senegal itself. See UNCAT, Guengueng et al v
Senegal, 17 May 2006, Com No 181/2001, separate opinion of Cançado Trindade, paras 160–163.
issue in the case at hand.37 Apart from mentioning it in the factual description, it did
not invoke the “Habré case” decided by CAT anywhere else in its judgment.38 Nor
did it refer to the provisional measures issued by CAT while the case was pending, to
ensure the aut dedere aut iudicare rule.
40. The events subsequent to the CAT’s provisional measures revealed a complex
web of interactions, including some dialog, between various actors concerned with
the implementation of the Convention.39 Without those provisional measures, the
ICJ may not have been in a position pending the hearings to inquire with Senegal
about the presence of Habré in Senegal to ensure a meaningful outcome of the case
pending before it.
41. It is possible to explain the difference in approach by the ICJ vis-à-vis the
Torture Convention by the fact that for this treaty (as well as for the Convention on
the Elimination of All Forms of Racial Discrimination—CERD) the supervisory
committee to the treaty is not the only supervisory body. In fact, through the
compromissory clause, these treaties explicitly assign the ICJ a role in their inter-
pretation and the settlement of disputes between states.40 It is understandable that the
ICJ is inclined to give its own interpretation, independent from that developed by
the treaty body. Nevertheless, CAT is the only international forum available for the
alleged victims of violations of the Torture Convention where they could directly
37
Belgium had answered to a specific question put by a member of the Court that Art 7 (1) was
intended to strengthen the existing law and Senegal appeared to agree that the obligation to
prosecute could also apply to those offences allegedly committed in Chad before the entry into
force of the Convention for Senegal, para 98. Several acts of torture had occurred in Chad under the
reign of Habré and Habré took refuge in Senegal after the entry into force of the Torture Convention
in that country. There was no need for the Court to address this issue, as also pointed out by
Cançado Trindade, separate opinion, paras 160, 163–164. The Court added that nothing in the
Convention prevents Senegal from instituting proceedings concerning acts that were committed
before the entry into force of the Convention for this state, para 102.
38
In its description of the historical and factual background it did mention the decision on the merits
by CAT in the Guengueng et al v Senegal case, and follow-up by the Committee’s Rapporteur,
paras 27, 39.
39
The sequence of events in this case has extensively been discussed elsewhere. See for instance
Rieter (2010), pp. 553–557 and 1069–1073, and references therein, and Nowak, McArthur (2008),
pp. 285–292, 358–360 and 365. See also ICJ, Belgium v Senegal, separate opinion Cançado
Trindade, paras 52–72.
40
Art 30 of the Torture Convention provides: “1. Any dispute between two or more States Parties
concerning the interpretation or application of this Convention which cannot be settled through
negotiation shall, at the request of one of them, be submitted to arbitration. If within six months
from the date of the request for arbitration the Parties are unable to agree on the organization of the
arbitration, any one of those Parties may refer the dispute to the ICJ by request in conformity with
the Statute of the Court.” Art 22 of CERD further provides: “Any dispute between two or more
parties with respect to the interpretation or application of this Convention, which is not settled by
negotiation or by the procedures expressly provided for in this Convention, shall, at the request of
any of the parties to the dispute, be referred to the ICJ for decision, unless the disputants agree to
another mode of settlement.”
28 E. Rieter
participate in the proceedings. That fact alone warrants examination of the decisions
most closely relevant to the victims behind this inter-state case.
42. In 2012, in its Diallo judgment on compensation, the ICJ once more drew from
case law by human rights bodies.41 It pointed out that, after its earliest case, Corfu
Channel, it had never further developed its case law on compensation. Obviously,
other international bodies have developed theirs, and it only makes sense to consult
this case law, both to get an understanding of the state of the law and to draw
inspiration.42
43. The ICJ pointed out that the IACtHR had observed that “[n]on pecuniary
damage may include distress, suffering, tampering with the victim’s core values,
and changes of a non-pecuniary nature in the person’s everyday life.”43 It then
concluded, in line with human rights case law, that “non-material injury can be
established even without specific evidence. In the case of Mr. Diallo, the fact that he
suffered non-material injury is an inevitable consequence of the wrongful acts of the
DRC already ascertained by the Court.”44
44. The ICJ noted in Diallo that the HRCtee and the African Commission had not
specified the sum to be paid by way of reparation for material or non-material injury
injury caused by the violations of the two directly applicable treaties (ICCPR and
ACHPR). It explained that “[a]rbitral tribunals and regional human rights courts
have been more specific, given the power to assess compensation granted by their
respective constitutive instruments.”45 Invoking case law by the European and Inter-
American courts, it observed that “(e)quitable considerations have guided their
quantification of compensation for non-material harm.”46 It pointed out that in
41
ICJ, Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the
Congo), judgment on compensation of 19 June 2012.
42
“The Court has taken into account the practice in other international courts, tribunals and
commissions.” It referred to ITLOS, the ECtHR, the IACtHR, the Iran-United States Claims
Tribunal, the Eritrea-Ethiopia Claims Commission, and the UN Compensation Commission.
These have all “applied general principles governing compensation when fixing its amount,
including in respect of injury resulting from unlawful detention and expulsion.” ICJ, Diallo, para
13.
43
ICJ, Diallo, para 18, reference to IACtHR, Gutiérrez-Soler v Colombia, judgment of 12 Sept 2005
(Merits, Reparations and Costs), para 82.
44
In its judgment on the merits, the Court found that Mr. Diallo had been arrested without being
informed of the reasons for his arrest and without being given the possibility to seek a remedy, ICJ,
Diallo, judgment of 30 Nov 2010, paras 74 and 84; that he was detained for an unjustifiably long
period pending expulsion, para. 79; that he was made the object of accusations that were not
substantiated (ibid., p. 669, para. 82); and that he was wrongfully expelled from the country where
he had resided for 32 years and where he had engaged in significant business activities (ibid.,
pp. 666–667, paras. 73 and 74). Thus, it is reasonable to conclude that the DRC’s wrongful conduct
caused Mr. Diallo significant psychological suffering and loss of reputation,” para 21.
45
ICJ, Diallo, para 24.
46
ICJ, Diallo, para 24, referring to ECtHR, Al-Jedda v UK, judgment of 07 July 2011, App No
27021/08, para 114 and IACtHR, Cantoral Benavides v Peru, decision on reparations and costs of
general, based on the case law by the regional courts, “a claim for income lost as a
result of unlawful detention is cognizable as a component of compensation.”47
45. Finally, in its IFAD Administrative Tribunal Advisory Opinion (2012), in order
to pinpoint the law as it currently stands, the ICJ invoked two General Comments by
the HRCtee, both commenting on Article 14 ICCPR. It pointed out that “the
development of the principle of equality of access to courts and tribunals since
1946, when the review procedure was established, may be seen in the significant
differences between the two General Comments.” In its 1984 General Comment, the
HRCtee simply repeated the terms of the provision while in 2007, “on the basis of
30 years of experience in the application of the above-mentioned Article 14, gives
detailed attention to equality before domestic courts and tribunals.”48 The ICJ found
that in the “case of the ILOAT, the Court is unable to see any such justification for
the provision for review of the Tribunal’s decisions which favours the employer to
the disadvantage of the staff member.”49
2.3 Conclusion
46. Courts of general jurisdiction, such as the ICJ, must decide cases without the
direct procedural input of the human beings who are the subjects of human rights
03 Dec 2001, para 53. Discussing an approach based on equitable considerations, at para 33, it
pointed out that “[o]ther courts, including the [ECtHR and the IACtHR], have followed this
approach where warranted (see, e.g., Lupsa v Romania, 10337/04, Judgment of 08 June 2006,
ECHR Reports 2006-VII, paras. 70–72; Chaparro Álvarez and Lapo Íñiguez v Ecuador,
21 November 2007 (Preliminary Objections, Merits, Reparations and Costs), IACHR Series C,
No 170, paras. 240–2).”
47
ICJ, Diallo, para 40, with references to case law by the ECtHR and IACtHR and a decision by the
Governing Council of the United Nations Compensation Commission; “Moreover, if the amount of
the lost income cannot be calculated precisely, estimation may be appropriate.” Although an
estimation of lost income is acceptable, there are limits: “while an award of compensation relating
to loss of future earnings inevitably involves some uncertainty, such a claim cannot be purely
speculative,” para 49, again with references to ECtHR and IACtHR case law. The total sum
awarded to Guinea was US$ 95,000 to be paid by 31 Aug 2012. The Court expected timely
payment and indicated it had no reason to assume that the DRC would not act accordingly.
Nevertheless, it decided that, should payment be delayed, post-judgment interest on the principal
sum due would accrue. It considered that awarding post-judgment interest was “consistent with the
practice of other international courts and tribunals,” ICJ, Diallo 2012, para 56, referring to ITLOS,
the IACtHR and the ECtHR.
48
ICJ, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization
upon a Complaint Filed against the International Fund for Agricultural Development, Advisory
Opinion of 01 Feb 2012, I.C.J. Reports 2012, 10, para 39, referring to HRCtee, General Comment
No. 13: Article 14 (Administration of Justice), paras 2–3 and HRCtee, General Comment No. 32:
Right to equality before courts and tribunals and to a fair trial, paras 8, 9, 12 and 13.
49
ICJ, Advisory Opinion of 01 Feb 2012. See more closely the discussion by Murphy (2013),
pp. 546–547 and Cogan (2013), pp. 596–598.
30 E. Rieter
law. Due to its function, outcomes are not always as explicit in promoting human
rights as human rights lawyers would like them to be. However, when such courts of
general jurisdiction face a situation involving the fate of an individual human being,
the case law developed by human rights bodies can be particularly useful. This is
precisely because these adjudicators actually deal with cases where the individual or
group, on the one hand, and the state, on the other hand, are in an equal procedural
position (at least formally), in presenting evidence and submitting arguments.
Particularly when their judgments and decisions are carefully motivated and/or
there is a commonality of approach by multiple human rights bodies, this adds
considerably to their persuasive force.
3 The Attitude of a General Court Toward the Position

of the Individual
3.1 General Contribution by the ICJ
47. Various scholarly works have been published providing useful overviews of
how the ICJ has dealt with human rights.50 The cases discussed in these publications
have had time to become part of the discourse. This does not apply to the most recent
cases, especially those decided in 2012 and 2013. References to these cases are
included in this report to see what they could contribute to the law of human rights
protection.
48. Former judges of the ICJ have written about this issue in academic articles.
Rosalyn Higgins, for instance, dealt with the issue in 2007,51 and Bruno Simma did
so, among others, in 2012, discussing the ICJ’s role in mainstreaming human
rights.52
49. The protection of human rights is an example of the increasing “publicness” of
public international law considerations playing a role also before the ICJ.53 Higgins
wrote in 2007 that, until comparatively recently, the ICJ was a “Court of sovereign
States,” but in recent years it has also become “a court concerned with human rights,
50
See e.g. Momtaz and Ghanbari Amirhandeh (2011), pp. 256–264; Sivakumaran (2010),
pp. 299–325; Grimheden (2009), pp. 249–262; Zyberi (2008), Bedi (2007), Decaux (2004),
pp. 921–970; Goy (2002) and Dupuy (1999), pp. 117–130.
51
Higgins (2007), pp. 745–751; see generally Higgins (2009a) Departing Thoughts; for earlier
works (also included in Higgins (2009b) Themes and Theories): Higgins (1998) and Higgins
(2005); and, for another early contribution by a former ICJ judge, see Schwebel (1996).
52
See Simma (2012a).
53
See e.g. Rieter and de Waele (2012) Conclusion. See more generally on the concept of collective
interest treaties Gowlland-Debbas (2013), especially 34–46.
as human rights law has finally found its proper place within international law” and
the ICJ is “above all a court of international law.”54
50. The ICJ’s statements in Diallo (2010), for example, to the effect that the parties
must share the burden of proof, nuancing its rigid approach in Pulp Mills (2006), are
to be welcomed: “The determination of the burden of proof is in reality dependent on
the subject-matter and the nature of each dispute brought before the Court; it varies
according to the type of facts which it is necessary to establish for the purposes of the
decision of the case,” especially where “it is alleged that a person has not been
afforded, by a public authority, certain procedural guarantees to which he was
entitled.”55
51. Significantly, the ICJ has underscored the importance of the prohibition of cruel
treatment. In the context of the allegations of violations of Articles 10(1) and
7 ICCPR and Article 5 of the African Charter on Human and Peoples’ Rights
(ACHPR), the ICJ has emphasized: “There is no doubt, moreover, that the prohibi-
tion of inhuman and degrading treatment is among the rules of general international
law which are binding on States in all circumstances, even apart from any treaty
commitments.”56 This addition indicates that the Court considers that this prohibi-
tion is a rule of customary law of a special nature, binding “in all circumstances.”
This obiter dictum on the status of the prohibition, lends support to the argument that
the prohibition of cruel treatment is a rule of ius cogens. In that light, it is not
surprising that in 2012, the Court explicitly confirmed that “the prohibition of torture
is part of customary international law and has become a peremptory norm (ius
cogens).”57
3.2 Diplomatic Protection or Human Rights Protection?
52. States committed to respect for human rights exercise their consular protection
rights properly to prevent human rights violations. If such practice were more
widespread, it would reduce the need to resort to diplomatic protection. Article
19 of the ILC draft articles on diplomatic protection recommends that states exercise
diplomatic protection, in the hope that this right of the state will develop into a right
of the individual.58
53. This is not yet the current law. On the other hand, at least four other develop-
ments can be perceived: (1) the exercise of diplomatic protection has resulted in
54
Higgins (2007), p. 746.
55
ICJ, Diallo, paras 54–55.
56
ICJ, Diallo, para 87.
57
ICJ, Belgium v Senegal, judgment of 20 July 2012, para 99.
58
See Report of the ILC, 58th session, A/61/10 (2006).
32 E. Rieter
recognition of individual rights, (2) the applicable substantive law has expanded to
include human rights law as well, (3) there has been a recent awareness of erga
omnes interest, and (4) the group of persons covered by diplomatic protection
(or something similar, like protection of all crew members by the flag state or
functional protection of UN agents) has been extended.
54. As Zyberi set out in 2008, the ICJ has dealt with a range of cases (also)
involving the rights of individuals, even if many of them were not framed in terms
of human rights.59 Simma also makes this point and includes the Vienna Consular
Relations cases, LaGrand (2001) and Avena (2004), in what he terms the ICJ’s first
phase of engagement with human rights in cases concerned with matters that have
nothing to do with human rights.60
55. Indeed, decisions showing awareness of the position of the individual in an
inter-state case, in practice, show humanization even if the Court speaks not of
human rights but instead of “individual rights.” In LaGrand and Avena, the ICJ did
not follow the IACtHR in recognizing the right to consular protection as a human
right. It recognized the rights under Article 36 (1) of the Vienna Convention on
Consular Relations (VCCR) as rights of individuals without clarifying the distinc-
tion between the concepts of the right of individuals and human rights. Nonetheless,
it recognized an individual right in a traditional inter-state case and in a traditional
area of law. The ICJ’s judgment affirmed that the US had breached its obligations not
only to the Federal Republic of Germany but also to the LaGrand brothers.61 In
Avena, it pointed out that there is a “duty upon the arresting authorities to give that
information [under Article 36(1)(b) VCCR] to an arrested person as soon as it is
realized that the person is a foreign national, or once there are grounds to think that
the person is probably a foreign national.”62 In fact, it also made a suggestion
regarding implementation: “Indeed, were each individual [to be taken in detention]
to be told at that time that, should he be a foreign national, he is entitled to ask for his
consular post to be contacted, compliance with this requirement under Article
36, paragraph 1(h), would be greatly enhanced.”63 As to remedies, the ICJ noted
in Avena: “The crucial point in this situation is that, by the operation of the
procedural default rule as it is applied at present, the defendant is effectively barred
from raising the issue of the violation of his rights under Article 36 of the Vienna
Convention.”64 It pointed out, among others, that “the process of review and
reconsideration should occur within the overall judicial proceedings relating to the
59
Zyberi (2008), chapter 3 on the ICJ’s contribution to the interpretation and development of
international human rights law and principles, 65–258.
60
Simma (2012a), p. 10.
61
See ICJ, LaGrand (Germany v United States), judgment of 27 June 2001, para 128.
62
ICJ, Avena and Other Mexican Nationals (Mexico v United States of America), judgment of
31 Mar 2004, para 88.
63
Id, para 64.
64
Id, para 134.
individual defendant concerned.”65 Moreover, it pointed out that there could be no

question of a contrario reasoning, meaning that the US must provide a remedy to
nationals of states other than Germany and Mexico as well.66
56. In Diallo (2010), the ICJ also found the DRC in breach of Article 36 (1) of the
VCCR. It stated that it “is for the authorities of the State which proceeded with the
arrest to inform on their own initiative the arrested person of his right to ask for his
consulate to be notified.”67 It pointed out that “the fact that the person did not make
such a request not only fails to justify non-compliance with the obligation to inform
which is incumbent on the arresting State, but could also be explained in some cases
precisely by the fact that the person had not been informed of his rights in that
respect.”68 “Moreover, the fact that the consular authorities of the national State of
the arrested person have learned of the arrest through other channels does not remove
any violation that may have been committed of the obligation to inform that person
of his rights ‘without delay.’”69
57. In response to the exercise of diplomatic protection, the ICJ has clarified certain
rights in such a manner that individuals can now claim them, also in terms of
remedies. These individual rights, as clarified, also apply to others in a similar
position. In LaGrand, the ICJ acknowledged guarantees of non-repetition, and in
response to earlier non-compliance in a case by Paraguay against the US, it specified
the obligations of the state, among others by stating that the US government should
transmit the order to the Arizona Governor.70 The fact that the ICJ has ordered the
cancelation of an arrest warrant that violates a foreign official’s immunities,71
although materially much criticized,72 does signify that the Court considers that
states may sometimes have an obligation under international law as concrete as that.
While review and reconsideration of certain national cases does not go very far in
comparison, this specification (review and reconsideration) by the ICJ of the right of
the persons concerned, rather than just of the state, to some form of remedy is
nevertheless significant from the perspective of state obligations under human rights
treaties as well.73 Moreover, the ILC awaited the LaGrand judgment and then
65
Id, para 141.
66
Id, para 151. Mexico, it should be noted, has included the foreign detainee’s right to be notified of
the possibility of consular assistance, derived from the VCCR, in its catalog of rights granted
constitutional status.
67
ICJ, Diallo 2010, para 95.
68
ICJ, Diallo 2010, para 95, referring to ICJ, Avena, para 76.
69
ICJ, Diallo 2010, para 95.
70
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, para 28.
71
ICJ, Arrest Warrant of 11 April 2000 (DRC v Belgium).
72
ICJ, Arrest Warrant of 11 April 2000 (DRC v Belgium). See joint separate opinion by the human
rights Judges Higgins, Kooijmans and Buergenthal and the dissents of Judge Al-Khasawneh and ad
hoc Judge Van Den Wyngaert.
73
Cf Milano (2004) (arguing that in the Avena decision, the ICJ took a step backward, compared to
LaGrand, with regard to the characterization of the applicant’s action as diplomatic protection,
34 E. Rieter
confirmed that states are to provide guarantees of non-repetition. This provides

support to the practices developed by the human rights treaty bodies, like the
IACtHR.
58. In LaGrand, Germany formally exercised diplomatic protection, but materially
it argued human rights protection. The ICJ did not take this up at the time, but one
might see the individual opinion by Bruno Simma in DRC v Uganda74 as a next step,
culminating in the Diallo judgment by the full Court. This indicates a second
development. Diplomatic protection has become a potential mechanism for states
claiming violations of human rights law, whether they do so for political or more
“genuine” reasons. In 2007, the ICJ found that “Owing to the substantive develop-
ment of international law over recent decades in respect of the rights it accords to
individuals, the scope ratione materiae of diplomatic protection, originally limited to
alleged violations of the minimum standard of treatment of aliens, has subsequently
widened to include, inter alia, internationally guaranteed human rights.”75
59. In 2012, the Court discussed the compensation to be paid for the violations
found in its 2010 Diallo judgment. The case is noteworthy because the ICJ awarded
compensation for the first time since Corfu Channel (1949)76 and the judgment
draws very clearly on existing human rights case law. This not only validates the
case law developed by the regional bodies, but it also indicates the ICJ’s strong
awareness that the harm caused is harm to individual human rights. The Court noted
that Guinea had not provided the required information, but it assumed that
non-material injury was “an inevitable consequence” of the wrongful acts committed
by the DRC. The ICJ awarded Guinea USD 85,000 for the conduct that caused
Diallo “significant psychological suffering and loss of reputation.”77 In addition, it
because the Court referred to the “inter-dependence” of the rights of the State and the rights of the
individual, and it did not find it necessary to deal with Mexico’s claims of violation under a distinct
heading of diplomatic protection; but while the Court is hesitant in leading to a jurisprudential
elaboration of diplomatic protection, the remedies ordered show a willingness to make diplomatic
protection instrumental to the protection of human rights).
74
In his separate opinion Simma argued that while Uganda “chose the avenue of diplomatic
protection and failed,” the ICJ should have pointed out the applicability of international humani-
tarian and human rights law and Uganda’s standing in this respect, para 37. He invoked provisions
on the prohibition of cruel, inhuman or degrading treatment or punishment, the right to liberty and
security of persons and the freedom of movement in the ICCPR, the Torture Convention and the
ACHPR.
75
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Decision
on Preliminary Objections of 24 May 2007, para 39. This less formalistic approach to diplomatic
protection applies only to the rights of the individual, not to the rights of the company or of
shareholders. See e.g. Parlett (2013).
76
ICJ, Corfu Channel (UK v Albania), judgment of 15 Dec 1949 (compensation). In this case, where
Albania did not take part in the compensation proceedings, the ICJ calculated the award to the UK
based on the expenses made by it for the next of kin of seamen killed and for the medical treatment
of those injured. It did not consider psychological suffering.
77
ICJ, Diallo, judgment of 19 July 2012 (compensation), paras 21, 24.
awarded Guinea USD 10,000 for loss of property.78 It recalled that the sum awarded
to the State “in the exercise of diplomatic protection of Mr. Diallo is intended to
provide reparation for the latter’s injury.”79 It seems clear that the ICJ assumes that
Guinea will transfer the amounts received from the DRC to Mr. Diallo. Diplomatic
protection turns into human rights protection.80
60. In Chorzów Factory (1928), the PCIJ had considered that “(t)he rules of law
governing the reparation are the rules of international law in force between the two
States concerned, and not the law governing relations between the State which has
committed a wrongful act and the individual who has suffered damage.” The damage
suffered by the individual “can only afford a convenient scale for the calculation of
the reparation due to the State.”81 In Corfu Channel (1949),82 the ICJ only deter-
mined the damages requested by the state based on costs made by the state to the
surviving crew members and the family of those killed. Domestically, the state had
already paid sums of money to the families of crew members killed and paid for
medical expenses for those crew members injured. In Diallo, so many years later, the
developments in international human rights law are considered and moral damages
are included, all based on the harm done to the individual. This means that the
situation has changed considerably between Chorzów Factory (1928) and Diallo
(2012). The ICJ now based its judgment on human rights law. This also triggers the
assumption that the state will pass on to the actual victims the amounts received in
damages. States claim diplomatic protection and seek appropriate remedies from the
other state. If the claiming state has also undertaken to respect the human rights set
forth in the applicable human rights convention, it is indeed appropriate for the Court
to take into account the views of the alleged victim with regard to the form of
reparation and the measures taken by the treaty body in other relevant cases.
61. A third development is the increased awareness of an erga omnes interest, both
by states and by the ICJ, although by the latter in the context of a specific treaty. In
Belgium v Senegal, Senegal contested Belgium’s entitlement to bring the suit before
the ICJ, arguing that no Belgian nationals were involved. The ICJ, in affirming the
admissibility of the case, responded that no Belgian national need be involved to
give Belgium standing and that every state party to the Torture Convention has a
common interest in seeing that the obligations under the treaty are complied with
erga omnes partes.83
62. The fourth development is that the group of persons covered by diplomatic
protection has been extended due to an awareness of the plight of individuals. This
78
Id, para 33.
79
Id, para 59.
80
For subsequent developments see Yakushiji, The International Court of Justice and Diplomatic
Protection, in this Volume.
81
PCIJ, Case Concerning the Factory at Chorzów (Germany v Poland), case no 13 (claim for
indemnity; merits), judgment of 13 Sept 1928, 28.
82
ICJ, Corfu Channel (UK v Albania), judgment of 15 Dec 1949 (compensation).
83
ICJ, Belgium v Senegal (2012), para 68, with reference to Barcelona Traction.
36 E. Rieter
also applies in the specific context of the law of the sea. On October 4, 2013, the
Netherlands instituted proceedings against the Russian Federation before an arbitral
tribunal as required under Annex IV of the United Nations Convention on the Law of
the Sea (UNCLOS) in the Arctic Sunrise case.84 Part of the Dutch claim was
explicitly based on human rights obligations.85 It invoked the right to liberty and
security of the crew members who had been arrested and detained by the Russian
authorities, and it did so irrespective of their nationality, referring to Articles 9 and
12(2) of the ICCPR and customary law.86 Indeed, apart from two Dutch nationals,
another 28 nationals were involved, from 18 other states, including Russia.87 It also
stressed that the conflict between states should not infringe the rights of
individuals.88
63. In the context of this case, ITLOS, a specific permanent tribunal for disputes
arising out of the UN Convention on the Law of the Sea, had its first clear
engagement with human rights matters in a request for provisional measures subse-
quently filed by the Netherlands on October 21, 2013.89 While the focus of the
Netherlands’ submission to the arbitral tribunal and of its subsequent request to
ITLOS to prescribe provisional measures was much more on human rights than the
order for provisional measures by ITLOS itself, it is clear that ITLOS did take into
account the rights of the individuals irrespective of their nationality. The Tribunal
ordered the immediate release of the vessel “and all persons who have been
detained” (. . .), and Russia was to ensure that “all persons who have been detained
are allowed to leave the territory and maritime areas under the jurisdiction of the
Russian Federation.”90 This confirms its approach in M/V “Saiga” (2), where it also
allowed the flag state to claim on behalf of all crew members.91 Judge Jesus issued a
84
Arctic Sunrise is an icebreaker which flies the flag of the Netherlands and is operated by
Greenpeace International.
85
Under Art 293 the arbitral tribunal shall apply UNCLOS and other rules of international law not
incompatible with UNCLOS. The submission pointed out that this includes the ICCPR, to which
both states are a party. ITLOS, Arctic Sunrise case (Netherlands v Russian Federation), order of
22 Nov 2013, para 29.
86
ITLOS, Arctic Sunrise, para 30 under 3.
87
ITLOS, Arctic Sunrise, submission of the Kingdom of the Netherlands, para 19.
88
ITLOS, Arctic Sunrise, para 38.
89
It should be noted that at least one member of ITLOS has a human rights background. Judge Elsa
Kelly of Argentina was formerly a member of the IAComHR.
90
ITLOS, Arctic Sunrise, para 105 under 1b.
91
ITLOS, M/V ‘Saiga’ (2) (St Vincent and the Grenadines v Guinea), 01 July 1999. The Court noted
that the provisions of the UN Convention on the Law of the Sea, including Art 292, do not
distinguish between nationals and non-nationals of the flag State, para 105. According to ITLOS
the ship, everything on it, and every person involved or interested in its operations are treated as an
entity linked to the flag State. The nationalities of these persons are not relevant, para 106. It referred
to the “transient and multinational composition of ships’ crews.” These crews could include persons
of several nationalities. “If each person sustaining damage were obliged to look for protection from
the State of which such a person is a national, undue hardship would ensue,” para 107. Cf on the
expansion of the scope of diplomatic protection the reports by ILC Rapporteur Dugard,
Separate Opinion arguing that the order was based on the earlier “ship as a unit”
approach in M/V “Saiga” (2). This approach brings “under the international judicial
protection of that State all the crew members of the vessel flying its flag.” He
acknowledged this as a welcome extension of the traditional notion of diplomatic
protection, but he disagreed with the fact that the two Russian crew members were
included by the Tribunal in the persons to be released. This, he considered, may be
pushing too far the scope of the applicability of the “ship as a unit” concept.92
64. Indeed, it is a good example of the development from traditional “diplomatic
protection” to “diplomatic human rights protection.” Judges Wolfrum and Kelly
succinctly expressed this: “We have voted in favour of the order to release the vessel
Arctic Sunrise and all persons on board who were arrested in connection with the
detention of the vessel. In our view it is mandatory that the order to release covers all
persons regardless of their nationality.”93
3.3 Extraterritorial Application of Human Rights Treaties

and Armed Conflict
65. It was in Corfu Channel (1949) that the ICJ spoke of “elementary consider-
ations of humanity, even more exacting in peace than in war.”94 This already
indicates a relation between human rights law and humanitarian law.95 Meanwhile,
the ICJ has confirmed that both branches of law complement each other.96 While it
e.g. A/CN.4/506 and A/CN.4/538, among others referring to the situation of stateless persons and
refugees. Cf Amerasinghe (2008), pp. 119–122 and Gaja (2010).
92
ITLOS, Arctic Sunrise, Separate Opinion of Judge Jesus, para 18–20.
93
Id, Joint Separate Opinion of Judges Wolfrum and Kelly, para 1.
94
ICJ, Corfu Channel (UK v Albania), judgment of 09 Apr 1949, para 22.
95
For renewed references to these elementary considerations of humanity see ICJ, Nicaragua v US,
para 218; Nuclear Weapons Advisory Opinion, para 79, adding the notion of “intransgressible
principles of international customary law,” a passage which was quoted integrally in the Wall
opinion, para 157.
96
The ICJ has tried to deal with situations of armed conflict also where it only has jurisdiction based
on the compromissory clause to a specific human rights treaty. In its order for provisional measures
in Georgia v Russia, which was brought under the Convention on the Elimination of All Forms of
Racial Discrimination (CERD), it noted that the rights in question, in particular those stipulated in
Art 5, paragraphs (b) and (d) (i) of CERD, are of such a nature that prejudice to them could be
irreparable, para 142. It indicated its awareness of the “exceptional and complex situation” and the
“continuing uncertainties as to where lines of authority lie.” “[B]ased on the information before it in
the case file, the ICJ is of the opinion that specific ethnic populations remain vulnerable” and that
the situation was “unstable and could rapidly change.” It considered that there was “an imminent
risk that the rights at issue in the case may suffer irreparable prejudice.” ICJ, Georgia v Russia,
order for provisional measures of 15 Oct 2008, para 143. As it often does in such cases, the Court
indicated provisional measures that were different from the ones requested and it addressed them to
both parties. Both Parties were to refrain from any act of racial discrimination and from sponsoring,
defending or supporting such acts; they were to facilitate humanitarian assistance; and they were to
38 E. Rieter
has not given very concrete guidance as to how human rights law and humanitarian
law apply together, it has made clear that they do. It has confirmed in Advisory
Opinions and contentious cases that the obligations under human rights law do not
cease during armed conflict, except through the application of derogation provisions
such as Article 4 of the ICCPR.97
66. The ICJ has confirmed that the ICCPR “is applicable in respect of acts done by a
State in the exercise of its jurisdiction outside its own territory.”98 It started out by
stating that Article 2(1) ICCPR could be “interpreted as covering only individuals
who are both present within a State's territory and subject to that State’s jurisdiction,”
but it could “also be construed as covering both individuals present within a State’s
territory and those outside that territory but subject to that State’s jurisdiction.” It
announced that it would seek to “determine the meaning to be given to this text.”99 It
observed that “while the jurisdiction of States is primarily territorial, it may some-
times be exercised outside the national territory.” Considering the object and pur-
pose of the ICCPR, it noted that “it would seem natural that, even when such is the
case, States parties to the Covenant should be bound to comply with its provi-
sions.”100 “The constant practice of the [HRCtee] is consistent with this. Thus, the
[HRCtee] has found the Covenant applicable where the State exercises its jurisdic-
tion on foreign territory. It has ruled on the legality of acts by Uruguay in cases of
arrests carried out by Uruguayan agents in Brazil or Argentina.”101
67. While in the context of the ICCPR the ICJ spoke of “primarily territorial,” in the
context of the ICESCR it noted that it guaranteed rights which are “essentially
territorial.” This could be the reason, the Court said, why this treaty “contains no
provision on its scope of application.” At the same time, it was not to be excluded
refrain from any action that might prejudice the respective rights of the Parties or might aggravate or
extend the dispute. Subsequently the ICJ declared the case inadmissible for insufficient negotiation.
97
See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 08 July 1996,
para 25 (with a rather inflexible approach to the applicable law by declaring that in the context of the
right to life humanitarian law is always lex specialis); ICJ, Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 09 July 2004; and ICJ, Case
Concerning Armed Activities on the Territory of the Congo (DRC v Uganda) 19 Dec 2005, para 16.
See also Gowlland-Debbas (2013), p. 47.
98
ICJ, Wall Opinion, para 111. In addition, the Court also discussed the extraterritorial obligations
under ICESCR and Children’s Convention.
99
ICJ, Wall Opinion, para 108.
100
101
ICJ, Wall Opinion, paras 109–110. See on extraterritorial application Milanovic (2011) and
Gondek (2009). See also Buergenthal (2007), pp. 143–150 and Wilde (2007), Dennis and Surena
(2008), Rodley (2009). See also the recently released (leaked?) memorandum of 19 Oct 2010 by
Harold Koh, former Legal Adviser to the US Department of State entitled “Memorandum Opinion
on the Geographic Scope of the International Covenant on Civil and Political Rights.”
that it applies “both to territories over which a State party has sovereignty and to
those over which that State exercises territorial jurisdiction.”102
68. The ICJ has also confirmed the extraterritorial applicability of the Convention
on the Rights of the Child.103 Moreover, in the Bosnia Genocide case, when it
discussed the duty to prevent genocide, the ICJ pointed out that the “substantive
obligations arising from Articles I and III are not on their face limited by territory.
They apply to a state wherever it may be acting or may be able to act in ways
appropriate to meeting the obligations in question.”104 Lastly, the ICJ has expressed
itself on the extraterritorial application of the CERD in an international armed
conflict. When it ordered provisional measures in Georgia v Russia, the ICJ
observed that “there is no restriction of a general nature in CERD relating to its
territorial application; whereas it further notes that, in particular, neither Article 2 nor
Article 5 of CERD, alleged violations of which are invoked by Georgia, contain a
specific territorial limitation; and whereas the Court consequently finds that these
provisions of CERD generally appear to apply, like other provisions of instruments
of that nature to the actions of a state party when it acts beyond its territory.”105
69. The point made by Buergenthal on cross-fertilization106 can be illustrated by the
evolution undergone by the ECtHR on the issue of extraterritorial application since
its Bankovic decision. It has occurred that the ECtHR changed its case law in this
respect only after the ICJ, the inter-American system, and the HRCtee explicitly
clarified their own approach, as in the context of the binding nature of provisional
measures.107 This appears to have happened also in the context of the extraterritorial
application of human rights treaties.
102
ICJ, Wall Opinion, para 112. Cf e.g. Maastricht ETO Principles on Extraterritorial Obligations of
States in the Area of Economic, Social and Cultural Rights, 28 Sept 2011; Wilde (2016), Langford
et al. (2013) and Coomans and Künnemann (2012).
103
104
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro), 26 Feb 2007, ICJ Reports (2007), 4, para 183.
“The obligation to prosecute imposed by Article VI is by contrast subject to an express territorial
limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the
territory of which the act was committed (cf paragraph 442 below), or by an international penal
tribunal with jurisdiction (paragraphs 443 ff. below),” para 184.
105
ICJ, Application of the International Convention on the Elimination of all forms of Racial
Discrimination (Georgia v Russia), order for provisional measures of 15 Oct 2008, para 109.
106
Supra, Sect. 3.2.
107
See ECtHR, Mamatkulov and Askarov v Turkey, App Nos 46827/99 and 46951/99, judgment of
04 Feb 2005, reversing its 1991 Cruz Varas v Sweden judgment. In Mamatkulov, the ECtHR indeed
referred to the case law of the other human rights bodies, as well as to the ICJ in LaGrand, judgment
of 27 June 2001. For another important case in which it explicitly referred to case law by other
supervisory bodies (in particular the IACtHR) see ECtHR, Varnava et al v Turkey, App Nos 064/90,
16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, judgment
of 18 Sept 2002, (on the procedural obligations under Art 2 ECHR following an enforced
disappearance, and the function of these obligations independent of the material obligations arising
under this provision). See also Sect. 2.2 of this report.
40 E. Rieter
70. In Al-Skeini et al v. UK (2011),108 the Grand Chamber, following earlier

judgments by various sections, found that the UK indeed had effective control in
that case, which could be seen as explaining away the “European legal space”
criterion it had introduced in the Banković decision (2001).109 It was between
Banković (2001) and Al-Skeini (2011) that the ICJ had published its Wall Opinion
(2004)110 and its judgment DRC v. Uganda,111 confirming the extraterritorial
applicability of the human rights treaties at issue.112 In other words, in this respect,
the ICJ arguably has had a considerable impact on the effective interpretation of the
ECHR by the ECtHR. The ECtHR Grand Chamber does not generally refer to case
law by other adjudicators in its actual discussion, and it did not do so in Al-Skeini,
but it was at least very explicitly aware of this case law. In fact, the section of this
judgment on “Relevant International Law Materials” was entirely devoted to the
case law of the ICJ, and the legal briefs of the interveners prominently dealt with this
as well.113
3.4 Provisional Measures Involving Human Beings
71. The ICJ and ITLOS have both shown sensitivity toward the plight of individuals
through their use of provisional measures.114 Already in 1927, the Permanent Court
of International Justice ordered specific provisional measures where it upheld, at
least during the proceedings, certain basic rights contained in a bilateral treaty.115 As
Higgins puts it: “[v]arious rights that today we would term human rights were
protected by the interim measures, exactly because they were the claimed rights by
one party under the dispute (. . .). The protection of human rights was the
108
ECtHR, Al-Skeini et al v UK, App No 55721/07, judgment of 07 July 2011.
109
ECtHR, Banković et al v Belgium et al, App No 52207/99, Decision of 19 Dec 2001.
110
ICJ, Wall Opinion, paras 109–112.
111
ICJ, Armed Activities on the Territory of the Congo (Congo v Uganda), 19 Dec 2005, paras
180 and 216.
112
See also ECtHR, Al-Jedda v UK, App No 27021/08, judgment of 07 July 2011, on another issue
of international law, where the Grand Chamber apparently returned to the more classic criterion of
effective control. This criterion is in fact established in international law, as opposed to the “ultimate
authority and control” criterion previously introduced in Behrami (“The Court does not consider
that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the
Multi-National Force became attributable to the United Nations or—more importantly, for the
purposes of this case—ceased to be attributable to the troop-contributing nations.” Id, para 80).
113
For an in-depth discussion of the contribution of the ICJ to the law on extraterritorial application
see Wilde (2013).
114
Since the publication of this report, the ICJ has become increasingly cautious, cf Rieter, The
International Court of Justice and Provisional Measures Involving the Fate of Persons, in this
Volume.
115
PCIJ, Denunciation of the Treaty of 2 November 1865 Between China and Belgium, order of
08 Jan 1927, 7.
concomitant of the perceived need to protect the rights claimed in the dispute under
litigation; it was not ancillary to them or separate from them.”116
72. For the ICJ, an important early case was the Tehran Hostages case (1979).117 It
pointed out the danger of irreparable harm to the hostages. This indicates awareness
by a general court of public international law of the plight of individuals pending the
proceedings. Of course, it did so after emphasizing the fundamental importance of
respect for the inviolability of envoys and embassies for the conduct of relation
between states, in particular the reciprocal obligation to assure the personal safety of
the diplomats, but still, this is what it said as well: “Whereas continuance of the
situation the subject of the present request exposes the human beings concerned to
privation, hardship, anguish and even danger to life and health and thus to a serious
possibility of irreparable harm.”118
73. While noting that “nothing could be more irreparable than the taking of life,”
Thirlway questions whether the rights of the US were at stake, now that some of the
persons at risk of being executed were not US citizens.119 He notes that the ICJ
“moved imperceptibly from the international legal rights of the United States to the
injury to the persons, health and life of the individuals concerned; the Order provides
no link between these two considerations.”120 Indeed, in Higgins’ words: “[e]
schewing formalism, the Court thus made the connection between harm to the
individuals concerned and obligations owed by Iran to the United States under the
Vienna Conventions.”121
74. In its order for provisional measures in LaGrand (Germany v US), the ICJ
implicitly responded to the execution of Breard contrary to its order for provisional
measures in another case (Paraguay v US) by stressing that the government was
under the obligation to transmit the present order to the Governor of Arizona and the
Governor was obliged “to act in conformity with the international undertakings of
116
Higgins (1997), p. 95.
117
On the merits, this case is famous mainly for its discussion of state responsibility, including
responsibility for inaction: ICJ, US Diplomatic and Consular Staff in Tehran (United States v Iran),
judgment 24 May 1980, paras 61–67 (due diligence) and 69–79 (acts of state) and its determination
that “diplomatic law itself provides the necessary means of defence against, in sanction form, illicit
activities by members of diplomatic or consular missions,” paras 83 and 86. Nevertheless the
judgment is often cited as well for its emphasis on the seriousness of the violations with regard to the
persons concerned, referring in fact to arbitrary detention in conditions of hardship: “Wrongfully to
deprive human beings of their freedom and to subject them to physical restraint in conditions of
hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations,
as well as with the fundamental principles enunciated in the Universal Declaration of Human
Rights,” para 91.
118
ICJ, Hostages Case, order of 15 Dec 1979, para 42.
119
Thirlway (1994), p. 8.
120
Id, 9.
121
Higgins (1997), p. 100.
42 E. Rieter
the United States.”122 In its judgment, it again pointed out that state responsibility is
engaged by the actions of all of its constituent parts, that the federal authorities must
transmit the order to the Governor of Arizona, and that this state was obliged to act in
compliance with the order. The ICJ summarized the situation as follows: “the
various competent United States authorities failed to take all the steps they could
have taken to give effect to the Court’s Order.”123 The order did not require the US to
“exercise powers it did not have,”124 but it did impose the obligation to “take all
measures at its disposal to ensure that Walter LaGrand is not executed pending the
final decision in these proceedings.”125 Thus, the ICJ has increased the specificity of
the measures required (even if to no avail in this case). It has also used stronger
wording condemning non-compliance but it has not yet attached additional legal
consequences to states ignoring provisional measures. It could explicitly point out
that non-compliance with provisional measures results in aggravated responsibility.
It could mention disrespect as a separate violation in the operative paragraphs.126 It
could emphasize the obligation of non-repetition by noting that the state is under an
obligation to avoid similar violations in the future, including by taking appropriate
steps to ensure respect for its provisional measures.
75. It is noteworthy that already since before its LaGrand judgment (2001),
confirming the binding nature of its provisional measures in all cases, in cases
involving the fate of human beings, the ICJ generally was less strict regarding four
traditional aspects of provisional measures.127
76. The first traditional aspect is that of allowing no overlap with the main claim. It
has always been clear that the use of provisional measures should not dictate the
ultimate determination of the conflict. This rule was expressed in the fact-specific
Chorzów factory case (1927) as one of “no overlap with the main claim.” The ICJ
has never expressly overturned this specific rule, but in cases where the risk involves
something greater than financial damage, it simply does not apply it. In the Hostages
case, at the stage of provisional measures (1979), the US sought cessation of an
obvious wrong that was continuing while the case was pending.128 This clearly
overlapped with the relief requested on the merits. This type of provisional measure
is possible in blatant cases involving situations where it is already established that a
certain act or omission is a serious violation. Obviously, during the merits phase,
122
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, para 28.
123
ICJ, LaGrand, judgment of 27 June 2001, para 115.
124
Id.
125
Id.
126
It could even allow non-compliance to have an impact on the evidentiary requirements: e.g. by
shifting the burden to the State that violated the provisional measures. In this respect, the ECtHR
was wrong in Mamatkulov, where the petitioners bore the consequences of the State’s violation.
Bratza, Bonello and Hedigan in fact took the better approach.
127
In general on the ICJ’s provisional measures see e.g. Kolb (2013), Thirlway (2013) and Oellers-
Frahm (2012), pp. 1026–1077 and Rieter (2010), pp. 5–101 and the references in the above works.
128
ICJ, Hostages Case, order for provisional measures of 15 Dec 1979.
there will be discussion as to direct or indirect attribution, or about the facts, but the
interpretation of the law is clear. In these cases, it would be strange if the supervisory
body did not order provisional measures because without them, the relief sought on
the merits is no longer possible.129
77. Paradoxical as it seems, traditionally, while there should be no complete
overlap, there should at least be some relation to the main claim. This is the second
traditional aspect of provisional measures discussed here. The reason for this link
between the provisional measures and the decision on the merits is that it would not
be appropriate to order a state to do something or to abstain from doing something
pending the case that the Court could not possibly order in the judgment on the
merits and reparations.
78. Establishing a link with the rights claimed on the merits (and reparation) does
not prejudge the merits. The ICJ simply establishes such a link because otherwise it
would order provisional measures that have no relation to preserving the subject
matter of the case. It always points out that its order does not affect the rights of the
parties to submit arguments on admissibility, jurisdiction, and merits. When the
parties redefine their arguments, when they bring more facts, or when the ICJ takes
more time examining the facts, the latter may arrive at a different result on the merits.
The provisional measures then no longer apply. In these cases, there is a link
between the use of provisional measures and the claim on the merits, in the sense
that the applicant should show that the existence of a right is not manifestly absent.
79. Yet there are also cases where the provisional measures really aim at something
else than preserving the main claim. When lives appear to be at risk in legal disputes
about boundaries, the ICJ is less strict in requiring a link between the main claim and
the contents of the provisional measures. It considers the risk of irreparable harm to
persons. In fact, “that harm could not of itself affect where the frontier line might
run.”130 Nevertheless, in the older cases, Frontier Dispute (Burkina Faso/Mali)
(1986)131 and Cameroon v. Nigeria (1996),132 part of the rationale for the use of
provisional measures was to prevent loss of life in the disputed area. The ICJ was
concerned about the lives of civilians living in the conflict zone and of course about
preservation of the evidence. The same may be said to apply to some extent to the
recent Cambodia v. Thailand133 and Costa Rica v. Nicaragua134 cases. These cases
129
See also Oellers-Frahm (2012), p. 1037.
130
See Higgins (1997), p. 102.
131
ICJ, Frontier Dispute (Burkina Faso v Mali), order of 10 Jan 1986.
132
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), order
of 15 Mar 1996.
133
ICJ, Temple II: Request for interpretation of the judgment of 15 June 1962 in the case concerning
the Temple of Preah Vihear (Cambodia v Thailand), order for provisional measures of
18 July 2011.
134
ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua),
order for provisional measures of 08 Mar 2011 and order for new provisional measures of
22 Nov 2013.
44 E. Rieter
mainly involved conflicts about sovereignty, but the Court did consider the general
interest. It referred, among others, to the risk of the loss of life.135 How can this be
reconciled with the fact that there should be some relation with the claim? Even if the
parties themselves have not claimed so explicitly, it is still possible to link the
provisional measures order to the claim of sovereignty and to the general purpose
of the non-aggravation of the dispute.136 This indicates that the ICJ takes a rather
flexible approach to the second traditional aspect of provisional measures, namely
that there should be a link to the main claim. When it determines the appropriateness
of its use of provisional measures, it generally expects a link to the rights claimed on
the merits. Yet in the face of risks to the lives of persons, it simply requires a link
with the general purpose of non-aggravation of the dispute.137 Of course, there must
be some bearing on existing rights, in the sense that the Court is unlikely to order
something pending the proceedings where it obviously could not order this on the
merits, even if a party has explicitly asked for it.
80. The third traditional approach is strictness about the procedural requirements.
The ICJ considers that hearings should be held before it orders provisional measures.
Normally, it would not reward a state for procedural mistakes and unfair strategy.
Nevertheless, in LaGrand, it considered that the person involved, faced with an
imminent execution date, should not become the victim of his state having made the
wrong choice procedurally (by requesting the provisional measures at a moment
dangerously close to the execution date).138 In other words, the ICJ has also
considered the basic rights of the individual in its attitude toward procedural
requirements not met by the state.
81. The fourth and final issue is the ICJ’s approach toward jurisdiction on the
merits. While the authority of the supervisory body to order provisional measures
is a prerequisite for their use, the possibility of jurisdiction on the merits again
simply relates to the appropriateness of their use, not to the authority to use them.
Inherent in the notion of provisional measures is that they must be decided upon
135
For the observation that there is an increasing concern with the rights and interests of the affected
persons, although “always within the context of title,” see Shaw (2013). He notes, “It serves to
mitigate some of the consequences of a finding of sovereignty – not to overturn, invalidate or
modify it.” Id, 175–176.
136
By way of comparison, in cases about disappearances and massacres, the IACtHR has ordered
provisional measures when witnesses or local counsel were threatened, even though the cases
themselves were not about these persons. Here the clear risk of irreparable harm to persons is not
directly linked to the claims on the merits, but more to the integrity of the proceedings.
137
In 2009, the IAComHR amended its Rules of Procedure to allow for precautionary measures
“independently of any pending petition or case.” This was conceived of as a kind of international
amparo to protect individuals in urgent danger of irreparable harm. This is different before the ICJ,
where there must indeed be a dispute pending before it. The same applies to the ECtHR and the
Geneva committees, cf Rieter (2012).
138
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, but see the individual opinion of
Judge Schwebel attached to this order, as well as the individual opinion of Judge Buergenthal
attached to the subsequent judgment of 27 June 2001.
before determining jurisdiction on the merits. The ICJ has sometimes taken a strict
approach, requiring prima facie admissibility in cases involving the fate of human
beings pending the proceedings, for instance in DRC v. Rwanda.139 This showed a
marked difference from the approach taken by various human rights bodies.140 More
recently, the ICJ has been less strict. For one, in Avena II and Temple II, it has now
applied provisional measures pending the interpretation proceedings of a prior
judgment as well.141 Second, at the stage of provisional measures in Avena II,
there appears to have been considerably more doubt as to jurisdiction on the merits.
The Court now uses a specific criterion for the appropriateness of the use of
provisional measures, namely that there should not be a manifest absence of
jurisdiction on the merits, rather than the stricter “no prima facie absence” or
even—the strictest criterion—that there should be prima facie evidence of jurisdic-
tion at the stage of provisional measures.
82. While subsequently, at the stage of determining jurisdiction, in Avena II the ICJ
appeared to have been correct in declaring a lack of jurisdiction to continue the case,
there is no need to determine jurisdiction definitively at the stage of provisional
measures, and there was no manifest absence of jurisdiction at that stage. The
difference in approach in DRC v. Rwanda is striking. In that case, the ICJ was
very strict in denying a request for provisional measures, while it could certainly
have been argued that there was no prima facie lack of jurisdiction, let alone a
manifest absence of jurisdiction. Indeed, it could be argued that the majority was
subsequently mistaken by simply accepting an illegal reservation to the Genocide
Convention or by considering this a “procedural” reservation that was therefore not
illegal. While the case was pending, provisional measures certainly would have been
appropriate. Because in this case there were several ICJ judges who would have been
open to such an approach to reservations, it would have fitted the trend of increasing
humanization in the use of provisional measures had the ICJ ordered provisional
measures. Given the importance of the individual rights claimed, such provisional
measures appear entirely justified when there is no manifest absence of jurisdiction
139
ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda),
order of 10 July 2002 (denying provisional measures); judgment on jurisdiction and admissibility of
10 Feb 2006.
140
All members of the UN Human Rights Committee, for instance, had agreed with the use of
provisional measures in a case of contested competence, even those members that subsequently
dissented when the Committee declared the case admissible. The majority considered that the
ratification of the Optional Protocol applied without the benefit of the illegal reservation. See
HRCtee, Kennedy v Trinidad & Tobago, 26 Mar 2002, CCPR/C/74/D/845/1998. While they
disagreed, the dissenters were nevertheless in agreement with the previous use of provisional
measures, because there was a clear discussion within the Committee about the consequences of
illegal reservations, indicating that there certainly was no lack of prima facie jurisdiction at the stage
of provisional measures.
141
Only Judge Donahue appears to disagree, by questioning whether provisional measures should
be used in the context of Art 60 proceedings in the first place. While she did not yet take part in
Avena II, she elaborated on the Court’s order in Avena II in the subsequent Temple case (Cambodia
v Thailand), also involving Art 60 proceedings.
46 E. Rieter
on the merits. After all, the claimant state is facing irreparable harm when the
provisional measures are not taken, while the state that would be ordered to refrain
from doing something pending the proceedings would just face a temporary burden
of a lesser nature. Such an order does not preempt further intended action by either of
the parties.
83. In brief, humanization could also be seen in the approach of the ICJ to
provisional measures. Firstly, it appears from the flexibility shown by the Court
about the above traditional aspects of provisional measures. In border conflict cases,
for instance, it has considered the lives of the people present in these areas, even if
this was not the main concern of the states appearing before it.142 Secondly, the
Court is considerably more resourceful in drafting detailed orders for provisional
measures different from those requested, which is particularly important in the
context of armed conflict.
4 Conclusion
84. Given its function and its dependence on the cases and requests brought before
it, the ICJ very often is not able to contribute to human rights law. Nevertheless, it
has happened that its approach to the judicial function benefited international human
rights law, while the ICJ did not base this approach on human right considerations,
as in its finding that provisional measures are legally binding. Its approach to the
public interest, in general, may also contribute to the strengthening of human rights
law. The same applies to its increasing use of cross-referencing, validating, directly
or indirectly, the approach of the supervisory bodies.
85. Both ICJ and ITLOS play a role in the mainstreaming of international human
rights law and in humanizing diplomatic protection. The ICJ has confirmed that
human rights law continues to apply during armed conflict, together with humani-
tarian law, and that relevant provisions of the ICCPR, like those of other instruments
“of that nature,” apply also to states parties when they act outside their territory. It
has also established the peremptory nature of the prohibition of torture (Belgium v
Senegal) and hinted, as well, at the peremptory nature of the prohibition of cruel
treatment (Diallo).
86. The ILA Committee wishes to underscore the ICJ’s use of provisional measures
where it has been sensitive to the fate of human beings. The Court’s finding that its
provisional measures are legally binding in all cases makes it more difficult for states
to deny the binding nature of these measures indicated by other international
supervisory bodies. Increasingly, there are situations in which the ICJ has used
provisional measures to protect interests beyond those of individual states alone,
142
Yet see the subsequent developments, Rieter, The International Court of Justice and Provisional
Measures Involving the Fate of Persons, in this Volume.
to safeguard the essential rights of individuals. In doing so, it has often been less
strict in the application of traditional aspects of provisional measures. States may
sometimes be involved in legal disputes that have developed into military conflict,
with their citizens caught in the middle. In its use of provisional measures, in border
conflict cases, the ICJ has considered the risk to the lives of people living in border
areas, even if this was not the main concern of the parties themselves. This indicates
a measure of humanization in international adjudication.
87. The Court also seems to be more resourceful in drafting orders for provisional
measures different from those requested when the case involves the fate of human
beings caught in the middle, including in the context of armed conflict. It refers to the
obligations of both parties, and it adds the obligation not to aggravate the dispute,
pointing out its task in the maintenance of peace and security. What appears to be
underlying is that, faced with little time for discussion and contemplation, even for
the ICJ, the principle of preventing irreparable harm to persons often prevails over
traditional inter-state considerations.143
88. The ICJ is a court of general jurisdiction, based on the consent of states and only
dealing with inter-state cases. When even this Court determines a case in a manner
potentially protective to human beings, and—in passing—acknowledges the case
law developed by supervisory bodies established under the respective human rights
treaties, this helps to contribute to a worldwide acceptance of a minimum level of
protection of human rights.
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The Domestic Implementation
of Judgments/Decisions of Courts and Other
International Bodies That Involve
International Human Rights Law
Final Report of the ILA International Human Rights
Law Committee (Part 2)
Stefan Kadelbach
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2 Work of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3 The Obligations of States Parties to Comply with Judgments or Decisions of Judicial or
Quasi-Judicial International Bodies Dealing with Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3.1 The Legal Bases of the Obligation to Comply with Human Rights Decisions . . . . . . . 53
3.2 Jurisprudence on the State Party’s Obligation to Comply with Adverse Human Rights
Judgments and Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3.2.1 Human Rights Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3.2.2 Quasi-Judicial Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3.3 The Obligation to Comply with Jurisprudence in Matters of Human Rights When
the State Was Not a Party to the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
4 Contents of “Good Faith” Compliance and “Good” or “Best Practice” . . . . . . . . . . . . . . . . . . . . 69
4.1 “Good Faith” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.2 “Good Practices” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5 Country-Based Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
5.1 Argentina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
5.2 Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
5.3 Bangladesh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5.4 Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5.5 Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
5.6 China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
5.7 Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
5.8 Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
5.9 France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Finalized by Stefan Kadelbach
S. Kadelbach (*)

https://doi.org/10.1007/978-3-319-94848-5_3
52 S. Kadelbach
5.10 Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
5.11 India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5.12 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
5.13 Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.14 Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
5.15 Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5.16 Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.17 Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.18 South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.19 United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
5.20 United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
1 Introduction
1. For the purposes of Part 2 of the present report, the ILA International Human
Rights Law Committee (IHRL) sought to examine the legal framework of compli-
ance with international judgments and decisions involving human rights around the
world in order to study how the courts of a representative set of countries dealt with
obligations resulting from decisions of judicial or quasi-judicial international human
rights bodies, the impact of human rights jurisprudence, and the possible trends
and parallels in their methods of implementation. As a consequence, the Committee
sought to identify Guidelines regarding the nature of the obligations assumed by
a state party to an international human rights treaty or vis-à-vis a judgment from
a human rights body or an international body that involves human rights. The
Guidelines are annexed to the Resolution adopted on August 11, 2016.1
The Committee considered the following matters:
1. to define the obligations of a state upon becoming a party to a treaty as regards
compliance with judgments or decisions of judicial or quasi-judicial bodies in
human rights cases;
2. to evaluate the practice of states, highlighting good practices;
3. to develop a concept and scope of “good faith” compliance and “good practices”
with human rights treaties.
1
Reprinted in ILA Report 2016, at 22–23 and ILA, ILA Johannesburg Guidelines, in this Volume.
The Domestic Implementation of Judgments/Decisions of Courts and Other. . . 53
2 Work of the Committee
2. [. . .]2
3 The Obligations of States Parties to Comply

with Judgments or Decisions of Judicial or Quasi-Judicial
International Bodies Dealing with Human Rights
3.1 The Legal Bases of the Obligation to Comply with Human
Rights Decisions
3. A state, in the exercise of its sovereignty, voluntarily consents to becoming a

party to a human rights treaty. The legal bases of the states’ obligation to comply
with decisions of human rights bodies are the treaties that confer upon human rights
bodies the jurisdiction to declare violations. Although most UN human rights treaty
bodies were limited to state reporting on compliance with the treaty when they were
created, today the core UN human rights treaties provide for a complaints mecha-
nism and an individual petition procedure. For the purposes of this report, the term
“judicial bodies” refers to human rights courts: the European Court of Human Rights
(ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African
Court of Human and Peoples’ Rights (AfCtHPR). The term “quasi-judicial bodies”
comprises the ten UN human rights treaty committees and the regional commissions
of the inter-American and African systems.
4. For the ten UN human rights treaty bodies, two general and eight subject-specific
treaties form the bases of jurisdiction.3 Individual complaint procedures exist under
2
Para 2, which is not reproduced here, refers to the drafting history of the Report. The entire Report
is published in ILA Report 2016, at 284 ff.
3
These bodies are the UN Human Rights Committee (HRCtee) under the International Covenant on
Civil and Political Rights of 19 Dec 1966 (ICCPR), 999 UNTS 171, in force 23 Mar 1973; the
committees monitoring the International Covenant on Economic, Social and Cultural Rights of
19 Dec 1966 (ICESCR), 993 UNTS 3, in force 9 Mar 1973; the Convention on the Elimination of all
Forms of Racial Discrimination of 7 March 1966 (CERD), 660 UNTS 195, in force 15 June 1969;
the Convention on the Elimination of Discrimination against Women of 18 Dec 1979 (CEDAW),
1249 UNTS 13, in force 09 Aug 1985; the two committees under the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 Dec 1984 (CAT), 1465
UNTS 85, in force 31 Oct 1990 and the Optional Protocol thereto of 18 Dec 2002, 2375 UNTS
237, in force 22 June 2006, respectively, i.e. the Committee against Torture (CAT) and the
Subcommittee on Prevention of Torture (SPT); the committees under the Convention on the Rights
of the Child of 20 Nov 1989 (CRC), 1577 UNTS 3, in force 5 Apr 1992; the International
Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
of 18 Dec 1990 (CMW), 2220 UNTS 3, in force 01 July 2003; the Convention on the Rights of
Persons with Disabilities of 13 Dec 2006 (CRPD), 2515 UNTS 3, in force 03 May 2008; the
54 S. Kadelbach
eight of these treaties but require a special acceptance by the states parties.4 In the
regional systems, different models exist. With respect to Europe, although accep-
tance of the compulsory jurisdiction of the ECtHR was optional for many decades,
today a state, upon becoming a member of the Council of Europe, must accept the
compulsory jurisdiction of the Court and the right of individual petition.5 The Inter-
American Commission on Human Rights (IACHR) is unique in that it exercises
jurisdiction under two human rights instruments: the American Convention of
Human Rights (ACHR)6 and the American Declaration on the Rights and Duties
of Man (ADRDM).7 The acceptance of filing individual applications before the
Inter-American Commission under the ADRDM is automatic and does not require
acceptance by the state upon becoming a member of the OAS. Acceptance of the
IACtHR’s jurisdiction, however, requires a state to become party to the ACHR and,
in addition, to expressly accept the Court’s jurisdiction under Article 62 ACHR.8 In
contrast to the European system, individuals do not have direct access to the IACtHR
but need to file their application with the IACHR, which can take it to the Court if the
respondent state does not comply with its recommendations. As regards the compe-
tence over inter-state complaints, only in two protection systems ratification of the
underlying treaty includes the recognition of acceptance of the contentious jurisdic-
tion for such proceedings,9 whereas for the others specific acceptance is required.10
In the African system, both complaint procedures before the African Commission
are compulsory, but jurisdiction of the AfCtHPR depends on the ratification of an
additional protocol to the African Charter, and its jurisdiction for individual petitions
requires a declaration by the defendant state party.11 Once a state is a party, the
International Convention for the Protection of All Persons from Enforced Disappearance of 20 Dec
2006 (CED), 2716 UNTS 3, in force 23 Dec 2010.
4
Optional Protocol (OP) to ICCPR of 19 Dec 1966, 999 UNTS 302, in force 23 Mar 1976; OP to
ICESCR of 11 Dec 2009, in force 05 May 2013; Art 14 CERD; OP CEDAW of 06 Oct 1999, 2131
UNTS 83, in force 22 Dec 2000; Art 22 CAT; Art 5 OP CRC of 19 Dec 2011, A/RES/66/138 of
19 Dec 2011, in force 14 Apr 2014; OP CRPD of 13 Dec 2006, UN Doc A/61/611, in force 03 May
2008; Art 31 CED; Art 77 CMW has not entered into force.
5
Art 32 [European] Convention for the Protection of Human Rights and Fundamental Freedoms of
04 Nov 1950 (ECHR), entered into force 03 Sept 1953, 213 UNTS 222; CETS No 5.
6
American Convention on Human Rights of 22 Nov 1969 (ACHR), 1144 UNTS 123; OASTS No
36.
7
American Declaration on the Rights and Duties of Man of Apr 1948: Resolution XXX, Final Act,
Ninth International Conference of American States, Bogotá, Colombia, 30 Mar–02 May 1948 (Pan
American Union, 1948), 38; reprinted 43 AJIL Supplement 1949, 133.
8
Jurisdiction of the IACtHR is today recognized by 23 states; Trinidad and Tobago denounced the
ACHR in 1998, Venezuela in 2012.
9
Art 33 ECHR; Art 11 CERD.
10
This is the case with Art 41 ICCPR; Art 8 (2) OP CEDAW; Art 20 CAT; Art 33 CED; Art 13 OP
CRC; Art 47 ACHR.
11
Arts 47 and 55 African Charter of Human and Peoples’ Rights of 27 June 1981 (AfChHPR), 1520
UNTS 217; OAU Doc CAB/LEG/67/3 rev. 5, in force 21 Oct 1986; Arts 5 and 34 (6) Protocol to the
AfChHPR of 9 June 1998, OAU Doc OAU/LEG/EXP/AFCHPR/PROT III, in force 25 Jan 2004.
African bodies are competent to entertain complaints with respect to all human rights
instruments to which the respondent state is a party. The Statute of the newly created
Arab Court of Human Rights permits cases brought to be heard by the Court if the
claimant’s state and the respondent state are both parties to the statute; individuals do
not have access to the Court.12 The Terms of Reference of the ASEAN Intergov-
ernmental Commission on Human Rights do not provide for a complaint
mechanism.13
5. As to a state’s treaty obligations, the Vienna Convention on the Law of Treaties
(VCLT) is an undisputed general point of reference.14 Even though the VCLT
entered into force only after the adoption of most of the human rights treaties and
has not been ratified by all of their parties, its essential contents are considered to
form customary international law.15 Accordingly, international treaties in force are
“binding upon the parties to it and must be performed by them in good faith” (pacta
sunt servanda) (Article 26 VCLT) and “shall be interpreted in good faith in accor-
dance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose” (Article 31 (1) VCLT). By following an
evolutive approach to the interpretation of the treaty provisions on their jurisdic-
tion,16 the competent human rights bodies have spelled out the obligation to comply
with human rights conventions in an increasingly specific way.
6. According to Article 1 ACHR, states have “to respect and ensure” the rights and
freedoms of the ACHR to all persons subject to their jurisdiction.17 Article 2 ACHR
explicitly demands that states “undertake to adopt [. . .] such legislative or other
measures as may be necessary to give effect to those rights or freedoms” guaranteed
under the Convention. In its jurisprudence on impunity, the Court interpreted these
obligations to mean that the state has the duty to organize the governmental
apparatus and all the structures through which public power is exercised to permit
the exercise of rights and freedoms and that it “must prevent, investigate and punish
any violation of the rights recognized by the Convention and, moreover, if possible
attempt to restore the right violated and provide compensation as warranted for
12
Art 19 Statute of the Arab Court of Human Rights, adopted 07 Sept 2014, found in International
Commission of Jurists, The Arab Court of Human Rights: A Flawed Statute for an Ineffective
Court, Geneva (International Commission of Jurists) 2015, 35; the Court has subject matter
jurisdiction with respect to the Arab Charter on Human Rights of 23 May 2004, translated Int’l
Hum Rts Rep. 12 (2005), 893, in force 15 Mar 2008.
13
Terms of Reference for the Establishment of the ASEAN Intergovernmental Commission On
Human Rights of 19–20 July 2009, reprinted 48 ILM 2009, 1162.
14
Vienna Convention on the Law of Treaties of 23 May 1969 (VCLT), 1155 UNTS 331, in force
27 Jan 1980; cf Art 75 ACHR.
15
Aust (2012), paras 14–18.
16
As to the doctrine of human rights treaties as “living instruments” ECtHR, Tyrer v UK, Series A
26 (1978), para 31; IACtHR, Mapiripán Massacre v Colombia, judgment of 15 Sept 2005, Series C
134, para 106.
17
For the IACtHR jurisprudence see Cerna, Argentina & Mexico, in this Volume.
56 S. Kadelbach
damages resulting from the violation.”18 Ensuing duties are “obligations of means,
not of result,” and “due diligence” obligations, as the Court calls them, in the context
of protecting a victim from violations by private parties.19 As far as procedural
restitution is at stake, these duties are addressed to the judiciaries of the respondent
states.
7. The European Convention creates obligations for states parties toward all indi-
viduals within their jurisdiction, envisaging the practical implementation of the
protected rights and freedoms on the domestic legal order of states parties. Recent
case law has extended the ECtHR’s jurisdiction extraterritorially, to countries
outside the Council of Europe, in cases where the European state party to the
Convention exercises authority and control over the purported victim or over the
territory when the state party is an occupying power.20 The ECtHR21 could not avail
itself of an express legal basis for positive obligations but developed similar case law
under the jurisdiction clause of Article 1 ECHR, especially in the context of Articles
2 (right to life) and 3 (prohibition of torture and degrading treatment), at times taken
together with the provision on the binding nature of judgments (Article 46) if
measures to remedy a violation did not prove adequate.22 Procedural obligations
derive from Article 13 ECHR (right to an effective domestic remedy), which is
violated if the state party obstructs efforts to remedy or investigate human rights
complaints, be it before, during, or after procedures before the ECtHR.23 The
Committee of Ministers of the Council of Europe (CoM) published a guide in respect
of domestic remedies giving various examples of domestic case law of good
practices in terms of implementation.24
8. With respect to the UN system, the stance taken by the HRCtee may be taken as
paradigmatic. The jurisdictional clause of Article 2 ICCPR is decisive, according to
which the states parties undertake “to respect and to ensure to all individuals within
[their] territory and subject to [their] jurisdiction” the rights recognized in the
18
IACtHR, Velasquez Rodriguez v Honduras, judgment of 21 July 1989, Series C 7, para 166.
19
IACtHR, Miguel Castro – Castro Prison v Peru, judgment of 25 Nov 2006, Series C 160, paras
255 and 344; González et al v Mexico, judgment of 16 Nov 2009, Series C 205, paras 243–286
(“Cotton Field”).
20
ECtHR, Al-Skeini v UK, Reports 2011-XI; for the exterritorial application of UN human rights
treaties in the jurisprudence of the competent bodies and the ICJ see the First Part of this Report,
paras 66–70.
21
For the ECtHR jurisprudence see Pinto de Albuquerque, State Obligations in the European
System, in this Volume.
22
Compare ECtHR, Osman v UK, Reports 1998-VIII, para 115, and Demirtaș v Turkey, judgment
of 28 Oct 2014, No 25018/10.
23
ECtHR, Ramirez Sanchez v France, Reports 2006-IX, paras 159, 166; Burdov v Russia (No. 2),
Reports 2009-I, para 89.
24
Committee of Ministers, Guide of good practice in respect of domestic remedies of 18 Sept 2013,
Strasbourg (Council of Europe) 2013.
Covenant.25 HRCtee General Comment 31 spells this out in further detail in holding
all branches of government likewise accountable for both negative and positive
obligations.26 In conjunction with specific guarantees, this means that states do not
only have to refrain, for instance, from death threats (Article 9 ICCPR) but also have
“to take appropriate measures to ensure” the right to security against private per-
sons.27 As in the inter-American system, failure to prosecute perpetrators constitutes
in itself a human rights violation.28 It is a part of bona fide compliance with the
Covenant that procedural safeguards ranging from domestic remedies to access to
complaint procedures before the HRCtee, if accepted by the state party, are
guaranteed effectively.29
9. To conclude, all treaty bodies dealt with here have confirmed the obligations of
the states under the respective treaties, developed a notion from which negative and
positive obligations are derived, and established a nexus to procedural safeguards
and consequences in that respect. We will now examine the measures to be taken by
domestic courts.
3.2 Jurisprudence on the State Party’s Obligation to Comply

with Adverse Human Rights Judgments and Decisions
3.2.1 Human Rights Courts
10. Since there is neither a world court of human rights nor an ICJ human rights
chamber,30 and since the AfCtHPR has not yet elaborated jurisprudence in this
respect,31 this section on court practice will focus on the ECtHR and the IACtHR.32
25
Buergenthal (1981).
26
HRCtee, General Comment No 31, The Nature of the General Obligation Imposed on States
Parties to the Covenant, CCPR/C/Rev.1/Add. 13, 26 May 2004.
27
IACHR, Maria da Penha v Brazil, Reports No 54/1, 16 Apr 2001, para 44; HRCtee, Delgado
Páez v Colombia, CCPR/C/39/D/195/1985, 23 Aug 1990, Annex para 5.6.
28
HRCtee, Jayawardena v Sri Lanka, CCPR/C/75/D/916/2000, 22 July 2002, Annex paras 7.3, 10.
29
HRCtee, General Comment No 31, supra n 26, para 15; General Comment No 33, The Obligation
of States Parties under the Optional Protocol to the International Covenant on Civil and Political
Rights, CCPR/GC/33, 05 Nov 2008, para 11.
30
Concept Paper on the High Commissioner’s Proposal for a unified standing treaty body, HRI/MC/
2006/2, 22 Mar 2006; Swiss Confederation, Federal Department of Foreign Affairs and Geneva
Academy of International Humanitarian Law and Human Rights Law (eds), Protecting Dignity: An
Agenda for Human Rights, Geneva (United Nations) 2008; Kozema et al. (2010).
31
See generally Viljoen (2012), pp. 410–468. To date, there have been two judgments by the
AfCtHPR on the merits, App. 009/2011, Tanganyika Law Society et al v Tanzania, 14 June 2013,
and App. 013/2011, Beneficiaries of Late Norbert Zongo et al v Burkina Faso, 28 Mar 2014.
32
ICJ decisions with an impact on human rights, as they are dealt with in the first part of this report
(see Rieter, The International Court of Justice and Provisional Measures Involving the Fate of
58 S. Kadelbach
Under the respective conventions, states “undertake to abide by the final judgment of
the Court in any case to which they are parties” (Article 46 (1) ECHR) or “undertake
to comply with the judgment of the Court in any case to which they are parties”
(Article 68 ACHR). As in international law generally, such duties in the context of
human rights protection mechanisms imply, as a rule, an “obligation of result” of the
respondent states, namely to put an end to the violation, to restore the situation that
had existed before (restitutio ad integrum), to compensate for damages, and to
prevent repetitions of the conduct found to be in violation of the treaty.33 In cases
of international human rights crimes, there is an additional obligation to put in place
a system that allows the investigation, prosecution, and, if warranted, punishment of
offenders.34 Even though closer analysis of ECtHR and IACtHR practice reveals
common features and shows tendencies of rapprochement, it has to be noted that
both differ with respect to the substantial scope of their respective treaty bases, their
powers in the follow-up mechanisms, and the cultures of judicial dialogs with their
domestic counterparts.35
11. In the European system, the execution of ECtHR judgments is subject to the
supervision of the Committee of Ministers (CoM) (Article 46 ECHR).36 The ECtHR,
according to the original wording of the ECHR, has had no role in the execution
phase. For approximately the first 40 years since the ECtHR took up its function in
1959, the Court was content to let the CoM determine the appropriate redress for a
finding of a violation of the ECHR. Its role ended with the judgment, and the mere
finding of a violation was considered sufficient, also in terms of “just satisfaction”
(Article 41 ECHR). With the enlargement of the Council of Europe and the changing
nature of the cases presented to the court, the ECtHR has developed a pattern to
assist the CoM and the respondent state in identifying the remedies for the declared
violation. The Committee of Ministers itself has sought such guidance from the
Persons, in this Volume), will be integrated where pertinent in the country studies (below Sect. 4),
but not systematically, given the small number of cases.
33
Cf Arts 30, 31 and 35 of the Arts of the International Law Commission on Responsibility of States
for Internationally Wrongful Acts, 56 UN GAOR Supplement No 10, at 43, Doc A/56/10 (2001),
expressly referred to by the ECtHR, VgT Verein gegen Tierfabriken v Switzerland (No. 2), Reports
2009-IV, para 87. The underlying principle is the duty to make adequate reparation for every
violation of an obligation under international law, cf PCIJ, Factory at Chorzów (jurisdiction),
judgment of 26 July 1927, Series A No 9, 21 and Factory at Chorzów (merits), judgment of 13 Sept
1928, Series A No 17, 29; ICJ, Reparations for Injuries Suffered in the Service of the UN (advisory
opinion), ICJ Reports 1949, 184.
34
ECtHR, Mocanu v Romania, judgment of 17 Sept 2014, 10856/09, para 321; for the ACHR, see
supra n 19.
35
For a recent comparison see Burgorgue-Larsen (2017).
36
For overviews, see Lambert Abdelgawad (2008) and Flauss (2009), pp. 31–53.
Court since 2004.37 Protocol No. 14 to the ECHR38 has recently introduced the
possibility for the CoM to seek interpretative assistance from the ECtHR in clarify-
ing obligations arising from a judgment (now Article 46 (3) ECHR). Moreover, the
CoM has the option of instituting proceedings before the ECtHR to determine
whether a state has complied with a judgment (Article 46 (4) ECHR). In both
cases, a majority of two third of the CoM is required. This development corresponds
to the increasingly more assertive role of the ECtHR with respect to the concepts of
restitution and compliance with its judgments. So far, however, the Court has not yet
acknowledged a complaint for nonexecution of a judgment based on Article
46 ECHR alone.39
12. In the ECHR system, the choice of the appropriate means to implement a
judgment still falls, as a matter of principle, to the respondent state.40 However,
the Court has assumed an increasingly stricter stance in monitoring compliance with
its decisions.41 In this same vein, the ECtHR has limited the choice of means if the
measures to be taken follow in sufficient clarity from the obligations of the Con-
vention as specified by the Court.42 Along this line, the ECtHR has turned to a
practice of giving directions to the respondent states. Accordingly, execution may
entail not only “individual” measures as a consequence of the obligation to put an
end to an ongoing unlawful situation and to provide restitution but also “general”
measures aimed at eliminating the root causes and at preventing future violations.43
As regards “individual” measures, in some cases the ECtHR considers the appro-
priate remedy to be so self-evident that recourse to a lengthy discussion between the
CoM and the respondent state would undermine the Court’s “principle of effective-
ness.”44 In Assanidze v Georgia, the ECtHR reached the conclusion that the viola-
tion found (arbitrary detention) left no choice of remedy: the state had to release the
applicant as soon as possible.45 In a similar vein, possibilities of reexamination of
37
CoM Resolution DH Res. (2004) 3 of 12 May 2004; CoM Recommendation R (2004) 6 of
12 May 2004.
38
Protocol 14 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms of 13 May 2004, ETS No 194, entered into force 01 June 2010.
39
Cf ECtHR, Olsson v Sweden (No. 2), Series A 250 (1992); in Emre v Switzerland (No. 2),
judgment of 11 Oct 2011, 5056/10, para 75, the Court for the first time combined the finding of a
violation of a substantive right with one of Art 46 ECHR.
40
ECtHR, Marckx v Belgium, Series A 31 (1979), para 58.
41
Starting from ECtHR, Vermeire v Belgium, judgment of 29 Nov 1991, Series A 214-C, para 28.
42
ECtHR, Papamichalopoulos et al v Greece, Series A 330-B (1995), para 34; Scozzari and Giunta
v Italy, Reports 2000-VIII, para 249.
43
For the concept of restitution see Shelton (2015), pp. 298–314, see also Caligiuri and
Napoletano (2010).
44
ECtHR, Scozzari and Giunta v Italy, Reports 2000-VIII, paras 152–181.
45
ECtHR, Assanidze v Georgia, Reports 2004-II, paras 181–184; Ilașcu et al v Moldova and
Russia, Reports 2004-VII, para 22; see also Volkov v Ukraine, Reports 2013-I (reinstatement of a
dismissed judge).
60 S. Kadelbach
administrative procedures must be considered.46 Even though a conventional duty to

this end is controversial,47 the ECtHR, in order to restore the applicant to his prior
position, has repeatedly appealed to respondent states to seek the possibility of
reopening judicial proceedings, where appropriate.48 The CoM has endorsed this
approach and encouraged states to ensure that adequate possibilities of the
reexamination exist in those cases where the Court has declared a violation.49
Remedies may also extend to “general measures” like legislative acts.50 This practice
may be seen as a compensation for the lack of direct effect of ECtHR judgments51
and fits in with a tendency of the Court to consider not only the state as a whole under
the duty to comply with judgments but all of its institutions, including the legisla-
ture.52 The ensuing obligations may also entail a duty of domestic courts to ensure
“with diligence,” having regard to legal certainty, the conventional standards.53
Taken together with the process of monitoring compliance by the CoM, the indica-
tion and supervision of general measures amount to a concept of “control of
conventionality” for which these two institutions share responsibility.54 An impor-
tant role has also been assumed by the Parliamentary Assembly, which may draw the
attention to judgments that have not been implemented, and, to a lesser extent, by the
Commissioner for Human Rights.55
13. Since 2004, the ECtHR has established a new pattern of supervision to cope
with its extensive backlog,56 the “pilot judgment” procedure designed to deal with
repetitive cases deriving from “systemic” problems.57 The Court selects a represen-
tative case, suspends the processing of other cases dealing with the same issue, and
46
ECtHR, Da Silva and Hoogkamer v The Netherlands, Reports 2006-I.
47
For this discussion see Klein (2000).
48
Cf ECtHR, Sejdovic v Italy, Reports 2006-II, para 127.
49
CoM Recommendation R (2000) 2 of 19 Jan 2000.
50
For a recent overview see Zimmermann (2015), pp. 543–553.
51
Forst (2013), p. 7.
52
ECtHR, Wille v Liechtenstein, Reports 1999-VII, para 46.
53
ECtHR, Fabris v France, Reports 2013-I, para 75.
54
Flauss (2009), pp. 37–38. The term “control of conventionality” originated with the Inter-
American system (infra).
55
Forst (2013), pp. 22–24, 40–42, with references; see Parliamentary Assembly, Committee on the
Honouring of Obligations and Commitments of the Member States of the Council of Europe
(Monitoring Committee), The Monitoring Procedure of the Parliamentary Assembly, AS/Mon/Inf
(2013)06rec3, 27 June 2013.
56
The backlog has been reduced in the meantime; in 2012, there were still 151.600 cases pending
before the Court; as of 31 Mar 2016, approximately 67.200 applications were referred to one of its
formations.
57
Beginning from ECtHR, Broniowski v Poland, Reports 2004-V, para 83; see Leach et al. (2010);
as to “quasi pilot judgments” (identification of systemic failure, but no suspension of cases and no
indication of general measures) ibid, 24; for further analysis, Sicilianos (2014).
specifies the “general measure” that the state is supposed to take.58 The basis of this
obligation is the finding of a violation and its legal consequence that the state has to
put an end to the situation that is in conflict with the Convention.59 Appropriate
means usually are either legislative measures60 or the putting in place of essential
infrastructure,61 such as the construction or improvement of prisons.62 Often, the
Court contents itself in enumerating possible measures to be taken; it does so either
in the dispositif or in the reasons of its judgments.63
14. With regard to the inter-American compliance system, the lack of a provision in
the ACHR providing for the execution of judgments by a political body has resulted
in this supervision being conducted by the Court alone. The IACtHR asserts that
monitoring state compliance with its judgments is an inherent attribute of its
jurisdiction and regularly holds hearings and issues resolutions on compliance to
this end.64 Under its doctrine of “control of conventionality,” a state, under Article
2 ACHR, is required to give domestic effect to the provisions of the Convention and
to determine whether its domestic laws comply with the provisions of the Conven-
tion as interpreted by the Court.65 Compliance under Article 2 ACHR is interpreted
by the IACtHR to mean that “the state must adopt all measures so that the provisions
of the Convention are effectively fulfilled in its domestic legal system.”66 Despite the
fact that Article 68 ACHR requires only that states comply with judgments in cases
to which they are parties, under the control of conventionality doctrine, the IACtHR
has interpreted this to mean that all states parties are required to conform their
national laws and jurisprudence to all the Court’s judgments, including the reason-
ing. If a domestic law conflicts with the state’s international obligations, the state is
in violation of Article 2 ACHR, and the Court may order the state to amend or repeal
the law so as to comply with the treaty and provide for its execution. Absent
implementing legislation, the IACtHR considers the ACHR self-executing and
58
See, for instance, ECtHR, Atanasiu et al v Romania, judgment of 12 Dec 2010, 30767/05, para
230.
59
The pilot judgment procedure has been incorporated into the Rules of Procedure, which now
provide that the ECtHR is to identify the remedial measures the state is required to take at the
national level, Art 61 RoP ECtHR, as amended by the Court 21 Feb 2011, www.echr.coe.int/
Documents/Rules_Court_ENG.pdf. Accessed 11 July 2017.
60
Like in ECtHR, Greens and M.T. v UK, Reports 2010-VI (rights of prisoners to vote).
61
Cf ECtHR, Driza v Albania, Reports 2007-V, para 123.
62
As in ECtHR, Ananyev et al v Russia, judgment of 10 Jan 2012, 42525/07.
63
According to Art 61 (4) RoP, the Court may set a time limit.
64
Cf as to its role in the execution process Art 65 ACHR, according to which the IACtHR “shall
specify” cases to the General Assembly of the OAS “the cases in which a state has not complied
with its judgments, making any pertinent recommendations.”
65
See, for instance, IACtHR, Almonacid Arellano v Chile, judgment of 26 Sept 2006, Series C
154, para 124; summary also in IACtHR, concurring opinion of Judge ad hoc Ferrer Mac-Gregor
Poisot, Cabrera García and Montiel Flores v Mexico, Series C 220, 26 Nov 2010.
66
IACtHR, La Última Tentación de Christo (Olmedo Bustos v Chile), judgment of 5 Feb 2001,
Series C 73, para 87; Trujillo Oroza v Bolivia, judgment of 27 Feb 2002, Series C 92, para 96.
62 S. Kadelbach
automatically incorporated into the domestic law of the states parties to the treaty; it
determines that domestic laws that violate a right under the ACHR are without legal
effect, such as amnesty laws that prevent the state from investigating, prosecuting,
and punishing human rights crimes.67
15. Individual and general measures ordered by the IACtHR result from an inter-
pretation of the remedies clause (Article 63 ACHR), which, as opposed to the
restriction on financial compensation found in Article 41 ECHR, explicitly spells
out that “consequences of the measure or situation that constituted the breach of [. . .]
a right or freedom be remedied.”68 The categories of such remedies ordered by the
Court include restitution; rehabilitation; satisfaction; guarantees of non-repetition;
the obligation to investigate, prosecute, and punish; compensation for material and
moral damages and costs; and expenses of bringing the case before the inter-
American system.69 Restitution may mean the release of an individual illegally
detained; the return of illegally seized property; protection for displaced victims to
return to their homes; reinstatement of employment; the expunging of judicial,
administrative, criminal, or police records when a conviction has been reversed;
and the return of ancestral lands to indigenous groups.70 In this vein, the IACtHR, in
1997, for the first time ordered the release of a civilian who had been convicted by a
military court and then abused while in captivity.71 In other cases, the IACtHR
annulled proceedings and ordered a retrial. For example, in the Lori Berenson case,
the Court held that provisions of emergency laws adopted to deal with terrorism
violated Article 2 ACHR because they permitted the military to try civilians and
demonstrated that the state had not taken the necessary domestic legal measures to
give effect to the rights set forth in the ACHR.72 The state, after a change of regime
and a number of ensuing judgments, annulled previous military court judgments and
ordered retrials in civilian courts. In comparison, the IACtHR, for various reasons,
responds to a considerable degree to systemic human rights violations, whereas the
ECtHR, in the vast majority of cases, follows an individual justice pattern, so that
general measures play a more important role for the former than it does for the
latter.73
16. As for reparations, substantial moral damages, according to the ECtHR, result in
higher compensation payments,74 whereas they may entail in IACtHR jurisprudence
67
IACtHR, Barrios Altos v Peru, judgment of 14 Mar 2001, Series C 75, operative para 4;
Almonacid Arellano v Chile, judgment of 26 Sept 2006, Series C 154, para 119.
68
For the different mandates of human rights bodies with respect to compensation see Shelton
(2015), pp. 321–350.
69
Shelton (2015), chapter 10–14.
70
For an overview see Pasqualucci (2014), pp. 230–289.
71
IACtHR, Loayza-Tamayo v Peru, judgment of 17 Sept 1997, Series C 33, para 87.
72
IACtHR, Berenson-Mejía v Peru, judgment of 25 Nov 2004, Series C 119.
73
Soley (2017).
74
ECtHR, Selmouni v France, Reports 1999-V, para 123.
a wide range of non-pecuniary remedies.75 Such measures may be public acts or

ceremonies in which the state acknowledges responsibility for the violations. Thus,
the Court has demanded public apology, publication and dissemination of the
relevant parts of its judgment in the local newspapers, the creation of a memorial
named after the victims, locating and identifying the victim’s mortal remains and
returning them to their families, and scholarships, literacy or vocational programs,
and housing for the living relatives of the victims, whom the Court also identifies as
“victims” in view of the suffering they experienced as a result of the violation of the
ACHR.76 Similar in effect to the pilot procedure under the ECHR, if a pattern of
human rights violations reveals a systemic problem likely to be repeated in the future
and fundamental changes are not made, the IACtHR orders reparations that not only
benefit the individual victims in the case but also bring about structural changes.
Such remedies comprise capacity building by training public officials, legislative
reform, reversal or execution of domestic court rulings, and other nonlegal measures
such as improving prison conditions.
3.2.2 Quasi-Judicial Bodies
17. The UN treaty bodies have repeatedly used their powers to formulate in general
observations on how the respective conventions should be effectively implemented,
as general comments by CEDAW, CRC, CAT, and CERD show.77 In particular, the
HRCtee, based on Article 40 (4) ICCPR, which allows it to publish “general
comments as it may consider appropriate,” specified compliance obligations by
member states with regard to the treaty and its decisions. When it comes to complaint
procedures, however, only five out of the ten treaty bodies could develop practice on
a significant number of complaints so far: HRCtee, CERD, CEDAW, CAT, and
CRPD.78 Among these institutions, HRCtee and CAT are probably the most perti-
nent in terms of numbers of cases and potential impact on domestic courts.79 This
section therefore concentrates on the implementation of findings of these bodies.
75
See the classification in 13 groups of remedies in the study by Basch et al. (2010).
76
Cf IACtHR, González et al v Mexico, judgment of 16 Nov 2009, Series C 205, para 471 (“Cotton
Fields”).
77
Cf CEDAW, General Recommendation No 6: Effective National Machinery and Publicity, 7th
session 1988; CRC, General Comment No 5, General Measures of Implementation of the Conven-
tion on the Rights of the Child, CRC/GC/2003/5, 27 Nov 2003; CERD, General Recommendation
No 31 on the Prevention of Racial Discrimination in the Administration and Functioning of the
Criminal Justice System, 65th session 2005; CAT, General Comment No 2, Implementation of Art
2 by States Parties, CAT/C/GC/2, 28 Jan 2008.
78
The mechanism under CMW has not entered into force. CRC, CRPD, and CED have only
recently started to operate and processed only a very small number of cases; SPT has a special
jurisdiction for on-site inspections.
79
CERD, CEDAW and CRPD address systemic problems of discrimination to be remedied
predominantly by legislation and administrative practice. Violations are rarely found in complaint
64 S. Kadelbach
18. The Optional Protocol (OP) to the ICCPR, in Article 1, establishes the right to
individual communications before the HRCtee for violations of civil and political
rights as they are spelled out in the Covenant. The HRCtee is a “quasi-judicial” body
(see above, para. 3), which is, like the other UN treaty-based bodies, also competent
to review the reports that states have to submit regularly. The HRCtee uses the term
“decisions” for all types of final outcome of the procedure concerning an individual
communication. If such a decision results in the finding on the merits, the treaty
denotes it as “views,” which are to be forwarded to the state party in question and to
the applicant (Article 5 (4) OP). As of September 1, 2015, the HRCtee has adopted
views in 1088 cases (with violations found in 922 cases); in addition, 645 cases were
declared inadmissible, 368 discontinued or withdrawn, and 492 not yet concluded.80
19. Even though the HRCtee is not a human rights court, its views show some
“important characteristics of a judicial decision” such as their “determinative char-
acter.”81 Apart from the declaration of the alleged violations, the HRCtee has
recommended remedies for a violation like the amendment of legislation, the release
of unlawfully detained persons, or the payment of compensation.82 Furthermore, in
its follow-up procedure, it requests information from the state party about the
measures taken to give effect to its views. To prevent irreparable harm, the HRCtee
may decide on provisional measures.83 The Committee on occasion has implied that
its views are legally binding84 and appeared to be backed by the ICJ when it referred
to HRCtee practice as “jurisprudence,”85 even though the source of this legal
obligation has never been explicitly defined or defended in any of the Committee’s
decisions on cases.86 In General Comment Number 33, the HRCtee notes that “the
Optional Protocol [. . .] imposes obligations on states parties [. . .] arising out of that
procedure, in addition to their obligations under the Covenant” and stresses a duty of
the states to cooperate with the Committee in good faith.87 Instead of attributing
explicitly binding force to its decisions, however, it has noted that its views “repre-
sent an authoritative determination by the organ established under the Covenant
itself charged with the interpretation of that instrument.”88
procedures, i.e. 15 by CERD, 15 by CEDAW and 5 by CRPD, numbers found http://www.ohchr.

org/EN/HRBodies/Pages/HumanRightsBodies.aspx, 31 Oct 2015. Accessed 11 July 2017.
80
HRCtee Report, UN GAOR 70, Supplement 40, Doc A/70/40, New York (UN) 2015, para 26.
81
HRCtee, General Comment No 33, supra n 29, para 11.
82
For reference see Joseph and Castan (2013), p. 24.
83
Rule 92 of the Rules of Procedure of the HRCtee, UN Doc CCPR/C/3/Rev.10, 12 Jan 2012.
84
Cf HRCtee, Roberts v Barbados, CCPR/C/51/D/504/1992, 10 Aug 1994, Annex para 6.3.
85
ICJ, Ahmadou Sadio Diallo (Guinea v DRC), ICJ Reports 2010, 639, para 66; cf on the ICJ’s
confirmation of the authority of the HRCtee in interpreting the ICCPR Part I of this report, paras
30–46.
86
For further discussion Nowak (2005), Art 5 First OP, para 39.
87
General Comment No 33, supra n 29, paras 3, 15 and 19.
88
Ibid, para 13.
20. The HRCtee has not dealt with the domestic status of the Covenant. It follows a
traditional international law pattern by leaving it to the member states as to how they
ultimately live up to the standards set by the ICCPR. However, it has taken Article
2 ICCPR as a starting point to specify the obligations incumbent upon states to
respect and to ensure the rights guaranteed by the treaty.89 Accordingly, states
parties are required to “take the necessary steps to give effect to the Covenant rights
in the domestic order.”90 As to the judiciary, the ICCPR demands that every victim
of a violation of a right in the Covenant must have access to an effective remedy, and
this should include having his or her rights “determined by competent judicial,
administrative or legislative authorities [. . .] and to develop the possibilities of
judicial remedy” (Article 2 (3)).91 Thus, states parties are obliged to ensure that
individuals and groups can invoke their rights under the ICCPR effectively.
21. However, it remains debatable how effective the mechanism of the Optional
Protocol is for monitoring compliance with its own decisions. The HRCtee has
assigned a committee member the task of “follow-up” and occasionally of meeting
with recalcitrant state representatives. But this procedure is opaque to the author of
the communication, who is not kept informed of the state’s responses during these
follow-up meetings or even informed that such meetings have occurred. The lack of
transparency in the follow-up procedure and the lack of a sustained effort to keep the
pressure on states that have failed to implement decisions—for example, by
repeated, continuing meetings or open dialog with state representatives dedicated
specifically to follow-up individual cases—diminish the efficacy of, and respect for,
the Committee’s decisions.
22. Cooperation of the state party during procedures and in the follow-up is often
unsatisfactory. In many cases, the HRCtee does not receive from the state party any
response to communications, or it witnesses rejection of its views after the ending of
proceedings, which casts a deep shadow over the monitoring system of the HRCtee.
When no response is at hand, the HRCtee considers the process as “ongoing with a
view to implementation.” However, it does not provide for any recourse if the state
party does not participate or comply with the HRCtee’s views. If a state party refuses
to implement views under the Optional Protocol, the Committee publishes notice of
the failure to implement the views. If the state violates interim or provisional
measures, it directly violates the “obligation to respect in good faith the procedure
of individual communication established under the Optional Protocol.”92
23. The absence of any serious monitoring mechanism negatively affects the level
of state compliance with the Committee’s views. Part of the problem might be that
the text of the Optional Protocol even lacks an express legal basis, so that the
89
General Comment No 31, supra, n 26; for the self-executing character of the ICCPR see Iwasawa
(2016), pp. 36–41.
90
General Comment No 33, supra, n 29, para 13.
91
Ibid, paras 15–19.
92
Ibid, para 19.
66 S. Kadelbach
“follow-up” mechanism was based on the doctrine of “implied powers.” More

importantly, the at times inconsistent and little transparent follow-up practice does
not sufficiently persuade states parties to comply. Experience shows that states do
not necessarily reject the rationale of the Committee’s views, but they quite often
assert that they do not have sufficient domestic mechanisms of implementation.
Thus, more persuasiveness in, and awareness of, decisions would contribute to the
development of more consistent follow-up.
24. CAT, which was set up in 1989, is responsible for the review of state reports,
state complaints (which have not been raised so far), an inquiry procedure with
respect to systematic violations, and, on an optional basis, individual complaints
under Article 22 CAT. So far (August 15, 2015), 272 out of 697 such complaints
were decided on the merits, and 107 violations were found.93 Findings on the merits
are “decisions” (Article 118 (4) Rules of Procedure).94 CAT in those cases does not
only state if a violation was found but also refers to Article 118 (5) RoP, according to
which it may invite the respondent state to inform it about measures of relief, when it
sets out specific measures to be taken such as interim relief, investigation, prosecu-
tion, and punishment of the person responsible and compensation of the victims.95
Like the HRCtee, CAT has instituted a follow-up dialog with the states parties.
25. However, the record of compliance with its decisions is disappointing. In
complaint procedures, states too often fail to respond to communications. Only in
47 out of the 101 cases where violations were found, a satisfactory resolution has
been achieved.96 The review of state reports (Article 19 CAT) and the response by
member states to the recommendations made by CAT in the course of the reporting
procedure have raised concerns as to the effectiveness of CAT and its protection
mechanism. One of the issues raised most often is the lack of incorporation of the
Convention into domestic law, be it that no statute of transformation is enacted, that
the definition of torture has not been incorporated into domestic law, or that penal
law and procedural law have not been duly amended.97
26. The IACHR (para. 4) was modeled on the now defunct European Commission
but, unlike its European counterpart, was originally created by political resolution,
and not by treaty, in 1959. The Commission was “recreated” with a “legal basis”
when the ACHR entered into force in 1978. All member states of the OAS recognize
its competence to receive complaints under the ADRDM. In admissible cases, the
IACHR may negotiate “friendly settlements” between the parties; in serious and
urgent cases, it may grant precautionary measures; it may issue decisions on the
93
Status of communications dealt with by CAT under Art 22 Procedure as of 15 Aug 2015,
available at www.ohcr.org/en/hrbodies/cat/pages/catindex.aspx. Accessed 11 July 2017.
94
Rules of Procedure of the CAT, UN Doc CAT/C/3/Rev.6, 13 Aug 2013.
95
Cf, for example, CAT Communication 456/2011, Hernández Colmenarez and Guerréro Sanchez
v Venezuela, 15 May 2015, para 8.
96
CAT Report, UN GAOR 70, Supplement 44, Doc A/70/44, New York (UN) 2015, para 82.
97
Cf McQuigg (2011).
merits; and it may take a case to the IACtHR if the state fails to comply with the
recommendations in its merits report. Although the ADRDM is not a legally binding
instrument, the IACtHR has declared it “a source of international obligations” for the
member states of the OAS.98
27. The African Commission on Human and Peoples’ Rights (AfCHPR), like its
regional counterparts, is a quasi-judicial body established under Article 30 of the
African Charter (see para. 4) to interpret the African Charter and promote and protect
individual human rights, as well as the collective rights of peoples. Consonant with
the communitarian nature of traditional African culture, Article 29 of the African
Charter also provides for duties incumbent upon peoples. The AfCHPR reports to
the Assembly of Heads of State and Government of the African Union. States and
individuals of 53 member states (except South Sudan) of the African Union may
direct communications of alleged violations of the African Charter to the AfCHPR.
With the creation of the African Court on Human and Peoples’ Rights,99 the
Commission also submits cases to the Court. While the Commission’s decisions
are not legally binding on the AU member states, judgments handed down by the
Court are binding upon parties to the case at hand. In addition to the African Charter,
the Court has subject matter jurisdiction to interpret and apply any “relevant Human
Rights instrument ratified by the States concerned.” This broad subject-matter
jurisdiction allows for the direct application of, among others, AU human rights
treaties in addition to the African Charter, including the African Charter on the
Rights and Welfare of the Child and the African Protocol on the Rights of Women in
Africa.100
3.3 The Obligation to Comply with Jurisprudence in Matters

of Human Rights When the State Was Not a Party
to the Litigation
28. As far as human rights treaties address the effect of decisions of the competent
bodies, the wording confines their binding force to the parties to the case decided
(Articles 46 ECHR, 68 ACHR). The pilot judgment procedure in the European
system is no exception to this rule. Even though it extends consequences of a
judgment to like cases stemming from complaints with the same root cause, the
98
IACtHR, Interpretation of the American Declaration of the Rights and Duties of Man within the
Framework of Article 64 of the American Convention on Human Rights (advisory opinion),
judgment of 14 July 1989, Series A 10, para 45.
99
The Court was created under the Protocol to the Charter of 1998, supra n 11.
100
African Charter on the Rights and Welfare of the Child of 11 July 1990, OAU Doc CAB/LEG/
24.9/49 (1990), in force 29 Nov 1999; Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa of 11 July 2003, in force 25 Nov 2005, reprinted in
Nsibirwa (2001), p. 53.
68 S. Kadelbach
legal effects are limited to the same respondent state. In other words, there is no
formally binding effect of decisions by human rights courts on states not party to the
procedures (erga omnes). This can similarly be said of final decisions by quasi-
judicial bodies in complaint procedures.
29. The consequence is that there is no rule of international law that prevents states
from failing to adhere to human rights decisions in cases in which they were not a
party. One rationale for this is that, otherwise, new complaints in similar cases would
be res judicata and hence inadmissible. Furthermore, human rights jurisprudence is
not homogeneous, often fragmented, and, due to the evolutive approach taken by
some human rights bodies, subject to change. Finally, the exclusion of an erga
omnes effect opens opportunities, provided that courts act in a cooperative spirit. A
case in which a domestic supreme court decides not to follow the jurisprudence of an
international human rights body with good reasons may initiate a judicial dialog that
ends up clarifying old, or even creating new, interpretations of the human rights
treaty.101
30. However, even though the primary function of judgments of human rights
courts and decisions of quasi-judicial bodies is to grant legal protection to the
applicants in a specific case, they have a leading role to play in providing orientation
for similar future cases in other states.102 Thus, according to the ECtHR, its
judgments serve not only as a remedy in individual cases but also to establish a
general standard of protection for all parties to the ECHR,103 which it considers a
“constitutional instrument of European public order.”104 The Court bases this claim
to a general normativity of its jurisprudence on its mission under Article 19 ECHR,
“to ensure the observance of the engagements undertaken” by the states parties to the
ECHR. Accordingly, member state courts have to take judgments, recommenda-
tions, and observations by the competent bodies into account to the broadest extent
possible.
31. The CoM Guide to Good Practice of 2013 notes that a party to the ECHR is
“obliged under Article 1 to secure the Convention rights to everyone within its
jurisdiction, and under Article 46 to implement final judgments of the Court in cases
to which it is party. Insofar as the Court is encouraged to be consistent in its
interpretation of the Convention, it is advisable for all branches of the state,
including national courts and tribunals, to have regard to the Court’s settled inter-
pretation of the Convention in cases against all High Contracting Parties. This can
101
An example is the judgment of the Supreme Court of the United Kingdom, R v Horncastle,
[2009] UKSC 14, para 11, which changed the ECtHR’s evaluation of hearsay evidence in criminal
proceedings; see ECtHR, Al-Khawaja and Tahery v UK, Reports 2011-VI, paras 146–147.
102
Cf British Human Rights Act 1998 Sec 2 (1).
103
Cf ECtHR, Ireland v UK, Series A 25 (1978), para 154; Karner v Austria, Reports 2003-IX, para
26; see also Glas (2016).
104
ECtHR, Loizidou v Cyprus (preliminary objections), Series A 310 (1995), para 7; see also
Bosphorus v Ireland, Reports 2005-VI, para 154 (“peremptory character”).
help prevent violations of the Convention. The effectiveness of a domestic remedy

can also be significantly enhanced if it is able to respond to the Court’s evolving
interpretation of the Convention, in accordance with the living instrument doctrine,
without waiting for this to be specifically reflected in the finding of a violation
against the relevant High Contracting Party.”105 It is also stated that a proper
interpretation of the Convention by a national court or tribunal might not be possible
without having regard to the jurisprudence of the ECtHR. In the same vein, the new
Protocol (No. 16) to the ECHR provides for the highest courts of the ratifying parties
the option to request an advisory opinion by the ECtHR on a pending case.106 The
general comments and observations by the competent UN treaty bodies may play a
comparative role in judicial or quasi-judicial dialog. If the national system permits, it
is the role of counsel to draw the attention of domestic courts to the jurisprudence
developed in the scope of a treaty to which the respective state is a party.
32. Thus, even though there is neither stare decisis nor formal erga omnes effect of
decisions, domestic authorities must accord full consideration to the interpretation
adopted by the respective competent international courts for the system to achieve
coherence.107 With respect to the European system, full consideration signifies that
domestic courts and other state authorities take full cognizance of the interpretation by
the ECtHR.108 Also regarding the other protection systems, courts should give effect
to the decisions taken by the competent international bodies and follow their inter-
pretation, unless they provide convincing arguments for a different understanding.
4 Contents of “Good Faith” Compliance and “Good” or

“Best Practice”
4.1 “Good Faith”
33. The source of the obligation of the states parties to implement judgments is the
respective human rights treaty itself. With respect to third states, their duty to duly
consider decisions by human right bodies derives from the underlying treaty obli-
gations and the duty to apply and interpret them in good faith (Articles 26 and
31 VCLT; see para. 5 above). The ECtHR derives from good faith,109 the IACtHR
from the object and purpose of human rights treaties110 the obligation of the states
105
N 23, reference omitted.
106
Protocol No 16 to the ECHR, 02 Oct 2013, CETS No 214.
107
On the notion of res interpretata see Gerards (2014a), with references.
108
For an example see Forst (2013), pp. 10–11 (adjustments to the French legal order after an
ECtHR judgment in a Turkish case, cf Conseil Constitutionnel, Daniel W et al, judgment of 30 July
2010, Case No 2010-14/22, JO 2010, 14198.
109
ECtHR, VgT Verein gegen Tierfabriken v Switzerland (No. 2), Reports 2009-IV, para 87; cf also
Ruedin (2009), p. 122.
110
IACtHR, Hilaire et al v Trinidad and Tobago, judgment of 21 June 2002, Series C 94, para 83;
Indigenous Community Yakye Axa v Paraguay, judgment of 17 June 2005, Series C 125, para 107.
70 S. Kadelbach
parties to execute its decisions. HRCtee General Comment Number 33 refers to good
faith when stressing the duties of states to cooperate in complaint proceedings and to
implement their decisions.111 The CAT Rapporteur on follow-up noted that, even
though the decisions of CAT may not be strictly mandatory, states parties had an
obligation to comply with them in good faith.112
34. When the European Court and a UN human rights treaty body, like CAT, issue
contradictory jurisprudence, the state generally appears to follow the European Court
since it is a judicial body that issues legally binding judgments. Australian courts held
that under its domestic foreign state immunity statute, they could not hear a civil suit
against foreign state officials in the case of torture committed abroad,113 thus ignoring
decisions and general comments of CAT that Article 14 should have extraterritorial
application and suggesting that a claim of state immunity would be incompatible with
the obligations assumed by states parties under the Convention.114 This practice
follows similar cases in the UK, Canada and New Zealand.115 While the ECtHR,
which in Jones v United Kingdom upheld the immunity of states and state officials
from civil suits for torture in foreign courts,116 appears to affirm the position taken by
these domestic courts, it is a matter of concern when the interpretation by CAT, the
responsible body under the Convention Against Torture, is not even considered.117
35. As the ILA Human Rights Committee concluded earlier, decisions by human
rights bodies constitute subsequent treaty practice in the sense of Article
31 (3) (b) VCLT and have to be taken into account in the process of interpretation.118
Thus, even as far as decisions may not be formally binding in themselves, the
111
General Comment No 33, supra n 29, paras 15, 19; see also General Comment No 31, supra n
26, para 3.
112
CAT, 36th sess., summary record of the 717th mtg., CAT/C/SR.717, 01 June 2006, para 65.
113
New South Wales SCt, Zhang v Zemin, judgment of 14 Nov 2008, 251 ALR 707; affirmed New
South Wales Ct of Appeals, Zhang v Zemin, judgment of 5 Oct 2010, [2010] NSWCA 255.
114
Concluding Observations, 07 July 2005, CAT/C/CR/34/CAN, paras 4 (g) and 58 (f); for the
question of exterritorial application see Nowak and McArthur (2008), Art 14, paras 96–98.
115
Superior Ct Ontario, Bouzari v Iran, judgment of 01 May 2002, 124 ILR 427; Ontario Ct of
Appeals, Bouzari v Iran, judgment of 30 June 2004, 71 OR (3rd) 675; House of Lords, Jones v
Ministry of Interior Al-Mamlaka Al-Arabiya as Saudiya et al, judgment of 14 June 2006, [2006]
UKHL 26 (where CAT observations are dismissed as mere recommendations); High Ct
New Zealand, Fang v Jiang, judgment 21 Dec 2006, 141 ILR 702.
116
ECtHR, Jones v UK, Reports 2014-I.
117
See the reaction by CAT in its Concluding Observations on the report by Canada, CAT/C/CAN/
CO/6, 25 June 2012, para 15; General Comment No 3, Implementation of Art 14 by States Parties,
CAT/C/GC/3, 13 Dec 2012, para 42.
118
ILA, International Human Rights Law and Practice: Final Report on the Impact of Findings of
the United Nations Human Rights Treaty Bodies, in: Report of the Seventy-First Conference in
Berlin, London (ILA) 2004, 621, para 21; as to subsequent practice see the work initiated in 2008 of
the ILC working group Treaties over Time—Subsequent agreement and subsequent practice in
relation to interpretation of treaties, http://legal.un.org/ilc/guide/1_11.shtml. Accessed
11 July 2017.
jurisprudence developed by these bodies constitutes res interpretata within the

treaty system accepted by the state. For domestic courts, giving serious consideration
to them is a matter of preventing a determination of the international responsibility of
their states and thus of good faith implementation. With respect to the decision of
quasi-judicial bodies, the minimum good faith obligation is to guard the object and
purpose of the respective treaties, which means that the essential contents of the
guarantees be respected, and to protect the most vulnerable and prevent irreparable
harm to persons, which may mean that provisional measures are required until the
matter is settled or decided.
4.2 “Good Practices”
36. The fact that the judgments and decisions of human rights bodies generally refer
to obligations of result and that the duty to prevent human rights violations implies
that due diligence standards be observed, the lack of a strictly binding erga omnes
effect of decisions, the disputed legally binding character of quasi-judicial human
rights bodies, and the rather vague good faith basis of obligations all indicate that it
is not always possible to spell out clear-cut obligations, which the decisions of the
competent bodies would entail, particularly with respect to states not parties to the
case. On the other hand, the more imminent threats to human rights affecting
standards protecting the very existence of the human being are and the more
imminent the danger of irreparable harm is, the less flexibility can there be in living
up to treaty obligations as are specified by the interpretation of the competent bodies.
37. When standards were adopted in the past by expert groups or international
organizations with a view to elaborating such an approach to a routine of compli-
ance, they have been referred to as principles,119 recommendations,120 guidelines,121
119
UN General Assembly: Basic Principles and Guidelines on the Right to a Remedy and Repara-
tions for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, UN Doc A/RES/60/147, 21 Mar 2006; HRCtee: General Com-
ment No 31, supra n 26, para 1; UN experts: Report of the independent expert to update a Set of
Principles to combat impunity, E/CN.4/2005/102, 18 Feb 2005 (so-called Orentlicher principles);
group of domestic court judges: Bangalore Principles, Concluding statement of the Judicial
Colloquium held in Bangalore, India, from 24–26 Feb 1988; groups of scholars: Limburg Principles
on the Implementation of the ICESCR, 02–06 June 1986; Maastricht Principles on Exterritorial
Obligations of States in the Area of Economic, Social and Cultural Rights, 29 Feb 2012; Draft
Principles and Guidelines on the Role of Parliaments in the Protection and Realisation of the Rule of
Law and Human Rights, in Hunt et al. (2015), pp. 485–500.
120
OHCHR, Judicial Colloquium on the Domestic Application of International Human Rights
Norms, Outcome Document, Bangkok, 23–25 Mar 2009.
121
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 22–26 Jan 1997
(experts); Guidelines of the Committee of Ministers of the Council of Europe on eradicating
impunity for serious human rights violations CM(2011)13, adopted 4 Apr 2011, CM/Del/Dec
(2011)1110; Guidelines against Intimidation or Reprisals (“San José Guidelines”) HRI/MC/2015/
6, 30 July 2015 (Chairs of the UN human rights treaty bodies).
72 S. Kadelbach
or guides to good practice.122 The denomination does not necessarily imply a certain
method of identification of such standards. However, the term “principles” seems to
suggest a certain level of normative abstraction, whereas “good practice” identifies a
certain conduct.123 Identifying an ideal type of such conduct, valid for all protection
systems and all countries subscribing to them, necessarily results in concentrating on
universal minimum requirements for which the term “good practice” recommends
itself rather than to speak of “best practice.” The method of identifying such practice
may either be to seek model-type behavior or, conversely, to point at shortcomings
and possible means of improvement.
38. The approach taken here is to draw inspiration from various sources and to try to
identify a basic set of “good practices” relevant for domestic courts. Even though the
concept of “good practice” can be still vague, it can be rooted in international
discourse. While it may be possible to connote the minimum obligations of states,
there certainly exist practices that are preferable. Even if states are not strictly
obliged to follow them, good practices reveal preferable options for realizing the
object and purpose of human rights treaties and to fill lacunae in domestic law. Such
practices may be identified both by deduction and inductively, i.e., on the one hand,
by the interpretation of human rights treaties and relevant decisions with a focus on
the best interest of the individual and, on the other hand, by the study of various
countries that may provide clues to preferable options. Whether they prove practi-
cable may depend on factors like the overall constitutional setup of the state in
question and of institutional as well as financial resources. In other words, the
existence of various conceptions of good practices does not deny the usefulness of
the concept as such.
39. With respect to the judiciary, in its Guide to Good Practice (2013), the Council
of Europe’s Committee of Ministers stressed the importance of dialog between the
ECtHR and national courts: “This operates not only through meetings between
judges, but especially through the exchange of ideas and principles as expressed in
judgments. If national courts and tribunals can have regard to the Convention
principles and the Court’s jurisprudence, they can discuss these in their judgments,
and the Court in turn can then both influence and be influenced by this analysis. This
enriches and extends the effect of the Court’s role of authoritatively interpreting the
Convention.”124
122
Guide to good practice in respect of domestic remedies, supra n 24.
123
As it was done by the CoE in the wake of the so-called Interlaken process, see CM (2012)
167, Annex 4.3, CDDH report on measures taken by the member states to implement relevant parts
of the Interlaken and Izmir Declarations, 17 Dec 2012.
124
Guide to good practice in respect of domestic remedies, supra n 24, at 55.
5 Country-Based Case Studies
40. The Committee is conscious of the fact that wide gaps may exist between laws
and judgments on the one hand and the factual situation with respect to human rights
on the other hand. There may be countries in which the judiciary holds human rights
in high esteem, whereas, at the same time, politics and public authorities systemat-
ically neglect or even violate them. On the other hand, courts in states with an overall
acceptable civil rights record may set aside human rights treaties, convinced that
their legal orders should serve as a paradigm for others. Good practice, however,
starts with good law, and neglect of international treaty obligations is more likely to
serve as a bad example than as a model-type conduct. Thus, in order to identify good
practices, the Committee has undertaken to examine questions of compliance in a
selection of specific contexts, of particular states, and in relation to particular human
rights instruments and decision-making bodies, in particular domestic courts. The
present study seeks to examine, inter alia, how states and, most particularly,
domestic courts interpret their obligations under international decisions dealing
with human rights.
41. In so doing, this report starts from the assumption, as studies suggest, that
ratification of human rights treaties leads to better rights protection.125 Taking other
studies into account that take a skeptical view at this observation126 and bearing in
mind that several constitutional and supreme courts consider their domestic consti-
tutional framework as decisive in the last resort, this is a less obvious point of
departure than one might assume. The assumption is nevertheless supported by the
fact that international treaty law creates obligations that add to domestic protection
schemes since, upon their ratification, it is no longer up to the state alone whether
rights are publicly recognized as binding obligations and if violations are
declared.127 The local remedies rule, the principle of subsidiarity, and the margin
of appreciation of human rights bodies underscore that the primary obligation to
respect and ensure human rights is with the states parties themselves. In assuring the
best protection of the human rights of the individual, both constitutions and treaties
have their roles to play, which adovates for leaving space to a productive judicial
dialog without raising claims of predominance of one over the other.
42. The following sections highlight various factors that are of importance with
respect to the status that human rights have in domestic legal orders in general and,
as a consequence, for domestic courts in particular. Such factors are the relationship
among national constitutions, international human rights treaties, and domestic laws;
the direct or indirect effect of human rights treaties in national law; the status of
decisions of human rights courts and quasi-judicial bodies; how states and legal
orders respond to the finding that a violation of human rights has taken place; and the
125
Simmons (2009), p. 351.
126
Hathaway (2001).
127
Cf Benvenisti and Harel (2015), pp. 14–22.
74 S. Kadelbach
extent to which domestic courts follow the practice of human rights bodies even if
such practice concerns findings with respect to third states. If a state has not
recognized the jurisdiction of such bodies to hear complaints, it is of interest how
they respond to judgments of the ICJ with an impact on human rights, as they have
been dealt with in Part 1 of the present report.
43. The present report examines the implementation and compliance with judg-
ments in a selection of cases before the UN human rights treaty bodies, the ECtHR,
and the IACtHR in 20 countries.128
5.1 Argentina
44. Following a monist approach, the Argentine Constitution, since a reform in

1994, distinguishes between two categories of treaties.129 While treaties generally
are subordinate to the Constitution but prevail over statute law, a set of key human
rights instruments was incorporated into the Constitution and shares its rank. Among
them are, according to Article 75 (22), ADRDM, UDHR, ACHR, ICCPR and its
Optional Protocol, as well as the other major UN treaties except CMW and CED.
45. The Argentine Supreme Court accordingly interprets the obligation of the
judiciary to harmonize the provisions of these treaties with those of the Constitu-
tion.130 The courts apply the treaties as they are interpreted by the competent courts,
in particular under the ACHR, also in cases to which Argentina had not been a party.
An example is the Barrios Altos case, in which the IACtHR held Peruvian amnesty
laws to be incompatible with Peru’s obligations under the Convention.131 Based on
this judgment, the Supreme Court declared Argentine amnesty laws to be “consti-
tutionally intolerable,” despite the fact that the amnesty laws had been declared
constitutional in an earlier 1987 Supreme Court decision.132 Decisions of quasi-judicial
128
It is to be noted that regional courts, in particular the Court of Justice of the European Union
(ECJ), have developed their own fundamental human rights jurisprudence drawing from human
rights treaties which has an impact on domestic law. However, they are not included in this report
since these regional organizations are not yet parties to human rights conventions. An exception is
the EU’s accession to CRPD, OJEU 2010 L 23/35. The project of the EU to ratify ECHR is
suspended on account of ECJ Opinion 2/13, 18 Dec 2014, EU:C:2014:2475.
129
Travieso (2000) and Gil Domínguez (2004).
130
Corte Suprema de Justicia, Chocobar v Caja Nacional, judgment of 27 Dec 1996,
Fallos:319:3241; Cancela, judgment of 29 Sept 1998, Fallos:321:2637; see Lo Prete (2009),
pp. 688–693.
131
IACtHR, Barrios Altos v Peru, judgment of 14 Mar 2001, Series C 75.
132
Corte Suprema de Justicia, Simón et al, judgment of 14 June 2005, Fallos:328:2056; Lilo et al,
judgment of 13 July 2007, Jur Arg 2007-III-573. A restatement of cases on human rights is found in
Corte Suprema de Justicia de la Nación—Secretaria de Jurisprudencia, Delitos de lesa humanidad,
Buenos Aires (CSJN) 2009.
bodies, by contrast, are not considered as binding but provide interpretive guidance for
judicial practice.133
5.2 Australia
46. Australia has ratified most of the UN human rights instruments. It has also
accepted the right of individual complaints under OP ICCPR and Article 22 CAT.
However, these treaties only take direct effect on the domestic plane if transformed
by “enabling” legislation passed according to the external affairs power of
Section 51 (xxix) of the Constitution.134 While such laws were enacted with respect
to CEDAW and some of the obligations following from CERD, no such statute
directly implements ICCPR, ICESCR, CAT, CRC, and CRPD. As an implementa-
tion mechanism, the 2011 Human Rights (Parliamentary Scrutiny) Act was passed,
which requires bills to include a statement of compatibility with human rights
standards and sets up a specialized parliamentary committee with the task of review.
The Human Rights Commission, which has existed since 2009 and was created
under a different name before, is empowered to investigate and to conciliate com-
plaints on various discrimination grounds and with respect to specific treaties,
among which ICCPR and CRC, but not the other UN human rights treaties, are
enumerated.
47. Human rights thus are in force, as far as they are adopted by legislation, on the
rank of statute law.135 Absent an act of transformation, human rights treaties serve as
reference for the interpretation of Australian law before courts.136 As the example
referred to above has demonstrated, however, interpretations given to the conven-
tions by treaty bodies are at times not considered as authoritative (see para. 34).137
133
See, with respect to the IA Comm’n HR, Corte Suprema de Justicia, Acosta et al, 22 Dec 1998,
Fallos:321:3555.
134
High Court of Australia, Commonwealth v Tasmania, judgment of 01 July 1983, (1983)
158 CLR 1; Kioa v West, judgment of 18 Dec 1985, (1985) 550 CLR.
135
In Federal Court of Australia, Toben v Jones, judgment of 27 June 2003, [2003] FCAFC 137, the
Court was confronted with the argument that a statute went further than CERD required and was
hence unconstitutional; only in rejecting this claim, it reviewed the statute law against CERD.
136
High Court of Australia, Mabo et al v Queensland (No. 2), judgment of 03 June 1992, [1992]
175 CLR 1.
137
For a comprehensive survey see Tronson (2013).
76 S. Kadelbach
5.3 Bangladesh
48. Bangladesh is a party to the basic UN human rights conventions, with the
exception of CED, but has accepted jurisdiction for individual complaints only for
CEDAW and CRPD. It belongs to the countries that have not yet submitted the
initial report for review procedures according to the ICCPR, to which it acceded in
2000. Like other commonwealth countries, Bangladesh adheres to a dualist
approach. Therefore, its human rights obligations become effective on the municipal
plane only if they are formally enacted as domestic law.
49. In this vein, the Supreme Court of Bangladesh referred in a case of 2008 to the
ICCPR but noted that “our courts will not enforce the covenants and convention
even if ratified by the State unless these are incorporated in municipal laws.“138 In a
2013 decision, the same Court noted that while the state remained bound to honor a
treaty it is party to, it was a different question whether the judiciary would follow and
act in accordance with treaty stipulations in the absence of statutory command to that
effect. Rather, it would take in aid ratio or observation made by the tribunals that
were created by the UN in the same way it consulted decisions of the superior courts
of other states like the UK, India, or Pakistan and treat them as persuasive authorities
where appropriate.139
5.4 Brazil
50. In 2004, Brazil reformed its legal system through a constitutional amendment
by which a specific procedure for the incorporation of human rights treaties has been
created (Article 5 (3) of the Constitution).140 The treaties that undergo this novel
procedure, as did CRPD, now have constitutional status. However, there is still
debate on the legal force of human rights treaties that were incorporated before the
reform, which include ACHR and most core universal human rights instruments.
According to a Supreme Court judgment that, i.a. under the influence of IACtHR
case law, departs from earlier jurisprudence, these treaties do not have legal but have
“supra-legal” status.141 Even though this does not amount to constitutional rank, it
appears that now statute law could be subject to review of compatibility with human
rights law. However, in a case on an amnesty law, the Supreme Court refrained from
138
Supreme Court of Bangladesh, Appellate Division, Government of Bangladesh v Sheikh Hasina
et al, judgment of 5–6 Feb 2008, V ADC (2008) 541.
139
Cf Supreme Court of Bangladesh, Appellate Division, Abdul Quader Molla v Government of
Bangladesh, judgment of 17 Sept 2013, Crl. A. No 25, 44-160, in a case concerning crimes against
humanity.
140
See Jubilut and Franca Filho, Brazil, in this Volume; Moreira Maués (2013).
141
Supremo Tribunal Federal, Recurso Extraordinário, judgment of 03 Dec 2008, 466.343.
making use of such an option,142 so that conventionality control demanded by

IACtHR was not applied.143 Thus, there is not yet a clear doctrine as to the effect
of supralegality.
51. Therefore, even though the mobilizing effects of decisions and judgments under
the inter-American system are acknowledged,144 with regard to the overall applica-
tion of human rights by the executive, legislative, and judiciary, a clear theory of
how far human rights take precedence over any other political or national interest has
yet to be created and followed. The issue has gained relevance in recent controver-
sies between Brazil and the inter-American system, especially with the latter
questioning political decisions by the Brazilian government—as happened in the
Belo Monte Dam case.145
5.5 Canada
52. Canada is not a party to the ACHR but is a party to most UN treaties, including
the complaint procedures under ICCPR and CAT. As a dualist system, Canadian law
requires that human rights treaties be incorporated into domestic law.146 There is a
presumption that courts should strive to interpret domestic law in conformity with
Canadian international legal obligations insofar as domestic law permits. In practice,
both customary and conventional international legal obligations of Canada are used
to assist in interpreting and applying domestic law.147 This is particularly true in the
case of the interpretation of Canada’s constitutional human rights embodied in the
Canadian Charter of Rights and Freedoms.
53. Thus, international human rights law may be used to interpret the content of the
rights and freedoms guaranteed by the Charter, the interpretation of limits on those
rights, and the balancing of competing rights. A majority opinion of the Supreme
Court in 2011 states: “Charter rights must be interpreted in light of Canadian values
and Canada’s international and human rights commitments.”148 In some cases,
142
Supremo Tribunal Federal, Arguiçao de Descumbrimento de Preceito Fundamental, judgment of
28 Apr 2010, no 153; cf Ayres França (2014).
143
IACtHR, Gomes Lund (“Guerrilha do Araguaia”) v Brazil, judgment of 24 Nov 2010, Series C
219, para 176.
144
With respect to violence against women Spieler (2011); with respect to the treatment of
psychiatric patients Rosato and Cerquieira Correia (2011).
145
IACHR, Indigenous Communities of the Xingu River Basin (precautionary measures), Pará, PM
382/10, 01 Apr 2011.
146
Information on this section was provided by HRLC member Anne Bayefsky.
147
Supreme Court of Canada, Baker v Canada (Minister of Citizenship and Immigration), judgment
of 04 Nov 1998, [1999] 2 SCR 817, para 69.
148
Supreme Court of Canada, Ontario (Attorney General) v Fraser, judgment of 29 Apr 2011,
[2011] 2 SCR 3, para 92, emphasis original.
78 S. Kadelbach
courts have invoked interpretations of treaty obligations by international monitoring

bodies.149 Nevertheless, this willingness to seek interpretive guidance from interna-
tional human rights law will not overcome a direct conflict between domestic and
international law.150 An example is the communication of Waldman v Canada, in
which the HRCtee found a violation of Article 26 ICCPR because of discriminatory
funding of religious schools by laws in Ontario.151 Canada has refused to implement
the decision and claimed that divided jurisdiction as a federal state has made it
impossible to do so by provincial recalcitrance. Even though the ICCPR does not
permit claims that federalism can be invoked to reduce state obligations and the
nonexistence of federal remedies has been disputed, the Supreme Court of Canada
has not reversed earlier decisions in this context to bring Canadian law into confor-
mity with the HRCtee decision.152 Canada’s non-compliance, therefore, shows up
on a regular basis in the “unsatisfactory” column of the HRCtee’s annual report.
5.6 China
54. The case of the People’s Republic of China (PRC) is of particular interest since
the country is, also by its representatives, depicted as an alternative model with a
genuine, non-Western approach to human rights law.153 Despite different under-
standings of the official Chinese position in the Western world, the PRC formally
accepts the notion of universality of human rights.154 It has ratified six out of the nine
UN human rights treaties, ICCPR, CMW, and CED being those not binding on the
PRC. However, official statements stress that the emphasis in Chinese legal thought
traditionally is on obligations toward others rather than on individual rights and
declare two caveats: that the principle of sovereignty prevailed over international
human rights, so that they are not recognized as a sufficient reason for intervening
into what is considered a domestic affair,155 and that the right to subsistence and
development were given greater weight under the present conditions.156
55. Since the Chinese Constitution is silent on treaties, their domestic status is
unclear and varies according to subject matter. Human rights treaties have not been
149
Supreme Court of Canada, Canadian Foundation for Children v Canada (AG), judgment of
30 Jan 2004, [2004] 1 SCR 76, consulting interpretive practice of CRC.
150
Oliphant (2014), p. 119.
151
HRCtee, Waldman v Canada, Communication 694/1996, 05 Nov 1999.
152
Like Supreme Court of Canada, Adler v Ontario, judgment of 01 Nov 1996, [1996] 2 SCR 609.
153
Ahl (2015).
154
Zhao (2015).
155
Men (2011).
156
Information Office of the State Council of the People’s Republic of China, White Paper on the
Human Rights Action Plan for China (2012–2015), 11 June 2012, http://www.china.org.cn/gov-
ernment/whitepaper/node_7156850.htm. Accessed 11 July 2017.
transformed into internal law, so they do not form part of the sources of law to be
applied by courts. Even though the 1982 Constitution and later amendments sub-
scribe to fundamental rights, they are not as inclusive as human rights treaties,157 are
subject to the limitation of collective interests (Article 51), and, as a rule, cannot be
invoked before courts. Some of the areas covered by statute law take up matters that
also fall into the purview of human rights. The General Principles of Civil Law
(Article 142) and the Civil Procedure Code (Article 238) demand priority of
international treaties in case of conflict with civil laws, which might be read as to
open domestic law for human rights. However, with respect to human-rights-related
administrative law complaints, a general perception of judicial corruption and of a
lack of independence is considered to be a constant source of distrust. Even in
matters such as criminal law and criminal procedure where special laws protecting
rights exist, courts reportedly take human rights treaty law or general comments by
treaty bodies rarely into account.158 On the other hand, there are indications that a
reform of judicial review under the influence of international standards is the major
reason for the decrease in the use of capital punishment in recent years.159 It also
seems that the exclusion of minors and pregnant women from the death penalty
introduced by the criminal law reform of 1997 can be traced back to Concluding
Observations by the CRC, deploring the lack of conformity of Chinese law with the
Convention.160
5.7 Colombia
56. In Colombia, a country with a long history of violent internal conflict, human
rights treaties have a special status, and their relationship with international human-
itarian law (IHL) has been a salient issue.161 It is in that context that Article 214 of
the Constitution of 1991 is to be understood according to which human rights must
not be suspended and IHL is to be respected under all circumstances. Article
93 provides that international treaties, “ratified by the Colombian Congress, that
recognized human rights,” prevail internally. To these treaties belong ACHR, all
nine UN core treaties, as well as the Geneva Conventions and their Additional
Protocols, irrespective of the date of ratification. The rights set forth in the Colom-
bian Constitution are to be interpreted in conformity with the international human
rights treaties to which Colombia is a party.
157
Lee (2007).
158
Guo (2009), pp. 165–167 and 176–178.
159
Hood (2009).
160
Cf Art 149 Criminal Law in the version of 14 Mar 1997, http://www.asianlii.org/en/legis/cen/
laws/clotproc361. Accessed 19 Dec 2017; Concluding Observations by the Children’s Rights
Committee, CRC/C/15/Add.56, 07 June 1996, para 22.
161
von der Groeben (2011).
80 S. Kadelbach
57. This compound of treaties and constitutional rights is known as the “bloc of
constitutionality,” following the French example with respect to the preamble of the
1946 Constitution. The Constitutional Court decides on constitutional complaints
filed under municipal law, which can be reviewed against the standard of the bloque
de constitucionalidad (cf Article 241 of the Constitution).162 In interpreting human
rights treaties, the Constitutional Court defers to the jurisprudence of the IACtHR as
the relevant “hermeneutic criterion,” also if such practice did not directly relate to
Colombia.163 Also, the recommendations of the competent treaty bodies are to be
taken into account.164 In case of doubt, the interpretation of the laws most favorable
to human rights is to be preferred.165
5.8 Denmark
58. Denmark is a party to the ECHR and to the UN treaties except CMW and CED,
and it has accepted most individual complaint procedures such as those under
ICCPR and CAT. Since Denmark has a dualistic legal system, treaties have to be
transformed before being applicable before courts.166 As the only one of these
conventions, the ECHR was integrated into Danish law in 1992. Like in other
Scandinavian countries, the main responsibility to comply with human rights treaties
lies with the legislature, and institutions like the Parliamentary Ombudsman and
independent human rights boards play an important role. This prerogative of Parlia-
ment also shows in the process of legislation when a review procedure has to be
followed to ensure that a bill presented is not in conflict with Denmark’s treaty
obligations. During this process, judgments of human rights institutions like the
ECtHR are considered, irrespective of whether or not Denmark was a party to the
dispute in question.
59. Courts generally follow the ECHR and its interpretation by the ECtHR, but only
in so far as it is required by Strasbourg practice and no other means are at disposal.167
Treaties that are not incorporated do not serve as a standard to set aside statute law
but provide orientation as far as the laws leave room for interpretation.168
162
See the Court’s own summary in Corte Constitucional de Colombia, Monroy Cabra, Sentencia
C-067/2003; cf also Arango Olaya (2004).
163
Ibid; see also Corte Constitucional de Colombia, Martínez Caballero, Sentencia C-010/00;
Góngora Mera (2010).
164
Corte Constitucional de Colombia, Tafur Galvis, Sentencia C-200/00.
165
Corte Constitucional de Colombia, Montealegre Lynett, Sentencia C-038/04.
166
See Christoffersen, Denmark, in this Volume.
167
Højesteret, dom UfR 1996.234 H.
168
Højesteret, dom UfR 2006.770 H; dom UfR 2014.3667 H.
5.9 France
60. The Constitution of France, formally a monist state, provides that “[t]reaties or
agreements duly ratified shall [. . .] prevail over Acts of Parliament” (Article 55).169
This “control of conventionality” falls into the responsibility of the Cour de
cassation (CdC), the supreme court of the judiciary, and the Conseil d’Etat (CdE),
the supreme administrative court.170 The result of such control may be that national
law is set aside or judgments of municipal courts are quashed. With respect to closed
procedures, legislation was introduced in order to make the reexamination of
criminal cases possible if the accused was convicted in violation of the ECHR,
and jurisprudence of the CdE holds administrative authorities obliged to reconsider
an administrative act that orders sanctions, even though there is no obligation to
recall the act.171
61. Courts do not often refer to human rights treaties if the case can be decided on
the basis of domestic law. The CdC ascribes to judgments of the ECtHR an erga
omnes effect, which means that states would have to comply with them even if they
were not a party to the dispute. A famous example is the interpretation of the right to
a fair trial under French law by referring to ECtHR jurisprudence decided in Turkish
cases.172 The CdE is more reticent in that respect but still applies the ECHR as it is
interpreted by the ECtHR.173 Most references to ECtHR case law, however, are
implicit when it is used for interpretive guidance. Since the 1990s, it is observed that
the application of French law has been modified in many instances by adjusting it to
ECHR practice. Decisions by nonjudicial bodies like the HRCtee and the European
Committee of Social Rights are not considered legally binding but are used as
reference material for interpretation.174 The Conseil Constitutionnel on a recent
occasion refused to follow a finding concerning France directly, which was special
in that the HRCtee had arrived at a result that diverged from ECtHR in defining the
scope of freedom of religion.175
169
For this section see El Boudouhi and Dannenberg, France, in this Volume.
170
Not the Conseil Constitutionnel, Interruption volontaire de grossesse, judgment of 15 Jan 1975,
74-54 DC.
171
CdE, Ass., Vernes, judgment of 30 July 2014, Case No 358564.
172
CdC, Ass. Plén., judgment of 15 Apr 2011, Case No 10-17.049.
173
CdE, judgment of 06 May 2015, Case No 377487.
174
CdE, judgment of 03 Nov 2003, Case No 239559 (HRCtee); CdE, judgment of 10 Feb 2014,
Case No 358992 (ESC).
175
Conseil Constitutionnel, John L. et autres, judgment of 18 Mar 2015, 2914-453/454 QPC; cf
HRCtee, Bikramjit Singh v France, Communication 1852/2008, Doc CCPR/C/106/D/1852/2008,
15 May 2013; ECtHR, Dogru v France, judgment of 04 Dec 2008, 27085/05.
82 S. Kadelbach
5.10 Germany
62. Under the German Basic Law (Article 59 (2)), certain categories of international
treaties, to which human rights conventions belong, must be formally adopted by an
act of Parliament. This rule determines the domestic status of the treaty, which
applies as federal statute law. However, the Federal Constitutional Court (FCC)
derives a general presumption from the Constitution that the Basic Law is open
toward international law so that the Constitution, as well as all legislation enacted,
must be interpreted in the light of Germany’s international obligations as far as is
methodologically feasible.176 Among these obligations, the ECHR has a prominent
place. In the shape of fundamental rights interpreted in conformity with its guaran-
tees, human rights of the ECHR can be invoked in constitutional complaint pro-
cedures. To respond to ECtHR judgments is mostly up to Parliament; as far as the
judiciary and the executive branch are concerned, statute law provides for the
possibility to reopen procedures.177 Because of the predominance of ECHR, the
UN treaties play a less prominent role but have likewise to be taken into account as a
means of interpretation.178
63. According to the FCC, German courts must abide by ECtHR jurisprudence,
even though not “schematically,” which means that in exceptional cases in which a
complex balancing of colliding interests is at stake, the Constitution may demand
otherwise.179 The Court mentions conflicts between the tabloid press and privacy
and family law cases as examples. As a rule, however, judgments in which Germany
was a party must be implemented, and ECtHR practice is to be duly considered to
avoid a violation of the fair trial guarantee. In a case on the ordering of preventive
detention subsequent to criminal sentence, the FCC modified its own interpretation
of the Constitution in order to harmonize domestic law with a ruling of the
ECtHR.180 Judgments in cases of third states are considered in the process of
interpretation of the international treaties ratified by Germany. Even though the
Court explicitly rejects any erga omnes effect,181 the claim that ECtHR jurispru-
dence has not been properly considered may open a fair trial complaint.182 The
Federal Administrative Court expressly refers to the ECtHR as the “authentic
interpreter” of the Convention.183 To harmonize interpretation with international
176
Bundesverfassungsgericht, judgment of 26 Mar 1987, BVerfGE 74, 358 at 370.
177
Section 359 Criminal Procedure Code; section 580 Civil Procedure Code, which by way of
reference also applies to administrative procedures.
178
Bundesverfassungsgericht (Chamber), judgment of 10 Oct 2014, 1 BvR 865/13 (CRPD).
179
Bundesverfassungsgericht, judgment of 14 Oct 2004, BVerfGE 111, 307 at 329.
180
Bundesverfassungsgericht, judgment of 4 May 2011, BVerfGE 128, 326 at 368–372, 391–403.
181
Ibid, 403.
182
The claim must be raised expressly and in time, BVerfG (Chamber), judgment of 4 May 2015,
2 BvR 2169/13.
183
Bundesverwaltungsgericht, judgment of 27 Feb 2014, BVerwGE 149, 117, at 129.
law is a constitutional obligation and includes the jurisprudence of the ICJ, as the
FCC has repeatedly held in cases in which notification of the right to consular
assistance under Article 36 VCCR had not been granted.184 Finally, practice of
UN treaty bodies is occasionally, but not systematically, cited in the reasoning of
FCC judgments.185 How far other courts live up to these standards is a different
question.186
5.11 India
64. India adheres to most UN human rights treaties, with the exceptions of CAT,
CED and CMW, but has not recognized any individual complaint procedures. The
Indian Constitution of 1949 lists a range of human rights that show similarities to
articles of the UDHR.187 Social and economic rights are not included as self-
executing rights but are binding as principles. Additionally, it holds the state
responsible to “foster respect for international law and treaty obligations” (Article
51) and confers on Parliament the power to make law for implementing treaties
(Article 253). In order to fulfill its conventional duties, the Protection of Human
Rights Act of 1993 was enacted. India thus chose an approach also taken by other
common law countries to implement treaties not directly but by specific legislation.
65. Additionally, the Supreme Court plays a proactive role in entrenching human
rights law in the domestic system by interpreting progressively fundamental rights of
the Constitution in the light of treaty rights.188 In particular, public interest litigation
has taken the Court to refer to ICCR, CEDAW, and ILO treaties to endorse the
notion of societal change as a force underlying any interpretation.189 In another case,
it read the constitutional right to shelter in context with ICESCR to arrive at a right to
adequate housing for the poor;190 even the ECHR is quoted on various occasions.191
184
In such cases judgments were reversed for violations of the right to a fair trial,
Bundesverfassungsgericht (Chamber), NJW 2007, 499 and NJW 2011, 207.
185
Cf Bundesverfassungsgericht (Chamber), judgment of 15 Dec 2011, 2 BvR 148/11, para
33 (HRCtee).
186
A disputed example is case law by administrative courts on the prohibition of headscarves in
classrooms, which takes a Swiss case as an argument for its compatibility with the German
Constitution, cf ECtHR, Dahlab v Switzerland, Reports 2001-V, quoted without closer examination
by the Administrative High Court of Baden-Wuerttemberg, NJW 2001, 2899, at 2905.
187
For an overview see Chandra (2014).
188
Cf Rao (2005).
189
Supreme Court of India, Anuj Garg v Hotel Ass’n of India, (2008) 3 SCC 1, 06 Dec 2007.
190
Supreme Court of India, Gupta v State of Gujarat, [1995] 2 SCC 182, 14 Dec 1994.
191
Supreme Court of India, P.T. Munichikkanna Reddy v Revamma, [2007] 6 SCC 59, 24 Apr 2007,
concerning property; further examples found in Vidyasagar and Tatiya (2010), pp. 41–48.
84 S. Kadelbach
Interestingly, such entrenchment even trumps reservations to treaties declared by

India.192
5.12 Italy
66. According to the Italian Constitutional Court, the relationship between the
internal legal order on the one hand and the ECHR and ECtHR judgments on the
other hand are defined by Article 117 (1) of the Italian Constitution, as amended in
2001. It provides that the legislative powers should be pursued “in accordance with
the [. . .] international obligations of the state.”193 Treaties share the rank of the
statute of transformation, but whether human rights treaty provisions are self-
executing is still a controversial issue. However, the Court derives from Article
117 (1) a concept of consistent interpretation. If such interpretation is not possible
because of the wording of the provisions or because of structural gaps, the respon-
sible courts will have to submit to the Constitutional Court the issue of the uncon-
stitutionality of the domestic provision when contrasted with the conventional
rule.194 The underlying goal of the Constitutional Court is to ensure a balance
between the need to guarantee respect for the international obligations of the state
and the need to guarantee respect for other constitutionally protected values and
interests.
67. The Constitutional Court recognized the interpretative value of the provisions of
the ECHR as clarified by the ECtHR with regard to constitutional principles and
rules on the protection of fundamental rights. On the other hand, only if the
guarantee at hand has become “consolidated law” (diritto consolidato) by ECtHR
jurisprudence can it form the basis for a Convention-conform interpretation.195 Even
though the concept is not entirely clear, it apparently means that only Grand
Chamber and pilot judgments and eventually chamber judgments constitute “con-
solidated law,” even though chamber judgments are only relevant if Italy was a party
to the case.196 Moreover, judicial interpretive and monitoring activity finds an
insurmountable barrier in systemic deficiencies of the internal legal order, which
undermines the full respect of the obligations arising out of the Convention. Never-
theless, the Constitutional Court has played an active role in integrating the ECHR as
it is interpreted in ECtHR case law into the Italian Constitutional order. Thus, it
declared the unconstitutionality of Article 630 of the Code of Criminal Procedure in
so far as the domestic provision did not provide for the reopening of a case when
192
Supreme Court of India, Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil, (1996)
8 SCC 525, 30 Jan 1996 (CEDAW).
193
See Sciso, Italy, in this Volume.
194
Corte costituzionale, Sentenze 348 and 349, judgment of 24 Oct 2007, GU 31 Oct 2007.
195
Corte costituzionale, Sentenza 49, judgment of 26 Mar 2015, GU 01 Apr 2015, para 7.
196
For critique see Sonelli (2015).
necessary, pursuant to Article 46 (1) ECHR, to give effect to a judgment of the

ECtHR.197 The Italian Supreme Court also considers provisional measures by the
ECtHR as binding; it was necessary for the judiciary to respect Article 3 ECHR
rigorously and to avoid expulsion to a state where inhuman treatment was
expected.198
5.13 Japan
68. In the Japanese Constitution, human rights form a central pillar of the political
order.199 For determining the domestic status of Japan’s human rights obligations,
which comprise all UN treaties with the exception of CMW, but no individual
complaint procedure, Article 98 (2) of the Constitution provides that “[t]he treaties
concluded by Japan and established laws of nations shall be faithfully observed.”
The provision is read to incorporate international treaties upon ratification without
further legislation. The prevailing doctrine places them on a rank between the
Constitution and statute law. A Cabinet Legislation Bureau examines the compati-
bility of parliamentary bills in advance.
69. Japanese courts have not been active in applying international human rights
treaties since the human rights provisions of the Constitution are considered suffi-
cient to satisfy international standards. In this vein, the Japanese Supreme Court does
not treat human rights conventions as self-executing. However, the Court ruled that a
provision in the civil code discriminating against children born out of wedlock was
unconstitutional and void, following criticism brought forward in international
fora.200 The Court referred to the ICCPR and CRC and the opinions and recom-
mendations of their monitoring bodies as decisive elements of its reasoning. Some
court decisions even refer to international treaties and decisions under treaties to
which Japan is not a party, like the ECHR.201 As to the possibilities to invoke human
rights before courts, instead of attributing immediate effect to human rights treaties,
decisions rather tend to recognize an indirect impact in that they seek an interpreta-
tion that coordinates international and municipal law. Thus, in the Nibutami Dam
197
Corte costituzionale, Sentenza 129, judgment of 16 Apr 2008, GU 7 May 2008; see also
Sentenza 36, judgment of 19 Feb 2016, GU 24 Feb 2016, on the unconstitutionality of a procedural
law because of excessive length of proceedings.
198
Corte suprema di cassazione (sez. VI penale), Sentenza 20514, judgment of 28 Apr 2010, with
reference to ECtHR, Mamatkulov v Turkey, Reports 2005-I, and Saadi v Italy, Reports 2008-II.
199
For this section see Teraya, Japan, in this Volume; see also Iwasawa (1998).
200
Supreme Court of Japan, Case on Statutory Share in Inheritance of Children Born out of
Wedlock, 04 Sept 2013, Saikō Saibansho Minji Hanreishū [Minshū] 1320, Engl. trans. http://
www.courts.go.jp/english/judgments/text/2013.09.04-2012.-Ku-.No.984.and.985-19544,html.
Accessed 11 July 2017.
201
Osaka Higher Court, Kyoto Finger Print Case, judgment of 28 Oct 1994, Hanrei Jihō No 1513,
71.
86 S. Kadelbach
case, the ICCPR is used to fill provisions of the Constitution with contents regarding
land use in conflict with minority rights.202 In a range of cases, lower courts extended
such an indirect effect also to civil law and thus influenced legal relations between
private individuals.203
5.14 Mexico
70. Mexico has ratified the ACHR and all major UN conventions and accepted
individual complaint procedures of six of these systems.204 In 2011, the Constitution
of 1917 was amended, and it incorporated in Title 1, Chapter 1, human rights
provisions enshrined in treaties to which Mexico is a party. The reform also set
out a constitutional duty of the state to prevent, investigate, and punish human rights
violations. The current domestic status of human rights law was defined by juris-
prudence in the following years.205
71. In 2009, the IACtHR in the Radilla Pacheco case had declared Mexico in
violation of its obligations under the ACHR for entrusting the investigation of a
forced disappearance at the hands of the military in 1974 to the military justice
system. Since “forced disappearance” is a human rights crime and not a disciplinary
offense, the IACtHR stated that it should be investigated by ordinary civilian
jurisdiction.206 In the following year, the IACtHR ruled again on human rights
crimes involving civilians still in the hands of the military justice system and
expressed its irritation at the failure of Mexico to comply with its judgment in
Radilla Pacheco.207 Consequently, under the amended Constitution of 2011, the
Mexican Supreme Court issued an opinion announcing that Mexico would hence-
forth comply with judgments of the IACtHR, which it asserted constituted res
judicata and could not be questioned.208 Courts were under an obligation to exercise
202
Sapporo District Court, Nibutani Dam Case, judgment of 27 Mar 1997, Hanrei Tokuhō No 1598,
33.
203
Hamamatsu Branch of Shizuoka District Court, Hamamatsu Jewelry Shop Case, judgment of
12 Oct 1999, Hanrei Jihō No 1718, 92; Sapporo District Court, Otaru Public Bath Case,
judgment of 11 Dec 2002, Hanrei Jihō No 1806, 84; see also Kyoto District Court, Zaitokukai
Case, judgment of 07 Oct 2013, http://www.courts.go.jp/search/jhsp0010.action;
jsessionid¼98B5EA5786F7778F43C4F71DDFDAD556. Accessed 11 July 2017, where the
Court relied, i.a., on CERD in granting compensation in a hate speech case, upheld by Supreme
Court of Japan, judgment of 10 Dec 2014.
204
For Mexico’s human rights history see Anaya Muñoz (2010).
205
See Cerna (2016).
206
IACtHR, Radilla Pacheco v Mexico, judgment of 23 Nov 2009, Series C 209.
207
IACtHR, Cabrera Garcia v Mexico, judgment of 26 Nov 2010, Series C 220, para 193.
208
Suprema Corte de Justicia de la Nación (SCJN), Expediente varios 912/2010, Diario Oficial
04 Oct 2011 (so-called Radilla Resolution). For further analysis see Gómez-Robledo Verduzco
(2011), pp. 561–591; Pintado (2012), pp. 955–992.
an ex officio control of conventionality. In a later decision resolving a conflict of

jurisprudence at the circuit court level, the Court reconsidered the status of human
rights provisions in international treaties and decided that they had constitutional
status but were not superior to the Mexican Constitution.209 Human rights and the
rights set forth in the Constitution were interpreted as having coequal status and
should be considered as an “amalgam of rights.” Consequently, these new rights are
to be harmonized in accordance with the principle of the best interests of the human
being. A special requirement was formulated with respect to interpretation: in
ascertaining which solution served the “pro persona principle” best, jurisprudence
and reasoning of IACtHR judgments were binding on domestic judges, irrespective
of whether or not Mexico was a party to the dispute. For promoting and enforcing
human rights by this jurisprudence, the Mexican Supreme Court became one of the
winners of the UN Human Rights Prize in 2013.
5.15 Netherlands
72. The moderately monist Dutch Constitution grants supremacy to treaty pro-
visions and decisions or resolutions by international institutions that are binding
on all persons (Article 94 of the Constitution of 1953, as amended 1983).210
Statutory regulations in force within the Kingdom shall not be applicable if such
application is in conflict with such provisions of treaties or resolutions. According to
Article 93, “[p]rovisions of treaties and of resolutions by international institutions
which may be binding on all persons by virtue of their contents shall become binding
after they have been published.” As a consequence, all courts can review acts of
Parliament against self-executing treaty provisions,211 to which all ECHR guaran-
tees belong. This is remarkable because the courts cannot review the constitutional-
ity of acts of Parliament (Article 120).212 The domestic courts interpret ECHR
provisions not just in light of ECtHR judgments against the Netherlands but also
in light of judgments against other states (res interpretata), and they hold Dutch state
organs responsible accordingly. At times, courts try to interpret them in as limited a
manner as possible, but generally speaking they faithfully apply the case law.
Moreover, the legislative and executive branches have often been proactive in
adapting practices and legislation following international case law relevant to the
Dutch situation,213 also if this case law did not involve the Netherlands.
209
SCJN, Contradicción de tesis 73/2014, 25 Apr 2014.
210
Information for this section was provided by HRLC member Eva Rieter.
211
Hoge Raad, NS v Vervoersbonden, LJN AC9402, 30 May 1986, NJ 1986, 688.
212
There is an ongoing debate on the advisability of removing this provision.
213
E.g. on the reopening of criminal cases in favor of the person convicted.
88 S. Kadelbach
73. An example of a case where the Supreme Court clearly relied on human rights
law is its Nuhanović/Mustafić judgment.214 In the specific circumstances of these
cases, it found the Dutch state responsible for the conduct of Dutchbat in Srebrenica.
It invoked the Al-Skeini case of the ECtHR215 to dismiss the argument that the state
did not have jurisdiction as referred to in Articles 1 ECHR and 1 (2) ICCPR.216 It
also found that there was no basis in customary international law, the ECHR, the
ICCPR, and Dutch law for the exercise of the type of far-reaching restraint in the
judicial review of what happened, as advocated by the government. The Supreme
Court also invoked the Draft ILC Articles on the Responsibility of International
Organizations and the Commentaries thereto.217 Among others, it recognized the
possibility of dual attribution of responsibility, explaining this by reference to the
independent and nonexclusive responsibility discussed by the ILC.
5.16 Russia
74. Russia is a party to seven of the nine principal UN treaties and accepted
complaint procedures under ICCPR, CERD, CEDAW and CAT, but the most
important obligations result from the ECHR. The Convention forms part of the
national legal system. Having been ratified by the Russian Federation (RF) internally
in the form of a federal law, the ECHR takes “priority of application” over “federal
constitutional,” statute law, and other legal acts (cf. Articles 32 and 15 (4) of the
Constitution of 1992).218 Even though, under Article 17 (1), “human and civil rights
and freedoms shall be recognized and guaranteed according to the universally
recognized principles and norms of international law and this Constitution,” the
Constitution is interpreted as prevailing over the norms of international treaties to
which the RF is a party. Self-executing norms of the ECHR should apply directly
within the domestic legal system.
75. The question of the relationship between the decisions of the highest judicial
bodies on the one hand and the judgments of the ECtHR on the other is a recurring
issue. The role of “apple of discord” in this context was played by the case of
Konstantin Markin.219 In this case, the Constitutional Court of the Federation
214
Hoge Raad, Nuhanović/Mustafic, 12/03324, 06 Sept 2013, NJB 2013, 1974.
215
ECtHR, Al-Skeini v UK, Reports 2011-XI.
216
See also Part One of this report, see ILA Report (Part 1), The International Court of Justice and
its Contribution to Human Rights Law, in this Volume, para 70, on extraterritorial application.
217
Draft Articles on the Responsibility of International Organizations, Yearbook of the International
Law Commission 2011, Vol II, Part 2.
218
Information on this section was provided by HRLC member Vera Rusinova; cf Nußberger
(2008) and the contributions in Mälksoo (2014).
219
Constitutional Court of the Russian Federation (CCRF), Case No 187-О-О on the application of
K. Markin, judgment of 15 Jan 2009.
(CCRF) decided in 2009 that the norms contested by the applicant concerning
parental leave did not affect the human rights listed in the Constitution. In 2010,
the ECtHR found a violation of Article 14 in conjunction with Article 8 of the
ECHR.220 The key to the relationship between decisions of the ECtHR and the
CCRF can be found in the parallel application of the Constitution and “international
principles and norms” (Article 15 (4) in conjunction with Article 17 of the Consti-
tution). Accordingly, fundamental rights can be violated as a result of a violation of
the international treaty or the Constitution or both.221 By the Federal Law “On
Ratification of the ECHR,” Russia has acknowledged the competence of the ECtHR
to interpret the treaty. Originally, this was thought to refer only to Strasbourg
jurisprudence concerning Russia. Nevertheless, the Supreme Court and the CCRF
have concluded that not only cases to which Russia was a party but all Strasbourg
case law should be taken into consideration.222 A new posture began to take shape
when several Russian Duma members challenged the constitutionality of the Rati-
fication Law, because they believed Russia was obliged unconditionally to imple-
ment ECtHR decisions if they contradict the Russian Constitution. In a ruling of July
2015, the CCRF expanded former rulings on the supremacy of the Constitutional
Court over foreign courts and international treaties, affirming the primacy of the
Russian Constitution. In the case of conflict, the Court held that “in such a situation,
by virtue of the Basic Law, Russia will be forced to abstain from the literal
implementation of the decision of the Strasbourg Court” and invoked court practice
in various countries like Germany, Italy, and the UK to support its position. The
CCRF suggested that the federal legislature introduce a legal procedure that would
enable it to interpret ECtHR judgments on the request of the President or the
government of the Federation.223 In her reaction to this ruling, the president of the
Parliamentary Assembly of the Council of Europe noted that the RF is already one of
the countries with the highest number of nonimplemented ECtHR judgments; it has
not yet fully implemented nearly 1500 judgments. The mechanism envisaged by the
CCRF should not lead to a selective implementation as this would undermine the
authority and efficiency of the human rights protection system as a whole.224
220
ECtHR, Markin v Russia, 7 Oct 2010, confirmed by GC, judgment of 22 Mar 2012, 30078/06.
221
CCRF, Case No 4-P on applications of A.A. Doroshok, A.E. Kot, and Е.Y. Fedotova, judgment
of 26 Feb 2010, para 3.3.
222
Even though subject to some caveats, see CCRF, Resolution No 2-P/2007 on request of the
Cabinet of Ministers of the Republic Tatarstan, applications of PLC “Nizhnekamskneftekhim,”
PLC “Khabarovskenergo” and several citizens, judgment of 5 Feb 2007.
223
CCRF, Resolution No 21-P/2015 on request of State Duma deputies, judgment of 14 July 2015,
translation by M. Smirnova found at http://transnational-constitution.blogspot.de/2015/08/russian-
constitutional-court-decision.html. Accessed 11 July 2017. The Russian President signed a
corresponding law on 15 Dec 2015, summary found at http://en.kremlin.ru/acts/news/50935.
Accessed 11 July 2017. A connection between this ruling and the judgment by the ECtHR,
Yukos Shareholders v Russia, judgment of 31 July 2014, No 14902/04, in which applicants were
awarded 1.87 billion € compensation under Art 41 ECHR has been noted.
224
Council of Europe, Parliamentary Assembly, PACE President concerned by decision on “selec-
tive implementation” of Strasbourg rulings in Russia, press release of 16 July 2015.
90 S. Kadelbach
5.17 Slovenia
76. Pursuant to Article 8 of the Constitution of Slovenia, laws and regulations must
comply with generally accepted principles of international law and with treaties to
which Slovenia is a party.225 The same article states that ratified and published
treaties shall be applied directly. This means in effect that Slovenia recognizes the
primacy of international law over internal law, but international law ranks below the
Constitution. Through ratification and publication, treaties become an integral part of
the domestic legal system, and only if their provisions cannot be directly applied in
determining the rights and obligations of individuals, it is necessary to adopt
appropriate rules for their implementation. If their provisions are self-executing,
they are to be used directly regardless of whether their content is reproduced in
internal regulations or not.
77. The fundamental rights spelled out in the Constitution broadly correspond to the
guarantees of the ECHR. Thus, the Slovenian Constitutional Court frequently refers
to ECtHR jurisprudence in interpreting them, also if such judgments were not
addressed to Slovenia as a party to a complaint, and follows ECtHR case law quite
closely. Article 15 (5) of the Constitution determines that no human right or
fundamental freedom may be restricted on the ground that the Constitution does
not recognize that right. If divergences between the two systems occur, they often
come up in private law cases in which competing protected interests are weighed
against each other differently. The casuistic and at times unpredictable character of
ECtHR practice is considered to be another reason. Slovenian criminal procedure
law, unlike other procedural codes of the country, declares an ECtHR judgment as a
possible basis for reopening a case.
5.18 South Africa
78. The Republic of South Africa (RSA) has a written constitution with an exten-
sive Bill of Rights in Chapter 2. In addition to providing for the domestication of
international law and a general preference for an interpretation in harmony with
municipal law, the Constitution of 1996 also provides, in Section 39 (1) (b), that
“when interpreting the Bill of Rights, a court, tribunal or forum must consider
international law.” In one of the Constitutional Court’s earliest decisions, in which
the death penalty was deemed unconstitutional, it was held that ”public international
law would include nonbinding as well as binding law.”226 In this vein, “decisions of
tribunals dealing with comparable instruments, such as the United Nations Committee
on Human Rights, the Inter-American Commission on Human Rights, the
225
For this section see Wedam Lukić, Slovenia, in this Volume.
226
For overviews see Dugard et al. (2005), pp. 336–340; Olivier (2003).
Inter-American Court of Human Rights [. . .] and the European Court of Human

Rights [. . .] may provide guidance as to the correct interpretation of particular
provisions of Chapter Three.”227 The Constitutional Court uses the ECHR and
ECtHR case law accordingly.228 Generally, the Court’s approach toward human
rights law is regarded as exemplary, even though observers note that its reference to
human rights bodies is more erratic than systematic.229 An interesting element of the
Constitution is Section 39 (1) (c), which provides that courts “may consider foreign
law” and thus empowers them to take into account how constitutional courts in other
states deal with human rights and their application in internal law.
79. Section 39 (1) (b) of the Constitution has initiated an international human rights
mainstreaming within South African law, and human rights litigation features
prominently in South African legal practice. In the spirit of the Constitution, other
post-1994 legislation also promotes the harmonization of South African law and
international human rights law. For instance, Section 6 (1) (a–e) of the Refugee Act
130 of 1998 provides that the act must be interpreted and applied with due regard to a
number of specifically listed international human rights law instruments, and the last
provision provides for any other relevant convention or international agreement to
which South Africa is a party.230
5.19 United Kingdom
80. Treaties, including those on human rights, have no direct legal effect in the
United Kingdom, but the courts apply a presumption when interpreting legislation
that Parliament does not intend to breach treaty obligations.231 To determine the
scope of the obligation concerned, they will have regard to rulings of relevant
international courts and bodies. Pursuant to the Human Rights Act 1998, which
indirectly incorporates the ECHR, common law, as well as existing and future
legislation, must, as far as possible, be read and given effect in a way that is
compatible with rights and freedoms under the ECHR, and the courts must take
into account ECtHR case law. Nonetheless, legislation, which despite such interpre-
tative efforts is found to be incompatible with those rights and freedoms, must still be
227
Constitutional Court of the Republic of South Africa (CC RSA), S v Makwanyane and Mchunu,
Case CCT/3/94, [1995] ZACC 3, judgment of 06 June 1995, para 35. The decision refers to the
Interim Constitution of 1993 and its chapter 3, but the rationale equally applies to section
39 (1) (b) and chapter 2 of the 1996 Constitution.
228
CC RSA, Carmichele v Minister of Safety and Security, Case CCT/48/00, [2001] ZACC
22, paras 45–49 (ECtHR and interpretation of common law); S v Mthembu, Case 379/07, [2008]
ZASCA 51, paras 30–36 (ECHR and evidence obtained through torture in court).
229
Cf de Wet (2005).
230
See also Labour Relations Act 66 of 1995.
231
For an overview see Besson (2008), pp. 35–43.
92 S. Kadelbach
given effect, and only a declaration of incompatibility can be made. It is then a matter
for Parliament to decide whether to amend the legislation concerned, but a declara-
tion of incompatibility, of course, will be an incentive to apply to the ECtHR to
obtain a judgment that the UK has breached its obligations under the ECHR.
81. In recent years, criticism has been voiced in the judiciary, as well as on the
political plane, that the ECtHR had unduly constrained member states’ margin of
appreciation.232 The new Supreme Court distanced itself from the deference hitherto
practiced by the House of Lords and held that, under certain, albeit rare, circum-
stances, it was “open to the domestic court to decline to follow the Strasbourg
decision.”233 In particular, cases concerning the deporting of suspects of terrorism234
and on voting rights of prisoners235 triggered British initiatives, which resulted in the
so-called Brighton Declaration, with proposals to amend the Convention and with
appeals to the Court with a view to strengthening domestic courts in their relation-
ship with the ECtHR.236
5.20 United States of America
82. The US is not a party to the ACHR, but individuals may file petitions before the
IACtHR pursuant to the ADRDM. This is the only international human rights body
to which complaints against the US may be brought. From the UN treaties, the US
has ratified ICCPR, CAT, CERD, and the first CRC Optional Protocols, albeit with
many caveats. According to court practice, international treaties, if executed by
Congress or treated as self-executing by courts, are superior to the law of the states,
but in relation to federal law, a last in time rule applies. Consequently, a treaty
provision that becomes effective as law of the US supersedes as domestic law any
inconsistent preexisting provision of a law or treaty of the US. Subsequent federal
law, where possible, will be construed so as not to conflict with international law or
an international treaty to which the US is a party. If a federal law, subsequent in time,
cannot be reconciled with international law or an international treaty to which the US
is a party, it supersedes the earlier provisions.
232
Cf the controversy between Hoffmann (2009) and Bates (2012).
233
Supreme Court of the United Kingdom, R v Horncastle, [2009] UKSC 14, para 11.
234
ECtHR, Othman (Abu Qatada) v UK, Reports 2012-I.
235
ECtHR, Hirst v UK (No. 2), Reports 2005-IX; the latter’s rationale was overruled in R (Chester)
v Secretary of State for Justice, [2013] UKSC 63.
236
High Level Conference on the Future of the European Court of Human Rights, Declaration of
19 and 20 Apr 2012, http://www.coe.int/en/2ß120419-brighton-declaration. Accessed 11 July
2017; see the contribution of the late HRLC member Pieter van Krieken, Brighton Revisited –
The Impact of the Brighton 2012 Meeting on the Strasbourg Human Rights Court, paper presented
at the ILA HRLC Conference on 12–16 June 2012, on file with the Committee.
83. According to a reservation to CAT and declarations made to the CCPR and
CERD, the US considers the substantial provisions of these human rights treaties as
“not self-executing,” which means that they are not directly applicable and can only
be enforced domestically through implementing legislation.237 Thus, references to
these treaties in jurisprudence are only indirect.238 The fact that no such incorpora-
tion has taken place is one of the reasons why the Alien Tort Statute of 1789, which
provides that US federal courts have jurisdiction over an alien’s violations of a few
especially definite rules of customary international law, has gained some attention in
human rights litigation.239 In the Medellín case, concerning the obligatory force of
ICJ orders and judgments with respect to treaty obligations arising from the Vienna
Convention on Consular Relations, the US Supreme Court affirmed that the US had
an obligation under international law not to sentence and execute a foreign national
in criminal proceedings without granting the opportunity to seek consular protec-
tion.240 However, the decisions by the ICJ against the US, the Court noted, derived
from Article 94 (1) of the UN Charter, were not self-executing so that they did not
take domestic effect unless Congress implemented them. Since no such legislation
was enacted, the ruling made state compliance with international court judgments a
voluntary exercise.241 With regard to a possible indirect impact that decisions and
opinions of international bodies may have on interpretation, the Supreme Court has
expressed that they deserved “respectful consideration.”242
6 Conclusions
84. Cursory as it is, the foregoing overview has affirmed the assumption that the
human rights record of a state as a whole does not always coincide with openness of
its courts with respect to human rights treaties. This goes in both directions.
However, whether the human rights record of a state is satisfactory or not, recent
trends by some courts to openly justify non-compliance generally or in certain cases
(Germany, Italy, Russia, UK) is a principal concern. This comes at a time in which
237
See Janis, United States of America, in this Volume; cf Lillich (1985) and Henkin (1997).
238
US SCt, Roper v Simmons, 543 US 551, 576 (2005) (use of CRC and ICCPR for assessing
capital punishment against juveniles); Hamdan v Rumsfeld, 548 US 557, 663 (2006) (ICCPR as a
means to establish Geneva Conventions fair trial standards).
239
US SCt, Sosa v Alvarez Machain, 542 US 692 (2004), cf Caron and Roth (2004); see also Kiobel
v Royal Dutch Petroleum Co., 569 US 1 (2013).
240
US SCt, Medellín v Texas, 552 US 491 (2008).
241
For a more international law friendly approach see SCt Massachusetts, Commonwealth v
Gautreaux, 458 Mass 741 (2010); Gutierrez v Nevada, No 53506 Nev SCt, 19 Sept 2012.
242
US SCt, Breard v Greene, 523 US 371 (1998); see also US SCt, Lawrence v Texas, 539 US
558, 573 (jurisprudence of the ECtHR); Sosa v Alvarez Machain, 542 US 692, 738 n 30 (2004)
(referring to the UN Working Group on Arbitrary Detention).
94 S. Kadelbach
many protection systems are being challenged as regards their workability.243 Such
domestic non-compliance by courts takes different shapes.244 They range from the
nonexecution of judgments in individual cases for lack of resources (as some of the
ECtHR pilot procedure categories indicate) to intentional nonimplementation
(Russia, US), from systemic non-compliance (China), “reservations” by courts
(Germany, Italy, UK), to political resistance to certain aspects (UK). In that climate,
it is essential to recall that domestic courts share responsibility with international
bodies for the protection of human rights.245 To live up to this demand, criteria can
be drawn from the preceding sections, which relate to the courts’ obligations,
methods, and capacities, as well as to the institutional environment in which they
operate. These criteria are (1) the characteristics of the system of human rights
protection to which their states adhere, (2) the mode of engagement with interna-
tional law in general, (3) the interpretation of the role of domestic courts in relation to
political institutions, (4) their willingness to adhere to international practice, (5) the
framework of jurisdiction, (6) the existence of mechanisms to avoid conflict with
human rights treaties, and (7) the availability of training, information, and exchange.
85. First, it is obvious that it makes an important difference to which protection
system a country belongs. In the regional court systems, their courts and the binding
effect of their judgments had a strong influence on the status of the respective
conventions in domestic law. In the Americas, the jurisprudence of the IACtHR
has revolutionized the status of human rights in domestic law, most notably by the
requirement of “control of conventionality.” The ECHR has attained a special status
in many European legal orders and has changed internal law in many respects
(France, Germany). On the other hand, on account of the less strictly conceived
binding effect of its decisions, more limited practice in terms of numbers of cases,
and the heterogeneity of its members, the UN treaty bodies have by far not achieved
a comparable impact. Whether acceptance of individual complaint procedures makes
a difference may depend on the internal constitutional structure. But it is well
arguable that recognition of such proceedings provides an incentive to bring
human rights violations before a court.
86. Second, an important feature certainly is the mode of “engagement” of a
domestic legal order with international law in general.246 At first sight, it looks
like monist systems are more favorable to human rights treaties than dualist consti-
tutions, as the examples from the Netherlands and from Latin America illustrate.
243
Pillay (2012).
244
See the categories discerned by Flauss (2009), pp. 39–47.
245
For the concept of shared responsibility see the memorandum by the President of the ECtHR, J.-
P. Costa, Memorandum to the States with a View to Preparing the Interlaken Conference, 3 July
2009, 4, http://www.echr.coe.int/Documents/Speech_20090703_Costa_Interlaken_ENG.pdf.
Accessed 11 July 2017. See also Jahn (2014) and Gerards (2014b).
246
See ILA Study Group “Principles on the Engagement of Domestic Courts with International
Law,” Preliminary Report by A. Tzanakopoulos, found at www.ila-hq.org. Accessed 11 July 2017;
see also Shelton (2011).
However, courts in some systems like the US have developed modes to avoid
integration of international law. On the other hand, courts in dualist legal orders
may compensate for the seemingly strict separation between the national and the
international levels with methods of consistent interpretation, which aim to bring
domestic law in harmony with human rights (Australia, Canada, Germany, India).
Thus, to capture the stance taken by courts, the monism/dualism dichotomy is
certainly too simplistic. It is therefore advisable to look at the attitude that a legal
system takes vis-à-vis human rights treaties in particular. Many constitutions attri-
bute to human rights a special status that is not necessarily the status that interna-
tional law or treaties have in general (Latin American countries); others dispose of
bills of rights that coincide in contents with human rights treaties (India,
South Africa).247 Decisive is whether or not individual guarantees are deemed
self-executing, what rank they have in relation to other sources of law, and whether
there are effective legal remedies to invoke them in court proceedings. By contrast,
there are many states that do not incorporate or transform human rights treaties at all.
87. A third feature is the attitude taken by courts generally with respect to interna-
tional law. Certainly, this attitude depends on the position of the judiciary in the
overall balance of powers within a state, and in federations it may be further
influenced by the relationship between the federal and state levels. However, courts
often have considerable powers to influence their role and status, and in a compar-
ative perspective, they make different use of it. The ILA Study Group on Domestic
Interpretation distinguishes between avoidance and alignment. Avoidance postures
accordingly include concepts of open contestation like constitutional caveats (Ger-
many), ranking constructions in the domestic hierarchy of norms as they are
observed in many countries, and doctrines of nonjusticiability like, in particular,
concepts of self-execution (Japan, US). Techniques of alignment are consistent
interpretation (Canada, Germany, Italy).248 Antagonistic strategies may be present
in the jurisprudence of the same court, and at times techniques of alignment are used
to camouflage avoidance and vice versa. It has been analyzed in legal writings how
the attitude of courts to international law is mostly dominated by domestic matters
like the institutional context, pursuit of a local political agenda, and culturally
idiosyncratic modes of reception.249 From a human rights perspective, however,
one easily identifies strategies of alignment with good court practice.
88. A closely related issue is, fourth, the use of international material by domestic
courts. As state organs, they share the obligation to implement judgments in pro-
ceedings to which they are a party; given the exhaustion of remedies rule, however,
clarity about the content of these obligations is often available only after the supreme
judicial body has taken a decision. Therefore, to avoid future violations, it is crucial
how decisions are taken into account that relate to other cases. Practice varies
247
“Consubstantial norms,” in the terminology of the ILA Study Group, see ibid, para 29.
248
Ibid, paras 19–24, 38; cf Verdier and Versteeg (2015), pp. 522–527.
249
See Merry (2006) and Aust et al. (2014).
96 S. Kadelbach
between courts that follow closely the interpretation given by the competent bodies
(Netherlands, Slovenia), courts that take such judgments as means of orientation
(as they do in most states), and courts that ignore, or deny any effect from,
international decisions (Bangladesh, US). UN bodies generally have a comparatively
modest impact on domestic court practice.250 As a rule, courts are expected to adhere
to treaty obligations incurred by their states and seek orientation in the practice of
authoritative interpreters, and they often do so, even in cases in which their states did
not participate (Mexico). Should domestic courts consider findings of international
bodies unconvincing, it constitutes good practice to engage, where possible, bona
fide in a judicial dialog, also with other domestic courts dealing with related
questions.251 The Constitution of South Africa explicitly obliges courts to consider
international jurisprudence and the case law developed and accordingly can be
considered an ideal for good practice.
89. Fifth, to enable courts to fulfill their obligations, they must have jurisdiction to
hear human rights cases,252 be it explicitly in constitutional complaints (amparo) or
incidentally in other types of procedures. Such procedures can be based on legisla-
tion or jurisprudence alike, and they do not necessarily have to be in the hands of the
judiciary alone, as parliamentary and independent institutions illustrate (Den-
mark).253 As to courts, effective remedies presuppose a certain infrastructure, inde-
pendence of the judiciary from politics and economic interests, and sufficient
resources.254 To avoid irreparable harm and to ensure effective protection, the option
to obtain provisional relief, as well as procedural ways to implement judgments and
decisions by means of enforcement or reopening of proceedings, must exist. Con-
versely, if violations result from ongoing court proceedings, mechanisms must be
devised to close a file and to provide for certainty. Ideally, procedural law or court
practice formulates standards against which domestic law can be reviewed. The
development of a bloc of constitutionality composed of constitutional and human
rights (Colombia, France, Mexico) is a notable example in that respect.
90. Sixth, means exist that are suitable to avoid conflicts before courts between
international human rights law and national law. Such a path is the ex ante exam-
ination before ratification of international treaties by constitutional courts (France).
Studies suggest that non-compliance is often infrastructure related, which means that
the state must have the capacity to react to an adverse judgment and to promote
change or repeal legislation (France, Germany, Japan, UK).255 Such a review of bills
250
Cf McCrudden (2015), pp. 535.
251
For increasing practice in this respect see McCrudden (2015), pp. 544–546, with references.
252
See the Council of Europe Guide to Good Practice, above para 7.
253
Cf Principles Relating to the Status of National Institutions (The Paris Principles), UN GA Res
48/134, 20 Dec 1993.
254
For a correlation between evidence-production costs and specific human rights see Lupu (2013).
255
Anagnostou and Mungiu-Pippidi (2014).
presented before enacting legislation is advisable (Australia). Also, parliamentary

committees can be entrusted with the task of surveillance as to how municipal law
conforms to treaty obligations and the practice of treaty bodies and giving advice as
to measures to be taken (Denmark).
91. Finally, failure to consider international practice may be due to a lack of
information and, possibly, also to accessibility in terms of language. Whereas
awareness of ECtHR and IACtHR judgments is nowadays quite high within the
respective systems, the practice of UN human rights bodies is less well known. This
may be different in countries where the UN treaties are the principal source of human
rights obligations, as it is the case in Japan. Generally speaking, however, it would
contribute to good practice by governments to develop a pattern of dissemination of
relevant decisions for responsible institutions like courts, judicial councils, bar
associations and to provide translation, if necessary. Likewise, meetings of members
of judiciaries of different countries on a regular basis have proved useful. Thus,
courts may be provided with additional information as to whether a change of
jurisprudence ought to be considered.
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Part II
International and Regional
Courts of General Jurisdiction
as Human Rights Courts
The International Court of Justice
and Diplomatic Protection
Kimio Yakushiji
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
2 Individual Rights Recognized Under International Law Without International Means
of Enforcement for Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
2.1 Traditional Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
2.2 Views Adopted by the ICJ in LaGrand and in Avena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
3 Content of the International Responsibility of a State for Its Violation of Individual Rights
Recognized Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.1 Legal Consequences of a Violation of Individual Rights Recognized Under
International Law: General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.2 Legal Consequences of a Violation of Human Rights Recognized Under
the Conventions: Principles Specific to Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . 111
3.3 Legal Consequences of a Violation of Individual Rights Recognized Under
International Law in the Context of Inter-State Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
3.3.1 Violation of Individual Rights and Non-pecuniary Remedies: LaGrand
and Avena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
3.3.2 Violation of Individual Rights and Pecuniary Remedies: ICJ Diallo
and ECtHR Cyprus v Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
4 Invocation of State Responsibility by a State for the Violation of Individual Rights
Recognized Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
4.1 Invocation of the Responsibility by a State Whose Nationals’ Individual Rights
Were Violated: Diplomatic Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
4.2 Invocation of the Responsibility by a State Other Than an Injured State . . . . . . . . . . . 122
5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
K. Yakushiji (*)
Ritsumeikan University, Kyoto, Japan
e-mail: yakusiji@fc.ritsumei.ac.jp

https://doi.org/10.1007/978-3-319-94848-5_4
104 K. Yakushiji
1 Introduction
In LaGrand, the International Court of Justice (ICJ) found that the US breached its
obligations to Germany and to the LaGrand brothers under Article 36 (1) and (2) of
the Vienna Convention on Consular Relations (VCCR). The US had failed to inform
the LaGrand brothers of their rights under Article 36 (1) (b) VCCR following their
arrest. Moreover, it had deprived Germany of the possibility to render assistance to
the individuals concerned, in a timely fashion. Finally, it had failed to permit the
review and reconsideration, in the light of the rights in the Convention, of the
convictions and sentences of the LaGrand brothers after the above violations had
been established.1 In this judgment, the ICJ seems to have acknowledged that a
treaty is able to create individual rights under international law and that the VCCR
does so without providing the individuals with international procedural means to
protect such rights. Although this acknowledgement shows an innovative approach
to individual rights under international law, it does raise two questions.
First, what kind of international responsibility of a State would be triggered by the
breach of individual rights under international law? Insofar as a State breaches its
obligation to an individual, it seems natural that the responsible State owes the
obligation to make reparation for the harmful consequences flowing from the breach
firstly to the injured individuals. For example, under human rights conventions, a
State responsible for a violation of human rights has the obligation to give an
effective remedy primarily to individual victims.2 In such a case, does a responsible
State owe to a right holder basically the same legal obligations as those prescribed in
Part 2 of the Articles on Responsibility of States for Internationally Wrongful Acts
(ARSIWA)3 adopted by the International Law Commission (ILC)? And if so, when
the claim of an individual is taken up by its national State or any other State, would
the responsible State basically have the same obligations as those owed to the
individual victims? Sections 2 and 3 of this chapter will consider these issues mainly
in light of the ICJ’s decisions in LaGrand, Avena,4 and Diallo5 in comparison with
some decisions of treaty bodies of human rights conventions.
1
ICJ, LaGrand (Germany v United States of America), judgment of 27 June 2001, ICJ Reports
2001, 466 at 515–516, operative paras (3) and (4) (hereinafter referred to as LaGrand judgment).
2
See Shelton (2005), xi, 502.
3
See the text of Part Two of the Draft Articles on Responsibility of States for Internationally
Wrongful Acts adopted by the ILC in 2001 (hereinafter referred to as ARSIWA). As to the text and
commentary of the Draft Articles, see YBILC 2001, Vol II Part 2, 26–143.
4
ICJ, Avena and Other Mexican Nationals (Mexico v United States of America), judgment of
31 Mar 2004, ICJ Reports 2004, 12 (hereinafter referred to as Avena judgment).
5
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic of the Congo) (merits), judgment of
30 Nov 2010, ICJ Reports 2010, 639 (hereinafter referred to as Diallo judgment on merits);
Ahmadou Sadio Diallo (Republic of Guinea v Democratic of the Congo) (compensation), judgment
of 19 June 2012, ICJ Reports 2012, 324 (hereinafter referred to as Diallo judgment on
compensation).
The International Court of Justice and Diplomatic Protection 105
Second, when a State invokes the responsibility of another State, which violates
individual rights under international law, shall the former State always claim from
the responsible State a remedy for the benefit of individual victims? Since individ-
uals are not always given procedural rights to protect their substantive rights directly
created by a treaty as is the case in the VCCR, often the enforcement of individual
rights is still dependent on the exercise of diplomatic or other functional protection
by a national or any other State. In such a case, it is said that by resorting to
diplomatic protection, “a State is in reality asserting its own rights – its rights to
ensure, in the person of its subjects, respect for the rules of international law.”6 As
Mohamed Bennouna, ILC Rapporteur on diplomatic protection, remarked, a State
exercising diplomatic protection has a wide discretionary power with regard to
decisions as to whether to bring a claim, choice of legal remedies, acceptance of
lump-sum agreements, and arrangements for distributing the compensation received
from a responsible State.7 While acknowledging that a State has wide discretion in
exercising diplomatic protection, shall the State use the right of protection in order to
enforce the rights of injured individuals rather than its own right when it makes an
international claim against a responsible State on account of its violation of individ-
ual rights under international law? Section 4 of this chapter examines this issue in
light of the ICJ’s and other relevant decisions and the ILC’s Draft Articles on
Diplomatic Protection (DADP).8
2 Individual Rights Recognized Under International Law

Without International Means of Enforcement
for Individuals
2.1 Traditional Views
The Permanent Court of International Justice (PCIJ) recognized as early as 1928 that
States could create individual rights vis-à-vis a State by holding that “the very object
of an international agreement, according to the intention of the contracting Parties,
may be the adoption by the Parties of some definite rules creating individual rights
and obligations and enforceable by the national courts.”9 The PCIJ also made clear
6
PCIJ, The Mavrommatis Palestine Concessions, judgment of 30 Aug 1924, Publications of the
PCIJ, Series A—no 2, Collections of Judgments, 12.
7
Preliminary report on diplomatic protection, by Mr. Mohamed Bennouna, Special Rapporteur, UN
Doc. A/CN.4/484, YBILC 1998, Vol II Part 1, 313, paras 19–20.
8
See the text and commentary on Draft Articles on Diplomatic Protection, YBILC 2006, Vol II Part
2, 24–55 (hereinafter referred to as DADP).
9
PCIJ, Jurisdiction of the Courts of Danzig (pecuniary claims of Danzig railway officials who have
passed into the Polish Service, against the Polish Railway Administration) (advisory opinion),
03 Mar 1928, Publications of the PCIJ, Series B—no 15, Collection of Advisory Opinion, 17–18.
106 K. Yakushiji
that the intention of States parties could be ascertained from the contents (the
wording and general tenor) of the agreement, taking into consideration the manner
in which the agreement had been applied.10
However, traditional prevailing views have long been that individual rights do not
exist under international law except when the individuals are provided with inter-
national means to directly protect their rights. For example, in 1991, Akehurst
remarked that “(e)ven when a treaty expressly says that individuals and companies
shall enjoy certain rights, one has to read the treaty very carefully to ascertain
whether the rights exist directly under international law, or whether the states
party to the treaty are merely under an obligation to grant municipal law rights to
the individuals or companies concerned” and emphasized that “(o)ne way of proving
that the rights of the individuals or companies exist under international law is to
show that the treaty conferring the rights gives the individuals or companies access
to an international tribunal in order to enforce their rights.”11 Thus, he observed that
“an analysis of the European Convention does demonstrate the difficulties of
deciding whether individuals have rights under international law, or whether they
merely have benefits.”12 If a convention requires States parties to grant individuals
mere benefits under domestic law and not rights under international law, then the
breach by a State party of the obligation would raise solely State responsibility of the
wrongdoing State vis-à-vis the State whose nationals’ benefits have been injured by
the breach.
2.2 Views Adopted by the ICJ in LaGrand and in Avena
As was mentioned in the introduction, the ICJ acknowledged in LaGrand that

Article 36 (1) and (2) of the VCCR created not only reciprocal rights and obligations
between States parties but also individual rights opposable to receiving States parties
by mainly resorting to the literal and contextual interpretation of the text of the
article. Though the US contended that the rights of consular notification and access
under the Convention were not rights of the individual and did not constitute human
rights since the treatment due to individuals under the Convention was inextricably
linked to and derived from the right of the State to communicate with its nationals,13
10
Ibid, 18–21. Through Examination of the wording of Arts 4 and 9 and tenor of the text of the
Beamtenabkommen and circumstances attending the execution of the agreement, the Court con-
cluded that “the Danzig officials have . . . a right of action against the Polish Railway Administration
for the recovery of pecuniary claims based on the Beamtenabkommen.” The words in the main text,
between square brackets, are added by the author.
11
Akehurst (1991), p. 73.
12
It should be noted that this publication dates from before the 11th Protocol to the European
Convention on Human Rights entered into force. Ibid, 81.
13
ICJ, LaGrand judgment, supra n 1, 493–494, para 76.
the Court, like the Inter-American Court of Human Rights (IACtHR) in its Advisory
Opinion OC-16/99 (1999),14 rejected the US’s contention by holding as follows:
[Article 36, paragraph 1 (b)] provides that, at the request of the detained person, the receiving
State must inform the consular post of the sending State of the individual’s detention
“without delay”. It provides further that any communication by the detained person
addressed to the consular post of the sending State must be forwarded to it by authorities
of the receiving State “without delay”. Significantly, this subparagraph ends with the
following language: “The said authorities shall inform the person concerned without delay
of his rights under this subparagraph” (emphasis added). Moreover, under Article 36, para-
graph 1 (c), the sending State’s right to provide consular assistance to the detained person
may not be exercised “if he expressly opposes such action”. The clarity of these provisions,
viewed in their context, admits of no doubt. It follows, as has been held on a number of
occasions, that the Court must apply these as they stand. [. . .] Based on the text of these
provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which,
by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by the national
State of the detained person. These rights were violated in the present case.15
Though Judge Shi supported the US’s interpretation based on his analysis of the
preparatory work of Article 36,16 there was no judge who dissented from the
abovementioned majority opinion on the ground that the VCCR did not give the
individuals access to an international tribunal or procedure. Consequently, the ICJ
seems to have confirmed openly that a treaty can confer rights under international
law on individuals without giving them access to an international procedure. But this
means that individual right holders have to entrust international protection of their
rights conferred by the treaty to their national State or any other State.
Once it is acknowledged that Article 36 of the VCCR confers upon detained
foreign nationals rights opposable to the host State, the content and scope of the
individual rights should be clarified in order to examine the legal consequences of
their violation. Advisory Opinion OC-16/99 of the IACtHR found that the right to
have the consular post of a sending State informed his/her detention, the right to have
any communication addressed to the consular post forwarded, and the right to
information on consular assistance under Article 36 (1) (b) and the right to commu-
nicate with the consular post of the sending State under Article 36 (1) (c) are
individual rights since the exercise of these rights is contingent only upon the will
of the individuals concerned, and the object of these rights is served when the host
14
IACtHR, The Right to Information on Consular Assistance in the Framework of the Guarantee of
the Due Process of Law (advisory opinion), OC-16/99, 01 Oct 1999, reproduced in HRLJ, Vol
23, no 1–3 (2000), 24–58, in particular paras 82–83 (hereinafter referred to as advisory opinion,
OC-16/99).
15
ICJ, LaGrand judgment, supra n 1, 494, para 77.
16
Separate opinion of Vice-President Shi, ibid, 520–524, paras 4–15. Judge Oda, agreeing with
Judge Shi, opined that Art 36 para 1 (c) had no further meaning than simply mentioning the situation
in which an arrested foreign national waived consular notification in order to prevent his criminal
conduct or even his presence in a foreign country from becoming known in his home country.
Dissenting opinion of Judge Oda, ibid, 536, paras 24–25.
108 K. Yakushiji
State discharged its duties immediately.17 Likewise, the passage of the ICJ’s judg-
ment quoted above suggests that the rights referred to in Article 36 (1) (b) and
(c) were regarded as individual rights by the Court. Furthermore, the ICJ held that
the US violated the obligation to the LaGrand brothers under Article 36, paragraph
2, as well since the application of procedural default rule (and not the rule itself) of
the US prevented the counsel for the LaGrands to effectively challenge their
convictions and sentences in the light of the rights set forth in Article 36, paragraph
1, of the VCCR.18 Though Article 36 (2) merely provides, in the proviso, that “the
laws and regulations of the receiving State must enable full effect to be given to the
purpose for which the rights accorded under Article 36, paragraph 1 are intended,”
the Court seems to have interpreted the proviso to imply that it, like Article
2 (3) (a) of the International Covenant on Civil and Political Rights (ICCPR),
imposes on a host State the obligation to give an effective remedy to the individuals
whose rights defined in Article 36 (1) of the VCCR are violated.
However, the ICJ took a slightly different stance in Avena, though it paid
attention to the special circumstances of interdependence of the rights of the State
and of individuals in which violations of the rights of the individual under Article
36 unavoidably entailed a violation of the rights of the sending State and vice
versa.19 On the one hand, the ICJ limited itself to stating that the US breached the
obligations incumbent upon it under Article 36 (1) (b) VCCR by not informing
without delay the 51 Mexican nationals of their rights under this paragraph. It did so
without mentioning whose rights were deprived of thereby. On the other hand, it
held that the US breached the obligations incumbent on it under Article 36 (1) (b) by
not notifying the appropriate Mexican consular post without delay of the detention of
49 Mexican nationals and thereby depriving Mexico of the right, in a timely fashion,
to render assistance to the individuals concerned.20 Furthermore, the Court acknowl-
edged that by the breach of the obligations under Article 36 (1) (a) and (c) VCCR,
the US deprived Mexico of its rights, in a timely fashion, to communicate with and
have access to 49 Mexican nationals and to visit them in detention and to arrange for
legal representation of 34 Mexican nationals.21 As ad hoc Judge Sepulveda criti-
cized, the Court’s opinion may be a deviation from its previous decision in
LaGrand.22 Even though there may be conflicting interpretations as to the accurate
scope and content of the individual rights under international law provided by the
VCCR, the ICJ’s decision in Avena admits at least implicitly that the US violated the
17
IACtHR (advisory opinion), OC-16/99, supra n 14, paras 90–91.
18
ICJ, LaGrand judgment, supra n 1, 497–498, paras 89, 91 and 516, operative para 128 (4).
19
ICJ, Avena judgment, supra n 4, 36, para 40.
20
Ibid, 71, operative paras 153 (4) and (5) of the judgment.
21
Ibid, 71–72, operative paras 153 (6) and (7) of the judgment.
22
Separate opinion of Judge Sepulveda. The judge remarked that “the individual rights of the
52 Mexican nationals may be invoked” by Mexico, and “[a] contrary conclusion is incompatible
with the decision of the Court in LaGrand.” Ibid, 106, para 21 and 107, para 24. See also separate
opinion of Judge Parra-Aranguren, ibid, 92, paras 32–34.
individual rights of 51 Mexican nationals set forth in Article 36 (1) (b) by not
informing them of these rights without delay and also violated the individual rights
of three Mexican nationals under Article 36 (2) by not permitting the review and
reconsideration, in the light of these rights, of their conviction and sentences after the
former violation had been established.23 Therefore, the legal consequence of the
violation of these individual rights recognized directly under international law
should be analyzed in the next section.
In this connection, Advisory Opinion OC-16/99 of the IACtHR concluded that
“the individual’s right to information established in Article 36 (1) (b) of the [VCCR]
allows the right to the due process of law recognized in Article 14 of the [ICPPR] to
have practical effects in concrete cases” and “nonobservance of a detained foreign
national’s right to information, recognized in Article 36 (1) (b) of the [VCCR], is
prejudicial to the guarantees of the right not to be ‘arbitrary’ deprived of one’s life, in
the terms of the relevant provisions of the human rights treaties.”24 Germany in
LaGrand contended that the right of the individual under Article 36, paragraph 1, of
the VCCR had today assumed the character of a human right, and this character
rendered the effectiveness of the provision even more imperative. Yet the ICJ found
it unnecessary to consider the argument because it found that the US violated the
rights accorded to the LaGrand brothers without resorting to the notion of human
rights.25 The question whether the rights of the individuals fall into the category of
human rights may affect the legal consequences for the violation of the rights
concerned. This issue will be taken up in the next section.
3 Content of the International Responsibility of a State

for Its Violation of Individual Rights Recognized Under
International Law
3.1 Legal Consequences of a Violation of Individual Rights

Recognized Under International Law: General Principles
The State responsible for the internationally wrongful act is under a secondary
obligation to cease that act, if it is continuing, to offer appropriate assurances of
non-repetition, if circumstances so require, and to make full reparation for the injury
caused by the internationally wrongful act (Article 30 (a) and (b), Article 31 (1) of
ARSIWA 2001).26 Full reparation of the injury shall take the form of restitution,
23
ICJ, Avena judgment, ibid, 72, operative para 153 (8) of the judgment.
24
IACtHR (advisory opinion), OC-16/99, supra n 14, para 137 and para 141, operative paras 6–7 of
the advisory opinion.
25
Verbatim record CR 2000/27 in LaGrand, 12, para 23 (Simma); LaGrand judgment, supra n
1, 494, para 78.
26
The text of the ARSIWA, supra n 3, 51.
110 K. Yakushiji
compensation, and satisfaction, either singly or in combination (Article 34).27 While

these obligations of the responsible State are owed to another State or several States,
or to the international community as a whole according to the ARSIWA (Article
33 (1)),28 this does not mean that the responsible State does not owe the same
obligations toward individuals. On the contrary, according to James Crawford, who
was the ILC Rapporteur for the final version of ARSIWA, and according to the ILC
as a whole, the individuals concerned should be regarded as the holders of the rights,
although a State’s responsibility for the breach of a treaty concerning the protection
of human rights may exist toward all the other parties to the treaty.
Yet the ILC did not consider it appropriate to deal with the issue of the invocation
of the law of State responsibility by individuals and by entities other than States
when it was drafting the ARSIWA. It did not consider either that it should at this
stage deal with difficult questions about the relationship between claims of respon-
sibility asserted by States and claims by non-State victims arising from the same
conduct. Therefore, it considered that it would be a matter for the particular primary
rule to determine whether and to what extent persons or entities other than States are
entitled to invoke responsibility on their own account.29
While the question of invocation of state responsibility by individual right holders
must be decided by resorting to a particular primary rule, the general rules
concerning the content of the State responsibility set forth in Part II of ARSIWA
2001 are to be applied mutatis mutandis to the State responsibility toward individ-
uals, with the exception that special rules set forth in a particular treaty provision
such as Article 41 (just satisfaction, former Article 50) of the European Convention
on Human Rights (ECHR) or Article 63 (1) (remedy and fair compensation) of the
American Convention on Human Rights (ACHR) prevail over the general rules.30 It
should be recalled that the rules prescribed in these articles per se reflect the then
general rules on the content of the state responsibility for internationally wrongful
acts.31 Indeed, the European Court of Human Rights (ECtHR), in deciding on
reparation, has held that “international case-law, of courts or arbitration tribunals,
affords the Court a precious source of inspiration” and invoked the famous formu-
lation of the PCIJ’s judgment in Chorzów, which reads: “reparation must, as far as
possible, wipe out all the consequences of the illegal act and reestablish the situation
27
Ibid, 52.
28
Ibid, 51.
29
Ibid, 234–235, paras (3) and (4) of the commentary on Art 33; Crawford (2013), pp. 548–549.
30
Art 41 ECHR provides that if the Court finds a violation, and “if the internal law of the said party
allows only partial reparation to be made for consequences of this decision or measure, the decision
of the Court shall, if necessary, afford just satisfaction to the injured party.” If the Court finds a
violation, Art 63 para 1 of the ACHR provides: “the Court shall rule that the injured party be
entrusted the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate,
that the consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.”
31
See Shelton (2005), pp. 189–192, 216–217.
which would, in all probability, have existed if that act had not been committed.”32
The IACtHR has also admitted that “Article 63 (1) of the American Convention
contains a rule of customary law that constitutes one of the fundamental principles of
contemporary international law on State responsibility. [. . .] Reparation of harm
caused by violation of an international obligation requires, whenever possible, full
restitution (restitutio in integrum), which consists of restoring the situation that
existed before the violation occurred. When this is not possible, as in the present
Case, it is the task of this international Tribunal to order the adoption of a series of
measures that, in addition to guaranteeing respect for the rights violated, ensure that
the damage resulting from the infractions is repaired, and order the payment of an
indemnity as compensation for the harm caused in that case.”33 Therefore, a State
responsible for a violation of individual rights is under an obligation to cease the
violation, to assure non-repetition, and to make full reparation for the injury toward
the individuals concerned according to general international law. Of course, we
should take into account special rules concerning the content of state responsibility
that have developed through case law of the human rights courts or jurisprudence of
the treaty bodies.
3.2 Legal Consequences of a Violation of Human Rights

Recognized Under the Conventions: Principles Specific
to Human Rights Law
Article 2 (3) (a) ICCPR imposes on a State party the obligation to give an effective
remedy to a person whose rights are violated. Such provisions exist in many human
rights conventions.34 Article 36 (2) VCCR may be included in this category too.
While the obligation to provide an effective domestic remedy is an independent
primary obligation arising from the breach of substantive rights set forth in the
Convention and the breach of which raises further violation of the Convention, the
content of this primary obligation and that of the secondary obligation of the State
party due to its international responsibility for the breach of the Convention are
32
ECtHR (Chamber), Papamichalopoulos and others v Greece, judgment of 31 Oct 1995, no
14556/89, para 36. Available online via http://hudoc.echr.coe.int/eng?i¼001-57961. Accessed
11 July 2017.
33
IACtHR, Hilaire, Constantine and Benjamin et al v Trinidad and Tobago (merits, reparations and
costs), judgment of 21 June 2002, paras 202–203. Available online via www.corteidh.or.cr/docs/
casos/articulos/seriec_94_ing.pdf. Accessed 11 July 2017. See also IACtHR, Caracazo v Venezuela
(reparations and costs), judgment of 29 Aug 2002, paras 76–78. Available online via www.corteidh.
or.cr/docs/casos/articulos/seriec_95_ing.pdf. Accessed 11 July 2017.
34
See e.g. Art 2 para 3 (a) of the ICCPR; Art 6 of the Convention on the Elimination of Racial
Discrimination (ICERD); Art 2 (c) of the Convention on the Elimination of All Forms of Discrim-
ination against Women (CEDAW); Art 14 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment (CAT); Art 13 of the ECHR; Art 25 of the ACHR.
112 K. Yakushiji
closely connected with each other because both obligations derive from the violation
of the same substantive rights. Thus, whenever the Human Rights Committee
(HRCtee) finds a violation of any substantive right of the ICCPR, it deduces the
legal responsibility of a State party from the duty under Article 2 (3) (a) by holding,
for example, that “In accordance with article 2 (3) (a) of the Covenant, the State party
is under an obligation to provide the author with an effective remedy, including
adequate compensation. The State party is also under an obligation to take steps to
prevent similar violations in the future.”35 According to General Comment 31 of the
HRCtee, what is considered to be effective remedies, besides the declaratory judg-
ment on a violation of the Covenant, are cessation of an ongoing violation, appro-
priate compensation and other reparation involving restitution, rehabilitation and
measures of satisfaction such as public apologies, public memorials, guarantees of
non-repetition and changes in relevant laws and practices, as well as bringing to
justice the perpetrators of human rights violations.36 In any case, as the Committee
emphasized, “[w]ithout reparation to individuals whose Covenant rights have been
violated, the obligation to provide an effective remedy [. . .] is not discharged.”37
At the same time, guarantee of non-repetition of the same kind of violation has been
deemed to be another essential remedy for the violation of human rights.
The content of the international responsibility of a State for violations of human
rights has been developed and is developing constantly through case law and
jurisprudence of various treaty bodies. And while its details are diverse, owing to
the differences of backgrounds, situations of human rights violations, jurisdiction or
competence of the human rights courts and monitoring bodies, etc., some common
features are discernible as to the content of state responsibility specific to the
violation of human rights.38
First, there are cases in which nonmonetary remedies such as restitution or
rehabilitation are appropriate, taking into consideration the irreparability of the
injury to life, physical and mental integrity of a person, or any other fundamental
right. Examples include commutation of the death penalty sentenced without a fair
trial and the guarantee of due process, release of a person detained arbitrarily or
without a fair trial, suspension or review of the expulsion that imminently exposes a
person to a real risk of deprivation of life or torture, restitution of the property
wrongly deprived of, provision of appropriate medical and psychiatric care, and
35
The example was taken from the recent views of the HRCtee. See e.g. Viktor Timoshenko v
Belarus, No 1950/2010, UN Doc. CCPR/C/114/D/1950/2010, para 9.
36
HRCtee, General Comment No 31 [80] on the nature of the general legal obligation imposed on
States parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13 (2004), paras 15–16. We can
see another typical example of detailed enumeration of an effective remedy to a victim in Art 24 of
the International Convention for the Protection of All Persons from Enforced Disappearance. In
addition, para 1 of the Art widens the concept of “victim” to include “any individual who has
suffered harm as the direct result of an enforced disappearance.”
37
HRCtee, General Comment No 31 [80], ibid, para 16.
38
See Shelton (2005), in particular chapters 5, 7–10; Burgorgue-Larsen and Úbeda de Toress
(2011), chapters 10, 26; Leach (2005), chapter 9; Nowak (2005), pp. 62–72, 891–894.
improvement of the conditions of detention.39 Second, monetary compensation is

often specified commonly as an appropriate reparation not only for pecuniary loss
(loss of earnings, pension or social security benefits, medical expenses, etc. caused
by loss of life, bodily injury, deprivation of liberty, as well as loss or damage to
property, etc.) but also for non-pecuniary damage (suffering, mental anguish, moral
damage, etc. caused by deprivation of life and personal injury, lost opportunities of
life (proyecto de vida), etc.). Yet as to the amount of compensation, while the
HRCtee has merely referred to adequate or appropriate compensation, probably
because it was not authorized to decide the amount of the compensation, both the
ECtHR and IACtHR have awarded monetary compensation by deciding on its
precise amount, and they have developed the conditions and standards for deciding
compensations.40 Certainly, considerable differences do exist between the practice
of these two institutions with regard to the scope of compensable pecuniary and
non-pecuniary loss, method to establish causal link, method and criteria for valuation
and calculation of damages, etc. A third common feature is that ECtHR and IACtHR,
as well as HRCtee, have recognized that the State must conduct an investigation and
effective prosecution of perpetrators as a guarantee of non-repetition when there
have been serious human rights violations such as violations of the rights to life,
torture, enforced disappearance.41
Now, if a State owes responsibility toward individual victims mentioned above
for a violation of human rights and if a national State of the individuals invokes the
responsibility of the wrongdoer State on behalf of the victims, then what kind of
responsibility does the wrongdoer State owe to the national State?
39
Shelton (2005), pp. 184–187, 199, 271–277, 280–289; Leach (2005), pp. 405–407; Burgorgue-
Larsen and Úbeda de Toress (2011), pp. 234–238; Mowbray (2007), pp. 877–882; Nowak (2005),
pp. 70–71.
40
As to the compensation, see e.g. para 20 of the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147; para 16 of the
General Comment No 31 of the HRCtee, UN Doc. CCPR/C/21/Rev.1/Add.13, and paras 9–10 of
the Guidelines on measures of reparation under the Optional Protocol to the International Covenant
on Civil and Political Rights, UN Doc. CCPR/C/158; see also Shelton (2005), pp. 183, 294–353;
Leach (2005), pp. 398–405; Burgorgue-Larsen and Úbeda de Toress (2011), pp. 228–234.
41
Shelton (2005), pp. 278–280.
114 K. Yakushiji
3.3 Legal Consequences of a Violation of Individual Rights

Recognized Under International Law in the Context
of Inter-State Disputes
3.3.1 Violation of Individual Rights and Non-pecuniary Remedies:

LaGrand and Avena
In LaGrand, regarding the legal consequences of the US’s breach of the individual
rights under Article 36 VCCR, Germany insisted as follows: (a) the criminal liability
imposed on the LaGrand brothers was void; (b) the US should provide reparation, in
the form of compensation and satisfaction, for the execution of Karl LaGrand; (c) the
US should restore the status quo ante in the case of Walter LaGrand; (d) the US
should provide Germany a guarantee of the non-repetition of the illegal acts.42
Likewise, Mexico submitted similar claims for restitution in Avena, arguing in
particular that since the right to consular notification and consular communication
under the VCCR were a fundamental human right, its infringement would ipso facto
produce the effect of vitiating the entire process of the criminal proceedings
conducted in violation of this right.43 These arguments were partly based on the
observations of the human rights treaty bodies to the effect that the death penalty
sentenced without the guarantees of due process of law constituted the arbitrary
deprivation of the right to life. On the contrary, the US asked the Court to confirm
that the US had apologized to Germany for the said breach.44 Before LaGrand,
Advisory Opinion OC-16/99 by the IACtHR had held that the imposition of death
penalty with disregard for the right to consular information required by Article
36 (1) (b) VCCR was contrary to due process of law and accordingly a violation
of the right not to be arbitrarily deprived of one’s life, “with the juridical conse-
quences pertaining to the State’s international responsibility and the duty to make
reparation.”45 However, the Opinion did not clarify the concrete content of the
reparation imposed on the responsible State (the US). In LaGrand, the German
request for compensation for the LaGrand brothers was withdrawn after the execu-
tion of Walter LaGrand, and in Avena, the Mexican request for restitution was
rejected by the ICJ on the ground that the case before it did not concern the
correctness as such of any conviction and sentence.46 Moreover, the ICJ found
that the Mexican contention that the infringement of a fundamental right would
ipso facto vitiate the entire process of the criminal proceedings was supported neither
42
ICJ, LaGrand judgment, supra n 1, 471–472, para 10. The argument of Germany is similar to that
of Paraguay in Breard. Vienna Convention on Consular Relations (Paraguay v United States of
America) (provisional measures), 09 Apr 1998, ICJ Reports 1998, 248 at 256, para 30.
43
ICJ, Avena judgment, supra n 4, 60–61, para 124.
44
ICJ, LaGrand judgment, supra n 1, 473, para 11. Counter-memorial of the US.
45
IACtHR (advisory opinion), OC-16/99, supra n 14, paras 136–137 and operative para 141 (8).
46
ICJ, LaGrand judgment, supra n 1, 474, para 12; Avena judgment, supra n 4, 60, paras 122–123.
by the text, object, nor preparatory work of the VCCR.47 Another request by Mexico
for cessation was also rejected by the reason that Mexico had not established a
continuing violation of Article 36 with regard to 52 individual cases that were still
pending at the domestic level.48 Thus, the disputed point on reparation in LaGrand
and in Avena converged on whether or not the US were under the obligation to
provide, as an assurance of non-repetition of the violation and by means of its own
choosing, review and reconsideration of the convictions and sentences rendered in
the criminal proceedings to individuals with disregard for their individual rights
under Article 36. Though what mattered in these cases was not the secondary
obligations that the US owed directly toward individual victims but those owed
toward their national States, due consideration seems to have been given by the ICJ
to the legal effects of the violation of individual rights.
The Court observed in LaGrand that an apology would not suffice in cases where
the individuals concerned had been subjected to prolonged detention or convicted
and sentenced to severe penalties.49 The Court also acknowledged in LaGrand and
Avena that the appropriate reparation in these cases consisted in the obligation of the
US to provide, by means of its own choosing, review and reconsideration of the
convictions and sentences of the individuals concerned. According to the judgment
in Avena, the review and reconsideration should be effective in that it should take
account of the violation of the rights set forth in Article 36 of the Convention and
guarantee that the violation and the possible prejudice caused by that violation will
be fully examined and taken into account in the review process, and it should cover
both the sentence and the conviction.50 In this regard, what is crucial first in the
review and reconsideration process is the existence of a procedure that guarantees
such full examination, and then in cases where the breach of the individual rights of
Mexican nationals under Article 36 (1) (b) of the Convention has resulted in the
individuals concerned being subjected to prolonged detention or convicted and
sentenced to severe penalties, the legal consequences of this breach have to be
examined and taken into account in the course of review and reconsideration,
which should occur within the overall judicial proceedings relating to the individual
defendant concerned.51 Based on this assumption, the Court held that the appropriate
reparation, in most cases in which Mexican nationals were deprived of their indi-
vidual rights by the US’s breach of the obligations under Articles 36 (1) (a), 1 (b),
and/or 1 (c), consisted in the obligation of the US to provide, by means of its own
choosing, review and reconsideration of the convictions and sentences of the
Mexican nationals concerned by taking account of both the violation of the rights
set forth in Article 36 of the Convention and the criteria mentioned just above.52 Yet
47
Ibid, 60–61, para 124.
48
Ibid, 68, para 148.
49
ICJ, LaGrand judgment, supra n 1, 513–514, para 125.
50
ICJ, Avena judgment, supra n 4, 65, para 138.
51
Ibid, 65–66, paras 139–141.
52
Ibid, 72, operative para 153 (9). This paragraph was decided by fourteen votes to one.
116 K. Yakushiji
the Court considered that the appropriate clemency procedures could supplement
judicial review and recommendation, in particular where the judicial system had
failed to take due account of the violation of the rights set forth in the Convention
(like in the case of three Mexican nationals).53
There is a controversy over the nature of the obligation to provide effective
review and reconsideration of the convictions and sentences rendered in the criminal
proceedings to individuals with disregard for their individual rights under Article
36, viz. controversy over primary obligation or secondary obligation, or whether it
constitutes a type of restitution, satisfaction, or guarantee of non-repetition.54
In any case, it is clear from the Avena judgment mentioned above that the ICJ
attached important weight to the facts that the violated rights are individual treaty
rights and the injury caused to the individuals by that violation is their subjection to
prolonged detention or severe penalties when it judged that an apology did not
suffice and the most appropriate reparation in such cases was the provision of
effective review and reconsideration of the convictions and sentences rendered in
the criminal proceedings to individuals concerned, in principle, not through the
clemency procedure but through the judicial process taking account of the violation
of individual rights. Since the ICJ examined the legal effects of the breach of the
individual rights on the decision of form of reparation in this way, it seems to have
considered it unnecessary to examine the German argument that the violated rights
are human rights.55 The remedy indicated by the ICJ in Avena is mostly the victim-
specific remedy applicable to Mexican nationals named in the judgment, and
according to the subsequent judgment concerning the request for interpretation of
the judgment in Avena (merits), the operative paragraph 153 (9) of the judgment
shall be read to imply that the obligation that the US undertook is to take all
necessary steps to ensure that no Mexican national named in the judgment shall be
executed without having received the prescribed review and reconsideration and
without a determination having been made that he has suffered no prejudice from the
violation of the Convention.56 By contrast, the judgment in Diallo (merits) shows
that satisfaction in the form of declaratory judgment would suffice with respect to a
violation of Article 36 (1) (b) that does not cause prolonged detention or severe
sentence.57 In sum, the old notion that the damage suffered by an individual can only
53
Ibid, 66, para 143 and 70, para 152.
54
See Barbier (2010), p. 560; Gray (2010), pp. 594–595.
55
ICJ, LaGrand judgment, supra n 1, 514, para 126.
56
ICJ, Request for Interpretation of the Judgment of 31 Mar 2004 in the Case concerning Avena
and Other Mexican Nationals (Mexico v United States of America), judgment of 19 Jan 2009, ICJ
Reports 2009, 1 at 11–12 and 19, paras 25, 27–28, 52–53.
57
ICJ, Diallo judgment on merits, supra n 5, 692–693, operative para 165 (4) and (7). While the
Court acknowledged the Congo’s violation of Art 36 para 1 (b), it did not require Congo of the
payment of compensation.
afford a convenient scale for the calculation of the reparation due to the State58 is
becoming an anachronism.
3.3.2 Violation of Individual Rights and Pecuniary Remedies: ICJ

Diallo and ECtHR Cyprus v Turkey
In its Advisory Opinion on Construction of a Wall, the ICJ, by referring to the

international responsibility of Israel arising from the construction of the wall in the
occupied Palestinian territory, mentioned as follows:
Israel is [. . .] under an obligation to return the land, orchards, olive groves and other
immovable property seized from any natural or legal person for purposes of construction
of the wall in the Occupied Palestinian Territory. In the event that such restitution should
prove to be materially impossible, Israel has an obligation to compensate the persons in
question for damage suffered. The Court considers that Israel also has an obligation to
compensate, in accordance with the applicable rules of international law, all natural or legal
persons having suffered any form of material damage as a result of the wall’s construction
(italics by the author).59
The Opinion held that Israel owed, according to international law, the duty to
make restitution or compensation to natural or legal persons whose immovable
property had been seized or who had suffered any form of material damage as a
result of the wall’s construction. This observation relating to the remedies owed to
individuals, although limited to material damage, seems to be innovative for a court
not dealing with individual complaints. Yet the ICJ did not explain the reason why
Israel directly owed the responsibility to make reparation to individuals. Since the
Court’s Opinion found that Israel, as an occupying contracting State exercising
extraterritorial jurisdiction over occupied Palestinian territory, violated the obliga-
tions undertaken under the ICCPR and International Covenant on Economic, Social
and Cultural Rights (ICESCR) by constructing the wall, there should have been
more discussion regarding the legal relationship between Israel’s violations of
individual (human) rights of the occupied Palestinian people concerned and the
remedies directly given to such people concerned, including the legal grounds for the
remedies under the treaties or general international law.
The ICJ’s judgment in Diallo (merits) deserves attention in that the violation of
human rights of a specific person was acknowledged by the ICJ. The Court found the
Congo’s violation of Article 13 of the ICCPR and Article 12 (4) of the African
Charter on Human and People’s Rights (ACHPR) in connection with Mr. Diallo’s
expulsion from the Congolese territory and also its violation of Article 9 (1) and
(2) of the ICCPR and Article 12 (4) ACHPR in relation to his arbitrary arrest and
58
PCIJ, Case Concerning the Factory at Chorzów (claim for indemnity; merits), judgment of
13 Sept 1928, Publications of the PCIJ, Series A—No 17, Collections of Judgments, 28.
59
ICJ, Legal consequences of the construction of a wall in the occupied Palestinian territory
(advisory opinion), 09 July 2004, ICJ Reports 2004, 136 at 198, para 153.
118 K. Yakushiji
detention (for a total of 72 days) with a view to his expulsion.60 Since Diallo was
forcibly deported from the territory of the Democratic Republic of the Congo (DRC)
and not allowed to reenter into the DRC, the Court decided that the DRC was under
obligation to make appropriate reparation, in the form of compensation, to Guinea
for the injurious consequences of the human rights violations mentioned above.61 In
deciding the form of reparation due to Guinea for the injury suffered by Diallo,
particular attention was paid both to the fundamental character of the human rights
obligations breached and Guinea’s claim for compensation.62 The final amount of
compensation due from the DRC to Guinea was decided by the Court after the
negotiation between the two States had failed. The ICJ had suggested in its judgment
on the merits that the scope of the compensation should cover (or be limited to) “the
injury flowing from the wrongful detentions and expulsion of Mr. Diallo in 1995-
1996, including the resulting loss of his personal belongings.”63 Based on this
framework, the amount fixed finally by the ICJ was as follows: (a) $85,000 for the
non-material injury suffered by Diallo (compared to $250,000 demanded by Guinea
and $30,000 offered by the Congo), (b) $ 10,000 for material injury suffered by
Diallo in relation to his personal property (compared to $550,000 demanded by
Guinea and $0 offered by the Congo); (c) no compensation with regard to the claim
concerning material injury allegedly suffered by Diallo during his unlawful deten-
tions and following his unlawful expulsion, as well as a deprivation of potential
earnings (compared to $6,430,148 and $ 4,360,000 demanded by Guinea and $0
offered by Congo).64 In order to fix the amount, the Court applied “general principles
governing compensation,” taking into account the practice in other international
courts, tribunals, and commissions, including the ECtHR, IACtHR, HRCtee, and
examined sequentially the existence of injury and causation and then determined the
amount.65 With regard to the qualification of compensation for non-material injury
(viz. Diallo’s significant psychological suffering and loss of reputation), as well as
material injury (furnishings in Diallo’s apartment), the ICJ, by invoking the pre-
cedents of the ECtHR and the IACtHR, awarded the abovementioned amount
without specific evidence on the one hand by taking into account the equitable
principles, but on the other, it refused the claim as to the loss of high-value items and
bank account for lack of evidence.66 With respect to Guinea’s claim for loss of
60
ICJ, Diallo judgment on merits, supra n 5, 692, operative para 165 (2) and (3). As to the
reasoning, see 663–671, paras 64–89. The ICJ also found the violation of Art 36 para 1 (b) of the
VCCR. Though the case started with Guinea’s claim for diplomatic protection of Mr. Diallo’s
business interests in Congo, all claims of an economic nature were declared inadmissible or rejected
in the decision on merits. See also joint declaration of 5 judges as well as joint dissenting opinion of
two judges. Ibid, 695–699, 700–711.
61
Ibid, 693, operative para 164 (7).
62
Ibid, 691, para 161.
63
Ibid, 691, para 163. See also Diallo judgment on compensation, supra n 5, 331, paras 11, 17.
64
Ibid, 330, para 10 and 345, operative paras 61 (1)–(4).
65
Ibid, 334–335, paras 13–14.
66
Ibid, 334–335, paras 21–25 and 336–338, paras 29–36.
professional remuneration resulting from Diallo’s detention and expulsion, the Court
also rejected it for the same reason.67 In summary, although the ICJ invoked case law
of the ECtHR and IACtHR in determining the scope and amount of the compensa-
tion due to Guinea, it considered that it merely applied the “general principles
governing compensation” to this case. However, it should be noted that the com-
pensation was provided for only with regard to the victim’s personal injury, and
weight was attached to mental and moral damage suffered by the true right holder
because of the violation of human rights. The method for qualification of the
compensation adopted for fixing its amount in this case is the same as the one
applied by the human rights courts when they decide the claims submitted by
individuals.
In this connection, the judgment of ECtHR in Cyprus v Turkey (just satisfaction)
is worth noting since it applied Article 41 of the ECHR to the inter-State case in
order to provide a remedy to a number of individuals suffering from gross violation
of human rights. The Court ordered the Turkish Government to pay the Cypriot
Government aggregate sums of thirty million euros for non-pecuniary damage
suffered by the surviving relatives of the (1456) missing persons and sixty million
euros for non-pecuniary damage suffered by the enclaved Greek Cypriot residents of
the Karpas peninsula (whose names and numbers were not identified), plus any tax
that may be chargeable.68 According to the Court, the lump sum awarded (e.g., about
EUR 20,000 per capita in the case of missing persons) was based on the consider-
ation of equitable principles, which involved flexibility and an objective consider-
ation of what was just, fair, and reasonable in all the circumstances of the case, and
its non-pecuniary award reflected the severity of the damage that had occurred as a
result of the Turkish breach of the Convention.69 Most remarkable of all is that the
Court ordered the Cypriot Government to distribute the awarded aggregate sums to
the individual victims of the violations found in the principal judgment within
eighteen months from the payment by the respondent government and put the
execution of the order under the supervision of the Committee of Ministers.70 This
obligation of the applicant government transcends the traditional framework of
diplomatic protection and may stand for a new victim-oriented scheme, in particular,
for the victims of gross violation of human rights. On the other hand, since even the
numbers of victims are not identified with regard to the residents in Karpas, some
judges considered that the Court awarded punitive damages, and others dissented to
the majority on the ground that Article 41 should not be applied in the case of
67
Ibid, 339–342, paras 38–50.
68
ECtHR (Chamber), Cyprus v Turkey (just satisfaction), judgment of 12 May 2014, No 25781/94,
operative paras 4 (a) and 5 (a). Available at http://hudoc.echr.coe.int/eng?i¼001-144151. Accessed
11 July 2017. Reproduced in HRLJ, Vol 34 No 1–6 (2014), 77–99. The operative paragraphs
mentioned were decided by fifteen votes to two.
69
70
120 K. Yakushiji
Karpas.71 If the victim-oriented approach is to be taken in the serious violation of

human rights, the identification of the beneficiaries will become the challenge.72
4 Invocation of State Responsibility by a State

for the Violation of Individual Rights Recognized Under
International Law
4.1 Invocation of the Responsibility by a State Whose

Nationals’ Individual Rights Were Violated: Diplomatic
Protection
Treaties often create individual rights without giving individuals procedural rights
for enforcing their substantive rights. Even if treaties provide individuals with an
international procedure for enforcing their substantive rights, individuals are not able
to make use of such procedure so long as the State that has violated the individual
rights does not accept the procedure. In such a situation, the espousal by another
State of the claims of such individuals at inter-State level remains an important
remedy for the protection of their rights. In fact, it was the diplomatic protection
exercised by the national States of the actual victims that resulted in the LaGrand,
Avena, and Diallo judgments favoring victim-specific remedies. Therefore, if a State
exercises diplomatic protection, invoking the rights of its nationals, it can serve as an
effective tool for the protection of individual rights at inter-State level. Diplomatic
protection is defined in the DADP as “the invocation by a State, through diplomatic
action or other means of peaceful settlement, of the responsibility of another State for
an injury caused by an internationally wrongful act of that State to a natural or legal
person that is a national of the former State with a view to the implementation of
such remedy.”73 Despite the old dictum of the PCIJ in Mavrommatis Palestine
Concessions that by resorting to diplomatic protection a State is asserting its own
right in the person of its subject,74 the fiction that an injury to a national is an injury
to the State itself contradicts with the reality of diplomatic protection, and in reality a
State asserts not only its own right but also the right of its nationals.75 For this
reason, Article 1 DADP is formulated in such a way as to leave open the question
whether the State exercising diplomatic protection does so in its own right or that of
71
As to punitive damages, see concurring opinion of Judge Pinto de Albuquerque joined by Judge
Vucinic. See also partly concurring and partly dissenting opinion of Judge Casadevall; dissenting
opinion of Judge Karakas.
72
With regard to the background of this judgment and of its evaluation, see Risini (2014), p. 25.
73
Art 1 DADP, supra n 8, 24.
74
PCIJ, Mavrommatis Palestine Concessions judgment, supra n 6, 12.
75
Para (3) of the commentary on Art 1 DADP, supra n 8, 27.
its national—or both.76 On the other hand, “[a] State has the right to exercise
diplomatic protection” (Article 2 DADP)77 but does not have the duty to exercise
it to protect its own nationals. In relation to the discretionary nature of the State’s
right to exercise diplomatic protection, the ICJ’s judgment in Barcelona Traction
held that “[t]he State must be viewed as the sole judge to decide whether its
protection will be granted, to what extent it is granted, and when it will cease.”78
There has also been the widespread perception that the State has complete discretion
to decide whether and how it distributes the awarded indemnities to individual
victims of the internationally wrongful acts.79
However, considering the evolutionary interpretation of the human rights con-
ventions, in particular of the obligation of a State party to ensure or secure the human
rights set forth in such a convention, there are cases where a State is bound to extend
its protection to persons under its jurisdiction in order to ensure the human rights
recognized in the convention. For example, the ECtHR held in Ilaşcu that the State
party to the ECHR also owes positive obligations toward persons within its territory
and therefore must endeavor, with all the legal and diplomatic means available to it
vis-à-vis foreign States and international organizations, to guarantee the enjoyment
of the rights and freedoms defined in the Convention, even where Moldova was
prevented from exercising its authority over the whole of its territory by a
constraining de facto situation.80 Although it would be the State concerned that
decides the measure that it should take in order to comply with its obligation most
effectively, there may be cases where the State is required to exercise its diplomatic
or other functional protection in order to protect the human rights of its nationals or
other persons. In this regard, Article 19 DADP deserves particular attention, which
states that a State entitled to exercise diplomatic protection “should”
(a) Give due consideration to the possibility of exercising diplomatic protection, especially
when a significant injury has occurred;
(b) Take into account, wherever feasible, the views of injured person with regard to resort to
diplomatic protection and the reparation to be sought; and
(c) Transfer to the injured person any compensation obtained for the injury from the
responsible State subject to any reasonable deductions.81
The commentary of the ILC states that Article 19 recommends States, by using
the word “should,” to follow “certain practices on the part of States in the field of
diplomatic protection which have not yet acquired the status of customary rules and
76
Para (5) of the commentary on Art 1 DADP, ibid, 27.
77
Art 2 DADP, ibid, 24.
78
ICJ, Barcelona Traction, Light and Power Company, Limited, judgment of 05 Feb 1970, ICJ
Reports 1970, 3 at 44, paras 78–79. See also, as one of the typical classic remarks as to the
discretional nature of the State’s right, Borchard (1919), pp. 355–380.
79
Para (5) of the commentary on Art 19 DADP, supra n 8, 54.
80
ECtHR (Grand Chamber), Ilascu and others v Moldova and Russia, Reports 2004-VII, 179 at
266–267, paras 333–334. See also ECtHR (Grand Chamber), Catan and others v Moldova and
Russia, Reports 2012-V, 309, at 357–358, paras 109–110.
81
Art 19 DADP, supra n 8, 25–26.
122 K. Yakushiji
which are not susceptible to transformation into rules of law in the exercise of
progressive development of the law” but “are nevertheless desirable practices,
constituting necessary features of diplomatic protection that add strength to diplo-
matic protection as a means for the protection of human rights.”82 More specifically,
the ILC observes as follows: with respect to paragraph (a), international law already
recognizes the existence of some obligation on the part of a State to consider the
possibility of exercising diplomatic protection on behalf of a national who has
suffered a significant injury abroad, and if it does not, paragraph (a) must be seen
as an exercise in progressive development. With regard to paragraph (b), some
scholars contend that the admonition contained in paragraph (b) is already a rule
of customary international law, and if it is not, paragraph (b) must also be seen as an
exercise in progressive development. As to paragraph (c), although in 2006 there
was some supporting national practice for curtailing the absolute right of the State to
withhold payment of compensation received to the injured national, the ILC
commented that it does not constitute a settled practice. Instead, paragraph (c) is
an exercise in progressive development supported by such State practice and
equity.83 As a matter of positive international law, it seems that State practice is
still too scarce to be able to argue that the traditional State’s discretion in exercising
diplomatic protection has been overthrown and the obligations provided in para-
graphs (a)–(c) have already been established. However, it is no doubt that new steps
for further international practice have already started on the basis of Article
19 DADP. One illustration is the judgment of ECtHR in Cyprus v Turkey (just
satisfaction), although it is doubtful whether the invocation of the responsibility of
Turkey by Cyprus within a framework of the ECHR can be characterized as the
exercise of diplomatic protection.
4.2 Invocation of the Responsibility by a State Other Than

an Injured State
The European Commission of Human Rights (EComHR) in Austria v Italy (1961)

held that the ECHR was “founded on the concept of a collective guarantee of the
rights and freedoms contained in the Convention” so that a State party exercising the
right under then Article 24 (corresponding to contemporary Article 33) was “not to
be regarded as exercising a right of action for the purpose of enforcing its own rights,
but rather as bringing before the Commission [now the Court] an alleged violation of
the public order of Europe.”84 On the basis of the cognizance of such a treaty, Article
82
Para (1) of the commentary on Art 19 DADP, ibid, 53.
83
Paras (3), (4) and (8) of the commentary on Art 19 DADP, ibid, 54–55.
84
EComHR, The Federal Republic of Austria against the Government of the Republic of Italy, No
788/60, decision of 11 Jan 1961, YBECHR 1961 (Vol 4), (Martinus Nijhoff, 1962), 117 at
140, 150.
48 of ARSIWA prescribes that “[a]ny State other than an injured State is entitled to
invoke the responsibility of another State” if “the obligation breached is owed to a
group of States including that State, and is established for the protection of a
collective interest of the group” (paragraph 1 (a)) and may claim “cessation of the
internationally wrongful act, and assurances and guarantee of non-repetition” and
“performance of the obligation of reparation [. . .] in the interest of [. . .] the benefi-
ciaries of the obligation breached” (paragraphs 2 (a) and (b)).85 According to the
commentary on Article 16 DADP, a State that protects non-nationals, as well as
nationals, against the responsible State in inter-State proceedings under the ICCPR,
ICERD, CAT, ECHR, ACHR, and ACHPR serves as a typical example of Article
48 (1) (a).86 Such a State should be deemed to be exercising not diplomatic
protection stricto sensu in customary international law but the sui generis right of
complaint accorded by the relevant treaty to ensure the observance by States parties
of obligations erga omnes partes since the State is not injured by a violation of
human rights of individuals.
However, even in such a procedure, a State party may make different types of
complaints pursuing different goals, that is, from complaints denouncing the sys-
tematic or gross violation of human rights per se of a State party to complaints
claiming the violation of the human rights of its nationals or other victims, such as
complaints filed by individual applicants or in the context of diplomatic or other
functional protection. In the latter case, the question is whether and what kind of
remedy the State exercising the right conferred under the relevant treaty can pursue
for the protection of individual rights recognized under a human rights convention.
What is noteworthy in this connection is the aforementioned judgment of the ECtHR
in Cyprus v Turkey (just compensation).87 The Court concluded as follows: if the
victims of a violation could be identified and the main purpose of the proceedings
were the invocation of the responsibility of another State party for the violation of the
basic human rights of its nationals (or other victims), an award of just satisfaction
under Article 41 should be appropriate having regard to the particular circumstances
of the case; since in this case just satisfaction was sought by the Cypriot Government
for the benefit of individual victims of two sufficiently precise and objectively
identifiable groups of people, the applicant government was entitled to make a
claim under Article 41 of the ECHR and granting just satisfaction would be
justified.88 In this judgment, attention should be given to the fact that the Court
invoked not Article 48 (1) (b) ARSIWA but Articles 1 and 19 DADP and the ICJ’s
judgment in Diallo and emphasized as follows:
However, it must be always kept in mind that, according to the very nature of the Conven-
tion, it is the individual, and not the State, who is directly or indirectly harmed and primarily
“injured” by a violation of one or several Convention Rights. Therefore, if just satisfaction is
85
The text of the Art 48 of the ARSIWA, supra n 3, 29.
86
Para (2) of the commentary on Art 16 DADP, supra n 8, 50–51.
87
See Sect. 3.3.2 of this chapter.
88
ECtHR, Cyprus v Turkey (just satisfaction), supra n 74, paras 43–45, 47.
124 K. Yakushiji
afforded in an inter-State case, it should always be done for the benefit of individual
victims.89
It could be said that a principle is emerging that, in the ECHR and presumably in
the human rights conventions in general, invocation of responsibility by a State party
against another State shall always be done not for the benefit of the State but only for
the benefit of individual victims. As the ILA Human Rights Committee’s report
points out, the ICJ’s Diallo judgment (Compensation) also, by recalling that “the
sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is
intended to provide reparation for the latter’s injury,” triggers the assumption that the
State will pass on to the actual victims the amounts received in damages.90
5 Concluding Remarks
Once individual rights, in particular human rights, are created or recognized directly
by international treaties, we should admit at least two legal consequences of such
creation or recognition of individual rights.
First, as the judgment of ECtHR in Cyprus v Turkey (just satisfaction) clearly
showed, considering the very nature of the individual rights recognized under
international law, it is the individual, and not the State, who is directly or indirectly
harmed and primarily injured by a violation of the rights, and therefore, if an
effective remedy, reparation, or assurance of non-repetition is to be afforded even
in an inter-State case, it should always be done firstly for the benefit of individual
victims, and reparation should be provided for the injury of such individuals.
Through the judgments in LaGrand, Avena, and Diallo, the ICJ also has impliedly
or explicitly confirmed this basic principle and applied it to the concrete cases taking
into account the specific circumstances of the case concerned. However, this means
only the starting point for the further challenges accompanying the implementation
of individual’s right to effective remedy or full reparation. As Tomuschat points out,
the principle that individual victims of violations of human rights shall be entitled to
full reparation contradicts with the reality that individuals have not been able to
acquire complete reparation of the harm suffered, and financial reparation has often
been in line with the available economic and financial resources, as was illustrated
by the payment of lump sums by way of indemnification (including renunciation of
individuals’ claims) decided in peace treaties, national conciliation agreements,
etc.91 Yet the emerging principle of victim-oriented reparation may affect the
manner of reparation to individuals, and the decision of the ECtHR in Cyprus v
89
Ibid, para 46.
90
ILA Human Rights Committee, Washington Conference (2014)—International Human Rights
Law, “Interim report: International Human Rights Law and the International Court of Justice (ICJ),”
paras 59–60. Available at www.ila-hq.org/index.php/committees. Accessed 11 July 2017.
91
Tomuschat (2010), pp. 986–990.
Turkey may throw light on this issue as one of the methods to be taken, even though
the enforcement seems to be difficult.
Second, the first legal consequence of the breach of individual rights begins to
affect also the procedural aspect of the international remedy for the breach. Though
the traditional State’s discretion in the exercise of diplomatic protection still remains
as a matter of positive law, the scope of the discretion is being narrowed where
individual rights under international law are at issue. Although Special Rapporteur
Dugard’s proposal de lege ferenda that the State of nationality should be obliged
under international law to exercise diplomatic protection on behalf of the injured
person upon request in limited circumstances was initially rejected by the ILC, the
idea was now included in Article 19 of the DADP with modification.92 Under the
article, States are required, as a matter of progressive development of international
law, to exercise diplomatic protection in certain cases of human rights violations and
to consult with injured persons with regard to resort to such protection and the
reparation to be sought and transfer to the injured person any compensation
obtained. In certain circumstances, the duty to exercise diplomatic protection may
be based on the evolutionary interpretation of the positive obligation of a national
State to ensure human rights set forth in human rights instruments. Moreover, the
judgment of the ECtHR in Cyprus v Turkey (just satisfaction) suggests that the
transfer of the indemnities awarded to victims has already become the duty of the
protecting State in the case of a human rights violation. Besides diplomatic protec-
tion by a national State, Article 48 (1) ARSIWA recognizes the right of invocation of
responsibility by a State other than an injured State if the obligation breached has an
erga omnes or erga omnes partes character. Although this right was recognized by
the ICJ in Questions Relating to the Obligation to Prosecute or Extradite insofar as
the claim for cessation of the breach of the obligation to prosecute or extradite under
the CAT was concerned,93 the jurisprudence regarding this obligation is yet to be
further developed. In particular, the rule set forth in Article 48 (2) (b), which affords,
as a measure of progressive development, a State other than an injured State the right
to demand performance of the obligation of reparation only in the interest of
beneficiaries,94 should await future clarification. The best way to protect the indi-
vidual rights afforded by international law would be to afford individuals compre-
hensive procedural rights under international law. Until that time, we should make
efforts to protect them by making use of existing international institutions and
procedures.
92
First Report on Diplomatic Protection, by Mr. John Dugard, Special Rapporteur, UN Doc.
A/CN.4/506 and Add. 1, YBILC 2000, Vol II Part 1, 223. Art 4. Report of the ILC on the work
of the 52 session, YBILC 2000, Vol II Part 2, 78–79, paras 450–456 (summary of the debate and
SR’s concluding remarks on Art 4).
93
ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal),
judgment of 20 July 2012, ICJ Reports 2012, 422, at 513–514, paras 68–69.
94
Para (12) of the commentary on Art 48 of the ARSIWA, supra n 3, 127.
126 K. Yakushiji
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Barbier S (2010) Assurances and guarantees of non-repetition. In: Crawford J, Pellet A, Olleson S
(eds) The law of international responsibility. OUP, Oxford
Borchard EM (1919) The diplomatic protection of citizens abroad or the law of international claims.
The Banks Kaw Publishing, New York
Burgorgue-Larsen L, Úbeda de Toress A (2011) The Inter-American Court of Human Rights: case
law and commentary (Translated by Greenstein R). OUP, Oxford
Crawford J (2013) State responsibility: general part. CUP, Cambridge
Gray C (2010) The different forms of reparation: restitution. In: Crawford J, Pellet A, Olleson S
(eds) The law of international responsibility. OUP, Oxford
Leach P (2005) Taking a case to the European Court of Human Rights. OUP, Oxford
Mowbray A (2007) Cases and materials on European Convention on Human Rights. OUP, Oxford
Nowak M (2005) U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn.
N.P. Engel, Kehl am Rhein
Risini I (2014) An individual-centered decision seen in the historical and institutional context which
led to Cyprus v Turkey (IV)/The 2014 just satisfaction judgment of the European Court of
Human Rights. Hum Rights Law J 34:18–26
Shelton D (2005) Remedies in international human rights law, 2nd edn. OUP, Oxford
Tomuschat C (2010) Individuals. In: Crawford J, Pellet A, Olleson S (eds) The law of international
responsibility. OUP, Oxford
The International Court of Justice
and Provisional Measures Involving
the Fate of Persons
Eva Rieter
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
2 Provisional Measures and General Interest Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
2.2 Non-aggravation of the Dispute: Environment, Peace, Human Rights . . . . . . . . . . . . . . 129
2.3 Recommendations to the Parties in the Interest of Peaceful Settlement . . . . . . . . . . . . . 132
2.4 2007 Onward: Less Interest in the General Interest, Or Simply a More Cautious
Approach? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
3 The Binding Nature of ICJ’s Provisional Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
4 The ICJ’s Approach to Traditional Aspects of Provisional Measures in Cases Involving
the Fate of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4.2 Prima Facie (Lack of) Jurisdiction on the Merits? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4.3 No Overlap with the Main Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
4.4 A Relation to the Main Claim: The Link Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
4.5 Meeting Procedural Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
5 A Stricter Approach: Demanding Evidence of Plausibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
6 Follow-Up by the ICJ on Its Orders for Provisional Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
E. Rieter (*)

https://doi.org/10.1007/978-3-319-94848-5_5
128 E. Rieter
1 Introduction
This chapter1 focuses on the use of provisional measures by the ICJ to protect
interests beyond those of states alone. The ICJ has shown sensitivity toward the
plight of individuals through its use of provisional measures ordered pending
judicial proceedings. This chapter posits that a clarification of this practice is one
step toward answering the question whether the ICJ could contribute to the devel-
opment of human rights law, especially since it is a court of general jurisdiction as
opposed to a human rights court.
The chapter first provides some context by referring to the increasing relevance of
the notion of the public interest in international adjudication. It refers to the types of
situations in which the ICJ has used provisional measures in the general interest, for
example, by often referring to the non-aggravation of the conflict (Sect. 2). It then
moves on to the confirmation of the binding nature of the ICJ’s provisional measures
in its LaGrand judgment (2001).2 The unequivocal confirmation of the binding
nature of its provisional measures has had a significant impact on human rights
adjudication, at least within Europe (Sect. 3). Section 4 discusses examples of the
use of provisional measures, both before and after LaGrand, moving away some-
what from the traditional principle of consent.3 In the examples, the ICJ seemed less
strict about certain traditional aspects of provisional measures exactly in cases
involving the fate of human beings. Thus, pending the case, the principle of
preventing irreparable harm to persons prevailed over traditional inter-State consid-
erations.4 Section 4 discusses four traditional aspects of provisional measures and
shows how the ICJ has at times been less strict in the application of these aspects
when faced with situations involving human beings at risk. The determination, in
LaGrand, that its provisional measures are legally binding has also been argued to
require a more cautious approach toward the use of provisional measures, clinging
more closely to the traditional principle of consent.5 Section 5 discusses a develop-
ment involving the requirement to show a plausible case already at the stage of
provisional measures. This indeed indicates a more limited approach by the Court to
ordering provisional measures, also when human rights are involved. Finally, Sect. 6
1
Earlier drafts were discussed at International Law Association Expert Meeting June 2012, Bellagio
and at the ILA bi-annual meeting in Washington, DC in Apr 2014. A condensed version was
included in the ILA Report 2014, see ILA Report (Part 1), The International Court of Justice and its
Contribution to Human Rights Law, in this Volume. The full chapter was substantially adapted and
extended in light of subsequent developments.
2
ICJ, LaGrand (Germany v US), judgment of 17 June 2001.
3
Id.
4
Cf Rieter (2010), pp. 5–101. Other publications on provisional measures by the ICJ include
Rosenne (2005), He (2010) and Miles (2017).
5
See e.g. Judge Abraham in his separate opinion attached to the Court’s order on provisional
measures in Pulp Mills on the River Uruguay (Argentina v Uruguay), judgment of 13 July 2006,
paras 7–8 (already suggesting the use of a plausibility criterion for this reason, which was
subsequently taken up by the Court in Belgium v Senegal, see Sect. 5 of this chapter).
The International Court of Justice and Provisional Measures Involving. . . 129
explores the question how the ICJ deals with states that ignore its provisional
measures. This is an issue that is not just relevant in the context of ICJ cases
involving the fate of persons, but nevertheless it gains urgency there.6
2 Provisional Measures and General Interest Obligations
2.1 Introduction
Article 41 of the Statute of the International Court of Justice (ICJ) provides in its first
paragraph as follows:
The Court shall have the power to indicate, if it considers that circumstances so require, any
provisional measures which ought to be taken to preserve the respective rights of either
party.
The use of provisional measures to safeguard the essential rights of individuals,

rather than just those of states, could be seen in the context of a general trend toward
greater attention to the “publicness” of public international law and the application of
public international law in the general interest,7 also referred to as community
interest,8 common interest, or common concern of humanity.9
This section examines the importance of non-aggravation of the dispute as an
independent purpose of provisional measures, the specificity and resourcefulness
that the ICJ has at times displayed in the general interest, and also its more cautious
approach.
2.2 Non-aggravation of the Dispute: Environment, Peace,

Human Rights
The ICJ has explicitly referred to common interest, for instance in Belgium v
Senegal, where it invoked the common interest in compliance, an interest shared
6
For more on the ICJ and the assessment of temporal and material urgency see Rieter (2010),
pp. 74–86.
7
In general, see e.g. Komori (2012), pp. 105–126; Komori and Wellens (2009); Gaja (2011).
8
But see in this respect the analysis by Hernández on the ICJ and the concept of “international
community,” finding that the ICJ does not specify the concept or give it any legal consequence.
Hernández (2014), pp. 194–239.
9
See e.g. Simma (1994), Gowlland-Debbas (2011), Tanaka (2011), Cançado Trindade (2010), and
Shelton (2009). For a discussion in the context of cosmopolitanism, see e.g. Benedek et al. (2014).
See also Zyberi (2015).
130 E. Rieter
by the states parties to the Convention Against Torture.10 Yet, as Gleider Hernández
points out, the Court’s approach was “formalistic” as it only referred to erga omnes
partes and discussed “little more.”11
Attention for the “common interest,” at least for concerns by states beyond “just”
their sovereignty, could be perceived to some extent in the ICJ’s order, in 1973, for
France to halt its nuclear tests in the cases brought by New Zealand and Australia. In
this case, the Court considered that the information before it “does not exclude the
possibility that damage to Australia might be shown to be caused by the deposit on
Australian territory of radio-active fall-out resulting from such tests and to be
irreparable.”12 At the time, environmental protection, as a general interest, was not
yet generally considered to constitute a reason for the use of provisional measures,
making this the first occasion. At the same time, it could also be an expression of
humanization since the applicant states referred to potential danger to the state and
its people, which would be irreparable, and to anxiety caused to persons.13 Thus, the
possible damage to the state referred to in the provisional measures may be related
more to the risks to life and health. In any case, this is still the only occasion thus far
in which an international adjudicator issued a provisional measure order to halt
nuclear tests.14
There have been various other occasions, however, where the ICJ ordered
provisional measures for the non-aggravation of the dispute, which was in the
general interest.15 These occasions indicate the Court’s concern for the preservation
of its own judicial function in the peaceful settlement of disputes.16 They aim to
contribute to the maintenance of peace and to protect the proper administration of
justice17 and, as Kolb puts it, have tended “in the direction of a kind of ‘public
10
ICJ, Questions relating to the obligation to prosecute or extradite (Belgium v Senegal), judgment
of 20 July 2012, paras 68 (common interest) and 69 (entitlement to make a claim).
11
Hernández (2014), p. 225. The judgment, he notes, “is based on the narrowest possible interpre-
tation to the scope of right of protection based on violations of obligations erga omnes, situating
them purely within a treaty regime.” Id, 228.
12
ICJ, Nuclear Tests cases (Australia v France and New Zealand v France), order for provisional
measures of 22 June 1973, para 29. Cf Rieter (2010), p. 20.
13
measures of 22 June 1973, para 27.
14
See HRCtee Vaihere Bordes and John Temeharo v France, 22 July 1996, CCPR/C/57/D/645/
1995 (the Committee discussed the request for provisional measures during two consecutive
sessions but decided not to use them. It later declared the case inadmissible for not having met
the victim requirement). Cf (Former) European Commission on Human Rights, Tauira et al. v
France, 28204/95, 04 Dec 1995 (the President denied two requests for interim measures and the
Commission as a whole did as well. The case was later declared inadmissible, mainly arguing that
the victim requirement had not been met, yet the decision also indicates the Commission’s difficulty
in dealing with issues of scientific evidence). Cf Rieter (2010), pp. 535–540.
15
See e.g. Rieter (2010), pp. 16–39. Cf Buggenhoudt (2011), pp. 78–80; Kolb (2013), p. 617.
16
See also Kolb (2013), p. 616.
17
Kolb (2013), pp. 616, 618.
interest’ mission to protect and safeguard the fundamental norms of general inter-
national law.”18
In addition to the maintenance of peace and security and environmental protec-
tion,19 various aspects of orders for provisional measures have shown awareness
specifically of the fate of human beings. Some of the conflicts between states in
which the ICJ orders provisional measures may directly concern the rights of
individuals and the (human rights and humanitarian law) obligations of states toward
them. In such cases, its provisional measures may either aim to halt measures that
could result in irreparable harm to a large group of people (armed activities,20
nuclear tests,21 etc.) or aim at the (diplomatic) protection of specific individuals
(halt execution of a death sentence22 and release persons held hostage).23
In some ICJ cases, states explicitly invoke human rights treaties. Even if they act
based on diplomatic protection rather than erga omnes partes obligations, they in
fact ask the ICJ to interpret state obligations under human rights treaties and,
therefore, to consider the rights of the individuals concerned. In such cases, the
assessment of the risk involved and of the role of the beneficiaries may differ from
the approach normally taken by the ICJ in its use of provisional measures and
approximate more closely the provisional measures taken by human rights adjudi-
cators. At the same time, states may sometimes be involved in legal disputes that
have developed into military conflict, with the population caught in the middle. If
states bring the dispute before the Court and request provisional measures, not
particularly invoking the rights of the individuals, the ICJ nevertheless considers
18
Kolb (2013), p. 619, with some references to concerns that have been expressed in this regard.
19
For another tribunal, the Law of the Sea Tribunal (“ITLOS”), environmental protection was
explicitly recognized as one of the aims of provisional measures. Article 290 (1) of the UN
Convention on the Law of the Sea (“UNCLOS”) provides the criterion that the provisional
measures prescribed by ITLOS must be “appropriate under the circumstances to preserve the
respective rights of the parties to the dispute or to prevent serious harm to the marine environment.”
Thus, it gives the Tribunal the authority to consider a general interest going beyond the rights of the
Parties to the conflict. Moreover, rather than to the criterion of preventing irreparable harm, Art
290 (1) UNCLOS refers to the more lenient criterion of preventing serious harm. This is also the
criterion generally used in international environmental law. In ITLOS, Mox Plant (Ireland v United
Kingdom), order of 03 Dec 2001, the tribunal ordered the states to consult to exchange information;
monitor risks and “devise, as appropriate, measures to prevent pollution of the marine environment
which might result from the operation of the MOX plant,” para 89 under 1c. See also Rieter (2010),
pp. 21, 76, 86.
20
E.g. ICJ, DRC v Uganda, order of 01 July 2000.
21
measures of 22 June 1973.
22
ICJ, Vienna Convention on Consular Relations (Paraguay v US) (Breard case), order of 9 Apr
1998; LaGrand (Germany v US), order of 3 Mar 1999; Avena I (Mexico v US), order of 05 February
2003; Avena II (Mexico v US), order of 16 July 2008; Jadhav case (India v Pakistan), order of
18 May 2017.
23
ICJ, Hostages Case: US Diplomatic and Consular Staff in Tehran (US v Iran), order for
provisional measures of 15 Dec 1979.
132 E. Rieter
their basic rights. As a result, the provisional measures ordered may differ from those
requested.24
2.3 Recommendations to the Parties in the Interest

of Peaceful Settlement
There is another factor in the Court’s approach to orders for provisional measures,
which also shows its concern for the general interest. This is its practice of giving a
recommendation to the parties simply based on its role within the UN in the context
of peaceful settlement, also when it concluded that it had no prima facie jurisdiction
to grant a specific request for provisional measures.25 In Ukraine v Russia (2017),
for instance, the ICJ reminded the parties of their obligation to implement the Minsk
Agreements, expecting them, “through individual and joint efforts, to work for the
full implementation” of the “package of measures” agreed upon in that Agreement
“in order to achieve a peaceful settlement of the conflict.”26
2.4 2007 Onward: Less Interest in the General Interest, Or

Simply a More Cautious Approach?
When the case involves the fate of human beings, the Court seems to be more
resourceful in drafting orders for provisional measures different from those
requested, especially, but not exclusively, in the context of a (latent) armed conflict.
It refers to the obligations of both parties and to the obligation not to aggravate the
dispute, sometimes invoking its task in the maintenance of peace and security.27 Yet
in its 2007 Pulp Mills order, the ICJ decided not to use provisional measures “just” to
prevent non-aggravation of the case before it, invoking the argument that it had
not done so before. It would not order provisional measures to prevent aggravation
without first having established a direct link with the claim.28 Nevertheless, as Judge
Buergenthal has pointed out, “[t]he Court must [. . .] be deemed to have the requisite
powers vested in courts generally, powers that in my view find expression in Article
41 of its Statute, to ensure that the orderly adjudication of cases pending before it is
24
Cf Sect. 4.4 of this chapter on the link requirement.
25
For a discussion of earlier occasions, see e.g. Rieter (2010), pp. 49–51; Thirlway (2013),
pp. 1791–1794.
26
ICJ, Ukraine v Russia (2017), order of 19 Apr 2017, para 104.
27
See e.g. Thirlway (2013), pp. 1802–1803. See also Rieter (2010), pp. 7, 47–48, 98. Cf. Sect. 4.4 of
this chapter.
28
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), provisional measures, order of
23 Jan 2007, paras 49–50.
not aggravated or undermined by extrajudicial coercive measures resorted to by one

party to the dispute against the other.”29
It is clear, also from cases subsequent to 2007, that the ICJ to some extent
continues to be concerned about the general interest. In Costa Rica v Nicaragua
(2011), the ICJ ordered the parties to refrain from sending or maintaining civilians,
security forces, and police in the disputed border area. Yet under strict conditions, it
allowed Costa Rica to send civilian environmental teams into the area to meet its
treaty obligations under an environmental treaty.30 The Court dealt with this dispute
between 2010 and 2015.31 The purpose to prevent further aggravation of the dispute
before the Court and to prevent civilian casualties32 reflects humanization in terms of
the type of provisional measures, even if the Court requires a link between the
provisional measures and the claim on the merits.33 The specificity of this order also
shows a concern about another issue of public interest, namely the prevention of
environmental degradation.34 Here, there is a clear relation with the general interest
of preventing irreparable harm to the environment.35 In fact, some judges also
29
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), provisional measures, order of
23 Jan 2007, Declaration of Judge Buergenthal, para 8. Cf Palchetti (2008), p. 636; Miles
(2017), p. 212.
30
order for provisional measures of 8 Mar 2011. See also the discussion among some of the judges as
to whether the more obvious territorial claims of the one state should be reflected in the provisional
measures, on the one hand, and the best way to meet the obligations of both states in terms of
environmental protection, on the other hand.
31
Meanwhile, in Apr 2013, the Court joined the proceedings with the proceedings in the case
concerning Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa
Rica).
32
order for provisional measures of 8 Mar 2011, paras 75–76. See in particular in para 75: “whereas
this situation moreover gives rise to a real and present risk of incidents liable to cause irremediable
harm in the form of bodily injury or death.”
33
See e.g. ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), order of 8 Mar 2011, Declaration of Judge Koroma, para 4: “I agree that there is a
link between the measures sought and the rights of sovereignty that the Applicant claims over the
disputed territory (order, para 60). It is also possible that certain activity by the Respondent in the
disputed area could lead to conflicts resulting in irremediable physical harm to individuals.”
34
With a special role for the Ramsay Convention on the protection of wetlands and its Secretariat.
35
See e.g. ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), order of 8 Mar 2011, Declaration of Judge Greenwood, para 13: “The report of
the advisory mission established by the Ramsar Secretariat has, however, convinced me that there is
a risk of irreparable environmental damage to the disputed area, which constitutes part of the
wetland registered by Costa Rica under the Ramsar Convention.”
134 E. Rieter
argued in this light that the Court should have been more specific and should have
ordered both parties to cooperate in the common environmental interest.36
This situation was followed up by the Court in response to further requests for
provisional measures. Costa Rica’s first attempt, of May 2013, to achieve a modi-
fication of the measures, failed.37 Then in September, it requested new measures, and
in November, the Court indeed ordered them, with considerable implications mainly
for Nicaragua.38 The order of July 2013, denying Costa Rica’s request for more
precision in provisional measures, illustrates the Court’s caution with regard to the
use of provisional measures. Its subsequent order of November 2013 shows consid-
erably more precision on the obligations and rights of each state than the initial order
of 2011. This could be explained by concern for the environment, and/or by concern
for the administration of justice, considering the failure to respect the 2011 order.39
The merits judgment is predominantly one on sovereignty rights and treaty obliga-
tions.40 Indeed, specific concern for the general interest appears more pronounced at
the stage of provisional measures than at the merits.41
36
See ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), order of 8 Mar 2011, separate opinion of Judge Sepúlveda-Amor, para 4, 14–38
(discussing the risk of irreparable harm and the interconnectedness of the areas, requiring cooper-
ation between the parties); and Judge Greenwood, para 15. See also the Declaration by Judge Xue
expressing concern about prejudgment, but indicating that she would have been in favour of a
different type of provisional measure ordering both states to cooperate to prevent irreparable harm
to the environment. Similarly, the Declaration by Judge ad hoc Guillaume.
37
order of 16 July 2013.
38
order for new provisional measures of 22 Nov 2013. Nicaragua was to fill the drench, prevent
entrance of personnel & private persons under its control from the disputed territory and cause their
removal if present. With regard to the obligations of Nicaragua, the order was unanimous. In
addition, Costa Rica could take “appropriate measures” based on the obligations deriving from the
Ramsay Convention. Judge ad hoc Guillaume voted against this element of the order. The Court did
specify conditions for this: it could do so only after consultation with the Secretariat of the Ramsay
Convention and after giving Nicaragua prior notice. Moreover, the measures had to be appropriate
and only to the extent necessary to prevent irreparable prejudice to the disputed territory. More
specifically, it was to avoid any adverse effects on the San Juan River (a specific concern for
Nicaragua).
39
Cf Sect. 6 of this chapter, on follow-up.
40
On the discussion on coincidence of part of the request for provisional measures with the claim in
the merits, see Sects. 4.3 and 4.4 of this chapter.
41
The Court found, by 14 votes to two, that Costa Rica had sovereignty over the disputed territory.
Judge Gevorgian and Judge ad hoc Guillaume voted against. The Court defined “disputed territory”
in paras 69–70. It found unanimously that “[. . .] by excavating three caños and establishing a
military presence on Costa Rican territory, Nicaragua has violated the territorial sovereignty of
Costa Rica,” as well as the obligations incumbent upon it under the order indicating provisional
measures issued by the Court on 8 Mar 2011. It also found, unanimously, that Nicaragua had
breached Costa Rica’s rights of navigation on the San Juan River pursuant to the 1858 Treaty of
Limits (for the reasons given in paras 135–136 of the judgment) and that “Nicaragua has the
obligation to compensate Costa Rica for material damages caused by Nicaragua’s unlawful
Another provisional measures order where the Court displayed concern for the
general interest also dates from 2011. Temple II (Cambodia v. Thailand) deals with
both the prevention of casualties and the protection of cultural heritage. The ICJ used
provisional measures in the context of an “Article 60 ICJ Statute proceeding.”42
Apart from the traditional order that both parties were to refrain from actions that
could aggravate the dispute, the Court ordered that no irreparable harm to persons
and property should be caused pending the proceedings.43 This is a traditional
purpose, but it also indicates humanization. What is most interesting is that the ICJ
also made various specifications.44 For instance, both states were to withdraw their
military personnel to create a “provisional demilitarised zone.” In fact, this zone
extended beyond the disputed territories, meaning that both states should withdraw
from part of their own territory as well. This was a controversial aspect of the order,
at least according to the dissenting judges,45 and to scholars,46 but in December 2011
both sides did agree to withdraw troops from the disputed area.47 In addition, the
order noted that Thailand should not obstruct free access to the temple itself and that
activities on Costa Rican territory.” At the same time, regarding the claims by Nicaragua against
Cost Rica, it found, also unanimously, that “Costa Rica has violated its obligation under general
international law by failing to carry out an environmental impact assessment concerning the
construction of Route 1856.” ICJ, Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v Costa Rica), judgment of 16 Dec 2015, ICJ Reports 2015, 665.
42
The ICJ did so once before, in Avena II, Request for the interpretation of the Avena Judgment of
31 March 2004 (Mexico v US), order for provisional measures of 16 July 2008, see para 4.2 of this
chapter.
43
the Temple of Preah Vihear (Cambodia v Thailand) (“Temple II”), order for provisional measures
of 18 July 2011, paras 53, 61.
44
See also Traviss (2012), pp. 340–344; Akande (2011).
45
ICJ, Temple II, supra fn. 43, order for provisional measures of 18 July 2011. Dissenting opinions
by President Owada and Judges Al-Khasawneh, Xue and Donoghue (see also Sect. 4.2 of this
chapter on jurisdiction) and Judge ad hoc Cot. See in particular the opinion by Judge Xue. Her
argument was that ‘[s]ince this is a case concerning interpretation of the Court’s judgment, at this
stage there is no real need for the Court to identify an area for demilitarization. So far as the
protection of the Temple is concerned, securing no military actions from both sides in the area of the
Temple would suffice to preserve the rights of the Parties in the main proceedings. Otherwise, the
Court could still have, in my opinion, indicated a similar provisional measure, as in the Burkina
Faso/Republic of Mali case, by asking the Parties in the present case, with the co-operation of the
Association of Southeast Asian Nations (ASEAN), to determine first by themselves the positions to
which their armed forces should be withdrawn. Failing such agreement, the Court could then, if
necessary, draw such lines by means of an Order.” Reports of judgments 2011, p. 78.
46
See e.g. Miles (2017), p. 183; Ku (2011). But see e.g. Traviss (2012), pp. 333–339;
Akande (2011).
47
See e.g. CNN (2011), referring to a deal made by the two states to implement the Court’s order,
and Al Jazeera (2011).
136 E. Rieter
both parties should continue to cooperate within ASEAN and allow ASEAN
observers access to the conflict area.48 In sum, next to the lives of human beings,
in Temple II and Costa Rica v. Nicaragua, the ICJ also appears to take into account
other matters of general interest, such as cultural heritage and environmental pro-
tection, respectively.
Equally, some years later, the Court again ordered provisional measures in the
general interest. This time it did not concern the risk of casualties—although it was a
case where this risk was preeminent—but it involved other human rights claimed
under a specific treaty. In a 2017 order involving the application of the UN
Convention on the Elimination of Racial Discrimination (CERD),49 while the ICJ
did not deal with the violations of the right to life, of major concern in this conflict,50
it did deal with other rights “of such a nature that prejudice to them is capable of
causing irreparable harm.”51 The ICJ ordered the Russian Federation to “[r]efrain
from maintaining or imposing limitations on the ability of the Crimean Tatar
community to conserve its representative institutions, including the Mejlis.”52 It
also ordered Russia to ensure the availability of education in the Ukrainian lan-
guage.53 Like in Temple II, one of the interests was the protection of culture,
although here in the context of participation rather than of the protection of cultural
artifacts. In a way, the ICJ orders moved from protecting cultural heritage, in Temple
48
Cf ICJ, Temple II, supra fn 43, judgment of 11 Nov 2013, where the ICJ found that Cambodia has
sovereignty over the whole territory of the promontory of Preah Vihear, meaning that Thailand was
obliged to withdraw. The ICJ found it had no jurisdiction to rule on a nearby hill.
49
ICJ, Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of all forms of Racial Discrim-
ination (Ukraine v Russian Federation), order of 19 Apr 2017 (“Ukraine v Russia”).
50
In the context of an earlier order for provisional measures linked to CERD, it did appear to link the
risks to life with racial discrimination. It noted that the rights were of such nature that prejudice
against them “could be irreparable.” Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), order of 15 Oct 2008, para
142. It noted: “the right to security of persons and of the right to protection by the State against
violence or bodily harm (Article 5, paragraph(b)) could involve potential loss of life or bodily injury
and could therefore cause irreparable prejudice; whereas the Court further considers that violations
of the right to freedom of movement and residence within a State’s borders (ibid, paragraph(d)(i))
could also cause irreparable prejudice in situations where the persons concerned are exposed to
privation, hardship, anguish and even danger to life and health; and whereas the Court finds that
individuals forced to leave their own place of residence and deprived of their right of return could,
depending on the circumstances, be subject to a serious risk of irreparable prejudice.” The Joint
dissenting opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna and Skotnikov criticized the imprecise nature of this observation, but only substantively
addressed the issue of the irreparability of the expulsions, para 21. On this order see also Thirlway
(2013), pp. 1798–1799; Miles (2017), p. 184.
51
ICJ, Ukraine v Russia (2017), supra note 49, para 96.
52
By a vote of 13-3.
53
The Court voted unanimously on this.
II (2011), to protecting cultural survival, in Ukraine v Russia (2017), which is not

surprising given the subject matters dealt with by CERD.54
Thus, while in some respects its order in Ukraine v Russia (2017) appears rather
limited and even problematic,55 the ICJ’s approach to preventing irreparable harm to
the claim is still one also concerned with the general interest and not just with state
consent. Obviously, the claim itself was about human rights, but this part of the order
does display awareness of the human rights situation and of the importance of
maintaining the possibility of peaceful settlement of the dispute. While the human
rights case law by specific human rights bodies is clearly converging, enhancing the
persuasiveness of provisional measures, the practice of the ICJ still appears to move
in a similar direction, although very cautiously.56
The legal status of provisional measures is one issue where convergence has
occurred. The next section discusses the ICJ’s LaGrand judgment on the binding
nature of its provisional measures.
3 The Binding Nature of ICJ’s Provisional Measures
In its judgment in LaGrand (2001), the ICJ finally determined that its provisional
measures were legally binding.57 This decision did not seem to depend on the nature
of the rights to be protected. Instead, it applies a purposive interpretation to deal with
the ambiguities of Article 41 of the ICJ Statute. The Court notes that the French and
English texts appeared to be different. One might interpret the English text in the
sense that it would be nice if the state would respect the provisional measures, while
in the French text provisional measures must be taken (“doivent être prises”).58 The
54
For examples of provisional measures by the human rights adjudicators in the context of cultural
survival and political participation, see Rieter (2010), pp. 451–500 and 565–568 respectively.
55
See Sect. 6 of this chapter.
56
Based on an earlier research, I concluded that there was a convergence in approaches between the
various human rights adjudicators about provisional measures that involved rights identified by the
adjudicators for their elevated status. At the time, even the ICJ, as a court of general jurisdiction,
appeared to confirm this convergence, Rieter (2010). In my view, this commonality of approaches
enhanced the persuasiveness of provisional measures. See also Rieter (2012), pp. 165–198. In 2016,
Cameron Miles, who examined the practice of the ICJ, ITLOS and arbitral and investment tribunals,
concluded that while there is “no uniform checklist” for provisional measures, there exists a
convergence of approaches. He also suggested that “a commonality of approach” would improve
the acceptance of provisional measures by the parties. Moreover, it would “improve the prospects
for the development of a harmonious system of international dispute settlement – to the benefit of
international society as a whole.” Miles (2017), pp. 475–476.
57
ICJ, LaGrand (Germany v US), judgment of 27 July 2001. Of course, the Court’s LaGrand
judgment is significant in many respects, including in that it first recognized individual rights (if not
human rights) in the Vienna Convention on Consular Relations.
58
ICJ, LaGrand (Germany v US), judgment of 27 July 2001, para 100.
138 E. Rieter
Court points out that these texts are equally authentic.59 How does one deal with two
apparently conflicting authentic texts? Based on Article 33(4) of the Vienna Con-
vention on the Law of Treaties, one needs to resort to general rules of treaty
interpretation: text, context, object, and purpose, with an emphasis on object and
purpose. The interpretation must be done in a way that best reconciles the two
authentic texts, considering object and purpose. The object and purpose of the ICJ
Statute as such is to enable the Court to fulfill its function, and Article 41 of the ICJ
Statute was included based on the necessity to safeguard the rights of the parties as
determined by the final judgment.
The Court added that a principle already recognized by its predecessor also
underscored why provisional measures are binding: parties to a conflict before the
Court must abstain from taking steps that are prejudicial to resolving the conflict
(e.g., anticipate or prejudge the outcome), and, more generally, the parties should not
take any steps that might aggravate the conflict.60
It followed from the object and purpose of the Statute and from “the terms of
Article 41 when read in their context” that the power to indicate provisional
measures entailed “that such measures should be binding, inasmuch as the power
in question is based on the necessity, when the circumstances call for it, to safeguard,
and to avoid prejudice to, the rights of the parties as determined by the final judgment
of the Court.”61 The Court concluded that “[t]he contention that provisional mea-
sures indicated under Article 41 might not be binding would be contrary to the object
and purpose of the Article.”62 It noted that it has frequently indicated orders designed
to avoid aggravating or extending disputes, which it had “indicated with the purpose
of being implemented.”63 Since the Court’s judgment in LaGrand, its provisional
measures cannot be considered other than legally binding.64
A court of this stature, with authority to transpose and confirm the existence of
general principles of law and with a potential grasp over the widest range of
international treaties and customary law, referred to the inherent function of adjudi-
cators to order preservation of the status quo pending the proceedings. It confirmed
the binding nature of its provisional measures not only by reference to this inherent
function, but in addition it invoked the general principle of international law that
states must not allow any step to be taken that might aggravate the dispute.
59
ICJ, LaGrand (Germany v US), judgment of 27 July 2001, para 101. This is apparent from Art
111 UN Charter; and the ICJ Statute forms an integral part of the Charter according to Art 92.
60
ICJ, LaGrand (Germany v US), judgment of 27 July 2001, para 103, referring to PCIJ, Electricity
Company of Sofia and Bulgaria, order 05 Dec 1939, PCIJ Series AIB, No 79, 199 and to a range of
ICJ orders referring to the purpose of avoiding aggravation of the dispute.
61
ICJ, LaGrand (Germany v US), judgment of 27 Juyl 2001, para 102.
62
Ibid.
63
ICJ, LaGrand (Germany v US), judgment of 27 July 2001, para 103. It considered that there were
no other sources or interpretations contradicting the Court’s conclusions as drawn from the terms of
Art 41, read in their context and in the light of the object and purpose of the Statute. Art 94 UN
Charter did not prevent orders made under Art 41 from having a binding character.
64
See also, e.g. Oellers-Frahm (2012); Brown (2007), pp. 128–129.
The unequivocal confirmation of the binding nature of the Court’s provisional

measures in LaGrand makes it more difficult for states to deny the binding nature of
these measures also in the context of provisional measures indicated by other
international adjudicators. Indeed, the LaGrand judgment played an important role
in the European Court of Human Rights’ Mamatkulov judgment, where this Court
finally declared its provisional measures legally binding.65 The question is, however,
whether the ICJ’s finding that its provisional measures are legally binding has had an
impact on the type and extent of its own decisions ordering them, for instance in the
Court becoming more cautious in invoking a power that is now confirmed to be
serious. Section 4 discusses situations, both before and after the LaGrand judgment,
where the ICJ has sometimes been willing to order provisional measures, while Sect.
5 discusses a development indicating an indeed more cautious approach toward the
use of provisional measures.
4 The ICJ’s Approach to Traditional Aspects of Provisional

Measures in Cases Involving the Fate of Individuals
4.1 Introduction
The ICJ has been less strict in its application of some traditional aspects of provi-
sional measures in cases involving human beings at risk. The aspects discussed here
are, firstly, the insistence on having established prima facie jurisdiction rather than
just that there is no prima facie lack of jurisdiction (Sect. 4.2); secondly, the
insistence on having no overlap between the provisional measures and the main
claim (Sect. 4.3); thirdly, the insistence that, while there should be no complete
overlap, there should at least be some relation to the main claim (Sect. 4.4); and
fourthly, the insistence on meeting strict procedural requirements (Sect. 4.5).
4.2 Prima Facie (Lack of) Jurisdiction on the Merits?
The authority of the supervisory body to use provisional measures is a prerequisite

for their use, but the possibility of jurisdiction on the merits simply relates to the
appropriateness of their use, not to the authority to use them. For the ICJ, the
65
ECtHR (Grand Chamber), Mamatkulov and Askarov v. Turkey, 46827/99, judgment of 15 Dec
2004 (“Mamatkulov”). See more closely on the reasoning in Mamatkulov e.g. Rieter (2010),
pp. 712–728. Cf on cross-referencing and apparent mutual influence the ILA Report, see ILA
Report (Part 1), The International Court of Justice and its Contribution to Human Rights Law, in
this Volume.
140 E. Rieter
authority to use provisory measures is based on Article 41 of the ICJ Statute.66 Some
authors consider that the determination of prima facie jurisdiction should always be
the first step.67 Others have pointed out that “the probable existence of merits
jurisdiction is merely one of the considerations relevant to deciding whether to
exercise [the jurisdiction to indicate measures, but] this jurisdictional issue has no
logical or necessary priority.”68 They argue that the order of examination depends on
judicial economy, “basing a refusal of a request on the simplest available ground.”69
In any case, once the ICJ discusses the required jurisdiction on the merits, it is
important to identify how much evidence it requires at this stage.70
Inherent in the notion of provisional measures is that they must be decided upon
before determining jurisdiction on the merits. The reason for this is the aim to
provide a fast remedy by indicating provisional measures. Certainly, jurisdictional
questions are important, but they are not urgent. The question, on the other hand,
whether to order provisional measures is both important and urgent.71 For an
appropriate use of provisional measures, the question is whether it is sufficient for
the applicant state to show that there is no prima facie lack of jurisdiction or whether
it should show that the ICJ has indeed prima facie jurisdiction on the merits. The UN
Human Rights Committee (HRCtee), for instance, considers it sufficient for a
petitioner to show that there is no prima facie lack of jurisdiction at the stage of
provisional measures. Dissenters to a decision declaring that the Committee has
jurisdiction had previously agreed with the use of provisional measures.72 They
agreed despite the fact that they thought the Committee had no jurisdiction.73
While the ICJ now refers to a requirement to establish prima facie jurisdiction, its
approach has been ambiguous in the past. Its general formulation was that the
provisions invoked by the applicant state “appear, prima facie, to afford a basis on
66
Moreover, the Court has established that in cases concerning the interpretation of existing
judgments, article 60 of the ICJ Statute provides the authority to use provisional measures. For a
critique, see Judge Donoghue in ICJ, Temple II: Request for interpretation of the judgment of
15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v Thailand), order for
provisional measures of 18 July 2011, Dissenting Opinion of Judge Donoghue.
67
See e.g. He (2010), p. 47; Miles (2017), pp. 148–149.
68
Thirlway (2013), pp. 1772, 1776.
69
See e.g. Thirlway (2013), p. 1773; see also Kolb (2013), p. 624, still noting that the Court
normally first looks into the question of its prima facie jurisdiction.
70
For a discussion of the assessment of prima facie admissibility of a claim see e.g. Miles (2017),
pp. 164–166; Thirlway (2013), p. 1779; Kolb (2013), pp. 624–625.
71
See also Sztucki (1983), pp. 253–254.
72
See HRCtee, Kennedy v Trinidad & Tobago, 26 Mar 2002, CCPR/C/74/D/845/1998.The majority
determined that it had jurisdiction because it found that the reservation by the state, excluding death
row inmates from the right of individual petition, was illegal and that the Committee could
determine the consequences of this illegal reservation. It considered that the ratification of the
Optional Protocol applied without the benefit of the illegal reservation. Cf Rieter (2010),
pp. 731–753.
73
Cf Rieter (2010), pp. 731–753.
which the jurisdiction of the Court might be established.”74 The additional words
“appear” and “might be” (or also “could be”) exhibit enough circumspection to
conclude that prima facie jurisdiction need not necessarily be positively established.
Kolb refers to the question of prima facie jurisdiction as “no obvious lack of
jurisdiction, jurisdiction existing on balance of probabilities.”75 In practice, at
times, the ICJ found that it could order provisional measures when there was no
lack of prima facie jurisdiction, or no manifest lack of jurisdiction, and at other times
it did positively require evidence of prima facie jurisdiction.76
Indeed, different from the human rights adjudicators, the ICJ has regularly taken a
strict approach, requiring prima facie jurisdiction, also in cases where human lives
were at stake pending the proceedings, for instance in the Great Lakes cases. In DRC
v Rwanda (2002),77 the ICJ was very strict in denying a request for provisional
measures, while it could certainly have been argued that there was no prima facie
lack of jurisdiction, let alone a manifest absence of jurisdiction. Given the fact that in
DRC v Rwanda there were several ICJ judges who would have been open to a
similar approach to reservations as taken by the human rights adjudicators, and given
the fact that therefore Rwanda’s reservation to the Genocide Convention did not
result in a manifest absence of jurisdiction, it would have fitted the trend of
increasing humanization in the use of provisional measures had the ICJ ordered
provisional measures. In my view, the majority was subsequently mistaken by
simply accepting an illegal reservation to the Genocide Convention, or by consid-
ering this a “procedural” reservation, which was therefore not illegal. While the case
was pending, the use of provisional measures would have been appropriate.
By contrast, in some cases following DRC v Rwanda, the ICJ has been less strict
and ordered provisional measures. It simply required that there was no manifest
absence of jurisdiction.78 For one, in Avena II, it has applied provisional measures
74
See e.g. ICJ, Hostages Case: US Diplomatic and Consular Staff in Tehran (US v Iran), order for
provisional measures of 15 Dec 1979, para 15.
75
Kolb (2013), p. 624.
76
See also the distinctions by Oellers-Frahm (2012), p. 1039: “[. . .] certain jurisdiction, quasi-
certain jurisdiction, prima facie existing jurisdiction to prima facie lacking jurisdiction, doubtful
jurisdiction, manifestly lacking jurisdiction, impossible jurisdiction.”
77
In the one case ordering provisional measures, in the other not. In Armed activities (DRC v
Uganda), order of 1 July 2000 it pointed out that the Court need not finally satisfy itself that it has
jurisdiction on the merits; but it can only use provisional measures if the provision invoked appear
prima facie to afford a basis on which the jurisdiction of the Court might be founded, para 33: here
the declarations under 36(2) prima facie constituted such a basis. In ICJ Armed Activities on the
Territory of the Congo (New Application: 2002) (DRC v Rwanda), order of 10 July 2002 it used the
same criterion and denied the DRC’s request for provisional measures; see also Judgment on
jurisdiction and admissibility, 10 February 2006.
78
See e.g. ICJ, Avena II, Request for the interpretation of the Avena Judgment of 31 March 2004
(Mexico v US), order for provisional measures of 16 July 2008, as discussed below, and ICJ,
Application of the international convention on the elimination of all forms of racial discrimination
(Georgia v Russian Federation), order for provisional measures of 15 Oct 2008.
142 E. Rieter
pending the interpretation proceedings of a prior judgment as well.79 In this case, the
Court ordered provisional measures for the first time in the context of a request for the
interpretation of an earlier ICJ judgment (Avena I), under Article 60 of the ICJ Statute.
There was no other basis for jurisdiction since the US was no longer a party to the
Optional Protocol to the Vienna Convention on Consular Relations (VCCR).80 It
ordered the US to “take all measures necessary to ensure” that three specific Mexican
nationals “are not executed pending judgment on the Request for interpretation sub-
mitted by the United Mexican States, unless and until these five Mexican nationals
receive review and reconsideration” consistent with the Court’s Avena judgment of
2004.81 Moreover, in addition to the question whether provisional measures may be
ordered based on Article 60 of the ICJ Statute in the first place, there was another rather
strong claim that the ICJ had no jurisdiction to entertain the case under this article. The
decision to order these measures was made despite the US argument that there was in
fact no dispute as to the meaning and scope of the Court’s Avena judgment, as required
by Article 60 of the ICJ Statute. The US argued that the dispute was not about
interpretation—as it agreed with Mexico that it was facing an obligation of result—
but about implementation. The majority of the Court (five judges dissented) considered
that “[. . .] while it seems both Parties regard paragraph 153(9) of the Avena Judgment
as an international obligation of result, the Parties nonetheless apparently hold different
views as to the meaning and scope of that obligation of result, namely whether that
understanding is shared by all United States federal and state authorities and whether
that obligation falls upon those authorities.”82 As it considered that it could deal with
the request for interpretation, the Court was able to order provisional measures.
Indeed, the fact that something constitutes a dispute about implementation does not
rule out that it is also a dispute on interpretation. The contradictory behavior of another
state’s executive, as referred to in the Avena II order, may concern this state’s public
expressions of legal commitment. At the stage of provisional measures, however, the
fact that the difference in public expressions may be explained by the question whether
they are intended for a domestic or for a “foreign,” or international, audience should
not in itself mean that there is not a dispute on interpretation.
Yet subsequently, in its judgment on jurisdiction, the ICJ reviewed more closely
whether there was a dispute and whether there was a difference of opinion between
the parties.83 It concluded that it could not accede to Mexico’s request after all. It
79
Yet see the dissent by Judge Donahue in Temple II (Cambodia v Thailand), also involving Art
60 proceedings. She was not yet on the Court when it decided on the Avena II order. In Temple II
she questioned whether provisional measures should be used in the context of Art 60 proceedings in
the first place. See also Thirlway (2013), pp. 1789–1791; Miles (2017), pp. 417–423.
80
The US withdrew from the Optional Protocol after the ICJ’s Avena judgment. See
e.g. Liptak (2005).
81
ICJ, Avena and Other Mexican nationals (Mexico v US), judgment of 31 Mar 2004.
82
ICJ, Avena II, Request for the interpretation of the Avena Judgment of 31 March 2004 (Mexico v
US), order for provisional measures of 16 July 2008, para 55.
83
ICJ, Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena
and Other Mexican Nationals (Mexico v US), judgment of 19 Jan 2009. See the discussion in paras
21–47.
noted that indeed a “variety of factors suggest that there is a difference of perception
that would constitute a dispute under Article 60 of the Statute” but that if there
should be such a dispute, Mexico’s position could only be discerned by inference,
while Article 98 (2) of the Rules of Court requires that “the precise point or points in
dispute as to the meaning and scope of the judgment shall be indicated” in the
request for interpretation of a judgment.84 Moreover, even if a dispute could be
inferred—a dispute about the question whether the “obligation of the United States
under the Avena Judgment was directly binding upon its organs, subdivisions or
officials”85—Avena I in fact did not address the issue of direct effect. Therefore, this
dispute could not give rise to the interpretation requested by the United Mexican
States.86
While at the stage of determining jurisdiction the ICJ appeared to have been
correct in declaring a lack of jurisdiction to continue the case in Avena II, there is no
need to determine jurisdiction definitively at the stage of provisional measures.
Therefore, it could be argued that even in Avena II, provisional measures were
warranted because there was no manifest absence of jurisdiction and a thorough
discussion of the crucial issues required more time. Nevertheless, at the stage of
provisional measures, in Avena II jurisdiction on the merits seemed rather more
doubtful than in DRC v Rwanda. In that light, I would argue that the use of
provisional measures would certainly have been appropriate in DRC v Rwanda.87
When arguing for the use of a less demanding standard for showing the possi-
bility of jurisdiction on the merits, a relevant question remains: what if the Court later
declares that it has no jurisdiction to deal with the case on the merits? For the human
rights adjudicators, such as the European Court of Human Rights, this happens
sometimes because the case becomes moot after the state complied with provisional
measures and it strikes the case off its list of cases. Those circumstances may indicate
a very effective use of provisional measures, which not only ensures non-
aggravation but also triggers a resolution of the conflict so that there is no longer a
need to maintain the case.88 It also happens that an adjudicator uses provisional
measures and later accepts information by the state to the effect that the provisional
measures are not necessary or no longer necessary. The adjudicator then lifts the
provisional measures. It equally occurs at times that an adjudicator finds that it has
no jurisdiction or that there is no violation on the merits. This was the case for the ICJ
84
Id, para 44.
85
Id, para 41.
86
For a discussion of how the Court nevertheless followed up on the non-compliance with its Avena
II order, in this judgment, see Sect. 6.
87
Elkind (1981) argues that in terms of jurisdiction on the merits the only prerequisite for the use of
provisional measures is that there is jurisdiction ratione personae, while with regard to jurisdiction
ratione materiae the Court should only satisfy itself that there is no manifest absence of jurisdiction.
See Elkind (1981), p. 177.
88
Solving a case for one particular applicant also often seems a convenient approach for states,
allowing them to avoid further attention to the issue, including a subsequent finding with a wider
impact. In this sense, it is not always in the general interest when a case is discontinued.
144 E. Rieter
as well, in Avena II and Georgia v Russia (2008),89 in which one party was ordered
to halt the execution of a death sentence, and both parties were ordered to prevent
further aggravation of the dispute, respectively. Given the importance of the indi-
vidual rights claimed by one state and the nature of the provisional measures
ordered, namely measures without enormous impact in terms of resources of the
state nor preempting further intended action by either of the parties, these measures
appear entirely justified.
If a state considers that the Court should have used provisional measures but did
not or if it considers that the Court should not have used them but did, it can of
course criticize the approach by the Court, but this does not detract from the binding
nature of the measures. Courts have the authority to order or not to order provisional
measures. This prerogative is part of their judicial function. They decide whether
action must be taken by states and, if so, what should be done or omitted. Obviously,
sometimes judges may make mistakes, which is their prerogative too as judges (and
as human beings). Indeed, if they truly wish to perform their judicial function, courts
“ought to” use provisional measures in some circumstances. The idea is that a court
should be as careful as possible in balancing relevant factors and in refusing to
balance non-derogable rights with derogable rights. If a court would very often order
provisional measures in cases that have no chance at all of success on the merits or if
it would fail to order measures in cases where it later concludes that irreparable harm
was caused pending the proceedings, this would seriously diminish the court’s
authority. Yet it would be contrary to judicial independence to hold judges respon-
sible for actions and omissions the way states or individuals are and to take away
powers that are inherent in the judicial function.
Given the importance of the individual rights claimed, it would be appropriate to
use provisional measures when jurisdiction on the merits is not manifestly absent.
After all, the claimant state is facing irreparable harm when the provisional measures
are not taken, while the state that would be ordered to refrain from doing something
pending the proceedings would face a temporary burden of a generally lesser nature.
Such an order does not preempt further intended action by either of the parties. Yet it
89
ICJ, Application of the international convention on the elimination of all forms of racial
discrimination (Georgia v Russian Federation), order for provisional measures of 15 Oct 2008.
The Joint Dissenting Opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma,
Tomka, Bennouna and Skotnikov. The dissenters doubted there was a dispute and they also
considered that a precondition for jurisdiction under Art 22 CERD was not met because of a lack
of negotiation. It seems that they considered that for prima facie jurisdiction the existence of a
dispute over the interpretation or application of the Convention must be positively established and
that it had to be “demonstrated that the precondition for the seisin of the Court has been satisfied,”
para 19. Subsequently, the Court found that it had no jurisdiction: ICJ, Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v
Russian Federation), judgment of 1 Apr 2011. Thus, at the stage of provisional measures, there was
considerable doubt as to jurisdiction on the merits, but there was no manifest absence of jurisdic-
tion. This is also evident from the joint dissenting opinion by President Owada, Judges Simma,
Abraham Donogue, and judge ad hoc Gaja, as well as the dissenting opinion by Judge Cançado
Trindade and a range of separate opinions.
must be noted that this is not the current approach of the Court. The ICJ now sticks
with the criterion of prima facie jurisdiction.
4.3 No Overlap with the Main Claim
It has always been clear that the use of provisional measures should not dictate the
ultimate determination of the conflict. This is also referred to as the principle of non-
anticipation by the adjudicator. The Permanent Court of International Justice (PCIJ)
created a specific rule based on this principle: that of allowing no overlap with the
main claim. This rule was expressed in the fact-specific Chorzów factory case
(1927). This case involved a request to grant a pecuniary claim at the provisional
measures stage. It was not about securing rights basic to the human being. In that
sense, it is not surprising that the PCIJ was strict and refused to order provisional
measures because it considered that the request coincided with the claim on the
merits and was in fact a request for an interim judgment.
The ICJ has never expressly overturned this rule, but in cases where the risk
involves something greater than financial damage, it simply does not apply
it. Examples are the Hostages and the Nuclear Tests cases, where there was a clear
overlap between the substance of the provisional measures and the main claim. After
all, the principle of non-anticipation does not dictate the use of a rule on “no overlap
with the main claim.” Non-anticipation just means that the adjudicator leaves all
options open for the parties for bringing facts and arguments and is not bound to its
decision at the provisional measures stage. Provisional measures do not predeter-
mine the judgment on the merits but make sure that the parties do not anticipate it
and make it moot.
If, in the Nuclear Tests cases, no provisional measures had been ordered to halt
the (above ground) tests pending the proceedings, the judgment on the merits (which
was still expected at that point) would have become futile.90 In the Hostages case, at
the stage of provisional measures, the US sought cessation of an obvious wrongful
conduct that was continuing while the case was pending.91 This clearly overlapped
with the relief requested on the merits.
The coincidence with the claim on the merits on this point is obvious in blatant
cases involving situations where it is already established that a certain act or
90
measures of 22 June 1973. This applies similarly in cases decided by the various human rights
adjudicators involving halting expulsion or extradition and execution. The claim is that the
expulsion or the execution would be contrary to the treaty and should not take place. In the face
of an impending expulsion or execution date pending the proceedings, without the provisional
measure, the case becomes futile because the adjudicator will no longer be able to provide the relief
sought. The same applies to death threats or threats to cultural survival.
91
ICJ, Hostages case: US Diplomatic and Consular Staff in Tehran (US v Iran), order for
provisional measures of 15 Dec 1979.
146 E. Rieter
omission is a serious violation, e.g. hostage taking, torture, and corporal punishment.
Obviously, during the merits phase, there will be discussion as to the facts and direct
or indirect attribution, but once the facts are conclusively established and determined
to be attributable to the state, the interpretation of the law is clear. In these cases, if
the adjudicator did not order provisional measures, the relief sought on the merits is
no longer possible.92
The request for immediate cessation of a wrong and the release of the hostages
overlapped with the main claim. In this type of cases, it would be inappropriate not to
order provisional measures. Without them, the relief sought on the merits often is no
longer possible, and in any case the conflict has seriously aggravated. At the same
time, of course, while the rule of “no overlap” is not applied, the underlying principle
still stands that the use of provisional measures must not dictate the decision on the
merits, the final determination of the conflict.
4.4 A Relation to the Main Claim: The Link Requirement
Paradoxical as it seems, traditionally, while there should be no complete overlap,

there should at least be some relation to the main claim. In the Sino-Belgian Treaty
case (1927), the PCIJ considered that the violation of certain individual rights of
Belgian nationals “would not be made good simply by the payment of an indemnity
or by compensation or restitution in some other material form.”93 Similarly, in its
order for provisional measures in the aforementioned Nuclear Tests cases (1973), the
ICJ referred to claims that “the uncertain physical and genetic effects to which
contamination exposes the people of New Zealand causes them acute apprehension,
anxiety and concern; and that there could be no possibility that the rights eroded by
the holding of further tests could be fully restored in the event of a judgment in
New Zealand’s favour in these proceedings.”94
The use of provisional measures could be warranted if the respondent would
otherwise preempt any meaningful reparation. At the same time, the adjudicator
must also be able to provide the relief requested. In that sense, the substance of the
92
States have sometimes argued that provisional measures were intended to protect the interests of
both parties and could not be granted to one party only. On the other hand, in the Hostages case
(1979) the ICJ pointed out that the terms of Art 41 ICJ Statute explicitly refer to “the respective
rights of either [sic!] party.” “[T]he whole concept of an indication for provisional measures, as
Article 73 of the Rules recognizes, implies a request from one of the parties for measures to preserve
its own rights against action by the other party calculated to prejudice those rights pendente lite,”
para 29. It concluded that a request for provisional measures is “by its nature unilateral,” para 29.
This is different for ITLOS because the latter is authorized, under Art 290 UNCLOS, to order
provisional measures that are appropriate “to preserve the respective rights of the parties.”
93
PCIJ, Sino-Belgian Treaty case, order of 28 Jan 1927, p. 7.
94
measures of 22 June 1973, paras 28 and 31.
eventual obligation (cessation, guarantees of non-repetition) or form of reparation

(restitution in kind) and that of the temporary relief pending the case are closely
related. There should be a link between the provisional measures and the decision on
the merits because it would not be appropriate to order a state to do something or to
abstain from doing something pending the case that the Court could not possibly
order at the stage of the merits and reparations.
In cases of mass human rights violations, the ICJ has sought cessation rather than
the compensation that is traditionally requested in diplomatic protection cases. In such
cases of mass violations, compensation would be particularly inappropriate as the sole
form of reparation, and this is appropriately reflected in the use of provisional
measures pending the proceedings. Yet the Court has been aware of consequences
of state responsibility other than compensation,95 not just in cases of mass violations
but also in cases involving fewer individuals, brought in the evolving exercise of
“diplomatic protection.” For instance, in the Hostages case (1979), the US hostages
were to be released immediately.96 In cases involving consular notification and access,
the foreign nationals were not to be executed before their cases had been submitted to a
review that would consider the lack of consular assistance.97 In view of the object of
the VCCR, namely the protection of nationals abroad, it was not surprising that the
wronged state expected some form of “restitution in kind.” By indicating provisional
measures, the ICJ acknowledges that if it were to decide that restitutio in integrum was
indeed warranted, this decision would be rendered useless if irreparable harm had
already been inflicted. Thus, the ICJ ordered provisional measures in the cases Breard,
LaGrand, Avena, and Jadhav.98 The execution of persons in contravention of these
orders makes impossible this restitution in kind. There is no need for a specific article
on restitution in kind in each convention because the right to restitution in kind is a
general rule of international law. In the 1920s, the PCIJ had already established that
this form of reparation was to be preferred.99
95
See also Art 35 of the International Law Commission’s Articles on State Responsibility
confirming that the injured state is entitled to the re-establishment, to the extent possible, of the
situation which existed before the wrongful act was committed.
96
ICJ, Hostages case: US Diplomatic and Consular Staff in Tehran (US v Iran), order for
provisional measures of 15 Dec 1979 para 47 and judgment of 24 May 1980, para 75.
97
For cases which have resulted in a judgment on the merits discussing this see ICJ, LaGrand
(Germany v US), judgment of 27 June 2001, para 125 and ICJ, Avena I (Mexico v US), judgment of
31 Mar 2014, paras 150–152.
98
ICJ, Vienna Convention on Consular Relations (Paraguay v US) (Breard case), order of 09 Apr
1998; LaGrand (Germany v US), order of 3 Mar 1999; Avena I (Mexico v US), order of 05 Feb
2003; Avena II (Mexico v US), order of 16 July 2008; Jadhav case (India v Pakistan), order of
18 May 2017.
99
“The essential principle contained in the actual notion of an illegal act – a principle which seems
to be established by international practice and in particular by the decisions of arbitral tribunals – is
that reparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the
value which a restitution in kind would bear.” PCIJ, Factory at Chorzów, (Germany v Poland),
judgment of 26 July 1927, para 125.
148 E. Rieter
Thus, there is often an obvious link between the provisional measures and the
claim on the merits. Moreover, the requirement of non-anticipation by one of the
parties of a decision on the merits means that neither of the parties shall preempt the
final determination of the case. This is one of the traditional reasons for courts to use
provisional measures. Provisional measures to prevent anticipation by one of the
parties, in the sense of preempting the final determination that could otherwise have
been made by the adjudicator, may at the same time trigger the other rule that the
adjudicator itself shall not anticipate the final determination and must “avoid any
appearance of pre-judgment.” However, this does not mean that the provisional
measures may not give an indication of substantive law to the extent this is already
clear. As noted in Sect. 4.3, it does mean that the Court should not order something
pending the case that can be left to the merits. The provisional measures should not
serve as an interim judgment. Only those parts of the merits question that are urgent
and cannot wait may be the subject of provisional measures. Of course, in such
cases, the Court still explains that its use of provisional measures does not prejudge
the merits.100
Yet, and this indicates a change in the traditional approach, there are also cases
where the provisional measures really aimed at something else than preserving the
main claim. In legal disputes about territorial boundaries, the ICJ has considered the
risk of irreparable harm to persons. In fact, the question where the frontier line might
run does not really affect this risk.101 Nevertheless, in the older cases Frontier
Dispute (Burkina Faso/Mali) (1986)102 and Cameroon v Nigeria (1996),103 part of
the rationale for the use of provisional measures, next to preservation of the
evidence, was concern about the lives of the civilians living in the conflict
zone.104 The same can be said, at least to some extent, about the Cambodia v
Thailand (2011)105 and Costa Rica v Nicaragua provisional measures (2011/
2013),106 where the general interest played a role: protection of the environment,
protection of cultural heritage, and also preventing loss of lives. The ICJ considered
these general interest concerns in its approach to the territorial claims of states.107
This approach can be reconciled with the criterion that there should be some relation
with the claim because even if the parties themselves have not claimed so explicitly,
it is still possible to link the provisional measures order to the claim of sovereignty.
100
Cf on this Sect. 5 of this chapter, discussing the new plausibility requirement.
101
Higgins (1997), pp. 91–108, 102.
102
ICJ, Frontier Dispute (Burkina Faso v Mali), order for provisional measures of 10 Jan 1986.
103
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), order
for provisional measures of 15 Mar 1996.
104
As already discussed by Higgins (1997), pp. 91–108.
105
the Temple of Preah Vihear (Cambodia v Thailand), order for provisional measures of
18 July 2011.
106
order for provisional measures of 8 Mar 2011.
107
See also para 2 of this chapter.
More importantly, the approach is related to the general purpose of the non-
aggravation of the dispute.108 At the same time, the ICJ now lists the "link require-
ment" as a condition for the use of provisional measures.109 Noteworthy in this
respect is Judge Greenwood’s reference to a partial exception to the link requirement
for the “indication of measures requiring the parties to refrain from action which
might aggravate or extend the dispute. Such measures are not limited to the protec-
tion of rights which might be adjudged to belong to either party but serve a wider
purpose.”110 Yet the Court has since confirmed: “When it is indicating provisional
measures for the purpose of preserving specific rights, the Court also possesses the
power to indicate provisional measures with a view to preventing the aggravation or
extension of the dispute whenever it considers that the circumstances so require.”111
In other words, it only orders non-aggravation if it also ordered provisional measures
for other reasons, where a link between the claim and the request for provisional
measures is met.
Thus, the third traditional aspect of provisional measures seems paradoxical:
while there should be no complete overlap (as discussed in Sect. 4.3), there should
at least be some relation to the main claim. The reason for this link between
provisional measures and the decision on the merits is that it would not be appro-
priate to order a state to do something or refrain from doing something pending the
case that the Court could not possibly order in the judgment on the merits. Clearly,
the existence of a right must not be manifestly absent. Nevertheless, this traditional
link requirement does not always apply. There are also cases where the provisional
measures aim at something else than preserving the main claim. When lives appear
to be at risk in legal disputes about boundaries, the ICJ is less strict in requiring a link
between the main claim and the contents of the provisional measures and focuses
more on non-aggravation of the case at large. Of course, there still must be some
bearing on existing rights, even if not explicitly claimed, because, as noted, the Court
is unlikely to order something pending the proceeding that it obviously could not
order on the merits, even if a party had explicitly asked for it. It seems that here it
orders what the parties could have asked for. This indicates a rather flexible approach
by the ICJ to the appropriateness of its use of provisional measures, considering the
108
By way of comparison, in cases about disappearances and massacres the IACtHR has ordered
provisional measures also when witnesses or local counsel received threats, even though the cases
themselves were not about these persons. Here the clear risk of irreparable harm to persons is not
directly linked to the claims on the merits, but more to the integrity of the proceedings. Cf
Rieter (2010).
109
Cf Miles (2017), p. 182, referring to Pulp Mills, order of 23 Jan 2007, Costa Rica v Nicaragua,
order of 16 July 2013 (on the Requests for the modification of the order of 8 Mar 2011) and
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste
v. Australia, 3 Mar 2014.
110
order for provisional measures of 8 Mar 2011, Declaration of Judge Greenwood, para 8.
111
ICJ, Immunities and Criminal Proceedings (Equatorial Guinea v France), 07 Dec 2016, para
96 and Ukraine v Russia, para 103, both referring to Temple II.
150 E. Rieter
rights of (groups of) persons.112 It remains to be seen whether this will change with
the apparent formalization of a “link prerequisite” and the decision that provisional
measures cannot be ordered for the non-aggravation of the conflict alone.
In this light, another reminder by Judge Greenwood seems appropriate: “Since
the proceedings on a request for provisional measures are necessarily conducted as a
matter of urgency, as required by Article 74 (1) of the Rules of Court, without written
pleadings and on a short time-scale, these criteria cannot be as exacting as those
which fall to be applied in the later phases of a case. The nature of proceedings on a
request for provisional measures of protection is such that it is not possible for the
parties to deploy, or the Court to consider, the detailed evidence or arguments on
legal issues which are required at the stage of ruling on jurisdiction or the merits.”113
4.5 Meeting Procedural Requirements
The fourth traditional approach is strictness about the procedural requirements. The
ICJ considers that hearings should be held before it orders provisional measures.
Normally, it would not reward a state for procedural mistakes and unfair strategy.
Nevertheless, in LaGrand (1999), it considered that the person involved, faced with
an imminent execution date, should not become the victim of the state having made
the wrong choice procedurally by requesting the provisional measures at a moment
dangerously close to the execution date of its national in the other state.114 In other
words, the ICJ has also considered the situation of the individual in its attitude
toward important procedural requirements not met by the state.115
So far, this happened only once, though, and when the execution date was set for
the next day. In 2017, in the Jadhav case, there was no such imminence warranting
an exception to the proper administration of justice before the ICJ. India had also
requested the ICJ to issue provisional measures proprio motu, without hearings, for
Pakistan to halt an execution,116 but this was not granted by the ICJ.117 Instead, it
112
Kolb (2013), pp. 625–627, expressing some caution in this respect.
113
order for provisional measures of 8 Mar 2011, Declaration of Judge Greenwood, para 2.
114
ICJ, LaGrand (Germany v US), order for provisional measures of 3 Mar 1999. Yet see the
individual opinion of Judge Schwebel attached to this order, as well as the individual opinion of
Judge Buergenthal attached to the subsequent judgment of 27 June 2001.
115
See e.g. Rieter (2010), pp. 58–59; Miles (2017), p. 233.
116
See ICJ, Jadhav case (India v Pakistan), order of 18 May 2017, para 5–6, citing India’s request
for the indication of provisional measures.
117
However, the day after receiving India’s request, the President of the Court called upon Pakistan,
based on Art 74 (4) Rules of the Court, pending the Court’s decision on India’s request “[. . .] to act
in such a way as will enable any order the Court may make on this Request to have its appropriate
effects.” See ICJ, Jadhav case (India v Pakistan), order of 18 May 2017, para 8, citing the
President’s letter of 09 May 2017 to the Government of Pakistan.
held hearings within a week of the request and issued its order for provisional
measures three days after the hearings.
It is noteworthy, however, that at this point it did order halting an execution, while
the respondent state had argued that the execution was not imminent.118 In Avena I,
it had only ordered halting the execution of those three Mexican nationals whose
executions were expected “in the coming months, or possibly even weeks,”119
considering that for the other 49 Mexican nationals, execution was not imminent.120
At the same time, it had been somewhat flexible in that it pointed out that given the
practice in some constituent states, the fact that execution dates were not yet fixed
did not as such preclude the use of provisional measures.121 In Jadhav (2017), the
Court stated:
there is considerable uncertainty as to when a decision on any appeal or petition could be
rendered and, if the sentence is maintained, as to when Mr. Jadhav could be executed.
Pakistan has indicated that any execution of Mr. Jadhav would probably not take place
before the end of August 2017. This suggests that an execution could take place at any
moment thereafter, before the Court has given its final decision in the case. The Court also
notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the
Court has rendered its final decision. In those circumstances, the Court is satisfied that there
is urgency in the present case.122
Also relevant in the Court’s provisional measures order in Jadhav could be the
events subsequent to its order in Avena I. The US respected this order and did not
execute the three persons concerned, but it also made sure a new case could no
longer be brought before the ICJ in the event of new specific execution dates also
involving the 48 other persons123 on whose behalf Mexico had requested provisional
measures in Avena I.124
5 A Stricter Approach: Demanding Evidence of Plausibility
With Belgium v Senegal in 2009, the ICJ started to explicitly list its criteria for the
appropriate use of provisional measures, specifying Article 41 ICJ Statute’s: “if it
considers that circumstances so require.” It has since presented the criteria as a list of
118
See ICJ, Jadhav case (India v Pakistan), order of 18 May 2017, para 52.
119
ICJ, Avena and Other Mexican Nationals (Mexico v US), order of 05 Febr 2003, para 55.
120
Id, para 56.
121
Id, para 54.
122
ICJ, Jadhav case (India v Pakistan), order of 18 May 2017, para 54. More closely on the ICJ and
temporal urgency, see Rieter (2010), pp. 74–76. More closely on the Jadhav case, see Rao (2017).
123
Mexico had requested provisional measures on behalf of 54 persons, later modified to 51 because
the death sentences of three nationals had been commuted.
124
On follow-up by the ICJ, see the last section of this chapter.
152 E. Rieter
prerequisites.125 In 2017, the full Court listed five criteria, including plausibility. The
first criterion is that of prima facie jurisdiction: is the application prima facie capable
of falling within the instruments invoked, and is there prima facie compliance with
the procedural preconditions under the respective clauses? This aspect has to some
extent been discussed in Sect. 4.2. The second criterion is whether the acts fall within
the scope of the treaty invoked, with a plausibility test introduced in Belgium v
Senegal. This point is further discussed in this section below.126 The third criterion
listed by the Court is the presence of a link between the provisional measures
requested and the rights claimed on the merits, as was discussed in Sect. 4.4. The
fourth and fifth criteria are urgency (real and imminent risk) and irreparability. These
criteria are closely related to the discussions on, e.g., the general interest (Sect. 2) and
the link requirement (Sect. 4.4).127
This section further discusses the plausibility requirement as formulated by the
Court in Belgium v Senegal. As noted, the use of provisional measures obviously
implies an “anticipation” to some extent. There must be a link between the rights
invoked in the main case and the request for provisional measures. This also triggers
the question whether the rights invoked indeed appear to exist. After all, there must
be a possibility of the claimed rights being substantiated as having an existence in
law. As discussed in Sect. 4.4, in some cases, at the stage of provisional measures,
the Court was yet to determine on the merits whether a certain act or omission by a
state would indeed constitute a violation of the rights invoked by the other state (e.g.,
the Nuclear Tests cases). In other cases, it was clear that certain acts or omissions
constituted a violation of the rights invoked, but the dispute related to evidence
and/or imputability (e.g., Hostages case and DRC v Uganda). The rights claimed
may have already earned clear recognition. In such cases, the party requesting
provisional measures should just give an indication that these rights are indeed at
risk of being violated. In the alternative, if the case is in fact about rights that are not
yet clearly recognized, the applicant state should try to show that the rights claimed
indeed exist. After all, the use of provisional measures would be “a pointless exercise
in empty authority” if there were “no possibility of the claimed rights being
substantiated as having an existence in law.”128 Indeed, from the start, the ICJ
appears to have used the criterion of having some relation to the claim as well.129
Yet the Court now seems to have moved rather close to anticipation of the merits
judgment. It has moved from requiring a link between the merits claim and the
125
See e.g. ICJ, Application of the International Convention for the Suppression of the Financing of
ination (Ukraine v Russian Federation), order for provisional measures 19 Apr 2017, para 99.
126
In earlier literature, traces of this discussion could be found when discussing prima facie
jurisdiction ratione materiae, evidence of material urgency, the link requirement and the issue of
prejudgment.
127
Cf e.g. Rieter (2010), pp. 21–41 (preventing irreparable harm) and Rieter (2010), pp. 74–86
(temporal and material urgency).
128
Goldie (1974), p. 502.
129
See also, e.g., Oellers-Frahm (2012).
request for provisional measures, and requiring some evidence that the right invoked
may indeed exist, to examining evidence of the likelihood of success of the claim on
the merits.
In 2009, in Belgium v Senegal, the Court introduced the criterion that there should
be a “plausible” claim.130 Even if it is established that the Court has prima facie
jurisdiction on the merits and the case is prima facie admissible, the Court will still
assess whether it should exercise the power to order provisional measures. It decides
not to if it considers that the rights asserted by a party are not plausible. In this case, it
found that the rights asserted were plausible because they were grounded in a
possible interpretation of the UN Convention Against Torture.131
Judge Koroma noted in the Costa Rica v Nicaragua order (2011) that “the
introduction of the plausibility test creates ambiguity and uncertainty.” Moreover,
“it remains unclear whether this standard refers to legal rights or facts or both.”132
Whereas in Belgium v Senegal the Court referred to legal rights, in Costa Rica v
Nicaragua (2011) the test was invoked to examine facts.133 Judge Koroma argued
that the criterion should not become part of settled jurisprudence “[. . .] because the
word ‘plausibility’ is ambiguous in English and can refer to an assertion that has the
outward appearance of truth, but is in fact specious or false.”134 He feared that the
vagueness of the criterion might give “the impression that the threshold for the
indication of provisional measures has been lowered.”135 In practice, as is discussed
subsequently, the threshold has been heightened, yet his qualification that the
vagueness of the plausibility test “makes it unreliable as a legal standard that parties
must meet to obtain relief from this Court” still appears to be on point.136 Judge
Greenwood noted that while arguable might have been a better term, what matters is
the test applied by the Court. He considered that the Court had made clear, in
Belgium v Senegal and Costa Rica v Nicaragua, that “the test is one of reasonable
possibility.”137 Yet Judge Sepúlveda-Amor concurred with the ambiguity criticism
130
ICJ, Questions relating to the obligation to prosecute or extradite (Belgium v Senegal), order of
28 May 2009, para 57.
131
Id, para 60.
132
ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
order of 08 Mar 2011, separate opinion of judge Koroma, para 1.
133
Id, para 11.
134
Id, para 2, further discussed in para 7 by reference to the Oxford English Dictionary and Merriam
Webster’s Online Dictionary.
135
Id, para 7.
136
Interestingly, he criticizes the introduction of the criterion “[. . .] especially since the binding
force of Orders indicating provisional measures has been confirmed by the Court.” Id, para 8. Others
have explained the introduction of the criterion as itself a response to the confirmation of the binding
nature of the Court’s provisional measures. See e.g. Thirlway (2013), pp. 1783–1785. Thus, some
have argued for and some against the introduction of a plausibility test, in both cases making their
point by reference to the binding nature of provisional measures.
137
order of 08 Mar 2011, declaration of judge Greenwood, para 5.
154 E. Rieter
by arguing that the Court should be more precise and by criticizing the “unwarranted
emphasis” on this criterion.138 He observed that these “are not academic subtleties.
The answers are likely to have direct implications on how Requests for provisional
measures will be pleaded in the future and on the degree to which the Court
considers the merits of the case in the course of the incidental proceedings on interim
protection.”139 The unwarranted emphasis on this imprecise criterion “might ulti-
mately encourage States seeking interim protection to over-address the substance of
the dispute at an early stage and, as a result, overburden proceedings under Article
41 of the Statute with matters that should actually be dealt with by the Court when
adjudicating on the merits.”140
What seems to be the main problem with the application of the plausibility test,
especially since 2017, is the anticipation by the Court of its judgments while still in
the incidental proceedings. As Gleider Hernández noted in 2014: “This new test,
which allows the Court to peek into the substantive claims of the parties to assess
their chances of success, is of concern: because to an extent the Court’s orders on
provisional measures seem in this respect to prejudge the actual outcome of a
dispute, such orders may be moving towards the deliverance of ‘interim judgments’,
and thus undermining the observance of any provisional measures indicated
thereunder.”141
In addition to the risk of anticipating on the merits, reference has also been made
to the risk of anticipating on the decision on jurisdiction. Miles warns that “[w]ithin
the international space, preliminary consideration of the merits is problematic, due
primarily to the consensual character of jurisdiction.”142 He also invokes Rosenne,
who has noted that pronouncing on the merits without first establishing its compe-
tence to do so is “hardly compatible with the international judicial function.”143
Thus, these concerns were already expressed following the Belgium v Senegal
order,144 but subsequently, in April 2017, the ICJ turned even more restrictive in its
approach to ordering provisional measures. In the Court’s order in Application of the
International Convention for the Suppression of the Financing of Terrorism and of
the International Convention on the Elimination of All Forms of Racial Discrimi-
nation (Ukraine v Russian Federation), it used a very strict standard for plausibility.
The majority held that “in order to determine whether the rights for which Ukraine
seeks protection are at least plausible it is necessary to ascertain whether there are
138
order of 08 Mar 2011, separate opinion of Judge Sepúlveda-Amor, paras 11 and 15.
139
Id, para 13.
140
Id, para 15.
141
Hernández (2014), p. 58. See also Akande (2011).
142
Miles (2017), p. 194 (this was even before the Court’s Ukraine v Russia order of 19 Apr 2017).
143
Rosenne (2005), p. 72.
144
Although the approach taken in Ukraine v Russia appears to go much further than anticipated
based on the case law developed between 2009 and the Certain Documents order of 2014 discussed
by Miles (2017), pp. 197–201.
sufficient reasons for considering that the other elements set out in Article 2, para-
graph 1, such as the elements of intention or knowledge [. . .] are present.”145 At this
stage of the proceedings, Ukraine had not put before the Court “evidence which
affords a sufficient basis to find it plausible” that these elements are present.146
This is a strange approach.147 Several judges themselves criticized the approach
of the majority in not ordering provisional measures under the International Con-
vention for the Suppression of the Financing of Terrorism (ICSFT) because of the
use of this demanding standard for plausibility.148 As Judge Owada noted, “the
standard of plausibility is, and must be, fairly low.”149 Indeed, she rightly stresses
that the question to be asked should be whether an asserted right is “possible” or
whether it is “arguable” that it exists.150 Judge ad hoc Pocar also discussed the risk of
overaddressing the substance of the dispute at an early stage.151 He argues that the
plausibility test was in fact met here, referring to the record and to ICTY case law
and stressing risks for the good administration of justice.152
Judge Bhandari pointed out that the Russian arguments that the shelling of
civilians was also the responsibility of the Ukraine military do not show that the
acts alleged by Ukraine cannot be terrorist acts under the ICSFT. They simply
indicate that the acts could also be regarded as violations of international humani-
tarian law by both parties to the conflict in eastern Ukraine.153 He noted that the part
of the Court’s order dedicated to the plausibility of the rights invoked by Ukraine
under the ICSFT could have benefitted from a closer discussion of the evidence.154
145
ination (Ukraine v Russian Federation), 19 Apr 2017, para 75.
146
Ibid.
147
Differently Marchuk (2017), observing that Ukraine had insufficiently prepared for presenting
evidence of mens rea. In my view, this fact alone begs the question of prejudgment.
148
See e.g. the separate opinions by Judge Owada, Judge ad hoc Pocar, Judge Bhandari and Judge
Cançado Trindade to ICJ, Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimination of all forms of
Racial Discrimination (Ukraine v Russian Federation), order for provisional measures of
19 Apr 2017.
149
ination (Ukraine v Russian Federation), order for provisional measures of 19 Apr 2017, separate
opinion by Judge Owada, para 20.
150
Ibid.
151
ICJ, Ukraine v Russian Federation, order of 19 Apr 2017, separate opinion of judge Pocar, para
7, referring to Sepulveda Amor, para 12 and 15 of the Costa Rica v Nicaragua order of
8 March 2011.
152
ICJ, Ukraine v Russian Federation, 19 Apr 2017, separate opinion of judge Pocar, para 7.
153
Id, separate opinion of judge Bhandari, para 32.
154
Id, separate opinion of judge Bhandari, para 33.
156 E. Rieter
Evidence of a continuous flow of weapons could plausibly be considered to be

“funds” across the border. At this stage, a careful examination of the exact definition
of funds would have been inappropriate as it would prejudge the Court’s decision in
later stages. The Court should just have noted that the ICSFT plausibly covers items
such as weapons in its definition of “funds.”155 Moreover, he referred to patterns that
are sufficient to plausibly show that they have a certain purpose (e.g., to intimidate).
More detailed determinations, he points out, are inappropriate. He concludes that the
Court was too strict in requiring evidence at this stage, but at the same time it did not
really consider the evidence provided.
Judge Cançado Trindade equally pointed out that “[a]t this stage of the pro-
ceedings, it suffices to determine the Court’s prima facie jurisdiction [under the
treaties invoked]; an in-depth analysis of these two Conventions is not required and
should be kept for the merits stage.”156 “[U]ndue and groundless obstacles to access
to justice [. . .] are to be discarded.”157 Pointedly, he referred to the Court’s “erratic
use” of the term plausibility, in respect of rights, instruments, and facts, and he notes
that the ICJ uses it even by reference to “intent” and “purpose” and in relation to
arguments or allegations.158 He then argued that the decisive test should be human
vulnerability over “plausibility” of rights.
Indeed, the Court’s interpretation of the plausibility criterion in Ukraine v Russia
(2017) indicates a rather cautious approach to the use of provisional measures, in
which the fate of individuals caught up in conflicts between states is not at the center
of the decision-making about the appropriate use of provisional measures. There is
no need for such approach to plausibility, though, and considering the vulnerability
of persons is in fact warranted. As Anne Peters puts it: “By asking Ukraine to make
plausible even the elements of ‘intention’ or ‘knowledge’ (of individuals), the Court
[. . .] almost asks the impossible.”159 Moreover, the Court “[. . .] does mix up
elements of the international crime which would be committed by an individual,
and elements of state responsibility of Russia.”160 Therefore, the plausibility crite-
rion should be adapted or in any case not be used so strictly (Peters phrases it as its
“overly narrow notion of plausibility”), but it should not be replaced by a vulnerability
155
Ibid.
156
Id, separate opinion of judge Cançado Trindade, para 45.
157
Id, para 48.
158
Id, para 37 and 38.
159
Peters (2017), referring to ICJ, Ukraine v Russian Federation, order for provisional measures of
19 Apr 2017, para 75.
160
Peters (2017).
test, as suggested by Cançado Trindade. Rather than “skipping the test of plausibility,”
which would lead to legal inconsistency, she notes that “[. . .] the ‘vulnerability’ of the
victims of international terrorism, as ‘plausibly’ committed in the regions of Eastern
Ukraine, can and should be taken into account when examining whether violations of
provisions of the ICSFT are plausible and whether there is a danger of irreparable harm
to them (not only to Ukraine as a state).”161
In addition to neglecting to take into account the vulnerability of victims when
assessing the plausibility of the claim before it, the Court’s strict approach to
plausibility in this case undermines its earlier strict approach to preventing prejudg-
ment. Indeed, by prejudging the merits and inviting modes of litigation that do not
belong at the stage of provisional measure proceedings, the approach in Ukraine v
Russia undermines the proper administration of justice.
It would have been preferable had the Court clarified its approach to plausibility
by stating that the rights asserted should be arguable. It could have stated that there
must be a reasonable prospect of success in the sense that the existence of a right is
not manifestly absent, rather than requiring this level of evidence at this stage,
thereby anticipating on the merits. Moreover, with the same stroke, the Court
seems to move away from the protection of the general interest to a more reduc-
tionist approach. While the ICJ is constrained by its jurisdiction, state consent, and
other realities, it is also faced with the realities of the people behind the cases
before it, and it has a role in the peaceful settlement of disputes. It cannot ignore
these realities either. Indeed, the vulnerability of the victims “can and should” be
considered when assessing whether provisions of a treaty such as the ICSFT are
plausible and whether persons are at risk of irreparable harm with regard to these
plausible violations.
This brings to mind the warning by Hernández that the ICJ “remains a mirror
against which international lawyers may assess the present state of international law;
it is not an engine for its future development.”162 Yet he also notes the fact that the
Court is “[a]rguably well aware of the impact of its legitimating effect on the rules of
international law.”163 Consolidation of its plausibility case law could become an
engine for regression, which is particularly problematic since this case law under-
mines the proper administration of justice by anticipating on the merits.
161
Ibid.
162
Hernández (2014), p. 239.
163
Id, 238.
158 E. Rieter
6 Follow-Up by the ICJ on Its Orders for Provisional

Measures
The ICJ has various options available to it164 to follow up on a state’s failure to
respect its provisional measures, and it sometimes indicates an obligation to report
about the implementation of its provisional measures. This may be seen as antici-
pated follow-up.165 However, it is not consistent in its approach.166
There is also the question whether the ICJ can follow up on non-compliance with
its provisional measures at an earlier stage than in its judgment.167 It surely should be
able to do so. As Judge Cançado Trindade puts it: “State responsibility is engaged
not only with the occurrence and determination of a breach of an international
obligation as to the merits, but also earlier on, with the occurrence and determination
164
More generally on ensuring compliance with the ICJ’s provisional measures, also by other states
and the UN, see Lando (2017).
165
The ICJ took a first step in the reporting obligation in the early 1970s in the Fisheries jurisdiction
cases. There it said that the Parties had to provide the Court, and each other, with all relevant info.
Subsequently, in 1978 it included Art 78 in its Rules of Procedure. This Article says that it “may”
request information from the parties on any matter connected with the implementation of any
provisional measures it has indicated. Since then it has in fact applied this in a human rights context.
The situations that stand out are the Hostages order, where the Court held it would keep the case
continuously under review, US Diplomatic and Consular Staff (US v Iran) (hostages case), order of
15 Dec 1979, para 47 under 2; the Frontier Dispute case (Burkina Faso/Mali), order of 10 July
1986, where the Court called on the Parties to notify it about certain matters, and announced that it
would remain seized of the matter pending judgment, para 23 under 3; and the consular protection
cases in which it ordered provisional measures to halt executions. In its Breard, LaGrand and Avena
orders the Court noted that the addressee state should inform it of the measures taken to comply with
the order. See e.g. ICJ Request for interpretation of the judgment of 31 March 2004 in the case
concerning Avena and other Mexican nationals (Mexico v US), order of 16 July 2008, para 80.
Later the Court phrased this differently: the state “[. . .] shall inform the Court of all the measures
taken in implementation of the present Order,” Jadhav (India v Pakistan), order of 19 May 2017,
para 58. Of course, to really give body to these statements the Court should be supported by a
mechanism to in fact keep its orders continuously under review. Such a mechanism is not likely to
be developed in the near future, as the ICJ itself does not even call for a compliance report in many
of its more recent orders.
166
See e.g. the following three consecutive orders in which it did not require reporting: Questions
relating to the Seizure and Detention of Certain Documents and Data (East Timor v Australia),
order of 03 Mar 2014; Immunities and Criminal Proceedings (Equatorial Guinea v France), 07 Dec
2016, and even in Ukraine v Russia. In the next order Jadhav, it did note that the state “[. . .] shall
inform the Court of all the measures taken in implementation of the present Order,” see Jadhav
(India v Pakistan), order of 19 May 2017, para 58. This order related to a potential execution. In
general, about compliance, see Schulte (2004).
167
One post-LaGrand case in which a state requested follow up provisional measures was Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); see Construc-
tion of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), order of 16 July
2013. The ICJ denied the request for a modification of the provisional measures ordered on 08 Mar
2011. It did decide to reaffirm these measures, considering this necessary because of a risk of
aggravation of the dispute, Id, order of 16 July 2013, paras 37–38.
of a breach of an obligation under an Order of provisional measures of

protection.”168
This means that it should, for instance, issue follow-up provisional measures
proprio motu. Human rights adjudicators have done so, and the ICJ may equally be
able to do so based on Article 75(1) of its Rules.169 Yet thus far it has only used
provisional measures when any of the parties to the conflict requested it to do so and
it may not be eager to change this. This might be too far removed from its current
more voluntarist approach.170
In its judgment in DRC v. Uganda (2005), the ICJ dealt with the issue of
non-compliance but here only on request by one state alone. It concluded that
Uganda had not complied with its order of July 2000. Congo had requested the
Court to declare so, but it had not submitted specific evidence in this regard. The
Court pointed out that it had just found Uganda responsible for acts of killing,
torture, and other forms of inhuman treatment in violation of international human
rights and humanitarian law carried out by its military forces against Congolese
civilians.171 Specifically, it found violations of the right to life and the prohibition of
torture and cruel treatment in international and African human rights treaties.172
These violations had continued after the Court’s order for provisional measures.173
The ICJ added that it had in fact addressed its provisional measures to both parties
and that its finding on the non-compliance by Uganda did not mean that the Congo
“did not also fail to comply” with its measures.174
168
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica),
judgment of 16 Dec 2015, separate opinion of judge Cançado Trindade, para 24.
169
This article of its Rules may be taken together with Art 78. After all this article of its 1978 Rules
of Procedure refers to questions on the implementation of any provisional measures it has indicated.
It could do so by sending a formal request for information to a state when it hears that this state is
about to violate the Court’s order, or in case the state has already violated it, to express concern and
to call for clarification. In short, I would say that these subsequent provisional measures could also
be indicated proprio motu. See also ICJ Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v Costa Rica), judgment of 16 Dec 2015, separate opinion by Judge Cançado Trindade,
paras 35–44.
170
So far, the Court has only referred to Art 75 (1) in the different context of LaGrand, where a state
had indeed requested provisional measures, so it was not the Court’s initial idea to use them. The
Court only referred to Art 75 because there was no time to follow the proper proceedings of holding
hearings etc. See also Sect. 4.5 of this chapter.
171
ICJ, Armed Activities on the Territory of the Congo (Congo v Uganda), judgment of 19 Dec
2005, para 345.
172
Arts 6 (1) and 7 ICCPR; arts 4 and 5 ACHPR; Art 38 (2) (3) Convention on the Rights of the
Child and arts 1, 2, 3 (3), (4), (5) and (6) of its Optional Protocol on child soldiers. See ICJ, Armed
Activities on the Territory of the Congo (Congo v Uganda), judgment of 19 Dec 2005, para 219.
173
ICJ, Armed Activities on the Territory of the Congo (Congo v Uganda), judgment of 19 Dec
2005, para 264.
174
Id, para 265.
160 E. Rieter
In a separate opinion, Judge Kooijmans considered that the Court should have
dismissed Congo’s submission on Uganda’s non-compliance because it had not met
the burden of proof. He noted that the formulation chosen by the Court seemed “to
indicate an awareness” that neither Uganda nor the Congo had respected the
provisional measures. He considered that it would have been “judicially sound”
not to have found that Uganda had not complied with its order on provisional
measures, although he had “no doubt whatsoever that Uganda breached its obliga-
tions under the Order.”175 Yet the evidentiary requirements and the purpose of
provisional measures to protect the “legal interests of either party” caused him to
regret the ICJ’s finding that one of the parties had violated the order for provisional
measures.176
Indeed, it is problematic that the Court does not fully address the non-compliance
by both parties with its orders. Yet in my view, it would not have been judicially
sound to insist on the state’s meeting of the burden of proof in a situation where the
Court can simply note the non-compliance based on its findings of violations on the
merits. Moreover, ignoring the legal interest in compliance by one state because the
other state did not invoke non-compliance in turn would conflict with the judicial
function. The best approach, of course, would be to simply follow up proprio motu
on proprio motu provisional measures.177
The current system, though, means that the Court can order provisional measures
proprio motu (as it did in DRC v Uganda because it did not order the provisional
measures that were requested by the DRC but instead ordered provisional measures
addressed to both parties), but then on the merits the Court apparently cannot draw
conclusions regarding the compliance by both states, unless each state explicitly
disputed compliance by the other.178 The ICJ may have considered that its freedom
to deal with information not based on the applications of the parties is more limited at
the stage of the merits than at the stage of provisional measures. Nevertheless, this
may not be the case in the context of following up on its own orders for provisional
measures. The Court itself appears to be the most appropriate body to monitor
compliance with its provisional measures. Proprio motu examination of publicly
available materials is in fact warranted in this context even if the parties fail in
175
Id, separate opinion of judge Kooijmans, paras 74–75.
176
Id, paras 74–78.
177
See also ICJ, Ukraine v Russian Federation, order of 19 Apr 2017, dissenting opinion of Judge
Cançado Trindade. Cf ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), judgment of 16 Dec 2015, separate opinion of judge Cançado Trindade, paras
35–44.
178
The claims brought by the Congo related to acts that took place after the provisional measures
were ordered while the counter-claims by Uganda, to the extent they were accepted by the Court,
did not, making it more difficult for the Court to comment on violations of the provisional measures
by Congo.
bringing such materials to the Court’s attention. In addition, international organiza-

tions could take a more active approach, assisting the Court in its function of
monitoring compliance with its provisional measures by invoking the possibility
of Article 69(2) Rules of Court. This article stipulates:
When a public international organization sees fit to furnish, on its own initiative, information
relevant to a case before the Court, it shall do so in the form of a Memorial to be filed in the
Registry before the closure of the written proceedings. The Court shall retain the right to
require such information to be supplemented, either orally or in writing, in the form of
answers to any questions which it may see fit to formulate, and also to authorize the parties to
comment, either orally or in writing, on the information thus furnished.
Moreover, in certain cases, the Court could implicitly invite such organizations to
provide pertinent information by notifying them of relevant pending cases.179
While the ICJ so far does not follow up by ordering provisional measures proprio
motu, in a way, it does appear to follow up in the text of provisional measure orders,
as long as a state has requested provisional measures. The follow-up then consists of
adapting the text of the order, as compared to the previous one, based on its
experience with previous non-compliance by the addressee state in question, in a
different case. It has done so, for instance, through increased specificity and expla-
nation in its orders.180 In its LaGrand order (Germany v US), it implicitly responded
to the execution of Breard contrary to its order for provisional measures in that
earlier case brought by Paraguay against the US.181 It pointed out that state respon-
sibility is engaged by the actions of all its constituent parts, that the federal author-
ities must transmit the order to the Governor of Arizona, and that this state was
obliged to act in compliance with the order.182
In its subsequent judgment in LaGrand, the ICJ followed up the non-compliance
with its order by confirming in its operative paragraphs that the US had breached the
obligation incumbent upon it under its order for provisional measures.183 In addition,
it followed up substantively by singling out the roles of various US authorities, and it
explained that it had not ordered anything out of the ordinary. The Court observed
that “the mere transmission of its Order to the Governor of Arizona without any
comment, particularly without even so much as a plea for a temporary stay and an
explanation that there is no general agreement on the position of the US that orders of
179
See Art 43 (2) of the Rules of Court, as amended 29 Sept 2005. The international organizations
referred to in Art 69 are organizations of states.
180
On varying levels of specificity of the Court’s orders see e.g. Rieter (2010), pp. 47–51, 91–95.
See also Akande (2011).
181
See ICJ, Breard (Paraguay v US), order of 09 Apr 1998. More closely on this order, see Rieter
(1998). The subsequent discussion partly draws on Rieter (2010), pp. 91–95.
182
See ICJ, LaGrand (Germany v US), judgment of 27 June 2001, paras 111–115 and order of
03 Mar 1999, para 28.
183
ICJ, LaGrand (Germany v US), judgment of 27 June 2001, para 128 (5), 516.
162 E. Rieter
the International Court of Justice on provisional measures are non-binding, was

certainly less than could have been done even in the short time available.”184 It also
commented on the Solicitor General’s letter to the US Supreme Court:
The same is true of the United States Solicitor General’s categorical statement in his brief
letter to the United States Supreme Court that “an order of the International Court of Justice
indicating provisional measures is non-binding and does not furnish a basis for judicial
relief.”185
The ICJ reflected on the decision of the Governor of Arizona as well:

It is also noteworthy that the Governor of Arizona, to whom the Court’s Order had been
transmitted, decided not to give effect to it, even though the Arizona Clemency Board has
recommended a stay of execution for Walter LaGrand.186
Finally, it commented on the decision of the US Supreme Court, which had

rejected a separate application by Germany for a stay of execution, although “it
would have been open to the Supreme Court, as one of its members urged, to grant a
preliminary stay.”187
The ICJ summarized the situation as follows: “the various competent United
States authorities failed to take all the steps they could have taken to give effect to the
Court’s Order.” The order did not require the US to “exercise powers it did not
have,” but it did impose the obligation to “take all measures at its disposal to ensure
that Walter LaGrand is not executed pending the final decision in these proceed-
ings.” It found that the US did not discharge this obligation.188 In this judgment,
referring to the execution of LaGrand in contravention of its order, the wording used
by the ICJ was strong, but for several reasons it did not attach additional conse-
quences to the blatant disrespect of its order. The Court observed that Germany, in its
third submission, only requested the Court to “adjudge and declare” that the US
violated its international legal obligation to comply with the order. It contained no
other request regarding that violation.189
In Avena I, on the other hand, the US respected the Court’s provisional measures
to halt the impending execution of specific persons.190 Upon the publication of the
Avena I judgment, it also announced that it would respect the judgment.191 Yet
shortly thereafter, the US announced its withdrawal from the Protocol to the VCCR
184
Id, para 112.
185
Ibid.
186
Id, para 113.
187
Id, para 114.
188
Id, para 115.
189
In this case, the Court explained that Germany had not requested the ICJ to award damages (and
the Court noted that had it done so, it would have considered the fact that the US had been under
time pressure in this case in view of the circumstances in which Germany had instituted the
proceedings and that at the time of the order the legal status of provisional measures had not finally
been settled). Id, para 116.
190
ICJ, Avena and Other Mexican Nationals (Mexico v US), 31 Mar 2004, para 3.
191
US Office of the Press Secretary (2005).
to make sure similar cases would no longer be brought before the ICJ.192 Thus, a
follow-up on non-compliance in the context of a new case was no longer possible.
In this situation, Mexico decided to invoke Article 60 of the ICJ Statute, constru-
ing it as a device for follow-up by the ICJ in cases of a continuing or sudden risk of
irreparable harm relating to violations that have already been established by the ICJ
in a judgment. Indeed, the ICJ did order provisional measures in Avena II.193
This invocation of Article 60 might sometimes enable the ICJ to reinforce
compliance with previous judgments in those cases where it no longer has jurisdic-
tion to take up a new case regarding non-implementation. Nevertheless, even if the
Court would be open to this once more, should the occasion arise, this option would
only be available if there is some link to a “dispute” between the parties194 regarding
the interpretation of their obligations under the judgment.
192
See e.g. Quigley (2009) referring to a letter of Condoleezza Rice, US Secretary of State, to Kofi
A. Annan, Secretary-General of the United Nations on 07 Mar 2005, giving notice that the United
States withdraws from the Optional Protocol.
193
ICJ, Request for interpretation of the judgment of 31 March 2004 in the case concerning Avena
and other Mexican nationals (Mexico v US), order of 16 July 2008.
194
This seems unlikely given the criticism expressed in the context of the Temple II case. Moreover,
meanwhile, the ICJ has added an extra layer of requirements that must be met before it takes up a
case with a new approach to the question what constitutes a dispute. See Application of the
International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v
Russia), judgment of 01 Apr 2011 (no jurisdiction). It stresses that the existence of an international
dispute is a question “[. . .] of substance, not of form,” para 30. This could be a hurdle to bring cases
before it. This became even more apparent with the Court’s judgment in Obligations Concerning
Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v India, Marshall Islands v Pakistan and Marshall Islands v UK), 5 Oct 2016.
In this case, the ICJ even required evidence of the “awareness” of the other state that “its views were
positively opposed by the applicant,” para 38 (“[. . .] a dispute exists when it is demonstrated, on the
basis of the evidence, that the respondent was aware, or could not have been unaware, that its views
were “positively opposed” by the applicant”). While this new approach may undermine the
flexibility of the Court and establish a formalism that does not appear to be conducive to the
judicial function), it is nevertheless assumed that the Court’s new approach will not prevent the use
of provisional measures. It would likely require an in-depth examination of the conduct of the two
states to determine whether the respondent positively opposed the applicant’s claim (to determine
the existence of a “dispute” under the Court’s new definition). Moreover, it would even require an
examination of their consciousness of a conflict and, for the question whether the procedural
preconditions under specific compromissory clauses have been met, an examination of their
conduct in negotiations (in order to determine whether there was a “genuine attempt” to resolve
the dispute). Such investigations would be inappropriate at the stage of provisional measures. This
view seems confirmed in the subsequent practice of the ICJ, e.g. its order for provisional measures
in Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of all forms of Racial Discrimination
(Ukraine v Russian Federation), 19 Apr 2017. Here, the ICJ observed that the parties seemed to
differ on the question whether the events have given rise to their rights and obligations under the
respective treaties, para 29 and 37. The Court concluded that the submitted actions were capable of
falling within the scope of the two respective treaties, ratione materiae, para 30 and 39. Therefore,
the Court held that there were sufficient elements “[. . .] at this stage to establish prima facie the
existence of a dispute,” paras 31 and 39.
164 E. Rieter
In this case, both the US Supreme Court and the State of Texas ignored the ICJ’s
order for provisional measures, and Medellín was executed.195 As noted,196 in its
subsequent judgment (Avena II), the ICJ found that it lacked competence to deal with
the question posed by Mexico. Yet in the same judgment, the ICJ did appear to
respond to the US Supreme Court Medellín v Texas decision. It recalled that
“considerations of domestic law which have so far hindered the implementation of
the obligation incumbent upon the United States, cannot relieve it of its obliga-
tion.”197 It noted that a “choice of means was allowed to the United States in the
implementation of its obligation and, failing success within a reasonable period of
time through the means chosen, it must rapidly turn to alternative and effective
means of attaining that result.”198
The Court reaffirmed the US obligation to refrain from executing the persons
involved before reconsideration of their cases. In its dispositif, the Court found,
unanimously, “that the United States of America has breached the obligation incum-
bent upon it under the Order indicating provisional measures of 16 July 2008, in the
case of Mr. José Ernesto Medellín Rojas.”199
195
US Supreme Court, Medellín v Texas (2008) 554 U.S. 759. In his dissent, Justice Breyer argued
the execution should have been stayed, citing inter alia the ICJ order. He further noted “[. . .]
legislation has been introduced in Congress seeking to provide the legislative approval necessary to
transform our international legal obligations into binding domestic law. See Avena Case Imple-
mentation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July
14, 2008).” Id, 764. He added that prior to Medellín, “[. . .] Congress may not have understood the
legal need for further legislation of this kind. That fact, along with the approaching election, means
that more than a few days or weeks are likely necessary for Congress to determine whether to enact
the proposed legislation,” Ibid. He warned that permitting “[. . .] this execution to proceed forthwith
places the US irremediably in violation of international law and breaks our treaty promises.” Ibid.
He also pointed out that “[. . .] different Members of this Court seem to have very different views of
what this case is about. In my view, the issue in this suit [. . .] is not whether a confession was
unlawfully obtained from petitioner. [. . .] Rather, the question before us is whether the US will
carry out its international legal obligation to enforce the decision of the ICJ. That decision requires a
further hearing to determine whether a conceded violation of the Vienna Convention (Texas’ failure
to inform petitioner of his rights under the Vienna Convention) was or was not harmless.” Id, 765.
Obviously, the possibility that non-compliance with the ICJ’s judgment could be brought before the
UN Security Council is simply a method of enforcement. Lack of involvement by the Security
Council, however, cannot be used as an excuse for domestic courts not to implement obligations
under public international law. That holds particularly true for those obligations which should
indeed be regarded as self-executing for the reasons provided in the dissent by Breyer, in a legal
system that considers treaties the supreme law of the land. Cf on this case the contributions of the
Medellín v. Texas Symposium (2008) such as the pertinent remarks by Paust (2008), pp. 303–333
on the supremacy clause, self-execution and, the role of the UN Security Council.
196
See Sect. 4.2 of this chapter, on jurisdiction.
197
ICJ, Avena II: Request for interpretation of the judgment of 31 March 2004 in the case
concerning Avena and other Mexican nationals (Mexico v US), judgment of 19 Jan 2009, para 47.
198
Ibid.
199
ICJ, Avena II, Request for interpretation of the Judgment of 31 March 2004 (Mexico v US),
judgment of 19 Jan 2009, para 61 under (2).
Indeed, Avena II illustrates a serious dilemma faced with by the ICJ: that of how
to reconcile the principle of consent, and thus the importance of having a firm
jurisdictional basis, with the principle of upholding the interests of international
justice, respect for its own judgments, as well as the principle of preventing
irreparable harm to persons. This may be why the ICJ wished to make clear that
despite its conclusion that it had no jurisdiction to continue the case, it previously did
have jurisdiction to order provisional measures. Moreover, it pointed out that the US
must be in breach of its international obligations until all Mexican nationals referred
to in Avena have received “review and reconsideration” of their individual cases. As
noted, it also reaffirmed the “continuing binding character of the obligations of the
United States of America under paragraph 153(9) of the Avena Judgment.”200
With regard to the execution of Medellín in contravention of its provisional
measures, the Court found that the US “did not discharge of its obligation” under
its order.201 It also reiterated that “its Avena Judgment remains binding and that the
United States continues to be under an obligation fully to implement it.”202 The ICJ
emphasized that the obligation of the US not to execute the other persons contained
in its July 16 order “is fully intact by virtue [. . .] of the Avena Judgment itself.”203
This would appear to imply that the ICJ ordered provisional measures in Avena II not
to ensure a meaningful outcome of the interpretation proceedings but as a follow-up
to the Avena I judgment, simply expressing a requirement flowing from that
judgment.
Returning to more common situations, not involving Article 60 ICJ Statute,
obviously the ICJ may follow up with its orders in its judgments on the merits.
For instance, it has noted with approval the correct implementation of its provisional
measures.204 In various ways, it has also discussed a state’s failure to observe its
provisional measures.205 Nevertheless, the wording and the consequences attached
200
It was with this part that Judge Abraham disagreed. He considered that the Court could not have
said so in a judgment declaring that its competence under Art 60 ICJ Statute did not encompass the
question posed by Mexico. Its competence under Art 60, according to Judge Abraham, could not
include any question related to the execution of the judgment, not in the past, but not in the future
either.
201
Id, para 53.
202
Id, para 60.
203
Id, para 54.
204
See e.g. ICJ, Burkina Faso/Mali, 22 Dec 1986, paras 177–178. In its judgment in this case the
ICJ chamber referred to its order of Jan 1986 and noted “[. . .] with satisfaction that [. . .] the Heads
of State of Burkina Faso and the Republic of Mali have agreed ‘to withdraw all their armed forces
from either side of the disputed area and to effect their return to their respective territories’.”
205
In its judgment in the Nicaragua case (1986) the ICJ specifically discussed the failure of the
parties to fully comply with its order of provisional measures. See ICJ, Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v US), judgment on the merits of 27 June 1986,
paras 286–291. See on Nicaragua’s attempt to renew its request for provisional measures Rosenne
(2005), pp. 170–172.
166 E. Rieter
to a finding of state responsibility in this respect have so far remained rather weak.206
The ICJ did point out in DRC v Uganda that its orders on provisional measures
under Article 41 had binding effect207 and that they “created legal obligations which
both Parties were required to comply with.” Yet it simply found208 that Uganda did
not comply with its order of 2000. It did not attach any specific consequences to this
finding.209 In its judgment in the Bosnia Genocide case (2007), the Court took a
similar approach.210 It just referred to Serbia’s failure to observe the 1993 provi-
sional measures as an element in establishing the state’s responsibility for the failure
to prevent, but it appeared to attach no other consequences to the state’s failure to
observe its provisional measures.211 Kolb pointedly states, “One may well ask
whether this approach is sufficient to inculcate a sense of respect for Provisional
Measures.”212 Moreover, as Judge Cançado Trindade has pointed out, it could have
determined state responsibility for breach of these orders without waiting for the
judgment on the merits.213
In any future cases of non-compliance it is to be hoped that the Court will take an
approach that is gradually more robust. The Court could have said, for instance, as
inspired by human rights adjudicators, that ignoring the Court’s provisional mea-
sures hinders it in performing its judicial function; that it makes impossible proper
judicial settlement; that the state ignored its duty to maintain the status quo pending
the proceedings, which is all the more serious because the Court had ordered
provisional measures directing the state as to its obligations pending the
206
See e.g. Kolb (2013), p. 649.
207
Referring to LaGrand (Germany v US), judgment of 27 June 2001, para 109.
208
It did so by 15 votes to 2 (Judge Kooijmans and Judge ad hoc Kateka dissenting).
209
Its finding on the obligation to make reparation for the injury caused was made before its finding
on non-compliance with its provisional measures.
210
ICJ, Application of the Convention on the prevention and punishment of the crime of genocide
(Bosnia and Herzegovina v Serbia and Montenegro), judgment of 26 Feb 2007, §471(7).
211
ICJ, Application of the Convention on the prevention and punishment of the crime of genocide
(Bosnia and Herzegovina v Serbia and Montenegro), judgment of 26 Feb 2007. In this case, Bosnia
had requested additional provisional measures within four months of the Court’s first order. Instead,
the ICJ reaffirmed that its previous order “[. . .] should be immediately and effectively
implemented,” para 8. See ICJ, Application of the Convention on the prevention and punishment
of the crime of genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)), order of
13 Sept 1993 (second request), para 53. In this light, the Court’s response in its judgment on the
merits to Serbia’s non-compliance with its provisional measures was rather weak. This also related
to the fact that it did not find Serbia responsible for complicity, but only for failure to prevent. In this
context, it referred to the failure to observe its provisional measures as an element in establishing the
State’s responsibility for failure to prevent.
212
Kolb (2013), p. 650.
213
See ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), judgment of 16 Dec 2015, separate opinion of judge Cançado Trindade, paras
31 and 33.
proceedings; and that the state had taken steps to aggravate the dispute even in the
face of a legally binding order not to do so.214
In addition to increasing the strength of wording, the ICJ could explicitly point
out that non-compliance with provisional measures results in aggravated responsi-
bility. It could mention disrespect as a separate violation in the operative para-
graphs, as it did, among others, in its Avena II judgment. It could even allow
non-compliance to have an impact on the evidentiary requirements on the merits,
e.g. by shifting the burden to the state that violated the provisional measures.215 It
could emphasize the obligation of non-repetition by noting that the state is under an
obligation to avoid similar violations in the future, including by taking appropriate
steps to ensure that its provisional measures will be respected.216 While the ICJ is
rather more reluctant than the human rights bodies in ordering guarantees of non-
repetition the fact that its earlier provisional measures were ignored could be an
appropriate situation in which to order the state to take concrete measures to avoid
this in the future. This includes the obligation to take measures to avoid repetition of
a failure to prevent.
7 Conclusion
The ICJ has the authority to order provisional measures proprio motu, and it
routinely modifies the substance of the provisional measures requested by one
state to accommodate the interest of the other state. What is more, it regularly does
so in the general interest of preventing the escalation of a conflict or preventing
irreparable harm to human beings quashed in the middle. In that sense, as a court of
general jurisdiction, it still contributes to the body of law concerned with the
common interest and thereby in a sense validates the approaches taken by other
international adjudicators ordering provisional measures in human rights cases.217
The ICJ is less strict about certain traditional aspects of provisional measures in
cases involving the fate of human beings. It is less strict about the requirement of no
overlap with the main claim and about the requirement that there should be a clear
relation with the main claim. In its use of provisional measures in border conflict
214
See also Lando (2017), stressing strengthening the reporting requirement and introducing an
expedited procedure de non-compliance.
215
In this respect, the ECtHR was wrong in Mamatkulov, where the petitioners bore the conse-
quences of the State’s violation. Judges Bratza, Bonello and Hedigan in fact took the better
approach. See paras 1–13 of their joint partly dissenting opinion attached to ECtHR, Mamatkulov
and Askarov v. Turkey, judgment of 15 Dec 2004. They did agree with the majority on the finding of
a violation of Art 34 ECHR because its provisional measures were ignored.
216
This is customary for human rights adjudicators such and the IACtHR and the HRCtee, see
e.g. HRCtee Weiss v Austria, 03 Apr 2003, CCPR/C/77/D/1086/2002.
217
Human rights adjudicators equally have the authority to order provisional measures proprio
motu, as well as modify the terms of the provisional measures requested by the petitioner.
168 E. Rieter
cases, the ICJ has considered the risk to the lives of people living in border areas,
even if this was not the main concern of the parties themselves. This indicates a
measure of humanization in international adjudication. In addition, the Court also
seems to be quite a bit more resourceful in drafting detailed orders for provisional
measures different from those requested.
At the same time, the finding that its provisional measures are legally binding
appears to have increased the Court’s voluntarist approach and its consonant reluc-
tance to order provisional measures in the general interest. This is evident from the
strict and expansive listing and interpretation of requirements and the application of
the “link requirement” on provisional measures aimed at non-aggravation.
Faced with little time for discussion and contemplation, the principle of
preventing irreparable harm often still prevails over traditional inter-state consider-
ations, also for the ICJ. The way it has used provisional measures has contributed to
mainstreaming human rights in general international law. In fact, it is exactly the
general international law expertise of its members, combined with its general
standing as a judicial body, that allows for a significant contribution to the
mainstreaming of human rights concerns in the general features of the concept of
provisional measures. Whether it will contribute in this manner in the coming years
remains to be seen.
The ICJ also has a role in following up on compliance with its provisional
measures. It has stressed in the operative part of its judgments that states that ignored
provisional measures violated their international obligations. What it does not do
thus far is attaching legal consequences to instances of non-compliance. More could
be done in this respect, as discussed in this chapter.
By determining that prima facie jurisdiction is a prerequisite for the use of
provisional measures, and especially by including the narrower interpretation of
appropriate use of these measures, through demanding evidence of plausibility at
this stage, the Court displays more caution about the use of provisional measures. In
this respect, its relative leniency toward requests for provisional measures involving
the fate of human beings appears to have come to a standstill. Put more mildly, the
ICJ still shows concern for the fate of individuals and groups when faced with
requests for provisional measures, but the balance now seems to be tilted slightly
more toward concern for state consent than toward concern about the fate of the
person.
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The European Court of Justice and Human
Rights Law
Stefan Kadelbach
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
2 The ECJ, Constitutional Courts, and the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
2.1 Fundamental Rights in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
2.1.1 Colliding Claims to Supremacy: The European Union and National
Constitutional Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
2.1.2 The Role of the ECHR and the ECtHR in ECJ Case Law . . . . . . . . . . . . . . . . . . . 175
2.1.3 Conflicts of Jurisdiction: The Example of Germany . . . . . . . . . . . . . . . . . . . . . . . . . 181
2.1.4 Interim Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
2.2 The EU Under the ECHR? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
2.2.1 Jurisdiction of the ECtHR Over EU Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
2.2.2 Accession of the European Union to the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
3 The ECJ and Other Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
1 Introduction
The European Court of Justice (ECJ)1 has an indirect relationship to international

human rights law. On the one hand, the European Union (EU) is like any legal order
subject to the rule of law. The founding treaties subscribe to the protection of
1
Following the nomenclature of Art 19 TEU, the term “Court of Justice of the European Union”
(CJEU) comprises three instances: the specialised courts, the European General Court (EGC) and
the European Court of Justice (ECJ). Judgments appearing in the official records are cited accord-
ingly, references to decisions after 2011 follow the new ECLI system.
S. Kadelbach (*)

https://doi.org/10.1007/978-3-319-94848-5_6
172 S. Kadelbach
fundamental rights2 and use the European Convention of Human Rights (ECHR)3 as
a source of reference (Article 6 TEU). The ECHR inspired the catalog of the EU
Charter of Fundamental Rights (CFR), which has today the rank of primary EU law
(Article 6 (1) TEU). On the other hand, not the least because of the ECJ, the EU is
not yet a party to the ECHR despite Article 6 (2) TEU, which spells out an obligation
to accede.
So far, the EU is itself a party to only one such treaty, the U.N. Convention on the
Rights of Persons with Disabilities (CRPD)4; as such, it forms part of EU law
(Article 216 (2) TFEU). With respect to human rights treaties to which the EU is
not a party, the question arises whether they have a similar potential impact as the
ECHR. A further indirect effect of international human rights treaties may unfold in
the external relations of the EU as they are supposed to be part of their normative
framework (Article 21 (2) TEU). Treaty provisions like those on accession to the EU
(Article 49 TEU), on the relationship with neighbor states (Article 8 TEU), and on
foreign aid (Article 208 (1) TFEU) refer to this commitment to promote human
rights indirectly as one of the “values” of the EU (Article 2 TEU). So far, however,
this facet of human rights law has not yet played a decisive role in the jurisprudence
of the ECJ so that it will not be covered here.
In the following sections, the role of the ECJ as a human rights court will be dealt
with separately with respect to the ECHR and other human rights treaties. Due to its
significance, the emphasis will be on part 2, which is dedicated to the impact of the
ECHR system. It will follow the course of the ECJ, which began with developing EU
fundamental rights out of the ECHR in a relationship of competition for jurisdiction
with domestic constitutional courts (Sect. 2.1). The question remains how conduct in
the realm of EU law or EU policies can be subject to review by the European Court
of Human Rights (ECtHR). It is more complex than the ECJ since the entry into
force of the CFR as binding law aims at emancipating itself from the roots of its own
jurisprudence by loosening its reference to the case law of the ECtHR and by voicing
objections against the draft agreement on the accession of the EU to the ECHR (Sect.
2.2). Part 3 will take a look at the role of other human rights treaties in ECJ case law.
In that rather brief account, the question to discuss will be how the Court deals with
such treaties, in particular how far it assists in implementing existing human rights
obligations and whether it sees one of its functions in the further development of
human rights law (Sect. 4).
2
As far as the ECHR is not addressed as an independent source of law, hereinafter the term
“fundamental rights” will be used.
3
Convention for the Protection of Human Rights and Fundamental Freedoms (the European Human
Rights Convention) (Rome, 04 Nov 1950, CETS 5).
4
Convention on the Rights of Persons with Disabilities (CRPD) (New York, 13 Dec 2006, UNTS
2513, 3; OJ 2010 L 23/35).
The European Court of Justice and Human Rights Law 173
2 The ECJ, Constitutional Courts, and the ECHR
Initially, developing fundamental rights was a compensatory construction by the

ECJ to balance out effects of the supremacy of European Community law, which had
encountered reservations by constitutional courts of member states. Ever since, the
ECJ has had to justify its fundamental rights standards vis-à-vis the member states.
In arriving at a relationship between the EU and domestic top judiciaries, which both
retained their mutually exclusive claims to supremacy and established pragmatic
paths to alleviate possible tensions, the ECHR has played an important role as a
common minimum standard (under Sect. 2.1 below). This function, however, is
difficult to fulfil as long as there is no direct judicial review on EU matters by the
ECtHR. Rather, recent tendencies show ambitions that the ECJ seeks to define this
minimum standard within the EU itself (under Sect. 2.2 below).
2.1 Fundamental Rights in EU Law
2.1.1 Colliding Claims to Supremacy: The European Union

and National Constitutional Courts
As it is well known, the ECJ construed European law as an autonomous legal order
that takes precedence in the sense that no national law, however framed, may
derogate from it.5 As a consequence, domestic courts are under a duty not to apply
conflicting municipal laws,6 which expressly extends to fundamental rights as
guaranteed by the constitutions of the member states.7
Constitutional courts of member states did not completely follow suit. As for the
German Federal Constitutional Court (FCC), it was only in the mid-1980s that it
accepted the supremacy of European law, as long as (solange) the standard of
protection of fundamental rights in the EU corresponds to a level that is essentially
equivalent to the German Basic Law.8 Equally, the FCC announced to declare acts as
nonbinding by which the European institutions, including the ECJ, transgress their
competencies in a grave and obvious manner9 or change the constitutional identity of
5
ECJ, Case 6/64, Costa v ENEL, [1964] ECR 1251, at 1270.
6
ECJ, Case C-184/89, Nimz v Freie und Hansestadt Hamburg, [1991] ECR I-297, para 19.
7
ECJ, Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125, para 3; more recently
joined Cases C-188 and 189/10, Melki and Abdeli, [2010] ECR I-5667, paras 41–45; Case C-416/
10, Križan et al, EU:C:2013:8, paras 70–73.
8
FCC, “Solange II,” BVerfGE 73, 339 (22 Oct 1986), reversing “Solange I,” BVerfGE 37, 271
(29 May 1974); the essence of this jurisprudence has meanwhile been codified in Art 23 (1) Basic
Law; see also Banana Market, BVerfGE 102, 147 (07 June 2002); Data Retention, BVerfGE
125, 260 (02 Mar 2010).
9
FCC, Maastricht Treaty, BVerfGE 89, 155 (12 Oct 1993); Honeywell, BVerfGE 126, 286 at
302 (06 July 2010); Outright Monetary Transactions, BVerfGE 134, 366 at 380, 14 Jan 2014.
174 S. Kadelbach
the Federal Republic.10 Both reservations have a potential impact on fundamental

rights,11 as the Court has recently demonstrated on the occasion of an extradition
case in which the application of the Framework Decision on the European Arrest
Warrant was at stake.12 This notion of a qualified supremacy is widespread among
member states.13 Fundamental rights reservations are also found in the constitution
of Sweden,14 as well as in the jurisprudence of the Irish Supreme Court and the
constitutional courts in Italy, Poland, Spain and the Czech Republic.15 Ultra vires
review has been claimed by supreme judiciaries in the Czech Republic, Denmark,
Hungary and Italy.16 The Swedish Supreme Court declared a reservation with
respect to the ECHR as a minimum standard.17 Other domestic courts drew a red
line along essentials of their constitutions, as it was the case in France, the Czech
Republic and Ireland,18 or reject the priority of EU law over their constitutions
categorically, as do constitutional courts in Greece, Lithuania and Poland.19 These
10
FCC, Lisbon Treaty, BVerfGE 123, 267 (30 June 2009); a further reservation concerns the
budgetary powers of the German Parliament, see the decisions on European Finance Stability,
BVerfGE 129, 124 at 179 (07 Sept 2011), BVerfGE 132, 195 at 239 (12 Sept 2012), and BVerfGE
135, 317 at 399 (18 Mar 2014).
11
Cf FCC, Counter-Terrorism Database, BVerfGE 133, 277 at 316 (24 Apr 2013).
12
Accordingly, human dignity, as enshrined in Art 1 (1) and 79 (3) Basic Law as an immutable
human right, belongs to the constitutional identity of the German state, so it opens judicial review if
the applicant plausible invokes that right, see FCC, European Arrest Warrant (2), BVerfGE
140, 317, para 83 (15 Dec 2015); for a commentary, see Nowag (2016).
13
By contrast, the Austrian Constitutional Court (VfGH, U 466/11, 14 Mar 2012) integrated the
CFR completely into its jurisprudence as a standard, drawing from experience with the ECHR as a
constitutional statute; see Holoubek (2014), pp. 131–133.
14
Chapter 10, Art 5 of the Swedish Constitution.
15
Supreme Court of Ireland, Society for the Protection of Unborn Children Ltd. v Grogan, [1989]
4 I.R. 760 (19 Dec 1989); Corte Costituzionale, Frontini, Sentenza 183/73, [1974] Foro Italiano I,
314 (23 Dec 1973); Tribunal Constitucional de España, Tratado de Maastricht, Decl. 1/1992,
[1992] BOE núm. 177, at 2 (01 July 1992); Idem, Tratado Constiticional, Decl. 1/2004, [2005]
BOE núm 3, at 5 (13 Dec 2004); but see Idem, Melloni, Sent. 26/2014, [2014] BOE núm. 60, at
85 (13 Feb 2014).
16
Supreme Court of Denmark (Højesteret), Carlsen v Rasmussen I 367/1997 [1998] UfR
800 (06 Apr 1998); Corte Costituzionale, Fragd, Sentenza 232/89, [1990] Foro Italiano I, 1855 –,
13 Apr 1989; Czech Constitutional Court (Ústavní Soud), Slovak Pensions, [2012] Pl. ÚS 5/12
(31 Jan 2012); with respect to an early decision of the Constitutional Court of Hungary
(Alkotmánybíróság) see Harmathy (2001), p. 315; see also the citation of the FCC (supra, n 11)
in Supreme Court of the United Kingdom, R on application of HS2 Action Alliance Ltd. et al v The
Secretary of State for Transport, [2014] 3 UKSC, para 111 (22 Jan 2014).
17
Supreme Court of Sweden (Högsta Domstolen), BillerudKorsnäs v Naturskyddsverket, Ö 461-11,
[2014] NJA 79 (25 Feb 2014).
18
Conseil Constitutionnel, Loi relative au droit d’auteur et aux droits voisins dans la société de
l’information, N. 2006-540 DC, JO 2006, 11541 (27 July 2006); Ústavní Soud, Lisbon Treaty,
[2008] Pl. ÚS 19/08 (26 Nov 2008); for Ireland see supra, n 15.
19
As to Greek State Council (Symvoulio Epikrateias), Vagias et al v DI.K.A.T.S.A., No 2878/97
(08 July 1998), see Maganaris (1998), p. 179; Polish Constitutional Court (Trybunal
Konstytucyjny), Constitutionality of the Treaty of Accession, Dec. K 18/04 (11 May 2005);
concepts of subsidiary judicial review in fundamental rights issues, as one may call
them because of the underlying notion of a reserve function if the ECJ fails to respect
predefined constitutional essentials, are in effect claims to judicial primacy in a field
where the scope of jurisdiction and hence the level of protection seems unclear.
2.1.2 The Role of the ECHR and the ECtHR in ECJ Case Law
The Impact of the ECHR on the Development of EU Fundamental Rights
Supremacy over national constitutions and the corresponding reservations by

domestic courts made it indispensable for the ECJ to establish European fundamen-
tal rights that could assume the function of the constitutional provisions, which had
to cede to superior EC law. Initially, it took the common constitutional traditions of
the member states as a point of reference.20 Starting from 1974, when France as the
last of the then EC member states had ratified the Convention, the ECJ added
common international human rights obligations as a further source, the ECHR
being the most important instrument in that respect.21 Until the 1990s, the ECJ
had recognized all of the human rights enshrined in the Convention.22 By then, the
ECJ consulted ECtHR judgments as authority for its own case law on a regular
basis,23 even though in a somewhat eclectic manner.24 In most instances, the ECJ
followed the case law of the ECtHR and, if necessary, modified its own jurispru-
dence.25 For other guarantees, like the rights of the defendant in antitrust proceed-
ings, the ECJ developed an own line.26 The ECJ conceives the unwritten human
Lithuanian Constitutional Court (Konstitucinio Teismo), Cases No 13/2000 and Others

(14 Mar 2006).
20
The first fundamental rights decision was ECJ, Case 29/69, Erich Stauder v Stadt Ulm, [1969]
ECR 419.
21
ECJ, Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission, [1974] ECR
491, paras 12–13; the ECHR is mentioned for the first time in Case 36/75, Rutili v Ministre de
l’intérieur, [1975] ECR 1219, para 32; as a standard for Community law the ECHR is first used in
Case 44/79, Hauer v Land Rheinland-Pfalz, [1979] ECR 3727, para 15.
22
Cf Alston and Weiler (1998), p. 658.
23
ECJ, joined Cases C-46/87 and C-227/88, Hoechst AG v Commission, [1989] ECR 2859, para 18;
Case C-274/99 P, Conolly v Commission, [2001] ECR I-1611, paras 39–49.
24
Cf Douglas-Scott (2006), pp. 644–652.
25
In Hoechst (supra n 23), para 17, the Court held that a formal search warrant was needed only for
private apartments, but not for business premises; in Case C-94/00, Roquette Frères v Directeur
général de la concurrence, [2002] ECR I-9011, para 29, the Court expanded protection, following
the line drawn in ECtHR, Niemietz v Germany, Ser. A No 251-B (1992), para 31 and Colas Est v
France, Rep. 2002-III, para 41.
26
The reason is that due process guarantees like in Art 6 ECHR only apply to judicial proceedings,
but not to administrative antitrust procedures. See Case 374/87, Orkem v Commission, [1989] ECR
3283, paras 34–35; upheld in Case C-301/04 P, Commission v SGL Carbon AG, [2006] ECR
I-5915, para 43; cf van den Berghe (2010), p. 120; Weiß (2011), pp. 78–80.
176 S. Kadelbach
rights catalog as “general principles of Community law” on an equal rank with the
founding treaties.27 The EU Treaty expressly refers to it in Article 6 (3) TEU.
Paradoxically, along with the further elaboration of EU fundamental rights, the
ECHR gradually lost significance. The judge-made law, for which it served as a tool,
proved unsatisfactory for various reasons.28 It was in continuous flow and therefore
vague. Critique of judicial activism by the ECJ extended to fundamental rights
jurisprudence. Skeptics were blaming the ECJ for stretching fundamental rights
too far into member states’ powers and for not applying them strictly enough to
legal acts of the Community.29 The exercise of public authority by the Union was in
need of a clear framework of individual rights as a basis of legitimacy, and this,
arguably, is rather for the political process to set up than for the judiciary.
As a response, the Charter of Fundamental Rights of the European Union (CFR)
codified the fundamental rights jurisprudence of the ECJ and amended it by other,
particularly political, economic and social rights, some of which were inspired by
universal human rights treaties.30 As to substance, they cover all guarantees
enshrined in the ECHR and many of those of its additional protocols.31 Since the
entry into force of the Lisbon Treaty in 2009, the Charter is placed on the same rank
as the founding treaties.32
For Charter rights taken over from the ECHR, Article 53 CFR clarifies that no
provision may be interpreted in a way as to restrict or to violate individual rights
enshrined in international agreements. Article 52 (3) CFR, which is devoted to the
ECHR as well, states that rights that correspond with ECHR guarantees have the
same meaning and scope as attributed to them by the Convention but that it is not
precluded that the CFR grants a higher level of protection. The meaning of this
clause is controversial. One reading construes it merely as to imply that Charter
rights must not be understood to fall short of the ECHR; then its purpose would be to
harmonize the interpretation of both documents.33 In a joint statement, the presidents
of the ECtHR and the CJEU accordingly call for a “parallel interpretation” of rights
27
See ECJ, Case C-260/89, Elliniki Radiophonia Tileorassi v Dimotiki Plioforisis, [1991] ECR
I-2925, para 41 (“ERT Case”).
28
Toth (1997), p. 491.
29
Cf the debate between Coppel and O’Neill (1992), p. 669, and Weiler and Lockhart (1995),
pp. 51 and 579.
30
OJ 2000 C 364/01; proclaimed again by the presidents of Parliament, Council and Commission in
2007, OJ C 303/1. The CFR is quoted here in the version as amended by the Lisbon Treaty, OJ 2010
C 83/389. For the drafting process, see De Búrca (2015).
31
See the official explanations in OJ 2007 C 303/17; Lenaerts (2012), pp. 394–399.
32
After a period in which the Charter was used as a non-binding reference document, see EGC, Case
T-54/99, max.mobil v Commission, [2002] ECR II-316, para 48; ECJ, Case C-303/05, Advocaten
voor de Wereld v Leden van de Ministerraad, [2007] ECR I-3633, para 46.
33
Pernice (2002), p. 10.
found in the Charter, as well as in the Convention.34 Another reading would ascribe
more weight to the Convention: since Article 52 (3) CFR does not only speak of
interpretation, as does Article 53 CFR, but refers to “scope and meaning,” it is
suggested to go beyond mere parallel interpretation and to read it as an incorporation
of those rights into the CFR which it adopted from the ECHR.35 The difference
between the two views is more than gradual since the latter would affect the status of
large portions of the ECHR within the EU legal order so that it would share the rank
of the founding treaties. Which rights of the CFR correspond to the ECHR is
described in the official Explanations of the Charter,36 which, according to Articles
6 (1) [3] TEU and Article 52 (7) CFR, have to be taken into account by the courts of
the EU and the member states.
To sum up, the ECHR has been adopted as a standard in two ways: as part of
general principles of Union law (Article 6 (3) TEU) and via its reception in the
Charter (Article 6 (1) TEU). The ECJ usually refers to the ECHR as a source with
respect to both the CFR and general principles in the same case.37 However, the
Court clearly stated that the ECHR as such does not take direct effect in the member
states as Union law with the consequence that conflicting domestic law would have
to cede to it.38 It is only by virtue of its inspiring function that the ECHR has had an
indirect, but important, influence on the EU’s human rights standard. The incorpo-
rated ECHR guarantees now share the rank of the Charter and form the core of
fundamental rights protection in the EU.39 The jurisprudence on general principles
(Article 6 (3) TEU) remains important in as far as it goes beyond that core, which is
conceivable with respect to human rights treaties concluded after the Charter was
drafted.40
Binding Effect
Since the elevation of the Charter to primary Union law, the ECJ, mainly under its
jurisdiction for actions of annulment (Article 263 TFEU) and preliminary reference
procedures (Article 267 TFEU), uses the Charter as the principal standard for judicial
34
Joint communication from the Presidents of the two courts, Costa and Skouris (24 Jan 2011),
http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf Accessed
16 Mar 2017.
35
Callewaert (2008), p. 117.
36
See supra, n 31.
37
See, for instance, ECJ, Case C-93/12 Agrokonsulting Stoyanov, EU:C:2013:432, para 59.
38
ECJ, Case C-571/10, Kamberaj, EU:C:2012:233, paras 59–63.
39
For consequences, see Weiß (2011), pp. 72–95.
40
It is unclear what Art 6 (3) TEU means for the reservation of UK and Poland according to which
the Charter shall not create new rights before British and Polish domestic courts, Protocol (No. 30)
to the TEU on the Application of the Charter to Poland and the United Kingdom.
178 S. Kadelbach
review of secondary EU law.41 The latter procedure gives domestic courts the
opportunity to direct questions of interpretation occurring under the Charter to the
ECJ, which has led to a considerable increase of fundamental rights cases. As a
parallel development, scrutiny has apparently become stricter in comparison to
previous cases.42 At the same time, reference to human rights treaties and in
particular the ECHR and the jurisprudence of the ECtHR seems to have decreased,
which leads to the conclusion that the ECJ aims at developing fundamental rights
jurisprudence on its own.43 It refers to the ECHR in more detail when EU law
expressly refers to the standards of the ECHR, when a domestic court directs
questions on the ECHR to the ECJ, or when one of the parties to the dispute invokes
its guarantees.44 This attitude would fit with the observation that the ECJ has
reinforced its ambitions to assume the role of a constitutional court of the EU and,
as a consequence, to promote a general centralization of fundamental rights.45 This
alone would not say much as to whether the ECJ or the ECtHR offers the higher level
of protection. However, the fact remains that divergences appear less obvious as far
as the ECJ does not directly relate its case law to ECHR standards any more.
That the ECJ defends its role as a constitutional court also against international
organizations is the lesson from the well-known Kadi case, where it subjected
measures directed at implementing U.N. Security Council counterterrorism resolu-
tions to its judicial review if no other remedy is available. Even though duties under
the UN Charter prevail over other international law obligations (Article 103 UNC),
the Court held that international treaties must not prejudice constitutional principles
of the Union.46 The Court thereby applied a pattern similar to the reservations of
domestic constitutional courts with respect to EU law, although in a reverse direc-
tion: as soon as the authorities at the U.N. level abide by a decent human rights
standard, it implies, the Court would not exercise jurisdiction, but for the time being,
it will.
As to the effects of violations, they depend on the responsible institution. If EU
law is in conflict with fundamental rights, the ECJ will annul it by virtue of its own
powers if no reading in conformity with it is possible. With respect to law of the
41
On the structuring of review see Kühling (2011), pp. 501–511. For declarations of invalidity see,
e.g., ECJ, joined Cases C-92/09 and C-93/09, Schecke and Eifert, [2010] ECR I-11063, paras
45–89; Case C-236/09, Association Belge des Consommateurs Test-Achats, [2011] ECR I-773;
joined Cases C-293/12 and 594/12, Digital Rights Ireland EU:C:2014:238; Case C-362/14,
Schrems v Data Protection Commissioner, EU:C:2015:650.
42
Cf ECJ, Case C-131/12, Google Spain, EU:C:2014:317, paras 74–88.
43
De Búrca (2013), pp. 174–176.
44
ECJ, Case C-562/13, CPAS v Abdida, EU:C:2014:2453, para 47 (Art 53 (3) CFR, Art 3 ECHR);
Case C-583/13 P, Deutsche Bahn, EU:C:2015:404, paras 14–48.
45
For such concerns see Masing (2015), p. 477; Volkmann (2015), pp. 481–487.
46
ECJ, Case C-402/05 P, Kadi and Al Barakaat v Council and Commission, [2008] ECR I-6351;
Cases C-399/06 P and 403/06 P, Hassan and Ayadi v Council and Commission, [2009] ECR
I-11393; Cases C-584/10 P et al, Commission v Kadi, EU:C:2013:518, para 66. For discussion, see
Halberstam and Stein (2009), p. 13.
member states, however, the ECJ can only pronounce itself on an interpretation in
harmony with fundamental rights.47 Thus, if legislation that aims at transforming an
EU directive into domestic law or an administrative act encroaches upon CFR rights,
the responsibility of the state arises to amend the law or to withdraw the act, as it is
the case after an international court, tribunal, or other body arrives at the conclusion
that there has been a human rights violation. The same holds true if member state
behavior violates EU law, which in turn specifies fundamental rights, as it is
frequently the case in antidiscrimination law.48
What now are the consequences for the member states of the EU? According to
pre-Charter jurisprudence, member states are bound by EU fundamental rights when
state authorities execute directly applicable EU law49 or implement EU legislative
acts like directives into domestic law (so-called agency situation).50 Since asylum
law has become an EU power, the latter case increasingly occurs, for instance, in
refugee law in the scope of the 1951 Geneva Convention.51 A second category is
cases in which member states set limits to Single Market freedoms by enacting
legislation in the public interest (derogation situation).52 It is controversial since it
represents a sample of contradictory judgments with an unclear potential to extend to
all areas of law, be it within the competencies of the EU or not, once an act has an
impact on the freedoms of the common market.53
Article 51 CFR seems to take a more restrictive approach by spelling out that
member states are bound by the Charter “only when they are implementing Union
law.” This reads as if binding effects were confined to the agency situation. How-
ever, the official commentary to the Charter still mentions derogation cases.54 But
also for agency situations, Article 51 CFR is open for a wide understanding. In
Åkerberg Fransson, a Swedish double jeopardy dispute in a VAT case, the ECJ saw
47
See Google Spain (supra n 42), para 68.
48
See ECJ, Case C-83/14, Razpredelenie Bulgaria, EU:C:2015:480 (discrimination based on ethnic
origin); the condition is that such behavior falls in the scope of EU law, see Case C-309/96,
Annibaldi, [1997] ECR I-7493, where an Italian restriction on land use in a protected nature resort
was found to be beyond the reach of EU objectives.
49
ECJ, Case C-5/88, Wachauf, [1989] ECR 2609, para 19; Case C-2/92, Bostock, [1994] ECR I-955
para 16.
50
ECJ, Case C-442/00, Rodríguez Caballero, [2002] ECR I-11915, para 31.
51
For an example ECJ, Case C-472/13, Shepherd, EU:C:2015:117, para 23.
52
See the ERT case (supra n 27); ECJ, Case C-112/00, Schmidberger, [2003] ECR I-5659, paras
77–80. This, of course, is a different use of the term “derogation” than with respect to the so-called
derogation clauses of human rights treaties such as Art 15 ECHR.
53
See ECJ, Case C-36/02, Omega, [2004] ECR I-9609: As opposed to the ERT case (supra n 27),
the ECJ found that a member state derogating from free movement of goods by prohibiting certain
computer games for public policy reasons disposes of a margin of appreciation in assessing which
measures are suitable to protect human dignity. See also Case C-159/90, SPUC v Grogan, [1991]
ECR I-4685, about the distribution of information to pregnant women in Ireland about British
clinics; the ECJ declared this conflict between the freedom to provide services with freedom of
religion to be out of the reach of EU fundamental rights.
54
OJ 2007 C 303/17, at 32.
180 S. Kadelbach
three points as sufficient to trigger the applicability of the CFR: (1) that the
obligation to make a tax statement once a year was explicitly spelled out in an EU
directive, (2) that VAT contributed to the EU budget, and (3) that violations were to
be sanctioned under EU law.55 Since Swedish law existed and functioned in
compliance with the VAT directive independently, none of these points would
have required it to take any implementing measures.56 Applied as a general rule,
this decision would mean to identify “implementation” on Article 51 with “scope” of
application of EU law and amount to a far-reaching interpretation of Article
51 CFR.57 For such cases in which parallel legislation on both EU and state levels
exists, the ECJ sees the responsible authorities under a potential obligation to abide
by both EU and member state fundamental rights, apparently referring to Article
53 CFR, which seems to ensure that the CFR leaves higher standards in the member
states unaffected.
This requirement, however, is hard to reconcile with the Melloni case handed
down on the same day, according to which such a dual obligation must not
compromise the supremacy of the EU.58 Accordingly, Article 53 CFR must not be
interpreted to imply that member states may oppose their constitutional levels of
protection to the application of Union law. The background is an arrest warrant case
in which Italy had requested extradition from Spain of a person who had been
sentenced in absentia for 10 years. On reference by the Spanish constitutional
court, the ECJ demanded mutual trust between the member states with regard to
their respective standards of procedural protection but held that constitutional rights
in Spain must not compromise the principle of mutual recognition as provided for in
the arrest warrant framework decision. It saw this decision in itself as a sufficient
guarantee of fundamental rights. To a certain extent, the case marks a contrast to
earlier jurisprudence in residence and asylum law cases according to which this
mutual trust was to be conceived as a presumption in favor of the equivalence of
standards, which can, however, be rebutted if it is established that the common level
55
ECJ, Case C-617/10, Åkerberg Fransson, EU:C:2013:105, paras 25–27. The scope of EU law is
not determined by the fact that a directive covers certain field, but depends on interpretation of its
provisions; see Case C-87/12, Ymeraga, EU:C:2013:291, para 42.
56
Double jeopardy in tax law had been an issue for quite some time. For the resolution in the sense
of the ne bis in idem principle Högsta Domstolen, PMP v Riksåklagaren, B 4946-12, [2013] NJA
502 (11 June 2013); further reference for the Swedish discussion in Bernitz (2015), p. 191.
57
The difference is that implementation refers to a specific duty under EU law, whereas scope
merely means any field in which the EU has made, or might make, use of its powers. The FCC
registered objections, see Counter-Terrorism Database, BVerfGE 133, 277, at 316 (24 Apr 2013).
For critique see also, among many others, van Bockel and Wattel (2013), p. 866; Fontanelli (2013),
p. 315; for a constructive reading Sarmiento (2013), p. 1267. Some chambers of the ECJ still tend to
follow a more restrictive approach as in the Annibaldi Case (supra n 48), see Case C-206/13,
Siragusa, EU:C:2014:126, paras 22–32; it remains to be seen if the Åkerberg Fransson rationale
will prevail.
58
ECJ, Case C-399/11, Melloni v Ministerio Fiscal, EU:C:2013:107, paras 58–64; the requirement
is less strictly applied in Case C-168/13 PPU, Jeremy F., EU:C:2013:358, paras 48–53, see remarks
by Walter, Vordermayer (2015), pp. 142–143.
spelled out in the Charter is no longer met.59 We will see that this so-called Melloni
doctrine, which has encountered much criticism,60 plays a role in the ECJ’s opinion
in the accession of the EU to the ECHR.61
2.1.3 Conflicts of Jurisdiction: The Example of Germany
The Constitutional Court and Fundamental Rights of the EU
That the FCC has recognized in principle that the EU level of protection lives up to a
standard essentially equivalent to the Basic Law62 entails procedural consequences.
The FCC announced a “relationship of cooperation” between itself and the ECJ: the
ECJ is responsible for the protection of fundamental rights with respect to EU
matters, whereas the FCC would reserve powers for the protection of individual
rights “in Germany.”63 The line between the two jurisdictions is sometimes difficult
to draw. While EU regulations which take direct effect clearly fall within the
purview of EU fundamental rights, the case is less obvious when acts of member
states are required in order to achieve the goals of EU policies. The problem is best
illustrated with directives, a category of EU legislation that is binding on states with
respect to their objectives but leaves it to the member states how to implement its
contents (Article 288 (3) TFEU). Thus, a domestic statute of transformation is both
EU and national laws. According to the FCC, the ECJ has jurisdiction for review as
far as the subject matter is predefined by EU law, whereas the FCC exerts jurisdic-
tion as far as the transformation law lies within the margin of appreciation of the
member states.64 In other words, whereas the ECJ, as we have seen, starts from the
assumption that a dual responsibility under both fundamental rights systems is
possible, the FCC favors an approach according to which both stand in an alternative
relationship. Article 51 CFR mentioned above, accordingly, would function as a
59
ECJ, joined Cases C-411/10 and 493/10, N.S. v Secretary of State, [2011] ECR I-13905; cf Canor
(2013), p. 383. In Case C-404/15, Aranyosi, EU:C:2016:198, the Court held that execution must be
postponed if there is a real risk of a violation of Art 4 CFR (inhuman treatment); however,
extradition may not be abandoned; cf Anagnostaras (2016). To the same effect Case C-578/16
PPU, CK et al, EU:C:2017:127.
60
de Boer (2013), p. 1083; Besselink (2014), p. 531; Torres Perez (2014), p. 308.
61
See below, Sect. 2.2.2.3.
62
See supra n 8.
63
FCC, Maastricht, BVerfGE 89, 155 at 175 (12 Oct 1993). As to the “relationship of Coopera-
tion,” see Grabenwarter (2015).
64
FCC, European Arrest Warrant (1), BVerfGE 113, 273 (18 July 2005); Emission Trading,
BVerfGE 118, 79, at 95 (13 Mar 2007); Data Retention, BVerfGE 125, 260 at 308 (02 Mar
2010); Investment Subsidies, BVerGE 129, 186 at 198 (04 Oct 2011).
182 S. Kadelbach
conflict of laws norm.65 However, the exceptions to this rule are the doctrines of ultra
vires and constitutional identity, referred to above.66
The consequences are twofold. On the one hand, the ECJ is integrated into the
municipal legal protection scheme. Thus, lower courts are under a constitutional
obligation to refer a case to the ECJ if the validity of EU legislation on grounds of
fundamental rights is at stake.67 If such courts arbitrarily fail to initiate a preliminary
ruling by the ECJ (Article 267 TFEU), the party that claims a fundamental rights
violation may bring the case to the FCC on grounds of denial of justice.68 Referrals
by lower courts to the FCC for alleged infringements of the Basic Law are inadmis-
sible if the case falls into the jurisdiction of the ECJ and no preliminary ruling was
requested69 or if pertinent case law of the ECJ already exists.70 In such constella-
tions, fundamental rights complaints before the FCC are inadmissible.71
On the other hand, if the ECJ tends to stretch its powers further than delimited by
the FCC, it runs the risk of being found by the FCC as acting ultra vires, in which
case the FCC would claim subsidiary jurisdiction. For routine cases, however, the
ECJ and the FCC appear to have found a way to delimit their mutual claims in a
relationship of complementary competencies. The question now arises which role
the ECHR has to play in this multilevel fundamental rights system.
The ECtHR and Domestic Constitutional Law
The status of the ECHR in its 47 member states is very different. As for the EU
members, three models can be discerned72: Only rarely is the ECHR placed on the
rank of constitutional law, as it is the case in Austria, or plays a comparable role.73
According to a second model, the Convention shares the rank of the act of transfor-
mation, which takes for the most part the shape of statute law.74 Thirdly, and most
commonly, the ECHR is placed on an intermediate level in that it has the form of
65
See the account of case law by Britz (2015), p. 275.
66
See supra, Sect. 2.1.1; cf also Reinbacher and Wendel (2016), p. 336.
67
FCC, Cassina, BVerfGE 129, 78, at 102 (19 July 2011).
68
FCC, Kloppenburg, BVerfGE 75, 223 (08 Apr 1987).
69
FCC, Investment Subsidies, BVerfGE 129, 186 (04 Oct 2011).
70
FCC, Prohibition for Women to Work at Night, BVerfGE 85, 191, at 203 (28 Jan 1992).
71
FCC, Container Recycling System, (2012) NJW 54: 598 (21 Nov 2011).
72
See Contributions in Keller and Stone Sweet (2008) and Caligiuri and Napoletano (2010), p. 129.
73
In the Netherlands, where there is no constitutional court, the judiciary is required to grant priority
to self-executing treaties (Art 94 of the Constitution), which includes the ECHR. This is remarkable
since the courts do not have the power to dismiss unconstitutional acts of parliament (Art 120 of the
Dutch Constitution).
74
Examples are the Scandinavian states and UK.
statute law but is attributed a different kind of efficacy when it comes to conflicts
with the domestic legal order.75 The impact of the ECtHR varies accordingly.
The German legal system formally belongs to the third category: the ECHR is
incorporated into domestic law by statute, but the FCC ascribes special constitu-
tional effects to it. This construction allows it to qualify the impact of the Convention
and the jurisprudence of the ECtHR. For the most part, the jurisprudence of the FCC
is in harmony with both. However, there have been instances in which the two courts
arrived at different conclusions. Examples comprise prolonged judicial proceed-
ings,76 the right of divorced fathers to have contact with their children,77 the
balancing out of the rights of a free press and the right of celebrities to privacy,78
and retroactive orders of preventive detention for convicted persons.79 Since the
fundamental rights complaint is the last of the domestic remedies to be exhausted
before an application before the ECtHR is admissible (Article 34 ECHR), the FCC
had been involved in all of these cases. The question arises what the consequences of
a collision with the Convention under German law are.
Since the ECHR guarantees are not part of the constitutional fundamental rights
catalog, they may as such not be invoked before the FCC.80 To avoid that the ECHR
be abrogated by statute law passed at a later point in time, the Basic Law is to be
construed as to open the legal order toward international cooperation.81 Thus, its
provisions are to be interpreted in harmony with public international law.82 For the
ECHR, this means that the fundamental rights guarantees, as well as general
principles such as the rule of law, are to be applied against its background.83 As a
result, the fundamental rights of the Constitution, as informed by law and practice of
the ECHR, may be invoked before the FCC, and lower courts are under an obligation
to adjust their practice accordingly.84
As a matter of principle, these guidelines are also valid with respect to the
jurisprudence of the ECtHR. It follows from both the ECHR itself and the rule of
law as a constitutional principle that the Convention must be interpreted as it is
applied by the ECtHR.85 However, this does not go without reservations. In
75
This is the case, for instance, with Belgium, France, Greece, Portugal and Spain.
76
See ECtHR, Sürmeli v Germany, Rep. 2006-VII.
77
ECtHR, Sommerfeld v Germany, Rep. 2003-VIII; Görgülü v Germany (26 Feb 2004, 74969/01);
Schneider v Germany (15 Sept 2011, 17080/07).
78
Violation of privacy: von Hannover v Germany Rep. 2004-VI; violation of freedom of the press
Axel Springer AG v Germany (07 Feb 2012, 39954/08).
79
ECtHR, M. v Germany Rep. 2009-VI, as repeatedly upheld in further cases.
80
FCC, Presumption of Innocence, BVerfGE 74, 358, at 370 (26 Mar 1987) and BVerfGE 82, 106,
at 114 (29 May 1990). Suggestions in legal writings to attribute to it a higher level in the legal
hierarchy did not convince practice; see Giegerich (2013), paras 51–82, with further reference.
81
For an analysis see Tomuschat (2010), p. 513.
82
FCC, Görgülü, BVerfGE 111, 307, at 318 (14 Oct 2004).
83
Presumption of innocence (supra n 80).
84
Görgülü (supra n 82), at 329.
85
von Ungern-Sternberg (2013), pp. 27–31.
184 S. Kadelbach
Görgülü, a family law case, the FCC held obiter that ECtHR rulings may not be
“schematically executed.”86 In “multipolar” legal relationships where a careful
balancing out of the participating interests is necessary, the FCC considers it even
to be a constitutional duty of the courts to place the weights in a different manner.87
Examples given are, besides family law, cases of expulsion of foreigners and
conflicts between the right to privacy and the freedom of the press.88 So far,
however, these qualms have not materialized, on the contrary.89 Exceedingly long
criminal procedures that violate Article 6 ECHR, for instance, amount to a violation
of the right to liberty under the German Basic Law if the complainant is held in
custody.90 In its judgment on retroactive detention orders, the FCC changed previ-
ous jurisprudence. Even though it upheld its line according to which preventive
detention does not amount to criminal punishment in the sense of the Constitution,
the FCC integrated the ECtHR judgment, which declared its retroactive ordering or
prolongation to be a violation of the nulla poena principle (Article 7 ECHR) into its
concept of legitimate expectations under the rule of law.91 Thus, it ordered that new
laws on preventive detention must be enacted. With respect to procedural effects, the
FCC established that a judgment by the ECtHR is a reason to overcome the binding
effect of its own former decisions on the matter so that the bar of res judicata to a
new complaint for violation of fundamental rights is removed.92
2.1.4 Interim Conclusions
The functioning of the ECJ as a human rights court is to be seen in a context of three
layers of fundamental rights systems. Domestic, EU, and ECHR protection systems
stand in certain tensions with each other. The Convention is integrated into the EU in
an indirect manner, whereas the ECHR is incorporated into municipal law in
86
Görgülü (supra n 82), at 323.
87
Ibid, at 324; see also Huber (2011), p. 2385; for critique see Hofmann (2004), p. 9.
88
These passages spelling out restrictions on the duty to implement ECtHR judgments must be read
in the context of a previous case in which the FCC had rejected a complaint by a member of the
aristocracy against court decisions in a civil law suit which upheld the right of lion hunters to
publish photographs taken in a private environment, see FCC, Caroline von Monaco BVerfGE
101, 361 (15 Dec 1999). At a later stage, the ECtHR held that the same decisions were in conflict
with the right to private life, see n 74.
89
As to mandatory service (or the right to liberate oneself from it by payment of an amount of
money) in a local fire brigade only for men: no unjustified discrimination seen in BVerfGE 13, 167
(17 Oct 1961); reversed in BVerfG (1995) NJW 27: 1733 (24 Jan 1995), after the ECtHR had found
a violation of the prohibition of sex discrimination in Schmidt v Germany, Ser. A 291-B (1994). For
the obligation to take note of the ECtHR jurisprudence, see BVerfG (Chamber), (2007) Neue
Zeitschrift für Verwaltungsrecht 7: 808 (13 Dec 2006); for the stabilising effects in a system of
competing jurisdictions Merli (2007), pp. 403–404.
90
FCC (Chamber), (2003) NJW 31: 2225 and 2228 (05 Feb 2003).
91
FCC, Preventive detention, BVerfGE 128, 326 (04 May 2011).
92
Ibid, at 364.
different ways. It plays a decisive role in the interpretation of fundamental rights by

EU and domestic courts alike and serves as a core standard of reference for both.
However, as of now, the ECJ does not use the Convention as a yardstick to measure
EU law directly; as we have seen, neither does the German constitutional court—and
the same is true, mutatis mutandis, for many other supreme judiciaries. It is therefore
interesting to see how this method fits into the jurisprudence of the ECtHR and how
this delicate balance might change once the EU will have acceded to the ECHR.
2.2 The EU Under the ECHR?
2.2.1 Jurisdiction of the ECtHR Over EU Matters
Generally, it is up to the parties to the Convention how they comply with their
obligations. The ECtHR does not suggest specific ways of its domestic application
but holds the member states responsible under an obligation of result.93 This also
holds true in as far as the member states have transferred powers to the EU.
In early cases, the institutions of the ECHR refused to check EC measures against
the Convention; they declared complaints inadmissible ratione personae since the
EC was not a contracting party.94 The Commission and the Court exercised juris-
diction only over acts of the member states.95 As far as states possess discretionary
power in that respect, the ECtHR also ruled on the merits of the case.96 In some
instances, the ECtHR took EC law so as to reinforce human rights granted by the
Convention. Thus, it saw a violation by a member state of a directive, which aimed at
reducing emissions by chemical production facilities, as a breach of the right of
neighboring residents to privacy.97
At a later stage, the Court held in its famous Matthews case that the member states
remain responsible under the Convention also after having ceded powers to the
Union. Accordingly, the right to vote as granted in the first additional protocol to the
Convention applied to the European Parliament, and Britain was under an obligation
to grant those rights also to residents of Gibraltar.98 Since it was the member states
that had regulated the elections to the European Parliament, the question of juris-
diction on measures taken by the European Union did not arise.
93
For exceptions to this rule see Pinto de Albuquerque, State Obligations in the European System,
in this Volume.
94
E Comm’n HR, Confédération Française Démocratique du Travail v EC, 13 DR 231 (10 July
1978, 8030/77).
95
E Comm’n HR, Melchers v Germany, 64 DR 138 (09 Feb 1990, 13258/87).
96
E Comm’n HR, Procola v Luxembourg, 75 DR 5 (01 July 1993, 14570/89); ECtHR, Cantoni v
France, Rep. 1996-V.
97
ECtHR, Guerra et al v Italy, Rep. 1998-I.
98
ECtHR, Matthews v UK, Rep. 1999-I.
186 S. Kadelbach
This matter was settled, for the time being, in the famous Bosphorus case.99 A
Turkish airline operating with a state-owned Yugoslav aircraft was subject to the
embargo enacted against Yugoslavia by an EU regulation. The Court went into the
merits of the case but did not find a violation. Even though the member states
remained to be bound by the Convention in their capacity as members of the EU,
the ECtHR would not, as a rule, exercise jurisdiction if the act in question was
attributable to the Union. As in Matthews, the Court held the member states
accountable for human rights violations of the EU, but as long as the Union disposed
of a fundamental rights review mechanism equivalent to the ECHR, the member
states are presumed to have observed their obligations. This presumption can only be
rebutted if the complaining party establishes that the level of protection provided by
the EU is “manifestly deficient.” The rationale is a reminder of the “as-long-as”
(solange) jurisprudence of the German FCC.100 One may conclude that the ECtHR
would not assume jurisdiction if an act is attributable to the EU alone: in a European
public service case, there was no involvement of a member state so that the
application was dismissed ratione personae.101 However, also in such cases, the
ECtHR would examine the allegation that internal review mechanisms were “man-
ifestly deficient.” According to case law following Bosphorus, the ECtHR would
demand jurisdiction with respect not only to single acts by the member states but also
to the protection scheme offered by the organization as a whole.102 This applies to
both “the substantive guarantees offered and the mechanisms controlling their
observance.” Accordingly, the ECtHR tested the preliminary reference procedure
before the ECJ against this standard103 and took it as a reason to go into the merits if
a municipal court declined to refer a case to the ECJ without a plausible reason.104
With respect to cases in which the implementation of measures taken by the
United Nations is at risk to collide with human rights, the ECtHR, compared to the
ECJ, takes a slightly different stand. The Court starts from the presumption that the
Security Council “does not intend to impose any obligation on Member States to
breach fundamental principles of human rights”; the member states are under an
obligation to interpret them in harmony with the requirements of the Convention.105
If transformation is necessary, as in the trade embargo cases, the Bosphorus rationale
applies. If there are no implementing measures and the act in question is attributable
99
ECtHR, Bosphorus v Ireland, Rep. 2005-VI.
100
Supra, n 8; see also Lavranos (2008), p. 275.
101
ECtHR, Connolly v 15 Member States of the EU Application (07 Feb 2008, 73274/01).
102
ECtHR, Boivin v 34 Member States of the Council of Europe Rep. 2008-IV; see discussion in
Janik (2010), p. 127.
103
ECtHR, Kokkelvisserij v The Netherlands Rep. 2009-I.
104
ECtHR, Michaud v France Rep. 2012-VI, paras 105–116; such a refusal may result in a violation
of Art 6 Vergauwen v Belgium (10 Apr 2012, 4832/04), paras 89–90.
105
ECtHR, Al-Jedda v UK Rep. 2011-IV, para 102; Al-Dulimi v Switzerland (21 June 2016, 5809/
08).
to the United Nations, the Convention would not apply ratione personae.106 Thus, in
the Kadi constellation,107 in which the EU enacted regulations to transpose
U.N. sanctions without leaving discretion, the ECtHR would deny review as long
as the CJEU assumes jurisdiction.
Thus, similar to the German FCC, the ECtHR does not examine fundamental
rights cases concerning the EU as long as its system provides essentially equivalent
protection. The ECJ applies a similar pattern to the U.N. but arrives at a stricter
scrutiny test as long as judicial review at that level is lacking.
2.2.2 Accession of the European Union to the ECHR
The Draft Accession Agreement
Even though fundamental rights protection has continuously intensified, lacunae

have remained. There is no fundamental right complaint under the treaties. Addi-
tionally, there is no remedy against legislative measures. The Lisbon Treaty intro-
duced a new provision (Article 263 (4) TFEU), which facilitates annulment
proceedings for individuals not only against administrative decisions of the EU but
also against “a regulatory act which [. . .] does not entail implementing measures.”
However, according to the ECJ, this only covers regulations enacted without parlia-
mentary participation.108 Moreover, notwithstanding the orientation of the ECJ
toward ECtHR judgments, there is still a risk of divergences of the human rights
case law between the two judiciaries.109 A further problem is that the area in which
the member states can comply with their human rights obligations independently
becomes smaller the more powers the member states transfer to the EU. Where EU
measures induce violations without being attributable to the EU alone, the member
states may encounter problems to execute ECtHR judgments. Other than judgments
of domestic constitutional courts, those of the CJEU have not yet been subject to
immediate external judicial review by the ECtHR. Last but not least, accession is
also a matter of credibility. If the EU, by virtue of the so-called Copenhagen
criteria,110 requires candidate states to ratify the Convention before becoming a
member, and if the ECJ measures member states’ application of EU law by human
106
ECtHR, Behrami v France; Behrami and Saramati v France, Germany and Norway (02 May
2007, 71412/01 and 78166/01), paras 69, 144–152; superseded with respect to the criteria for
attribution by Al Skeini et al v UK, Rep. 2011-IV, paras 130–140.
107
See supra, n 46.
108
See ECJ, Case C-583/11 P, Inuit Tapiriit et al, EU:C:2013:625, paras 52–61.
109
Cf on different approaches with respect to expulsion of asylum seekers under the Dublin system
as inhuman treatment on the one hand ECJ, Case C-394/12, Abdullahi v Bundesasylamt, EU:
C:2013:813 (Greece), on the other hand ECtHR, Tarakhel v Switzerland (04 Nov 2014, 29217/12)
(Italy).
110
European Council 21–22 June 1993, Conclusions of the Presidency, Doc. SN 180/1/93/REV 1.
188 S. Kadelbach
rights guarantees derived from the ECHR, it appears appropriate that the EU itself
accedes to it.111
Thus, much advocates in favor of the idea to subject the EU to the Convention’s
human rights system.112 Therefore, after former efforts of the European Parliament
and the Commission dating back as far as 1979113 had failed, according to an
opinion of the ECJ,114 for lack of competencies, the Union is now explicitly
mandated to ratify the Convention (Article 6 (2) TEU).115
In April 2013, negotiators of the Council of Europe and the European Commis-
sion agreed on a Draft Agreement of Accession (DAA). It sets out the terms of the
EU membership in the ECHR and those of the additional protocols to which all EU
member states are parties.116 Even though the accession process, due to an opinion
of the ECJ, has been suspended, the DAA may serve to illustrate the complex
problems that would arise should the procedure be resumed.117
The Draft Agreement rests on the principle of equality between all ECHR
members so that the EU and the other contracting parties would have the same
status if the character of the EU as a non-state entity does not require otherwise.118
With respect to the addressees, the DAA mentions acts, measures, and omissions by
the EU institutions “or persons acting on their behalf.” The subject matter that may
come under judicial review are all acts taken by the EU, including the Founding
Treaties (Article 1 (3) DAA). Acts taken by the member states shall be attributed to
111
Krüger and Polakiewicz (2001), p. 3.
112
CoE Parliamentary Assembly, The accession of the European Union/European Community to
the European Convention on Human Rights, Report, Committee of Legal Affairs and Human
Rights Doc. 11533, 18 Mar 2008.
113
See Commission, Memorandum of 04 Apr 1979, [1979] Bull EC Supp. 2; early discussion is
found in Schermers (1978), p. 1; for an overview see Lenaerts and de Smijter (2001), pp. 274–277.
114
ECJ, Opinion 2/94 [1996] ECR I-1763.
115
Protocol No. 14 to the ECHR (Strasbourg, 13 May 2004, CETS No. 194), which entered into
force 01 June 2010, amended Art 59 ECHR so that the EU may become a party.
116
Draft Agreement on the Accession of the European Union to the Convention for the Protection of
Human Rights and Fundamental Freedoms, Final Report for the Steering Committee of Human
Rights (Doc. No 47 + 1 (2013)008 rev 2) Strasbourg, 10 June 2013); for a comprehensive
commentary, see Callewaert (2014). The (first) Protocol (Paris, 20 Mar 1952, CETS 9), which
embodies the rights to own property, to enjoy education, and to vote, and Protocol No. 6 concerning
the Abolition of the Death Penalty (Strasbourg, 28 Apr 1983, CETS 114) are as of summer 2015
binding on all EU member states.
117
See infra, Sect. 2.2.2.3; according to representatives of both the CoE and EU, accession remains
on the agenda; see Comité directeur pour les droits de l’homme (CDDH), Rapport du CDHH sur
l’avenir à plus long terme du système de la Convention européenne des droits de l’homme, CDHH
(2015) R 84 Addendum 1, para 190; ECtHR, Observations de la Cour sur le Rapport du CDDH sur
l’avenir à long terme du système de la Convention (2016), para 10 http://www.echr.coe.int/
Documents/2016_Comment_on_CDDH_report_on_longer-term_future_of_Convention_FRA.pdf;
European Commission, Report on the Application of the EU Charter of Fundamental Rights, COM
(2016) 265 final, at 8.
118
Such peculiarities include the status of the EU in the Parliamentary Assembly and the Committee
of Ministers, of the Council of Europe, Art 7 DAA.
them even when implementing EU law, which would not preclude the Union’s
responsibility for such an act (Article 1 (4) DAA). Thus, cases may arise in which a
judgment on the responsibility under the Convention involves a delimitation of
competencies between the EU and the member states. In such instances, a corespon-
dent mechanism is provided for which would open the option for the EU to present
its own interpretation of EU law (Article 3 DAA).
The EU may be a respondent in state and individual complaint procedures. With
respect to state complaints, the DAA speaks of interparty cases and changes the
language of the Convention in that respect (Articles 29 and 33 ECHR, Article
4 DAA). Even though EU law has its own infringement procedures (Articles
258 and 259 TFEU), they are different in subject matter: whereas procedures
pursuant to the Union treaties cover all Union law, interparty cases under the
Convention are restricted to human rights. Article 6 (2) TEU expressly states that
the accession will not add to the powers of the EU so that it can only institute
proceedings where it has competencies. This conclusion looks less complex than it
is, for the EU has the power to observe the compliance of member states with the
essentials of human rights (Article 7 TEU). Thus, the EU could sue member states
under the Convention for serious violations of minority rights (see Article 7 in
conjunction with Article 2 TEU); examples are not difficult to find.119 The case
may also arise that the EU will direct a complaint against non-EU members; in the
field of its Common Foreign and Security Policy (CFSP), the EU is committed to
promoting human rights (Article 21 (2) (b) TEU). In turn, Protocol No. 8 to the
Treaty of Lisbon expressly mentions complaints by third states so that, as a matter of
reciprocity, it is also clear from the EU’s own perspective that it can be a defendant
in an interparty case.
Given the reluctance of parties to file suits against each other, individual appli-
cations will be more relevant in practice (Article 34 ECHR and Article 1 (b) Protocol
No. 8 TEU).
Potential Consequences of Accession
Once the EU has become a party, the ECHR will be an integral part of the EU legal
order (Article 216 (2) TFEU). According to the ECJ, treaties rank between primary
and secondary laws.120 As we have seen, however, the ECHR in more than one
respect is already part of primary law. It will be difficult to distinguish whether the
Convention’s content is applied as part of the Charter, which would set it on an equal
footing with primary law, or as a treaty, which would place it on a subordinate level.
The resolution of collisions could depend on the contingencies of the case. Equally,
the coordination clauses in the Charter (Articles 52 and 53 CFR) discussed above
119
Cf Dawson and Muir (2011), p. 751.
120
ECJ, Case C-366/10, Air Transport Association of America and others, [2011] ECR I-13755,
para 50, with further case law cited.
190 S. Kadelbach
rather advocate in favor of a unified and harmonized status as primary law. The
option mentioned in the DAA to review even the treaties themselves under the
Convention provides a further argument.
As part of the EU legal order, the Convention would also be subject to the
doctrine of direct effect, which according to standing jurisprudence also applies to
treaties.121 That means that self-executing treaty provisions may be invoked before
courts and authorities of both the EU and its member states. Since the rules of the
Convention are designed to protect the individual and the whole point of the
accession is to improve its status, the conclusion is obvious that the ECHR would
become directly applicable as EU law.
The question arises which consequences this conclusion entails for the status of
the Convention in the legal orders of the member states. Since the DAA only
addresses the EU itself and not its member states, it looks as if nothing would
change. Thus, however, secondary Union law, within the municipal legal orders,
would have a higher rank than the ECHR, with which it has to comply. It is therefore
more convincing to attribute to the ECHR the rank of Union law. If politics or courts
will not decide otherwise, however, this will only be so for EU law cases. For purely
domestic matters, the status of the ECHR will remain unaffected. For the part of
national law that is predetermined by Union law, by contrast, there will be no
convincing reason any more for reservations by national courts in so far as they
point at the fundamental rights standards at EU level; the solange jurisprudence
would no longer be justified by possible deficiencies of the EU fundamental rights
protection scheme.122 The relationship between the ECtHR and the FCC, on the
other hand, will not change simply because the Convention will have the EU as an
additional party. Thus, it is well conceivable that the reservations of the FCC
vis-à-vis the ECtHR will be upheld also with respect to EU cases.
The most problematic point is the interpretation of EU law. As a rule, the ECtHR
does not engage in the interpretation of domestic law but relies on the submissions
by the parties, thus treating them as facts.123 However, the ECtHR might be
confronted with the delimitation of competencies between the EU and its member
states upon an individual complaint. If an act of a member state falls within the ambit
of EU law, the question of the proper respondent arises. It makes an attribution of the
act necessary, which, in turn, may depend on the distribution of powers and on
thorough analysis of secondary EU law.124
121
ECJ, Case 104/81, Hauptzollamt Mainz v Kupferberg & Cie., [1982] ECR 3644, paras 11, 13;
Case 12/86, Demirel v Stadt Schwäbisch Gmünd, [1987] ECR 3719, para 14; joined Cases C-300/
98 and C-392/92, Christian Dior v TUK, [2000] ECR I-11307, para 42.
122
Weiß (2011), p. 90.
123
de Schutter (2010), p. 551.
124
Jacqué (2011), pp. 1013–1014 mentions ECtHR, MSS v Belgium, Rep. 2011-I as an example:
Belgian authorities had sent an asylum seeker back to Greece which, under the so-called Dublin II
regulation, was the responsible state to decide on the request for asylum. The ECtHR found a
violation by Belgium and refused to apply the Bosphorus rationale (supra n 99) since, after
carefully analysing the regulation, Belgium was free not to return the applicant. See also the hint
The answer found in Protocol No. 8 to the TEU125 was the so-called corespondent
mechanism (Article 3 DAA).126 Accordingly, a complaint may be brought against
both the EU and the member state; it may also be directed to either one, but the
ECtHR may communicate the case to the party concerned so that it can decide
whether or not to intervene. Since such an intervention should not cause any
disadvantage to the applicant, only one course of instances must be exhausted in
order to satisfy the local remedies rule. The procedure in which the autonomy of EU
law is to be maintained is, however, somewhat puzzling. Pursuant to the DAA, the
ECtHR shall afford “sufficient time” (Article 3 (6) DAA) to the ECJ to resolve
potential problems of interpretation of EU law (so-called prior involvement proce-
dure). However, the usual course is that preliminary reference (Article 267 TFEU) is
sought in pending proceedings, and that means before an application is filed with the
ECtHR.127
Another issue is the further fate of the Bosphorus rationale. It is difficult to justify
a privilege of the ECJ that constitutional courts do not enjoy, i.e. to be spared from
external review as long as a general level of protection is observed. However, it is not
unlikely that equal treatment of all courts is achieved by a different solution. The
2012 Brighton Declaration encourages the ECtHR to loosen its standard of scrutiny
when national courts have duly taken regard of the ECHR aspects of a case and
might induce the ECtHR to extend the Bosphorus assumption to national constitu-
tional courts, which would be detrimental to effective domestic implementation of
human rights.128 In this vein, Protocol No. 15 to the ECHR aims at an enhanced
recognition of the margin of appreciation of the member states.129 More importantly,
however, the opinion of the ECJ on the DAA has cast serious doubts if the envisaged
accession will take place at all—and poses the whole question anew.
The ECJ Opinion
In its Opinion 1/13, the ECJ declared the DAA to be in conflict with the treaties.130
Seen against Article 6 (2) TEU, this comes as a true surprise but is in line with former
opinions on international law issues in which the ECJ held that the monopoly to
interpret EU law authoritatively lies with itself and must not be compromised by
by Lock (2011), pp. 1028–1033 at Kokkelvisserij (supra n 103), concerning the right to respond to
submissions by the Advocate General to the ECJ.
125
“[A]pplications . . . addressed to Member States and/or the European Union [. . .].”
126
See the analysis by Gragl (2014), pp. 31–40.
127
See the critique by Schilling (2011), pp. 91–99.
128
High Level Conference on the Future of the European Court of Human Rights, Brighton
Declaration, 19 and 20 Apr 2012, http://www.echr.coe.int/Documents/2012_Brighton_
FinalDeclaration_ENG.pdf Accessed 16 Mar 2017.
129
Art 1 of Protocol No. 15 amending the ECHR (Strasbourg, 24 June 2013, CETS No. 213), not
yet in force, reformulates the preamble in this respect.
130
ECJ, Opinion 2/13, Accession to the ECHR, EU:C:2014:2455.
192 S. Kadelbach
transferring judicial powers to an international dispute settlement mechanism.131

The opinion on the DAA is a variation on that motive. The ECJ sums up its reasons
in four groups132:
(1) The DAA did not provide for safeguards for the autonomy of the Union legal
order. It provided for ways to sidestep the preliminary reference procedure under
Article 267 TFEU by immediately filing a complaint. Coming back to the
Melloni doctrine, the Court stressed that the DAA did not safeguard a reliable
coordination of Articles 53 ECHR and 53 CRC, could not sufficiently coordinate
EU and member state fundamental rights and failed to recognize the equality of
standards between the member states and the mutual trust necessary for the
cooperation in justice and home affairs.133
(2) Interparty complaints were at risk to endanger the monopoly of the ECJ in
interpreting EU law under Article 344 TFEU.134
(3) The corespondent mechanism and the prior involvement procedure could not
guarantee that the ECtHR would not judge on bases of competence under the EU
treaties.135
(4) The last point refers to the CFSP. Whereas the ECJ has only restricted jurisdic-
tion on that field, it could not be ruled out that the ECtHR would decide on such
cases.136
Some of these grounds, like the unclear consequences of the prior involvement
procedures, may have been developed from understandable concerns, but overall the
judgment is an implausibly harsh rejection of the DAA. What this means for the
ECHR system in the context of other challenges to its jurisdiction is hard to assess.
Taken together with the Åkerberg Fransson and Melloni cases, one dare say that the
ECJ takes pains to position itself as the decisive fundamental rights court in the
EU.137 It refuses to recognize equality with other parties to the Convention and
subordinates fundamental rights protection under the ECHR to its concerns about the
autonomy of EU law and its monopoly to rule on it.138 This has repercussions for the
self-perception of the ECJ as a constitutional court of the EU. One possible
131
ECJ, Opinion 1/91 European Economic Area [1991] ECR I-6079, paras 44 to 46; Opinion 2/94
ECHR [1996] ECR I-1763, para 34; Opinion 1/00 European Common Aviation Area [2002] ECR
I-3493, paras 12–13; Case C-459/03, Commission v Ireland [2006] ECR I-4635, paras 123–124
(Mox Plant); Opinion 1/09 European Community Patents Court [2011] ECR I-1132, para 74.
132
ECJ, Opinion 2/2013, Accession to the ECHR, ECLI:EU:C:2014:2454, para 258.
133
Ibid, paras 184–200; bearing in mind the divergence of standards, for instance, in the treatment of
refugees (n 106), the assumption of equivalence is problematic; see Polakiewicz (2015a), p. xxi.
134
ECJ, Opinion 2/2013, Accession to the ECHR, ECLI:EU:C:2014:2454, paras 201–214.
135
136
137
Cf in this sense Pernice (2015), p. 47; for critique see Jacqué (2015), p. 19; Nergelius (2015),
Peers (2015), p. 213; Tomuschat (2015), p. 133; but see Halberstam (2015), Malenovský (2015) and
Schmahl (2016).
138
Cf also Ritleng (2013), p. 267.
interpretation is that the ECJ is now rather more determined than before to compare
itself with supreme judiciaries of other legal orders, with the peculiarity that funda-
mental rights protection is but one of more subsystems on which it adjudicates.
Another expectation could be that the Court will tend to compensate for the
foreseeable decline of its reputation as a human rights court by intensifying its
fundamental rights jurisprudence.139 A particularly undesired outcome, from the
perspective of the ECJ, will be that it has probably enhanced the legitimacy of
constitutional court reservation with respect to fundamental rights in the EU by
behaving in the same manner as these courts.
3 The ECJ and Other Human Rights Treaties
As compared to the ECHR, the ECJ only very rarely refers to universal human rights
treaties. It has done so in three categories of cases: as a source of reference for EU
fundamental rights, as a standard of review of the compatibility of secondary Union
law with international human rights treaties, and in interpreting treaties that are
binding EU law.
In the first group of judgments, human rights treaties serve the same function as
references to the ECHR as a source of inspiration for the development of EU
standards. In this vein, the Court either recalls the descent of certain guarantees
from other instruments or checks certain outcomes against standards that are possi-
bly of a wider reach. Thus, it has mentioned the ICCPR in seeking a basis for a
standard of review, if only to find that it was not applicable in the case at hand.140
More extensively, the ECJ quoted the European Social Charter of 1961 (ESC) in
order to establish that social rights are settled EU law, be it as general principles or as
the blueprint for the CFR’s social standards. As such, they may, theoretically
speaking, counterbalance the effects of Single Market freedoms, like the freedom
to provide services across borders, against worker’s rights, even though there have
been only very few cases in which social rights prevailed if the matter had not been
covered by previous EU legislation.141 A rare case in which social rights were
upheld involved the free trade with cartoon DVDs, which the importing state
subjected to further examination under a statute on the protection of young persons.
The ECJ cited the ICCPR and the Convention on the Rights of the Child (CRC) to
139
Polakiewicz (2015b) and Weiß (2015).
140
ECJ, Case 374/87, Orkem v Commission, [1989] ECR 3283, para 31; joined Cases C-297/88 and
C-197/89, Dzodzi, [1990] ECR I-3763, para 68; Case C-249/96, Grant, [1998] ECR I-621, para 44;
Case C-540/03, Parliament v Council, [2006] ECR I-5769, para 37.
141
ECJ, Case C-438/05, International Transport Workers Federation, [2007] ECR I-10779, para
43; Case C-341/05, Laval un Partneri, [2007] ECR I-11761, para 90; Case C-271/08, Commission v
Germany, [2010] ECR I-7091, para 43; critical reception prevails, see Lukas (2015), pp. 162–163.
194 S. Kadelbach
specify children’s need of protection and care (Article 24 (1) CFR) and considered
pertinent restrictions on the free movement of goods justified.142
The second set of cases comprises possible divergences of standards. In most
cases, the ECJ aims at an interpretation that avoids conflict.143 As far as social rights
are concerned, much of their essence is explicitly imported into EU law by reference
to their standards, be it in the treaties like in Article 151 TFEU, which requires
legislation to be in harmony with the ESC, be it in specific directives so that they
form part of the material that guides their interpretation.144 In some instances, the
Court examined standards of primary law at which it arrived by interpretation of
international human rights treaties. In the Bressol case, it secured its findings against
the background of ICESCR; it interpreted the Pact in the sense that its standards for
justifying unequal treatment of nationals and non-nationals in higher education
do not depart from what is demanded under EU law.145
Third, after ratifying CRPD, the EU has for the first time become a party to a
human rights convention.146 Thus, CRPD is part of EU law with binding effect both
for the EU and for the member states as far as EU law applies. The ECJ has
repeatedly interpreted terms of the Convention, most prominently the concept of
“disability.”147 It found that directives have to be interpreted in conformity with
CRPD148 but that the Convention was not self-executing. As a result, its provisions
are subject to further implementation so that they cannot per se invalidate conflicting
EU law.149
Apart from very rare exceptions, human rights treaties other than the ECHR were
of no substantial influence on the outcome of ECJ cases.150 This may in part be due
to the comprehensive scope of the Charter but may also be seen as reluctance to
subscribe to standards not spelled out in it. This is not to say that there is not a further
142
ECJ, Case C-244/06, Dynamic Medien v Avides, [2008] ECR I-505, paras 39–52.
143
A special case are Conventions of the International Labour Organization on the protection of
women from night work or underground, which are held to contravene directions on equal
treatment, since views on the necessary degree of protection have changed over time. Member
states had ratified these Conventions before their accession to the EC/EU, but were considered to be
under an obligation not to enact new legislation. See ECJ, Case C-207/96 Commission v Italy,
[1997] ECR I-6869; Case C-203/03, Commission v Austria, [2005] ECR I-935.
144
ECJ, Case C-540/03, Parliament v Council, [2006] ECR I-5769, paras 37–39, 57, 107; joined
Cases C-395/08 and 396/08, INPS v Bruno et al, [2010] ECR I-5119, para 31; cf also Case C-579/12
RX-II, Commission v Strack, EU:C:2013:570, paras 27 and 46.
145
ECJ, Case C-73/08, Bressol, [2010] ECR I-2735, paras 83–88. In Grant (supra n 140), the Court
considered discrimination on grounds of sexual orientation, while found to fall under ICCPR, to be
beyond the scope of EU law at the time (but see now Art 10 TFEU).
146
See supra n 4.
147
ECJ, joined Cases C-335/11 and 337/11, HK Danmark, EU:C:2013:222, paras 34–47; cf also
Case C-354/13, FOA, EU:C:2014:2463, paras 42–60.
148
Ibid, para 32.
149
ECJ, Case C-363/12, Z. v A Government department, EU:C:2014:159, paras 84–90.
150
For an example see Dynamic Medien (supra n 142).
potential to expand on such rights, in particular if they inspired rights of the CFR, as
it was the case with CRC.151
4 Conclusions
International human rights have a difficult standing in EU law. The story of the
relationship between the EU and the ECHR as the central document has been
changeable. According to the founding treaties of the European Union, the ECHR
could play a decisive role as a part of the EU constitution: it forms a jurisprudential
source of the principles of EU law, it has become law of the Union as a part of the
CFR, and it is designated to bind the Union as a treaty. It would follow that the
Convention as a whole would be primary law, with all consequences this entails on
the domestic plane. Furthermore, since higher standards granted by municipal or
European Union law remain unaffected (Article 53 ECHR), the Convention is
suitable to form a minimum standard for the EU as a whole. Thus, this could fill
the proclamation in Article 2 TEU with content according to which human rights are
one of the values on which the Union is founded. What has been described as a
pluralism of constitutional rights,152 however, would hold true only above this
minimum level. If the question arose as to whether the EU or one of its member
states fall short of the general standard of Article 7 TEU, the ECHR could be used as
a yardstick in an interparty complaint as provided for under the DAA.
Whether this is an adequate picture of the system of fundamental rights protection
in the EU, however, has become unclear. The ECJ has chosen to distance itself from
the ECHR system. Seen against this background, it is doubtful whether solange
reservations made by constitutional courts will be given up. Instead, recent decisions
by the ECJ could equally provoke a reinforcement of decentralized protection
mechanisms. Trends within the Council of Europe to widen the margin of appreci-
ation of the member states could work into the same direction. The result would be a
human rights pluralism with an uncertain core standard of rights and varying
reservations by state judiciaries.
Its function as a general court and its ambition to consolidate its jurisdiction in a
competition with domestic judiciaries and the ECtHR lead to an ambivalent evalu-
ation of the role of the ECJ as a human rights court. The ECJ certainly does not
conceive of itself as an agency to protect human rights. Nevertheless, it has its
undisputed merits in transforming, by a very genuine method, international human
rights into internal EU law. However, even though they have assumed constitutional
quality by the ECJ’s case law and the ensuing codification in the CFR, fundamental
rights are but one parameter in a complex legal system where human rights play their
genuine role only if directly invoked by the parties to a dispute or if addressed by a
151
See Lamont (2014), p. 681.
152
Kumm (1999), p. 351; Sabel and Gerstenberg (2010), p. 511.
196 S. Kadelbach
domestic court in a preliminary reference procedure. The system of remedies in

which the fundamental rights jurisprudence unfolds is designed to uphold the
uniform application of EU law, to protect market freedoms, and to balance them
out with public policy decisions either taken at the EU level or recognized as
legitimate interests of the member states. The multilevel character of human and
fundamental rights protection in Europe triggered a competition about jurisdiction
between the responsible judiciaries, which adds a political dimension to human
rights protection in the EU.
It was suggested to conceive of European citizenship anew: accordingly, regard-
less of place of residence, any Union citizen is holder of the same core human
rights,153 following the model of free movement rights enshrined in the EU
treaties.154 Since European citizenship follows the nationalities of the member states,
however, this proposal is not congruent with the scope and functions of the ECHR.
The rights of the Convention attach not to persons but to the jurisdictions of the
contracting parties (Article 1 ECHR). Which consequences the ECJ’s insistence on
the CFR instead of the Convention has in that respect is unclear. It relates to the
scope of EU law (Article 51 CFR) and, within its reach, subjects the standard of
protection in the member states to the supremacy of EU law. The ECJ is to blame for
being more unclear than ever before about its concept of fundamental rights. It will
have to prove again that, in its understanding, human rights are more than politics.
The Charter provides for the potential to continue the ECJ’s tradition of an indirect
but progressive development of human rights.
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Courts of Regional Economic Communities
in Latin America and Human Rights Law
Marcilio Toscano Franca Filho, Lucas Lixinski, and Belén Olmos Giupponi
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
2 Courts and Tribunals of Regional Economic Communities and Human Rights . . . . . . . . . . . 202
3 Human Rights in MERCOSUR Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
3.1 Human Rights in the MERCOSUR System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
3.2 Pulp Mills, Bridges, and the Right to Protest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
4 UNASUR: Human Rights as Part of a Development Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
1 Introduction
This chapter looks at the use of human rights by non-human rights international
dispute settlement bodies in Latin America, with particular emphasis on
MERCOSUR. The dispute settlement bodies of regional economic integration
organizations (REIOs) have looked at human rights law either as part of their
mandate (under the view that economic freedoms can be seen as a part of human
Parts of this paper build on an earlier text by the same authors. See Franca Filho et al. (2014).
M. T. Franca Filho
Università degli Studi di Torino, Torino, Italy
Federal University of Paraíba (UFPB), João Pessoa, Brazil
MERCOSUR Permanent Review Court, Asunción, Paraguay
L. Lixinski
University of New South Wales, Sydney, NSW, Australia
B. Olmos Giupponi (*)
Kingston University, London, UK
e-mail: b.olmosgiupponi@kingston.ac.uk

https://doi.org/10.1007/978-3-319-94848-5_7
202 M. T. Franca Filho et al.
rights) or as potential obstacles to their activities. There is a limited amount of case

law on the matter in Latin America, which this chapter seeks to survey.
In order to accomplish that, this chapter will first look at the role of human rights
in REIOs and their dispute settlement mechanisms, starting from a brief examination
of the European Union,1 at least to the extent to which it serves as a model for
inspiration in Latin America. Subsequently, we examine some Central American
processes and the Andean Community briefly. We finally turn to MERCOSUR and
UNASUR. As shown below, there is a limited number of cases directly engaging
with human rights. But the relatively healthy amount of engagement with human
rights beyond dispute settlement should be welcomed, at least inasmuch as it avoids
the trap of thinking of human rights law as essentially a (quasi-)judicial exercise,
promoting more holistic thinking about the role of human rights in REIOs.2
2 Courts and Tribunals of Regional Economic

Communities and Human Rights
Since the creation of the first international courts (the old Central American Court of
Justice in 1908 and the Permanent Court of International Justice in 1922), there has
been a gradual proliferation of judicial bodies in the international arena.3 Thus,
various judicial bodies have been set up in different regions for specific subject
matters. Examples of this phenomenon are economic integration tribunals and
human rights courts, such as the European Court of Human Rights or the Inter-
American Court of Human Rights. Courts of regional economic communities, on the
other hand, represent the power of control and ensuring the smooth operation of the
mechanisms established in the founding treaties.
Traditionally, economic integration tribunals have a limited scope of compe-
tences related to the integration process. Community courts dispose of the power
of control and of ensuring the smooth operation of the mechanisms established in the
treaties. However, as integration advanced, the protection of fundamental rights has
arisen as an additional issue. The relation between economic integration and pro-
tection of fundamental rights in other EU-like integration processes in Latin America
and the Caribbean can be better appraised in light of the EU experience as the only
case (so far) of a successful supranational integration.
Certainly, the EU case is paradigmatic since it represents a more complex, novel,
and autonomous normative order. In creating this new legal system ex novo, the
Court of Justice of the European Communities (now the Court of Justice of the
Union or CJEU) has been a key player in the making of a supranational law. Such a
1
For a more detailed analysis, see Kadelbach, The European Court of Justice and Human Rights
Law, in this Volume.
2
For a discussion of this limitation in the context of the European Union, see Lixinski (2014).
3
Fernández Liesa (2009).
Courts of Regional Economic Communities in Latin America and Human Rights Law 203
system has been based on the member states’ constitutional traditions, which
include, as the centerpiece, the protection of fundamental rights.
The existence of a new legal order implied also the development of new methods
of interpretation by the Court of Justice of the European Union. Thus, the Court has
applied a criterion of textual interpretation, considering the context and emphasizing
the object and purpose of the treaty, as a set of hermeneutic tools. Moreover, the
Court must articulate a duplicity of judicial dialogs, on the one hand, internationally
with other judicial bodies and, on the other hand, internally with the domestic courts
(in particular, supreme and constitutional courts) of each member state.
As a result, the construction of the EU legal order and its evolution are based on
the praetorian work of the Court, which, by developing the doctrine of the principles
of Community law (supremacy, direct applicability and direct effect), conferred on
the legal acts emanating from Community bodies the category of autonomous law.
Indeed, based on the recognition of the above principles, the Court has adopted
various “constitutional doctrines” (particularly relating to the protection of funda-
mental rights) closely connected to the doctrines of supremacy and direct effect and
rooted in the constitutional traditions of the member states.
In Internationale Handelsgesellschaft, the Court held that the validity of a
measure of EC law cannot be affected by allegations that it contravenes national
fundamental rights or national constitutional principles and that the protection of
fundamental rights, while inspired by the common constitutional traditions of the EC
member states, must be ensured within the framework and structure of the objectives
of the EC.4 Thus, the Court has gradually built what could be called a “European
constitutional doctrine” based on the principles of direct effect and supremacy,
complemented by the adoption of concepts such as fundamental rights, implied
powers, responsibility, effectiveness and separation of powers.5 As Cunha
Rodriguez states: “Once the direct effect and supremacy of Community law had
been established, it was necessary to proclaim fundamental rights as an attribute of
the individual.” The Charter of Fundamental Rights of the European Union “crowns
that development and represents the end of functionalism at the exclusive service of
economic freedoms (. . .) and the assertion of new generations of rights.”6
Alston and Weiler precisely mention that building up a human rights policy
requires “to establish that such a policy lies within the constitutional competence
of the Community and that it would not violate important principles such as that of
subsidiarity.”7 In sum, the protection of human rights within an economic integration
process requires the attribution of competence to the integration bodies, a legal basis
4
ECJ, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und
Futtermittel, case 11/70, [1970] ECR 1125.
5
The development of the protection of fundamental rights is the legacy of cases such as
Handelsgesellschaft (ibid) and ECJ, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission
of the European Communities, case 4/73, [1974] ECR 491.
6
Cunha Rodriguez (2010).
7
Alston and Weiler (1999).
(a Community Human Rights Policy must not extend beyond the field of Commu-
nity law), the respect of the principle of subsidiarity, and the coordination of the
Community policy with the broader (international and regional) human rights
setting.
With regard to the principles of Community law and their influence on the
protection of human rights, the core principles have been developed by the Court
in specific cases characterized by a common denominator: the presence of a violation
of the rights or expectations of the rights of a private person (natural or legal) on
account of the behaviour or actions of Community administrative bodies:
1. The principle of direct effect and immediate applicability: this principle was first
developed in the case Van Gend en Loos in 1963.8 In this case, the Court stated:
“Member States shall refrain from introducing between themselves any new
customs duties on imports and exports and charges having equivalent effect and
from increasing those which they already apply in their reciprocal trade
relations.”9
2. The primacy of Community law: the primacy of Community law derives from the
very nature of the European Communities as a result of a new and independent
legal system, which grants powers to the Community institutions, both normative
judicial and executive. Between Community law and member states’ legal sys-
tems, there must be a relationship of functional complementarity, which means
that the Community must be in line with the principles and fundamental consti-
tutional values of each member state. The Court of Justice of the EC has
reaffirmed the primacy of EU law over national law from the famous judgment
in Costa v ENEL.10
3. The principle of state responsibility: this principle has been affirmed by the Court
of Justice of the EC since 1991, recognizing the responsibility of the state for
damage caused to individuals on account of non-compliance with Community
law,11 and its corollary consists of the responsibility of institutions (Article
340 TFEU).
4. The principle of effective judicial protection: one of the most important for the
implementation and enforcement, as well as ensuring respect and interpretation,
of (and today EU) law principles is the existence of judicial review on the level.
The obligation of all member states to cooperate loyally and equally in the
application of Community law also implies that rights conferred upon by EU
law and invoked in judicial proceedings will find legal protection. Such protec-
tion is to be granted both by the Community courts and the national courts, which
8
Pescatore (2010).
9
ECJ, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse
administratie der belastingen, case 26/62, [1963] ECR 1.
10
ECJ, Flaminio Costa v E.N.E.L., case 6/64, [1964] ECR 1251.
11
Since ECJ, Francovich and Bonifaci v Italian State, cases C-6/90 and C-9/90, [1991] ECR
I-5357.
have the obligation to fulfill (according to the above principles) Community law,
in each case, each exerting its own institutional and procedural autonomy.12
Other principles of Community law have been brought up as general principles of
Community law by EU scholarship and legislative acts by the Community institu-
tions. Some of them have an impact on the protection of fundamental rights. These
principles are, for instance, the principle of effective transposition of directives, the
principle of proportionality, the principle of good faith, the principles relating to the
protection of human and fundamental freedom rights, the principle of loyalty
(concerning misleading advertising), the principle of fairness in relations between
financial institutions and consumers, the principle of equality and nondiscrimination,
among others.
The praetorian work of the CJEU has gone even further because these principles
have been adopted by other integration processes in the Latin American region as
pillars on which to base the development of such processes. In particular, in Central
American integration, the Court has frequently been cited to assert these principles
as mandatory rules issued by the SICA, as we shall see in the further course in
this work.
The effective national judicial protection of the rights guaranteed by Community
law must not encounter any obstacles in national law, based on the following criteria,
drawn from the nature of the Community itself and the principles of the treaties: (a) it
is a function for the national courts to protect the rights recognized by the Commu-
nity rules, (b) all internal procedural avenues are open to serve the enforcement of
the rights based on Community rules, (c) access to the national procedural remedies
must not be granted on less favorable conditions or make impossible the exercise of
rights conferred by the Community system, (d) any national decision to implement
Community law must be motivated and susceptible to judicial review.13 The func-
tions of courts of integration vis-à-vis the protection of human rights can be
summarized as follows: (a) to ensure the Community institutions’ involvement in
respect of treaties and the correct hierarchy in the formation of Community rules,
(b) to control the fulfillment by member states of obligations under the treaties, and
(c) to interpret and fill the gaps of Community law, through the establishment of
general principles.
In contrast to European integration, in which the Court emerges as the ultimate
judicial body, in Latin American integration there are different courts of integration.
Indeed, the particular scenario of integration in Latin America (often described as a
“spaghetti bowl”) has led to the adoption of a specific dispute settlement mechanism
in each subregion (Caribbean, Central America, Andean Community, Southern
Cone). Moreover, beyond the only serious attempt to broader integration from a
regulatory point of view represented by ALADI (1980), new initiatives on the
creation of areas or unions in Latin America (such as the Community of South
12
See jurisprudence starting from ECJ, Unectef v Heylens and others, case 222/86, [1987]
ECR 4097.
13
Mangas Martin and Linan Nogueras (2010).
American Nations or UNASUR) have focused more on political cooperation aspects

and excluded, up to the present, the adoption of a dispute settlement body stricto
sensu.
In the Latin American and Caribbean subregional integration (comprising
CARICOM,14 the Central American Integration System SICA, the Andean Com-
munity, and MERCOSUR), we can distinguish three different ways of understand-
ing Community courts: the Court of Justice of the Andean Community, the
Caribbean Court of Justice (CCJ), and CECA Central American Court of Justice,
alongside the ad hoc arbitral tribunals instituted in MERCOSUR.
First, as for CARICOM, in 2001 the establishing Agreement granted the CCJ
original and exclusive jurisdiction to interpret and apply the Revised Treaty of
Chaguaramas. The CCJ has similar aims and objectives as the CJEU, after which
it was generally modeled.
Second is the Central American integration; after the renovation by the Teguci-
galpa Protocol (1991) and Guatemala Protocol (1993), the idea of a supranational
judicial body supporting the creation of a legal system of this nature was empha-
sized, and as a result, the Central American Court of Justice was instituted.
Third, regarding the Andean Group (now the Andean Community), it is note-
worthy that since 1979 the Andean integration included a court of justice as an
Andean dispute settlement body. This inclusion was confirmed during the
restructuring of Andean integration initiated by the Trujillo Protocol (1996).15
Last but not the least, in the case of MERCOSUR (1991), the integration process
was not endowed with a court, as has been done before in the other subregional
integration agreements, replacing it with a nonpermanent arbitration mechanism.
This was one of the main features of the institutional setting up of this integration
initiative, marked by pragmatism generally underlying the integration project.
The paths of these courts of economic integration have been different. The
Central American Court of Justice has been the only judicial body of the Latin
American integration that has shown steady progress, beyond the difficulties in
creating a body of Community law. Although the volume of cases is substantially
smaller than the CJEU’s, the variety of cases brought before the Court has entailed a
deep engagement into the development of principles of Community law. In turn, the
Andean Court of Justice has had a significant role in the development of the Andean
law mainly during the eighties and nineties, settling and strengthening Andean and
Latin American concepts of Community law and building an acquis communautaire,
often cited by other courts of integration such as MERCOSUR or tribunals of the
Central American Court of Justice. Within the Andean Community, the principle of
judicial cooperation between the Andean Court and national courts is institutional-
ized, and it has been used on several occasions to strengthen the application of
14
In 1973, pursuant to the Treaty of Chaguaramas (ToC), the independent countries of the
Caribbean Commonwealth and Montserrat established the Caribbean Community and Common
Market (CARICOM).
15
Olmos Giupponi and Díaz Barrado (2002).
Community law. In the case of MERCOSUR, the initial pragmatism has led to a
supervening legal system of ad hoc tribunals established under the Protocol of
Brasilia (1994), which did not allow the formation of a true doctrine of Community
law. The reform of the Olivos Protocol (2002) and the creation of the Permanent
Review Tribunal have been laudable attempts to provide greater uniformity to the
interpretation of the right of MERCOSUR leading to an incipient and timid legal
acquis of MERCOSUR. So far, various forms of judicial dialog have taken place in
the context of MERCOSUR. These include the meetings of the supreme courts of
MERCOSUR, held periodically. The meetings provide a forum for the exchange of
judicial experiences on the implementation of the law of MERCOSUR, as well as an
institutional strengthening of the integration process. Moreover, the reports on the
implementation of MERCOSUR law have highlighted the use of MERCOSUR law
standards by the domestic courts to justify judicial decisions.
When it comes to the relation between the integration process and the protection
of fundamental rights, different approaches have been taken. The Caribbean Court of
Justice does not have the competence to hear individual complaints of alleged human
rights violations, except in its capacity as a court of integration. Thus, a person or
private company must have the CCJ’s permission to bring proceedings before it
since the CCJ’s original jurisdiction only covers the application and interpretation of
the treaty of integration and not the protection of human rights generally. This is the
current position held in Doreen Johnson v CARICAD, where it was found that the
CCJ did not have jurisdiction to hear an employment discrimination claim.16
The fundamental principles set out in the Protocol of Tegucigalpa and the
fundamental principles of SICA include the protection, the respect, and the promo-
tion of human rights and peace, democracy, development, and freedom. With regard
to the Central American Court of Justice, there is no path to the protection of
fundamental rights. Article 25 of the Statute of the Central American Court of
Justice excludes the protection of human rights since the Inter-American Court of
Human Rights exercise exclusive competence.17
As for the Andean Community, the creation of a specialized chamber dealing
with human rights issues was discussed during the drafting of the Andean Charter of
Human Rights. However, the proposal was not taken further since it was decided that
human rights were protected by the American Convention of Human Rights.18
In sum, this preliminary analysis shows that although the subregional integration
processes in Latin America are at an earlier stage of development, they are shaping
the arguments around issues similar to those encountered in the European Union
integration regarding the protection of fundamental rights.
16
See CCJ, Johnson v CARICAD, AR2 of 2008, judgment of 07 Dec 2008.
17
Art 25. La competencia de La Corte no se extiende a la materia de derechos humanos, la cual
corresponde exclusivamente a la Corte Interamericana de Derechos Humanos Convenio de Estatuto
de la CCJ—Corte Centroamericana, available at: http://portal.ccj.org.ni/Ccj2/LinkClick.aspx?
fileticket¼As1kDvgOEh4¼&tabid¼67. Accessed 11 July 2017.
18
Olmos Giupponi (2003).
Among these processes, MERCOSUR is the largest in terms of combined GDP of

the member states, and its experience with largely an ad hoc arbitration system, as
opposed to a permanent court, provides fertile ground to look into human rights
matters in regional economic integration. The next section examines MERCOSUR
in more detail.
3 Human Rights in MERCOSUR Dispute Settlement

3.1 Human Rights in the MERCOSUR System
Since its birth almost 25 years ago, MERCOSUR has been an integration process on
a low level of supranationality, broadly with an intergovernmental character and in
which direct, consensual, and pragmatic participation of states still hold a pivotal
role—a concept frequently associated to the World Trade Organization (WTO)
model.19
In the South American sphere of economic integration, the topic of human rights
has always held a place of relevance in the politics and discourses of MERCOSUR.
A long and shared history of coups d’état, dictatorships, redemocratization, and
political instability among the states-parties of the bloc has made the issue a
recurring topic on MERCOSUR’s agenda since its inception, allowing for the
coexistence of the economic goals of the bloc with some commitments toward
human rights.20 It is beyond questioning that, differently from the 60-year-old
experience of the European integration, the topic of human rights was from the
beginning of MERCOSUR a constant concern and an agenda topic in the political
discussions. In this scenario, several pragmatic commitments tried not only to
19
The Southern Common Market (MERCOSUR) was created by the Treaty of Asunción, which
Argentina, Brazil, Paraguay and Uruguay signed on 26 Mar 1991. The current configuration of
MERCOSUR was established by the Ouro Preto Protocol, signed in Dec 1994 (the WTO was
founded in 1994). On 12 Aug 2012, MERCOSUR had the first expansion, with the entry of
Venezuela as a State Party. In the same year, the Protocol of Accession of Bolivia to Mercosur
was signed, which, once ratified by the congresses of States Parties, will make the Andean
countries’ sixth full member of the bloc.
20
The Socio-laboral Declaration of MERCOSUR, for instance, signed on 10 Dec 1988, in Rio de
Janeiro, by the Presidents of the States-parties, considers that the Member States are committed to
the declarations, pacts, protocols and other treaties that integrate the legal heritage of mankind,
including the Universal Declaration of Human Rights (1948), the International Covenants of
Human Rights (1966), the American Declaration of the Rights and Duties of Man (1948), the
Inter-American Charter of Social Rights (1948); the Organization of American States Charter
(1948) and the American Convention on Economic, Social and Cultural Rights (1988). The CMC
Decision no 40/04, in turn, created the High-Authorities Meeting on Human Rights on
MERCOSUR. The Presidential Declaration of Porto Iguaçu, of 08 July 2004, signed by the
Presidents of the States-parties of MERCOSUR, also affirms the high priority attributed to the
protection, promotion and guarantee of human rights and fundamental freedoms for all people who
live within the MERCOSUR.
obligate the states parties as a whole but also to reinforce the role of some of
MERCOSUR’s institutions, in particular, as the Parliament of MERCOSUR
(PARLASUL) or the individual states parties, as in the cases of each supreme
court.21
From a normative point of view, however, it is fair to recognize the existence of a
still low number of codified human rights norms within the bloc, which seems to
indicate that the stamina of the topic in the political agenda is not followed by an
equal status in the legal and/or economic agenda. The regional normatization of
human rights is shy, punctual, and fragmented22 and, most of the times, merely
programmatic and lacking in effectiveness. In this scenario, the most relevant and
direct norm on human rights in the bloc has entered into force on April 30, 2010: the
Protocol of Asunción on the Commitment with the Promotion and Protection of
Human Rights in MERCOSUR, signed in 2005. It states that “the full effectiveness
of democratic institutions and the respect of human rights and fundamental freedoms
are essential conditions for the effectiveness and the development of the process of
integration between the Parts”23 (Article 1). It forms a regional mechanism of
cooperation and dialog for the protection of human rights.24
In light of this setting of harmonization efforts among multiple declarations,
speeches, and proclamations on the relevance of human rights on the one hand
and the feeble institutionalization of the bloc on the other hand, it is important to
verify how the actors in the mechanism of solution of controversies of MERCOSUR
have been understanding the influence of the decisions and sentences of the Inter-
national Court of Justice on the topic of human rights.25
In this respect, it is relevant to note that, until now, the system of dispute
settlements in MERCOSUR has handed down 18 arbitral awards. They can be
classified in (i) ten decisions granted by ad hoc tribunals during the term of the
Protocol of Brasília,26 (ii) two decisions granted by ad hoc tribunals during the term
21
Lixinski (2010).
22
See, for instance, Fuders (2008), where the economic content of human rights within
MERCOSUR law is highlighted.
23
Free translation by the authors.
24
In Brazil, the normative was internalized by Decree 7.225 of 01 July 2010. A few other norms
from MERCOSUR, although not dealing directly with human rights, touch on fundamental
freedoms in a Common Market, with huge intersections with international human rights law.
25
For a better understanding of the system of dispute settlements in MERCOSUR, see, for instance,
Susani (2010).
26
Decision I of 28 Apr 1999, relating to the Controversy between Argentina and Brazil on the
statements No 37/97 e No 7/98 of the Department of International Trade Operations (DECEX) of
the Secretary of International Trade (SECEX) of Brazil. Decision II, of 27 Sept 1999, relating to the
petition by Argentina against Brazil, on the subsidies to the production and export of pork meat.
Decision III, of 10 Mar 2003, between Brazil and Argentina on the application of safeguard
measures on textile products (RES. 861/99) by the Ministry of Economic and Public Services
and Works from Argentina. Decision IV, of 21 May 2001, relating to the controversy between
Brazil and Argentina on the application of anti-dumping measures against the export of whole
chickens from Brazil. Decision V, of 29 Sept 2001, relating to the controversy between Uruguay
of the Protocol of Olivos,27 and (iii) six decisions of the Permanent Revision
Tribunal (Tribunal Permanente de Revisão).28 Besides these decisions,
MERCORSUR’s Permanent Revision Tribunal has given three Advisory Opin-
ions.29 Even if in several decisions there are references to the decisions of the
International Court of Justice, the majority and the most emphatic parts of them
relate to the general principles of international law, such as free consent, pacta sunt
servanda, rebus sic stantibus, good faith, exceptio non adimpleti contractus, estop-
pel, proportionality, reasonability, etc. As is the case of normatization, one can see,
once again, that despite the constant concern with the protection of human rights in
the speeches and declarations in MERCOSUR, the same enthusiasm is lacking in the
and Argentina on the restrictions to the Argentinean market of bicycles from Uruguay origin.
Decision VI, of 09 Jan 2002, relating to the controversy between Uruguay and Brazil on the
prohibition of import of remodeled pneumatics from Uruguay. Decision VII, of 19 Apr 2002
relating to the controversy between Argentina and Brazil on the obstacles of entrance to Argentin-
ean phytosanitary products into the Brazilian market and the nonincorporation of GMC Resolutions
nos 48/96, 87/96, 149/96, 156/96 e 71/98. Decision VIII, of 21 May 2002, relating to the
controversy between Paraguay and Uruguay on the application of the Specific Internal Tax
“IMESI” (Imposto Específico Interno) to the trade of cigarettes. Decision IX, of 04 Apr 2003, on
the controversy between Argentina and Uruguay on the incompatibility of the stimulus to the
industrialization of wool regime granted by Uruguay, established by Law no 13.695/68 and
complementary decrees with the MERCOSUR’s normative on the application and utilization of
inter-zone trade incentives. Decision X, of 05 Aug 2005 on the controversy between Uruguay and
Brazil on discriminatory and restrictive measures of the tobacco and tobacco derived products trade.
27
Decision XI, of 25 Oct 2005, relating to the controversy between Uruguay and Argentina on the
prohibition of import of remodeled pneumatics. Decision XII, of 06 Sept 2006, relating to the
controversy between Uruguay and Argentina on the omission of the Argentinean State in adopting
the appropriated measures to prevent or cease the impediments on free movement in the access to
the international bridges of General San Martin and General Artigas that link Argentina and
Uruguay [hereinafter “Paper Mills Award of MERCOSUR”].
28
Decision No 1/2005, of 20 Dec 2005, on the prohibition of import of remodeled pneumatics from
Uruguay. Appeal of the Revision Presented by Uruguay against the Decision of the Ad Hoc
Tribunal of 25 Oct 2005. Decision No 01/2006, relating to the prohibition of import of remodeled
pneumatics from Uruguay. Declaratory Appeal presented by Argentina against the Decision of
20 Dec 2005. Decision No 2/2006, of 06 July 2006 relating to the on free movement in the access to
the international bridges of General San Martin and General Artigas. Appeal on the Revision
presented by Argentina against the decision of the Ad Hoc Tribunal of 21 June 2006. Decision
No 1/2007, of 08 June 2007, relating to the controversy between Uruguay and Argentina on the
prohibition of import of remodeled pneumatics from Uruguay, regarding the request of a decision
on excesses on the application of compensatory measures. Decision No 1/2008, of 25 Apr 2008
relating to divergences in the enforcement of Decision No 1/05, brought by Uruguay (Art 30 Pro-
tocol of Olivos). Decision No 01/2012, of 21 July 2012, related to the suspension of rights of
Paraguay in the bloc and the incorporation of Venezuela.
29
1) advisory opinion No 01/2007: “Norte S.A. Imp. Exp. c/ Laboratórios Northia Sociedade
Anônima, Comercial, Industrial, Financeira, Imobiliária e Agropecuária s/ Indenização de Danos
e Prejuízos e Lucro Cessante,” petition forward by the Supreme Court of Paraguay. 2) advisory
opinion No 01/2008: “Sucessão Carlos Schnek e outros com o Ministério de Economia e Finanças e
outros. Cobrança de pesos,” petition forward by the Supreme Court of Uruguay. 3) advisory opinion
No 01/2009: “Frigorífico Centenário S.A. c/ Ministério de Economia e Finanças e outros. Cobrança
de pesos. IUE: 2-43923/2007,” petition forward by the Supreme Court of Uruguay.
bloc’s case law, which is marked by an essential economic-commercial facet, with

rare references to the general international case law on human rights.
Truly, of all the decisions from MERCOSUR so far, the one that encompasses
more references to human rights was, without a doubt, the case of paper mills in the
Uruguay River, known as the “pulp mill dispute,” which was the object of decisions
of the Ad Hoc Tribunal of MERCOSUR, the Permanent Revision Tribunal, and the
International Court of Justice. The next section looks at this case in some more
detail.
3.2 Pulp Mills, Bridges, and the Right to Protest30
The controversy began almost ten years ago when former president of Uruguay
Jorge Battle authorized, without consulting Argentina, with which his country
shared the river, the construction of two cellulose processing and paper facilities
three kilometers away from the small Uruguayan city of Fray Bentos, at the bench of
the Uruguay River. At the Argentine bank sits the city of Gualeguaychú, whose
economy is strongly influenced by the tourism on its river beaches. Argentinean
environmentalists began a campaign against the project and succeeded in stopping
traffic on the international bridges that crossed the Uruguay River, a practice that was
supported in the discourses of the Argentinean president of the time—Néstor
Kirchner. The harm to tourism, transport, and commerce installed an unprecedented
crisis between Argentina and Uruguay. On February 18, 2006, Uruguay started the
mechanism of dispute settlement in MERCOSUR. An ad hoc tribunal was
established to rule on the following question: whether or not the systematic obstruc-
tion of the bridges over the Uruguay River by Argentinean protesters with support by
the Argentinean government constituted a violation of the principle of free move-
ment of goods (guaranteed by the Treaty of Asunción). Argentina invoked in its
defense the human rights of free speech and freedom of thought of the protesters.
Still in 2006 and based on environmental arguments extracted from the treaty that
had created the Statute of the Uruguay River, signed by both states in Salto on
February 26, 1975, Argentine brought the case to the International Court of Justice.31
The disruption of traffic caused, according to Uruguay, damage to several
businesses of import/export of goods, as well as to tourism and the land transport
of people and goods,32 thus affecting the free circulation of goods, as well as of
services within MERCOSUR. In furtherance, Uruguay alleged that the effect on the
free circulation of people has disrespected international commitments in the area of
30
Parts of this section have also been published in Lixinski (2008).
31
ICJ, Pulp Mills on the River Uruguay (Argentine v Uruguay), judgment of 20 Apr 2010, ICJ
Reports 2010, 14.
32
Paper Mills Award of MERCOSUR, supra n 27, para 21.
international human rights law.33 Finally, Uruguay resorted to the ECJ decision in
Commission v France and suggested that a similar approach be adopted by the
Arbitral Panel.34
The Argentinean response framed the protests in a more favorable light. As an
antecedent of the protests on the bridges, the Argentinean government referred to
“The Solidary Hug” (El Abrazo Solidario) as the key protest that gave rise to the
movement from which the protests on the bridges derived. This was a five-hour-long
protest that happened in April 2005, gathering 40,000 people in a demonstration in
the Argentinean city opposite the Uruguayan city, where the pulp mills were to be
constructed.35 In response to the Uruguayan claim that the blockages had brought
harm to their economy, Argentina claimed that the blockages were announced
beforehand and drivers had therefore the possibility of planning alternate routes
accordingly,36 similar to the facts of the CJEU’s Schmidberger case. The Argentin-
ean customs authorities put in place an emergency operational scheme so as to
guarantee the normal flow of international trade, increasing the personnel in alter-
native access routes into the country.37
Another defense claimed by Argentina, and the crux of the present analysis, is
that demonstrations were permitted in the interest of protecting freedom of expres-
sion and assembly, which is protected by international instruments and Argentinean
constitutional law.38 Argentina referred expressly to the Schmidberger decision,
33
Ibid, at para 27.
34
Ibid, at para 31. In ECJ, Commission v France, case C-265/95, [1997] ECR I-6959, a series of
protests in France caused by the discontent of farmers over competition with farmers from other
Member States (mainly Spain, but also Belgium and Italy) gave rise to concern from the European
Commission, which entered into conversations directly with France, and, seeing no result, decided
to bring an action before the European Court of Justice (ECJ, today CJEU). In the Commission’s
view, the events in France amounted to an impediment of the free circulation of goods, a
fundamental economic freedom. The Commission attributed this interference to the State of France,
even though it was committed by private parties, since French authorities had not taken any steps to
prevent the actions of the farmers. The issue before the ECJ was whether the actions of these private
individuals amounted to a violation of the freedom of movement of goods, and whether they were
attributable to the State of France. The Court found that the interruption of means of transport, the
damage to the agricultural goods being transported, and the climate of insecurity generated by the
events, amounted to an obstacle to the freedom of circulation of goods within the Community, and
that France was required to take action to secure such freedom, even if this entailed measures
against private individuals. One interesting feature of the case is that the actions of the French
farmers were never characterized by the Commission or the French government as an exercise of the
right to protest; rather, these acts were referred to as “acts of violence.” The only instance in which a
justification was attempted was when France presented the motivation for the acts of the French
farmers, which was general discontent and deep concern over their loss of business caused by the
competition with foreign products. To this, the ECJ replied that “[a]pprehension of internal
difficulties cannot justify a failure by a Member State to apply Community Law correctly.”
35
36
Ibid, para 42.
37
Ibid, para 94.
38
Ibid, para 44.
interpreting it to mean that, in economic integration processes, respect for human

rights norms can justify restricting rights enshrined in the integration treaty.39
Argentina also argued that compliance with the MERCOSUR agreements only
required measures to be taken with regard to governmental structures and not
non-state actors.40 Another argument was that it was not responsible for the lack
of interference by the police since the police are controlled by the provinces and not
by the federal state,41 an argument quickly dismissed in the analysis of the merits of
the case.42
There was a procedural issue regarding the dispute, which included a side dispute
over the designation of one of the arbiters,43 and it was settled soon enough. In the
39
Ibid, para 51. In ECJ, Schmidberger, case C-112/00, [2003] ECR I-5659, a preliminary ruling
procedure, environmental activists in Austria wanted to organize a demonstration to raise awareness
about the issue of air pollution on the Brenner road, as part of a much broader and very sensitive
issue regarding environmental protection in the Brenner road area. In order to organize their
demonstration, the protesters requested an authorization from public authorities, which was granted.
Aiming at reducing the inconvenience related to such a demonstration, an early warning about the
demonstration taking place was given and an alternative route was organized, among other
measures designed to minimize the effects of the demonstration on traffic in the area. The issue
was presented before the ECJ asking whether the activities of the public authorities in allowing the
demonstration to happen constituted an interference with the fundamental freedom of free circula-
tion of goods. By invoking the case law of the ECJ in terms of fundamental rights, the ECJ
concluded that fundamental rights, as protected by the constitutional traditions of the Member
States, and given special relevance to the provisions of the European Convention on Human Rights
(ECHR), could indeed be justifiable interferences with economic freedoms. According to the ECJ,
measures incompatible with fundamental rights recognized in the ECHR and in constitutional
traditions are not acceptable within the Community. The ECJ went on to say that, since both the
Community and the Member States must protect human rights, the protection of these rights is an
interest that in principle justifies interfering with an economic freedom. The ECJ concluded that
national authorities were entitled, in the exercise of their margin of appreciation, to conclude that the
legitimate aim of that demonstration could not be achieved by means less restrictive of Community
principles.
40
41
Ibid, para 55.
42
Ibid, para 156.
43
This dispute even became the object of an appeal to the Permanent Revision Tribunal, where it
was dismissed. The Permanent Revision Tribunal argued that its mandate extended only to the
appeal of an award in its entirety, and not the appeal of interlocutory decisions. See Laudo No
2/2006, Laudo do Tribunal Permanente de Revisão, Constituído em Plenário para Julgar o Recurso
de Revisão Apresentado pela República Argentina contra a Decisão do Tribunal Arbitral Ad Hoc,
de 21 de Junho de 2006, que Foi Constituído para Julgar a Controvérsia Promovida pela República
Oriental do Uruguai contra a República Argentina sobre a Questão: “Impedimentos Impostos à
Livre Circulação pelas Barreiras em Território Argentino de Vias de Acesso às Pontes
Internacionais Gal. San Martín e Gal. Artigas” [“Award N. 2/2006, Award of the Permanent
Revision Tribunal, Instituted in its Plenary Form to Judge the Appeal Presented by the Argentinean
Republic against the Decision of the Ad Hoc Arbitral Tribunal, of 21 June 2006, that Was Instituted
to Judge the Controversy Brought by the Eastern Republic of Uruguay against the Argentinean
Republic on the Question: ‘Impediments Promoted to the Free Circulation through the Barriers in
Argentinean Territory of the Access Ways to the International Bridges General San Martín and
General Artigas’”], of 06 July 2006.
merits, the Arbitral Tribunal first dismissed the arguments relative to the free
circulation of persons, arguing that such freedom was encompassed by the freedom
of circulation of goods and services.44 The Arbitral Tribunal then decided that the
actions of private parties in the case were an interference with the free circulation of
goods, and they could engage the responsibility of the state if the state did not act
with due diligence.45
Such due diligence, however, was to be exercised by the state using its own
margin of discretion in choosing the best means to achieve the goal of enabling the
free circulation of goods.46 In this sense, the Arbitral Panel suggested that the state
was not required to provide for a result without giving due regard to the legitimate
claims of the protesters, whose quality of life was threatened by the construction of
the pulp mills.47
The Arbitral Tribunal understood that the Argentinean government was acting in
good faith in this regard48 but said that good intentions are not enough. After
dismissing the ECJ precedents invoked by the parties on the grounds of differences
of fact and legal structure (in the latter case between the EC and MERCOSUR),49 the
Arbitral Tribunal held that since the measures adopted were not sufficient to halt the
harm done to the economic freedom in question, there had been a breach of the
obligation to respect such freedom since to legitimize the blockages would lead to a
state of legal uncertainty with respect to MERCOSUR norms, which would ulti-
mately be harmful to the integration process.50
In the argument regarding human rights, the Arbitral Tribunal responded to the
allegation by one of the parties that it was not competent to entertain such claim by
initially saying that human rights form the core of any legal order and constituted
thus an important part of the Tribunal’s considerations in the case.51 According to
paragraph 125 of the decision of the Ad Hoc Tribunal for the Paper Mills case, the
Argentinean strategy of using human rights arguments covered an attempt to under-
mine the competence of the system of dispute settlement of MERCOSUR, with the
understanding that the topic of human rights was outside of the scope of the
MERCOSUR normative system.52 The Ad Hoc Tribunal did not accept Argentina’s
allegations: the arbitrators decided to accept in part the Uruguayan claim, consider-
ing that the fact that the Argentinean government did not take the necessary
measures to prevent, establish order, or correct the blockades violated the commit-
ment to guarantee free movement of goods and services established in the Treaty of
44
45
Ibid, para 116.
46
Ibid, para 119.
47
Ibid, para 122.
48
Ibid, para 144.
49
50
Ibid, para 155.
51
Ibid, para 125.
52
Cf the presentation of the Argentinean representative on the hearing of 10 Aug 2006.
Asunción. In two decisions—02/2006 and 01/2007—the Permanent Revision Tri-

bunal also denied the Argentinean contentions.
However, Argentina based its argument on the hierarchy of human rights norms
in its municipal law (which puts international human rights on the same level as the
Constitution),53 a notion dismissed by the Arbitral Tribunal, using the rule that a
state cannot invoke its internal law as a justification for failing to comply with its
international obligations.54
Maybe one of the reasons why the human rights argument in the case failed is
precisely because it relied excessively on the constitutional provisions of Argentina.
While reliance on the constitutional provisions of member states has always worked
in the European Community context,55 the ECJ always used the constitutional
traditions “common to all member states” rather than the traditions of one particular
member state. In furtherance, MERCOSUR has been recently struggling for a
greater degree of legal autonomy,56 and distancing itself from the internal law of
its members seems to be almost a required step in this context.
When analyzing the clash between the fundamental economic freedoms and the
human rights that Argentina claimed to be protecting in the case, the Arbitral
Tribunal said that interferences with free trade are permissible when such interfer-
ences are based on principles recognized by the international community, among
53
54
Ibid, para 128. This rule is enshrined in Art 27 Vienna Convention on the Law of Treaties,
explicitly referred to by the Arbitral Tribunal.
55
See e.g. cases involving Germany, which greatly helped the development of fundamental rights
within the EU. The contribution of Germany is especially mentioned by Craig and de Búrca (2003),
pp. 320–326. Advocate-General Jacobs has pointed out in his Opinion in the Schmidberger case,
supra n 39, however, that it is not any fundamental right found within a national Constitution that
deserves consideration at the Community level. In some instances, it is even imaginable that certain
fundamental rights can be recognized as illegitimate objectives by the Community. It is understood
that the ECHR provides a good reference of the common ground of fundamental rights to be
protected within the Community legal order (for example the right to dignity in the Omega case).
For a commentary on this, see Facenna (2004), p. 79. It is to be mentioned, furthermore, that the
importance of using national constitutional traditions has decreased significantly within the case law
of the ECJ. This is due partly to the fact that the ECHR offers a better standard of commonality (and
does not require extensive comparative law analysis), and partly to the adoption of the EU Charter
of Fundamental Rights, that has been increasingly used by the European Courts. See Craig and de
Búrca (2011), pp. 394–399.
56
The issue of legal autonomy of MERCOSUR law was particularly present in the first arbitral
award of the Permanent Revision Tribunal under the Olivos Protocol, in which the Revision
Tribunal considered the matter of the sources to be applied to decide on valid exceptions to free
circulation obligations of the Asunción Treaty. See Laudo 01/2005, Laudo do Tribunal Permanente
de Revisão para Entender do Recurso de Revisão Apresentado pela República Oriental do Uruguai
contra o Laudo Arbitral do Tribunal Arbitral Ad Hoc de Data 25 de Outubro de 2005 na
Controvérsia “Proibição de Importação de Pneus Remoldados Procedentes do Uruguai” [“Award
01/2005, Award of the Permanent Revision Tribunal to Understand the Appeal Presented by the
Eastern Republic of Uruguay against the Arbitral Award of the Ad Hoc Arbitral Tribunal of
25 October 2005 on the Dispute ‘Prohibition of Importation of Remolded Tyres Originating from
Uruguay’”], of 26 Dec 2005.
which are human rights. In such cases, the Tribunal said, it was necessary to promote
a balancing of the conflicting interests so as to guarantee that one interest would not
be nullified by the other.57
In the view of the Arbitral Tribunal, moreover, measures restricting international
trade can be “tolerated” when these are adopted with the necessary precaution to
minimize their effects, which did not happen in the instant case.58 The Tribunal went
on to say that the right to protest is not an absolute right (at least not as it is protected
by international human rights instruments) and can thus be limited by an economic
freedom.59 By doing this, the MERCOSUR Arbitral Tribunal adopted a posture
similar to the ECJ in Schmidberger, as it put human rights and economic freedoms
on the same level.
Even though time, place, and manner restrictions to the exercise of freedom of
assembly did not seem to play a role in the decision of the Arbitral Tribunal, they
entered into the discussion of the content of the manifestations. While recognizing
that the objective pursued by the protesters was legitimate,60 the protesters lost their
legitimacy as time progressed, and they appealed to means more intrusive of the
rights of others.61 Furthermore, the fact that the controversy was submitted to the
International Court of Justice made the purpose of the protests all the less legitimate
as an appropriate forum was already addressing their grievances.62
To better understand this dispute, and grasp its underlying irony, it is important to
say a few words about the context of the case. The protest was only an element of a
bigger dispute between Argentina and Uruguay over the construction of pulp mills
on the margins of the Uruguay River, which forms the border between the two
countries. The protests took place in the Argentinean city, exactly in front of the
Uruguayan city where the plants would be built.63
An important irony of the Argentinean defense in the case is its position with
regard to protests. Uruguay brought an allegation saying that Argentinean practice
was to dismiss protests, to which Argentina replied that its practice was to only
disperse demonstrations that were violent, which was not the case regarding the
protesters on the bridges.64 Argentina made a clear point before the Arbitral Tribunal
of its commitment, at least in theory, to protect the right to freedom of assembly.65
However, this seems inconsistent with Argentinean judicial practice.
57
58
Ibid, para 134.
59
60
Ibid, para 157.
61
Ibid, para 158.
62
Ibid, para 160.
63
Ibid, para 85.
64
Ibid, para 59.
65
Ibid, para 130.
The practice of social protesting in Argentina is to promote road blockages in

order to draw public attention to a certain issue.66 Protesters in Argentinean judicial
practice are prosecuted when their actions interfere with the rights of others, thus
making a balancing necessary. As the practice of protesting in Argentina consists of
blocking traffic in roads and other public spaces, it interferes with public order and
thus falls within the domain of criminal law in the Argentinean system. These
activities being considered part of criminal law leads to a general impression that
protests are “criminal acts,” which makes the balancing exercise weigh against the
protesters, who generally lose.67
Another aspect of the human rights argument before the Arbitral Tribunal is that
Argentina understood the right to freedom of assembly as meaning the right to
demand the fulfillment of other rights, and that part of this right was necessarily the
right to choose the venue that would be most effective for conveying the message.68
This seems to be in contradiction with laws generally permitting time, place, and
manner restrictions on freedom of assembly, which impose a smaller threshold on
the state in order to justify the restriction than if the restriction was a ban on the
demonstration altogether. These arguments are frequently used by Argentinean
judges to punish road protesters. The general argument is that other venues that
would cause less harm to the rights of others (thus, a place restriction) could be
chosen.69
The fact that Uruguay brought as one of its arguments the free circulation of
persons as a human right (the human right to freedom of movement) brings into the
discussion a new perspective on what the limitation on freedom of assembly can
consist of in any given case. Not only economic freedoms can be at stake but also the
freedom of other people to walk around freely. This is in many ways a better way to
bring the question of the limitations to the right to freedom of assembly based on the
rights of others compared to what has been done by the ECJ, but it carries along
some risks of making human rights claims a part of claims concerning economic
freedoms.
As, in this particular case, the freedom of movement was nothing but the
expression of an economic freedom, it is arguable to which extent, if any, human
rights should gain automatic precedence over such freedoms. This argument was not
considered by the Arbitral Tribunal, however.
To sum up the aspects of this case, and bring them to a more general context, the
rule seems to be the following: the enjoyment of a human right can be a justifiable
interference with an economic freedom, as long as the enjoyment of the human right
pursues a legitimate aim, and the gain with the human rights activity is proportional
to the hampering of the economic freedom. If such is the case and, in a balancing
exercise, it is shown that the economic freedom is not gravely affected and that the
66
Gargarella (2008).
67
68
Ibid, para 52.
69
Gargarella (2008).
state has taken positive measures to minimize the impact of the exercise of the
human right in question on the economic freedom, there is no violation of any
economic integration norms.
The International Court of Justice, after denying provisional measures requested
by Argentina in 2006, considered, on April 20, 2010, that Uruguay did not violate its
obligations to protect the environment in the construction of the paper and cellulose
processing facility in the Uruguay River, according to the bilateral treaty of 1975, as
suggested by Argentina.70 The decision of the Court took into consideration mainly
environmental aspects.
From this, one can see that the consideration of human rights aspects in the
jurisprudence of the MERCOSUR is still incipient. The jurisdictional organs of the
bloc have frequently forgotten in their decisions the intrinsic relations between
economic integration law (or, better, international economic law) and international
human rights law. In this regard, it is relevant to note that the ILA Committee on
International Trade has, since its 69th Conference in London (2000), shown the
unbreakable link between the two topics—international trade and human rights. All
of the reports of the ILA Committee on International Trade Law of the biannual
conferences of this association and specially its Resolution 5/2008 reaffirm this trend
when stating that “WTO members and bodies are legally required to interpret and
apply WTO rules in conformity with the human rights obligations of WTO members
under international law.”71
It is, thus, fair to conclude that the pragmatic and intergovernmental character of
MERCOSUR—often associated with the WTO model—has been producing an
integration process too focused on trade aspects and with little repercussion on the
promotion of public policies of effective valorization of human rights in the national
plans. This characteristic is going against the established trend of international law of
implementing human rights in all possible spheres of life.
MERCOSUR’s reluctance with respect to human rights may also be attributable
to the lack of a clear competence in areas beyond trade. Said competences, partic-
ularly in the field of development, are dealt with by a new regional organization,
UNASUR. This organization, comprising in principle all countries in South Amer-
ica, purports to be larger than MERCOSUR and to cover areas where human rights
law may be more influential.72 The next section looks at this regional integration
process.
70
ICJ, Pulp Mills on the River Uruguay (Argentine v Uruguay), judgment of 20 Apr 2010, ICJ
Reports 2010, 14.
71
ILA, Report of the Seventy-Third Conference, Rio de Janeiro, ILA Reports 2008, 55.
72
For a more detailed analysis of the relationship between the two organizations, see Lixinski and de
Andrade Coeera (2010).
4 UNASUR: Human Rights as Part of a Development

Agenda
In contrast to MERCOSUR, which was conceived as an economic integration

process, UNASUR was born as a political forum in order to foster unity and dialog
in the continent. The Union of South American Nations (UNASUR) is an interna-
tional organism formed by the twelve independent countries of the South American
region—Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Guyana, Paraguay,
Peru, Suriname, Uruguay, and Venezuela (the only exception is the territory of
French Guiana). The bloc was created on May 23, 2008, when its Constitutive
Treaty was signed in Brasília, Brazil. The Constitutive Treaty entered into force
on March 11, 2011.
There are some normative constraints in favor of human rights in the framework
of UNASUR. The constitutive treaty of UNASUR, for instance, is based on the
premise “that fully functioning democratic institutions and the unrestricted respect
for human rights are essential conditions for building a common future of peace,
economic and social prosperity and for the development of integration processes
among the member states.” More specifically, its Article 14 mentions that “the
political consultation and coordination among the member states of UNASUR will
be based on harmony and mutual respect, strengthening regional stability and
supporting the preservation of democratic values and the promotion of human
rights.”
Based on these premises, a High Level Group on Human Rights was created by
the decision of the Council of Ministers of Foreign Affairs of UNASUR at the
meeting of March 17, 2012, as the South American permanent body responsible for
coordinating the cooperation among states and ensuring and promoting human
rights.
It is true that the institutional framework of UNASUR is still lighter than
MERCOSUR’s, and despite the existence of some norms and references to human
rights, it is too soon to draw conclusions as to the role played by the international
case law on human rights over the action of UNASUR.
The limited experience of adjudicating human rights in REIOs across Latin America
does not allow us to draw many general conclusions. However, among what we can
observe, it is worth remarking the lingering influence of the European Union model
and experience as a guide. At the same time, though, the influence of organizations
like the UNASUR may mean a less court-centric approach to human rights and its
influence on regional economic integration.
In regard to human rights at MERCOSUR and UNASUR, in spite of the existence
of some important normatization in both organisms on international human rights
law, the topic is almost totally ignored in the regional case law—with only one
MERCOSUR decision dealing with the subject in a more consistent way. Given the
high degree of intergovernmentality of both blocs, the lack of supranationality, and
even the lack of a court in UNASUR, the dialog with the domestic jurisdictions is
almost inexistent in the bloc, and when it is present, as in the case of MERCOSUR, it
refers only to trade aspects. UNASUR still needs to show with actions its commit-
ment to the promotion of human rights. But we are hopeful that there is room for
growth within that institutional framework, especially in light of its commitment to
holistic development.
References
Alston P, Weiler JHH (1999) An ‘Ever Closer Union’ in need of a human rights policy? In:
Alston P, Bustelo J, Heenan J (eds) The EU and human rights. OUP, Oxford, pp 3–66
Craig P, de Búrca G (2003) EU law, 3rd edn. OUP, Oxford
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expression and assembly vs. free movement of goods. Eur Hum Rights Law Rev 4:73–80
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American FTAs and MERCOSUR: an exploratory agenda. Eur Law J 20:811–823
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power and street demonstration. Eleven International Publishing, Utrecht, pp 61–86
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lishing, Utrecht, pp 127–146
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Lixinski L, de Andrade Coeera F (2010) The legal future of MERCOSUR. In: Franca Filho MT,
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Andean Charter on the protection of human rights). Revista Española de Derecho Internacional
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Trotta, Madrid, pp 175–198
Pescatore P (2010) Van Gend en Loos, 03 February 1963 – a view from within. In: Poiares
Maduro M, Azoulai L (eds) The past and future of EU law. Hart Publishing, Oxford, Portland,
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The law of MERCOSUR. Hart Publishing, Oxford, Portland, pp 73–85
Courts of Regional Economic Communities
in Africa and Human Rights Law
Solomon T. Ebobrah
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
2 Contested Foundation for Human Rights Protection? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
2.1 Fundamental Principles as Treaty Foundation for Human Rights . . . . . . . . . . . . . . . . . . . 226
2.2 Formalising Protection: Translating Fundamental Principles Into Competence
and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
3 Direct and Indirect Paths to Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
3.1 Rights Qua Rule of Law Before the East African Court of Justice . . . . . . . . . . . . . . . . . . 236
3.2 Rights Qua Human Rights Before the ECOWAS Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
4 Consequences of Differing Paths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
4.1 Approaches to Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
4.2 The Use of Global and Regional Human Rights Treaties in the REC Courts . . . . . . . 247
4.3 Formulation of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
1 Introduction
Over the last decade, judicial organs of the regional economic communities (RECs)
in Africa have diversely and subtly transformed the landscape of regional human
rights protection in Africa. Generally inspired by Europe’s integration experience
and the much publicised role that the (old) European Court of Justice (ECJ) played in
advancing Europe’s economic integration,1 the drivers of economic integration in
post-colonial Africa ensured that judicial organs were established within the frame-
works of the emerging RECs. In the African context, these courts were basically
1
See generally, Weiler (1991), pp. 2403–2483.
S. T. Ebobrah (*)
Niger Delta University, Amassama, Nigeria
CHR University of Pretoria, Pretoria, South Africa

https://doi.org/10.1007/978-3-319-94848-5_8
224 S. T. Ebobrah
established to resolve inter-state disputes and to interpret treaties and other legal
documents within their respective organisational frameworks.2 As integration goals
remained unrealised and the RECs either faced existential challenges or were
adapted to other uses, their judicial organs generally remained inactive up to the
late 1980s. However, with the adoption in 1991 of a continental treaty for the
creation of an African Economic Community (AEC),3 the stage was set for a second
wave of regionalism in Africa. Accordingly, in certain parts of the continent, treaties
of existing RECs were revised and improved, while in other parts where no REC
existed, treaties were adopted to found new RECs. Thus, at the dawn of the new
millennium, no less than 14 RECs existed in Africa. In this new dawn of regional-
ism, judicial organs also re-emerged as improved courts and tribunals with broader
mandates, improved access and enlarged jurisdictions.
Coinciding with the so-called new regionalism, which takes regional integration
beyond mere trade liberalisation,4 Africa’s second wave of regionalism also saw the
emergence of RECs with a wider range of organisational objectives. Significantly, as
new or revised treaties proclaimed broader objectives for the RECs, the idea of human
rights protection was also introduced into the integration discourse. Unlike the treaties
adopted in the first wave of regionalism, new as well as revised treaties of African RECs
contained language by which African states acknowledged the existence of a duty to
recognise and protect human rights. Although critics would argue that this new rhetoric
has not translated into much in practical terms, in at least two of the more active RECs,
the introduction of human rights into integration discourse has translated into a
judicialisation of human rights protection within the integration framework. Increas-
ingly, the East African Court of Justice (EACJ) and the Court of Justice of the Economic
Community of West African States (ECOWAS Court) have become actively involved
in the business of judicial protection of human rights. While in West Africa this has
occurred with the active endorsement of the region’s political leaders, the process in
East Africa has developed in spite of the reluctance of the region’s political leaders.5
The EACJ, which is the judicial organ of the East African Community (EAC),
consists of a First Instance Division and an Appellate Division. Its jurisdiction, as set
out in Articles 23 and 27 of the 1999 EAC Treaty (as amended), is to interpret and
apply the EAC Treaty and protocols.6 Although Article 27 (2) of the EAC Treaty
envisages that the jurisdiction of the Court would be expanded to cover additional
issues, including human rights, the EAC Partner States have yet to adopt a protocol
to grant the EACJ jurisdiction over human rights claims. Notwithstanding the
2
For instance, the old ECOWAS Community Court of Justice established under the original
ECOWAS Treaty of 1975 was strictly an inter-state court.
3
The Treaty establishing the AEC was adopted in Abuja, Nigeria in 1991 and entered into force
in 1994.
4
See the UNDP (2011), p. 3.
5
See generally, Alter et al. (2013), pp. 737–779; Ebobrah (2007), p. 307; Gathii (2013),
pp. 249–296.
6
See Art 27 (1) of the 1999 EAC Treaty (as amended).
Courts of Regional Economic Communities in Africa and Human Rights Law 225
absence of a clear mandate, in the course of its work, the EACJ has claimed authority
over matters that allege violation of human rights. For its part, the ECOWAS Court
first emerged in Articles 4 (1) (d) and 11 of the 1975 ECOWAS Treaty as the
Tribunal of the Community. However, in the 1991 Protocol adopted to operationalise
Article 11 of the 1975 ECOWAS Treaty7 and in the 1993 revised ECOWAS Treaty,
the court emerged as a Community Court of Justice. The ECCJ also has a primary
mandate to interpret and apply the Treaty and legal instruments of ECOWAS.
However, in a Supplementary Protocol adopted in 2005, the ECCJ was clothed
with additional jurisdiction over cases alleging the violation of human rights within
the territories of ECOWAS Member States.8 Based on this additional mandate, the
ECOWAS Court currently exercises full human rights jurisdiction over claims from
15 ECOWAS Member States.
In effect, both the EACJ and the ECOWAS Court are now recognised as critical
players in the African human rights system (AHRS). Yet the impact of these courts
on the AHRS has not been symmetrical. This contribution argues that despite their
similarities as judicial organs of RECs with primarily economic focus, the nature of
political support that these courts enjoy in their human rights work has resulted in
different paths and approaches to the protection of rights. This in turn has different
consequences for the courts and their relationship with national legal systems and the
AHRS even though both courts have contributed to the advancement of human
rights protection in their respective regions of operation.
The rest of the chapter is divided into four broad parts. The next part (Sect. 2)
examines the foundation for the human rights work of African RECs and their
courts. The section describes how thin references to human rights in the treaties
have translated into human rights jurisdiction for the courts and argues that the EACJ
has acquired human rights jurisdiction in spite of the reluctance of states parties to
the EAC Treaty, while the ECOWAS Court’s human rights jurisdiction is expressly
conferred by states parties to that Court’s Protocol. Section 3 discusses how the
differences in jurisdiction have resulted in direct and indirect approaches to human
rights protection by the courts under focus. Section 4 explains some consequences of
the different approaches that the courts have taken. Section 5 wraps up the chapter
and presents a summary of the main points.
7
See Protocol A/P.1/7/91 on the Community Court of Justice signed 06 July 1991, entered into
force provisionally in 1991 and definitely on 05 Nov 1996.
8
See Supplementary Protocol A/SP.1/01/05 which was adopted on 19 Jan 2005 and entered into
force provisionally the same year.
226 S. T. Ebobrah
2 Contested Foundation for Human Rights Protection?
Competence and jurisdiction are critical factors in the functioning of international

organisations (IOs) and international courts (ICs) respectively. Whereas states have
general competence over every conceivable matter and may confer jurisdiction on
national courts on the basis of such general competence,9 IOs depend on their
Member States for express or implied grant of competence usually within a specific
and limited area. Consequently, the jurisdiction and hence authority of international
courts is linked to the competence of the parent IO and generally depends on express,
specific and voluntary grant of jurisdiction by states parties.10 Unlike traditional
international human rights courts, which claim their authority over human rights
expressly from multilateral human rights treaties, the EACJ and the ECOWAS Court
only enjoy primary authority in the area of international trade and related issues. The
multilateral treaties creating their respective parent organisations focus on advancing
economic objectives of the converging states. Hence, apart from the danger of
potential explicit conflict between such economic objectives and the international
human rights obligations of the converging states, RECs tailor the jurisdiction of
their courts to align with their economic competences. Accordingly, the original
form and functions of both the EACJ and the ECOWAS Court are not necessarily
tailored for the protection of human rights.11 Yet these courts actively monitor their
states parties’ compliance with international human rights instruments within
national territories and beyond the narrow context of economic integration. While
new regionalism and the ever-increasing pervasiveness of human rights in global
politics have ensured that Africa’s integration discourse is laced with rights talk,
human rights protection has remained outside central organisational objectives.
Thus, sceptics would rightly question the foundation upon which courts such as
the EACJ and the ECOWAS Court base their human rights work. As the jurispru-
dence of these courts show, statements of fundamental principles have turned out to
be the favoured, if constestable, foundation for these courts.
2.1 Fundamental Principles as Treaty Foundation

for Human Rights
Common to both the EAC and ECOWAS (and indeed most of the other RECs in
Africa) are treaty provisions proclaiming a number of values and standards as
fundamental principles that should ‘govern the achievement of the objectives’12 or
9
See Akande (1998), p. 437.
10
Some would argue that this is only the traditional view. See also Paulus (2010), p. 210.
11
See generally, Steiner et al. (2007), on how the form and function affects the creation of
international governmental organisations.
12
Art 6 of the EAC Treaty.
drive the ‘pursuit of the objectives’13 of integration. Article 6 (d) of the EAC Treaty
affirms those fundamental principles to include ‘good governance including adher-
ence to the principles of democracy, the rule of law, accountability, transparency,
social justice, equal opportunities, gender equality, as well as the recognition,
promotion and protection of human rights in accordance with the provisions of
the African Charter on Human and Peoples Rights’.14 Article 7 of the EAC Treaty
setting out ‘Operative Principles of the Community’ states in sub-Article (2) that ‘the
Partner States undertake to abide by the principles of good governance, including
adherence to the principles of democracy, the rule of law, social justice and the
maintenance of universally accepted standards of human rights’. In similar fashion,
Article 4 (g) of the 1993 Revised ECOWAS Treaty proclaims the fundamental
objectives of ECOWAS to include ‘recognition, promotion and protection of
human rights in accordance with the provisions of the African Charter on Human
and Peoples’ Rights’.15 Neither treaty spells out the legal implications of these
statements of fundamental principles, leaving room for other actors, particularly
the courts, to give legal meaning to the statements.
An important question remains whether statements of fundamental principles
create specific legal obligations in the manner that legal rules do or whether like
legal principles generally fundamental principles only create spaces for possible
action.16 At the adoption of the treaties, it was not clarified whether the fundamental
principles were immediately operational prescriptions, giving rise to concrete and
specific state obligations under community law, or were simply aspirational princi-
ples in the manner of directive principles of state policy in certain domestic consti-
tutions.17 Distinct from the stated objectives of the RECs, it is open to debate
whether fundamental principles constitute material from which the implied compe-
tence of an IO can be deduced.18 Whatever else they may represent, both the EACJ
and the ECOWAS Court, albeit in different fashion, have adjudged that such
statements of fundamental principles contain and represent positive obligations on
states to ensure the protection of human rights on the platform of the respective
organisations, thereby simultaneously constituting the foundation for the human
rights work of the RECs and the courts.
The EACJ first engaged with Articles 6 (d) and 7 (2) of the EAC Treaty in the
case of Katabazi and 21 Others v Secretary General of the EAC & Another
13
Art 4 of the 1993 Revised ECOWAS Treaty.
14
Emphasis mine.
15
Emphasis mine.
16
See Braithwaite (2002), p. 47. Braithwaite comparatively describes principles as ‘unspecific and
vague prescriptions’.
17
For instance, the Red Cross and Red Crescent movement considers their fundamental principles
to be their values and practices which were ‘at once operational and aspirational’. See IFRC (2017).
18
See generally, ICJ, Reparations for Injuries Suffered in the Service of the UN (advisory opinion),
ICJ Reports 1969, 182–183. See also Akande (1998), p. 443.
228 S. T. Ebobrah
(Katabazi case),19 where the Court agreed with the applicants that the actions of the
government of Uganda contravened fundamental principles in those articles.20
Without elaborating on the legal status of the articles, the Court implicitly announced
that fundamental principles were immediately operative obligations that states were
required to comply with. However, probably in recognition of the importance of
linking its jurisdiction to the competence of its parent organisation (the EAC), the
Court first drew attention to the fact that one of the objectives of the Community was
to deepen cooperation in ‘legal and judicial matters’.21 In the EACJ’s view, together
with the objective to deepen cooperation in legal and judicial matters, the undertak-
ing to respect and abide by the rule of law and human rights standards created
tangible obligations for EAC Partner States. In Plaxeda Rugumba v Rwanda
(Plaxeda First Instance),22 the First Instance Division of the EACJ (First Instance
EACJ) categorically expressed the view that fundamental principles had binding
effect. The Court stated that ‘we are of the firm view that the principles set out in
Articles 6 (d) and 7 (2) were not inscribed in vain’ and, as such, ‘the jurisdiction of
this Court to interpret any breach of those Articles was also not in vain, neither was it
cosmetic’.23 In essence, the EACJ was asserting both the competence of the EAC
and its (EACJ’s) own jurisdiction over the rule of law and human rights. Subse-
quently, in the case of Democratic Party v The Secretary General of the EAC &
4 Others (Democratic Party First Instance case),24 the First Instance EACJ
reaffirmed that Articles 6 (d) and 7 (2) of the EAC Treaty contained obligations
that states could violate.25 The Court further pronounced that these articles, read
together with Articles 27 and 30 of the EAC Treaty, empowered the court to
‘entertain questions whether the actions and inactions of states violate Articles 6
19
EACJ, Katabazi and 21 Others v Secretary General of the EAC & Another, unreported, reference
No 1 of 2007. The Katabazi case is discussed more fully infra. The Katabazi case was heard by the
EACJ in its original single chamber status, even though in apparent reaction to the earlier decision
of the EACJ in Prof. Peter Anyang’ Nyong’o & 10 others v The Attorney General of Kenya &
5 others, reference No 1 of 2006, the EAC Summit of Heads of State had resolved in Dec 2006 to
reconstitute the EACJ as a two-chamber court consisting of a first instance division and an appellate
division. See generally, Gathii (2013), for a detailed account of the evolution of the appellate
division as a consequence of the Nyong’o case. See also Alter et al. (2016), pp. 293–328.
20
See 23 of the Katabazi judgment.
21
22
EACJ, Plaxeda Rugumba v Rwanda, unreported suit, reference No 8 of 2010. In this case, the
Applicant brought the action on behalf of her brother, a member of the Rwanda Armed Forces who
was detained and held incommunicado by the Rwandan authorities.
23
See para 37 of the Plaxeda first instance judgment.
24
EACJ, Democratic Party v The Secretary General of the EAC & 4 Others, unreported suit,
reference No 2 of 2012. The Applicant in this case, a Ugandan political party brought all Partner
states before the EACJ to challenge the failure or refusal of the states to make the relevant
declaration to allow individuals access to the African Court on Human and Peoples Rights against
each of those states. By Art 34 (6) of the Protocol establishing the African Court, such a declaration
was required before that court can entertain complaints from non-state actors against a given state.
25
See paras 40–42 of the Democratic Party first instance judgment.
(d) and 7(2)’.26 As these cases show, as far as the protection of human rights is
concerned, the First Instance Division of the EACJ has been consistent in finding
both the competence of the EAC and the jurisdiction for the Court itself in these
fundamental principles.
The recognition of fundamental principles as the human rights foundation of the
EAC has also been reaffirmed by the Appellate Division of the EACJ (Appellate
Division). For instance, in its judgment in the case of Attorney General of Kenya v
Independent Medical Legal Unit (IMLU Appellate case),27 the Appellate Division
took the view that by voluntary entry into the EAC Treaty framework, Partner
States’ responsibilities to their citizens and residents have been ‘scripted,
transformed and fossilised into several objectives, principles and obligations now
stipulated in . . . Articles 5, 6 and 7 of the Treaty’.28 Hence, any breach thereof gives
rise to an infringement of the Treaty.29 The Appellate Division may thus be seen as
acknowledging that the consent of the states was critical to the imposition of
obligations while simultaneously asserting that fundamental principles in Articles
6 and 7 give rise to obligations in the same manner that Treaty objectives do. This
posture of the Appellate Division is taken further in its judgment in the appeal filed in
the Democratic Party v The Secretary General of the EAC & 4 Others case
(Democratic Party Appeal case),30 where the Appellate Division stressed that
Articles 6 (d) and 7 (2) of the EAC Treaty did not only obligate EAC Partner States
to adhere to stated principles (including the promotion and protection of human
rights) but also required the states to ‘act in good faith and in accordance with the
provisions’ of the African Charter on Human and Peoples’ Rights (African
Charter).31 In essence, both divisions of the EACJ are in agreement that the
fundamental principles and the operational principles in the EAC Treaty create
concrete and immediate human rights obligations on the platform of the EAC. The
Appellate Division also considers Articles 6 (d) and 7 (2) of the EAC Treaty to be
empowering provisions that allow the EACJ to monitor Partner States’ adherence to
those obligations.32 Taking the meaning and consequences of these provisions
beyond mere words, the EACJ arguably ‘develops and stabilises normative expec-
tations’ in the area of human rights beyond the limits set by the Partner States.33
26
Para 43 of the Democratic Party first instance judgment.
27
EACJ, Attorney General of Kenya v Independent Medical Legal Unit, unreported, appeal No
1 of 2011.
28
See 12 of the IMLU Appellate judgment.
29
Ibid.
30
EACJ, unreported, appeal No 1 of 2014.
31
See paras 63–68 of the appellate division’s judgment.
32
See para 69 of the appellate division’s judgment in the Democratic Party case.
33
See von Bogdandy and Venzke (2013), pp. 49–72 who argue that the development and
stabilisation of expectations is one of the multiple functions that international courts currently
undertake.
230 S. T. Ebobrah
Notwithstanding the similarity of their treaty contextual situation vis-à-vis human

rights, the ECOWAS Court has not elaborately addressed the foundation for the
human rights work of ECOWAS in a manner comparable to the EACJ. However, in
a bid to justify its use of the African Charter, the ECOWAS Court has also made
pronouncements that indicate an understanding of fundamental principles (and at
least one ECOWAS Protocol)34 as the legal foundation for the human rights work of
ECOWAS. The case of Ugokwe v The Federal Republic of Nigeria (Ugokwe
Case),35 wherein the ECOWAS Court sought to establish the nature of its jurisdic-
tion over human rights, provided the first opportunity for that Court to address the
question of the foundation of the ECOWAS Community’s human rights work.36
Asserting that it had authority to receive complaints of ‘any violation of human
rights in any Member State’ (on the basis of its express human rights jurisdiction
granted in the 2005 Supplementary Protocol),37 the ECOWAS Court was faced with
the reality of the absence of a Community-specific human rights catalogue upon
which the human rights jurisdiction could be exercised. The absence of a
Community-specific rights catalogue is arguably a consequence of the economic-
focused competence of ECOWAS. However, rather than worry over what is appar-
ently a diversion of competence from the original economic integration and trade
liberalisation focus of the Community, the ECOWAS Court chose to identify a treaty
basis for adopting existing catalogues to sustain its jurisdiction. In order to do so, the
ECOWAS Court resorted to invoking Article 4 (g) of the 1993 revised ECOWAS
Treaty. The Court restated that Article 4 (g) of the revised Treaty enjoined ECOWAS
Member States ‘to adhere to the principles including “the recognition, promotion
and protection of human and peoples’ rights in accordance with the provisions of the
African Charter on Human and Peoples’ Rights”’.38 The preference for Article
4 (g) is in spite of the fact that Article 56 (2) of the revised Treaty also provides
that the ECOWAS Member States signatory to the African Charter ‘agree to
cooperate for the purpose of realising the objectives’ of the Charter.
Without analysing the legal consequence of Article 4 (g) of the revised Treaty on
the Community, the ECOWAS Court proceeded to claim that the ‘inclusion and
recognition of the African Charter in Article 4 of the Treaty [. . .] behoves on the
Court [. . .] to bring in the application of those rights catalogued in the African
Charter’.39 Effectively, the ECOWAS Court found that reference to human rights
34
In some of its judgments, the ECOWAS Court traces the foundation of its human rights work
partly to the 2001 ECOWAS Supplementary Protocol on Governance and Democracy.
35
ECOWAS Court, Ugokwe v The Federal Republic of Nigeria, case No ECW/CCJ/APP/02/05,
judgment of 07 Oct 2005. The Applicant in this case brought this action before the ECOWAS Court
alleging that the nullification of his election as a federal lawmaker by an election tribunal in Nigeria
was in violation of his right to fair.
36
As will be shown shortly, a 2005 Supplementary Protocol amending the 1991 Protocol of the
ECOWAS Court expressly conferred human rights jurisdiction on the court.
37
Para 28 of the Ugokwe judgment.
38
Para 29 of the Ugokwe judgment.
39
Ibid, para 30.
and to the African Charter in the fundamental principles constituted both Commu-
nity competence over human rights and licence for the Court to directly invoke the
African Charter to create concrete human rights obligations within the framework of
a manifestly economic-oriented IO. Like the EACJ (or, more appropriately, before
the EACJ), the ECOWAS Court easily invoked human rights obligations for states
parties even in the absence of treaty objectives in that regard. Significantly, the
ECOWAS Court finds its own human rights competence not in the fundamental
principles but in the 2005 Supplementary Protocol. That suggests that its constant
reference to Article 4 (g) of the revised ECOWAS Treaty serves the dual purpose of
establishing a basis for human rights obligation within Community framework and
for applying the African Charter as the catalogue of choice.
Having hinged its human rights competence effortlessly on the 2005 Supplemen-
tary Protocol and successfully deploying Article 4 (g) of the Treaty to commandeer
the African Charter in the Ugokwe case, the ECOWAS Court used subsequent cases
to consolidate that posture. Hence, in its preliminary ruling in the case of Essien v
The Gambia and Another (Essien ruling),40 the ECOWAS Court simply recited
Article 4 (g) of the revised ECOWAS Treaty without more.41 In Ebrima Manneh v
The Republic of the Gambia (Manneh case),42 the ECOWAS Court invoked Article
4 (g) of the 1993 Revised ECOWAS Treaty simply to affirm that it provides for the
promotion and protection of human rights in accordance with the African Charter.43
Referring to its earlier judgment in Tidjani v Federal Republic of Nigeria (Tidjani
case),44 the ECOWAS Court stressed that combined with the amended Article
9 (4) of the Protocol Establishing the ECOWAS Court, the effect of Article
4 (g) of the 1993 Revised Treaty is to allow individuals to bring claims based on
the African Charter before the ECOWAS Court.45 In all these cases, the ECOWAS
Court did not expressly explain the legal status or consequence of fundamental
principles under the ECOWAS framework. In the subsequent case of Koraou v
Niger,46 the ECOWAS Court took the view that Article 4 (g) of the revised
ECOWAS Treaty empowered the court to protect rights on the basis of the African
Charter without necessarily following the procedure recommended for the African
40
ECOWAS Court, Essien v the Gambia and Another, unreported suit, No ECW/CCJ/APP/05/05,
ruling of 14 Mar 2007. The Applicant who was seconded to the University of the Gambia by the
Commonwealth Secretariat but was convinced to stay back at the end of the secondment sought a
declaration that the failure to pay him in the currency the Commonwealth paid him for the same job
amounted to a violation of his human rights to equal pay for equal work.
41
See para 10 of the Essien ruling.
42
ECOWAS Court, Ebrima Manneh v The Republic of the Gambia, unreported suit, No ECW/CCJ/
APP/04/07; judgment No ECW/CCJ/JUD/03/08, judgment of 05 June 2008. The case was brought
on behalf of a journalist who disappeared after he was arrested by the Gambian authorities.
43
See para 14 of the Manneh judgment.
44
ECOWAS Court, Tidjani v Federal Republic of Nigeria, unreported suit, No ECJ/CCJ/APP/01/
06, judgment of 28 June 2008.
45
Para 16 of the Manneh judgment.
46
ECOWAS Court, Koraou v Niger, (2008) AHRLR 182 (ECOWAS 2008).
232 S. T. Ebobrah
Commission in the African Charter.47 In each case, the ECOWAS Court arguably
saw no need to justify either the ECOWAS Community’s or the court’s own legal
authority over human rights. Yet the references to Article 4 (g) of the 1993 Revised
ECOWAS Treaty suggest a subtle conviction that reference to human rights in the
statement of fundamental principles is a major (if not the major) plank on which the
Community’s human rights work is founded.
From the perspective of the competence of IOs, it is now settled in the jurispru-
dence of the International Court of Justice (ICJ) that the express competence of an IO
is generally located in the objectives of the organisation.48 However, an IO can be
attributed with or can itself invoke implied competence insofar as is necessary for the
effective fulfilment of the objectives laid out for the organisation.49 Arguably, the
states parties to the EAC and ECOWAS treaties recognise the importance of assuring
the protection of the human rights of citizens and residents of their respective
communities in order to ensure successful economic integration. Yet in both com-
munities, states parties stopped short of pronouncing the protection of human rights
as central objectives to be pursued within the REC framework, possibly because all
states also belong to the African Union on whose platform the African Charter has
been adopted for the assurance of regional protection of rights. By giving flesh to the
idea of human rights protection recognised in the frame of fundamental rights, both
the EACJ and ECOWAS may well have expanded the objectives of their respective
RECs, situating the protection of human rights as implied competence of the
organisations. If, as argued elsewhere, economic integration is more likely to be
successfully carried out in an atmosphere free of conflicts triggered by violent
demands for human rights,50 then the protection of human rights within the frame-
work of the RECs is a veritable competence that the courts have implied for their
parent organisations. While both RECs apparently rely on thin reference to human
rights in the statement of fundamental principles as foundation for human rights, as
already hinted above, the translation of that implied competence into concrete
jurisdiction for the courts has panned out differently.
47
See para 42 of the Koraou case. The rejection of the African Commission’s procedure is most
pronounced in the ECOWAS Court’s insistence that the requirement to exhaust local remedies in
the Charter is not applicable to the Court’s process.
48
See for instance the WHO in ICJ, Legality of the Threat or Use of Nuclear Weapons (advisory
opinion), ICJ Reports 1996, 79. See also ICJ, Reparations for Injuries Suffered in the Service of the
UN (advisory opinion), ICJ Reports 1969, 182.
49
See Akande (1998), pp. 443–444.
50
For instance, see Ebobrah (2015).
2.2 Formalising Protection: Translating Fundamental

Principles Into Competence and Jurisdiction
Notwithstanding the absence of a firmer treaty basis for their direct involvement in
human rights promotion and protection, the EAC and ECOWAS both made early
expressions of intention to empower their respective courts to entertain complaints
of alleged violations of human rights. In Article 27 (2) of the EAC Treaty setting out
the jurisdiction of the EACJ, the founding EAC Partner States undertook, inter alia,
to grant the EACJ human rights jurisdiction through the adoption of a protocol to
that effect.51 Significantly, there is nothing in Article 27 (2) of the EAC Treaty to
suggest that the envisaged jurisdiction is to be limited to economic integration
activities. Since access to the EACJ is open to non-state actors, this should mean
that Article 27 (2) envisages a general human rights jurisdiction for the EACJ,
subject to the express consent of the states parties.52
Despite efforts within the Secretariat of the EAC (in conjunction with civil
society actors) to trigger the operationalisation of the EACJ’s envisaged human
rights competence by the initiation of a draft protocol to that effect, EAC Partner
States have failed to authorise the actualisation of the extension. Consequently, at
least one judge of the EACJ describes Article 27 (2) of the EAC Treaty to be ‘a layer
of inchoate human rights’ jurisdiction.53 Attempts by the East African Legislative
Assembly (the legislative arm of the EAC) to trigger the anticipated jurisdiction
through the adoption of a regional (EAC) bill of rights have also failed to move
governments of EAC Partner States to operationalise the EACJ’s inchoate human
rights jurisdiction.54 Thus, there is a clear absence of positive consent to such a
human rights jurisdiction for the EACJ. In other words, while the EACJ enjoys
personal jurisdiction over states parties to the EAC Treaty, its subject-matter (mate-
rial) jurisdiction or competence over human rights remains inchoate from the states
parties’ perspective. However, when human rights claims came before the Court in
the Katabazi case, albeit disguised as anything but human rights, the EACJ did not
shy away from entertaining the action. Adopting an activist posture from the very
start, the EACJ famously announced in that Katabazi case that ‘While the Court will
not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate
from exercising its jurisdiction of interpretation under Article 27 (1) merely because
51
Art 27 (2) of the EAC Treaty the reads as follows: ‘The Court shall have such other original,
appellate, human rights and other jurisdiction as will be determined by the Council at a suitable
subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the
extended jurisdiction.’
52
As Amerasinghe argues, traditionally, the jurisdiction of international courts and tribunals is
based on the consent of states. See generally, Amerasinghe (2003).
53
See Ogoola (2012) and cited by the appellate division of the EACJ in the case of Attorney General
of Rwanda v Plaxeda Rugumba, unreported, appeal No 1 of 2012, at 9.
54
Bills passed by EALA require assent by East African heads of state before they can become
Community law. The East African bill of rights did not receive assent from any of the Partner States.
234 S. T. Ebobrah
the reference includes allegation of human rights violation’.55 Insisting on its

competence to ‘interpret and apply’ the Treaty, the EACJ stretched from the
known, consented and approved zone into grey and even yet-to-be approved
zones, engaging in judicial law making through interpretation. With the tacit accep-
tance (or at least acquiescence) of the EAC Partner States, the EACJ’s declaration of
non-abdication has become the foundation of an ever-expanding human rights
jurisdiction claimed by the EACJ.
Faced with a regional court asserting judicial independence through activist
judicial law making that was stretching jurisdiction into an issue area expressly
frozen by states parties, the three original EAC Partner States56 chose to continue to
respect the EACJ, appearing in future cases filed against them before the EACJ and
showing no signs of non-compliance with adverse decisions of the Court. Even as
the EACJ grew bolder and accepted more thinly disguised human rights cases, the
three original Partner States chose not to withdraw support for the Court, electing to
actively participate in its adjudication process and giving the EACJ opportunity to
continue to debate, interpret, apply and develop human rights norms in spite of the
non-operationalisation of Article 27 (2) of the EAC Treaty. In other words, though
states parties can claim credit for the inclusion of the idea of recognition and
protection of human rights in the fundamental principles and the promise of an
express human rights jurisdiction for the EACJ, it is through its own act of jurisdic-
tion capture that the EACJ has acquired competence over human rights. It is judicial
accretion of jurisdiction in disregard of legislative competence of states that has
translated treaty provisions into concrete jurisdiction. Thus, the EACJ’s human
rights jurisdiction is an acquired jurisdiction.
For their part, ECOWAS leaders chose the medium of a 2001 Protocol to first
express their intention to confer the ECOWAS Court with a human rights jurisdic-
tion. In Article 39 of the 2001 Supplementary Protocol on Democracy and Gover-
nance, ECOWAS Member States pledged to review the 1991 Protocol, which
established the ECOWAS Court in order to, inter alia, give the court power to
‘hear case relating to violation of human rights’.57 Before the promise of an
expanded jurisdiction could be realised, and while the 1991 Protocol of the Court,
which granted access only to states parties, was still operational, the ECOWAS
55
56
Kenya, Tanzania and Uganda were the three original Partner States of the EAC who subscribed to
the 1999 Treaty of the EAC, continuing from where they stopped in 1977 when the EAC founded
on a 1967 Treaty collapsed. Based on their colonial history, the national legal systems of all three
states generally belong to the British Common Law Family. Burundi and Rwanda acceded to the
EAC Treaty in 2007. Both countries can generally be classified as states with civil law judicial
culture. South Sudan was also admitted into the EAC in 2016.
57
Art 39 of the Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the
Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeep-
ing and Security.
Court received an individual claim alleging violation of human rights.58 In the case
of Afolabi v Nigeria (Afolabi case),59 a Nigerian trader affected by the unilateral
closure of the Nigeria-Benin land border by the Nigerian authorities brought an
action against Nigeria, claiming a violation of his human and economic rights in
spite of the fact that the 1991 Protocol of the Court allowed access only for states.
Although the ECOWAS Court sympathised with the applicant, it declined to hear the
case, ruling that under the 1991 Protocol of the Court, individuals had no indepen-
dent access or right of appearance before the ECOWAS Court. Acknowledging that
a more activist court like the old European Court of Justice could have interpreted
the Protocol expansively to claim jurisdiction, the ECOWAS Court deliberately
chose to decline jurisdiction, deferring instead to the legislative competence of
ECOWAS states in order to avoid criticism.60 Thus, even though they saw a need
for a more liberal access regime, judges of the ECOWAS Court exercised judicial
restraint and elected to actively campaign for Member States to amend the Court’s
Protocol in order to expand its jurisdiction and open up access. Effectively, the Court
conceded the initiative to ECOWAS Member States to drive the Community agenda
through the political instead of engaging in judicial law making through interpreta-
tion of treaty.
Following sustained lobby by civil society actors and the court, the promise to
expand the jurisdiction of the ECOWAS Court was actualised in 2005 when
ECOWAS Member States61 adopted a Supplementary Protocol to amend the 1991
Protocol of the ECOWAS Court. Regarding the ECOWAS Court’s human rights
work, amended Articles 9 (4) and 10 (d) are critical provisions that significantly
reshaped the court. In the amended Article 9 (4), the ECOWAS Court was granted
‘jurisdiction to determine cases of violation of human rights that occur in any
member state’. The amended Article 10 (d) opened access to court to ‘Individuals
on application for relief for violation of their human rights’. In other words, the 2005
Supplementary Protocol allowed individual access to the previously state-centric
ECOWAS Court, insofar as the complaint related to the alleged violation of human
rights within the territory of an ECOWAS Member State. The 2005 Supplementary
Protocol did not link the ECOWAS Court’s human rights competence to any
regional or global human rights catalogue. It also set out only two conditions for
exercise of the jurisdiction—application to the court must not be anonymous, and a
58
Art 9 of Protocol A./P1./7/91 on the Community Court of Justice regulated access to the
ECOWAS Court and only allowed ECOWAS Member States to bring actions on behalf of their
nationals against other states.
59
ECOWAS Court, Afolabi v Nigeria, unreported suit, No 2004/ECW/CCJ/01/03.
60
See para 56 of the Afolabi judgment.
61
At inception, there were 15 member states that made up ECOWAS. These were Benin, Burkina
Faso, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger,
Nigeria, Sierra Leone and Togo. Cape Verde subsequently acceded to the ECOWAS Treaty of 1975
bringing membership to 16. In 2000, Mauritania withdrew its membership, bringing membership of
the organisation to 15 once again.
236 S. T. Ebobrah
case on similar facts must not be pending before any other international court.62
Thus, whereas the EACJ’s promised human rights jurisdiction has yet to materialise,
as at 2005, the ECOWAS Court had been endowed with express jurisdiction of
human rights matters. The human rights jurisdiction of the ECOWAS Court is a
conferred jurisdiction. However, in the absence of an ECOWAS-specific human
rights catalogue and in view of the very minimal distinctive conditions for its
exercise, the human rights jurisdiction of the ECOWAS Court can be described as
a ‘franchise jurisdiction’, a franchise of the African Charter to which all ECOWAS
Member States are parties.
While the ECOWAS Court, made up of judges from a mixture of common law
and civil law backgrounds with diverse traditions of parliamentary supremacy,
constitutional supremacy and judge-made or inspired law, declined the opportunity
to seize judicial leadership over regional integration, the EACJ, made up at the time
of only judges from countries with common law legal systems, took the opposite
approach to ensure judicialisation of rights protection in the EAC framework. With a
history of instability, military coups and counter-coups, and full-blown civil wars
and conflicts in the region, perhaps it is not so surprising that political leaders in
West Africa, conscious of the relatively weakened state of national judiciaries, did
not resist the idea of regionalising the protection of human rights within an economic
integration framework. More significantly, in both RECs, the thin promise of human
rights protection has matured into clear judicial mandate, albeit through different
routes.
3 Direct and Indirect Paths to Rights Protection
Because of the differing manner in which the promise in the statements of funda-
mental principles has evolved in the two RECs, these courts have taken different
paths to human rights protection. Whereas, in line with its express mandate, the
ECOWAS Court has taken a direct path, the EACJ’s path to human rights protection
has been indirect and rather strenuous.
3.1 Rights Qua Rule of Law Before the East African Court
of Justice
Although scholars have made compelling arguments that seek to water down the
relevance of state consent in contemporary international law, consent remains
important at a basic level and international courts still depend on the express or
tacit support of states to function effectively. Consequently, the freezing or
62
See Art 10 (d) (II) of the 2005 Supplementary Protocol of the ECOWAS Court.
suspension of the EACJ’s human rights jurisdiction in Article 27 (2) of the EAC
creates a dilemma of foundational authority that has forced the Court to strategically
follow an indirect path to its human rights work from the very onset. The EACJ’s
first real encounter with a claim for human rights was in the case of Katabazi &
21 Others v Secretary General of the East African Community and Another,63 in
which the applicants, who were facing treason charges in Uganda, challenged the
entire conduct of Ugandan authorities, particularly the state’s interference with the
independent processes of the judiciary in Uganda.64 Conscious of the EACJ’s lack of
human rights jurisdiction, the applicants formulated their claim as a request for the
EACJ to declare that the acts and omissions of the Ugandan authorities were an
infringement of Articles 6, 7 (2) and 8 (1) of the EAC Treaty.65 Arguing the case
before the EACJ, counsel for the applicants emphasised that the court was merely
required to ‘interpret’ certain articles of the EAC Treaty and that ‘the acts
complained of violated one of the fundamental principles of the Community as
spelled out in Article 6 (d), that is, rule of law’.66 After considering the respondents’
challenge to its jurisdiction on the ground that Article 27 (2) of the EAC Treaty
effectively divested the court of jurisdiction over human rights matters, the EACJ
agreed that it lacked competence over human rights claims.67 Nevertheless, the
EACJ examined other provisions of the treaty and came to a conclusion that
‘While the Court will not assume jurisdiction to adjudicate on human rights disputes,
it will not abdicate from exercising its jurisdiction of interpretation under Article
27 (1) merely because the reference includes allegation of human rights violation’.68
The Court further reasoned that ‘The complainants invite us to interpret Articles
6 (d), 7 (2) and 8 (1) (c) of the Treaty so as to determine their contention that those
acts . . . contravened the doctrine of the rule of law which is enshrined in those
articles’.69 The Court then proceeded to analyse the concept of the rule of law and
ruled that Uganda had ‘violated the principle of the rule of law and consequently
contravened the Treaty’.70
63
Katabazi, n 18 above. At the time the Katabazi case was heard, the EACJ was still a single court.
It was in the aftermath of the Attorney Gen. of Kenya v Nyong’o case, application No 5 of 2007, at
8 (06 Feb 2007) that the EAC Partner States took the decision to create an appellate division.
64
The applicants were charged with treason and remanded in custody but were granted bail by the
High Court of Uganda but were prevented from perfecting their bail as security forces stormed and
surrounded the court, rearrested and took the applicants back to jail. The applicants were then
charged afresh with treason before a General Court Marshal even though they were all civilians. All
of these were challenged before the Constitutional Court of Uganda which ruled in favour of the
applicants. The claim before the EACJ was brought upon the failure of the state to release the
applicants in spite of the judgment of the Constitutional Court.
65
66
67
68
69
See 17 of the Katabazi judgment. Emphasis mine.
70
238 S. T. Ebobrah
Faced with Article 27 (2) of the EAC, the challenge to its competence and
authority in the issue area of human rights, the risk of open confrontation with states
parties and the potential resulting loss of authority (related to consent of the states)
and legitimacy (related to the expectations of litigants), the EACJ chose to avoid
direct confrontation with states without necessarily abandoning its duty to the
residents of the Community. Strategically, the EACJ employed the tactic of finding
a balance between two seemingly conflicting provisions in the same legislative
instrument. Picking Article 23 (1) of the EAC Treaty, which spells out the role of
the Court to ensure ‘adherence to law in the interpretation and application of and
compliance with this Treaty’, the EACJ moderated the consequences of exercising
jurisdiction over human rights, which had expressly been frozen or suspended in
Article 27 (2) of the same Treaty. The Court further employed a strategy of
avoidance and reclassification by deliberately avoiding the term ‘human rights’ in
its analysis and reclassifying the facts as a violation of the principle of the rule of
law, which term sits side by side with the ‘recognition and protection of human
rights’ in the statement of fundamental principles. In so doing, the EACJ retained the
consent and backing of its states parties while attracting the confidence of its
potential interlocutors. Overall, the EACJ introduced itself into the field of regional
judicial supervision of the domestic human rights practices of its states parties,
without prior approval by the states and without admitting that it was adjudicating
human rights.
Although the indirect approach has grown thinner as the EACJ has become more
emboldened in its human rights work, the case law of the Court shows how the EACJ
applied its judgments to steer litigants along the indirect path and to reinforce that
approach to regional human rights litigation. For instance, in the case of Independent
Medical Unit v The Attorney General of Kenya and 4 Others (IMLU First Instance
case),71 the applicants claimed that the respondents’ failure to ‘take measures to
prevent, investigate or punish those responsible for executions, acts of torture,
cruelty, inhuman and degrading treatment of over 3000 Kenyans . . . between 2006
and 2008 violated several international human rights conventions, the Kenyan
Constitution as well as the Treaty’.72 By their formulation, the applicants expressly
invited the EACJ to directly exercise human rights jurisdiction in spite of Article
27 (2) of the EAC Treaty, resulting in the respondents’ objection to the Court’s
competence to hear the claim. Reciting its Katabazi decision, the First Instance
Division of the EACJ ruled that it was merely interpreting the treaty and ‘shall not
abdicate its duty to interpret the Treaty merely because human rights violations are
mentioned in the Reference’.73 With little pronouncement on the matter, the Court
reinforced its position that it could adjudicate on claims of human rights violation
71
EACJ, Independent Medical Unit v The Attorney General of Kenya and 4 Others, reference No
3 of 2010.
72
See 2 of the IMLU first instance judgment.
73
See 6 of the IMLU first instance judgment.
insofar as they are formulated as a request for treaty interpretation.74 The case of
Plaxeda Rugumba v The Secretary General of the East African Community and the
Attorney General of Rwanda (Plaxeda Rugumba case)75 provides further evidence
of the EACJ’s indirect approach to human rights adjudication. Claiming on behalf of
her brother, a Rwandan military officer who was arrested and held incommunicado
by the Rwandan authorities, the applicant sought declarations that the arrest and
detention without trial of her brother was in breach of the ‘fundamental principles of
the Community’. Among other points of objection, Rwanda argued that the EACJ
had ‘no jurisdiction to deal with human rights issues’.76 Distinguishing between its
‘initial’ and ‘extended’ jurisdictions, the Court reaffirmed that the ‘extended’ juris-
diction had not been operationalised so that it had no jurisdiction over human
rights.77 However, referring to its jurisprudence in Mwakisha and 74 Others v AG
Kenya,78 the EACJ again avoided the term ‘human rights’ and reclassified the claim
by insisting that ‘the applicant in the Reference is asking only one fundamental
question, with more than one facet to it: has the Republic of Rwanda breached the
principles set out in Articles 6 (d) and 7 (2) of the Treaty?’79 The EACJ then went on
to conclude that ‘she therefore seeks the interpretation of that question by this Court
under Article 27 (1) and we see no bar to our doing so’.80
With the First Instance Division’s movement from exclusive reliance on compe-
tence to determine questions of violation of the principle of the rule of law to the
Court’s choice of competence to ‘interpret’ the Treaty, it established beyond doubt
that it was willing to protect rights in spite of the jurisdictional restrictions in Article
27 (2) and notwithstanding the sustained objections of states parties. This position
has been strengthened by the Appellate Division in a number of cases. For instance,
in its judgment in the case of Attorney General of Kenya v Independent Medical
Legal Unit (IMLU Appeal case),81 the Appellate Division took the view that the
‘significance and genius of the Katabazi case (. . .) was the Court’s ability to find and
supply, through interpretation of the Treaty, the source and basis for the Court’s
74
This case was thrown out on other technical grounds, but presented the picture of a regional court
willing to receive human rights claims.
75
EACJ, Plaxeda Rugumba v The Secretary General of the East African Community and The
Attorney General of Rwanda, reference No 8 of 2010.
76
See 10 of the Plaxeda Rugumba judgment.
77
See paras 20–22 in 14–16 of the Plaxeda Rugumba judgment.
78
EACJ, Mwakisha and 74 Others v AG Kenya, reference No 2 of 2010, decision of the first
instance division wherein the applicants, nationals of Kenya and former employees of the defunct
EAC claimed that Kenya’s non-payment of some of their entitlements amounted to a violation of
the fundamental principles of the EAC. Although, the first instance division rules that it had
jurisdiction to hear the case, it struck out the case on grounds that the 2000 EAC Treaty could
not be applied retrospectively.
79
See para 23 at 16 of the Plaxeda Rugumba judgment.
80
As above.
81
EACJ, Attorney General of Kenya v Independent Medical Legal Unit, appeal No 1 of 2011.
240 S. T. Ebobrah
jurisdiction in the circumstances of the case before the Court’.82 It went on to state
that ‘They found and supplied the cause of action flowing from the Treaty (that was
different and distinct from violation of the human rights) on which to peg the Court’s
jurisdiction’.83 The Appellate Division thoroughly endorsed the strategy of avoid-
ance and reclassification of claims as a path to human rights adjudication. The
position in this decision was christened the ‘IMLU test’ by the First Instance
Division in the case of Mohochi v Attorney General of Uganda (Mohochi First
Instance case),84 where the Court applied the test to find that, ‘it was not violations of
human rights under the Constitutions and other laws of Uganda or of the Interna-
tional Community that is the cause of action in the reference, rather the cause of
action is constituted by allegations of infringement of specific treaty provisions’.85
By the time it delivered judgment in the case of Democratic Party v The Secretary
General of the East African Community and 4 Others (Democratic Party Appeal
case),86 the Appellate Division reemphasised that ‘once a matter involves the
interpretation and application of the provisions of the Treaty, such matter (sic)
falls ipso jure within the jurisdiction of the East African Court of Justice [. . .]’.87
Dropping all pretensions regarding its exercise of jurisdiction over human rights, the
Appellate Division went on to assert that ‘The wording “[. . .] in accordance with the
provisions of the African Charter on Human and Peoples’ Rights” creates an
obligation on the EAC Partner States to act in good faith and in accordance with
the provisions of the Charter’. Based on this understanding, the Court concluded that
‘Failure to do so constitutes an infringement of the Treaty. Such violation can be
legally challenged before the East African Court of Justice by virtue of its jurisdic-
tion ratione materiae [. . .] under article 23 read together with article 27 of the
Treaty.’88
Although the Appellate Division’s position in these latter cases indicates the
growing confidence of the EACJ in its exercise of competence over human rights,
the approach remains indirect and through interpretational jurisdiction. Human
rights claims have to be fictionalised and cast as a demand for treaty interpretation
82
See 10 of the IMLU appeal judgment.
83
As above.
84
EACJ, Mohochi v Attorney General of Uganda, unreported, reference No 5 of 2011, judgment of
17 May 2013. Applicant was prevented from entering Uganda and deported to Kenya even though
he was part of group visiting the Chief Judge of Uganda. He challenged this as an infringement of
the EAC Treaty.
85
See para 32 of the IMLU appeal judgment.
86
EACJ, Democratic Party v The Secretary General of the East African Community and 4 Others,
appeal No 1 of 2014. This appeal arose out of an action by the Uganda based Democratic Party
against the Secretary General of the EAC and four Partner States—Burundi, Kenya, Rwanda and
Uganda—over the failure of the four states to make declaration on the platform of the African Union
necessary to grant non-state actors direct access against those states before the African Court of
Human and Peoples’ Rights.
87
See para 55 at 18 of the Democratic Party appeal judgment.
88
Para 64 at 21 of the Democratic Party appeal judgment.
by litigants or by the Court itself in order to fall within the existing jurisdiction of the
EACJ before such claims can be validly adjudicated. Thus, judicial creativity and
industry is evident in the EACJ’s bid to simultaneously satisfy its various commu-
nities. This is different from the more direct approach of the ECOWAS Court.
3.2 Rights Qua Human Rights Before the ECOWAS Court
Having successfully secured the consent of states parties to the ECOWAS Court
Protocol for it to engage in human rights adjudication,89 the ECOWAS Court has
adopted a more direct and traditional approach to the exercise of that jurisdiction.
One evidence and consequence of this approach is the fact that the ECOWAS Court
invests very little time and space to justify its human rights jurisdiction or even the
Community’s competence over human rights issues. This is probably also because
the states parties generally do not challenge the Court’s authority to receive and
determine human rights cases. Accordingly, the ECOWAS Court merely invokes the
relevant provisions of its Protocol to reaffirm its human rights competence and
the right of individual access in cases alleging human rights violation within the
territories of ECOWAS Member States. The Court basically ensures that applicants
expressly claim a violation of human rights. However, as a consequence of this direct
approach, the ECOWAS Court allows no space for the adjudication of any claim that
falls outside the (its) definition of human rights. Adopting a strict and therefore
minimalist perception of its conferred jurisdiction, the Court considers itself con-
fined to the issue area of human rights insofar as the applicant before it is an
individual.
The ECOWAS Court’s direct and minimalist approach to assertion of its human
rights jurisdiction was apparent from the first cases submitted in the aftermath of the
2005 Supplementary Protocol. In the Ugokwe case,90 the Court had to determine
whether the action, which was a fallout of the applicant’s dissatisfaction with the
conduct of national parliamentary elections and the electoral adjudicatory processes
in Nigeria, came within the competence of the ECOWAS Court. Finding that ‘no
provision . . . gives the Court powers to adjudicate on electoral issues or matters
arising thereof (sic)’, the ECOWAS Court insisted that ‘the Treaty, which is the
fundamental law of ECOWAS, particularly the Protocols relating to the ECOWAS
Court of Justice only invests (sic) the Court with specific powers and prerogatives
[. . .]’.91 The Court then moved on to assert that ‘the combined effect of the pro-
visions’ in Articles 9 and 10 of the 2005 Supplementary Protocol ‘indicates that any
89
Although, the ECOWAS Court is established in the 1993 revised ECOWAS Treaty, ECOWAS
Member States sign-up to and ratify a separate treaty (Protocol) that establishes the Court in order
for that Court to have jurisdiction over such states.
90
Supra n 35.
91
Para 19–20 at 10 of the Ugokwe judgment.
242 S. T. Ebobrah
violation of human rights in any Member State may be brought by individuals or

corporate bodies before this court for adjudication’.92 Accordingly, the Court
declined jurisdiction in the Ugokwe case because it considered the case to fall outside
its definition of human rights.
The matter-of-fact manner with which the ECOWAS Court addresses the ques-
tion of its competence has continued in all other cases brought before the Court. In its
preliminary ruling in the Essien case, the Court simply said ‘On the issue of
competence, it is trite that competence of the Court is enshrined in Articles 9 and
10 of the Supplementary Protocol which gave the Court competence to adjudicate on
matters including the contravention of human rights’.93 Hence, in the Court’s view,
‘The principal question which is posed in the instant case relates to whether the facts
of the case did constitute a violation of the human rights of the plaintiff’.94 Similarly,
in the case of Registered Trustees of the Socio-Economic Rights and Accountability
Project (SERAP) v President of the Federal Republic of Nigeria & 8 Others (SERAP
Oil Coy ruling),95 the Court stated that ‘The Supplementary Protocol (AP/SP.1/01/
05) modified the ECOWAS Treaty and conferred on the Court competence to
determine cases of human rights violation that occur in any Member State of the
Community’; therefore, ‘there is no doubt with respect to the jurisdiction of the
Court of Justice to adjudicate any case of alleged violation of the human rights (sic!)
that occurs in the Federal Republic of Nigeria’.96
The ECOWAS Court’s total reliance on the Community legislative instrument
that confers human rights jurisdiction on it allows it to address complaints of human
rights violation without pretensions or fictionalisation of claims, but it also casts the
Court as a dedicated agent of its states parties such that the Court does not claim
jurisdiction beyond what is expressly granted. Thus, in contrast to the EACJ regime,
litigants before the ECOWAS Court have to frame all claims in rights language in
order to be accommodated by the Court.97 In essence, in relation to claims presented
by individuals and non-state actors, unlike the EACJ, which holds out itself as a
regional court of general jurisdiction that will not reject action involving human
rights, the ECOWAS Court appears as a dedicated human rights court whose only
92
Para 28 at 14 of the Ugokwe judgment. The amended Art 9 (4) in the 2005 Supplementary
Protocol provides that ‘The Court has jurisdiction to determine cases of violation of human rights
that occur in any Member State’.
93
Para 9 at 7 of the Essien ruling.
94
Para 10 at 8 of the Essien judgment.
95
ECOWAS Court, Registered Trustees of the Socio-Economic Rights and Accountability Project
(SERAP) v President of the Federal Republic of Nigeria & 8 Others, unreported suit, No ECW/CCJ/
APP/08/09; ruling No ECW/CCJ/APP/07/10.
96
See para 64 of the SERAP Oil Coy ruling.
97
For instance, in ECOWAS Court, Mba v Republic of Ghana, unreported suit, No ECW/CCJ/APP/
01/03, judgment of 06 Nov 2013, the applicant’s claim that Ghanaian authorities interfered with his
business and confiscated his property based on allegations of money laundering was framed as a
violation of his right to property when it could easily have been dealt with as a violation of Ghana’s
economic integration obligations under ECOWAS.
competence is in the field of human rights protection. This arguably presents

opportunity to examine the difference between the EACJ’s acquired human rights
competence and the ECOWAS Court’s conferred human rights competence. Natu-
rally, this difference should give rise to some consequences for the human rights
work of both courts. Applying a few parameters, the next section considers whether
such a difference and its consequences exist in practice.
4 Consequences of Differing Paths
This section looks at the two courts’ approaches to interpretation, their respective use
of and reference to global and regional human rights instruments and the manner in
which they formulate decisions and remedies to show some of the consequences of
the difference in the nature of human rights jurisdiction of the EACJ and the
ECOWAS Court.
4.1 Approaches to Interpretation
Scholars have identified the three main approaches to treaty interpretation in inter-
national law to include the originalist, the textualist and the teleological
approaches.98 Like several other international courts, the EACJ and the ECOWAS
Court have generally applied a combination of approaches as the context demands.
However, the ECOWAS Court appears to have been more conservative in its
interpretative practices, leaning more heavily towards originalist and textualist
approaches than the EACJ,99 whose human rights jurisdiction is acquired. The
respective approaches to interpretation find expression mostly in the reactions of
the courts to jurisdictional challenges.
In the face of its acquired human rights jurisdiction, a teleological approach to
interpretation is almost inevitable in the work of the EACJ. Such an approach is
visible in the jurisprudence of the Court, especially in the First Instance Division,
even when the Court does not expressly proclaim a preference for that approach. In
its declaration of non-abdication in the Katabazi case, the EACJ was quick to admit
the suspension of its (envisaged) human rights jurisdiction.100 However, by adopting
a teleological approach to its analysis, the EACJ dug deep into the EAC Treaty to
search for a possible path to jurisdiction. Thus, the Court showed a clear determi-
nation to uphold the objectives and purpose of the EAC Treaty over (and even
98
See Fitzmaurice (1951).
99
The two divisions of the EACJ have not shown a common approach to treaty interpretation, as the
first instance Division has occasionally appeared to be more flexible.
100
At 15 of the Katabazi judgment.
244 S. T. Ebobrah
against) the contradictory but express text of the Treaty that deferred jurisdiction in
that area. Similarly, in the Plaxeda-Rugumba case, the First Instance Division of the
EACJ took the view that ‘it would be absurd and a complete dereliction of this
Court’s Oath of Office to refuse’ to determine whether Rwanda’s conduct breached
the principles in Articles 6 (d) and 7 (2) of the EAC Treaty.101 Again, this was in
spite of the express provisions that removed immediate human rights jurisdiction.
Going beyond the text and ignoring the intention of the drafters, the EACJ reasoned
that ‘the use of the words “other original, appellate, human rights and other juris-
diction [. . .]” is merely in addition to, and not in derogation to existing jurisdiction to
interpret matters set out in articles 6 (d) and 7 (2)’.102 Hence, the Court said that
‘even without the extended jurisdiction in human rights issues, this Court cannot
stand by idly and declare itself to be impotent of the capacity to render itself
forcefully where the rule of law is threatened in its eyes and in the eyes of the
Treaty’.103 In the Mohochi case, the Court began by asserting a supposedly textual
reading, affirming that its jurisdiction to interpret and apply the Treaty was ‘plain
enough’.104 It then moved to a more teleological approach by stressing that the
envisaged extension of its jurisdiction, as laid out in Article 27 (2) of the Treaty, does
not act to ‘prohibit the Court from interpreting and applying any provision of the
Treaty’.105 Holding otherwise would arguably have defeated the Court’s goal of
giving binding force to the normative formulations in the fundamental principles.
This teleological approach is reinforced by the Appellate Division, which con-
ceded in the Plaxeda-Rugumba appeal, for instance, that ‘the jurisdiction of the
Court to entertain human rights disputes still awaits the operationalisation of a
Protocol under Article 27 (2)’.106 In spite of this acknowledgement, the Appellate
Division went on to consider the provisions of Articles 6 and 7 of the EAC Treaty
and to rule that even in the absence of a chapter on human rights in the EAC Treaty,
the Treaty ‘contains the hint of such rights in a number of provisions’ and as such
was sufficient basis for the exercise of interpretative jurisdiction.107 The EACJ
arguably applies the teleological approach to interpretation of the EAC Treaty in
order to create access for litigants.
However, the EACJ apparently abandons the teleological approach when it
considers that it is convenient to do so, generally leading to conflicting results
such as expansion or restriction of access respectively. For instance, faced with an
objection to its jurisdiction on grounds of non-exhaustion of local remedies in the
Plaxeda-Rugumba Appeal, the Appellate Division acknowledged that the
101
See para 23 of the Plaxeda-Rugumba first instance judgment.
102
As above.
103
Para 41 of the Plaxeda-Rugumba first instance judgment.
104
Para 26 of the Mohochi judgment.
105
As above.
106
Para 23 of the Plaxeda-Rugumba appellate judgment.
107
Para 24 of the Plaxeda-Rugumba appellate judgment. See also 12 of the IMLU appellate
judgment.
requirement to exhaust local remedies before approaching an international jurisdic-

tion may well be a rule of customary international law.108 Nonetheless, the Court
was quick to point out that ‘the EAC Treaty does not have any express provisions
requiring exhaustion of local remedies’.109 Thus, in the EACJ’s view, ‘though the
Court could be flexible and purposeful in the interpretation of the principle of
the local remedy rule (sic!), it must be careful not to distort the express intention
of the EAC Treaty’.110 Considering that non-exhaustion of local remedies is only
raised by State Respondents, a so-called purposive interpretation in this regard
would only shut the human rights jurisdiction creatively acquired by the EACJ.
Hence, by supposedly upholding the intention of the states parties and/or drafters,
the EACJ applies the originalist approach to safeguard its acquired jurisdiction for
the benefit of prospective litigants. In the appellate case of Attorney General of
Uganda v Omar Awadh & 6 Others (Awadh Appeal case),111 the EACJ had to
determine the admissibility of a claim that was objected to on the ground of violating
the time limitation set out in Article 30 (2) of the EAC Treaty. Adopting an unusually
conservative posture, the Appellate Division of the EACJ emphasised that the
concept of ‘continuing violation’ as an exception to time limitation was inapplicable
before the EACJ because it was not a human rights court. Pointing out that the EAC
Treaty has no provision for exception to the 2-month limitation period, the Appellate
Division stated that ‘Therein lies the lies the critical difference between the EAC
Treaty (which governs trade matters as the objective of cooperation between Partner
States) on the one hand; and, on the other hand, Human Rights Conventions and
Treaties which provide “exceptions” (for continuing violations) on the grounds that
securing the fundamental rights of the citizens is of paramount essence’.112 The
Court went on to insist that ‘For this reason, the Judicial Bodies that have Human
Rights jurisdiction must strenuously uphold and protect all such rights through a
liberal and purposive interpretation’.113 Having acquired its human rights compe-
tence through resort to some sort of teleological interpretation of its main jurisdic-
tion, the EACJ declares that it cannot engage in such liberal and purposive
interpretation because it is not a human rights court.
By contrast, the ECOWAS Court has been rather conservative in addressing the
question of jurisdiction, preferring as much as possible to keep strictly within the
boundaries of competence conferred by the states parties. The Court’s decision in the
Afolabi Olajide case represents the best example of this conservative and textual
approach. Even with its emergence as a de facto human rights court after the
adoption of the 2005 Supplementary Protocol, the ECOWAS Court has remained
108
See para 33 of the Plaxeda-Rugumba appellate judgment.
109
Para 35 of the Plaxeda-Rugumba appellate judgment.
110
As above. Emphasis mine.
111
EACJ, Attorney General of Uganda v Omar Awadh & 6 Others, unreported, appeal No
2 of 2012.
112
Para 48 of the Awadh appeal judgment.
113
Ibid.
246 S. T. Ebobrah
essentially conservative in its interpretational practices. In Pinheiro v The Republic

of Ghana,114 the Court considered the refusal of the Ghana Law School to consider
the applicant for admission as a potential violation of Ghana’s community obliga-
tions. However, in considering the standing of the applicant in the matter, the Court
interpreted the 2005 Supplementary Protocol and held that the right to bring action to
enforce community obligations was the exclusive preserve of Member States and the
ECOWAS Commission.115 Hence, the Court ruled that ‘a Community Citizen who
has been a victim of an alleged violation of a right enshrined in Protocol’ could either
resort to national courts or seek the intervention of the state of which he is a citizen,
apart from the potential involvement of national court. The position taken by the
Court was akin to the pre-2005 regime, which only recognised access for ECOWAS
Member States. The Court arguably took a textualist approach to interpretation of the
access rules just as it did in the pre-2005 era.
The ECOWAS Court’s preference for staying within the confines of its conferred
jurisdiction also results in a textualist approach in the Court’s interpretation of
limitation clauses. In Falana & Another v The Rep of Benin & Two Others,116 the
ECOWAS Court had to consider Article 9 (3) of the Protocol, which was effectively
a statute of limitation. The Court reasoned that ‘where the limitation of time is
imposed in the statute like it is in 9 (3) of the said Protocol. . . .unless the statute
provides provision for the extension of time, the court cannot extend time’. The
Court elected to be bound by the Treaty and protocols without giving itself any room
for manoeuvre.
Two areas in which the ECOWAS Court has been more progressive and therefore
somewhat teleological are in the areas of exhaustion of remedies and in the access
challenges for non-governmental organisations acting on behalf of victims.
Although the Court pretended to be following a conservative and textual or original
meaning by refusing to read in more than is expressly stated in the Protocol, by doing
so, the Court secures results that are favourable to the litigant and in tune with the
objective to grant individual access in cases alleging human rights violations. For
instance, in the Koraou case, in addressing the question of exhaustion, the Court
stated that international human law allows for a flexible interpretation of the exhaus-
tion role. Suggesting that the ECOWAS lawmaker heeded that call in omitting a
requirement to exhaust local remedies so that the ‘Court cannot impose on individ-
uals more onerous conditions and formalities than those provided in those commu-
nity text without violating the rights of such individuals’,117 the Court overruled the
respondent state’s objection. Asserting that it was the intention of the ‘ECOWAS
Lawmaker’, the ECOWAS Court declared itself under a duty to refrain from reading
in additional conditions ‘which have not been provided by the text’. In other words,
114
ECOWAS Court, Pinheiro v The Republic of Ghana, unreported suit, No ECW/CCJ/APP/07/10.
115
Para 49 of the Pinheiro judgment.
116
ECOWAS Court, Falana & Another v the Rep of Benin & Two Others, unreported suit, No
ECW/CCJ/APP/10/07; judgment No ECW/CCJ/JUD/01/12, judgment of 24 Jan 2012.
117
Para 45 of the Koraou decision.
the Court deployed both the originalist and the textualist positions to avoid encum-
bering litigants with the requirement to exhaust local remedies.
The more explicitly teleological approach is evident when the ECOWAS Court
tackles questions of standing and access for non-governmental organisations
(NGOs). In Incorporated Trustees of Fiscal and Civil Rights Enlightenment Foun-
dation v Government of the Federal Republic of Nigeria (Fiscal and Civil Rights
Foundation case),118 the Court was confronted with an objection to the capacity of
the NGO to bring the action since it was not a victim of the alleged violation. In its
ruling on the point, the Court reaffirmed that its jurisprudence was ‘to the effect that
it is only the direct victims of human rights violations that have the standing to move
this court’. Yet the Court argued that ‘exceptions to this rule exist. These include, but
is not limited to cases of collective interest (usually referred to as public interest
litigation).’119 Since neither the ECOWAS Treaty nor any of its protocols provide
for this exception, the Court invoked its own earlier jurisprudence in the case of
SERAP v President of the Federal Republic of Nigeria and Another (SERAP
Education case),120 where it had taken the view that NGO access was necessary,
‘taking into account the need to reinforce access to justice for the protection of
human rights’. In this regard, the ECOWAS Court saw itself more as a specialised
human rights court and chose the teleological approach to interpretation. In essence,
there is not much significant difference in the interpretational practices of the two
courts as both courts deploy different tools as the occasion demands. However, there
are at least two other areas where the courts part ways in practice.
4.2 The Use of Global and Regional Human Rights Treaties

in the REC Courts
As already shown, neither REC currently boasts a region-specific or dedicated

human rights treaty or catalogue. Consequently, notwithstanding the intermittent
reference to human rights or rights-related provisions in their respective treaties,
serious human rights adjudication cannot be sustained exclusively based on either
treaty. This presupposes that litigants before both courts would have needed to
borrow norms from other dedicated regional and global human rights instruments.
The response of each court to this situation has largely been shaped by the nature of
their respective human rights practice.
118
ECOWAS Court, Incorporated Trustees of Fiscal and Civil Rights Enlightenment Foundation v
Government of the Federal Republic of Nigeria, unreported suit, No ECW/CCJ/APP/02/14;
judgment No ECW/CCJ/APP/JUD/18/16, judgment of 07 June 2016.
119
See 16 of the Fiscal and Civil Rights Foundation judgment.
120
ECOWAS Court, SERAP v President of the Federal Republic of Nigeria and Another,
unreported suit, No ECW/CCJ/APP/12/07; judgment ECW/CCJ/JUD/07/10, judgment of
30 Nov 2010.
248 S. T. Ebobrah
Operating under the shadow of Article 27 (2) of the EAC Treaty, the EACJ
re-emphasises that the EAC Treaty is not a human rights treaty, the court is not a
human rights court and it does not yet have a human rights jurisdiction.121 As a
consequence, litigants and the Court itself generally avoid reference to or use of
regional and global human rights instruments. However, the fact that the African
Charter is mentioned in the statement of fundamental principles in the Treaty creates
difficulty for the total avoidance of the Charter. As a result, litigants have referred to
the Charter in the formulation of claims, while the EACJ consciously endeavours to
expressly demonstrate that its exercise of jurisdiction is based more on the EAC
Treaty than on the African Charter or any other human rights instrument. For
instance, in the Mohochi case before the First Instance Division, the applicant
invoked the Ugandan Constitution, national immigration laws and the African
Charter.122 To demonstrate that the African Charter was not the normative basis
for its judgment, the First Instance Division highlighted that ‘where he [applicant]
alleges violations of various provisions of the African Charter, he qualifies it with “as
recognised by Article 6 (d) and 7 (2) of the Treaty”. In effect, we understand the
cause of action in his case to be the alleged infringement of a Partner State’s treaty
obligations which we find to be a matter outside the province of human rights.’123 In
the Democratic Party (First Instance) case, the applicant expressly invoked the
African Charter and ‘all other international human rights conventions’,124 leading
to an objection raised by the respondents regarding the Court’s competence to
interpret and apply other (human rights) treaties, including the African Charter. In
trying to deny and disguise its use of the African Charter or any other international
human rights instrument, the First Instance Division stressed:
We are of course aware that this Court in the case of Rugumba v Attorney General of
Rwanda, reference no 8 of 2010 invoked the African Charter on Human and People’s Rights
to find in favour of the Applicant but it must be understood that the said finding was made in
the context of specific violations of Article 6 (d) of the Treaty and not the Charter per se.
Apart from denying use of the African Charter, the EACJ has carefully avoided
use or even mention of any other international human rights instrument or the
jurisprudence of other regional human rights courts.125 A rare assertion of some
sort of claim to competence over the African Charter can, however, be detected in the
Appellate Division’s judgment in the Democratic Party case. Responding to the
question whether the First Instance Division was right to decline competence to
interpret the African Charter, the Appellate Division took the following view:
Articles 6 (d) and 7 (2) of the Treaty empower the East African Court of Justice to apply the
provisions of the Charter, the Vienna Convention, as well as any other relevant international
instrument to ensure the Partner States’ observance of the provisions of the Treaty, as well as
121
Para 52 of the Awadh appeal judgment for instance.
122
Para 11 of the Mohochi first instance judgment.
123
124
Para 3 of the Democratic Party first instance judgment.
125
For instance, see para 55 of the Awadh appeal judgment.
those of other international instruments to which the Treaty makes reference. The role of the
Court in the instant Reference, was to ascertain the Partner States’ adherence to, observance
of, and/or compliance with the Treaty provisions – including the provisions of any other
international instruments which are incorporated in the Treaty, whether explicitly [as in
Article 6(d)], or implicitly [as in Article 7 (2)].
Arguing that the authority to look into the instruments derives from the jurisdic-
tion to interpret and apply the EAC Treaty, the Appellate Division staked its claim
further by insisting that ‘Briefly, then, nothing can preclude the East African Court of
Justice from referring to the relevant provisions of the Charter, its Protocol and the
Vienna Convention on the Law of Treaties in order to interpret the Treaty’.126 This
assertion of a right to ‘refer’ to other instruments later in the same judgment
graduated into a conviction on the part of the Court ‘that the East African Court of
Justice has the jurisdiction to interpret the Charter in the context of the Treaty’.127 It
remains open to debate whether the so-called contextual interpretation competence
(i.e., jurisdiction to interpret the Charter in the context of the EAC Treaty) is
tantamount to jurisdiction to apply and enforce the Charter or any other international
human rights instrument in the EAC framework. While the EACJ appears to be
claiming authority incrementally, the acquired and therefore indirect nature of its
human rights jurisdiction continues to restrict its use of regional and global human
rights instruments.
Despite its conferred human rights jurisdiction, the ECOWAS Court also lacks a
dedicated human rights treaty or catalogue upon which to base its human rights
work. In the absence of a Community rights catalogue, reference to the African
Charter and other international human rights instruments in the revised ECOWAS
Treaty and other protocols of the Community also constitutes the most elaborate
normative framework for human rights protection within the ECOWAS legal archi-
tecture. However, unlike the EACJ, the ECOWAS Court has applied the gap
positively to annex and domesticate different relevant international instruments—
relevance being interpreted as ratification by the state party concerned. The Court’s
annexation and domestication of human rights instruments became apparent soon
after the adoption of the 2005 Supplementary Protocol. In the Ugokwe case,128 the
ECOWAS Court highlighted the absence of a catalogue of rights but reasoned that
the inclusion of the African Charter in Article 4 (g) of the revised ECOWAS Treaty
‘behoves on the Court by Article 19 of the Protocol of the Court to bring in the
application of those rights catalogued in the African Charter’. However, the Court
chose to severe the procedural aspects of the Charter, insisting that the reference in
Article 4 (g) related only to the substantive catalogue of rights, which the ECOWAS
Court could apply using its own procedure as set out in its own protocols and
126
Para 71 of the Democratic Appeal judgment.
127
Para 73 of the Democratic Appeal judgment.
128
Supra n 35, para 29.
250 S. T. Ebobrah
rules.129 The adoption and annexation of the African Charter as the regime’s
preferred catalogue was reinforced in the Koraou case, where the Court reaffirmed
that the effect of Article 4 (g) was that the ‘ECOWAS Lawmaker intended to
subsume that instrument in the law applicable before the ECOWAS Court’.130
Thus, mention in the fundamental principles in the ECOWAS Treaty constitutes
the main legal foundation for application rather than mere interpretation of or
reference to the Charter in this regime. In this sense, the conferred jurisdiction
empowers more than the acquired jurisdiction as far as use of the Charter is
concerned. Consequently, litigants need no resort to fictionalisation or concurrent
attachment of the Charter to the ECOWAS Treaty in order to claim rights in the
African Charter.
Perhaps perceiving itself as a human rights court, the ECOWAS Court has not
restricted itself to the use of the African Charter but has allowed litigants to invoke
other binding and non-binding international instruments just as the Court itself
frequently refers to the case law of other regional human rights courts.131 Thus, in
the case of Alade v Federal Republic of Nigeria (Alade case),132 the ECOWAS
Court expressed the view that
the rights in the . . . African Charter are not the only rights . . . that fall under Article 9(4) of
the Protocol of the Court as amended. Those UN Conventions and Charter on Human Rights
acceded to by Member States of ECOWAS are recognisable rights that the violation of
which (sic) would fall under the ambit of Article 9(4) of the Protocol of the Court [. . .].133
In the latter case of Williams and Another v Republic of Liberia and 4 Others
(Williams case),134 the ECOWAS Court reaffirmed that it has jurisdiction to enter-
tain cases alleging human rights violation ‘provided the member state in question is a
party to the international human rights instruments in which the violation can be
derived or accommodated’. Against such an understanding of its competence, the
ECOWAS Court has applied instruments such as the Universal Declaration of
Human Rights (UDHR)135; the International Covenant on Civil and Political Rights
129
See ECOWAS Court, Essien v The Gambia, unreported suit, No ECW/CCJ/APP/05/05 ruling of
14 Mar 2007, paras 23 and 27; see also the Koraou case, para 42.
130
Para 41 of the Koraou case.
131
For instance, on the Fiscal and Civic Rights foundation case, the ECOWAS Court referred to the
jurisprudence of the United Nations Human Rights Committee and to no less than 5 judgments of
the European Court of Human Rights.
132
ECOWAS Court, Alade v Federal Republic of Nigeria, unreported suit, no ECW/CCJ/APP/05/
11; judgment No ECW/CCJ/JUD/10/12, judgment of 11 June 2012 in which the applicant alleged
that his detention in prison custody without trial was a violation of his rights.
133
See para 25 of the Alade judgment.
134
ECOWAS Court, Williams & Another v Republic of Liberia & 4 Others, unreported suit, No
ECW/CCJ/APP/06/14; judgment No ECW/CCJ/JUD/25/15, judgment of 30 Nov 2015.
135
The UDHR is invoked or referred to in cases such as ECOWAS Court, Keita v Mali, unreported
suit, No ECW/CCJ/APP/05/06; the Essien case; the Koraou case; see also ECOWAS Court, Djelou
& 2 Others v The Republic of Togo (Djelou case), unreported suit, No ECJ/CCJ/APP/18/13;
judgment No ECW/CCJ/JUD/17/15/Rev, judgment of 06 Oct 2015 and the Williams case.
(ICCPR)136; the International Covenant on Economic, Social and Cultural Rights

(ICESCR)137; the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)138; 1926 Convention Relating to Slavery and the 1956
Supplementary Convention Relating to the Abolition of Slavery, Slave Trade and
Institutions and Practices Similar to Slavery (Slavery Conventions)139; and the
Convention Against Torture (CAT).140 As for non-binding instruments, in the
Falana case, the Court made reference to the UN Basic Principles and Guidelines
on the Right to a Remedy and Reparations for victims of gross violations of
international law and serious violations of international humanitarian law. In the
Fiscal and Civic Rights Foundation case, the ECOWAS Court referred to the Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials and the
Code of Conduct for Law Enforcement Officials.
Although the Court clearly relies more on the African Charter and therefore
focuses its analysis more on the Charter, other international instruments are
acknowledged and often actively applied. It has to be noted, however, that active
analysis of instruments other than the African Charter has dwindled over the years as
the Charter grows in significance within the Court’s framework and the Court
increasingly self-refers.141 Whatever the case, the ECOWAS Court, with its con-
ferred human rights jurisdiction, is clearly bolder in its application of a wider range
of international human rights instruments than the EACJ, which claims an acquired
human rights jurisdiction.
4.3 Formulation of Remedies
Another area in which a consequential distinction exists between the human rights
practices of the EACJ and the ECOWAS Court is in the nature and formulation of
reliefs and remedies. In its use of the avoidance and reclassification strategy to limit
the restricting effect of Article 27 (2) of the EAC Treaty, the EACJ has had to rely
heavily on its Article 23 mandate to ‘interpret and apply’ the Treaty. This has not
only affected the manner in which litigants formulate their claims before the Court
but has also meant that the EACJ’s findings and formulation of relief stops short of
the types of reliefs and remedies that international human rights courts generally
offer. The judgments of the EACJ are more declaratory than mandatory and
136
See for instance Djelou case above and the Fiscal and Civic Rights Foundation case.
137
See the Essien case for instance.
138
Invoked in the Koraou case for instance.
139
As above.
140
Djelou case and Fiscal and Civic Rights Foundation case.
141
A perusal of the jurisprudence seems to suggest that express reference to other international
instruments is more when the bench handling the given case tilts more to the civil-law
(francophone) side.
252 S. T. Ebobrah
executory insofar as human rights claims are concerned. Thus, for instance, in the
Plaxeda-Rugumba case, the First Instance Division argued that ‘when the applicant
seeks to know whether the subject’s arrest and detention was a breach of the Treaty,
she is not asking the court to interpret the enforcement of any human rights (sic)’.142
The Court had to amplify the distinction between interpretation (which it considered
itself to be doing) and enforcement (which it considers human rights courts to do).
Hence, the EACJ went further to underline that ‘that is why she withdrew her prayer
for “an order that the said Lt Col Seveline Rugigana Ngabo be released from illegal
detention” because this court would obviously have no such decision’.143 Conse-
quently, the EACJ made the declaration that Rwanda had violated treaty
without more.
In the earlier Katabazi case, the applicant consciously avoided seeking anything
more than declarations that Uganda’s conduct was in violation of the EAC Treaty.
The Court similarly responded with only a declaration without making any manda-
tory orders or awarding any compensation or damages.144 In Mohochi, the applicants
sought declarations that Uganda had violated the EAC Treaty and invited the Court
to ‘make such further or other orders as be fit and just in the circumstances of the
Reference’.145 The EACJ made the necessary declarations of violation of treaty and
inconsistency of Uganda’s Citizenship and Immigration Control Act with the EAC
Treaty but made no other mandatory or executory orders.146
By refraining from making mandatory orders, the EACJ keeps within its inter-
pretative mandate, but it is open to debate whether the Court ‘applies’ the Treaty.
More importantly, the EACJ’s approach enables it to create reputational costs for the
states parties without necessarily creating financial or other direct executory costs for
the states. Thus, questions of compliance essentially do not arise, whereas imple-
mentation is possible insofar as the affected state is concerned about its international
reputation and its standing within the EAC Community framework.
Armed with an expressly conferred human rights jurisdiction, the ECOWAS
Court receives applications that demand reliefs and remedies comparable to other
international human rights courts. Reliefs sought range from requests for release
from detention to demands for payment of compensation. In the Koraou case, the
applicant asked the ECOWAS Court to demand that Niger introduces new legisla-
tion to protect women from discriminatory practices, order Niger to revise laws
relating to its national courts and tribunals to make them better protectors of victims
of slavery and order Niger to abolish harmful customary practices and pay fair
reparations to the applicant.147 Based on its findings, the ECOWAS Court denied
the other reliefs sought but ordered Niger to pay a total sum of CFA 10,000,000.00
142
Para 24 of the Plaxeda-Rugumba first instance judgment. Emphasis mine.
143
As above.
144
145
146
147
Para 28 of the Koraou judgment.
as compensation to the applicant. In the Tasheku case, which was ruled inadmissible,
the applicant requested that the ECOWAS Court order Nigerian authorities to effect
his release from detention. In the subsequent Alade case, the applicant sought and the
Court ordered his release from the Kirikiri prison in Nigeria.148 In the Hydara case,
the Court awarded compensation in the sum of $50,000.00 in favour of the appli-
cants against the Gambia. Similarly, in the Fiscal and Civic Rights Foundation case,
the ECOWAS Court ordered Nigeria to pay $200,000.00 to each of the families of
the deceased and $150,000.00 to each of the injured applicants. In effect, these
examples show how the ECOWAS Court binds its states parties in judgments that
create reputational, financial and other costs. Thus, the judgments of the ECOWAS
Court invite compliance and implementation in the same manner as other interna-
tional human rights courts.
5 Conclusion
The discourse in this chapter has shown that whereas the EACJ and the ECOWAS
Court were established as international courts of general jurisdiction within the
framework of regional economic communities in Africa, both courts have success-
fully transited into the field of human rights protection. For the EACJ, this has taken
place in spite of the express suspension of that possibility by the Partner States of the
EAC. Through judicial creativity and audacity that employs a variety of strategies,
the EACJ has increasingly acquired human rights competence that litigants now use
against unenthusiastic but respectful states parties. In the West of Africa, the
ECOWAS Court, which has been more deferential to the will of its states parties,
has succeeded in securing the consent of those states to its human rights jurisdiction.
Armed with an expressly conferred competence in human rights, the ECOWAS
Court is also growing in stature as a veritable human rights court that supervises the
conduct of its states parties within their respective territories.
It has been shown that both the acquired and the conferred human rights mandates
are based on statements of fundamental principles that assure the recognition,
promotion and protection of human rights within treaty framework. This chapter
has, however, argued that the differing nature of the mandates has had consequences
for the path that both courts have taken in their bid to protect human rights.
Notwithstanding these differences, it is evident that both courts have contributed
to the protection of rights in Africa.
148
Para 67 of the Alade judgment.
254 S. T. Ebobrah
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Part III
Obligations Imposed by Human Rights
Treaties with Regard to the Implementation
of Human Rights by Domestic Courts
State Obligations Under Universal Human
Rights Treaties
Obligations Imposed by the International Covenants
and Other Universal Human Rights Treaties with Regard
to the Implementation of Human Rights by Domestic
Courts
Johannes van Aggelen
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
2 Initial Difference in Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
3 General Approaches to Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
4 Roles of UN Treaty Bodies in Monitoring Compliance by States Parties . . . . . . . . . . . . . . . . . 264
5 The Obligations of States Parties and the Domestication of the International Norms . . . . . 266
6 Obligations Imposed on Domestic Courts Concerning the Implementation of Human
Rights Arising from the ICCPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
1 Introduction
The year 2016 marks the 50th anniversary of the two covenants, considered the
bedrock of the international human rights treaty system as subsequent treaties
generally refine rights contained in the covenants.1 The history of the drafting of
the two covenants was greatly influenced by the Cold War and the different
conceptions of the nature and essence of human rights. The initial idea of bringing
1
International Covenant on Civil and Political Rights; International Covenant on Economic, Social
and Cultural Rights, adopted by the General Assembly on 16 Dec 1966 by Resolution 2200 A
(XXI); see in this connection Human Rights Council Resolution HRC/RES/29/1 adopted on 2 July
2015, marking the 50th anniversary of the Covenants, henceforth referred to as the Council.
J. van Aggelen (*)

International Law, Brasilia, Brazil

https://doi.org/10.1007/978-3-319-94848-5_9
258 J. van Aggelen
the two sets of rights together in one document appeared untenable, and the UN
General Assembly in early 1952 decided to embark on two covenants,2 the Interna-
tional Covenant on Civil and Political Rights (ICCPR) and the International Cove-
nant on Economic, Social and Cultural Rights (ICESCR).3 Civil and political rights
could be considered as law to be implemented immediately, while economic, social,
and cultural rights are understood in a more flexible way, as expressed in Article
2 (1) ICESCR: “Each State party to the present Covenant undertakes to take steps
[. . .] with a view to achieving progressively the full realization of the rights
recognized.”
Concern has been expressed that despite the clear intention not to imply any
notion of relative value by separating the rights into two covenants, the separation
has nevertheless reinforced claims as to the hierarchical ascendance of civil and
political rights. During the first years of the work of the CESCR, its first chairman,
Philip Alston, lamented that economic, social, and cultural rights in practice still
were largely ignored.4 This concern was also expressed in a statement by the
Committee itself to the second world conference on human rights.5
The notion that civil and political rights are considered first-generation rights and
economic, social, and cultural rights, second-generation rights was in the early 1980s
complemented by so-called third-generation or solidarity rights, a concept
championed by Karel Vasak. He argued that some gaps and vagueness in the
implementation of the two sets of rights needed another category of rights. However,
the idea of categorizing human rights was already discarded in 1977, when the
General Assembly adopted a resolution stating that all human rights are universal,
interdependent and indivisible.6 In his 1982 article, Philip Alston dismissed cate-
gorically this unnecessary categorization of human rights.7
However, it took some progressive realization before the right of individual
petition was added to the ICESCR in an optional protocol. While the first optional
protocol to the ICCPR, giving the Human Rights Committee (HRCtee) the right to
consider individual petitions, was adopted on the same day, it took 42 more years for
the General Assembly to adopt an optional protocol to the ICESCR.8
The optional protocol was opened for signature and ratification on September
24, 2009, and entered into force on May 5, 2013. At its 51st session, the CESCR9
2
General Assembly Resolution 543(VI), 04 Feb 1952, GAOR, 6th Session, Supplement, paras
20, 36.
3
Henceforth ICCPR and ICESCR, respectively.
4
See his contribution to the second world conference on human rights entitled: “The Importance of
the Inter-play between Economic, Social and Cultural Rights and Civil and Political Rights,” in UN
Doc. A/CONF.157/PC/66/Add.1, 25–26; see for a more optimistic view Abram (1991), p. 69.
5
UN Doc. E/1993/22, 83 para 5.
6
General Assembly Resolution 32/130, adopted 16 Dec 1977; see also para 7 of the preamble to
Council Resolution 29/1, referred to in n 1 above.
7
Alston (1982), pp. 307–322.
8
General Assembly Resolution 63/117, 10 Dec 2008; see Pinto de Albuquerque (2010).
9
The Committee under the ICESCR.
State Obligations Under Universal Human Rights Treaties 259
established a working group to consider communications. Five communications

have been registered up to the present time, and one has been declared admissible
and decided upon.10 The main difference is that optional protocols to other human
rights treaties are centered on individual petitions, while Article 2 of this protocol
provides that “communications may be submitted by or on behalf of individuals or
groups of individuals.” In addition, if a communication is “on behalf” of a victim, it
must be with his or her consent, unless the authors can justify acting on their own
behalf without such consent.
2 Initial Difference in Implementation
Although the ICESCR, after ratification by 35 states, entered into force on January
3, 1976, two and a half months before the ICCPR on March 23, 1976, its process of
implementation continued to suffer from the difference in perceptions between the
East and West. The HRCtee,11 established by Article 28 ICCPR, composed of
individual experts, could start its work almost immediately in accordance with
Article 40 (4) and its subsequent adopted rules of procedure.12 Its first session
took place on March 21, 1977, and the 123th session took place in March 2018.
Implementation of the ICESCR started in 1978, when its parent organ, ECOSOC,
established a Sessional Working Group of Governmental Experts “for the purpose of
assisting the Council in the consideration of reports submitted by states parties to the
Covenant.”13 Unfortunately, this working group did not do justice to the status of the
Covenant. Scrutiny of state reports did not meet legal standards, and the working
group lacked efficiency and independence. In May 1985, the ECOSOC decided to
convert the working group into a human rights treaty body, composed of indepen-
dent experts.14
In view of the fact that this committee did not find its origin in the treaty, it is
considered as a quasi-judicial treaty body, although in practice it functions as a
normal treaty body.
The CESCR held its inaugural session on March 9, 1987, and has up to now held
63 sessions. State reports are considered under Articles 16 and 17 CESCR and its
subsequent rules of procedure.15
10
Communication 1/2013, Doc. E/2015/22; E/C.12/2014/3, para 66.
11
Henceforth the “Committee”; see for a general overview McGoldrick (1994), and Nowak (2005).
12
Its first session took place on 21 Mar 1977. The latest revision of its rules of procedure was
adopted at its 103rd session in Oct 2011, Doc. CCPR/C/3 Rev. 10.
13
ECOSOC Resolution, 1978/10, 1.
14
ECOSOC Resolution 1985/17, 28 May 1985, ECOSOC Reports, 1985, Supplement 1, 15–16; the
human rights treaty body has up to now held 60 sessions.
15
Rules of procedure adopted at its third session in 1989, Doc. E/C 12/1990/4/Rev. 1; the rules of
procedure for the Optional Protocol were adopted at its 49th session in Oct 2012, Doc. E/C 12/49/3.
The Optional Protocol entered into force on 5 May 2013.
260 J. van Aggelen
3 General Approaches to Implementation
There is no doubt that the UN human rights treaties are subject to the general rules of
interpretation found in Articles 27–33 of the Vienna Convention on the Law of
Treaties (VCLT).16 The individual complaint procedures under the covenants and
the complaint procedures under other human rights treaties17 also fall under the
general rules of interpretation as was already recognized in an early stage by
the HRCtee in the case Alberta Union versus Canada.18 One can also find support
in the Velasquez-Rodriguez case handed down by the Inter-American Court of
Human Rights in 1988, where the Court stated: “under international law the state
is responsible for the acts of its agents undertaken in their individual capacity or for
their omissions.”19
A related question is how one perceives the obligations in the two covenants. In
the past, the ICCPR was referred to as containing in general negative obligations20 as
states parties are obliged not to interfere in the enjoyment of the human rights of
those under their jurisdiction, while the ICESCR was referred to as containing
positive obligations for states parties. However, in practice, one might call it a
“trias of state obligations,” namely the obligation to respect, the obligation to protect,
and the obligation to fulfill the human rights through positive legislative, adminis-
trative, judicial, and practical measures. State reporting practices under the two
covenants, as well as under the other eight treaty bodies currently operating,
demonstrate that rights can only be guaranteed through a combination of negative
as well as positive state obligations.21
General Comment (GC) 1 adopted by the HRCtee on reporting obligations briefly
noted in 1981 that only a small number of states had submitted their reports on time.
This general comment foreshadowed a process that in time became cumbersome to
resolve when it stated that “states should pay immediate attention to their reporting
obligations since the proper preparation of a report which covers so many civil and
16
Henceforth VCLT; see also, e.g., the General Comment (henceforth GC) adopted by the Com-
mittee on the Rights of the Child at its 34th session in Oct 2003, Doc. CRC/GC/2003/5, paras
14–15, with respect to reservations to the Convention; see also Art 51 (2) CRC.
17
The Optional Protocol procedure under ICESCR is still in its infant stage as consideration of
communications only started at its 53rd session in 2014. Until now, five communications have been
registered, and one has been declared admissible, communication 1/2013, see n 10 above.
18
Communication 118/1982, para 6 (3). The petition was nevertheless considered inadmissible
ratione materiae, because the right to strike was not protected by ICCPR, but rather by ICESCR.
Five members disagreed and submitted dissenting opinions, arguing that the right to strike could fall
under Art 22 (2) of the ICCPR.
19
IACtHR, Velásquez Rodríguez, Series C No 4, para 188.
20
In this sense also Tomuschat (2012), p. 643, para 15.
21
On the reporting obligations of states see e.g. Note HRI/MC/2016/2 by the OHCHR Secretariat,
“Timely, late and non-reporting by States parties to the human rights treaty bodies,” at the Twenty-
eighth meeting of Chairs of the human rights treaty bodies, 22 Mar 2016.
political rights necessarily does require time.”22 In view of the fact that some initial
reports were short and general in nature, the Committee found a need to elaborate
general guidelines regarding the form and content of reports. It has considered “that
the reporting obligation embraces not only the relevant laws and other norms relating
to the obligations under the Covenant but also the practices and decisions of courts
and other organs of the state party as well as further relevant facts which are likely to
show the degree of the actual implementation and enjoyment of the rights recognized
in the Covenant, the progress achieved and factors and difficulties in implementing
the obligations under the Covenant.”23
With respect to implementation at the national level, the HRCtee, in its GC
3, drew the attention of states parties to the fact that the obligations of the Covenant
were not confined to the respect of human rights but that states parties also had to
ensure the enjoyment of the rights, which is an obligation to fulfill.24 GC 3 was later
replaced by GC 31, which elaborated on these obligations.25
CESCR adopted its GC 1 on reporting obligations by states parties in 1989.26 It
contains seven objectives for states parties to attain in the gradual realization of the
rights. It is to ensure that the comprehensive review is undertaken with respect to
national legislation, administrative rules and procedures, and practices in an effort to
ensure the fullest possible conformity with the Covenant. This general comment was
an effort to demonstrate that the ideas of general comments should not be seen as
threatening to states. Consequently, this first GC on the purpose of reporting was
relatively abstract and academic. The Committee subsequently adopted its GC 3 on
the nature of states parties’ obligations under Article 2 (1) CESCR.27 It describes the
nature of the general legal obligations to be undertaken by states parties as obliga-
tions of conduct and obligations of result. It requested states parties to report not only
on all the measures taken but also on the basis on which they are considered to be the
most “appropriate” under the circumstances. Reference in this connection is made, in
addition to legislation, to judicial remedies with respect to rights that could be
considered justiciable.28
22
GC 1, adopted 28 July 1981, 13th session.
23
GC 2 (reporting guidelines), para 3. See the words in Art 2 (1) ICCPR “to respect and to ensure
[. . .] within its territory and subject to its jurisdiction”; as to that wording see also, e.g. the
Convention on the Rights of Migrant Workers and their Families (CMW) states in Art 7 “to respect
and to ensure [. . .] within their territory or subject to their jurisdiction” (emphases added); the
Convention on the Rights of the Child (CRC) provides “states parties shall respect and ensure the
rights set forth in the present convention [. . .] within their jurisdiction without discrimination of any
kind”; see also CERD General Recommendation No 23 concerning indigenous peoples of 18 Aug
1997, para 4, where state parties are requested to ensure the rights pertinent to that community.
24
GC 3 adopted at the same meeting.
25
See infra, n 31 and accompanying text.
26
GC 1 adopted at its third meeting in 1989.
27
Adopted at its next session in Feb 1990.
28
Ibid, para 5.
262 J. van Aggelen
These obligations of states have been clearly articulated in a general recommen-

dation by the Committee on the Elimination of All Forms of Discrimination Against
Women (CEDAW). It stated that the obligation to respect requires that states parties
refrain from making laws, policies, regulations, programs, administrative proce-
dures, and institutional structures that directly or indirectly result in the denial of
the equal enjoyment of women of their civil, political, economic, social, and cultural
rights.
The obligation to protect requires that states parties protect women from discrim-
ination by private actors and take steps directly aimed at eliminating customary and
all other practices that prejudice and perpetuate the notion of inferiority or superi-
ority of either of the sexes, and of stereotyped roles for men and women.
The obligation to fulfill requires that states parties take a wider variety of steps to
ensure that women and men enjoy equal rights de jure and de facto, including, where
appropriate, the adoption of temporary measures in line with Article 4 (1) CEDAW.
This entails obligations of means or conduct and obligations of result.29 CEDAW
does not have a jurisdiction clause limiting its scope of application. Yet Article 2 of
the Optional Protocol mentions that communications may be submitted by individ-
uals or “on behalf of individuals, or groups of individuals under the jurisdiction of
the state party.” Consequently, with regard to this particular treaty, its scope of
obligation is not limited by a jurisdiction clause, but the right to individual petition
on the treaty is. The General Recommendation also stated that these obligations do
not cease in periods of armed conflict or in states of emergency resulting from
political events or natural disasters.30
A very clear expression of the obligation of states to respect and ensure can
already be found in the HRCtee’s GC 31 on the nature of general legal obligation
imposed on states parties to the Covenant.31 Among others, the Committee pointed
out that while the ICCPR “cannot be viewed as a substitute for domestic criminal or
civil law,” states have certain clear obligations that must be met in terms of
protection against third parties, investigation, and prosecution. It stressed: “the
positive obligations on States Parties to ensure Covenant rights will only be fully
discharged if individuals are protected by the State, not just against violations of
29
General Recommendation 28 on the obligations of State parties, Doc. CEDAW/C/GC.28,
adopted at its 47th session in Oct 2010, para 9; see also the GC of the Committee on the Rights
of Persons with Disabilities, adopted at its 11th session in Mar–Apr 2014, Doc. CRPD/C/GC.1, para
24, where it reads: “States parties have the obligation to respect, protect and fulfill the rights of
persons with disability.” In addition, in GC 16 adopted by CRC in 2013 on states obligations
regarding the impact of the business sector on children’s rights, the committee reported that under
international human rights law there exist three obligations on states parties: to respect, to protect
and to fulfill human rights. In addition, states have an obligation to provide effective remedies and
reparation for violations of the rights of the child, including by third parties such as business
enterprises, Doc. CRC/C/GC/16, 17 Apr 2013.
30
Doc. CEDAW/C/GC/28, para 11.
31
Adopted 29 Mar 2004, where it reads in para 8: “However, the positive obligations on states
parties to ensure Covenant rights will only be fully discharged if individuals are protected by the
states, not just against violations of Covenant rights by its agents [. . .].”
Covenant rights by its agents, but also against acts committed by private persons or
entities that would impair the enjoyment of Covenant rights in so far as they are
amenable to application between private persons or entities.” Indeed, “There may be
circumstances in which a failure to ensure Covenant rights as required by Article
2 would give rise to violations by States Parties of those rights, as a result of States
Parties’ permitting or failing to take appropriate measures or to exercise due dili-
gence to prevent, punish, investigate or redress the harm caused by such acts by
private persons or entities.”32
In addition, the Committee adopted a general comment on nondiscrimination
practices, which should be read together with GC 31.33 The CESCR also adopted a
GC on nondiscrimination practices in the implementation of its Covenant.34
The Committee subsequently adopted GC 33 on the obligations of states parties
under the optional protocol.35 Pursuant to views under Article 5 (4) ICCPR, the state
party is under the obligation to provide an effective remedy and other measures taken
within 180 days. The character of the views by the Committee is further determined
by the obligation of states parties to act in good faith. Most states parties do not have
specific enabling legislation to transform the views into the domestic legal order.
States parties, however, must use whatever means within their power to give effect to
the view. Some states reject the Committee’s views, and the Committee tends to
have continued dialogue with the state party in order to convince it to implement its
views.36
On rare occasions, the Committee has to find a breach of a state party’s obliga-
tions under the protocol. A glaring example can be found in the case Ashby v
Trinidad and Tobago, where the state party ignored interim measures of protection
and executed the prisoner.37
32
General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to
the Covenant, Adopted on 29 Mar 2004, para 8.
33
GC 18, adopted in Nov 1989.
34
GC 20, adopted in July 2009.
35
Adopted at its 94th session in Oct 2008, see in particular paras 10, 14–15, 18 and 20.
36
In many cases, however, the state party does offer a remedy to victims and consider it a positive
obligation towards compliance with the optional protocol; see e.g. communication 163/1983,
Herrera Rubio v Colombia, where the Committee in its views stated that the state party was
under the obligation in accordance with the provisions of Art 2 of the Covenant “to take effective
measures to remedy the violation and to ensure that similar violations do not occur in the future.”
Views of 2 Nov 1987, para 12 and the state party followed suit. See also the death row cases,
communication 232/1987, Daniel Pinto v Trinidad and Tobago, para 13 (2), and communication
250/1987, Carlton Reid v Jamaica, para 12 (2), where two prisoners had been sentenced to death
under an irregular procedure and were subsequently released.
37
Communication 580/1994, HRCtee 2002 Report, Vol II, Annex IX, Section A para 10 (9) and
10 (10).
264 J. van Aggelen
4 Roles of UN Treaty Bodies in Monitoring Compliance by

States Parties
Committees deploy four principal activities: examination of state party reports,

adjudication of individual complaints, follow-up procedures, and interpretation
and progressive development of the provisions of the Covenants and other human
rights conventions, called general comments. Originally, general comments were
framed as part of the reporting procedure established by Article 40 ICCPR.38
Christian Tomuschat, who served on the HRCtee during its first decade of
operation, considered that general comments emerged as the constructive outcome
of a confrontation that took place in the Committee over the correct interpretation of
Article 40 (4) ICCPR. Seen originally as some kind of replacement for a proper
assessment of state reports, general comments soon guided states with respect to
problems arising out of implementation of the Covenant.39 The Committee itself in a
statement on its duties under Article 40 specified that in formulating general
comments, it would be guided by the following principles:
– they should promote cooperation between states parties in the implementation of
the ICCPR,
– they should summarize the experience that the Committee has gained in consid-
ering state reports,
– they should draw the attention of states parties to matters relating to the improve-
ment of the reporting procedure and the implementation of the ICCPR, and
– they should stimulate activities of states parties and international organizations in
the promotion and protection of human rights.40
These criteria have later on grosso modo been followed by CESCR and other
human rights committees. An important assistance given to states parties in their
obligations to implement treaties has been provided by the reports of the so-called
“meetings of chairpersons of treaty bodies,” which provide a forum for the 10 treaty
monitoring bodies to discuss issues of common interest, such as methods of work.
In addition to the 2016 study by the ILA Committee on International Human
Rights Law published in this volume,41 its 2004 study on the impact of findings of
the United Nations human rights treaty bodies, in particular as found in responses by
domestic courts, provides useful insights.42
38
Boerefijn (1999), especially chapter XIV, General Comments, 285–302.
39
Tomuschat (2008), p. 189; see also Alston (2001), pp. 763–776, and van Aggelen (2001),
pp. 636–637.
40
Statement of 30 Oct 1980, Report of the HRCtee, Doc. A/36/40 Supplement, 101.
41
other International Bodies that Involve International Human Rights Law, in this Volume.
42
Final Report on the Impact of Findings of the United Nations Treaty Bodies, Report of the
Seventy-First Conference, Berlin 2004, 621. The interim report presented in New Delhi requested
the committee to discuss in its final report inter alia: the use of treaty body output by national courts
As far as the status of general comments/recommendations and decisions of treaty

bodies was concerned, many national courts noted that treaty body findings are
relevant and useful. However, there was no obligation to follow treaty bodies’
interpretations, even where there was a view expressed on a specific case, because
the treaty bodies are not courts and not in themselves formerly binding interpreta-
tions of the treaty.43 Nevertheless, the HRCtee and the Committee Against Torture
on many occasions have stated that the legal norms contained in the treaty bodies are
binding obligations on states parties. These views are more than mere recommen-
dations that cannot be readily disregarded simply because the state party disagreed
with the Committee’s interpretations.
States frequently refer to case law in their submissions to treaty bodies under the
various complaint procedures, including even to the International Court of Justice,
where in their oral proceedings before the court in the LaGrand case, they cited the
jurisprudence of the HRCtee on procedural guarantees in a fair trial and the right to
life.44 In turn, ICJ judges also refer often to jurisprudence of the HRCtee.45
Despite the fact that states parties are required to implement decisions in good
faith (Article 26 VCLT), some countries face difficulties in implementation,
irrespective of whether the state party considers the norms self-executing or not.
and tribunals as well as international courts and tribunals; illustrative examples of treaty body
output by other courts and tribunals. A subsequent expert meeting in Turku recommended in
addition that the final report should consider how treaty body outputs would fit into the traditional
approaches to and sources for the interpretation of treaties as well as the implementation of treaty
body output in individual cases and their increased use by international and national bodies.
43
Ibid, paras 8–16. A remarkable example can be found in the case Ahani v Canada (Atty. Gen)
where in 2002 the Court of Appeal’s Judge Laskin, who later sat on the Canadian Supreme Court,
commented on the status of the ICCPR and its optional protocol. The judge reported that Canada in
signing the Optional Protocol had not agreed to be bound by the final views of the Committee, nor
did it even agree that it would stay its own domestic procedures until the Committee had given its
views. He concluded therefore that neither the Committee’s views nor its interim measures were
binding on Canada as a matter of international law, much less as a matter of domestic law. In other
words to convert a non-binding request in a protocol which had never been part of Canadian law,
into a binding obligation enforceable in Canada by Canadian courts, would be contrary to principles
of fundamental justice. (2002)58 OR 3d, 107, Ontario Reports, LEXIS38, paras 32–33. Mr. Ahani
subsequently filed a complaint with the Committee, communication 1051/2002. In its views
adopted on 29 Mar 2004, during its 80th session, the Committee found inter alia that the deportation
of the petitioner back to Iran violated Art 13, in that the state party had failed to provide him with the
required procedural protection as the state party did not have compelling reasons of national
security to justify expulsion; HRCtee 2004 Report Vol II, Annex IX, Section. BB, paras 10.5–10.8.
44
ICJ, La Grand (Germany v US), oral pleadings of 13 Nov 2000.
45
For instance former president of the ICJ Rosalyn Higgins, who was also a member of the
Committee from 1984 to 1995, in many proceedings refers to treaty bodies views. See also ICJ,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (advisory
opinion), ICJ Reports 2004, paras 109–112 and 136, where the Court referred to case law of the
HRCtee, including concluding observations and GC 27. See ILA Report (Part 1), The International
Court of Justice and its Contribution to Human Rights Law, in this Volume, with the ILA
Committee’s findings on the ICJ’s dealings the case law of the UN HRCtee and the regional
human rights bodies.
266 J. van Aggelen
There appeared to be relatively few countries where formal procedures adopted by

legislation give effect to treaty body decisions or in which constitutional provisions
can be used in case the remedy cannot be provided by administrative measures. This
may even be so in countries where treaties are directly enforceable as domestic law.
However, a positive dialogue between the committees and states parties’ national
courts may result in the adaptation of national law to conform to the Covenant.
However, the status of the treaty bodies themselves and the status of the decisions as
not being legally binding in formal terms could contribute to the difficulty to
implement the decision at the national level.46
The ILA Committee’s final report’s conclusions stated, inter alia, that while
national courts have generally not been prepared to accept to be formerly bound
by committees’ interpretations of treaty provisions, most states parties agreed that
they should be given considerable weight in the case of violations. The views of the
HRCtee would continue to be the predominant source. In countries with common
law jurisdictions, subsequently adopted bills of rights referring to provisions of the
covenants and public awareness of treaty reporting procedures could also have a
positive impact before the courts and other national institutions.47 The recommen-
dations of the ILA Committee’s 2010 study reflected most of the issues discussed in
the previous section.48
5 The Obligations of States Parties and the Domestication

of the International Norms
The primary obligation of the states to implement human rights law is reflected in the
right to an effective remedy ordered by a human rights treaty body after the
exhaustion of local remedies,49 including in cases of violation of a human right
under a communication procedure.50 It can be described as the realization of
international human rights through a state’s national legal and institutional system.
Remedies proposed by human rights bodies also fill a gap when domestic mecha-
nisms fail or prove insufficient, despite the fact that translating the international
46
See Doc. HRI/MC/2015/2 of 13 Apr 2015 (Implementation by treaty bodies of the conclusions
and recommendations of the treaty body chairpersons at their 26th meeting in the framework of
General Assembly Resolution 68/268, note by the secretariat), at paras 17–26 and the final report at
paras 15–43, giving many examples of domestic implementation and their difficulties, of mainly the
views by the Committee under the Optional Protocol procedure.
47
ILA Final Report 2004 (n 42), paras 175–182.
48
Ibid, para 184.
49
The reference book on the issue, even after more than 30 years, remains Cançado
Trindade (1983).
50
In accordance with the adagium “ubi ius ibi remedium est,” see Shelton (2012), especially paras
1–12 and 19.
human rights norms into domestic law and practice continues to be the central
challenge of international human rights law.
For that reason, state reporting remains the bedrock of the system. The ICCPR
provides that states parties must report “on the measures they have adopted which
give effect to the rights recognized therein and on the progress made in the enjoy-
ment of those rights.” ICESCR, CAT, CRC, and their optional protocols have
similar provisions. Article 18 CEDAW, Article 9 CERD, and Article 73 CMW
require states to report on the legislative, judicial, administrative or other measures
they have adopted to give effect to the provisions of the conventions.
Initial reports are due one year after the entry into force of the treaty for the
reporting state. The exceptions are CRC and its protocols, as well as CRPD, for
which the period is two years. With respect to ICESCR, ECOSOC Resolution 1988/
4 provided that initial reports were due within two years of entry into force of the
Covenant.51 Regarding periodic reports, the HRCtee initially established a time
frame of five years, but subsequently, when it started to adopt concluding observa-
tions, it indicated when the next report was due. Other conventions require periodic
reports within a fixed time frame.52
The nonreporting states remain a serious concern as under the conventions
themselves, there is no express authority to monitor state compliance. The treaty
bodies have developed practices in this respect on the basis of their “implied
powers.”53 There is, however, one exception. Under Article 36 (2) CRPD, its
committee is authorized to examine the situation in the state party in the absence
of report.
With regard to long-overdue reports, I would like to recall that CERD, CESCR,
and the HRCtee had decided to rely on previous concluding observations in those
circumstances, while committees established by younger conventions, such as CRC,
CMW, and CRPD, are authorized to request written information from specialized
agencies and other bodies concerned on matters falling within the scope of their
activities.
Domestic implementation has also become more relevant as international human
rights law itself has matured. It is a continuing process as human rights law is not
static but develops as values in society change. Under general international law,
there is no duty to incorporate or transform an international norm into domestic law,
unless explicitly or implicitly provided for. Although states according to Article
27 VCLT cannot invoke their internal legal system for a failure to perform their
51
ESCOR 1988, Supplement 1, 8, 24 May 1988.
52
ICERD: two years; CEDAW, CAT, CRPD: four years; CRC and ICESCR, CMW: five years; but
over the years, the relevant committee requests the next submission of a report during the
discussion.
53
See ICJ, Reparation for Injuries Suffered in the Service of the United Nations (advisory opinion),
ICJ Reports, 1949, 174–188, at 182; Certain Expenses of the United Nations (advisory opinion),
ICJ Reports 1962, 151–168, at 167–168 and the cited jurisprudence. It might be worth to note that
the HRCtee in 2000 adopted a procedure where it decided to draw up provisional concluding
observations regarding non-reporting states, which were subsequently sent to the state party.
268 J. van Aggelen
international obligations, they are free to choose the means of ensuring compliance
through the concepts of monism or dualism.
As a rule, in monist countries, treaties become directly part of domestic law upon
ratification, while in dualist countries, an additional legal act of transforming the
international norm into the domestic system is necessary. Once international stan-
dards have become part of domestic law, the question arises whether the right is
considered sufficiently precise that it can be directly invoked without further legis-
lation, i.e. whether the norm is self-executing.54 This question arose in particular
during the discussion of the fourth report submitted by the United States under
ICCPR in 2012.
After discussion of this report,55 the committee noted in its concluding observa-
tions regarding the applicability of the Covenant at the national level that “the
committee regrets that the state party continues to maintain the position that the
Covenant does not apply with respect to individuals under its jurisdiction, but
outside its territory, despite the interpretation to the contrary of Article 2 (1),
supported by the committee’s established jurisprudence, the jurisprudence of the
international Court of Justice and state practice.”
The committee further notes that the state party has only limited avenues to
ensure that state and local governments respect and implement the Covenant and
that its provisions have been declared to be non-self-executing at the time of
ratification. It recommended to the state party, taking into account the latter’s
reiteration that the provisions of the Covenant are non-self-executing, to ensure
that effective remedies are available for violations of the Covenant, including
those that do not, at the same time, constitute violations of the domestic law of the
United States, and to undertake a review of such areas with a view to proposing to
Congress implementing legislation to fill any legislative gaps.56
Article 2 (2) ICCPR requires states to adopt such laws and other measures as may
be necessary to give effect to the rights recognized in the Covenant. Neither the duty
to take measures to give effect to the rights nor the right to a remedy contained in
human rights treaties have been held to imply a duty to make the treaty norm a direct
part of domestic law. Studies on domestication of human rights treaties confirm the
importance of incorporation or transformation. Treaties tend to have the greatest
impact if made part of domestic law in a broader process of legal and constitutional
reform combined with the effective remedial measures for their enforcement.57
54
See Bleckmann (2000), pp. 374–377; generally Paust (1988), p. 760; Sloss (1999), p. 129.
55
Doc. CCPR/C/USA/4 and Corr.1, 22 May 2012.
56
Doc. CCPR/C/USA/CO/4, 23 Apr 2014, para 4. The same problem also arises under ICAT as the
government, upon ratification, made a declaration that Arts 1–16 of the convention were non-self-
executing.
57
See generally Heyns and Viljoen (2001), pp. 483–535; see also Heyns and Viljoen (2002);
Seibert-Fohr (2001), pp. 399–472.
GC 31 adopted by the committee in 200458 clarifies that, unless Covenant rights

are already protected by their domestic laws or practices, states parties are required
on ratification to make such changes to domestic laws and practices as are necessary
to ensure their conformity with the Covenant. Where there are inconsistencies
between domestic law and the Covenant, Article 2 requires that the domestic law
or practice be changed to meet the standards imposed by the Covenant’s substantive
guarantees. States parties are allowed to pursue this process in accordance with their
own domestic constitutional structure and consequently do not require that the
Covenant be directly applicable in the courts, by incorporation of the Covenant
into domestic law. The committee takes the view, however, that Covenant guaran-
tees may receive enhanced protection in those states where the Covenant is auto-
matically applicable or through specific incorporation in part of the domestic legal
order.59
Brazil, among other states, accords constitutional status to human rights treaties
and consequently requires that constitutional provisions be interpreted in the light of
international human rights law.60 Other jurisdictions have given a higher rank to
human rights treaties than their ordinary statues, but lower than their constitution. In
many jurisdictions, however, human rights treaties have only the status of ordinary
law, which hampers efficiency of remedies to violations of human rights.61
CESCR also adopted a general comment on the domestic application of its
Covenant.62 It considered that legally binding international human rights standards
should operate directly and immediately within the domestic legal system of each
state party, thereby enabling individuals to seek enforcement of their rights before
national courts and tribunals. The rule requiring the exhaustion of domestic remedies
reinforces the primacy of national remedies in this respect. Although there is no
provision obligating its comprehensive incorporation, direct incorporation avoids
problems that might arise in the translation of treaty obligations into national law. It
added that the rights could be considered self-executing in systems where this option
is provided for. The Committee warned that one should avoid any a priori assump-
tion that the norm should be considered to be non-self-executing.63
CERD only adopted the general recommendation concerning the application of
Article 9 of the Convention requiring states parties to submit reports on measures
taken by them to give effect to the provision of the Convention.64 It is my view that
subsequent state practice and recommendations by the chairpersons have given a
more detailed and substantive interpretation of state obligations under that
Convention.
58
Supra, n 31.
59
Ibid, para 13.
60
Amendment 45 to the 1988 Brazilian Constitution, 30 Dec 2004.
61
See also GC 31, paras 15–16.
62
GC 9 of 3 Dec 1998, Doc. E/C.12/1998/24.
63
Ibid, paras 4, 7–8 and 11.
64
General Recommendation XVI adopted at its 42nd session in 1993, in Doc. A/48/18.
270 J. van Aggelen
Further to what has been discussed concerning GC 28 adopted by CEDAW,65 a

few additional remarks on Article 2 CERD, which obliges states parties to imple-
ment the Convention in a general way, are considered necessary. Under subpara-
graphs a, f, and g, states parties undertake to incorporate the convention into the
domestic legal system or to give it otherwise appropriate legal effect within their
domestic legal order in order to secure the enforceability of its provision at the
national level.
Subparagraph b contains the obligation of states parties to ensure that legislation
prohibiting discrimination and promoting equality of women and men provides the
proper remedies for persons who are subjected to discrimination contrary to the
Convention. Such remedies should include monetary compensation, restitution,
rehabilitation, and reinstatement. According to subparagraph c, states parties must
ensure that courts are bound to apply the principle of equality as embodied in the
convention and to interpret the law in line with the obligations of states parties to the
Convention. However, where this is not possible, courts should consider any
inconsistency between national law and the state party’s obligation under the
Convention as a violation of the latter since domestic laws can never be used as
justification for failure by states parties to carry out their international obligations.66
Subparagraph d establishes an obligation to abstain from engaging in any act or
practice of direct or indirect discrimination against women, and subparagraph e
obliges states parties to eliminate discrimination by any public or private actor.
The obligations, incumbent upon states parties, require them to establish legal
protection between men and women on an equal basis.67
CRC had adopted its GC 5 in October 2003.68 The committee stated that a
comprehensive, reviewable domestic legislation and related administrative guidance
should be necessary to ensure full compliance with the Convention. States parties
need to ensure, by all appropriate means, that the provisions of the Convention are
given legal effect within their domestic legal systems. It conceded that this remained
a challenge in many states parties. It noted that it was important to clarify the extent
of applicability of the Convention in states where the principle of “self-executing”
norms exists and others where it is claimed that the Convention has constitutional
status or has been incorporated into domestic law. Incorporation should mean that
the provisions of the Convention can be directly invoked before the courts and
applied by national authorities and that the Convention will prevail where there is a
conflict with domestic legislation or common practice. Incorporation by itself does
not avoid the need to ensure that all relevant domestic laws be brought into
compliance with the Convention, and in case of any conflict in legislation, predom-
inance should always be given to the Convention in light of Article 27 VCLT.69
65
See supra, nos 29–30.
66
CEDAW/C/GC/28, paras 30–34.
67
68
See supra n 16 and accompanying text.
69
CRC/GC/C/2003/5, paras 18–20.
In 2008, CAT adopted its GC 2 on the implementation of Article 2 by States

Parties.70 It noted that serious discrepancies between the Convention’s definition and
that incorporated into domestic law create actual or potential loopholes for impunity.
In some cases, although similar language may be used, its meaning may be qualified
by domestic law or by judicial interpretation, and thus the committee calls upon each
state party to ensure that all parts of its government adhere to the definitions set forth
in the Convention for the purpose of defining the obligations of the state. At the same
time, the Committee recognizes that broader domestic definitions also advance the
object and purpose of the Convention as long as they are applied in conformity with
the standards of the Convention.71
An additional concern, impacting the obligations of states parties, is the extrater-
ritorial application of the ICCPR and ICAT.72 The US representative maintained that
his delegation found it difficult to accept that the conjunction in the phrase “within its
territory and is subject to its jurisdiction” could be interpreted as meaning “and/or.”73
Sir Nigel Rodley explained in a meticulous analysis the Committee’s position.
During the hearings on the state report, he maintained that its interpretation of Article
2 coincided with that of the ICJ, namely that states parties were required to ensure
rights for all individuals within their territory and to all individuals subject to their
jurisdiction.74 In this connection, he referred to Articles 31 and 32 VCLT and
maintained for purposes of applicability that the persons concerned must be under
the state party’s control, which was the case with respect to Guantánamo.
Guidance on the issue of extraterritoriality can be found in GC 31. The committee
observed that “while Article 2 is couched in terms of obligations of state parties
towards individuals as the right-holders under the Covenant, every state party has a
legal interest in the performance by every other state party over its obligations.”75
This follows from the fact that the rules concerning the basic rights of the human
person are erga omnes obligations.76 The obligations of the Covenant in general and
Article 2 in particular are binding on every state party as a whole.77 In addition, the
beneficiaries of the rights recognized by the Covenant are individuals, and states
parties are required by Article 2 (1) to respect and to ensure that Covenant rights to
all persons within their territory and subject to their jurisdiction.78 This means that a
state party must respect and ensure the rights laid down in the Covenant to anyone
70
CAT/C/GC/2 of 24 Jan 2008.
71
Ibid, para 9.
72
HRCtee, 87th session, 2380th meeting, 27 July 2006, Doc. CCPR/C/SR.2380.
73
Ibid, para 8.
74
Ibid, para 65.
75
GC 31, para 2.
76
Ibid, para 2.
77
Ibid, para 4.
78
Ibid, paras 9–10.
272 J. van Aggelen
within the power or effective control of that state party, even if not situated within the
territory of the state party.79
In March 2014, the Committee discussed the fourth report of the United States.80
In its concluding observations, it regretted that the state party continued to maintain
the position that the Covenant does not apply with respect to individuals under its
jurisdiction, but outside its territory, despite interpretations to the contrary of Article
2 (1), supported by the Committee’s established jurisprudence, the jurisprudence of
the international Court of Justice and state practice. The Committee further noted
that the state party has only limited avenues to ensure that state and local govern-
ments respect and implement the Covenant and that its provisions have been
declared non-self-executing at the time of ratification. Taken together, these ele-
ments considerably limit the legal range and practical relevance of the Covenant.81
In this connection, it recommended that the state party should interpret the
Covenant in good faith, in accordance with the ordinary meaning to be given to its
terms in their context, including subsequent practice, and in light of the object and
purpose of the Covenant and review its legal position so as to acknowledge the
extraterritorial application of the Covenant under certain circumstances, as outlined,
inter alia, in the Committee’s GC 31 on the nature of the general legal obligations
posed on states parties.82
In addition, it stated that taking into account its declaration that provisions of the
Covenant are non-self-executing, the state party should ensure that effective reme-
dies are available for violations of the Covenant, including those that do not, at the
same time, constitute violations of the domestic law of the United States and
undertake a review of such areas with a view to proposing to Congress implementing
legislation to fill any legislative gaps. It also recommended becoming a party to the
first Optional Protocol.83
Finally, as part of the obligations of states to implement the international norms in
domestic courts, I would like to refer briefly to the issue of reservations.84
79
Ibid.
80
Doc. CCPR/C/USA/4 and Corr.1 of 22 May 2012.
81
Doc. CCPR/C/USA/CO/4 of 23 Apr 2014, para 4.
82
Ibid.
83
Ibid. The issue of non-self-execution has drawn quite some attention lately among academics. See
Kaye (2013), pp. 95–124, who argues that because the Covenant is non-self-executing,
implementing legislation is required in order for litigants to rely on its provisions in federal and
state courts. To date, however, no such legislation has been adopted by Congress and none seems
likely in the foreseeable future. As a result, no domestic mechanism exists for litigants to test state
and federal compliance with the Covenant (ibid, 96); see also Wilde (2013), chapter 35; van
Schaack (2014), pp. 20–65; see also Bleckmann (2000), pp. 374–377; Paust (1988), p. 760; Sloss
(1999), p. 129.
84
See working papers and Final Report to the Sub-Commission on Prevention of Discrimination
and Protection of Minorities by Françoise Hampson, Docs. E/CN.4/Sub.2/1999/28 and Corr.1;
E/CN.4/Sub.2/2002/34; E/CN.4/Sub.2/2003/WP.2; and E/CN.4/Sub.2/2004/42; The Practice of
Human Rights Treaty Bodies with respect to Reservations to International Human Rights Treaties,
Report by the Secretariat, Doc. HRI/MC/2005/5, June 13, 2005. The ILC, working on various
Reservations to treaties could void the meaning of a treaty if the state party attaches
too many declarations or reservations upon ratification.85 When the United States
finally ratified the ICCPR on June 8, 1992, it caused some waves among the
international human rights community.86
Insiders confirm that the adoption of GC 24 by the Committee was triggered by
the fact that on November 1, 1994, 46 of the then 127 states parties to the Covenant
had entered 150 reservations of varying significance between them to their accep-
tance of the obligations contained in the Covenant.87
This general comment, in my opinion, shines as a beacon upon the obligation of
states parties to interpret the question of reservations in accordance with general
international law by taking into account the special nature of international human
rights law, being of a vertical structure: state versus the individual.
It considers that reservations could serve a useful function to enable states to
adapt specific elements in their laws to the inherent rights of each person as
articulated in the Covenant. The absence of a prohibition on reservations does not
mean that any reservation is permitted. Reservations that offend peremptory norms
would not be compatible with the object and purpose of the Covenant. The Com-
mittee stated that, essentially, a reservation precludes the operation as between the
reserving and other states of the provision reserved, and an objection thereto leads to
the reservation being in operation as between the reserving and objecting states only
to the extent that it has not been objected to. States should institute procedures to
ensure that each and every proposed reservation is compatible with the object and
purpose of the Covenant. It is desirable for a state entering a reservation to indicate in
precise terms the domestic legislation or practices that it believes to be incompatible
with the Covenant obligation.88
aspects of reservations to international treaties since 1995, delivered its final report in 2011, but had
only one scant reference to the issue which Mrs. Hampson mentioned in her 2005 report, where it
briefly discussed general reservations to international human rights treaties, see Report of the ILC,
63rd session, GAOR A/66/10/Add.1, 263, fn. 1155.
85
See Lijnzaad (1994).
86
See e.g. van Genugten (1998), pp. 35–46; Ziemele and Liede (2013), pp. 1135–1152. Previously
expectations had been high in anticipation of the ratification, see the roundtable organized by the
Georgia Law School in 1990 under the title “The United States Constitution and the Adoption of
International Human Rights Instruments: Freeing the Political Logjam,” published in the Georgia
Journal of International and Comparative Law 20 (1990), especially the Arts presented to Panel I
“The process of and Obstacles to United States Ratification of International Human Rights
Instruments.”
87
GC 24/52 on Reservations and Declarations, adopted 4 Nov 1994.
88
Ibid, paras 4, 6, 8, 10, 16 and 20.
274 J. van Aggelen
6 Obligations Imposed on Domestic Courts Concerning

the Implementation of Human Rights Arising from
the ICCPR
With respect to domestic courts, the obligations deriving from the ICCPR are dealt
with in the Committee’s GC 31 and GC 33.
As mentioned above, GC 31 starts from the general obligation incumbent upon
the states parties “to respect the Covenant rights and to ensure them to all individuals
in their territory and subject to their jurisdiction [. . .]”89 Thus, “state parties must
refrain from violation of the rights recognized by the Covenant [. . .]”90 (negative
obligation), and “article 2, paragraph 3, requires that state parties make reparation to
individuals whose Covenant rights have been violated.”91 Another point is that
“[. . .] state parties adopt legislative, judicial, administrative, educative and other
appropriate measures in order to fulfill their legal obligations.”92 Thus, domestic
courts have a special role to play. The standard of compliance expressed in the
requirement “to give effect to the obligations under the Covenant in good faith”93
can be understood as a guideline of interpretation for courts. Courts are also
addressed by the duty, “where the investigations [. . .] reveal violations of certain
Covenant rights, [to] ensure that those responsible are brought to justice.”94 The
Committee notes “that the enjoyment of the rights recognized under the Covenant
can be effectively assured by the judiciary in many different ways, including direct
applicability of the Covenant, application of comparable constitutional or other
provisions of law, or the interpretative effect of the Covenant in the application of
national law.”95
In addition, GC 33 spells out that “[. . .] state parties are obliged not to hinder
access to the Committee and to prevent any retaliatory measures against any person
who has addressed a communication to the Committee.”96 The “[. . .] State Party,
against which a claim has been made by an individual under the Optional Protocol is
to respond to it within the time limit of six months set out in Article 4 (2).”97 In
conclusion, GC 33 describes that “in any case, States parties must use whatever
89
GC 31, The Nature of the General Obligation Imposed on State Parties to the Covenant, Doc.
CCPR/C/Rev.1/Add. 13, 26 May 2004, para 3.
90
Ibid, para 6.
91
Ibid, para 16.
92
Ibid, para 7.
93
Ibid, para 3.
94
Ibid, para 18.
95
Ibid, para 15.
96
GC 33, The Obligation of State Parties under the Optional Protocol to the International Covenant
on Civil and Political Rights, CCPR/GC/33, 5 Nov 2008, para 4.
97
Ibid, para 8.
means lie within their power in order to give effect to the views issued by the
Committee.”98
As Manfred Nowak observed in 2005 in his consideration of Article 40 ICCPR, “the

crisis of the reporting procedure cannot be just explained by a lack of willingness of
states parties to comply with the reporting obligations. It is a structural problem
inherent to the UN treaty monitoring system in general and to the ongoing financial
crisis of the world organization and its human rights program in particular.” In his
opinion, “only a major structural reform can help to solve the ongoing crisis. Such a
far-reaching reform might reduce the reporting obligations to one comprehensive
report per state every five years and a few special reports in case of need, and might
aim at replacing the existing treaty monitoring system by one single examination
body composed of a sufficient number of full-time experts.”99
Another expert, Philip Alston, commented on the domestication of international
human rights norms. In 2001, he observed that “the existing state of domestic
implementation is, for the most part, highly unsatisfactory. There is a well-
documented trend among states to resort increasingly to techniques designed to
minimize the domestic impact of treaty obligations. They include reliance upon
excessively broad reservations, insistence by either the executive or the courts and
that treaty provisions are non-self-executing, failure to incorporate or otherwise
amend domestic legislation as to take genuine account of treaty obligations.” In
addition, “the assumptions that different formulations contained in international
standards can safely be interpreted as having an identical meaning to preferred
domestic norms, insistence that administrative decision-makers cannot be expected
to take account of treaty obligations unless they are legislatively required to do so,
rejection of dynamic approaches to interpretation in favor of insistence upon original
intent, and non-translation, non-publication, or non-proclamation of ratified treaties
are to be rejected.”100
One of the members of the ILA Human Rights Law Committee, Jernej Cernic,
correctly observed that “the main problems lie in the lack of knowledge and
understanding of ICCPR among states parties. It seems that a vast majority of states
parties does not process sufficient knowledge to respond adequately to challenges to
98
Ibid, para 20.
99
Nowak (2005), pp. 718–719; as Stoll concludes, “the key question is likely to be whether the
enforcement and further development of human rights protection is best serviced by adopting a
holistic approach or by emphasizing and appreciating individual commitments under individual
agreements”; see Stoll (2012), para 47.
100
Alston (2001), pp. 763–776; see also Kälin (2000), p. 111.
276 J. van Aggelen
rights under the ICCPR in respective national legal orders. Identifying obligations
and responsibilities is only one aspect of the protection of ICCPR rights.”101
Issuing concluding observations has become standard practice by all human
rights treaty bodies. A last issue is their purported limited efficiency. In a very
critical analysis, focusing on the Netherlands, Jasper Krommendijk maintains that
the Dutch government barely adopts additional legislative measures as a result of
treaty bodies’ concluding observations. He comes to the conclusion that the govern-
ment often defends itself that adequate measures of protection already exist. The
same approach is taken in the lower house of Parliament, in his opinion.102 He also
criticized the lack of preparation by some members of the committee during the
discussion of the Dutch reports in 2001 and 2009, as well as their limited knowledge
of the legal situation in the Netherlands, despite abundantly available material.103
Louis Henkin, a former member of the Committee, observed in 1994 that “human
rights treaties continue to increase, a reflection of the system’s steady drift toward
human values. It is a reflection, too, of the new sensitivity of states and of the state
system to pressures leading to consent.”104
As Lord McNair, former judge at the ICJ, observed: “I do not propose to enter
into the question whether a human being is subject of international rights and duties
or merely the object. What really matters is the remedies which are open to him
before an international tribunal, and that depends on the constitution and powers of
the tribunal.”105
Introducing a high-level segment on the 50th anniversary of the two covenants at
the 31st Council meeting on March 1, 2016, the current High Commissioner for
Human Rights, Dr. Zeid, reported that as of now, 27 countries had not yet become
party to either of the covenants, while eight states had ratified only one covenant.
Moreover, for those that have, there is still work ahead concerning the compliance
101
Jernej Letnar Cernic, “The domestic implementation of “views” of the United Nations Human
Rights Committee,” manuscript on file with the author; a detailed discussion on the views of the
committee under the optional protocol is found in Möller and de Zayas (2009). The book demon-
strates an innovative approach, especially in its two last chapters on the follow-up to the Commit-
tee’s views and the evolution and changes in the Committee’s case law; see my book review van
Aggelen (2010), pp. 237–240.
102
Krommendijk (2013, 2014, 2015). Fortunately, other scholars have a more optimistic view; see
O’Flaherty (2006), pp. 27–52; Kälin (2012), pp. 31–32.
103
See also O’Flaherty and Tsai (2011), p. 46. Having served different human rights treaty bodies
between 1980 and 2007, I have to come to the conclusion that the HRCtee, despite being sometimes
criticized, remains the “primus inter pares” between the human rights treaty bodies. The Committee,
over the years, also has maintained a high level of intellectual craftsmanship among its members.
See Bayefsky (2000), chapters 1–3, where three analyses are provided on the system of state
reporting; the first chapter gives a general overview and evaluation of state practice, chapter
2 deals with the practice by CEDAW and chapter 3 deals with the practice by CRC. For a
comprehensive historical study on state reporting under the ICCPR see Boerefijn (1999).
104
Henkin (1996), p. 36.
105
McNair (1974), p. 329.
with their obligations under the different human rights treaties to which they are a
party.
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State Obligations in the European System
The Obligation to Implement the European
Court of Human Rights’ Judgments
Paulo Pinto de Albuquerque
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
2 Obligations of the ECHR Member States According to the Jurisprudence
of the ECtHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
3 The Court’s Implied Powers and Protocol No. 14 to the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
4 Joint Powers of the ECtHR and the Committee of Ministers to Supervise
the Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
1 Introduction
The issue: In March 2015, the Italian Constitutional Court judgment on the Varvara
case1 concluded that only consolidated law (diritto consolidato) of the Strasbourg
Court is binding erga omnes in the domestic legal order. Although the notion of
consolidated law is not clearly established, it includes at least Grand Chamber and
pilot judgments and eventually committee judgments. Chamber judgments are
binding only inter partes and have no other effect in similar cases sharing the
same structural problems. In July 2015, the Russian Constitutional Court delivered
a judgment on the Federal Law on the Accession of the Russian Federation to the
ECHR,2 which affirmed that the judgments of the Strasbourg Court would not be
1
Corte costituzionale, sentenza 49, 26 Mar 2015, GU 1 Apr 2015, para 7.
2
Constitutional Court of the Russian Federation, Resolution No 21-P/2015 on request of State
Duma deputies, 14 July 2015, translated by M. Smirnova, found at http://transnational-constitution.
blogspot.de/2015/08/russian-constitutional-court-decision.html. Accessed 11 July 2017. The
P. Pinto de Albuquerque (*)

European Court of Human Rights, Strasbourg, France
Law Faculty of the Catholic University, Lisbon, Portugal
e-mail: paulo.PINTODEALBUQUERQUE@echr.coe.int

https://doi.org/10.1007/978-3-319-94848-5_10
280 P. Pinto de Albuquerque
enforceable if and when they contradict the Russian Constitution, according to its
reading by the Russian Constitutional Court. This line of domestic case law puts in
question the legal force of the European Court’s case law and of the European
Convention itself. Other cases in UK and German jurisdictions raise similar con-
cerns. The tense relationship between some Supreme and Constitutional Courts and
the European Court raises the question of principle: what are the obligations of the
contracting parties to the Convention to implement the European Court’s
judgments?
2 Obligations of the ECHR Member States According

to the Jurisprudence of the ECtHR
The European Convention on Human Rights provides for a system of protection of

the ‘substance’ of human rights of all individuals within the jurisdiction of the States
Parties. Moreover, the Convention guarantees not rights that are theoretical or
illusory but rights that are practical and effective. Being more than a multilateral
agreement on reciprocal obligations of States Parties, the Convention creates obli-
gations for States Parties towards all individuals within their jurisdiction, envisaging
the practical implementation of the protected rights and freedoms in the domestic
legal order of the States Parties. Therefore, the States Parties to the Convention are
legally obliged not to hinder in any way the effective exercise of the right of
individual application and to make such modifications in their domestic legal
systems as may be necessary to ensure the full implementation of the obligations
incumbent on them.3 These are the consequences of the principle of good faith in
fulfilling treaty obligations, foreseen in Articles 26 and 31 of the Vienna Convention
on the Law of Treaties (VCLT).
The most important instrumental obligation of States Parties to the Convention is
the obligation to abide by the Court’s judgments (Article 46 ECHR). At first sight,
the Convention provides that the effects of the Court’s judgments are restricted to the
parties to the case, that is, the applicant or applicants and the respondent state or
states. This first reading is misleading, however, and a correct construction of Article
46 requires it to be read jointly with Article 1 ECHR. In the light of these provisions
read together, the Court’s judgments have a direct and erga omnes effect, as it will be
explained below.
In the seminal case of Vermeire v Belgium,4 the Court explicitly reasoned that it
could not reject in 1991, with respect to a succession that had taken effect on 22 July
1980, complaints identical to those that it had upheld on 13 June 1979 in the Marckx
President of the Russian Federation signed a corresponding law on 15 Dec 2015, summary found at
http://en.kremlin.ru/acts/news/50935. Accessed 11 July 2017.
3
This requirement is spelled out in ECtHR jurisprudence on a regular basis, see for instance ECtHR,
Maestri v Italy, judgment of 17 Feb 2004, No 39748/98, para 47.
4
ECtHR, Vermeire v Belgium, Series A 214-C (1991).
State Obligations in the European System 281
v Belgium judgment.5 The failure by the Belgian legislature to implement Marckx at

the national level did not absolve the respondent state of its international obligation
to prevent future breaches of the Convention as a result of the same deficient
inheritance law, having regard to the fact that the courts were also bound by the
Convention as interpreted by the Court. Thus, the Court recognised the stare decisis
force of Marckx, which had already settled the issue raised by the applicant in
Vermeire. In addition, the Court recognised the direct and erga omnes effect of its
judgments or, to quote from Marckx itself, the ‘effects extending beyond the
confines of this particular case’,6 within the legal order of the respondent state.
In fact, the Court had already formulated, in clearer terms, the erga omnes effect
of its judgments when it affirmed, in Ireland v the United Kingdom,7 that ‘the
Court’s judgments in fact serve not only to decide those cases brought before the
Court but, more generally, to elucidate, safeguard and develop the rules instituted by
the Convention, thereby contributing to the observance by the states of the engage-
ments undertaken by them as Contracting Parties (Article 19)’.8 The argument of the
Court—that ‘the conclusion thus arrived at by the Court is, moreover, confirmed by
paragraph 3 of Rule 47 of the Rules of Court. If the Court may proceed with the
consideration of a case and give a ruling thereon even in the event of a “notice of
discontinuance, friendly settlement, arrangement” or “other fact of a kind to provide
a solution of the matter”, it is entitled a fortiori to adopt such a course of action when
the conditions for the application of this Rule are not present’9—still carries much
weight today. The Court has on many occasions refused to strike out a case, even
though the applicant had sought to withdraw his or her application, because it
considered that the case raised questions of a general character affecting the obser-
vance of the Convention or involved a question of general interest both for the
respondent state and other States Parties. The same underlying general interest
justified the introduction of the concept of ‘potential victim’ and the practice of
third party intervention.
To use the wording of the preamble of the Convention, the ‘maintenance and
further realization of human rights and fundamental freedoms’ in the Council of
Europe and the ‘achievement of greater unity between its members’ indeed call for
this broad understanding of the Court’s mission, not only in regard to the conditions
for admissibility of applications to the Court and the striking out of applications but
also to the effects of its judgments. The collective interest nature of the Court’s input
logically impacts on the erga omnes nature of its output. As the Court explained in
Karner v Austria10: ‘Although the primary purpose of the Convention system is to
provide individual relief, its mission is also to determine issues on public-policy
5
ECtHR, Marckx v Belgium, Series A 31 (1979).
6
ECtHR, Marckx v Belgium, Series A 31 (1979), para 58.
7
ECtHR, Ireland v UK, Series A 25 (1978).
8
Ibid, para 154.
9
Ibid.
10
ECtHR, Karner v Austria, Reports 2003-IX.
grounds in the common interest, thereby raising the general standards of protection
of human rights and extending human rights jurisprudence throughout the commu-
nity of Convention States.’11
In addition, both the principle of good faith and the principle of subsidiarity
require that the erga omnes effect of the Court’s judgments be as broad as possible.
In the light of the principle of good faith in fulfilling treaty obligations, States Parties
must not act contrary to the case law established by the Court while interpreting the
Convention. It would be very problematic, to say the least, for a State Party to
maintain a legal provision or an administrative or judicial practice, act or omission
that had already been found incompatible with the Convention with regard to another
State Party. States Parties not involved in the proceedings must not turn a blind eye
to the authoritative interpretation of the Convention made by the Court, which is the
final instance invested with that power (Article 19 ECHR). If they were to do so,
either willfully or negligently, they would be at variance with their own Convention
engagements as interpreted by the Court and thus fail to show the attentive commit-
ment to the fulfillment of treaty obligations, which is called for by the principle of
good faith in performing a treaty. However, if the States Parties abide by the
standards set in the Court’s case law, even when they have not been involved in
the particular disputes in respect of which the case law was established, they not only
avoid future findings of a violation but also anticipate the implementation of the
rights and freedoms foreseen in the Convention.
This proactive approach by the States Parties is also required by a rigorous
application of the principle of subsidiarity, which enhances the shared responsibility
of states and the Court in securing and enforcing the rights and freedoms of the
Convention. Being States Parties at the forefront of the application of the Conven-
tion, they are also the first to be confronted with the challenges thrown up by
infringements of the rights and freedoms enshrined in the Convention, and they
must effectively and promptly resolve these violations at the national level. The full
implementation of the Convention at national level requires States Parties to take all
measures necessary to redress, and preferably to prevent, violations. Failure to
comply with the Court’s case law, even by states not party to the disputes in respect
of which this has been established, would run counter to the aforementioned
obligation to act effectively, promptly and in a preventative way in order to secure
to everyone the rights and freedoms of the Convention.
Ultimately, the direct and erga omnes effect of the Court’s judgments also derives
from the inclusion of the Convention among the principles of general international
law, which are accepted as an integral part of the domestic legal orders. Moreover,
human rights build a continuum between international and national legal systems,
which interfere with each other, since human rights are not a subject ‘essentially
within the domestic jurisdiction’ of states, as provided for by Article 2 (7) of the
United Nations Charter. In a context of pluralist and interdependent international and
national legal orders, human rights are a condition sine qua non of both. Hence, the
11
Ibid, para 26.
principle of sovereignty does not limit the effective and practical impact of the
Convention on domestic legal orders.
The development of the Court’s case law in the light of the above-mentioned
principles, and especially of the progressive, developmental Karner principle, cul-
minated in the recognition of the Convention as a ‘constitutional instrument of
European public order’12 with ‘peremptory character’13 and therefore of the Court
as ‘Europe’s Constitutional Court’.14 Hence, all bodies and representatives of any
public authority of the respondent state, at all levels of its organisation (national,
federal, regional or local), are directly bound by the Court’s judgments, and therefore
to use the phrase coined by the Brighton Declaration, ‘all laws and policies should be
formulated, and all state officials should discharge their responsibilities, in a way that
gives full effect to the Convention’.15 In this context, the Court being tasked with the
power to interpret and apply the Convention through final and binding judgments
(Article 19 ECHR), the direct and erga omnes effect of the Court’s judgments may
not be restricted, in any way, by the States Parties. Only the Court itself can
determine a restriction of the effects of its judgments.
In principle, member states have the choice of the means to be used in their
domestic legal system to perform their obligation under Article 46 ECHR. This is
one of the most important practical consequences of the principle of subsidiarity. But
this freedom is not unconditional. The choice of means must be compatible with the
conclusions, that is, the operative part and the substance (ratio decidendi) of the
reasoning set out in the Court’s judgment. Furthermore, a State Party to a treaty may
not invoke the provisions of its internal law as justification for its failure to perform
the said treaty, nor may a state responsible for an internationally wrongful act rely on
the provisions of its internal law as justification for failure to comply with its
obligations.
The Court’s initial policy of refraining from issuing consequential orders has
given way to a broad policy of directions to take specific remedial measures and even
orders to the respondent states regarding how to execute the judgment. The Court’s
judgments are no longer purely declaratory but prescriptive. Where required by the
specific circumstances of the case, the Court has assumed competence to determine
the forms of execution of its judgment, through both concrete and general measures
to be implemented by the legislature, the government/administration or the judiciary
of the respondent state.
The obligation to execute a judgment may include a concrete positive measure,
such as to return confiscated land to the applicant, to release the applicant immedi-
ately, to organise a new trial or reopen the domestic proceedings, to secure effective
12
ECtHR, Loizidou v Cyprus (preliminary objections), Series A 310 (1995), para 75.
13
ECtHR, Bosphorus v Ireland, Reports 2005-VI, para 154.
14
Ryssdal (1993), p. 20; Wildhaber (2002), p. 1.
15
High Level Conference on the Future of the European Court of Human Rights, Declaration of
19 and 20 Apr 2012, A. 7, http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_
ENG.pdf. Accessed 9 Jan 2018.
contact between the applicant and his daughter at a time that is compatible with the
applicant’s work schedule and on suitable premises or to reduce the numbers of
prisoners in a prison, or even a concrete negative measure, such as not to claim back
the compensation paid following an expropriation at the national level.
In general, there is an obligation to put in place a system that allows the
investigation, prosecution and, if warranted, punishment of offenders.16 For exam-
ple, the Court has already considered that rape,17 forced labour,18 willful attack on
the physical integrity of a person,19 human trafficking20 and the disclosure of certain
confidential items of information21 must be criminalised,22 but negligent violations
of the right to life and physical integrity must not.23 With regard to children, the
Court has established the principle that any willful offence against the physical and
16
ECtHR, Mocanu v Romania, judgment of 17 Sept 2014, nos 10865/09, 45886/07 and 32431/08,
para 321; for the American and African systems, see Cerna, State Obligations in the Inter-American
System, and Jansen Reventlow and Curling, State Obligations in the African System, both in this
Volume, respectively.
17
See ECtHR, X and Y v The Netherlands, Series A 91 (1985), para 27, and M.C. v Bulgaria,
Reports 2003-XII, paras 50, 166.
18
ECtHR, Siliadin v France, Reports 2005-VII, para 112, and C.N. and V. v France, judgment of
11 Oct 2012, No 67724/09, paras 105–108.
19
ECtHR, Sandra Janković v Croatia, judgment of 5 Mar 2009, No 38478/05, para 36.
20
ECtHR, Rantsev v Cyprus and Russia, Reports 2010-I, paras 284 and 288.
21
ECtHR, Stoll v Switzerland (GC), Reports 2007-V, para 155.
22
The Court not only reviews the political decision not to criminalise certain conduct, but also the
excessive or disproportionate criminalisation of certain conduct, such as in ECtHR, Dudgeon v
United Kingdom, Series 45 (1983), para 60; Norris v Ireland, Series A 142 (1988), para 46;
Modinos v Cyprus, Series A 259 (1993), para 24; A.D.T. v United Kingdom, Reports 2000-IX,
para 38 (private homosexual acts between consenting adults); S.L. v Austria, Reports 2003-I, para
44 (homosexual acts of adult men with consenting adolescents between 14 and 18 years of age);
Vajnai v Hungary, Reports 2008-IV, paras 54–56 (wearing of red star); Altug Taner Akçam v
Turkey, judgment of 25 Oct 2011, No 27520/07, paras 93–95 (insulting Turkishness); Mosley v the
United Kingdom, judgment of 10 May 2011, No 48009/08, para 129 (non-compliance with
pre-notification requirement to publish news on private life); Akgöl and Göl v Turkey, judgment
of 17 May 2011, nos 28495/06 and 28516/06, para 43 (participation in an unlawful but peaceful
demonstration); Wizerkaniuk v Poland, judgment of 5 July 2011, No 18990/05, paras 82–83 and
86 (publication of unauthorised verbatim quotations); Mallah v France, judgment of 10 Nov 2011,
No 29681/08, para 40 (assisting illegal entry, circulation or stay of foreigner in the national
territory); Gillberg v Sweden (GC), judgment of 3 Apr 2012, No 41723/06, paras 68–71 (misuse
of office due to refusal of access to research material owned by a public university); Stübing v
Germany, judgment of 12 Apr 2012, No 43547/08, paras 63–65 (incest); Şükran Aydın and Others v
Turkey, judgment of 22 Jan 2013, Nos 49197/06, 23196/07, 50242/08, 60912/08 and 14871/09,
para 55 (use of mother tongue in political campaign).
23
See ECtHR, Calvelli and Ciglio v Italy (GC), Reports 2002-I, para 51; Vo v France (GC), Reports
2004-VIII, paras 90–94; Dodov v Bulgaria, judgment of 17 Jan 2008, No 59548/00, paras 17, 87;
Branko Tomašić and Others v Croatia, judgment of 15 Jan 2009, No 46598/06, para 64; Maiorano
and Others v Italy, judgment of 15 Dec 2009, No 28634/06, para 128.
moral welfare of children should be criminalised24 and punished with a deterrent

penalty.25
The obligation to prevent a repetition of the violation may require the adoption of
general measures where there is no domestic legal framework compatible with the
Convention or the existing domestic legal framework or administrative practice is
contrary to the Convention. Systemic problems call for general solutions through
‘pilot-judgment’ procedures and ‘Article 46 judgments’ (or so-called ‘quasi-pilot
judgments’). In some cases, the national constitutions may have to be amended since
the Convention ‘makes no distinction as to the type of rule or measure concerned and
does not exclude any part of the member states’ “jurisdiction” from scrutiny under
the Convention’.
The Court’s judgment must be executed by the judiciary, even before the
completion of the domestic legislative reform, since ‘the freedom of choice allowed
to a state as to the means of fulfilling its obligation under Article 53 cannot allow it to
suspend the application of the Convention’.26 In practice, national courts have to
refuse to apply the national law or adopt a new interpretation of the national law in
order to comply with the Court’s judgments and the international obligation not to
repeat a Convention violation.
In view of the increasingly prescriptive nature of the Court’s judgments, and
consequently of the growing dual facet of the States Parties’ obligation to comply
with the Court’s judgments as an obligation of result and means, the Court’s control
of the application of Article 46 ECHR is becoming crucial. In Olsson v Sweden
(No 2),27 the Court was faced with the persistent failure by the national authorities to
allow contacts between the applicants and their children in spite of a previous
judgment of the Court in favour of the applicants. The Court held that ‘the facts
and circumstances underlying the applicants’ complaint under Article 53 [. . .] are
essentially the same as those which were considered above under Article 8, in
respect of which no violation was found’ and concluded that ‘no separate issue
arises under Article 53’.28 Thus, the Court left open the possibility that there might
be circumstances under which a complaint under former Article 53 (now Article
46 [1]) of the Convention could be examined. The answer to the question left open
by Olsson (No 2) calls for a teleological interpretation of the Convention.
24
ECtHR, K.U. v Finland, Reports 2008-V, para 46. The case dealt with a minor of 12 years of age
who was the subject of an unauthorised advertisement of a sexual nature on an Internet dating site.
In C.A.S. and C.S. v Romania (No 26692/05, 20 Mar 2012), the Court clearly recognised that states
had an obligation under Arts 3 and 8 ECHR to ensure the effective criminal investigation of cases
involving violence against children, referring to the international obligations the respondent state
had entered into for the protection of children against any form of abuse.
25
See ECtHR, Okkalı v Turkey, Reports 2006-XII, para 73, and Darraj v France, judgment of 4 Nov
2010, No 34588/07, para 49.
26
ECtHR, Vermeire v Belgium, Series A 214-C (1991), para 26.
27
ECtHR, Olsson v Sweden (No 2), Series A 250 (1992).
28
Ibid, para 94.
Human rights treaties should be interpreted in a way that is most protective of the
rights and freedoms that they foresee. This principle was stated in Wemhoff v
Germany,29 where the Court affirmed that it was necessary ‘to seek the interpretation
that is most appropriate in order to realize the aim and achieve the object of the
treaty, not that which would restrict to the greatest possible degree the obligations
undertaken by the Parties’.30 This is also in accordance with Article 31 VCLT, which
provides for a teleological interpretation of international law. In the light of this
principle, it is evident that the jurisdictional nature of the Court would be danger-
ously at risk if the Court did not react to infringements of its judgments and, even
worse, if the final word on the execution of its judgments were de facto dependent on
the will of the first addressees of the judgments themselves: the governments. The
entire system of human rights protection would be sacrificed on the altar of politics,
the Court’s judgments being downgraded to provisional statements on disputes in
need of a subsequent political satisfecit to be effective. The applicant’s victory at the
Human Rights Building would be a Pyrrhic one, the respondent state having a
second chance to fight the case in the Palais de l’Europe. Human rights would
then be a deceptive mirage in Europe. To ensure that human rights do not become a
mere mirage, the most protective interpretation of the Convention’s rights and
freedoms is required: to guarantee real, not virtual, independence of the judicial
power and an effet utile, not apparent, of the rights and freedoms of the Convention,
it is indispensable that the Court be vested with the implied power to oversee the
execution of its judgments and, if need be, to contradict a decision of the Committee
of Ministers in this regard.
3 The Court’s Implied Powers and Protocol

No. 14 to the ECHR
International law and practice have long acknowledged the ‘implied powers doc-
trine’, according to which international organisations not only have the powers that
are explicitly foreseen in their founding texts but also such powers as are necessary
for the most efficient exercise of their tasks. Applied to the present case, this doctrine
requires that international tribunals and adjudication bodies be implicitly vested with
the power to supervise the execution of their judgments when this is necessary for
the discharge of their functions. In the European legal framework of human rights,
the Court’s power to supervise the execution of its judgments is implicit in its duty to
ensure compliance with States Parties’ obligations under the Convention and its
power to decide any question regarding the application of the Convention (Article
19 in conjunction with Article 32).
29
ECtHR, Wemhoff v Germany, Series A 7 (1968).
30
Ibid, para 8.
Protocol No. 1431 was a step in the right direction but still did not fully enshrine
this implied power. The Protocol provides for an enlargement of the Court’s power
to control the execution phase: the Court can interpret its own judgments and decide
that a respondent state has not complied with them when problems arise during the
execution process.
When considering requests for interpretation of its judgments, the Court is
exercising inherent jurisdiction: it goes no further than to clarify the meaning and
scope that it intended to give to a previous decision deriving from its own deliber-
ations, specifying, if need be, what it thereby decided with binding force.
In infringement proceedings, the Court assesses compliance by a State Party with
its obligations under Article 46 ECHR, without reopening the question of the
violation that gave rise to the original judgment. In spirit, the new infringement
proceedings include both inactivity on the part of the respondent state, which has
done nothing to execute a court’s judgment, and incomplete or even inadequate
execution by the respondent state. The rationale is the same: the Convention requires
full execution of the Court’s judgments, and partial or inadequate compliance with
the Court’s judgment can be as harmful as no compliance at all.
The explicit recognition in Protocol No. 14 that these important powers vested in
the Court does not conceal the fact that they depend on a request by the Committee
of Ministers, that is, by the States Parties. If the same powers to interpret the Court’s
judgments and determine that the respondent state had not complied with them were
not conferred on the Court when the initiative belonged to the injured party, not only
would the injured party be placed in a position of inferiority with regard to the
respondent government, but, worse still, the respondent state could ‘block’ the
effects of the Court’s judgments at the level of the Committee of Ministers, the
Court being powerless to oppose any political ‘blockage’ during the execution
phase. The qualified majority of two thirds of the governments’ representatives
entitled to sit on the Committee required to launch interpretation and infringement
proceedings; the limited fact-finding and data-collection powers of the Committee,
namely the lack of on-site visits, hearings of witnesses and other means of assessing
the real effects of norms enacted and measures taken; and especially the imbalance
between the position of the injured party and the government’s position in the
execution proceedings before the Committee aggravate this risk. In fact, the injured
party does not have formal standing in the execution proceedings before the Com-
mittee of Ministers, although it can address communications to the Committee. Any
case may be examined under the enhanced supervision procedure upon the request
of a State Party or the Secretariat but not of the injured party. The injured party may
not express his or her views on general measures. In addition, in a referral to the
Court for the interpretation of a judgment, the Committee of Ministers reflects ‘in
particular’ the views of the State Party concerned but not those of the injured party.
In infringement proceedings, the Committee of Ministers’ referral decision to the
31
Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, amending the control system of the Convention, 13 May 2004, ETS No. 194.
Court reflects only the views of the State Party concerned, not those of the injured
party. The one-sidedness of these legal avenues reveals an imbalance between the
respondent State Party and the injured party, which weakens the intrinsic fairness of
these proceedings. In the event of failure of the aforementioned supervisory mech-
anism of the Committee of Ministers, the injured party’s only effective legal avenue
by which to address an incorrect interpretation of or non-compliance with a court’s
judgment remains access to the court itself.
4 Joint Powers of the ECtHR and the Committee

of Ministers to Supervise the Execution
The foregoing arguments, once assembled, lead to the following conclusive asser-
tion: the Court has joint competence with the Committee of Ministers to supervise
the execution of its own judgments, and the exercise of the Court’s competence
prevails over a contrary decision of the Committee of Ministers. Faced with some
regrettable cases of clear non-compliance with its judgments, the Court has affirmed
its power to censure such non-compliance. It could not have done otherwise. This
was the only way to protect the Court’s authority and the Convention’s legal force.
The danger of denial of the authority of the Court’s judgments and the concomitant
deprivation of the legal force of the Convention were wisely avoided by the
enlightening judgment in the case of Verein gegen Tierfabriken Schweiz (VgT) v
Switzerland (No 2).32 The cornerstone of the Grand Chamber’s judgment was the
Court’s assumption of its inherent (implied) competence to examine the domestic
authorities’ conduct after the first Verein gegen Tierfabriken judgment,33 with the
crucial argument that ‘[i]f the Court were unable to examine it, it would escape all
scrutiny under the Convention’.34 Thus, the rationale of Verein gegen Tierfabriken
Schweiz (VgT) (No 2) covers not only the actions of national authorities that conflict
with the Court’s judgment but a fortiori also omissions by national authorities where
they are required by a judgment of the Court to take measures to terminate a violation
of the Convention. The importance of this position is further enhanced by the fact
that the Court did not refrain from contradicting the Committee of Ministers’
Resolution ResDH(2003)125 terminating its supervision of the execution of the
first Verein gegen Tierfabriken judgment.
With a firm statement of the Court’s power to oversee the infringement of Article
46 ECHR, Emre v Switzerland (No 2)35 applied the crowning touch to that approach.
The respondent state had expelled the applicant for an indeterminate period of time,
which the Court found disproportionate. The Federal Court maintained the expulsion
32
ECtHR, VgT Verein gegen Tierfabriken v Switzerland (No 2), Reports 2009-IV.
33
ECtHR, VgT Verein gegen Tierfabriken v Switzerland (No 1), Reports 2001-VI.
34
ECtHR, VgT Verein gegen Tierfabriken v Switzerland (No 2), Reports 2009-IV, para 66.
35
ECtHR, Emre v Switzerland (No 2), judgment of 11 Oct 2011, No 5056/10.
order but reduced the period to 10 years. The question put by the Court in paragraph
68 of Emre (No 2)—namely whether by reducing the period of the applicant’s
expulsion to 10 years the Federal Court had complied with the conclusions and
spirit of the Court’s previous judgment of 2008—signals the intention of the Court to
treat the second complaint as true infringement proceedings. In the crystal-clear and
decisive wording of paragraph 75, the Court censured the respondent state’s conduct
after the first Emre judgment.36 Furthermore, the Court affirmed in straightforward
terms what would have been the ‘most natural execution’ of the first Emre judgment:
nullification with ‘immediate effect’ of the impugned measure of expulsion from the
national territory. In this context, the finding of a violation of Article 46 was a
logically necessary consequence of the reasoning.
5 Conclusions
In sum, the Court not only assists the execution process in a number of ways, for
example by itself providing guidance as to the proper execution measures; it also
bears the ultimate responsibility for the long-term effectiveness of the entire system
of protection of human rights in Europe by overseeing the compliance of the
execution process with Article 46. These powers can be exercised in respect of an
applicant’s complaint if and when the Committee of Ministers’ supervision cannot
ensure full compliance with the Court’s judgment by the respondent state. If the
Court is not bound by a decision of the Committee to close the execution pro-
ceedings, a fortiori it is not estopped on grounds of lis pendens from examining the
issue of execution of judgments. Hence, either states comply fully and in good faith
with their implementation obligation, with the above-mentioned width, or they will
have to face the Committee of Ministers’ legal action before the Court and, in default
of this action, the Court’s own legal reaction on the victim’s motion. Implementation
of the European Court’s judgments has thus lost its primitive diplomatic or political
touch in order to become a fully fledged judicialised matter.
References
Ryssdal R (1993) Vers une Cour constitutionnelle européenne. In: Academy of European Law
(ed) Collected Courses of The Academy of European Law II – The Protection of Human Rights
in Europe. Springer, Heidelberg, pp 3–20
Wildhaber L (2002) Un avenir constitutionnel pour la Cour européenne des droits de l’homme?
Revue universelle des droits de l’homme 14:1–6
36
ECtHR, Emre v Switzerland (No 1), judgment of 22 May 2008, No 42034/04.
State Obligations in the Inter-American
System
Requirements for the Implementation of Human Rights
by Domestic Courts in the Inter-American System
Christina Cerna
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
2 The First Judgment of the Inter-American Court: Velasquez Rodriguez v Honduras (July
29, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
2.1 To Respect and Ensure: The State’s Obligation to Prevent, Investigate, Prosecute,
Punish, and Repair Human Rights Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
2.2 The Obligation to Comply with the Inter-American Court’s Judgments . . . . . . . . . . . . 298
2.3 Obligations of States Parties to the American Convention with Regard to Situations
of Impunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
2.3.1 Amnesty Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
2.3.2 Evolution of the “Control of Conventionality” Doctrine . . . . . . . . . . . . . . . . . . . . . 305
3 Conclusion and Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
1 Introduction
This chapter discusses the obligations of states in the inter-American system. This
includes a discussion of the practices of the Inter-American Commission and Court
in order to highlight and clarify developments in their jurisprudence as regards the
obligations of States Parties under the American Convention of Human Rights
(American Convention or ACHR). In particular, it discusses the obligation to take
measures against impunity.
Currently, there are three regional and two subregional systems with human rights
bodies that monitor compliance with a comprehensive general international human
C. Cerna (*)
Georgetown University Law Center, Washington, DC, USA
e-mail: ccerna@comcast.net

https://doi.org/10.1007/978-3-319-94848-5_11
292 C. Cerna
rights instrument.1 The inter-American system is the oldest regional system, created
in 1890. It was renamed the Organization of American States (OAS) in 1948, which
replaced the earlier Pan American Union, following the creation of the United
Nations. The headquarters of the OAS are in Washington, DC. The OAS comprises
35 Member States and a population of approximately 970 million people.2
The inter-American system for the promotion and protection of human rights
consists of an Inter-American Commission on Human Rights (Inter-American Com-
mission, IACHR) and an Inter-American Court (Inter-American Court, IACtHR) of
Human Rights. The Inter-American Commission is based in Washington, DC, and
the Inter-American Court has its seat in San Jose, Costa Rica. The seven members of
the Commission are elected by all the Member States of the OAS, whereas the seven
judges of the Court are elected by the 23 States Parties to the American Convention
of Human Rights.3
Unlike the European system, where today membership in the Council of Europe
requires the state seeking admission to become a party to the European Convention
on Human Rights (ECHR), to accept the right of individual petition, and to recognize
the compulsory jurisdiction of the European Court of Human Rights, admission to
membership in the OAS includes no such human rights requirement. Consequently,
in the inter-American system, the Member States are permitted to assume three
different levels of obligations. The Inter-American Commission applies two instru-
ments to the OAS Member States: (1) the American Convention with regard to the
23 States Parties to the Convention and (2) the American Declaration of the Rights
and Duties of Man (American Declaration), with regard to the 12 states that are not
parties to the American Convention.4 In addition, a third level of obligations exists
1
These are the Council of Europe, the Organization of American States, the African Union and the
League of Arab States and the Association of Southeast Asian Nations (ASEAN). Thus far, only the
three regional bodies have courts that issue legally binding judgments on individual complaints.
2
The 35 Member States of the OAS include all independent States in the Americas. They are:
Antigua and Barbuda, Argentina, The Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile,
Colombia, Costa Rica, Cuba*, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada,
Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint
Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago,
United States of America, Uruguay and Venezuela. The Cuban government was suspended from
participation in the OAS in 1962 because Fidel Castro’s declaration that he was a Marxist-Leninist
was deemed to have violated the democratic principles of the OAS. Since the OAS Charter did not
provide for the expulsion of a member state, Cuba was “suspended” from participation until 2009
when the suspension was lifted. *Cuba, however, to date (1 Nov 2016) has expressed no interest in
rejoining the OAS.
3
The 23 States Parties to the American Convention are: Argentina, Barbados, Bolivia, Brazil, Chile,
Colombia, Costa Rica, Dominica, the Dominican Republic, Ecuador, El Salvador, Grenada,
Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname
and Uruguay.
4
The 12 States that are not parties to the American Convention and are subject to the American
Declaration are: Antigua and Barbuda, Bahamas, Belize, Canada, Cuba, Guyana, St Lucia, St
Vincent and the Grenadines, St Kitts and Nevis, Trinidad and Tobago, the United States and
Venezuela. Both Trinidad and Tobago and Venezuela formerly were States Parties to the American
State Obligations in the Inter-American System 293
for the 20 States Parties to the American Convention that have taken the extra step of
accepting the compulsory jurisdiction of the Inter-American Court.5
Since most of the 12 nonparties to the American Convention are English-
speaking states (the US, Canada, and much of the English-speaking Caribbean),
the Inter-American Court has evolved into a Latin American, rather than an inter-
American, institution.
The Inter-American Commission can decide that a Member State has violated
either the American Declaration or the American Convention.6 Pursuant to Article
61 (1) ACHR, only the Inter-American Commission or a State Party (which rarely
happens) may submit a case to the Court. In practice, since States Parties to the
American Convention rarely submit a case to the Court, the Inter-American Com-
mission, in practice, effectively controls its caseload.7 The Commission can only
submit cases to the Court against states that are party to the Convention and that have
accepted the Court’s contentious jurisdiction. The practice has evolved that the
Commission submits all cases to the Court, which it has decided and where the
state has failed to comply with its recommendations. This practice has now been
explicitly codified in Article 45 (1) of the Commission’s Rules of Procedure. Cases
against states that have not become parties to the Convention end with the Commis-
sion. The Commission alone decides cases against the United States, pursuant to the
American Declaration, since the US is not a party to the American Convention.
In the Velasquez Rodriguez case, the Inter-American Court set forth a state’s
obligations as a party to the American Convention on Human Rights. The state’s
obligations to prevent, investigate, punish, and repair human rights violations were
all clearly defined in this seminal first judgment.
Convention, but denounced the Convention and now are subject to the default instrument, the
American Declaration.
5
The three States Parties to the American Convention that have not accepted the compulsory
jurisdiction of the Inter-American Court, pursuant to Art 62 of the Convention, are: Dominica,
Grenada and Jamaica.
6
In some cases the Commission has actually found violations of both instruments, which this author
considers an aberration, but this is subject for another article. For example, Report No 24/98, case
11.287, Joao Canuto de Oliveira, Brazil, 7 Apr 1998; Report No 9/00, case 11.598, Alonso Eugenio
da Silva, Brazil, 24 Feb 2000; Report No 36/00, case 11.101, Caloto Massacre, Colombia, 13 Apr
2000; Report No 54/01, case 12.051, Maria da Penha, Brazil, 16 Apr 2001; Report No 77/02, case
11.506, Waldemar Pinheiro & Jose Dos Santos, Paraguay, 27 Dec 2002. See also IACtHR,
Arguelles et al v Argentina, judgment of 20 Nov 2014. In Arguelles et al., the Commission
presented a case where it found violations of both the American Declaration and the American
Convention and the Court noted that it was only competent to consider violations of the American
Convention. Despite finding violations of the American Declaration, the Commission did not
provide for any follow-up in terms of reparations for the separate violations declared.
7
The most famous case submitted by a State Party to the Court was: IACtHR, In the Matter of
Viviana Gallardo et al. The Court adopted its Resolution in this matter on 30 June 1983.
294 C. Cerna
2 The First Judgment of the Inter-American Court:

Velasquez Rodriguez v Honduras (July 29, 1988)
The Velasquez Rodriguez v Honduras case was the first judgment issued by the
Inter-American Court and involved a forced disappearance of a civilian by members
of the military.8 The difficulty of proving a “disappearance,” which by its very nature
provides scant evidence for substantiating a violation, signals what an extraordinary
first choice this was to present to the newly established Court. The Commission
argued that during the period in question, the armed forces of Honduras had engaged
in a practice of disappearances, which the state did not investigate. This acquies-
cence in the practice of forced disappearance, resulting from the failure to investi-
gate, substantiated the violation. The Commission was able to link the case of
Manfredo Velasquez to this pattern of forced disappearances.
Manfredo Velasquez was a 35-year-old graduate student, married with four
children, and the leader of a socialist student union. On September 12, 1981, he
was abducted by seven heavily armed men in the parking lot of a movie theater in
downtown Tegucigalpa, Honduras. Two of the abductors were identified as officers
in the Honduran Army. Manfredo was shoved into an unmarked white Ford and
never seen again. Pursuant to sworn testimony, he was taken to a clandestine
detention center, tortured, and killed.
His family filed a writ of habeas corpus with a domestic court to no avail. A
detainee who was in detention with Manfredo Velasquez testified that he had been
killed on the orders of Col. Lopez Grijalba, the Director of Military Intelligence
(DNI). When the family sought information about Manfredo’s whereabouts, they
were told that he was not in detention. Col. Lopez Grijalba promised to investigate,
but no investigation was ever carried out.
2.1 To Respect and Ensure: The State’s Obligation

to Prevent, Investigate, Prosecute, Punish, and Repair
Human Rights Violations
The Inter-American Court, in Velasquez Rodriguez, interpreted the emblematic

obligations “to respect and ensure” set forth in Article 1 (1) ACHR to mean that
states must “prevent, investigate and punish” any violation of the rights set forth in
the Convention. Article 1 (1) ACHR, the Court affirmed, “[. . .] charges the States
Parties with the fundamental duty to respect and guarantee the rights recognized in
the Convention. Any impairment of those rights which can be attributed under the
rules of international law to the action or omission of any public authority constitutes
an act imputable to the state, which assumes responsibility in the terms provided by
8
IACtHR, Velasquez Rodriguez v Honduras, judgment of 29 July 1988.
the Convention.”9 Article 1 (1), the Inter-American Court emphasized, “specifies the
obligation assumed by the States Parties in relation to each of the rights protected.
Each claim alleging that one of those rights has been infringed necessarily implies
that Article 1 (1) ACHR has also been violated.”10
This is an unexpected interpretation as compared with the practices of other
international human rights bodies. The Inter-American Court held that Honduras
had violated Manfredo Velazquez’s rights to liberty (Article 7), humane treatment
(Article 5), and life (Article 4), all read in conjunction with the obligation assumed
by the States Parties under Article 1 (1) ACHR. Other human rights treaties, such as
the ECHR and the International Covenant on Civil and Political Rights, have pro-
visions similar to Article 1 (1) ACHR: the state undertakes to respect and ensure to
all individuals the rights in the Covenant without discrimination. Yet when the UN
Human Rights Committee takes a decision on a substantive violation of the Cove-
nant, it does not tie it to a violation of Article 2 (1), the general obligation to respect
and ensure all rights. Similarly, the European Court of Human Rights does not tie
substantive violations of the European Convention to Article 1.11 The Court noted
that this was not an interpretation alleged by the Commission but that it had created
this general violation on its own.12
The Inter-American Court interpreted “to respect” the rights and freedoms in
Article 1(1) of the American Convention as a limitation on public authority. Human
rights “are inherent attributes of human dignity” and therefore “superior to the power
of the state.”13 Citing one of its earlier Advisory Opinions, the Inter-American Court
noted: “The protection of human rights (. . .) is in effect based on the affirmation of
the existence of certain inviolable attributes of the individual that cannot be legiti-
mately restricted through the exercise of governmental power. These are individual
domains that are beyond the reach of the State or to which the State has but limited
access. Thus, the protection of human rights must necessarily comprise the concept
of the restriction of the exercise of state power.”14
The second obligation of the States Parties, the Inter-American Court stated, was
to “ensure” the free and full exercise of the rights recognized by the Convention:
9
Ibid, para 164. Art 1 (1) provides: “The States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social origin, economic status,
birth, or any other social condition.”
10
Ibid, para 162.
11
Art 1 ECHR provides: “The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this Convention.” See
Buergenthal (1981).
12
IACtHR, Velásquez Rodríguez, supra n 8, para 163.
13
Ibid, para 165.
14
Ibid. The citation is from advisory opinion OC-6 of 9 May 1986 (The Word “Laws” in Art 30 of
the American Convention on Human Rights).
296 C. Cerna
This obligation implies the duty of the States Parties to organize the governmental apparatus
and, in general, all the structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human rights. As a conse-
quence of this obligation, the States must prevent, investigate and punish any violation of the
rights recognized by the Convention and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting from the violation.15
The obligation to ensure the free and full exercise of human rights presupposes
the existence of an independent and effective legal system.16 According to Article
1 (1) ACHR, any exercise of public power that violates the human rights recognized
in the American Convention is illegal.17 This illegality is independent of domestic
law or any ultra vires actions of the state agent. The state is responsible under
international law for the acts and omissions of its agents, undertaken in their official
capacity, regardless of whether these acts and omissions violate internal law.18
Any violation of the Convention rights carried out by a state agent is imputable to
the state. An illegal act, which violates human rights and which is initially not
directly imputable to the state because it is the act of a private person or because
the perpetrator cannot or has not been identified, can lead to state responsibility. The
Inter-American Court reasoned that the state is responsible, not because of the act
itself but because of the lack of due diligence to prevent the violation or to respond to
it as required by the Convention.19
A violation can be established, the Inter-American Court continued, even if the
perpetrator is unknown. International responsibility for a violation of the American
Convention committed by a private person will be attributed to a state if the state
reasonably could have prevented the violation of the right recognized by the
Convention.20 What is decisive, it emphasized, is whether a violation of the rights
recognized by the Convention has occurred with the support or the acquiescence of
the government or whether the state has allowed the act to take place without taking
measures to prevent it or to punish those responsible. The Court’s task is to
determine whether the violation is the result of the state’s failure to fulfill its duty
to respect and guarantee rights, pursuant to Article 1 (1) ACHR.21
The state, the Inter-American Court emphasized, has a legal duty to take reason-
able steps to prevent human rights violations and to carry out a serious investigation
of violations committed within its jurisdiction, to identify those responsible, to
impose the appropriate punishment, and to ensure the victim adequate
compensation.22
15
Ibid, para 166.
16
Ibid, para 167.
17
Ibid, para 169.
18
Ibid, para 170.
19
Ibid, para 172.
20
Ibid, para 166.
21
Ibid, para 173.
22
Ibid, para 174.
The duty to prevent, the Inter-American Court elaborated, includes means “of a
legal, political, administrative and cultural nature that promote the protection of
human rights and ensure that any violations are considered and treated as illegal
acts,” which may lead to the punishment of the perpetrators and the obligation to
compensate the victim.23 While the state is obligated to prevent violations, the
existence of a violation does not prove the failure to take preventive measures.
However, an official practice of repression that carries out torture and assassination
with impunity “is itself a breach of the duty to prevent violations of the rights to life
and physical integrity,” even if the facts cannot be proven in a particular case.24
In the seminal Velasquez Rodriguez case, the Inter-American Court found that
Honduras had engaged in a repressive practice of forced disappearances and there-
fore concluded that (1) a practice of disappearance was carried out or tolerated by
Honduran officials between 1981 and 1984 and (2) the victim, Manfredo Velasquez,
disappeared at the hands of or with the acquiescence of governmental officials within
the framework of that practice, and (3) the Government of Honduras failed to
guarantee the human rights affected by that practice.25
Any detention of an individual by law enforcement personnel that is not carried
out pursuant to law is considered “arbitrary” and in violation of Article 7, the
deprivation of liberty provision of the American Convention. In addition, incom-
municado detention is considered a presumptive violation of the prohibition on cruel
and inhuman treatment set forth in Article 5 ACHR.26
The Inter-American Court noted that it was important to underline that although it
was never directly shown that Manfredo Velásquez was physically tortured, his
kidnapping and imprisonment by governmental agents were considered to constitute
a failure of Honduras to fulfill the duty imposed by the American Convention “to
ensure” the right to physical integrity. The guarantee of physical integrity, pursuant
to Article 5 ACHR, requires States Parties to take reasonable steps to prevent the
violation of the right protected.27
The Inter-American Court applied the same reasoning to the right to life set forth
in Article 4 ACHR. The context in which the disappearance of Manfredo Velásquez
occurred, the lack of knowledge 7 years later about his fate, and the failure of the
state to investigate the disappearance created a reasonable presumption that he had
been killed and were considered a failure of Honduras to prevent situations that
could result in the violation of rights.28
The state is obligated to investigate every violation of the rights protected by the
American Convention. If the violation goes unpunished and the victim’s enjoyment
of such rights is not restored, the state has failed to comply with its duty to ensure the
23
Ibid, para 175.
24
Ibid.
25
Ibid, para 148.
26
Ibid, paras 156 and 186.
27
Ibid, para 187.
28
Ibid, para 188.
298 C. Cerna
free and full exercise of these rights. The same is true, the Inter-American Court
added, when the state allows non-state actors to act freely and with impunity to the
detriment of the rights recognized by the Convention.29
The Inter-American Court concluded that persons who acted under cover of
public authority carried out the disappearance of Manfredo Velásquez.30 The acts
committed were crimes under domestic law, but there had been no domestic
investigation of allegations of a practice of disappearances or a determination of
whether Manfredo had been a victim of that practice. The only investigation carried
out by the government was conducted by the Armed Forces, the same body accused
of direct responsibility for the disappearances. The Inter-American Court questioned
whether such an investigation could be considered serious. The failure to investigate
led the Court to conclude that the Honduran authorities did not take effective action
to ensure respect for human rights within their jurisdiction as required by Article
1 (1) ACHR.31
2.2 The Obligation to Comply with the Inter-American

Court’s Judgments
Upon ratification or accession to the American Convention and acceptance of the

compulsory jurisdiction of the Inter-American Court, pursuant to Article
68 (1) ACHR, States Parties are obligated to comply with its judgments. Fundamen-
tal principles of treaty law, codified in the Vienna Convention on the Law of
Treaties, provide that treaties must be carried out (pacta sunt servanda) in good
faith, and the state cannot invoke its domestic law as a justification for the
nonperformance of a treaty.
Although the American Convention does not explicitly state that the judgments of
the Inter-American Court are legally binding, Article 68 provides that states shall
“undertake to comply” with the judgments of the Inter-American Court in those
cases to which they are parties. The Convention does not define the normative value
of a decision of the Inter-American Commission on a case, and, consequently,
Commission decisions are generally considered to have an inferior status, that is,
“recommendations” that should be complied with in good faith rather than legally
binding decisions, whereas judgments of the Inter-American Court are considered
legally binding.32
29
Ibid, para 176.
30
Ibid, para 182.
31
Ibid, para. 180.
32
Art 68 (1) ACHR provides: “1. The States Parties to the Convention undertake to comply with the
judgment of the Court in any case to which they are parties.” See also IACtHR, Case of Caballero-
Delgado and Santana v Colombia, (merits), judgment of 8 Dec 1995, para 67. [“In the Court’s
judgment, the term ‘recommendations’ used by the American Convention should be interpreted to
It should be noted in this context, however, that the Inter-American Commission

is not obligated to follow the jurisprudence of the Court. Both the Commission and
the Court are coequal organs of the inter-American system for the protection of
human rights, and the Commission frequently continues to argue interpretations of
articles of the Convention before the Court, which the Court has not yet accepted but
may eventually do so.33 As mentioned earlier, the Court has also taken the initiative
and found a violation of Article 1 (1) when declaring a violation of a substantive
conform to its ordinary meaning, in accordance with Art 31 (1) of the Vienna Convention on the
Law of Treaties. For that reason, a recommendation does not have the character of an obligatory
judicial decision for which the failure to comply would generate State responsibility. As there is no
evidence in the present Convention that the parties intended to give it a special meaning, Art
31 (4) of the Vienna Convention is not applicable. Consequently, the State does not incur
international responsibility by not complying with a recommendation which is not obligatory.”]
The Court revisited the question two years later in Loayza Tamayo v Peru, judgment of 17 Sept
1997, para 79 and gave a more generous interpretation of the State’s obligation vis-à-vis the
Commission’s recommendations. [“The Court has previously stated that, in accordance with the
stipulation regarding interpretation contained in Art 31 (1) of the Vienna Convention on the Law of
Treaties, the term ‘recommendations’ used by the American Convention, should be interpreted to
conform to its ordinary meaning (citation omitted)”]. [Ibid, para 80: “However, in accordance with
the principle of good faith, embodied in the aforesaid Art 31 (1) of the Vienna Convention, if a State
signs and ratifies an international treaty, especially one concerning human rights, such as the
American Convention, it has the obligation to make every effort to apply with the recommendations
of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal
organs of the Organization of American States, whose function is ‘to promote the observance and
defense of human rights’ in the hemisphere (OAS Charter, Arts 52 and 111).”]. [Ibid, para 81:
“Likewise, Article 33 of the American Convention states that the Inter-American Commission is, as
the Court, competent ‘with respect to matters relating to the fulfillment of the commitments made by
the State Parties’, which means that by ratifying said Convention, States Parties engage themselves
to apply the recommendations made by the Commission in its reports.”].
33
The Commission argued as early as the year 2000 that based on the 1992 UN Declaration on the
Protection of All Persons from Forced Disappearances a forced disappearance entailed a violation
of Art 3 ACHR (the right to be recognized as a person before the law). The Court rejected this
interpretation stating that Art 3 ACHR, as interpreted with the 1994 OAS Inter-American Conven-
tion on Forced Disappearance of Persons, does not “refer expressly to the juridicial personality
among the elements that typify the complex crime of forced disappearance of persons.” See
IACtHR, Bamaca Velasquez v Guatemala, judgment of 25 Nov 2000, paras 176–181. The Court
followed the Bamaca ruling in IACtHR, Ticona Estrada et al. v Bolivia, judgment of 27 Nov 2008,
paras 68–69, but then explicitly changed its jurisprudence in Anzualdo-Castro v Peru, judgment of
22 Sept 2009, paras 87–101 and especially para 90, and found a violation of Art 3. Ibid, para 90:
“Certainly, the case-law has developed the legal content of this right in those cases involving human
rights violations other than forced disappearance of people, given the fact that in most of these
cases, the Tribunal had believed that there were no facts leading to the conclusion that the State
violated Art 3 of the Convention. Nevertheless, given the multiple and complex nature of this
serious human right violation, the Tribunal reconsiders its previous position and deems it is
possible that, in this type of cases, the forced disappearance may entail a specific violation of said
right: despite the fact that the disappeared person can no longer exercise and enjoy other rights, and
eventually all the rights to which he or she is entitled, his or her disappearance is not only one of the
most serious forms of placing the person outside the protection of the law but it also entails to deny
that person’s existence and to place him or her in a kind of limbo or uncertain legal situation before
the society, the State and even the international community” (emphasis added).
300 C. Cerna
right, despite the fact that the Commission never suggested this interpretation.34 No
other international human rights body has followed this practice.
2.3 Obligations of States Parties to the American Convention

with Regard to Situations of Impunity
The Inter-American Court established in the Velasquez Rodriguez case that the state
was obligated to conduct an investigation of the violation of human rights protected
by the American Convention and that a failure to do so constituted a violation of
Article 1 (1) ACHR. Much of the jurisprudence of the inter-American system
involves human rights violations committed by public officials, primarily members
of the armed security forces. In many countries in the region, rather than an
independent civilian judiciary conducting the appropriate criminal investigation,
the armed forces are tasked with investigating themselves in courts of military
jurisdiction, which generally ends in a failure to investigate and in a situation of
impunity.35
The next sections will discuss amnesty laws on the basis of two important cases
and then the evolution of the “control of conventionality” doctrine, by reference to
three important cases.
2.3.1 Amnesty Laws
The seminal case of Velasquez Rodriguez involved a pattern of abuse in the form of
forced disappearance. In a number of countries in the region, the forcible disappear-
ance of opposition figures or insurgents led to a generalized and systematic attack on
additional sectors of the civilian population. The armed forces swept up individuals
who were sympathizers with the opposition figures or insurgents and others who
were simply swept up by mistake.
As a result of these “dirty wars,” the security forces perpetrated massive viola-
tions of human rights. In order to put an end to these situations of internal armed
conflict, amnesty laws were adopted to eliminate the investigations and prosecutions
of those responsible for the forcible disappearance or extrajudicial execution of
persons considered enemies of the state. In 1992, the Inter-American Commission
was faced, for the first time, with a case that raised the issue of the compatibility of an
34
See supra, Sect. 2.1.
35
For the Commission’s comments on impunity see e.g., “Report on the Situation of Human Rights
in Argentina” (1980), chapter VI; “Report on the Human Rights situation in Mexico” (1998),
chapter V; “Second Report on the Situation of Human Rights in Peru” (2000), chapter II, paras
205–230; “Truth, Justice and Reparation” Fourth Report on Human Rights Situation in Colombia
(2013), chapter 3.
amnesty law with a state’s obligations under the American Convention. The Inter-
American Commission issued two decisions regarding amnesty laws in Argentina
and Uruguay, declaring these laws incompatible with a state’s obligations to inves-
tigate, prosecute, and punish those responsible.36 Both Argentina and Uruguay
ignored the Inter-American Commission’s decisions at the time.
The practice of self-amnesty or self-judging has led to impunity, which fosters the
chronic repetition of human rights violations and renders defenseless the victims and
their families.37 The failure of military courts to investigate military personnel for
human rights violations generally following the adoption of self-amnesty laws has
resulted in de facto impunity in many countries, as well as the de jure impunity.38
Barrios Altos v Peru (March 14, 2001)
The Inter-American Court issued its first decision on the compatibility of amnesty
laws with a state’s obligations in the case Barrios Altos v Peru, in 2001.39 The case
involved the mistaken attack on November 3, 1991, by the Colina Group, a death
squad of the Peruvian Army, on a group of people celebrating in a neighborhood
known as Barrios Altos in Lima. The Colina Group intended to attack members of
the terrorist group, Sendero Luminoso, but mistakenly attacked the wrong people.
36
IACHR, Reports No 28/92, cases 10.147, 10.181, 10.240, 10.262, 10.309 y 10.311 (Argentina),
2 Oct 1997 and Reports No 29/92, cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 y
10.375 (Uruguay), 2 Oct 1997.
37
IACtHR, Barrios Altos v Peru, judgment of 14 Mar 2001, paras 41–44. Ibid, para 43: “The Court
considers that it should be emphasized that, in the light of the general obligations established in Arts
1 (1) and 2 of the American Convention, the States Parties are obliged to take all measures to ensure
that no one is deprived of judicial protection and the exercise of the right to a simple and effective
recourse, in the terms of Arts 8 and 25 of the Convention. Consequently, States Parties to the
Convention which adopt laws that have the opposite effect, such as self-amnesty laws, violate Arts
8 and 25, in relation to Arts 1 (1) and 2 of the Convention. Self-amnesty laws lead to the
defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible
with the aims and spirit of the Convention. This type of law precludes the identification of the
individuals who are responsible for human rights violations, because it obstructs the investigation
and access to justice and prevents the victims and their next of kin from knowing the truth and
receiving the corresponding reparation.”
38
IACtHR, Pueblo Bello Massacre v Colombia (merits, reparations and costs), judgment of 31 Jan
2006, paras. 189–193; IACtHR, Almonacid-Arellano et al v Chile (preliminary objections, merits,
reparations and costs), judgment of 26 Sept 2006, paras 130–133; IACtHR, The Rochela Massacre
v Colombia (merits, reparations, and costs), judgment of 11 May 2007, paras 199–204; IACtHR,
Radilla Pacheco v Mexico (preliminary objections, merits, reparations and costs), judgment of
23 Nov 2009, para 286; IACtHR, Tiu Tojin v Guatemala (merits, reparations and costs), judgment
of 26 Nov 2008, para 2; IACtHR, Rosendo-Cantu and others v Mexico (preliminary objections,
merits, reparations and costs), judgment of 31 Aug 2010, paras 162–163; IACtHR, Fernandez
Ortega et al v Mexico (preliminary objections, merits, reparations and costs), judgment of 30 Aug
2010, paras 178–179; IACtHR, Cabrera-Garcia and Montiel Flores v Mexico (preliminary objec-
tion, merits, reparations and costs), judgment of 26 Nov 2010, paras 194–201.
39
IACtHR, Barrios Altos v Peru, supra n 36.
302 C. Cerna
After firing at them indiscriminately for about 2 min, the attackers killed 15 people
and seriously injured another four. Although the events occurred in 1991, the judicial
authorities did not commence an investigation until 1995, when the prosecutor
accused five army officials of responsibility for the events, including several who
had been convicted in the La Cantuta case and were already in prison. As soon as the
civilian investigation began, the military courts filed a petition before the Supreme
Court claiming jurisdiction in the case, alleging that it related to military officers on
active duty. Before the Supreme Court could take a decision on the matter, the
Peruvian Congress adopted Amnesty Law 26479, which exonerated from responsi-
bility members of the army, the police, and also civilians who had violated human
rights from 1980 to 1995. Judge Antonia Saquicuray, the civilian court judge,
decided that the amnesty law was not applicable to her case since it violated
constitutional guarantees and international obligations that the American Conven-
tion imposed on Peru. Judge Saquicuray’s refusal to apply that amnesty law led the
Peruvian Congress to adopt a second amnesty law, Law No. 26492, which declared
that the amnesty could not be reviewed by a judicial instance and that its application
was obligatory.
In Barrios Altos, the Inter-American Court held all amnesty provisions incom-
patible with the American Convention because they prevent the investigation and
punishment of those responsible for serious human rights violations. These laws also
violate non-derogable rights recognized in international human rights law. The Inter-
American Court determined that not only the application of the amnesty law but also
the mere existence (i.e., promulgation) of the law constituted a violation of the
American Convention.40
In outlining the scope of Article 2 ACHR, the Inter-American Court determined
that a state was required to do two things: (1) it was required to review its legislation
to eliminate whatever violated the guarantees of the Convention, and (2) at the same
time it was required to adopt and implement legislation and rules that lead to
effective compliance with the guarantees of the Convention. This early interpretation
of a state’s obligations under Article 2 eventually became the “control of conven-
tionality” doctrine of the Court.41
In earlier cases, the Inter-American Court had declared that the mere enactment of
a law that conflicted with the obligations undertaken by a State Party to the American
Convention constituted a violation of the Convention. For example, in the case of
Lori Berenson, an American woman tried and convicted of “treason against the
fatherland” by military courts in Peru, the Inter-American Court found that Peru, by
40
IACtHR, Barrios Altos v Peru (interpretation of the judgment of the merits), judgment of 3 Sept
2001, para 18: “Enactment of a law that is manifestly incompatible with the obligations undertaken
by a State Party to the Convention is per se a violation of the Convention for which the State incurs
international responsibility. The Court therefore considers that given the nature of the violation that
amnesty laws No. 26479 and No. 26492 constitute, the effects of the decision in the judgment on the
merits of the Barrios Altos Cases are general in nature, and the question put to the Court in the
Commission’s request for interpretation must be so answered.”
41
Cf infra, Sect. 2.3.2 of this chapter.
adopting laws that violated the American Convention, had failed to comply with its
obligations under Article 2. The Court also reiterated that the mere existence of a
norm that violated the American Convention constituted a violation of Article 2:
The Court has indicated that the States Parties to the Convention may not enact measures that
violate the rights and freedoms it recognizes. This Court has also affirmed that “a norm may
violate per se Article 2 of the Convention, whether or not it has been enforced in [a] specific
case.”42
Other countries in the region repealed laws that violated their obligations under
the American Convention. Argentina, for example, in 1994, reformed its Constitu-
tion and attributed constitutional status to international human rights treaties. Con-
sequently, on June 14, 2005, the Argentine Supreme Court, basing itself on the
decision of the Inter-American Court in the Barrios Altos case, held the two
Argentine amnesty laws, known as the “Full Stop” law and the “Due Obedience”
laws, unconstitutional and made reference to the Commission’s earlier 1992 decision
declaring these laws incompatible with Argentina’s obligations under the American
Convention.
The Inter-American Court’s determination that the mere existence of a law could
violate the American Convention, even in cases where it was not applied, was again
brought to the Court following the judgment in Barrios Altos. Five years after the
Barrios Altos judgment, the Inter-American Court revisited the issue of the contin-
ued existence of the Peruvian amnesty laws in its judgment in the La Cantuta case,
provoked by Peru’s failure to repeal the amnesty laws in compliance with the Court’s
judgment in Barrios Altos.43
La Cantuta v Peru Case (November 29, 2006)
In La Cantuta, the Inter-American Court was required to determine whether the

continued existence of the Peruvian amnesty laws constituted a violation of the
American Convention. The facts of the case involved the alleged kidnapping and
execution or disappearance of a university professor and nine students in the
predawn hours of July 18, 1992, by members of the Peruvian Army. Their detention,
the Court stated, was a clear abuse of power. It was not ordered by a competent
authority, and its aim was not to bring these people before a judge but to execute
them or force their disappearance.44 The Court held that the state’s international
responsibility is aggravated if the disappearance is part of a systematic pattern or
practice, applied or tolerated by the state, for it constitutes a crime against human-
ity.45 The duty to investigate becomes more compelling in view of the seriousness of
42
IACtHR, Lori Berenson-Mejia v Peru (merits, reparations and costs), judgment of 25 Nov 2004,
para 221.
43
IACtHR, La Cantuta v Peru (merits, reparations and costs), judgment of 29 Nov 2006.
44
Ibid, para 109.
45
Ibid, para 115.
304 C. Cerna
the crimes committed, and the duty to investigate and punish those responsible has
become jus cogens.46
The Court characterized the dispute in this case as further defining a State Party’s
duties pursuant to Article 2 ACHR and, in particular, around the determination of
whether the amnesty laws still have effects in the light of the Court’s pronouncement
in the Barrios Altos case.47 The Court stated that it must determine whether the laws
continued in force or, in the alternative, if they were no longer in force, whether their
continued existence constituted a violation of the American Convention.48
Interestingly, in this case, the Inter-American Commission alone argued that the
continued existence of the amnesty laws constituted a violation of the American
Convention because the state was in the position possibly to invoke them at some
future time. Both the representatives of the victims and the state (an unusual
combination) argued that the amnesty laws had lost their political, legal, and
practical effects in the Peruvian legal system and were no longer an obstacle to
prosecutions of individuals for human rights violations. The Inter-American Court
stated that Article 2 obliged a State Party to adjust its internal laws and regulations to
comply with the American Convention but noted that it failed to specify in which
way it should do so.49
The Inter-American Court, in determining Peru’s international responsibility,
stated that it had determined in Barrios Altos that the mere adoption of the amnesty
laws violated Article 2 ACHR because they overtly conflicted with the duties
undertaken by a State Party to the Convention.50 That is why, the Court continued,
its application by a state organ in a specific case constituted a separate violation from
its promulgation.51 The Inter-American Court then proceeded to determine whether
the amnesty laws continued to obstruct investigations of human rights violations.
Despite the Inter-American Commission’s continued call for the amnesty laws to be
“repealed” or rendered ineffective, the Inter-American Court determined in a survey
of particular and general decisions that the amnesty laws had been rendered inap-
plicable in the Peruvian legal order. The judgment in the Barrios Altos case has been
used internally as one of the grounds upon which to dismiss “amnesty defenses,”
“statute of limitations defenses,” “double jeopardy defenses,” or the opening of new
criminal investigations based on the ineffectiveness of the amnesty laws.52
What is particularly noteworthy in the La Cantuta judgment is the description of
how judgments of the Inter-American Court in some countries have acquired
“immediate and binding force” and how the Barrios Altos judgment has been fully
46
Ibid, para 152.
47
Ibid, para 169.
48
Ibid.
49
Ibid, para 172.
50
Ibid, para 174.
51
Ibid.
52
Ibid, para 180.
incorporated into Peruvian domestic law.53 The Peruvian legal system regulates and
incorporates international decisions into its legal order. Law No 27,775 regulates the
procedure for enforcing judgments issued by international tribunals. Section 115 of
the Code of Constitutional Procedure provides that decisions from international
bodies to whose jurisdiction Peru has submitted need not be recognized, reviewed,
or examined to be valid and effective. Such decisions are remitted by the Ministry of
Foreign Affairs to the President of the Judiciary, who in turn refers them to the court
of final recourse in that matter and directs the competent judge to enforce it pursuant
to Law No 27,775.
Section V of the Preliminary Chapter of the Peruvian Code of Constitutional
Procedure provides that the content and scope of the constitutional rights protected
by the proceedings regulated in the Code must be interpreted in a manner consistent
with human rights treaties and decisions adopted by international human rights
courts to which Peru is a party.
The Peruvian Constitutional Court has accepted the binding effects of judgments
of the Inter-American Court. The binding force of the Inter-American Court’s
decisions is not limited to their operative parts but also includes the rationale or
ratio decidendi for such decisions. In addition, under the Fourth Final and Transitory
Provision of the Peruvian Constitution and Section V of the Preliminary Chapter of
the Peruvian Code of Constitutional Procedure, the judgment is binding for the entire
national government, even in those cases in which Peru was not a party to the case.
The binding force is derived from the Fourth Final and Transitory Provision of the
Peruvian Constitution and has a twofold purpose: (1) to repair the violation and (2) to
prevent recurrence or repetition of the violation.
The Inter-American Court found no further violation of Article 2 ACHR in the La
Cantuta case because it determined that its judgment in the Barrios Altos v Peru case
had been fully incorporated into the Peruvian domestic legal order and that the
amnesty laws did not constitute an obstacle to prosecutions either in the present or in
the future.54
2.3.2 Evolution of the “Control of Conventionality” Doctrine
Almonacid-Arellano et al. v Chile (September 26, 2006)
In the case of Almonacid-Arellano et al. v Chile, the Inter-American Court was faced
with the issue of a self-amnesty imposed by the Chilean military for crimes com-
mitted during the “dirty war” in Chile, which had been in force for 16 years but had
rarely been invoked since 1998. Unlike the La Cantuta case, in which the state could
convincingly show that it had fully incorporated the Barrios Altos case into its
domestic legal order, in Chile, there had been no such incorporation of the judgment
53
54
Ibid, para 189.
306 C. Cerna
or repudiation of the amnesty laws. The failure of the government to invoke the
amnesty laws was insufficient, and the Inter-American Court cautioned that the law
might be applied sometime in the future:
The fact that such Decree Law has not been applied by the Chilean courts in several cases
since 1998 is a significant advance, and the Court appreciates it, but it does not suffice to
meet the requirements of Article 2 of the Convention in the instant case. Firstly because,
[. . .], Article 2 imposes the legislative obligation to annul all legislation which is in violation
of the Convention, and secondly, because the criterion of the domestic courts may change,
and they may decide to reinstate the application of a provision which remains in force under
the domestic legislation.55
In elaborating on the obligations of a State Party under Article 2 ACHR, the Inter-
American Court termed these obligations for the first time “conventionality control”
or what has become known as its “control of conventionality” doctrine. The Court
noted that Article 2 ACHR requires the national judiciary to refrain from enforcing
any laws contrary to the Convention. The observance of a law that violates the
Convention by a state agent gives rise to the state’s international responsibility.
Every state is internationally responsible for the acts or omissions of its agents for the
violation of internationally protected rights, according to Article 1 (1) ACHR.56
The Court affirmed that the domestic judges and courts are bound to apply
domestic law and also international law. They must see that all the effects of the
provisions of the Convention are not adversely affected by the enforcement of laws
that are contrary to its purpose. In other words, the Court stated, “the Judiciary has to
take into account not only the treaty, but also the interpretation thereof made by the
Inter-American Court, which is the ultimately interpreter of the American Conven-
tion.” The Court termed this role of the judiciary as a sort of “conventionality
control” between domestic law and the American Convention.57
Gomes Lund and Others (Guerrilha do Araguaia) v Brasil, (Judgment

of November 24, 2010)
In Araguaia, or the Brazilian amnesty law case, the issue before the Inter-American
Court was whether the amnesty law was compatible with the state’s obligations
under the American Convention. The answer was obviously “no,” and the Inter-
American Court asked whether the amnesty law “can maintain its legal effects” once
the state became party to the American Convention.58
55
IACtHR, Almonacid-Arellano et al v Chile (preliminary objections, merits, reparations and costs),
judgment of 26 Sept 2006.
56
Ibid, para 123.
57
58
IACtHR, Gomes-Lund et al (Guerrilha do Araguaia) v Brazil (preliminary objections, merits,
reparations and costs), judgment of 24 Nov 2010, para 126. The Inter-American Court again dealt
with the issue of amnesty laws in the cases of Gelman v Uruguay (merits and reparations), judgment
The National Congress approved the Brazilian amnesty law on August

28, 1979.59 Pursuant to the law, Brazil has not investigated, processed, or criminally
punished those responsible for the human rights violations committed during the
military regime.60 The obligation to investigate, the Inter-American Court affirmed
in Araguaia, has been articulated since the Court’s first cases and is a positive
obligation: “The duty to investigate is an obligation of means, and not of results,
which should be assumed by the state as a legal obligation, in and of itself, and not as
a simple formality condemned from the onset to be unsuccessful, or a matter of
particular interests, which depends on the procedural initiative of the victims or their
next of kin or of the bearing of evidence from the private sector. From this
obligation, once the state authorities are notified of the facts, they must initiate ex
officio and without delay, a serious, impartial, and effective investigation. This
investigation must be carried out in all of the available legal venues and be aimed
at determining the truth.”61
In addition, the Inter-American Court stated that “the obligation pursuant to
international law to prosecute, and if criminal responsibility is determined, punish
the perpetrators of human rights violations, stems from the obligation to guarantee
rights enshrined in Article 1 (1) ACHR.”62 The state, the Inter-American Court
continued, echoing the Velasquez Rodriguez case, is obliged to organize public
power in such a way as to guarantee the free and full exercise of human rights.
The states must prevent, investigate, and punish all violations to the human rights
enshrined in the Convention and seek the reestablishment, if it is possible, of the
violated right and, where applicable, the reparation of the harm produced given the
violation of the human rights. If the state functions in such a way as to create a
situation of impunity, the Inter-American Court concluded that the state has not
complied with the obligation to guarantee the free and full exercise of those persons
within its jurisdiction.63
After reviewing the decisions of UN treaty bodies, UN Special Rapporteurs, the
UN Working Group on Enforced Disappearances, the Inter-American Commission
and other regional organizations to the effect that amnesty laws are incompatible
with a state’s obligations under a human rights treaty, the Inter-American Court
referred to decisions of domestic jurisdictions within the Americas on this subject.
The Inter-American Court noted that the Argentine Supreme Court revoked the
Argentine amnesty laws because they constituted a normative obstacle to the
investigation, prosecution, and eventual punishment of human rights violations.64
of 24 Feb 2011 and Massacre of El Mozote and nearby places v El Salvador (merits, reparations and
costs), judgment of 25 Oct 2012.
59
Ibid, para 134.
60
Ibid, para 135.
61
Ibid, para 138.
62
Ibid, para 140.
63
Ibid.
64
Ibid, para 163.
308 C. Cerna
It noted that the Chilean Supreme Court, in a recent case, annulled a verdict of not
guilty and invalidated the application of the Chilean amnesty law.65 The Court also
cited cases from Peru, Uruguay, and Colombia to the effect that amnesty laws impact
the international obligation of the state to investigate and punish said violations.66
Since the manner in which Brazil interpreted and applied its Amnesty Law has
prevented the state from investigating and punishing serious human rights violations,
the Inter-American Court held that Brazil violated Articles 8 (1) and 25 in connec-
tion with Articles 1 and 2 ACHR in the Araguaia case.67
According to the Inter-American Court, however, the Brazilian Amnesty Law is
devoid of legal effect. When a state becomes a party to an international human rights
treaty, such as the American Convention, the Court stated, the governmental appa-
ratus must ensure that the provisions of the Convention are respected, and the
judiciary is obligated to exercise “control of conventionality” ex officio between its
domestic norms and the American Convention. In this case, the Court stated that “the
control of conventionality was not exercised by the competent authorities of the
state,” and the Federal Supreme Court’s decision confirming the validity of the
Amnesty Law ignored Brazil’s international obligations under the American Con-
vention.68 The Court reminded Brazil of its obligation “to comply with international
obligations voluntarily contracted [. . .] in good faith (pacta sunt servanda).”69 In its
most recent monitoring of Brazil’s compliance with the Araguaia judgment, the
Inter-American Court noted that the Brazilian Supreme Court’s upholding of the
Brazilian Amnesty Law was evidence that Brazil had failed to carry out a “control of
conventionality” in this case. The Brazilian Supreme Court had failed to understand
the scope of the Inter-American Court’s judgment. The latter established that the
provisions of the Amnesty Law that impede the investigation and punishment of
serious violations of human rights are incompatible with the American Convention,
lack legal effect, and cannot continue to be an obstacle to the investigation of the
present case or to the identification and punishment of those responsible.70
Cabrera-Garcia and Montiel-Flores v Mexico (November 26, 2010)
In the case of Cabrera-Garcia, the Inter-American Court expanded its doctrine of

control of conventionality: “The Judiciary, at all its levels, must exercise ex officio a
sort of ‘conventionality control’ between the domestic legal provisions and the
American Convention, evidently within the framework of their respective
65
Ibid, para 165.
66
67
68
Ibid, para 177.
69
Ibid.
70
Ibid. See also IACtHR, Supervision of Compliance with the Judgment, Gomez Lund and others
(Guerrilla do Araguaia) v Brazil, judgment of 17 Oct 2014, paras 18–19.
competence and the corresponding procedural rules. To perform this task, the
Judiciary has to take into account not only the treaty, but also the interpretation
thereof made by the Inter-American Court, which is the ultimate interpreter of the
American Convention.”71
According to the concurring opinion of Ad Hoc Judge Eduardo Ferrer
Mac-Gregor Poisot, the Inter-American Court is stating that the control of conven-
tionality should be exercised not only by the highest courts of the States Parties to the
American Convention but also by “all the judges” in the judiciary regardless of their
rank.72
The highest tribunals of the States Parties to the American Convention carry out a
“concentrated control” of conventionality. With the Cabrera-Garcia case, the con-
trol of conventionality has been transformed into a “diffused control,” which is the
responsibility of all judges at the domestic level in the Americas, although the Inter-
American Court retains its power as the “last interpreter of the American Conven-
tion” when the effective protection of human rights at the domestic level has not
been achieved.73 The “diffused control or diffused control of conformity with the
Convention” converts the domestic judge into an Inter-American judge as the first
and “true guardian” of the American Convention and other inter-American human
rights instruments and the jurisprudence of the Inter-American Court that interprets
that law.74
Simultaneously with the development of the Inter-American Court’s “control of
conventionality” doctrine, since the 1990s, there has been an increasing insertion of
international human rights law into the catalog of rights protected by the constitu-
tions of states in their internal order in the Americas. This amalgam of constitutional
rights, together with the rights protected by international human rights treaties to
which the state is a party, has been termed the “constitutional bloc” of rights.75 Pedro
Nikken, a former judge of the Inter-American Court, has termed this the “interna-
tionalization of constitutional law.”76 States Parties to the American Convention that
have given constitutional standing to rights included in international treaties in their
domestic legal order include Guatemala, Colombia, Venezuela, Ecuador, Bolivia,
the Dominican Republic, Argentina, Nicaragua, and Paraguay.77 Brazil also recently
amended Article 5 (3) of its Constitution to grant constitutional status to international
71
IACtHR, Cabrera-Garcia and Montiel-Flores v Mexico (preliminary objection, merits, repara-
tions and costs), judgment of 26 Nov 2010, para 225.
72
Ibid, para 19. Mexican national Eduardo Ferrer Mac-Gregor Poisot was elected to the Inter-
American Court at the 42nd OAS General Assembly in 2012. In 2013 he assumed his seat on the
Court.
73
Ibid, para 22.
74
Ibid, para 24.
75
Mexico, for example, has gone beyond this and has included in its constitutional bloc rights
derived from international treaties that are not recognized as traditional human rights treaties, such
as the Vienna Convention on Consular Relations.
76
Nikken (2013), p. 42.
77
Ibid.
310 C. Cerna
human rights treaties. To date, Brazil has not yet rendered without effect its amnesty
law, although the Brazilian National Truth Commission in December 2014
recommended criminal, civil, and administrative trials for those responsible for
crimes against humanity authorized at the highest levels.
3 Conclusion and Outlook
Despite the three levels of human rights obligations available to OAS Member
States, the 20 states that have become States Parties to the American Convention
and have accepted the compulsory jurisdiction of the Inter-American Court have
committed themselves to one of the most advanced systems of human rights
compliance in the world. Latin America has an impressive record of fighting
impunity, and the successor governments to the military dictatorship and authoritar-
ian regimes in the region have prosecuted and sentenced significant numbers of
members of the security forces to prison terms for crimes against humanity—forced
disappearance, torture, and extrajudicial executions. For example, in Chile, there
have been 1149 convictions for dictatorship-era human rights violations, and in
Argentina, approximately 500 have been sentenced and over 1000 convicted. A
further 900 are still being prosecuted.78
The Inter-American Court has also developed a kind of res judicata in its
jurisprudence that goes beyond the clear text of the American Convention. Article
68 ACHR provides that “the States Parties to the Convention undertake to comply
with the judgment of the Court in any case to which they are parties.” The Court,
however, under the control of conventionality doctrine, requires all States Parties to
the American Convention to conform their domestic laws to all the judgments and
reasoning of the Court, not simply those in which the state was a party to the case.
This expansion of the binding nature of all the Court’s judgments beyond the scope
explicitly set forth in Article 68 ACHR has occurred without controversy or criticism
and reflects the growing legitimacy and acceptance of the Inter-American Court’s
jurisprudence.
For the Inter-American Court to continue to grow in legitimacy and acceptance, it
will need to achieve universality in adherence. All 35 OAS Member States, not just
20, will have to become parties to the American Convention and accept the com-
pulsory jurisdiction of the Inter-American Court. Given the reluctance of the
English-speaking OAS Member States to do so remains the greatest challenge to
the system and threatens to encourage Latin American states to follow Venezuela’s
exit undermining the whole system.
78
See for figures on Chile: MercoPress (2015) Chilean judge sentences 64 former Pinochet secret
police officers to jail time. In: MercoPress (South Atlantic News Agency) published online on
5 Nov 2015, available via http://en.mercopress.com/2015/11/05/chilean-judge-sentences-64-for
mer-pinochet-secret-police-officers-to-jail-time. Accessed 11 July 2017. See for figures on
Argentina: Alexander (2015).
References
Alexander H (2015) Argentine elections: highs and lows of 12 years of the Kirchners. In: Telegraph
of 23 Oct 2015, Available via http://www.telegraph.co.uk/news/worldnews/southamerica/argen
tina/11947023/Argentina-elections-Highs-and-lows-of-12-years-of-the-Kirchners.html.
Accessed 11 July 2017
Buergenthal T (1981) To respect and ensure: state obligations and permissible derogations. In:
Henkin L (ed) The international bill of rights: the covenant on civil and political rights.
Columbia University Press, New York, pp 72–91
Nikken P (2013) El Derecho Internacional de los Derechos Humanos en el derechos interno.
Revista IIDH 57:11–68, Available via https://www.iidh.ed.cr/IIDH/media/1393/revista-iidh57.
pdf. Accessed 11 July 2017
State Obligations in the African System
The Obligation to Investigate, Prosecute and
Punish Violations of African Charter Rights
Yakaré-Oulé (Nani) Jansen Reventlow and Rosa Curling
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
2 The General Concept of State Obligations Under the African Charter . . . . . . . . . . . . . . . . . . . . 316
2.1 The Commission’s Approach to State Obligations Under the African Charter . . . . . . 316
2.2 The Court’s Approach to State Obligations Under the African Charter . . . . . . . . . . . . . 318
3 States’ Obligations to Investigate, Prosecute and Punish Violations of Rights Under
the African Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
3.1 Due Diligence and the Duty to Investigate, Prosecute and Punish . . . . . . . . . . . . . . . . . . 320
3.1.1 The Commission’s Approach to the Duty to Investigate, Prosecute and Punish . . . 320
3.1.2 The Commission: Due Diligence Beyond the Obligation to Investigate,
Prosecute and Punish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
3.1.3 The Commission: Due Diligence and the Admissibility of Communications . . . . 327
3.1.4 The Court’s Approach to the Duty to Investigate, Prosecute and Punish . . . 329
3.1.5 The Court: Due Diligence and the Admissibility of Communications . . . . . . 331
3.2 Due Diligence in Commission Recommendations and Court Orders . . . . . . . . . . . . . . . . 332
3.2.1 The Commission’s Approach to Recommendations and Due Diligence . . . . 332
3.2.2 The Court’s Approach to Orders and Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . 333
4 The Commission’s and Court’s Roles in Determining Violations of Other International
Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
4.1 The Commission’s Approach to Determining Violations of Other International
Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
4.2 The Court’s Approach to Determining Violations of Other International Treaties
Than the African Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
The references have been updated as of submission of the manuscript, in January 2017.
Yakaré-Oulé (Nani) Jansen Reventlow

Digital Freedom Fund, Berlin, Germany
e-mail: hello@nanijansen.org
R. Curling (*)
International Human Rights and Public Law Solicitor, London, UK
e-mail: rcurling@leighday.co.uk

https://doi.org/10.1007/978-3-319-94848-5_12
314 Yakaré‐Oulé (Nani) Jansen Reventlow and R. Curling
1 Introduction
The African Charter on Human and Peoples’ Rights (the ‘Banjul Charter’, the
‘African Charter’ and the ‘Charter’)1 was adopted on 27 June 1981 and entered
into force on 21 October 1986.2 At the time of writing, the Charter had been ratified
by 53 states.3 With some key differences, e.g. there is no derogation of rights
provision and collective (peoples’) rights are included, the Charter is similar to
other regional human rights treaties. The African Commission on Human and
Peoples’ Rights (‘African Commission’ or ‘the Commission’)4 and the African
Court on Human and Peoples’ Rights (‘African Court’ or ‘the Court’)5 are the two
regional bodies responsible for the protection and interpretation of the rights in the
Charter.6
The African Commission, which has been operational since 1987, exercises its
protective mandate primarily through its communications procedure, under which it
receives complaints and decides whether a human rights violation has taken place.7
It has jurisdiction over all States Parties to the Banjul Charter. Its decisions are
1
Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (‘Banjul
Charter’), 27 June 1981, CAB/LEG/67/3 rev 5, 21 I.L.M. 58 (1982), available at http://www.achpr.
org/files/instruments/achpr/banjul_charter.pdf. Accessed 26 Jan 2017.
2
See African Commission website: http://www.achpr.org/instruments/achpr/history/. Accessed
26 Jan 2017.
3
See ratification table on African Commission website: http://www.achpr.org/instruments/achpr/
ratification/. Accessed 26 Jan 2017.
4
The African Commission (hereafter quoted as AfCHPR) was established on 2 Nov 1987. It has
three main functions: (1) the protection of human and peoples’ rights; (2) the promotion of human
and peoples’ rights; and (3) the interpretation of the African Charter on Human and Peoples’ Rights.
See Banjul Charter, Arts 30 and 45.
5
The African Court (hereafter quoted as AfCtHPR) was established through the Protocol to the
African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights (‘the Protocol’). See Organization of African Unity (OAU), Protocol to the
African Charter on Human and Peoples’ Rights on the Establishment of an African Court on
Human and Peoples’ Rights (the ‘Protocol’), 10 June 1998, available at: http://www.achpr.org/files/
instruments/court-establishment/achpr_instr_proto_court_eng.pdf . Accessed 26 Jan 2017. The
Protocol entered into force on 25 June 2004, and the Court started operating in 2006. See African
Court website: http://en.african-court.org/index.php/about-us/court-in-brief. Accessed 26 Jan 2017.
6
For general discussions about the Commission and the Court see Ouguergouz (2003). See also
Muigai (2011).
7
AfCHPR, 2010 Rules of Procedure of the African Commission on Human and Peoples’ Rights
(hereafter AfCHPR Rules of Procedure), 47th ordinary session held in Banjul, The Gambia, from
12 to 26 May 2010, Chapter 3, ‘Consideration of Communications’, available at: http://www.achpr.
org/files/instruments/rules-of-procedure-2010/rules_of_procedure_2010_en.pdf. Accessed
26 Jan 2017.
State Obligations in the African System 315
non-binding.8 At the time of writing, 233 Commission cases had been finalised,
ninety of which had been decided on the merits.9
The Court’s mandate ‘complement[s] the protective mandate of the African
Commission’.10 Its jurisdiction extends to ‘all cases and disputes submitted to it
concerning the interpretation and application of the Charter, th[e] Protocol and any
other relevant Human Rights instrument ratified by the States concerned’.11 The
Court’s decisions are binding. It also issues non-binding advisory opinions at the
request of African Union Member States, the African Union itself, any of its organs
and African organisations recognised by the African Union.12 Cases can be referred
from the African Commission to the African Court13 so long as the state in question
has ratified the Protocol. At the time of writing, thirty states had ratified the
Protocol.14 Individuals and NGOs can also submit complaints directly to the
Court. At the time of writing, this was possible against eight countries.15 Judgments
on the merits have been handed down in eight contentious matters,16 and the Court
has issued one advisory opinion.17
This chapter provides an overview of how the Commission and the Court have
interpreted the obligations placed by the Charter on States Parties to investigate,
prosecute and punish human rights violations. To allow for better comparative
analysis, this chapter focuses primarily on case law from the Commission and
Court dated 2006–2016.18 However, where relevant, reference is also made to
other documents issued by the Court and the Commission predating 2006, for
8
There is ongoing debate on the binding nature of the Commission’s decisions, which includes
varying viewpoints expressed by the Commission itself. See Murray (2015), pp. 50–51.
9
See Institute for Human Rights and Development in Africa, Case Law Analyser: http://caselaw.
ihrda.org/body/acmhpr/. Accessed 26 Jan 2017. It should be noted, however, that not all Commis-
sion decisions have been consistently published, so this number should be taken more as an
indication than an absolute statistic.
10
Protocol, Art 2. For further reading on the issue of complementarity in the African human rights
system, see Ebobrah (2011), pp. 663–688.
11
Protocol, Art 3.
12
Protocol, Art 4.
13
AfCHPR Rules of Procedure, Rule 84 (2) and 118.
14
See http://en.african-court.org/images/Basic%20Documents/Ratification_and_Deposit_of_the_
Declaration_final-jan_2017.pdf. Accessed 26 Jan 2017.
15
In total, 9 countries have made the Art 34 (6) declaration, but Rwanda withdrew its declaration in
2016. The Court held that a sunset period of 1 year applied, resulting its ability to receive direct
complaints from Rwandan citizens and NGOs ending on 1 Mar 2017, see AfCtHPR, Ingabire
Victoire Umuhoza v Republic of Rwanda, Application No 003/2014, Ruling on Jurisdiction, 3 June
2016, with corrigendum of 5 Sept 2016.
16
See AfCtHPR website: http://en.african-court.org/index.php/cases#finalised-cases. Accessed
26 Jan 2017.
17
See AfCtHPR website: http://en.african-court.org/index.php/cases/2016-10-17-16-19-
35#finalised-opinions. Accessed 26 Jan 2017.
18
Inevitably, given the wider jurisdiction and far longer operation of the Commission, the analysis
includes a more detailed discussion of its interpretation of state obligations compared to the Court’s.
example general comments and guidelines, and some of the Commission’s key case
law. The case law reveals that while both bodies can sometimes be directive and
detailed in how they consider the obligations of States Parties to the Charter must be
fulfilled, the Commission and Court are yet to develop a consistent approach.
This chapter is organised as follows: Sect. 2 will look at the general concept of
state obligations under the Charter; Sect. 3 will focus specifically on how the
Commission and the Court have interpreted the duty of States Parties to investigate,
prosecute and punish violations of Charter rights; and Sect. 4 will then look at how
the Commission and Court have determined human rights violations under interna-
tional treaties other than the Charter.
2 The General Concept of State Obligations Under

the African Charter
2.1 The Commission’s Approach to State Obligations Under

the African Charter
Articles 1–26 in Chapter 1, Part 1, of the Charter, entitled ‘Human and Peoples’
Rights’, list the human rights obligations placed on states by the Charter. The key
provision regarding state obligations is Article 1: ‘The Member States of the
Organization of African Unity parties to the present Charter shall recognise the
rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt
legislative or other measures to give effect to them.’19
According to the Commission, Article 1 ‘confers on the Charter the legally
binding character generally attributed to international Treaties (sic) of this nature.
The responsibility of the State Party is established by virtue of Article 1 of the
Charter in case of the violation of any of the provisions of the Charter. Article
1 places the States Parties under the obligation of respecting, protecting, promoting
and implementing the rights.’20 It further determines ‘whether a violation of the
human rights recognised by the Charter can be imputed to a State Party or not’,21
allowing the Commission to determine if a violation has taken place as a result of an
action or omission of a public authority.22
19
Banjul Charter, Art 1.
20
AfCHPR, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon
(‘Victims of Post Electoral Violence v Cameroon’), Communication No 272/03, Nov 2009, para 87.
21
AfCHPR, Zimbabwe Human Rights NGO Forum v Zimbabwe (‘Zimbabwe Human Rights NGO
Forum v Zimbabwe’), Communication No 245/02, May 2006, para 142.
22
Ibid.
Taking each component of the Article 1 duty in turn,23 the Commission considers
that the duty to respect requires states to do nothing that would violate Charter
rights.24 In relation to the duty to protect, the Commission considers states under an
obligation to take active steps to prevent violations of human rights by non-state
actors.25 This includes a ‘due diligence duty’ to investigate, prosecute and punish
perpetrators if such violations occur.26
Of course, a due diligence standard can be associated with each level of duty
under Article 1. For example, the state could be seen to have a due diligence duty in
relation to its duty to respect: it has to take necessary steps and measures to make
sure that if its agents infringe upon someone’s rights, they are duly prosecuted and
punished. In the Principles and Guidelines on Countering Terrorism, the Commis-
sion notes that where the use of force by state agents leads to injury or death, states
have the responsibility to ‘bring to justice, including through prosecution, perpetra-
tors of human rights abuses’; to ‘provide an effective remedy that is available,
effective, and sufficient’; and to ‘provide full and effective reparation to individuals
who have suffered physical or other damage or who have suffered violations of their
human rights as a result of an act of terrorism or acts committed in the name of
countering terrorism’.27 The Commission’s decisions, however, have focused
mainly on the standard of due diligence in the context of the duty to protect, as
will be shown in Sect. 3 below.
The duty to promote and fulfil is explained by the Commission in SERAC v
Nigeria, where the Commission connected the duty to protect with the ‘tertiary
obligation of the state to promote the enjoyment of all human rights’.28 This places a
duty on the state to create the proper context that would allow for the exercise of
rights through ‘promoting tolerance, raising awareness, and even building infra-
structures’.29 The duty to fulfil is seen by the Commission as ‘a positive expectation
23
AfCHPR, Social and Economic Rights Action Center (SERAC) and Center for Economic and
Social Rights v Nigeria (‘SERAC v Nigeria’), Communication No 155/96, Oct 2001, para 44.
24
Ibid, para 45. With respect to the impact on socio-economic rights, see AfCHPR, Principles and
Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter
on Human and Peoples’ Rights, available at: http://www.achpr.org/files/instruments/economic-
social-cultural/achpr_instr_guide_draft_esc_rights_eng.pdf. Accessed 26 Jan 2017.
25
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, para 143. See also Victims of
Post Electoral Violence v Cameroon, supra n 21, para 88.
26
AfCHPR, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt (‘EIPR &
INTERIGHTS v Egypt’), Communication No 323/06, Dec 2011, paras 73 and 208; Zimbabwe
Human Rights NGO Forum v Zimbabwe, supra n 21, para 159.
27
AfCHPR, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism
in Africa, Apr–May 2015, Principles 1(D), 1(E), 1(F), 2(B)(ii).
28
SERAC v Nigeria, supra n 23, para 46.
29
Ibid; see also The Commission’s General Comment on Art 14 (1) (d) and (e) of the Protocol on
the Rights of Women in Africa, which notes specific examples of what the duties to promote and
fulfil mean in the context of women’s rights. AfCHPR, General Comments on Art 14 (1) (d) and
(e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa (the Maputo Protocol), see para 23: ‘The obligation to promote in relation to Art
on the part of the state to move its machinery towards the actual realisation of the
rights’ and can include ‘direct provision of basic needs such as food or resources that
can be used for food (direct food aid or social security)’.30
The four levels of duties under Article 1 are applicable to each Charter right. For
example, the right to life under Article 4 of the Charter entails a duty on the state to
respect, protect, promote and fulfil the right to life. This explains why the Commis-
sion may engage in a lengthy discussion of the due diligence duty with reference to a
given right, without making explicit references to Article 1.31
2.2 The Court’s Approach to State Obligations Under

the African Charter
The Court’s interpretation of a state’s responsibility under Article 1 is less compre-

hensive, but a similar approach to that of the Commission’s appears to be develop-
ing. Initially, the Court’s view on the remit of state obligation appeared more
restrictive. In Zongo v Burkina Faso, after a cursory review of Burkina Faso’s
legislation (which prescribes independence of the judiciary in its Constitution), the
Court held that it was ‘clear [that] the Respondent State cannot be blamed for not
having taken [legislative or regulatory] measures, and for having violated Article
1 of the Charter with respect to legislative measures’.32 However, this approach
appears to be changing.
In Alex Thomas v Tanzania, the Court found that the respondent state had violated
its obligations under Article 1 in denying the applicant the rights to be heard, to
defend himself and to legal assistance.33 The Court noted that its role was not only to
examine whether the respondent state has enacted legislation or adopted other
measures to domesticate the Charter but that the Court should ‘also assess whether
the application of those legislative or other measures is in line with the achievement
14 (1) (d) and (e) requires states to create the legal, social and economic conditions that enable
women to exercise their rights in relation to sexual and reproductive health. This involves engaging
in sensitisation activities, community mobilisation, training of healthcare workers, religious, tradi-
tional and political leaders on the importance of the right to protection and to be informed on one’s
status and that of one’s partner.’
30
SERAC v Nigeria, supra n 23, paras 46 and 47.
31
EIPR & INTERIGHTS v Egypt, supra n 26, paras 163, 164, 167; AfCHPR, Sudan Human Rights
Organisation & Centre on Housing Rights v Sudan (‘Sudan Human Rights Organisation & Centre
on Housing Rights v Sudan’), Communication Nos 279/03-296/05, May 2009, para 148.
32
AfCtHPR, Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest Zongo
and Blaise IIboudo & the Burkinabe Human and Peoples’ Rights Movement (‘Zongo v Burkina
Faso’), Application No 013/2011, judgment on the merits, 28 Mar 2014, para 197.
33
AfCtHPR, Alex Thomas v United Republic of Tanzania (‘Alex Thomas v Tanzania’), Application
005/2013, judgment on the merits, 20 Nov 2015, para 137.
of the rights, duties and freedoms enshrined in the Charter, that is, the attainment of
the objects and purposes of the Charter’.34
In African Commission on Human and Peoples’ Rights v Libya,35 the Separate
Opinion of Judge Ouguergouz states that the obligation on states under Article
1 should be understood both as a ‘negative obligation (“not to do”) and as a positive
obligation (“to do”) which means that “violation of the African Charter by a State
Party may arise from both the latter’s actions and its omissions where the State Party
for example exhibits lack of diligence. The undertaking of the State Parties to
“apply” the rights guaranteed by the Charter therefore comprises not only the
commitment to “respect” such rights by not themselves infringing such rights but
also the commitment to “protect” them, which includes protection against any
possible infringement by non-state actors.’36 The Court’s judgment does not men-
tion Article 1,37 whereas Judge Ouguergouz considered that ‘the Court should have
laid emphasis of the obligations devolving on the respondent state under article 1 of
the African Charter’38 at paragraphs 49 and 50 of its judgment.39 These paragraphs
considered the obligations of the respondent state in ensuring the application of laws
guaranteed under the Charter.40
The notion of a positive obligation being incorporated within Article 1 is con-
firmed by the Court in Actions pour la Protection des Droits de L’homme (APDH) v
Republic of Cote d’Ivoire.41 The judgment notes that ‘where a state becomes a Party
to a human rights treaty, international law obliges it to take positive measures to give
effect to the exercise of the said rights’.42 This appears to expand the positive
obligation into all human rights treaties that a state may be party to, not just the
Charter.43 This will be further discussed in Sect. 4, which addresses the determina-
tion by the Court of violations of international treaties other than the Charter.
It is clear that both the Commission and the Court consider a violation of Article
1 to be implicit in the finding of all violations of human rights provisions contained
in the Charter. As the Commission has repeatedly noted, the main purpose of Article
1 is to give the Charter a legally binding character so that ‘a violation of any
provision of the Charter by a State Party automatically engages its responsibility
34
Ibid, para 135.
35
AfCtHPR, African Commission on Human and Peoples’ Rights v Libya (‘African Commission v
Libya’), Application No 002/2013, judgment on the merits, 3 June 2016.
36
AfCtHPR, African Commission on Human and Peoples’ Rights v Libya (‘African Commission v
Libya’), Application No 002/2013, separate Opinion of Judge Fatsah Ouguergouz, para 12.
37
African Commission v Libya, judgment on the merits, supra n 35.
38
African Commission v Libya, separate Opinion of Judge Fatsah Ouguerouz, supra n 36, para 11.
39
African Commission v Libya, judgment on the merits, supra n 35, para 49.
40
41
AfCtHPR, Actions pour la Protection des Droits de L’homme (APDH) v Republic of Cote d’Ivoire
(‘APDH v Cote d'Ivoire’), Application No 001/2014, judgment on the merits, 18 Nov 2016.
42
Ibid, para 61.
43
Ibid.
under article 1’.44 The Court has deferred to the Commission’s reasoning. In Zongo v
Burkina Faso, the Court found Burkina Faso in violation of Article 7 of the Charter
and held that ‘the Respondent State simultaneously violated Article 1 of the Charter,
by failing to take the appropriate legal measures to guarantee respect for the rights of
Applicants in terms of Article 7 of the Charter’.45 A violation of any provision of the
Charter automatically means a violation of Article 1.46
3 States’ Obligations to Investigate, Prosecute and Punish

Violations of Rights Under the African Charter
As illustrated below, the Commission and Court have both set standards for states
regarding their obligation to protect the Charter rights, providing guidance on how to
meet their obligations under Article 1. The Commission’s guidance is more devel-
oped than the Court’s in view of the greater number of occasions at which it has
considered these matters.
3.1 Due Diligence and the Duty to Investigate, Prosecute

and Punish
3.1.1 The Commission’s Approach to the Duty to Investigate,

Prosecute and Punish
The Commission’s guidance on a state’s obligation to protect has crystallised

principally in its determinations on a state’s due diligence duty in connection with
human rights violations committed by non-state actors. The Commission’s case law
makes clear that an act committed by a private party, not directly imputable to the
state, may invoke state responsibility if the state fails to uphold its due diligence
duty. While the concept of due diligence is referred to with different formulations in
44
AfCHPR, Sir Dawda K. Jawara v The Gambia, Communication Nos 147/95-149/96, May 2000,
para 46; cited also in AfCHPR, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai
Hadzisi v Zimbabwe (‘Kazingachire and Others v Zimbabwe’), Communication No 295/04, May
2012, para 140; EIPR & INTERIGHTS v Egypt, supra n 26, para 272; Victims of Post Electoral
Violence v Cameroon, supra note 20, para 87; AfCHPR, Zimbabwe Lawyers for Human Rights and
the Institute for Human Rights and Development in Africa v Zimbabwe (‘Zimbabwe Lawyers for
Human Rights’), Communication No 293/04, May 2008, para 68; AfCHPR, Institute for Human
Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola (‘IHRDA
v Angola’), Communication No 292/04, May 2008, paras 82 and 83; see also AfCHPR, Monim
Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan (‘Elgak
and Others v Sudan’), Communication No 379/09, Mar 2014, para 140.
45
Zongo v Burkina Faso, judgment on the merits, supra n 32, para 199.
46
Alex Thomas v Tanzania, supra n 33.
the jurisprudence of different bodies dealing with international legal obligations of

states,47 the Commission most often uses the due diligence standard in the context of
the duty to investigate, prosecute and punish, to prevent violations of human rights
or a variation thereof.48
The Commission’s guidelines and general comments confirm the same. In Gen-
eral Comment No. 3 on the Right to Life, the Commission notes that a ‘state can be
held responsible for killings by non-state actors if it approves, supports or acquiesces
in those acts or if it fails to exercise due diligence to prevent such killings or to ensure
proper investigation and accountability’.49 Similarly, in a ‘Zero Draft’ of the Gen-
eral Comment on the Right to Redress, the Commission notes that ‘State Parties [. . .]
are expected to uphold the positive obligation to diligently prevent, investigate,
prosecute and punish non-state actors who commit acts of torture or ill-treatment’.50
The Commission dealt with the practical application of the due diligence duty in
several decisions. In Zimbabwe Human Rights NGO Forum v Zimbabwe, the
47
For instance, in relation to sexual and gender-based violence, the due diligence duty is understood
as the duty to ‘prevent, protect against, prosecute, punish, and provide redress for acts of violence
against women’, referred to as the ‘5Ps’. See UN Commission on Human Rights, Report of the
Special Rapporteur on Violence against Women, Its Causes and Consequences on the Due
Diligence Standard as a Tool for the Elimination of Violence against Women, 20 Jan 2006,
E/CN.4/2006/61; The European Court of Human Rights (hereafter ECtHR) has used similar
language. In ECtHR, Siliadin v France, judgment of 26 July 2005, Reports 2005-VII, a case
involving human trafficking, the ECtHR, at para 112 held that ‘in accordance with contemporary
norms and trends in this field, the member states’ positive obligations under Art 4 of the Convention
must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining
a person in such a situation.’ See also ECtHR, C.N. v the United Kingdom, Application No 4239/08,
13 Nov 2012, para 66 and also the Inter-American Court of Human Rights (IACtHR) in, e.g., the
Velásquez Rodríguez Case (‘Velásquez Rodríguez’), judgment of 29 July 1988, Series C 4, para
172.
48
EIPR & INTERIGHTS v Egypt, supra n 26, para 208; Zimbabwe Human Rights NGO Forum v
Zimbabwe, supra note 21, para 159. See also AfCHPR, 341: Resolution on the human rights
situation of the abducted Chibok girls and other abducted victims in Nigeria, ACHPR/Res. 341
(LVIII) 2016, 20 Apr 2016, par (ii); AfCHPR, 302: Resolution on terrorist acts in the Republic of
Kenya, ACHPR/Res.302 (LVI) 2015, 7 May 2015, par 3(vi).
49
AfCHPR, General Comment No. 3 on the African Charter on Human and Peoples’ Rights: the
Right to Life (Article 4) (‘General Comment No. 3’), adopted at the 57th Session, 4–18 Nov 2015,
par A(9). It is to be noted that the duty to ‘prevent’ was added by the Commission here as part of the
due diligence duty. See also Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, paras
143, 147; EIPR & INTERIGHTS v Egypt, supra n 26, paras 154, 156, 206; SERAC v Nigeria, supra
n 23, para 57; AfCHPR, Commission Nationale des Droits de l’Homme et des Libertés v Chad,
Communication 74/92, Oct 1995, para 22.
50
AfCHPR, Committee for the Prevention of Torture in Africa, Zero Draft, General Comment on
the Right to Redress for Victims of Torture or Ill-treatment under Article 5 of the African Charter on
Human and Peoples’ Rights (‘Zero Draft General Comment on Right to Redress’), 1 Apr 2016, para
63, available at: http://www.achpr.org/files/news/2016/04/d214/zero_draft_general_comment_on_
the_right_to_redress_eng.doc. Accessed 26 Jan 2017. A ‘zero draft’ is a document collecting the
first thoughts on the topic under consideration, intended to start off more detailed discussions
amongst stakeholders on the direction a formal first draft of the instrument being drafted
should take.
Commission was asked to consider a complaint regarding violations emanating from

the violence that took place in Zimbabwe after the 2000 referendum and parliamen-
tary elections. The complainants alleged that members of the ruling party, ZANU
(PF), and war veterans were heavily involved in the violence, including through
abduction and torture of dissidents, forcibly subjecting people to political
re-education, land grabs and other acts. While the Commission did not assert that
the assailants were state actors, it held that Zimbabwe was in violation of a number of
articles of the African Charter, including Article 1, because it failed to uphold its due
diligence duty. The Commission found that ‘an act by a private individual and
therefore not directly imputable to a state can generate responsibility of the state,
not because of the act itself, but because of the lack of due diligence to prevent the
violation or for not taking the necessary steps to provide the victims with
reparation’.51
The Commission explicitly relied on the decision of the Inter-American Court of
Human Rights in Velásquez-Rodríguez, where it held that a state is ‘obliged to
investigate every situation involving a violation of the rights protected by [interna-
tional law]’ and to ‘take reasonable steps to prevent human rights violations and to
use the means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation’.52
The Commission has clarified over recent years what it understands due diligence
to mean when assessing a state’s compliance with the duty to investigate and
prosecute. In Shumba v Zimbabwe, the Commission noted that it is not sufficient
for the state to argue that evidence provided by the alleged victim was insufficient
but that the state must try to find evidence itself. The Commission made clear that
when some evidence of a human rights violation is presented by an individual, the
investigative/prosecutorial bodies of the state have a responsibility to seek to cor-
roborate such evidence or at least investigate and look into the complaint.53 The
Commission noted that ‘it is not sufficient for the respondent state to simply argue
that [allegations] are unsubstantiated when they are supported by [a] range of
documentation. Rather, the respondent state must provide evidence to the
51
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, para 143. See also Sudan Human
Rights Organisation & Centre on Housing Rights v Sudan, supra n 31, para 148, citing the IACtHR
in Velásquez Rodríguez Case, supra n 47. See also Kazingachire and Others v Zimbabwe, supra n
44, paras 133 and 134.
52
Velásquez Rodríguez, supra n 47, paras 172 and 174, cited in Zimbabwe Human Rights NGO
Forum v Zimbabwe, supra n 21, para 144. In Victims of Post Electoral Violence v Cameroon, supra
n 20, para 89, the Commission cites Velásquez Rodríguez, explaining that ‘an illegal act which
violates human rights and which is initially not directly imputable to a state (for example because it
is the act of a private person or because the person responsible has not been identified) can lead to
the international responsibility of state, not because of the act itself, but because of the absence of
due diligence to prevent the violation or to respond to it as required by the convention’, Velásquez
Rodríguez, supra n 47, paras 172 and 173.
53
AfCHPR, Gabriel Shumba v Zimbabwe (‘Shumba v Zimbabwe’), Communication No 288/04,
May 2012, para 159.
contrary.’54 This practically shifts the burden of proof to the state, so that to prove
that it has discharged its due diligence duty, the state will need to show that an
alleged victim’s allegations were unfounded or did not deserve to be prosecuted and
remedied. Similarly, in Gunme et al. v Cameroon, the Commission observed that
‘the parties do not have equal access to official evidence such as police reports, death
certificates and forensic medical certificates’ and that by questioning the reliability of
the evidence provided by the claimants, instead of investigating further, the state
violated the claimants’ Charter rights.55
In EIPR & INTERIGHTS v Egypt, the Commission dealt with allegations that
state agents, as well as private parties acting at the behest of the state, were involved
in acts of sexual violence against female journalists who were at the site of a political
protest against constitutional amendments. In dealing with this case, the Commis-
sion recalled earlier statements that explained that the language of Article 1, obliging
the state to ‘undertake to adopt legislative or other measures to give effect to [Charter
rights]’, does not mean that the state fulfils its duty simply by adopting laws. Citing
SERAC v Nigeria, the Commission noted: ‘Governments have a duty to protect their
citizens, not only through appropriate legislation and effective enforcement but also
by protecting them from damaging acts that may be perpetrated by private parties’,
adding that the state may be held responsible for third-party acts ‘if it is complicit in
the violations alleged, has sufficient control over those actors, or fails to investigate
those violations’.56
In this case, the Commission also found that the state had failed to properly
investigate the complainants’ claims. The four female journalists/claimants had
approached the Egyptian Office of the Public Prosecutor (the ‘PPO’) prior to filing
a communication with the Commission. The PPO had dismissed the case, citing
insufficient evidence and inconsistencies in the statements of the witnesses. The
Commission took the opportunity to clarify the following:
Failure to investigate effectively, with an outcome that will bring the perpetrators to justice,
shows lack of commitment to take appropriate action by the state, especially when this lack
of commitment is buttressed by excuses such as lack of sufficient information to carry out a
proper investigation. Furthermore, failure to investigate compromises an international
responsibility on the part of the respondent state, both in the case of crimes committed by
agents of the state and those committed by private individuals.57
The Commission relied on a lengthy body of regional and international instru-

ments and judicial decisions in explaining what needs to be present in an investiga-
tion (in this case, of allegations of torture and other cruel, inhuman and degrading
treatment) in order for the state to properly discharge its due diligence duty. It noted
Articles 17 and 19 of the Robben Island Guidelines on the Prohibition and
54
Shumba v Zimbabwe, supra n 54, para 159.
55
AfCHPR, Kevin Mgwanga Gunme et al. v Cameroon (‘Gunme et al. v Cameroon’), Communi-
cation No 266/03, May 2009, para 112.
56
EIPR & INTERIGHTS v Egypt, supra note 26, paras 156 and 157.
57
Ibid, para 163.
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in

Africa, which provide that states should establish ‘readily accessible and fully
independent mechanisms’ of investigation of torture and ill-treatment and that
such investigations must be ‘conducted promptly, impartially and effectively, guided
by the [. . .] Istanbul Protocol’.58
Giving additional instructions on international standards for effective investiga-
tions in torture cases, the Commission noted that Egypt had ratified the Convention
Against Torture (CAT) and was therefore obliged under Article 13 CAT to ‘ensure
that the complainant and witnesses are protected against all ill-treatment or intimi-
dation as a consequence of his complaint or any evidence given’.59 The Commission
also used jurisprudence of the European Court of Human Rights in clarifying the
essentials of an effective investigation, stating that when assessing such investiga-
tions, the Court must determine ‘whether the authorities reacted effectively to the
complaints at the relevant time; the length of time it takes for the investigation to
commence; and whether there were delays in taking statements from the victims’.60
The Commission equally referenced the European Court’s position in Assenov &
Others v Bulgaria, where the Court held that it ‘was necessary to take evidence from
independent witnesses’ and that ‘the examination of two further witnesses, one of
whom had only a vague recollection of the incidents in question, was not sufficient to
rectify the deficiencies in the investigation up to that point’.61
Importantly, the Commission noted that there were serious doubts about the
impartiality of the investigation process in the case of the violations against the
four female journalists, given how the prosecutor reacted to evidence presented by
the claimants. The Commission noted: ‘In order to be impartial, it would have been
of paramount relevance in the investigative processes for the PPO to obtain, if
necessary proprio motu additional evidence from other sources by giving room for
more witnesses in the scene to make illustrative statements that could corroborate the
statements made by the victims. Instead, the PPO gave undue attention to the
58
Ibid, para 203, citing AfCHPR, Resolution on Guidelines and Measures for the Prohibition and
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben
Island Guidelines) (‘Robben Island Guidelines’), 32th Session, 17–23 Oct 2002, Arts 17 and 19.
For the Istanbul Protocol see OHCHR, Istanbul Protocol, Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
HR/P/PT/8/Rev1.
59
EIPR & INTERIGHTS v Egypt, supra n 26, para 207, citing the UN Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture,
or CAT), 10 Dec 1984, UNTS 1465: 85, Art 13, and OHCHR, Istanbul Protocol, Manual on the
Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, HR/P/PT/8/Rev1.
60
EIPR & INTERIGHTS v Egypt, supra note 26, para 207, citing ECtHR, Labita v Italy, judgment
of 6 Apr 2000, Reports 2000-IV, para 131; ECtHR, Salman v Turkey, judgment of 27 June 2000,
Reports 2000-VII, para 89; ECtHR, Assenov and Others v Bulgaria, judgment of 28 Oct 1998,
Reports 1998-VIII, para 105.
61
EIPR & INTERIGHTS v Egypt, supra n 26, para 208, citing Assenov and Others v Bulgaria, supra
n 60.
“discrepancies” made by the victims which made it arrive at the tenuous conclusion
that it could not proceed with the investigations because the perpetrators could not be
identified, creating an appearance of an actual lack of impartiality.’62
Thus, in several instances, the Commission did not simply make general obser-
vations on whether an investigation is appropriate or not but has given clear
directions to what it considers appropriate. Merely investigating can sometimes be
insufficient to meet the due diligence requirement. In Sudan Human Rights Orga-
nisation & Centre on Housing Rights v Sudan, the Commission dealt with mass
atrocities in Darfur. In what may have been influenced by the scale and level of
violations alleged, the Commission noted explicitly that to ‘effectively discharge
itself from responsibility, it is not enough to investigate’ and that it had previously
held that ‘investigations into extra-judicial executions must be carried out by entirely
independent individuals, provided with the necessary resources, and their findings
must be made public and prosecutions initiated in accordance with the information
uncovered’.63
Finally, the Commission has noted that it will assess a state’s success or failure in
upholding its due diligence duty on a case-by-case basis, depending on the right that
has been violated and the scale of violations.64 As the Commission noted in
Zimbabwe Human Rights NGO Forum v Zimbabwe, a case that concerned human
rights violations committed by non-state actors, a ‘single violation of human rights
or just one investigation with an ineffective result does not establish a lack of due
diligence by a State’.65 It continued: ‘A state can be held complicit where it fails
systematically to provide protection of violations from private actors’ and that state
responsibility ‘must be demonstrated by establishing that the state condones a
pattern of abuse through pervasive non-action’.66 The Commission’s decision sug-
gests that in a context where the state is faced with a very large number of allegations
of violations by private parties, a single ineffective investigation may not establish a
violation of the state’s due diligence duty.
3.1.2 The Commission: Due Diligence Beyond the Obligation

to Investigate, Prosecute and Punish
The due diligence duty can sometimes extend beyond the obligation to investigate,
prosecute and punish. The Commission has indicated on several occasions that there
can be a duty to prevent violations from occurring. In Victims of Post Electoral
Violence v Cameroon, the Commission, for example, stated that ‘the State [. . .]
62
EIPR & INTERIGHTS v Egypt, supra n 26, para 233. See also AfCHPR, Article 19 v Eritrea,
Communication No 275/03, May 2007, para 72.
63
Sudan Human Rights Organisation & Centre on Housing Rights v Sudan, supra n 31, para 150.
64
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, para 158.
65
Ibid.
66
Ibid, para 160.
through its investigations knew or should have known about the planning of the said
events’ and therefore should have ‘taken the necessary measures to prevent their
happening’.67
The due diligence standard has also been held to entail a guarantee by the state
that its legal environment does not contain impasses that would prevent a victim of
human rights violations from accessing an appropriate remedy. In MIDH v Côte
d'Ivoire, the Commission dealt with a complaint alleging that parts of the Ivorian
2000 Constitution and a specific amnesty law were in violation of the Charter.68
Although the Commission noted that the state may not itself have been directly
responsible for specific violations mentioned in the complaint, it held that the
‘granting of amnesty to absolve perpetrators of human rights violations from
accountability violates the right of victims to an effective remedy’ and that the
state therefore had violated Article 1 of the Charter.69
The Commission has also made similar declarations through its guidelines and
resolutions. The Robben Island Guidelines, for example, state that ‘in order to
combat impunity States should: (a) ensure that those responsible for acts of torture
or ill-treatment are subject to legal process; and (b) ensure that there is no immunity
from prosecution for nationals suspected of torture’.70 In the ‘Zero Draft’ General
Comment on the Right to Redress, paragraph 59 states: ‘In observing the right to a
fair and effective remedy for victims of torture, State Parties can adopt an approach
to justice that transcends the narrow concept of criminal justice and incorporates
restorative justice and redistributive justice while ensuring that the choice of the
transitional justice approach upholds the requirements of accountability and com-
bating impunity.’71
Not awarding the correct measure of reparations can also incur a finding of a
violation of a state’s due diligence duty. In Kazingachire and Others v Zimbabwe,
the Commission found that the state had failed in fulfilling its due diligence duty
because it did not allow for a specific type of compensation, similar to the English
bereavement damages for wrongful deaths. The communication involved allegations
of wrongful killings of four individuals in four incidents through the use of excessive
force by members of the police and the armed forces.72 In one of the cases, the
Commission found that the state was not directly responsible for the acts of members
of its army because they were acting in their private capacity but still held the state
responsible ‘because of the lack of due diligence and the incapacity [. . .] to satis-
factorily compensate the close relations of the deceased’.73
67
Victims of Post Electoral Violence v Cameroon, supra note 20, para. 115. See also ibid, para 119.
68
AfCHPR, Mouvement ivoirien des droits humains (MIDH) v Côte d'Ivoire (‘MIDH v Côte
d'Ivoire’), Communication No 246/02, July 2008.
69
Ibid, para 98.
70
Robben Island Guidelines, supra n 59, Arts 16 (a) and (b).
71
Zero Draft General Comment on Right to Redress, supra n 50, para 59.
72
Kazingachire and Others v Zimbabwe, supra n 44.
73
Ibid, para 134.
The Commission considered the amount of compensation awarded by the state,

which covered funeral expenses only, as unsatisfactory and found that instead it
must ‘cover any financially assessable damage and the satisfaction shall consist in an
acknowledgment of the breach and a formal apology’.74 The decision explains, at
some length, how the duty to provide adequate reparations is tied to the due diligence
duty and therefore state responsibility. It relies on the UN Basic Principles and
Guidelines on the Right to a Remedy and Reparation, explaining that an adequate
remedy must entail restitution, compensation, rehabilitation, satisfaction and guar-
antees of non-repetition.75
3.1.3 The Commission: Due Diligence and the Admissibility

of Communications
There is a strong link between a state’s failure to comply with its due diligence duty
and the admissibility requirements of a complaint to the Commission. According to
Article 56 of the Charter, the Commission may only consider the merits of a
complaint if this complaint satisfies a number of conditions, key of which is that it
is only sent ‘after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged’.76 The Commission has stated on multiple occasions
that the exhaustion of domestic remedies is not required where it is clear that
effective and sufficient remedies are not available. The Commission considers a
remedy available when it is accessible without impediment, effective where it offers
a prospect of success and sufficient when it is capable of redressing the complain-
ant.77 While the connection may not always be explicit, the Commission’s interpre-
tation of the domestic remedies provision makes a strong link between it and the due
diligence duty. If a state fails to properly investigate the actions of its agents or those
of a third party, the complainant may not be required to exhaust domestic remedies
before approaching the Commission. Practically speaking, if the Commission
accepts the complaint on admissibility because the state has failed to discharge its
duty to investigate or prosecute or punish, it is only logical that a substantive
violation will also be found, notwithstanding whether the act was committed by a
state or a non-state actor.
74
Ibid, para 135.
75
UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, A/RES/60/147, 21 Mar 2006, cited in Kazingachire and Others v
Zimbabwe, supra n 44, paras 129 to 131.
76
Banjul Charter, Art 56 (5).
77
Sir Dawda K. Jawara v Gambia, supra n 44, para 32; EIPR & INTERIGHTS v Egypt, supra n
26, para 93; AfCHPR, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v
Zimbabwe (‘Nyikadzino v Zimbabwe’), Communication 340/07, Mar 2012, para 32; AfCHPR,
Socio-Economic Rights and Accountability Project (SERAP) v Nigeria (‘SERAP v Nigeria’),
Communication 338/07, Nov 2010, para 59.
Similarly, if the legal environment of a country fails to provide for specific,

necessary remedies, this may be used both as an argument that domestic remedies
are not available and that the state has failed to fulfil its due diligence duty. In
Zimbabwe Human Rights NGO Forum v Zimbabwe, the Commission found that a
clemency law preventing criminal prosecution for certain crimes meant that the
claimants ‘were effectively robbed of any remedies’.78 As such, they did not have
to satisfy the exhaustion of domestic remedies requirement under Article 56(5).79
The Commission found the clemency law ‘foreclosed access to any remedy that
might be available to the victims to vindicate their rights, and without putting in
place alternative adequate legislative or institutional mechanisms to ensure that
perpetrators of the alleged atrocities were punished, and victims of the violations
duly compensated or given other avenues to seek effective remedy, the respondent
state did not only prevent the victims from seeking redress, but also encouraged
impunity, and thus reneged on its obligation in violation of Articles 1 and 7 (1) of the
African Charter’.80
It is unclear how far the connection between admissibility and an assessment of
the merits goes. For instance, the case law has been mixed on the question whether
the duty to investigate, prosecute and punish is a proprio motu duty, which is a duty
that should be assumed by the state out of its own volition and on its own initiative.81
This seems to have been the Commission’s position in Zimbabwe Human Rights
NGO Forum v Zimbabwe, a case that involved large-scale human rights violations
and where the Commission held as follows:
the primary responsibility for the protection of human rights in a country lies with the
government of that country [. . .]. Therefore any criminal processes that flow from this
action, including undertaking investigations to make the case for the prosecution are the
responsibility of the state concerned and the state cannot abdicate that duty. To expect
victims of violations to undertake private prosecutions where the state has not instituted
criminal action against perpetrators of crimes or even follow up with the Attorney General
what course of action has been taken by the state [. . .] would be tantamount to the state
relinquishing its duty to the very citizens it is supposed to protect. Thus, even if the victims
of the criminal acts did not institute any domestic judicial action, as the guardians of law and
order and protectors of human rights in the country, the respondent state is presumed to be
sufficiently aware of the situation prevailing in its own territory and therefore holds the
ultimate responsibility of harnessing the situation and correcting the wrongs complained
of.82
78
79
Ibid, paras 50, 64.
80
Ibid, para 215.
81
Article 19 v Eritrea, supra n 62, para 72.
82
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, paras 69–70; see also AfCHPR,
Malawi African Association and Others v Mauritania, Communication Nos 54/91, 61/91, 98/93,
164/97 à 196/97 and 210/98, May 2000; AfCHPR, Amnesty International, Comité Loosli
Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal
Conference of East Africa v Sudan (‘Amnesty International and Others v Sudan’), Communication
Nos 48/90, 50/91, 52/91, 89/93, Nov 1999.
Equally, in Article 19 v Eritrea, the Commission noted:

whenever there is a crime that can be investigated and prosecuted by the State on its own
initiative, the State has the obligation to move the criminal process forward to its ultimate
conclusion. In such cases, one cannot demand that the complainants, or the victims or their
family members assume the task of exhausting domestic remedies. It is up to the State to
investigate the facts and bring the accused to court in accordance with both domestic and
international fair trial standards.83
The Commission further stated that in cases where the state is properly informed
but fails to act, it means that domestic remedies are either not available or, if they are,
not effective or sufficient to redress the violations alleged.84
In other decisions, however, the Commission seems to suggest that the complain-
ant has a duty to approach judicial remedies first, even if it is proven that the state has
had ‘ample notice’.85 This is an area where more clarification from the Commission
with regard to both admissibility and the due diligence duty could be helpful.
3.1.4 The Court’s Approach to the Duty to Investigate, Prosecute

and Punish
While not explicitly referring to a due diligence duty, the Court has handed down
two judgments related to the issue of effective investigations into human rights
violations. In the case of Zongo v Burkina Faso,86 which concerned the assassination
of an investigative journalist, the Court noted that the respondent state was ‘com-
pelled’ under Article 7 of the Charter to make all necessary efforts to ‘search,
prosecute and bring to trial the perpetrators’ of the crimes.87 The Court continued:
‘The question [. . .] is, whether the Respondent had fully complied with that obliga-
tion, and more specifically, whether it had acted with due diligence.’88 While the
Court acknowledged that a number of investigations had been carried out by the
83
Article 19 v Eritrea, supra n 62, para 72.
84
Ibid, para 77. See also Elgak and Others v Sudan, supra n 44, para 61: ‘The Government therefore
was not unaware of the situation; rather it wanted a formal legal complaint to be filed. In the case of
Amnesty International and Others v Sudan wherein lawyers, human rights activists and members of
opposition group were arbitrarily arrested, tortured and killed and where there were reports by the
media and UN organs about these violations, the Commission found that “even where no legal
action has been brought by the alleged victims at the domestic level, the government has been
sufficiently aware to the extent that it can be presumed to know the situation within its own territory
as well as the content of its international obligations”.’
85
The authors of this chapter have had access to several admissibility decisions as a result of their
own litigation practice. However, it is not possible to reflect on these in detail in view of the
Commission’s strict interpretation of the confidentiality requirement: Banjul Charter, Art 59 and
AfCHPR Rules of Procedure, Rule 18 (d), 22, 31 (3), and 110 (3).
86
Zongo v Burkina Faso, judgment on the merits, supra n 33.
87
Ibid, para 150.
88
Ibid.
Burkinabe authorities,89 the Court deemed the efforts inadequate, failing to meet the
state’s obligation to act with due diligence on account of ‘discrepancies’ in the
treatment of the matter by the local courts.90
The Court summed up the four main shortcomings as follows: first, the protracted
duration of the proceedings, which stood at just under 8 years when the case was
filed at the Court. The Court considered that ‘due diligence obliges the State
concerned to act and react with the dispatch required to ensure the effectiveness of
available remedies’.91 Second, the authorities failed to follow certain lines of
enquiry, including those recommended by an independent commission.92 Third,
there was a delay in hearing a damages suit brought by the relatives of the victims,
until 8 years after the incident. The Court stated: ‘Diligence certainly would have
required that they be heard at the early stages of the investigation regardless of the
outcome.’93 Fourth, once proceedings against the principal accused had been termi-
nated with no resulting conviction, the authorities pursued no further investigations.
‘Due diligence would also have required that the Respondent should not abandon the
search for those who murdered Norbert Zongo and his companions.’94 In view of
these discrepancies, the Court found that ‘the Respondent had not acted with due
diligence in seeking out, prosecuting and placing on trial those responsible for the
murder of Norbert Zongo and his companions’95 and held that Burkina Faso had
violated the applicants’ rights under Article 7.96
The Court did, however, make clear that the mere fact that the Burkinabe
authorities failed to properly investigate the murder of Norbert Zongo did not
automatically imply that the state had failed its duty in protecting the journalistic
profession in the country at large. In the absence of any proof to this end having been
provided by the applicants, the Court found: ‘In the circumstances, the respondent
state cannot be accused of directly violating the freedom of expression of journalists
as guaranteed under Article 9 of the Charter, read together with Article 66(2)(c) of
the Revised ECOWAS Treaty, merely because it had not acted with diligence and
efficiency in identifying and bringing to trial the assassins of Norbert Zongo.’97
The extent to which an investigation is considered sufficient under Article 7 is
expanded upon in the case of Abubakari v Tanzania.98 The applicant had been
convicted to 30 years’ imprisonment for armed robbery charges and alleged a
89
Ibid, para 151.
90
Ibid, para 152.
91
Ibid.
92
Ibid, para 153.
93
Ibid, para 154.
94
Ibid, para 155.
95
Ibid, para 156.
96
Ibid.
97
Ibid, para 187.
98
AfCtHR, Mohamed Abubakari v United Republic of Tanzania (‘Abubakari v Tanzania’), Appli-
cation 007/2013, judgment on the merits, 3 June 2016.
number of fair trial violations by the respondent state, including a conflict of interest
regarding the State Attorney’s investigation of his case. The Court found that by not
pushing for further investigations on an issue of alleged conflict of interest, the
national judge had violated the applicant’s right to a fair trial.99 According to the
Court, the applicant should have been asked to substantiate his claims regarding the
conflict. The failure of the respondent state to do so constituted an Article
7 violation.100
Similarly, the Court found Tanzania at fault for its failure to investigate the
applicant’s alibi claim, which the state argued had been raised too late in proceedings
to be considered under its national legal system.101 However, the Court found that
the respondent was ‘not justified in invoking the state of its domestic judicial system
and technicalities that may be used to subvert compliance with its international
commitments in matters of human rights’.102 The Court went on to find that ‘the
absence of detailed investigation of the alibi allegation made by the Applicant, and
the non-consideration of this defence by national courts constitute a violation of his
right to a fair trial as guaranteed by Article 7’.103
3.1.5 The Court: Due Diligence and the Admissibility

of Communications
In relation to admissibility requirements and due diligence, in Zongo v Burkina Faso,

the Court had the opportunity to determine if proceedings—in this case the inves-
tigation into the death of a journalist and his colleagues—had been unduly
prolonged. This would excuse the applicants from the obligation to exhaust the
final domestic remedy that was available to them, namely an appeal to the Cour de
Cassation. While the Court found that such an appeal, in principle, could have been
an effective remedy104 and not, as the applicants argued, ‘a waste of time’,105 the
Court considered that the investigations into the deaths, which had taken 7 years,
8 months and 10 days (from 13 December 1998 to 21 August 2006), should be
considered unduly prolonged.106 The applicants therefore did not need to exhaust
domestic remedies.107 The Court, however, chose to discuss the question of the
99
Ibid, para 111.
100
Ibid.
101
Ibid, para 189.
102
Ibid, para 192.
103
Ibid, para 194.
104
105
Ibid, para 62.
106
Ibid, para 106.
107
Ibid.
diligence of the state authorities in their investigations in the context of the merits of
the case, as discussed above.108
3.2 Due Diligence in Commission Recommendations

and Court Orders
3.2.1 The Commission’s Approach to Recommendations and Due

Diligence
The Commission’s approach towards recommendations has not been very detailed.
In most cases, especially the older communications, the Commission simply
declared which articles of the Charter had been violated and which had not.
Sometimes it has added one or two general recommendations on the need to reform
laws to bring them in line with the Charter or the need to investigate the issue further
and bring perpetrators to justice. But even in cases where there has been a lengthy
discussion of the due diligence standard, the content of the recommendations rarely
reflects the details of the discussion. For instance, in EIPR & INTERIGHTS v Egypt,
despite the complex analysis of the standards of an effective investigation (see
above), the only recommendation made to Egypt is ‘to investigate the violations,
and bring the perpetrators to justice’ without providing more details or suggestions
for institutional reforms.109 Similarly, despite engaging in a detailed analysis of the
effects of the clemency law on the due diligence duty in Zimbabwe Human Rights
NGO Forum v Zimbabwe, the Commission ultimately calls on the state ‘to establish
a Commission of Inquiry to investigate the causes of the violence [. . .] and bring
those responsible for the violence to justice, and identify victims of the violence in
order to provide them with just and adequate compensation’.110
An example of a case in which the Commission has provided a more detailed
description of remedies and recommendations, including measures related to its due
diligence duty, is Sudan Human Rights Organisation & Centre on Housing Rights v
Sudan. In that case, the Commission concluded its decision by recommending Sudan
to
(a) conduct effective official investigations into the abuses, committed by members of
military forces, i.e. ground and air forces, armed groups and the Janjaweed militia for
their role in the Darfur;
(b) undertake major reforms of its legislative and judicial framework in order to handle cases
of serious and massive human rights violations;
(c) take steps to prosecute those responsible for the human rights violations, including
murder, rape, arson and destruction of property;
108
Ibid, para 97.
109
EIPR & INTERIGHTS v Egypt, supra n 26, para 275.
110
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, holding.
(d) take measures to ensure that the victims of human rights abuses are given effective
remedies, including restitution and compensation;
(e) rehabilitate economic and social infrastructure, such as education, health, water, and
agricultural services, in the Darfur provinces, in order to provide conditions for the
return in safety and dignity of the IDPs and Refugees;
(f) establish a National Reconciliation Forum to address the long-term sources of conflict,
equitable allocation of national resources to the various provinces, including affirmative
action for Darfur, the resolution of issues of land, grazing and water rights, including the
destocking of livestock;
(g) desist from adopting amnesty laws for perpetrators of human rights abuses.111
It should be noted that the language of the recommendations seems to be

addressing violations committed by state agents. However, a significant part of the
decision deals with violations committed by non-state actors and the duty to
investigate and prosecute perpetrators.112
3.2.2 The Court’s Approach to Orders and Due Diligence
While the Court has been very directive in some of its provisional measure orders
and judgments, including ordering respondent states to enact legislative change,113
provide health care114 and halt executions,115 very few of the orders given by the
Court to date relate directly to the due diligence duty to investigate, prosecute and
punish. In the case of Zongo v Burkina Faso, the Court ordered the respondent state
to ‘reopen investigations with a view to prosecute and bring to trial the perpetrators
of the murder of Norbert Zongo and his three companions, and thus shed light on this
matter and do justice to the families of the victims’.116 However, the Court was
unwilling to give specific instructions in the end. The Court stated: ‘the Court would
also like to emphasize that whereas it may indeed order the state to adopt certain
111
112
Ibid, paras 148, 159, 169.
113
AfCtHR, Tanganyika Law Society (1) and The Legal and Human Rights Centre (2) v The United
Republic of Tanzania and Reverend CR Mtikila v The United Republic of Tanzania (‘Tanganyika
Law Society v Tanzania’), Applications No 009/2011 & 011/2011, judgment on the merits, 14 June
2013, para 126 (3); AfCtHR, Lohé Issa Konaté v Burkina Faso (‘Konaté v Burkina Faso’),
Application No 004/2013, judgment on the merits, 5 Dec 2014, para 176 (8), making very specific
recommendations on what changes needed to be made by the respondent state; APDH v Cote
d'Ivoire, judgment on the Merits, supra n 41, para 153 (6).
114
AfCtHR, Lohé Issa Konaté v Burkina Faso (‘Konaté v Burkina Faso’), Application No
004/2013, order for provisional measures, 4 Oct 2013, paras 23 (i) and 23 (ii).
115
See, for example, AfCtHR, Ally Rajabu & Others v United Republic of Tanzania (‘Rajabu &
Others v Tanzania’), Application No 007/2015, order for provisional measures, 18 Mar 2016, para
22 (a).
116
AfCtHR, Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest Zongo
and Blaise IIboudo & the Burkinabe Human and Peoples’ Rights Movement (‘Zongo v Burkina
Faso’), Application No 013/2011, judgment on reparations, 5 June 2015, para 109. See also para
111 (x).
measures, the Court does not however deem it necessary to indicate to the state how
it should comply with the Court’s decision, that being left to the discretion of the said
state.’117
In the case of African Commission v Libya, the final judgment references a
provisional measure order issued by the Court on 10 August 2015, which required
Libya, amongst others, to ‘take urgent steps to arrest and prosecute those illegally
holding Mr. Saif Gadhafi’.118 The order, however, does not provide any further
specifics on how the Court would have liked to see these ‘steps’ implemented. This
is perhaps understandable, given the stage the case was at when ordering provisional
measures, but the Court also does not address the matter further in its discussion of
the merits in the judgment itself. It will be interesting to see how the Court’s case law
on this point will develop in the future and especially if it will move towards a more
detailed approach than it has taken so far.
4 The Commission’s and Court’s Roles in Determining

Violations of Other International Treaties
4.1 The Commission’s Approach to Determining Violations
of Other International Treaties
Under Article 60 of the Charter, the Commission ‘shall draw inspiration from
international law on human and peoples’ rights, particularly from the provisions of
various African instruments on Human and Peoples’ Rights, the Charter of the
United Nations, the Charter of the Organisation of African Unity, the Universal
Declaration of Human Rights, other instruments adopted by the United Nations and
by African countries in the field of Human and Peoples’ Rights, as well as from the
provisions of various instruments adopted within the Specialised Agencies of the
United Nations of which the Parties to the present Charter are members’.119 Article
61 states that the Commission can use ‘other general or special international
conventions’ as a subsidiary measure to ‘determine the principles of law’.120
While the Commission makes frequent reference to other international standards
in its examination of communications,121 it does not have an established practice of
finding violations of other international treaties. For example, in Zimbabwe Human
Rights NGO Forum v Zimbabwe, the Commission relied on several international
117
Ibid, para 108.
118
Referenced in African Commission v Libya, judgment on the merits, supra n 35, para 37.
119
120
121
As discussed previously, the Commission relied chiefly on the IACtHR decision in the Velásquez
Rodríguez case, supra note 47, to explain how acts by third parties may end up imputing state
responsibility, see Sect. 3.1.
instruments to establish Zimbabwe’s ‘explicit obligations [. . .] to take effective

measures to prevent private violations of human rights’.122 The Commission
referenced the obligation under the International Covenant on Civil and Political
Rights (ICCPR)123 to ‘ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity’.124 It also
referenced General Comment No. 20 on Article 7 ICCPR, which states that ‘[i]t is
the duty of the state party to afford everyone protection through legislative and other
measures as may be necessary against the acts prohibited by Article 7, whether
inflicted by people acting in their official capacity, outside their official capacity or in
a private capacity’. Finally, the Commission also referenced the Committee on the
Elimination of All Forms of Discrimination Against Women (CEDAW), which
stated that ‘states may also be responsible for private acts if they fail to act with
due diligence to prevent violations of rights or to investigate and punish acts of
violence and for providing compensation’.125 Despite this, the Commission did not
frame the violations it found in this case in terms other than those of the Charter.126
The same was true in Sudan Human Rights Organisation & Centre on Housing
Rights v Sudan. In this case, the Commission observed that Sudan claimed to have
properly investigated the alleged violations. The Commission asked: ‘The question
is – were all these initiatives done in accordance with international standards? Did
they meet the test of effective official investigations under international human rights
law?’127 This phrasing implies that a finding of violation of international human
rights law would imply a violation of the Charter. However, this was not developed
further in the rest of the decision.
In EIPR & INTERIGHTS v Egypt, the Commission implied that a violation of the
Charter entailed a violation of other international instruments but stopped short of
specifying in its decision which ones it considered to be implicated. In finding that
Egypt had violated Article 5 of the Charter, the Commission relied on the interna-
tional obligations of Egypt emanating from the ICCPR and from the Declaration on
the Elimination of Violence Against Women.128 The Commission noted that Article
4 (c) of the Declaration provided that states should ‘[e]xercise due diligence to
prevent, investigate and, in accordance with national legislation, punish acts of
violence against women, whether those acts are perpetrated by the state or by private
122
123
International Covenant on Civil and Political Rights (ICCPR), 16 Dec 1966, UNTS 999:171.
124
HRCtee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel,
Inhuman or Degrading Treatment or Punishment), 10 Mar 1992.
125
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW
General Recommendation No. 19: Violence against women, 1992, Art 9.
126
Zimbabwe Human Rights NGO Forum v Zimbabwe, supra n 21, holding.
127
128
EIPR & INTERIGHTS v Egypt, supra n 26, paras 204, 207, 208.
persons’.129 The Commission also noted that as a party to the Convention Against
Torture, Egypt was bound to take steps ‘to ensure that the complainant and witnesses
are protected against all ill-treatment or intimidation as a consequence of his
complaint or any evidence given’130 and that Article 7 ICCPR provided that ‘no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment’.131 After recalling these different international obligations, the Com-
mission noted that Egypt’s failure to effectively investigate the acts ‘amounted to an
infringement of the rights of the Victims under Article 5 of the African Charter and
other international instruments that the Respondent State is a party to’.132
4.2 The Court’s Approach to Determining Violations of Other

International Treaties Than the African Charter
The Court has a more explicit mandate to assess human rights violations under other
international treaties alongside the Charter. Article 3 of the Protocol states that the
Court’s jurisdiction extends to all cases and disputes submitted to it concerning a
violation of the Charter ‘and any other relevant Human Rights instrument ratified by
the states concerned’.133 Article 7, on sources of law, furthermore states that ‘The
Court shall apply the provisions of the Charter and any other relevant human rights
instruments ratified by the states concerned’.134 These explicit references to applying
and assessing a violation of international standards other than the Charter notwith-
standing, the Court’s approach in finding violations under legal instruments other
than the Banjul Charter has been inconsistent so far.
In Tanganyika Law Society v Tanzania, the Court, having considered the alleged
violations under the Charter, found it unnecessary to go on and address the alleged
violations under the ICCPR. Doing so, the Court found, would be addressing the
same wrong, just under a different legal instrument: ‘The Court notes that it has
jurisdiction to interpret the said Treaties under Article 3 (1) of the Protocol which
provides that “the jurisdiction of the Court shall extend 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”. . .The Court, having considered the alleged violations under the relevant
129
Declaration on the Elimination of Violence against Women, General Assembly resolution
48/104 of 20 Dec 1993, UN Doc. A/12175/48/104, 23 Feb 1994, Art 4 (c).
130
Convention Against Torture, Art 13.
131
ICCPR, Art 7.
132
EIPR & INTERIGHTS v Egypt, supra n 26, para 208 (emphasis added).
133
Protocol, Art 3. For further reading on the mandate of the Court, see Van der Mei (2005),
pp. 113–129.
134
Protocol, Art 7.
provisions of the Charter, does not, however, deem it necessary in this case to
consider the application of these treaties.’135
Similarly, in Zongo v Burkina Faso, having found the respondent in violation of
Article 7 of the Charter, the Court found that it did not have to consider the
‘allegations made in the same vein’ under the ICCPR and the Universal Declaration
of Human Rights.136
The Court took a slightly different approach in Alex Thomas v Tanzania. The
complaint had been formulated as a violation of the African Charter only.137 The
Court, however, on its own initiative, included Tanzania’s obligations under the
ICCPR in its considerations when assessing the alleged fair trial violations: ‘In view
of the fact that the respondent acceded to the International Covenant on Civil and
Political Rights (ICCPR) on 11 June 1976 and deposited its instrument of accession
on the same date, in accordance with Article 7 of the Protocol, the Court can interpret
Article 7 (1) (c) of the Charter in light of the provisions of Article 14 (3) (d) of the
ICCPR.’138 The Court went on to find a violation of both treaties139 but left out any
discussion of the ICCPR counterparts of Charter Articles 3, 5, 6, 7 (1) (b) and 9 (1),
protecting the right of equality before the law, the prohibition of torture, the right to
liberty and security of person, the right to be presumed innocent and the right to
receive information, which it considered not to have been violated, contrary to the
applicant’s assertions.140
In Konaté v Burkina Faso, the Court found the respondent to be in violation of its
obligations not only under the Charter but also under the ICCPR and Revised
ECOWAS Treaty, all of which had been argued by the applicant.141 In this case,
the Court also gave very detailed orders to the respondent state to bring its domestic
legislation in line with the Banjul Charter, ICCPR and the Revised ECOWAS Treaty
by ordering the respondent state ‘to amend its legislation on defamation in order to
make it compliant with Article 9 of the Charter, Article 19 of the Covenant and
Article 66 (2)(c) of the Revised ECOWAS Treaty: (1) by repealing custodial
sentences for acts of defamation; and (2) by adapting its legislation to ensure that
other sanctions for defamation meet the test of necessity and proportionality, in
accordance with its obligations under the Charter and other international
instruments’.142
In Abubakari v Tanzania, the Court assessed the alleged violation of the appli-
cant’s fair trial rights under Article 7 of the Banjul Charter alongside Article
135
Tanganyika Law Society v Tanzania, judgment on the merits, supra n 113, paras 122 and 123.
136
137
Alex Thomas v Tanzania, supra n 33, para 19.
138
Ibid, para 88.
139
Ibid, para 161 (vii). See also paras 81 to 99 and paras 111 to 131.
140
Ibid, para 161 (vi). See also paras 138 to 154.
141
Konaté v Burkina Faso, judgment on the merits, supra n 113, paras 170 (3)–(7).
142
Ibid, para 170 (8).
14 ICCPR and referenced both treaties in its holding.143 References of the Court to
applicant’s arguments throughout the judgment show that the complaints had been
formulated as a violation of both treaties.
In African Commission v Libya, the Court referenced various provisions of the
ICCPR alongside the Charter provisions claimed to have been violated in the case
and also made reference to the Body of Principles for the Protection of All Persons
Under Any Form of Detention or Imprisonment.144 However, the Court ultimately
only found a violation of Articles 6 and 7 of the Banjul Charter, as had been argued
by the applicant,145 in spite of the Court’s references to corresponding ICCPR
provisions in its assessment.146
In APDH v Cote d'Ivoire, the applicants argued that the respondent state’s
adoption of a new law on the Electoral Commission in the country had violated
the right to equality before the law, as well as the right to an independent and
impartial electoral body. These were framed as a violation of ‘Articles 3 and
13 (1) and (2) of the [African] Charter on Human [and Peoples’] Rights, Articles
10 (3) and 17 (1) of the African Charter on Democracy [, Elections and Governance],
Article 3 of the ECOWAS Democracy Protocol [ECOWAS Protocol on Democracy
and Good Governance], Article 1 of the Universal Declaration of Human Rights and
Articles 26 of the International Covenant on Civil and Political Rights’.147 The Court
engaged in a detailed discussion as to whether or not the African Charter on
Democracy, Elections and Governance (‘African Charter on Democracy’)148 and
the ECOWAS Protocol on Democracy and Good Governance (‘ECOWAS Democ-
racy Protocol’)149 could be considered ‘human rights treaties’ in the sense of Article
3 of the Protocol.150 It concluded that since both instruments have the purpose of
either expressly enunciating the subjective rights of individuals or placing manda-
tory obligations on States Parties for the enjoyment of such rights, they fell within
the scope of Article 3 of the Protocol.151
Interestingly, the Court appeared to find that a violation of the African Charter on
Democracy and, consequently, the ECOWAS Democracy Protocol had led to a
violation of the Charter and ruled ‘that the respondent state has violated its obligation
143
Abubakari v Tanzania, supra n 98, para 242.
144
African Commission v Libya, judgment on the merits, supra n 35, paras 81–92.
145
Ibid, para 11.
146
147
APDH v Cote d’Ivoire, supra n 41, para 20.
148
African Union, African Charter on Democracy, Elections and Governance, 30 Jan 2007,
available at: http://www.achpr.org/files/instruments/charter-democracy/aumincom_instr_charter_
democracy_2007_eng.pdf. Accessed 26 Jan 2017.
149
Economic Community of West African States, Protocol on Democracy and Good Governance,
A/SP1/12/01, 21 Dec 2001, available at: http://www.internationaldemocracywatch.org/attach
ments/350_ECOWAS%20Protocol%20on%20Democracy%20and%20Good%20Governance.pdf.
Accessed 26 Jan 2017.
150
APDH v Cote d'Ivoire, supra n 41, paras 47 to 65.
151
Ibid, paras 57 to 65.
to establish an independent and impartial electoral body as provided under Article

17 of the African Charter on Democracy and Article 3 of the ECOWAS Democracy
Protocol, and consequently, also violated its obligation to protect the right of the
citizens to participate freely in the management of the public affairs of their country
guaranteed by Article 13 (1) and (2)) of the African Charter on Human and Peoples’
Rights’.152 It also found that Cote d'Ivoire had violated its obligation to protect the
right to equal protection of the law under Article 10 (3) of the African Charter on
Democracy, Article 3 (2) of the Banjul Charter and Article 26 ICCPR.153 No
mention was made of the Universal Declaration of Human Rights. Arguably, the
Court considers this an instrument that does not place mandatory obligations upon
states, unlike the African Charter on Democracy and the ECOWAS Democracy
Protocol,154 but this is not explicitly clarified. The Court ordered the respondent state
to make its national legislation ‘compliant with the aforementioned instruments to
which it is a Party’,155 i.e. including other treaties than just the Banjul Charter.
It should be noted that the findings of the Commission and the Court will be
affected by both the legal representation of the parties (do they argue violations of
other international standards and present the Commission or Court with persuasive
comparative and international jurisprudence?) and the expertise available amongst
the legal staff employed by the two bodies. While the key arguments made by parties
are likely to be reflected in the decisions and judgments, a proper assessment of the
openness and level of proactiveness of both the Commission and Court regarding
other international standards can only be made in an accurate manner by studying the
casefile in its entirety.
That being said, the Court is the body that is most explicitly mandated to do this
under Article 3 of the Protocol. Nevertheless, in at least two Court cases (Zongo v
Burkina Faso and Tanganyika Law Society v Tanzania), it is clear from the judg-
ments that an argument of violations of rights other than those enshrined in the
Charter was made by the applicants, but the Court refused to engage with those other
treaties. A more critical view is that the Court has yet to find its way to developing
practices that adhere to key principles of international adjudication, such as the jura
novit curia principle. As the International Court of Justice has stated: ‘The Court
[. . .], as an international judicial organ, is deemed to take judicial notice of interna-
tional law, and is therefore required in a case falling under Article 53 of the Statute,
as in any other case, to consider on its initiative all rules of international law which
may be relevant to the settlement of the dispute. It being the duty of the Court itself to
ascertain and apply the relevant law in the given circumstances of the case, the
152
Ibid, para 153(5).
153
Ibid, para 153(6).
154
Ibid, para 57 to 65.
155
Ibid, para 153 (7).
burden of establishing or proving rules of international law cannot be imposed upon

any of the parties, for the law lies within the judicial knowledge of the Court.’156
When determining its own jurisdiction, the Court is diligent in noting the
requirements of international treaties.157 In assessing part of the merits in the
Abubakari case, it did so on its own initiative, as discussed above. Furthermore,
there has been some discussion in earlier cases brought before the court such as
Chacha v Tanzania and Tanganyika Law Society v Tanzania, in which Tanzania
tried to use as a bar for admissibility the fact that the applicants had cited only
national law as a basis for their claims. The Court declared that ‘where only national
law has been cited and relied upon in an Application, the Court will look for
corresponding Articles in the Charter or any other human rights instrument, and
base its decision thereon’.158 It would be helpful if the Court established a more
consistent practice, in line with the mandate it was given, when assessing the claims
brought before it.
5 Conclusion
The case law of the Commission and the Court over the last 10 years reveals that they
can at times be directive and detailed in how they like to see States Parties to the
African Charter comply with their duty to investigate, prosecute and punish human
rights violations. The Commission’s case law is more developed than the Court’s,
which has had fewer opportunities to develop its practice regarding this issue. The
Court has generally also been less forthcoming in detailing what action it expects
States Parties to take in fulfilling their obligations. It will be interesting to see if the
Court’s approach will begin to increasingly follow the Commission’s, with time.
The Court has an explicit mandate to assess human rights violations under
international treaties other than the Charter, while the Commission does not. Both
bodies consider legal instruments other than the Charter in their examination of
claims, but neither has developed consistent practice in applying other standards in
their actual assessments of alleged violations. The Court’s recent case law shows a
more forthcoming approach towards finding violations of other treaties, but it is yet
to establish a consistent approach.
156
International Court of Justice, Military and Paramilitary Activities (Nicaragua v US), judgment
on the merits, 27 June 1986, ICJ Reports 1986, 14, para 29. This view was also referenced by Judge
Ouguergouz (on a different topic) in his Separate Opinion in African Commission v Libya, supra n
36, paras 5 and 6.
157
See, for example, Abubakari v Tanzania, supra n 98, para 32.
158
AfCtHR, Peter Joseph Chacha v The United Republic of Tanzania, Application 003/2012,
ruling, 28 Mar 2014, para 113.
References
Ebobrah ST (2011) Towards a positive application of complementarity in the African human rights
system: issues of functions and relations. Eur J Int Law 22:663–688
Muigai G (2011) From the African Court on human and peoples’ rights to the African Court of
justice and human rights. In: Ssenyonjo M (ed) The African regional human rights system
30 years after the African charter on human and peoples’ rights. Martinus Nijhoff, Leiden, pp
265–282
Murray R (2015) The implementation of the findings of the African commission on human and
peoples’ rights. Cambridge University Press, Cambridge
Ouguergouz F (2003) The African charter of human and peoples’ rights: a comprehensive Agenda
for human dignity and sustainable democracy in Africa. Martinus Nijhoff, The Hague
Van der Mei AP (2005) The new African Court on human and peoples’ rights: towards an effective
human rights protection mechanism for Africa? Leiden J Int Law 18:113–129
Part IV
The Role of Courts in the Domestic
Implementation of International
Human Rights
General Overview
Reception and Implementation of International Human
Rights Standards and Human Rights Jurisprudence
by Domestic Courts and Other National Bodies
Matthias Herdegen
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
2 International Human Rights Courts and Other Supervisory Treaty Bodies: Obligations
of Compliance with Rulings and Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
2.1 International Human Rights Courts and Other Monitoring Treaty Bodies: Due
Compliance by States Parties and Interpretative Guidance for Domestic Bodies . . . 347
2.1.1 The European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
2.1.2 The American Commission of Human Rights
and the Inter-American Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
2.1.3 The African Commission and the African Court on Human
and Peoples’ Rights . . .. . .. . . .. . .. . .. . . .. . .. . .. . . .. . .. . .. . . .. . .. . .. . . .. . .. . .. . . .. . . 349
2.1.4 Supervision Under the Arab Charter on Human Rights . . . . . . . . . . . . . . . . . . . . . . 350
2.2 “Control of Conventionality” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
2.3 Supervision of Compliance with Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
2.4 Dynamic Interpretation as a Major Challenge to Implementation . . . . . . . . . . . . . . . . . . . 352
2.4.1 Human Rights Treaties as “Living Instruments” and Interpretation Driven by
Judicial Activism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
2.4.2 The Dilemma for Domestic Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
3 Human Rights Standards Developed by the International Court of Justice and Other
Universal Dispute Settlement Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
4 Nonbinding Standards: The UN Declaration on the Rights of Indigenous Peoples . . . . . . . 354
5 Decisions of National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
5.1 Decisions of the International Court of Justice and National Courts . . . . . . . . . . . . . . . . 356
5.1.1 Deferential Approach with Nuances: The Case of Germany . . . . . . . . . . . . . . . . 356
5.1.2 “Respectful Consideration”: The US Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . 357
5.2 Supervisory Bodies Under Universal Human Rights
Treaties and National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
5.3 Regional Human Rights Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
5.3.1 European Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
5.3.2 Inter-American Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
5.3.3 African Charter on Human and Peoples’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
5.3.4 Other Regional Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
M. Herdegen (*)
Institute for Public International Law, University of Bonn, Bonn, Germany
e-mail: herdegen@uni-bonn.de

https://doi.org/10.1007/978-3-319-94848-5_13
346 M. Herdegen
6 Other National Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

6.1 National Contact Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
6.2 National Human Rights Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
6.2.1 The Paris Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
6.2.2 NHRIs and International Organizations and Treaties . . . . . . . . . . . . . . . . . . . . . . . . 381
6.2.3 Example: South African Human Rights Commission . . . . . . . . . . . . . . . . . . . . . . . . 382
7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
1 Introduction
The interpretation of human rights treaties is primarily the function of international

courts and other treaty bodies. Still, international bodies compete with domestic
courts, which carry responsibility for the application and interpretation of human
rights standards. Reception and implementation of international human rights stan-
dards as interpreted by international courts, domestic courts, and other national
authorities show a broad range of different patterns. National courts and other
domestic authorities may act in full conformity with the interpretation of interna-
tional treaty bodies or at least consider them respectfully. In other cases, the
decisions of international bodies are not known at all and are, at worst, fully ignored.
An important factor is the increasingly intense interplay between international
human rights and fundamental rights, which often share the same wordings but may
or may not have the same meaning. The interpretation of rights under constitutions
and ordinary legislation may be inspired by individual guarantees under interna-
tional treaties as applied by international bodies, without necessarily recognizing
them as authoritative guidance. The Committee on International Human Rights Law
and Practice of the International Law Association rightly concluded in its 2004
report that the practice and case law of human rights treaty bodies qualify as
“subsequent practice” in terms of Article 31 (3) (b) of the Vienna Convention on
the Law of Treaties (VCLT).1 Still, the impact of these decisions within domestic
law depends on the rank of the underlying rules of international law in the domestic
legal order.
The once clearly established line between the monist and the dualist model has
become blurred for purposes of implementing human rights standards and the
deference to international human rights case law.2 In general, decisions of interna-
tional treaty bodies have no direct effect in national law. In federal systems, courts
may adopt different positions as to the respect for international rules at the federal
and the subfederal levels.
1
International Law Association (2004) paras 20–21, referring to Herdegen (2018), p. 125.
2
Carver (2010).
General Overview 347
This chapter analyzes the varying forms and degrees of deference paid by
domestic courts to the case law of international and other supervisory treaty bodies.
It also discusses the role of nonjudicial national bodies in the implementation of
international human rights treaties with particular reference to National Contact
Points under the OECD Guidelines for Multinational Enterprises.
2 International Human Rights Courts and Other

Supervisory Treaty Bodies: Obligations of Compliance
with Rulings and Findings
At least in an ideal model, the guarantee for applying human rights standards lies
primarily with domestic courts. Still, the principal interpretative authority rests with
international courts and other supervisory treaty bodies. Their supervisory powers
have a twofold impact: they vest these international bodies with special authority as
interpreters and, in addition, create an incentive for domestic courts to apply human
rights standards in accordance with international rulings or at least in good faith.
This double impact is particularly strong when a human rights regime allows
individual complaints or complaints by other States parties before international
courts or other treaty bodies. When complaints require the prior exhaustion of
local remedies,3 they will, as a rule, also challenge decisions of national courts.
2.1 International Human Rights Courts and Other

Monitoring Treaty Bodies: Due Compliance by States
Parties and Interpretative Guidance for Domestic Bodies
Binding determination of human rights standards is reserved to rulings of interna-

tional courts. Still, other monitoring bodies provide important guidance for human
rights treaties. This holds particularly true for the Human Rights Committee and its
findings on individual complaints about violations of the International Covenant on
Civil and Political Rights (ICCPR).4 The Human Rights Committee also operates as
the predominating interpreter through its general comments on the Covenant and its
comments on national reports. Other monitoring bodies that operate under UN
human rights treaties also play an important role as authoritative voices of
interpretation.
3
See Art 35 (1) European Convention on Human Rights, Convention for the Protection of Human
Rights and Fundamental Freedoms (the European Human Rights Convention) (Rome, 4 Nov 1950,
CETS 5); Art 46 (1) lit. a American Convention on Human Rights (San José, Costa Rica,
22 Nov 1969).
4
See e.g. von der Wense (1999).
348 M. Herdegen
2.1.1 The European Court of Human Rights
Under Article 19 of the European Convention on Human Rights (ECHR), the

European Court of Human Rights (ECtHR) has the mandate to “ensure observance”
of the rights guaranteed by the Convention. Its jurisdiction does not only extend to
contentious cases.5 The Court also has advisory jurisdiction concerning the inter-
pretation of the Convention and its protocols.6 Protocol No. 16 to the European
Convention of 2013 (not yet in force) allows the highest courts and tribunals of
member States to request an advisory opinion. The Court regards the Convention as
a “living instrument” aiming at an ongoing dynamic interpretation parallel to the
development of democratic values and ideals,7 nevertheless considering the existing
disharmony between the member States of the European Convention on Human
Rights with regard to certain debatable questions of society, e.g. the legal status of
the embryo.8 According to Article 46 (1) of the Convention, the contracting States
must “abide by the final judgment of the Court in any case to which they are parties.”
This means that a judgment only takes immediate effect inter partes. In the case
Rantsev v Cyprus and Russia, the Grand Chamber held, however:
[. . .] that its judgments serve not only to decide those cases brought before it but, more
generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby
contributing to the observance by the States of the engagements undertaken by them as
Contracting Parties.9
When the ECtHR finds a violation of the Convention, it, as a rule, leaves the
implementation of its judgment to the respondent State.10 In exceptional cases,
however, compliance with the Convention is reduced to a specific measure without
further choice of alternatives. In the Assanidze case, the Court held that the respon-
dent State must release the applicant at the earliest possible opportunity as “by its
very nature, the violation found in the instant case does not leave any real choice as
to the measures required to remedy it.”11 “Pilot judgments” on systemic violations of
Convention rights may obligate States to remedy a legal situation by adopting
legislative measures. Thus, in Rumpf v. Germany, the ECtHR in a pilot judgment
established a time limit for Germany to enact legislation to avoid undue delays in
judicial proceedings and held that
5
See Pinto de Albuquerque, State Obligations in the European System, in this Volume.
6
Art 47 European Convention on Human Rights; see also Art 32 (1) European Convention on
Human Rights, which includes both application and interpretation in the jurisdiction of the Court.
7
ECtHR, Mamatkulov and Abdurasulovic v Turkey, Judgment of 06 Feb 2003, App Nos 46827/99
and 46951/99.
8
ECtHR, Vo v France, Judgment of 08 July 2004, App No 53924/00.
9
ECtHR, Rantsev v Cyprus and Russia, Judgment of 07 Jan 2010, App No 25965/04, para 197.
10
For a detailed analysis of the obligation to implement judgments of the European Court of Human
Rights, see Pinto de Albuquerque, State Obligations in the European System, in this Volume.
11
ECtHR, Assanidze v Georgia, Judgment of 08 Apr 2004, App No 71503/01, para 47.
the respondent State must set up without delay, and at the latest within one year of the date
on which the judgment becomes final in accordance with Article 44 § 1 of the Convention,
an effective domestic remedy or combination of such remedies capable of securing adequate
and sufficient redress for excessively long proceedings, in line with the Convention princi-
ples as established in the Court’s case-law;[. . .].12
2.1.2 The American Commission of Human Rights

and the Inter-American Court of Human Rights
The American Convention on Human Rights (ACHR) establishes similar obliga-

tions to comply with judgments of the Inter-American Court of Human Rights
(IACtHR).13 Contracting States “undertake to comply with the judgment in any
case to which they are parties” (Article 68(1) of the ACHR). Apart from jurisdiction
over contentious cases, the IACtHR has advisory jurisdiction at the request of any
Organization of American States’ (OAS’s) member State.14 As a resource for the
interpretation of the Convention, such advisory opinions are more important than
advisory jurisdiction under the European system (even if judgments in contentious
proceedings provide the most important guidance).15 In addition to the Court, the
American Commission of Human Rights serves as an authoritative interpreter of the
American Convention. The mandate of the Commission also covers the application
and interpretation of the American Declaration of the Rights and Duties of Man. This
competence is particularly relevant with regard to OAS member States that have not
ratified the ACHR.
2.1.3 The African Commission and the African Court on Human

and Peoples’ Rights
Under the African Human Rights system, which is rooted in the African Charter on
Human and Peoples’ Rights (Banjul Charter), the African Commission and the
African Court of Human and Peoples’ Rights operate as monitoring bodies. The
African Court rests on a separate protocol, which entered into force in 2004. In 2009,
the African Union adopted a protocol on the merger of the African Court on Human
and Peoples’ Rights and the Court of Justice of the African Union, which has not yet
entered into force. As the single control mechanism in the African system for
11 years, the Commission had quasi-judicial functions to ensure the protection of
12
ECtHR, Rumpf v Germany, Judgment of 02 Sept 2010, App No 46344/06.
13
For a detailed analysis of the obligation to implement judgments of the Inter-American Court of
Human Rights see Cerna, State Obligations in the Inter-American System, in this Volume.
14
Art 2 (2) of the Statute of the American Convention on Human Rights, Art 64 (1) of the American
Convention on Human Rights.
15
Pasqualucci (2013), p. 11.
350 M. Herdegen
human rights, and exercises interpretative authority.16 Article 3 of the Protocol on

the African Court stipulates that the Court’s jurisdiction extends beyond disputes
concerning the interpretation and application of the Banjul Charter and the Protocol
to “any other relevant Human Rights instrument ratified by the States concerned”.
Judgments of the Court are binding and final and not subject to appeal.17
2.1.4 Supervision Under the Arab Charter on Human Rights
The Arab Charter on Human Rights entrusts monitoring of its observance to the
Arab Human Rights Committee. The Committee considers State reports on the
measures taken to give effect to the Charter within domestic structures and publishes
final reports with recommendations for necessary implementation measures. It does
not have any further competence, and the Charter does not provide for the estab-
lishment of a specialized human rights court, i.e. States parties to the Charter are not
subject to binding measures. In September 2014, the League of Arab States adopted
the Statute of the Arab Court of Human Rights, which met with severe criticism by
the International Commission of Jurists and other human rights organizations, in
particular for not providing for individual complaints and for the unsuitable require-
ments for judges as set out in Articles 6 and 7 of the Statute.18 The critics even tried
to influence the member States of the League of Arab States to refrain from
ratification of the Charter unless amended.19
2.2 “Control of Conventionality”
In a landmark judgment of 2006,20 the IACtHR developed the requirement of a

“control of conventionality” within the national judicial system of each State party to
the American Convention that has submitted to the Court’s jurisdiction.21 This new
mechanism signifies that all State entities, particularly the judicial branch, must
review national laws in the light of the Convention as applied by the IACtHR.22
Within their competences and domestic procedural rules, national judges shall not
apply domestic law that conflicts with the Convention and shall declare such law
“unconventional” as far as such declaration lies within their power under domestic
law. This control restructures the hierarchy of norms. It places the American
16
Arts 30 and 45 of the Banjul Charter.
17
Art 28 (2) of the Protocol on the African Court.
18
International Commission of Jurists (2015), p. 13 et seq.
19
Ibid, 7.
20
IACtHR, Almonacid-Arellano et al v Chile, Series C No 154.
21
For a detailed analysis see Cerna, State Obligations in the Inter-American System, in this Volume.
22
For instance IACtHR, Radilla-Pacheco v Mexico, Series C No 209, para 339.
Convention at the top of the domestic legal order and vests the Inter-American Court
with the functions of a quasi-constitutional court.23
It is remarkable that the Inter-American Court extends the control of convention-
ality not only to the American Convention on Human Rights as such but also to the
interpretation by the Court itself. This concept establishes a kind of “judicial
monism”. The interpretation of the Convention by the Inter-American Court takes
direct effect within the judicial system of the contracting parties. This approach
becomes particularly interesting against the backdrop of a “dynamic” or “evolutive”
interpretation of the Convention.24
2.3 Supervision of Compliance with Judicial Decisions
To the extent that treaty regimes provide for the supervision of compliance with the
decisions of human rights courts, these monitoring powers, as a rule, lie with
political bodies, such as the Committee of Ministers under the ECHR (Article 46
(2))25 or the General Assembly of the OAS under the ACHR (Article 65). In the
European system, the Committee of Ministers may refer aspects of interpretation
relevant in the context of supervision to the Court (Article 46 (3) of the ECHR) and
take non-compliance before the Court (Article 46 (4) of the ECHR).26 These rules do
not allow the applicant to request supervision of compliance by the Court.27
For “atmospheric reasons” political monitoring bodies tend to refrain from a very
active role in challenging non-compliance by States. It is therefore important that—
unlike its European counterpart—the Inter-American Court assumes jurisdiction to
supervise compliance with its judgments.28 The IACtHR even assumes inherent
powers to issue instructions on compliance and implementation motu proprio.29 It
rests this exercise of monitoring powers on the integrity of the system of human
rights protection under the American Convention30 and on the individual right to
access to justice (Articles 8 and 25 of the ACHR).31 The Inter-American Court also
invokes the implied consent of the OAS General Assembly as the political body with
23
Dulitzky (2015), p. 64 ff.
24
IACtHR, The Right to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law, OC-16/99 Series A No 16, para 114.
25
“The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall
supervise its execution.” Jacobs et al. (2010), p. 53 et seq.; Abdelgawad (2009).
26
For a detailed analysis of the obligation to implement judgments of the European Court of Human
Rights see Pinto de Albuquerque, State Obligations in the European System, in this Volume.
27
Abdelgawad (2009), p. 473.
28
IACtHR, El Amparo v Venezuela, Compliance with Judgment, order of 04 July 2006, Series C
No 28; Baluarte (2012) and Ayala Corao (2007), p. 143 et seq.
29
IACtHR, Baena Ricardo et al v Panama, Judgment on jurisdiction, Series C No 104, para 114.
30
Cançado Trindade (2011), pp. 122–123.
31
IACtHR, Baena Ricardo et al v Panama, Judgment on jurisdiction, Series C No 104.
352 M. Herdegen
monitoring responsibility to its exercise of supervisory jurisdiction.32 This supervi-

sory jurisdiction of the IACtHR creates a particular incentive for national courts to
ensure compliance with its rulings.
2.4 Dynamic Interpretation as a Major Challenge

to Implementation
2.4.1 Human Rights Treaties as “Living Instruments”

and Interpretation Driven by Judicial Activism
Particular problems of implementation arise when international human rights treaties

are interpreted as a “living instrument”.33 For a long time, “evolutive” interpretation
in light of present-day conditions has been a constant factor in the case law of the
European Court on Human Rights,34 whose understanding of the European Con-
vention often strays far from the wording or the original intent of the parties and
reflects considerable judicial activism. The Inter-American Court of Human Rights
follows a similar approach. This judicial activism in the interpretation often relies on
more or less selective reliance on developments in a national context and more or
less marked international trends to find an emerging consensus on the scope of
human rights.35
2.4.2 The Dilemma for Domestic Courts
This dynamic approach presents a major challenge to the reception and implemen-
tation by domestic courts whenever the “evolutive” interpretation is not even
covered by the presumptive consent of national parliaments to the relevant human
rights treaties. In such cases, domestic courts face a democratic dilemma. Either they
follow the dynamic interpretation and risk their decisions being challenged for lack
of constitutional and democratic legitimacy, or they deny compliance with dynamic
interpretation and risk to trigger their State’s international responsibility.
32
Ibid.
33
The European Court of Human Rights ruled as early as in 1978 in Tyrer v United Kingdom,
Judgment of 25 Apr 1978, App No 5856/72, that the European Convention on Human Rights shall
be read as a “living instrument” in the light of present-day standards and has followed this approach
ever since; on the “evolutive” interpretation of the American Convention through the Inter-
American Court of Human Rights, see IACtHR, In Vitro Fertilization (Artavia Murillo et al.
v. Costa Rica), Series C No 257, para 245.
34
See Wildhaber et al. (2013) and Herdegen (2016), pp. 173 et seq.
35
Herdegen (2016), pp. 173 et seq.
3 Human Rights Standards Developed by the International

Court of Justice and Other Universal Dispute Settlement
Bodies
The judgments of the International Court of Justice (ICJ) on the individual right to
consular assistance under Article 36 (1) (b) of the Vienna Convention on Consular
Relations in the LaGrand case36 and the Avena Case37 document the relevance of the
Court’s case law for individual rights with a human rights connotation38 (even if the
International Court of Justice did not qualify the Vienna Convention as a source of
human rights39).40 In the Diallo case, the Court found a breach of Article
36 (1) (b) of the Vienna Convention in conjunction with a breach of Article 13 of
the ICCPR and Article 12 of the African Charter on Human Rights. Still, the Court
did not clarify the legal nature of the right to consular assistance as a human right.
Nevertheless, this judgment confirms the receptivity of the ICJ for the inclusion of
human rights components, especially as it referred to the interpretation of the ICCPR
by the Human Rights Committee.41
The International Tribunal on the Law of the Sea (ITLOS) defers to human rights
standards in its recent case law. In the M/V Saiga case, ITLOS held that “consider-
ations of humanity must apply in the law of the sea, as they do in other areas of
international law.”42 In the M/V Louisa case, ITLOS referred to human rights as
being “a legitimate and necessary source of law for this Tribunal to examine”43 and
held that the detention of the crew of a foreign vessel arrested in coastal waters under
conditions that violate human rights amounts to an abuse of rights in terms of Article
300 of the United Nations Convention on the Law of the Sea (UNCLOS).44
36
ICJ, LaGrand (Germany v United States of America), judgment of 27 June 2001, para 126.
37
ICJ, Avena (Mexico v United States of America), judgment of 31 Mar 2004, p. 12.
38
The IACtHR qualifies the right to consular assistance as “the minimum guarantees necessary for
foreign nationals to be able to enjoy the due process of law abroad,” see supra fn 24, pp. 23–24.
39
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), judgment
of 30 Nov 2010, paras 97, 160.
40
For a more detailed discussion see ILA Report (Part 1), The International Court of Justice and its
Contribution to Human Rights Law, and Yakushiji, The International Court of Justice and Diplo-
matic Protection, both in this Volume.
41
Henkin et al. (2009), p. 480.
42
ITLOS, The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v Guinea), Judgment
of 01 July 1999, para 155.
43
ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v Kingdom of Spain),
Judgment of 28 May 2013, para 131.
44
Ibid.
354 M. Herdegen
4 Nonbinding Standards: The UN Declaration

on the Rights of Indigenous Peoples
In 2007, the General Assembly adopted the Declaration on the Rights of Indigenous
Peoples.45 The UN Declaration states that indigenous peoples have collective and
individual human rights and all the rights guaranteed in the Universal Declaration of
Human Rights (UDHR) and other international human rights law,46 including the
right to self-determination, fleshing out the right with inherent rights.47 Only four
States voted against the Declaration: Canada, Australia, the United States, and
New Zealand, all of which are States with a large indigenous population. Despite
its nonbinding character, the Declaration is used by domestic courts and National
human rights institutions (NHRIs).
In its first year of existence, it was referred to by the Supreme Court of Belize. In
this case, a group of indigenous people claimed that the Government of Belize failed
to recognize its customary land rights, which allegedly constitute property. The
Court referred to the ICCPR, the International Convention on the Elimination of
Racial Discrimination (ICERD), and the Charter of the OAS to back up the existence
of a right to property of indigenous people. It cited the case of Mayagna Awas Tingni
Community v Nicaragua, decided by the Inter-American Court of Human Rights.48
The Supreme Court went on to examine the obligations laid out in the Declaration,
which is
not ordinarily binding on member states. But where these resolutions or Declarations contain
principles of general international law, states are not expected to disregard them. [. . .] And
[the Court finds] Article 26 of especial resonance and relevance in the context of this case,
reflecting [. . .] the growing consensus and the general principles of international law on
indigenous peoples and their lands and resources.49
Furthermore, Belize voted in favor of the Declaration, which, according to the

Court, underlines the importance of the Declaration in this case. Thus, Belize is
“bound, in both domestic law in virtue of the Constitutional provisions that have
been canvassed in this case, and international law, arising from Belize’s obligations
thereunder.”50
Even though Australia had voted against the Declaration, it is used in the work of
the Australian NHRI, the Australian Human Rights Commission (AHRC). In this
context, it is significant that the Australian Government has pledged its support to the
Declaration in 2009, 2 years after the Resolution was adopted.
45
United Nations General Assembly (2007) United Nations Declaration on the Rights of Indigenous
Peoples. UN Doc A/RES/61/295.
46
Ibid, Annex Art 1.
47
Ibid, Annex Art 3 ff.
48
Supreme Court of Belize, Cal v Attorney General, Judgment of 18 Oct 2007, ILM 46:1022–1049,
para 121.
49
Ibid, para 131.
50
Ibid, para 134.
The AHRC has published a series concerning the Declaration, called Declaration
Dialogue Series. In its first part, the Commission states that the Australian Govern-
ment needs to give effect to the rights in the Declaration, saying it “would also be a
sign of good faith for the Government to follow through with action after it has
provided its support for the Declaration.”51 The following papers in this series deal
with the right to self-determination; the right to effective participation; free, prior,
and informed consent and good faith; the protection of indigenous culture; and
equality. The Declaration has found its way into the annual reports of the Aboriginal
and Torres Strait Islander Social Justice Commissioner. In the 2014 Social Justice
and Native Title52 report, the Declaration is seen as a foundation for the nation-
building process of indigenous people. It recommends to the Australian Government
to engage with the National Implementation Strategy to give effect to the Declaration
and to amend the Human Rights (Parliamentary Scrutiny) Act of 2011 to include the
Declaration in the definition of human rights,53 which has been endorsed by the UN
High Commissioner for Human Rights.54 However, the implementation of the
Declaration has not made any progress in recent years, although the principle of
compensation set out in Article 28 of the Declaration has been applied in the De Rose
Hill case, without making the court any reference to the Declaration.55 Furthermore,
the National Action Plan on Human Rights has been adopted by the Australian
Government, which draws upon the Declaration.56 The reasons for its decisions are
not published, which hampers the further implementation of the Declaration as the
implementation by the government or private employers is not trackable.
5 Decisions of National Courts
From a national perspective, the status of human rights standards within the domestic
context depends on the constitutional rules that govern incorporation of international
law into domestic law and its implementation. Still, this apparently simple statement
must be nuanced.
Constitutional texts or traditional constitutional tenets reflect the status of human
rights standards in domestic law only in an imperfect way. Preestablished
51
Australian Human Rights Commission (2013), p. 5.
52
According to the Australian “Native Title” law doctrine, the property of land remained in the
hands of indigenous people during the time of the colonization of the land.
53
Australian Human Rights Commission (2014) Social Justice and Native Title Report 2014 –
Aboriginal and Torres Strait Islander Social Justice Commissioner, 12.
54
Office of the High Commissioner for Human Rights (2015) Press briefing note on Australia
Indigenous Peoples. Available under http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID¼16158&LangID¼E. Accessed 02 Nov 2017.
55
Australian Human Rights Commission (2014), pp. 94 et seq; see also the compensation tables,
pp. 96 et seq.
56
Ibid, 159.
356 M. Herdegen
constitutional norms leave much room for development by constitutional or supreme

courts. Well-established written or unwritten constitutional rules tend to refer only to
international law in general or to treaties and other specific sources of international
law, without explicitly addressing their interpretation by international courts and
other treaty bodies.
The reception of human rights standards (as applied and interpreted by interna-
tional courts and other treaty bodies) by domestic courts blurs the distinction
between a monist approach and a dualist approach, a distinction that modern legal
doctrine finds questionable.57 Moreover, the interplay between constitutional prin-
ciples and human rights, in particular the interpretation of fundamental rights in the
light of human rights, adds further complexity.
5.1 Decisions of the International Court of Justice

and National Courts
5.1.1 Deferential Approach with Nuances: The Case of Germany
In protecting due process under the Basic Law, the German Federal Constitutional
Court (GFCC) recognized a constitutional mandate for domestic courts to defer to
the interpretation of the ICJ in the context of due process. The Constitutional Court
based this mandate on the constitutional rules on the application of international
treaties covered by parliamentary consent (Article 59 (2) of the Basic Law), as well
as on the obligation of the judicial branch to act in conformity with the “law” and
legislative acts (Article 20 (3) of the Basic Law):
Due process is not merely governed by the provisions of the code of criminal procedure but
also by rules of public international law. [. . .] Within the German legal order, treaties ratified
by the Federal Republic of Germany, like the Vienna Convention on Consular Relations
rank at the level of federal law [. . .]. In conjunction with Article 20 (3) of the Basic Law, this
ranking signifies that German courts have to consider and apply the respective treaty law like
other federal law within the confines of a methodically sound interpretation.58
The Constitutional Court’s ruling underlines that Germany is a party to the

Optional Protocol to the Vienna Convention on Consular Relations, which provides
for a compulsory jurisdiction of the ICJ in case of disputes concerning the correct
interpretation of the Convention. The constitutional mandate of German courts to
57
Nijman and Nollkaemper (2007).
58
Bundesverfassungsgericht [“BVerfG”] (German Federal Constitutional Court), 2 BvR 2115/01,
order of 19 Sept 2006, NJW 2007, 499, para 52 (translation: author). See also BVerfG, 2 BvR
1579/11, order of 05 Nov 2013, para 11. Official translation: “The regular courts are obliged to take
the case-law of the International Court of Justice in the area of consular law into consideration in
their decisions. This obligation derives from the principle that the Basic Law is open to public
international law, in conjunction with the judicature being bound by law and justice [. . .]. The
regular court must take notice of the relevant case-law and consider it [. . .].”
take decisions of the International Court into consideration when applying German
law depends, however, on the jurisdictional context. According to the GFCC,
deference of German courts to the International Court of Justice’s interpretation
seems to be contingent on Germany being a party to a specific treaty regime with a
legally binding dispute settlement mechanism:
In this regard there is an interaction between the subject-related obligatory jurisdiction of the
International Court of Justice in the field of international consular law, the limited substan-
tive res judicata of its decisions, the status of the Federal Republic of Germany as a party to
the Vienna Convention on Consular Relations and the Optional Protocol, and the domestic
implementation of this international treaty that the national courts at least have to consider
decisions of the International Court of Justice in the field of the international consular law
and to which legal dispute the Federal Republic is a party. This roots in the constitutional
commitment of the German public power to respect and fulfil the obligations of the Federal
Republic of Germany under international treaties and their interpretation by the competent
international jurisdiction (Article 59 (2), 20 (3) Basic Law).59
Still, the relevance of the jurisdictional context should not be overstated. Even in
areas of international law, in which Germany has not submitted to the jurisdiction of
the ICJ, German courts must at least consider the International Court’s case law as an
authoritative source of interpretation (Article 38 (1) (d) of the Statute of the ICJ).
In a more recent decision, the GFCC confirmed this approach. It held that the
binding force of law (Article 20 (3) of the Basic Law) includes treaties and that
German courts have the constitutional duty to consider the jurisprudence of the ICJ
and other international courts when interpreting treaties. In this respect, the Federal
Constitutional Court assumes that the International Court of Justice provides “nor-
mative guidance” for the interpretation of treaties.60
5.1.2 “Respectful Consideration”: The US Supreme Court
In the United States, the US Supreme Court follows the less deferential approach of
“respectful consideration.” Several cases dealing with the implementation of ICJ
judgments or orders on Article 36(2) of the Vienna Convention on Consular
Relations illustrate that approach.61 In Breard v Greene, the Supreme Court sided
with the dualist approach and concluded:
First, while we should give respectful consideration to the interpretation of an international
treaty rendered by an international court with jurisdiction to interpret such, it has been
recognized in international law that, absent a clear and express statement to the contrary, the
procedural rules of the forum State govern the implementation of the treaty in that State.62
59
BVerfG, 2 BvR 2115/01, supra 58, para 60 (translation: author).
60
BVerfG, 08 July 2010, 2 BvR 2485/07, NJW 2011, 207 para 28 (German Federal Constitutional
Court), para 60.
61
See also Janis, United States of America, in this Volume.
62
US Supreme Court, Breard v Greene, 523 US 371 (1998).
358 M. Herdegen
Although the ICJ had ordered provisional measures and had found that the United
States had breached its obligation under Article 36(2) of the Vienna Convention on
Consular Relations, the applicant was executed in accordance with US law. The
Supreme Court also rejected the enforcement of a similar International Court of
Justice order in the LaGrand case. Consequently, in defiance of the International
Court’s order, the foreign defendant was also executed.63 In all these cases, the
Supreme Court held that the defendants had raised the violation of their right under
Article 36(2) of the Vienna Convention on Consular Relations too late (due to the
lack of information on the right to consular assistance under the Vienna
Convention).64
President George W. Bush, who had issued a Memorandum for the Attorney
General in favor of stating compliance with the International Court of Justice’s
Avena judgment, later declared the withdrawal of the United States from the
Optional Protocol to the Vienna Convention on Consular relations and thus termi-
nated submission to the International Court of Justice’s jurisdiction on consular
issues. In Sanchez-Llamas v. Oregon, the United States Supreme Court confirmed its
decision in Breard:
In a similar vein, several amici contend that the United States is obligated to comply with the
Convention, as interpreted by the International Court of Justice. [. . .] We disagree. Although
the International Court of Justice’s interpretation deserves respectful consideration, [. . .] we
conclude that it does not compel us to reconsider our understanding of the Convention in
Breard.65
However, the Court also noted:

[N]othing in the structure or purpose of the International Court of Justice suggests that its
interpretations were intended to be conclusive on our courts. The International Court of
Justice’s decisions have no binding force except between the parties and in respect of that
particular case. [. . .] Any interpretation of law the International Court of Justice renders in
the course of resolving particular disputes is thus not binding precedent even as to the
International Court of Justice itself; there is accordingly little reason to think that such
interpretations were intended to be controlling on our courts. The International Court of
Justice’s principal purpose is to arbitrate particular disputes between national governments.
[. . .] While each member of the United Nations has agreed to comply with decisions of the
International Court of Justice in any case to which it is a party, United Nations Charter,
Article 94(1), [. . .] the Charter’s procedure for non-compliance referral to the Security
Council by the aggrieved state contemplates quintessentially international remedies, Article
94(2), ibid.66
Later, José Ernesto Medellín, one of the Mexicans named in the International
Court of Justice’s Avena ruling, was executed after a judgment of the Supreme Court
63
ICJ, LaGrand, supra fn 36.
64
Henkin et al. (2009), p. 998.
65
US Supreme Court, Sanchez-Llamas v Oregon, 548 US 1 (2006).
66
Ibid, 19.
supporting all previous domestic decisions.67 In this context, the office of the
Governor of Texas stated:
The World Court has no standing in Texas and Texas is not bound by a ruling or edict from a
foreign court.68
The doctrine of “respectful consideration,” as formulated by the US Supreme

Court, only thinly veils a claim of the US Supreme Court to an autonomous
interpretation of international treaties in the face of a ruling of the ICJ. It reduces
the International Court’s interpretation to one of several factors of consideration. The
US Supreme Court not even recognizes that an interpretation of the ICJ at least
establishes a heavy argumentative burden for a conflicting interpretation by national
courts. This burden results from the obligation to perform international treaty
obligations in good faith (Article 26 of the VCLT).
Still, there are tendencies within the judiciary at State level that are more sensitive
to the rights vindicated in the International Court of Justice’s case law.69 In 2011, the
Massachusetts Supreme Court ruled that a violation of the right to consular assis-
tance under Article 36 of the Vienna Convention on Consular Relations can be a
basis for judicial review.70 The Nevada Supreme Court held:
[. . .] if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal
charges, the American consulate was not notified, and the interpreter who translated from
English into Spanish at the trial for the Spanish-speaking judges was later convicted of
having falsified his credentials, we would expect Mexico, on order of the International Court
of Justice, to review the reliability of the proceedings and the extent to which, if at all, timely
notice to the American consulate might have regularized them.71
5.2 Supervisory Bodies Under Universal Human Rights

Treaties and National Courts
The implementation of the UN human rights treaties depends on the constitutional

approach of each contracting State toward international law. The following obser-
vations focus on the receptivity of national courts to the practice of supervisory
treaty bodies and their interpretation.
67
US Supreme Court, Medellín v Texas [2008] 552 US 491 (2008). For a detailed analysis of this
case see Janis, United States of America, in this Volume.
68
Turner and Ruiz (2008).
69
See Henkin et al. (2009), pp. 125–128.
70
Supreme Court of Massachusetts, Commonwealth v Gautreaux, 458 Mass 741 (Mass 2011).
71
Supreme Court of Nevada, Gutierrez v State of Nevada, order of 19 Sept 2012, Case No 53506
(unreported).
360 M. Herdegen
As to nonjudicial treaty bodies, German courts have considered comments of the

Human Rights Committee72 and the Committee on Economic, Social and Cultural
Rights when allying and interpreting the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).73 The Swiss Federal Court recognizes that the opinions
of these Committees are relevant for the interpretation of the two international
covenants but denies any directly binding effect.74
The communication of the Committee for the Elimination of All Forms of
Discrimination (CERD) in the Sarrazin case (2013) highlights fundamentally dif-
ferent approaches to balancing human rights in case of conflict. In this case, a
German author and former politician had, in a controversial interview, made very
critical observations about immigration from Muslim countries to Germany and the
work mentality of citizens with an Arabic or Turkish background.75 When the
Turkish Union in Berlin/Brandenburg denounced the interview as public incitement
of hatred in terms of the German Criminal Code, the Public Prosecutor qualified the
interview as exercise of freedom of speech and therefore denied criminal liability.
Following the Turkish Union’s complaint before the CERD, the Committee found a
violation of Article 4 ICERD, which declares that all States “shall declare an offence
punishable by law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as all acts of violence of incitement to
such acts against any race or group of persons of another colour or ethnic origin
[. . .].” The CERD qualified the German criminal law as insufficient to comply with
this obligation.76 However, this obligation is limited by the right to freedom of
opinion and expression.77 After the communication, the Public Prosecutor
maintained the position that, in this case, the protection of free speech bars prose-
cution under German criminal law.78 In Germany, where freedom of expression
enjoys high constitutional rank, the finding of the CERD met with severe criticism.79
At least in Germany, the conclusions of the CERD in the Sarrazin case and the
ensuing public discussion may have seriously affected the authority of the Commit-
tee as a supervisory organ.80
72
Bundesverwaltungsgericht [“BVerwG”] (German Federal Administrative Court), Case No 1 C
2/09, Judgment of 02 Sept 2009, paras 29, 30.
73
BVerwG, Case No 6 C 16/08, Judgment of 29 Apr 2009, para 54.
74
Bundesgericht (Swiss Federal Court), A und B gegen Regierungsrat des Kantons Zürich, BGE
126 I 240, 245 et seq.
75
Cited after Committee on the Elimination of Racial Discrimination, TBB-Turkish Union in Berlin/
Brandenburg v Germany, Com No 48/2010, Decision of 26 Feb 2013, Doc No CERD/C/82/D/48/
2010, para 2.1.
76
Ibid, paras 12.1 et seq.
77
The obligations are limited by the principles embodied in the Universal Declaration of Human
Rights and the Rights set forth in Art 5 of ICERD, Art 4 ICERD.
78
Beverungen (2013), p. 432.
79
For detailed criticism of the decision of the CERD see Payandeh (2013).
80
For further criticism of this decision and its impact on the acceptance of the international human
rights treaty system see Tomuschat (2013) and Hörnle (2014).
5.3 Regional Human Rights Systems
5.3.1 European Convention on Human Rights
Although the decisions of the ECtHR are directly binding only for the States parties
to the dispute, they have a massive impact on the interpretation and application of the
Convention in the member States of the Council of Europe. The rank of the
European Convention varies widely in the different member States. The convention
has (supra) constitutional rank in the Netherlands and constitutional rank in Austria,
while in most other countries it ranks between constitutional law and ordinary law or
at the same level as ordinary legislation.81
The European Union
The fundamental rights guaranteed in the European Union (EU) have been devel-
oped by the European Court of Justice (ECJ), referring to the European Convention
on Human Rights and the jurisdiction of the ECtHR as the foundation of the
unwritten fundamental rights standard in the EU.82 With the Lisbon Treaty, the
European Union obtained a binding set of fundamental rights, Article 6 (1) of the
Treaty on EU (TEU). This Fundamental Rights Charter has been heavily influenced
by the European Convention on Human Rights. Consequently, Article 6 (3) of the
TEU refers to the European Convention on Human Rights:
Fundamental rights, as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union’s law.
Article 6 (2) of the TEU stated that the Union shall accede to the European
Convention on Human Rights. The EU and the contracting States of the European
Convention on Human Rights have negotiated a Draft revised agreement on the
accession of the European Union to the Convention for the Protection of Human
Rights and Fundamental Freedoms. In its advisory opinion 2/13, the ECJ held that
the draft agreement violates Article 6 (2) of the TEU and Protocol No. 8 to the
TEU.83 According to the Court, the draft agreement is incompatible with the
fundamental principle of autonomous control of the ECJ over the interpretation of
Union law.84 This most controversial opinion indicates that the ECJ is strongly
opposed to any external authoritative control by the ECtHR as to European Union
law.85
81
Ress (2005), p. 374.
82
For a detailed analysis of human rights protection in the European Union see Kadelbach, The
European Court of Justice and Human Rights Law, in this Volume.
83
ECJ, Opinion 2/13 of 18 Dec 2014, ECLI:EU:C:2014:2454.
84
Ibid, paras 187 et seq., 196 et seq., 201 et seq.
85
See Herdegen (2017), pp. 49 et seq.
362 M. Herdegen
Germany
In Germany, the Convention formally ranks only at the level of ordinary federal law.
However, under well-established case law of the GFCC, all national laws, including
the Constitution, must, as far as possible, be interpreted in conformity with the
Convention as interpreted by the ECtHR:
when interpreting the Basic Law, the contents and the stage of development of the European
Convention on Human Rights will have to be considered, as long as it does not result in a
limitation or a diminution of the protection of fundamental rights accorded by the Basic Law,
an effect, which the Convention itself wants to exclude (Article 60 European Convention on
Human Rights). Thus and insofar, the jurisprudence of the European Court of Human Rights
serves as an interpretative guidance for determining the content and the scope of application
of the fundamental rights and the principle of the rule of law under the Basic Law.86
In a recent judgment, the Federal Administrative Court qualified the ECtHR as

the “authentic interpreter” of the European Convention.87 This is all the more
remarkable as the same Court had once considered that the extensive interpretation
of Article 3 of the European Convention on Human Rights as a bar to the expulsion
of illegally immigrating aliens was “ultra vires”.88 The Court ruled that lower courts
have to consider the judgments of the ECtHR, a mandate which indicates the
authoritative interpretation of the ECtHR in the German legal space.89
The application of national law in light of the Convention and the ECtHR’s case
law has always been contingent on the necessary margin of interpretation of German
law. In the Görgülü case, the GFCC subjected deference to the Convention and the
ECtHR’s case law to the condition that the application of national law in conformity
with the Convention as applied by the European Court is “methodically justifi-
able”.90 The Constitutional Court, however, refrained from clarifying when such
deference is no longer methodologically plausible.
In the Görgülü case, the GFCC ruled that the Convention cannot prevail over the
German constitution when rights guaranteed in the European Convention on Human
Rights and rights stemming from the Basic Law irreconcilably conflict with each
other. The Court referred to the dualist approach of the Basic Law and concluded that
the Basic Law has not taken the far-reaching step to open the constitutional order for
the direct adoption of international treaty obligations:
86
BVerfG (German Federal Constitutional Court), Unschuldsvermutung I, Case No 2 BvR 589/79,
order of 26 Mar 1987, NJW 1987, 2427.
87
BVerwG (German Federal Administrative Court), Case No 2 C 1/13, Judgment of 27 Feb 2014,
BVerwGE, 149, 117–139, 129.
88
BVerwG (German Federal Administrative Court), Case No 9 C 40/96, Judgment of 02 Sept 1997,
BVerwGE 105, 187–194, 190 et seq.
89
BVerwG (German Federal Administrative Court), Case No 4 CN 9/98, Judgment of 16 Dec 1999,
BVerwGE 110, 203–216, 210.
90
BVerfG (German Federal Constitutional Court), Görgülü, Case No 2 BvR 1481/04, order of
14 Oct 2004, BVerfGE 111, 307–332, para 62.
If there are decisions of the ECtHR that are relevant to the assessment of a set of facts, then in
principle the aspects taken into account by the European Court of Human Rights when it
considered the case must also be taken into account when the matter is considered from the
point of view of constitutional law [. . .].
If, in concrete application proceedings in which the Federal Republic of Germany is
involved, the European Court of Human Rights establishes that there has been a violation
of the Convention, and if this is a continuing violation, the decision of the ECtHR must be
taken into account in the domestic sphere, that is, the responsible authorities or courts must
discernibly consider the decision and, if necessary, justify understandably why they never-
theless do not follow the international-law interpretation of the law.91
In principle, the Constitutional Court maintains its receptive approach as to the

case law of the ECtHR.92 A party in judicial proceedings can even challenge a
German court’s ruling before the GFCC when the domestic court failed adequately
to consider the Convention and the ECtHR’s interpretation in the context of applying
the relevant German law.93
Still, the Görgülü judgment has raised some doubts about the effect of decisions
rendered by the ECtHR in German law.94 Its insistence on German sovereignty as
ultimate limit on receptivity to Convention standards has been taken up and
misconstrued by the Russian Constitutional Court.95
In its landmark judgment on the prohibition of strikes by civil servants, the GFCC
affirmed the principle of harmonious interpretation of the Basic Law in light of the
Convention and the guiding function of the ECtHR’ case law.96
The GFCC, however, held that the interpretation of the Convention by the ECtHR
must be considered in context of the relevant national legal system.97
On this basis, the Constitutional Court concluded that the prohibition of strikes,
being one of inextricably related components of a civil servant’s status, is compatible
with Art. 11 of the Convention, even though the ECtHR had allowed such a
prohibition only in narrow circumstances.98 In an obiter dictum, the German Court
hinted that the prohibition of strikes by civil servants, being a traditional element of
the German State’s architecture, may very well amount to a fundamental principle of
the German constitution which is not subject to interpretation in conformity with the
ECHR.99 This is a rather bold assumption, as the principles governing the civil
service do not form part of the intangible core of the German Basic law (Art. 79(3))
and can be modified.
91
Ibid, 324.
92
Ibid, 318.
93
Lübbe-Wolff (2006), p. 141.
94
Ibid, 138.
95
See infra in this section, under “Russia”.
96
Federal Constitutional Court, cases 1738/12 et al., Judgment of 12 June 2018, paras 163, 173.
97
Federal Constitutional Court, cases 1738/12 et al., Judgment of 12 June 2018, para 173.
98
Federal Constitutional Court, cases 1738/12 et al., Judgment of 12 June 2018, paras 173–188.
99
Federal Constitutional Court, cases 1738/12 et al., Judgment of 12 June 2018, para 172.
364 M. Herdegen
United Kingdom
For considerable time, courts of the United Kingdom (UK) had to face the problem
that the Convention was not incorporated into national law.100 British courts started
to give effect to the European Convention on Human Rights through linking its
standards with the Magna Carta,101 which trumps common law.102
The Human Rights Act 1998 of incorporates the Convention into national law
and allows individuals to complain about alleged violations of Convention rights
before domestic courts. Since then, courts can directly apply Convention rights.103
They can make a declaration of incompatibility if the domestic legislation in place is
clearly incompatible with the Convention.104 The Human Rights Act requires
domestic courts to take into account “any judgment, decision, declaration or advi-
sory opinion of the European Court of Human Rights.”105
The House of Lords ruled that “[i]n the absence of some special circumstances it
seems [. . .] that the court should follow any clear and constant case law of the
European Court of Human Rights.”106 It held that “a national court subject to a duty
such as that imposed by section 2 should not without strong reason dilute or weaken
the effect of the Strasbourg case law.”107 The House of Lords found that the ECtHR
must be the only authoritative interpreter of the Convention’s rights.108
In recent years, the Human Rights Act and deference to the case law of the
ECtHR came under attack from various political parties.109 The new Supreme Court
weakened deference to the ECtHR. Its first decisions stated that the national courts
can certainly disobey Convention rights as well as the Strasbourg Court.110
In R. v Horncastle, a case turning on the right of the defense to examine the
witnesses and the admissibility of hearsay evidence, the Supreme Court ruled that
[t]he requirement to “take into account” the Strasbourg jurisprudence will normally result in
the domestic court applying principles that are clearly established by the Strasbourg court.
There will, however, be rare occasions where the domestic court has concerns as to whether
100
Watson (1977), p. 62 et seq.
101
Ibid, 70.
102
Ibid, 73.
103
Martin (2015) Human Rights Act.
104
Section 4 (2), Human Rights Act 1998.
105
Section 2 (1) lit a, Human Rights Act 1998.
106
House of Lords, R (Alconbury Developments Ltd.) v Secretary of State for the Environment,
Transportation & the Regions, Judgment of 09 May 2001, UKHL 23 [2001].
107
House of Lords, R (Ullah) v Special Adjudicator, Judgment of 17 June 2004, UKHL 26 [2004],
para. 20.
108
Ibid.
109
Plans exist from the Labour Party, the Liberal Democrats and the Conservatives to “bring the
rights home” and replace the Human Rights Act with a British Bill of Rights. The Commission on a
Bill of Rights introduced by the Government of Conservatives and Liberal Democrats did not reach
a conclusion.
110
Lambrecht (2014), p. 420.
a decision of the Strasbourg court sufficiently appreciates or accommodates particular

aspects of our domestic process. In such circumstances it is open to the domestic court to
decline to follow the Strasbourg decision, giving reasons for adopting this course. This is
likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the
decisions that is in issue, so that there takes place what may prove to be a valuable dialogue
between the domestic court and the Strasbourg court.111
Considering the case law of the ECtHR, Lord Phillips, and with him the Supreme
Court, ruled that in this particular case, the ruling of the ECtHR should not be
followed.112 This decision overrules the judgment in the case Al-Khawaja v United
Kingdom, in which the ECtHR had upheld that a conviction based solely or
decisively on hearsay violates the European Convention on Human Rights.113
In a more recent decision, the Supreme Court has stressed that if there is no clear
and constant case law of the Strasbourg Court or if the case law is inconsistent with
fundamental substantive or procedural aspects of British law or if the European
Court has overlooked or misunderstood some arguments or principles in its decision,
domestic courts are not bound by its case law.114 While first divergences from the
Strasbourg case law have been in cases where the UK has not been party to the case,
in more recent decisions involving the UK the Supreme Court has denied its
deference to decisions involving the UK, even though the UK then seems to be in
a clear breach of its international obligations.
After the Hirst (2) decision of the European Convention on Human Rights115 in R
(Chester) v Secretary of State for Justice, the Supreme Court had to deal with the
appeal of a prisoner whose right to vote was denied, after the legislation had failed to
amend the domestic law in accordance with the Court’s judgment.116 Domestic
courts have denied prisoners the rights to vote, referring to the ongoing democratic
process.117 The Supreme Court thus stated that
[w]ithin the domestic legal context, it is now therefore for Parliament as the democratically
elected legislature to complete its consideration of the position in relation to [the national
legislation concerning the voting rights of prisoners]. There is no further current role for this
Court, and there is no further claim, for a declaration or, in the light of the incompatibility,
for damages which the appellant Chester can bring.118
111
UK Supreme Court, R v Horncastle, Judgment of 09 Dec 2009, [2009] UKSC 14, para 11.
112
Ibid, para 108.
113
ECtHR, Al-Khawaja and Tahery v The United Kingdom, Judgment of 15 Dec 2011, App No
26766/05, paras 39 ff.
114
Lambrecht (2014), p. 425; see UK Supreme Court Cadder v Advocate, Judgment of 26 Oct 2010,
[2010] UKSC 43, para 45; House of Lords, R. v Lyons, Judgment of 14 Nov 2002, [2002] UKHL
44, para 46; ECtHR, Morris v The United Kingdom, Judgment of 26 Feb 2002, App No 38784/97;
ECtHR, Cooper v The United Kingdom, Judgment of 16 Dec 2003, App No 48843/99.
115
ECtHR, Hirst v The United Kingdom (No. 2), Judgment of 06 Oct 2005, App No 74025/01,
holding that it in general violates the ECHR to deny prisoners the right to vote. This judgment lead
to a controversial debate in the UK about the legitimacy of the ECtHR with proposals such as the
“democratic override” or leaving the Convention altogether.
116
Heibert (2013), p. 2265.
117
Murray (2011), p. 58.
118
UK Supreme Court, R (Chester) v Secretary of State for Justice and McGeoch (AP) v The Lord
President of the Council and another, Judgment of 16 Oct 2013, [2013] UKSC 63, para 42.
366 M. Herdegen
France
The semi-monist French judicial system allows the direct application of the
European Convention on Human Rights before national courts.119 The European
Convention on Human Rights ranks in between ordinary legislation and the Consti-
tution. Article 55 of the French Constitution states:
Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of
Parliament, subject, with respect to each agreement or treaty, to its application by the other
party.120
The Court of Cassation considered the ECtHR as a source of authoritative

interpretation and held that contracting States are generally obliged to comply with
its decisions, even without implementing legislation and without a direct involve-
ment in a case.121
Austria
In Austria, the European Convention has the rank of federal constitutional law and is
directly applicable.122 The Austrian Constitutional Court has the competence to
control the implementation of Convention rights, which is all the more important
as the Austrian Constitution does not guarantee modern fundamental rights.123
According to the Austrian Constitutional Court, the European Convention on
Human Rights, in its function as a constitutional standard, must be read in light of
the jurisprudence of the ECtHR:
The Constitutional Court sees itself obliged in principle to attribute to the European Court of
Human Rights as a constitutional norm the content which it may claim as an international
instrument for the protection of human and fundamental rights. Thus, for its own interpre-
tation the Court has to accord particular weight to the jurisprudence of the European Court of
Human Rights as the organ primarily entrusted with the interpretation of the European
Convention on Human Rights. Nevertheless, the Court cannot maintain that stance under all
possible circumstances. Just like the Court would be bound by constitutional law subse-
quently adopted, even if it resulted in alterations opposed to the European Convention on
Human Rights, certain results of interpretation may be excluded by the institutional parts of
the law relating to State organs which has constitutional rank.124
119
For a detailed discussion of the implementation of human rights decisions in France, see El
Boudouhi and Dannenberg, France, in this Volume.
120
Translation available under http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
english/constitution/constitution-of-4-october-1958.25742.html#TitleVI. Accessed 02 Nov 2017.
121
See Robineau (2014), p. 4. The author, Vice President of the French Council of State, considers
the ECtHR “la force persuasive de la jurisprudence de la Cour,”.
122
Amendment to the Austrian Constitution in 1964.
123
Tretter et al. (2007).
124
Verfassungsgerichtshof (Austrian Constitutional Court), Case No B267/86, Decision of 14 Oct
1987, VfSlg 11.500/1987, 5.
Russia
The Russian Constitution adopts a monist approach. Article 15 (4) states that
[u]niversally recognized principles and norms of international law as well as international
agreements of the Russian Federation shall be an integral part of its legal system. If an
international agreement of the Russian Federation establishes rules, which differ from those
stipulated by law, then the rules of the international agreement shall be applied.125
For many years, the Russian Constitutional Court (RCC) implemented the rulings
of the ECtHR before and after Russia acceded to the European Convention on
Human Rights in an almost exemplary way.126 Cracks in the up to then harmonious
relationship between the RCC and the ECtHR appeared in the rather unspectacular
case of Markin, in which the ECtHR for the first time directly overruled a ruling of
the RCC.
In this case, a Russian soldier who was not granted parental leave because of his
sex challenged the Russian legislation, which allowed only mothers to go on a
parental leave. After the RCC had held that this parental regime conformed to the
Russian Constitution, the European Court found this to be a violation of Articles
14 and 8 of the European Convention on Human Rights.127 Subsequently, Markin
petitioned a local court to reopen his case. The local court found itself in a dilemma
since it had to disregard either the ECtHR’s or the RCC’s ruling. Hence, it requested
the RCC to decide on the primacy of judgments of the ECtHR over national
decisions.128 The RCC decided that if a ruling of the ECtHR in the particular case
contradicts domestic law or a decision of the RCC, a local court must refer the issue
to the RCC since the rights guaranteed in the Constitution are the same as the rights
in the European Convention on Human Rights.129 On a case-by-case analysis, the
RCC must decide whether the ruling of the ECtHR or of the RCC will prevail.
However, the RCC has not laid out any guideline or standard on how to solve future
conflicts between different interpretations of the Convention and the Constitution by
the ECtHR and the RCC.130
After this ruling, several members of the Duma representing all fractions chal-
lenged the Russian law that implements the European Convention on Human Rights
and orders Russian courts and the Russian administration to apply decisions of the
ECtHR. Although the RCC did not declare the provisions unconstitutional, it made
125
Official Translation of the Russian Constitutional Court, http://www.ksrf.ru/en/Info/LegalBases/
ConstitutionRF/Pages/Chapter1.aspx. Accessed 02 Nov 2017.
126
Kahn (2004), p. 8; Pomeranz (2012), p. 17 (noting that although Russian courts refer to the
rulings of the European Court of Human Rights the legislation restrains from solving the legal
deficiencies).
127
ECtHR, Konstantin Markin v Russia, App No 30078/06, judgment of 22 Mar 2012.
128
Vaypan (2014), p. 132.
129
Ibid, 133.
130
Ibid, 134.
368 M. Herdegen
considerable restrictions to their application.131 In line with the Markin judgment,

the Court considered itself to be competent to decide over the compatibility of any
decision of the European Court with the Russian Constitution. The RCC ruled that
the Constitution always has primacy over the European Convention.132 However,
the RCC may not act proprio motu but shall only decide over matters brought before
it. This leads the RCC to not only confirm the obligation of domestic courts to call
upon the RCC if the question of constitutionality of an ECtHR judgment emerges as
it was laid down in the Markin decision. The RCC goes even further and states that it
has the competence to decide on the interpretation of the Russian Constitution and,
thus, the constitutionality of a ruling of the European Court at the request of the
President or the Government of Russia, although there is no legal framework for this
competence in Russian law.133
This ruling was rendered at a time when respect for international law in Russia
was declining. The chairman of the Investigative Committee of the Russian Feder-
ation proposed to change the Constitution so as to do away with the principle of the
primacy of international law over domestic law,134 and in the discussion leading up
to the constitutional amendment, Russian members of Parliament stated that the
decisions of the ECtHR were aimed at undermining Russian sovereignty.135 The
judgment of the RCC explicitly refers to the decisions of courts of other Council of
Europe members concerning the implementation of judgments of the ECtHR. The
RCC explicitly refers to the German Görgülü decision and the debate in the UK
following the Hirst decision. The RCC explicitly states its competence to examine
the conformity of decisions of the ECtHR with the Russian Constitution if it is called
upon to do so. In the meantime, the constitutional amendment has come into force
and served as a basis for refusing compliance with judgments of the ECtHR.136
Switzerland
In Switzerland, profound dissatisfaction with some rulings of the ECtHR motivated

the strongest political party to launch a very controversial initiative, “Landesrecht
vor Völkerrecht” (“municipal law above international law”). This initiative aims at a
referendum on a constitutional amendment, which shall stipulate the supremacy of
the Federal Constitution over international obligations, in particular the European
131
Russian Constitutional Court, Judgment of 14 July 2015 – No 21- П/2015; a short official
summary is available under http://www.ksrf.ru/en/Decision/Judgments/Documents/resume%
202015%2021-%D0%9F.pdf. Accessed 02 Nov 2017.
132
Ibid.
133
Smirnova (2015).
134
Russia Today (2015a).
135
Russia Today (2015b).
136
Russian Constitutional Court, Case No 12-П/2016, Judgment of 19 Apr 2016, http://www.ksrf.
ru/en/Decision/Judgments/Documents/2016_April_19_12-P.pdf. Accessed 02 Nov 2017.
Convention on Human Rights as applied by the ECtHR. According to the logic of

the initiative, in case of conflict, Switzerland would have to denounce the interna-
tional treaty concerned.137 Critics considers this initiative as a threat to Switzerland’s
commitment to human rights. The referendum based on this initiative, with the new
title “Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)” (“Swiss
law instead of foreign judges (Initiative for Self-Determination)”) will probably be
held in late 2018.
The Impact of the Case Law of the European Court of Human Rights in Non-
Convention States
In its landmark decision in Lawrence v Texas, the US Supreme Court ruled on the
unconstitutionality of sodomy laws (which forbid sexual intercourse between per-
sons of the same sex) and relied on the ECtHR’ case law to support a reversal of its
previous decision, Bowers v Hardwick.138 In order to establish emerging consensus
against the criminalization of homosexuality in Western civilizations, the US
Supreme Court, inter alia, made reference to the ECtHR, which had qualified
sodomy laws as a violation of Convention rights:
And, to the extent Bowers relied on values shared with a wider civilization, the case’s
reasoning and holding have been rejected by the European Court of Human Rights, and that
other nations have taken action consistent with an affirmation of the protected right of
homosexual adults to engage in intimate, consensual conduct.139
The US Supreme Court further concluded:

Of even more importance, almost five years before Bowers was decided the European Court
of Human Rights considered a case with parallels to Bowers and to today’s case. An adult
male resident in Northern Ireland alleged he was a practicing homosexual who desired to
engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that
right. He alleged that he had been questioned, his home had been searched, and he feared
criminal prosecution. The court held that the laws proscribing the conduct were invalid under
the European Convention on Human Rights. [...] Authoritative in all countries that are
members of the Council of Europe (21 nations then, 45 nations now), the decision is at
odds with the premise in Bowers that the claim put forward was insubstantial in our Western
civilization.140
To the extent Bowers relied on values we share with a wider civilization, it should be noted
that the reasoning and holding in Bowers have been rejected elsewhere.141
Following this approach, the Indian Supreme Court has relied on international
human rights norms to interpret certain legal principles. Thus, defining the principle
137
Hofmann (2014).
138
See also Janis, United States of America, in this Volume.
139
US Supreme Court, Lawrence v Texas, 539 US 560.
140
Ibid, 573.
141
Ibid, 576.
370 M. Herdegen
of “adverse possession” in Indian law, the Supreme Court relied on the case law of
the ECtHR with regard to Article 1 of Protocol No. 1 of the European Convention on
Human Rights:
It is interesting to see the development of adverse possession law in the backdrop of the
status of Right to Property in the 21st Century. The aspect of stronger Property Rights
Regime in general, coupled with efficient legal regimes furthering the Rule of Law argu-
ment, has redefined the thresholds in adverse possession law not just in India but also by the
Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably
affected the developments in this regard.142
5.3.2 Inter-American Convention on Human Rights
Several states in the Americas implemented the mechanism of conventionality

control introduced by the IACtHR, thereby following a rather monist approach.
The intensity of the domestic effect of the Convention nevertheless still varies in the
respective countries. In Argentina and Mexico the American Convention on Human
Rights is allocated the same rank as the Constitution.143 This results in the effect that
all courts are bound to directly apply the Convention without further legal transfor-
mation processes.144
In Colombia, the Constitutional Court held that the ACHR forms part of the so-
called “constitutional block” (bloque de constitutionalidad), which integrates norms
not explicitly laid down in the text of the Constitution.
In addition to the constitutional rank of human rights treaties ratified by Colom-
bia, among others the American Convention on Human Rights, this concept stipu-
lates that human rights law cannot be altered in states of emergency.145
In Costa Rica, the Constitutional Chamber of the Supreme Courts even subjected
a norm of the Constitution to scrutiny in light of the ACHR. It found that a provision
of the Constitution which discriminated between men and women as to the acqui-
sition of nationality was void and inapplicable.146
This rather monist tendency also holds true for the interpretation of the American
Convention on Human Rights. For instance, the supreme courts of the Dominican
Republic, Costa Rica, and Argentina, as well as the constitutional courts of Bolivia
and Peru, accept the binding effect not only of decisions of the IACtHR but also of
its interpretation.147 In this context, the Peruvian Constitutional Court holds that
142
Supreme Court of India, P.T. Munichikkanna Reddy v Revamma & Ors., MANU/SC/7325/2007,
Judgement of 24 Apr 2007, para 8.
143
On the domestic impact of the IACtHR in Argentina and Mexico, see Cerna, Argentina &
Mexico, in this Volume.
144
145
Triviño (2007), p. 668.
146
5 Sala Constitucional – Corte Suprema (Costa Rica), Voto 3435-92 (11 September 1992).
147
Pasqualucci (2013), p. 301–302.
the judgment [of the IACtHR] is binding upon all national government institutions, includ-
ing in those cases in which the Peruvian State is not a state party to the proceeding.148
The Supreme Court of Costa Rica stated:

[T]he Inter-American Court of Human Rights is the natural organ to interpret the American
Convention on Human Rights [. . .], the power of its decision when interpreting the Con-
vention and assessing domestic laws in light of this standard, either in a contentious case or
in a simple consultation, shall have -in principle- the same value as the interpreted rule.149
The In Vitro Fertilisation case150 shows how far-reaching the authoritative

interpretation might be, especially against the backdrop of the interpretation of the
whole Convention as a “living instrument,”151 The Costa Rican Supreme Court
deemed a decree allowing in vitro fertilization unconstitutional, breaching the right
to life as protected by Article 21 of the Costa Rican Constitution, as well as by
Article 4(1) of the American Convention on Human Rights. By contrast, the
IACtHR held that the resulting prohibition of in vitro fertilization was a dispropor-
tional infringement of the right to private and family life and personal integrity,
Articles 5(1), 7, 11(2), and 17(2) of the American Convention on Human Rights, as
the Convention would not protect the life of embryos. The judgment urged Costa
Rica to ensure the access to in vitro fertilization and thereby reaffirmed the original
legislation.152 With regard to Article 4(1), the Court stated:
[T]he highest court of Costa Rica [. . .] made an interpretation of Article 4 of the American
Convention. However, this Court [the IACtHR] is the ultimate interpreter of the Convention,
so that it finds it relevant to make the relevant clarification with regard to the scope of this
right.153
Instead of this decisive exegesis of both courts trying to find a universal solution,
the answer could also have been an acceptance of diverging legislation as the scope
of the American Convention on Human Rights seems to leave room for different
interpretation.
According to Article 93 of the Constitution of Colombia, human rights treaties
such as the American Convention on Human Rights guide the interpretation of the
fundamental rights contained in the Constitution, completing the “constitutional
block”. The Constitutional Court recognizes that this consideration for IACtHR
jurisdiction may affect its own decisions, but it does not see a source of conflict in
this context:
148
Cf Constitutional Tribunal of Peru, Case No 2730-2006-PA/TC, Judgment of 21 July 2006,
Ground 12 as cited by IACtHR, Cabrera García and Montiel-Flores v Mexico, Judgment of 26 Nov
2010, Series C No 220 para 226.
149
Cf Constitutional Chamber of the Supreme Court of Justice of Costa Rica, case no 0421-S-90,
Judgment of 09 May 1995, Opinion 2313-95. Considering clause VII as cited therein.
150
IACtHR, In Vitro Ferilization (Artavia Murillo et al. v Costa Rica), Judgment of 28 Nov 2012,
Series C No 257.
151
Herdegen (2016), p. 166 ff.
152
Ibid, 180.
153
IACtHR, In Vitro Ferilization (Artavia Murillo et al. v Costa Rica), supra fn 145, para 171.
372 M. Herdegen
In this sense, no one would think that the possibility of an international court, such as the
Inter-American Court of Human Rights, to order the State, by a judicial decision, to revoke a
decision of the court of last instance and to render a new decision in conformity with human
rights which the Colombian Government has pledged to protect, violates the constitutional
division of competencies.154
By contrast, the Dominican Republic and Uruguay assign a lower rank to the
American Convention on Human Rights, at the same level as domestic statutes. The
Constitutional Court of Venezuela completely refuses to accept a control of
conventionality.155
5.3.3 African Charter on Human and Peoples’ Rights
The constitutions of most African States stipulate that international human rights law
shall be directly incorporated and made an integral part of national law.156 Most
African States follow a monist view, which is based on the development that the
French Constitution has gone through.157 Most monist States require the interna-
tional norms to be self-executing and directly applicable, which is mostly
negated.158 Still, in some States, the Banjul Charter has direct effects. In Benin,
for example, the African Charter is part of the Constitution and Beninese law and is
attached to the Constitution as an Annex.159 It is often referred to by the Constitu-
tional Court, either as a means to amplify the norms of the Constitution160 or to be
applied directly, if the Constitution has no corresponding provisions.161 In a 1996
interview, then Commissioner of the African Commission on Human and Peoples’
Rights Julienne Ondziel-Gnelenga stated:
Personally, I have invoked in some cases, certain provisions of the Charter, but this has only
served as additional information to the cases in question. The judges and magistrates have
not taken into account these provisions when making decisions or formulating opinions.162
154
Corte Constitucional (Constitutional Court of Colombia), Case No C-590/05, Judgment of
08 June 2005, p 43.
155
156
Viljoen (2012), p. 519.
157
Ibid.
158
Ibid, 521.
159
Ibid, 520.
160
Ibid.
161
Constitutional Court of Benin, Case No DCC 05-114, Judgment of 20 Sept 2005 – construing a
right to a fair trial based on the African Charter, although the Benin Constitution does not provide
such a right.
162
Interview with Mrs Ondziel-Gnelenga in the African Legal Aid Quarterly, cited after Viljoen
(2012), p. 522.
The Commonwealth States of Africa follow a dualist approach.163 So far, only

one of the dualist States—Nigeria—has incorporated the Banjul Charter.164
South Africa follows the dualist approach as well, although self-executing norms
are directly applicable, if there is no national legislation.165
Notwithstanding the above, African courts tend to recognize international human
rights treaties and the Banjul Charter as a means to interpret domestic law.166 In
some States, the consideration of international law by the interpretation of national
law is even written in the Constitution167 or in other national provisions.168 The
presumption of statutory interpretation holds that a statute shall not be interpreted in
a way that violates a rule of international law.169
In the case Attorney-General of Botswana v Unity Dow, the Court of Appeal
directly referred to the Banjul Charter. The subject matter in the case was a
Botswanan Act, which stated that children had to adopt the citizenship of their
fathers, meaning that children of Botswanan women would not become Botswanan
citizens if the father was not Botswanan.170 The Constitution itself did not permit
discrimination based on sex. Hence, the Court of Appeal referred to the international
obligations of Botswana focusing on the Banjul Charter since national law should
not be interpreted in a way that violates the international obligations of the State.171
The Supreme Court of Ghana once referred to Article 11 of the Banjul Charter,
which mirrors Article 21 of the Ghanaian Constitution, stating that even though there
is no specific national legislation to implement the Banjul Charter, it can be relied
upon if there are domestic norms that mirror the Charter.172 However, since this
decision, Ghanaian courts have not made any other significant reference to the
Banjul Charter.173
163
As to Kenya and the move toward monism under the 2010 Constitution, see Okobasu, Kenya, in
this Volume.
164
Viljoen (2012), p. 522.
165
Ibid, 524.
166
Kenyan Court of Appeal at Eldoret, Mary Rono v Jane Rono and Another, Civil Appeal 66 of
2002, Judgment of 29 Apr 2005.
167
Art 39 (1) of the South African Constitution 1996 states “when interpreting the Bill of Rights, a
court, tribunal or forum [. . .] b. must consider international law; [. . .] Art 233 states that ‘[. . .] every
court must prefer any reasonable interpretation of the legislation that is consistent with international
law over any alternative interpretation that is inconsistent with international law,”
168
Interpretation Act of Botswana Art 24 (1): “[. . .] a court may have regard to any relevant
international agreement or convention[. . .],”
169
Viljoen (2012), p. 528.
170
Art 4 (1) Botswanan Citizenship Act 1982.
171
Court of Appeal of Botswana, Attorney-General v Dow, African Human Rights Law Reports
2001, 99–137, para 108.
172
Viljoen (2012) p. 531; Supreme Court of Ghana, New Patriotic Party v Inspector-General of
Police, judgment of 30 Nov 1993, African Human Rights Law Reports 2001, 138–157.
173
Viljoen (2012), p. 531.
374 M. Herdegen
After the Constitution of South Africa came into force, South African courts were
reluctant to rely on the African Charter.174 However, in more recent decisions, courts
take the African Charter into consideration. In Kaunda v President of South Africa,
the majority refers to the Charter when stating that there is no human right to
diplomatic protection175 and that the death penalty is not prohibited in international
law, thus creating no obligation of the State to protect its citizens when they might be
charged with capital punishment.176 The Charter seems to be recognized widely in
South Africa and is often used as a means of interpretation. However, it is mostly
used to restrict rights, not to widen them.177 The decisions and resolutions of the
African Commission are not referred to by judges.178
5.3.4 Other Regional Conventions
Southern African Development Community
The Southern African Development Community (SADC)179 was established in 1992

and has fifteen member States.180 The aim of the SADC is to strengthen peace and
security between member States and to achieve development and economic
growth.181 In the Treaty’s Preamble, the member States are mindful that the only
way to achieve the Community’s objectives is by guaranteeing democratic rights and
observing human rights and the rule of law. According to Article 4 of the SADC
Treaty, the actions of the member States have to be in compliance with the principles
of human rights. The SADC framework requires its member States to improve the
174
Ibid, 539.
175
Constitutional Court of South Africa, Kaunda and Others v The President of the Republic of
South Africa, Case No CCT 23/04 34, Judgment of 04 Aug 2004. The Constitutional Court,
however, recognizes the obligation of the courts to consider international law when interpreting
the Bill of Rights, including the African Charter on Human Rights and Peoples’ Rights. Justice
Ngcoobo construes a duty of the state to give diplomatic protection, because South Africa is obliged
to protect the human rights guaranteed in the African Charter and the ICCPR and diplomatic
protection is an effective tool to do so, ibid [187 et seq.].
176
Ibid, para 98 ff.
177
Cf Constitutional Court of South Africa, Ferreira v Levin NO, Case No CCT 5/95, Judgment of
06 Dec 1995, para 170 and Volks NO v Robinson, Case No CCT 12/04, Judgment of 21 Feb 2005,
paras 82, 85.
178
Viljoen (2012), p. 540.
179
On the human rights jurisprudence of the courts of other regional economic communities in
Africa, see Ebobrah, Courts of Regional Economic Communities in Africa and Human Rights Law,
in this Volume.
180
Member States are: Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar,
Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia
and Zimbabwe.
181
Art 5 of the Treaty of the Southern African Development Community lists all objectives of the
Organization.
socioeconomic rights of their population.182 The SADC Tribunal stated that the
Treaty has granted the Tribunal the jurisdiction over matters concerning human
rights.183 In the following, the SADC has adopted several protocols and declarations
concerning, among other topics, human rights. The Charter of Fundamental Social
Rights in SADC expressis verbis recognizes the basic universal and regional human
rights declarations (Article 3 of the Charter) and guarantees several social and
economic human rights, such as equality between men and women concerning
employment (Article 6 of the Charter).
In the case Ts’epe v The Independent Electoral Commission and Others, the
Lesotho Court of Appeal made strong references to the Declaration on Gender and
Development, which was adopted by the SADC in 1997.184 However, the High
Court of Lesotho stated that it is the obligation of the legislator to adopt international
treaties into national law, and it thus would be an interference with the competences
of the legislative branch if a court were to ask the Parliament to adopt the interna-
tional obligations, let alone directly referring to international law by courts.185
This decision shows one of the main problems raised by domestic courts applying
international law. If there is a lack of implementation through national legislation,
national courts hesitate to implement international obligations on their own. The
separation of powers has a strong influence and has hindered implementation in
more than a few cases, concerning not just the SADC but also the European
Convention on Human Rights, as well as the other regional treaty systems.
Besides the case of Ts’epe, domestic courts refrain from referring to the SADC
Treaty or any of its declarations or charters. Even when they are backing up national
human rights with international law, they rather refer to the universal level, not to the
SADC.186
In Gramara (Pvt) Ltd v Republic of Zimbabwe, the High Court dismissed the
national enforcement of a ruling of the SADC Tribunal.187 The claimants went on to
sue Zimbabwe for compensation in South Africa because of the lack of enforcement
of the SADC Tribunal judgment and succeeded.188
In Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe, the SADC Tribunal
held that the expropriation of farmers in Zimbabwe, which essentially targeted white
owners, amounted to racial discrimination and violated the rule of law. Zimbabwe
182
Moyo (2011), p. 76.
183
Ibid, 76 ff.
184
Viljoen (2012), p. 532; Lesotho Court of Appeal, Ts’epe v The Independent Electoral Commis-
sion and Others, Case No 11/05, Judgment of 30 June 2005, African Human Rights Law Reports
2005, 136–150.
185
Viljoen (2012), p. 531.
186
Moyo (2011), p. 88.
187
du Plessis and Forere (2010), p. 267.
188
Ibid; see also de Wet (2014), p. 554.
376 M. Herdegen
refused to recognize this judgment and succeeded in having the functions of the
SADC Tribunal suspended. In 2012, the member States agreed on negotiating a new
tribunal with powers in contentious cases confined to disputes between member
States.189
The Arab Charter on Human Rights
Most national laws in Arab States are clearly constituted in accordance with the
Sharia, often directly referring to it. The Constitution of Jordan even provides for
specific Sharia courts in its Article 104 (i). Article 26 of the Constitution of Saudi
Arabia stipulates: “The State shall protect human rights in accordance with the
Sharia”. It seems redundant to mention the contradiction in wording between those
provisions and human rights, at least in the case of a literal application of the sources
of Islamic law. To illustrate, the Quran says:
Men are the protectors and maintainers of women, because Allah has given the one more
(strength) than the other, and because they support them from their means. Therefore the
righteous women are devoutly obedient, and guard in (the husband’s) absence what Allah
would have them guard. As to those women on whose part ye fear disloyalty and illconduct,
admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if
they return to obedience, seek not against them Means (of annoyance): For Allah is Most
High, great (above you all).190
As the Arab Charter on Human Rights does not provide for any enforcement
measures, the implementation of the Charter and potential review of domestic laws
contradicting it fully depends on the willingness of the States’ governments. Despite
this conceptual problem, national courts in some Arab States refer to the Charter or
other human rights treaties in interpreting the scope and considering the constitu-
tionality of national laws. For instance, the Egyptian Administrative Court relied—
among other treaties, in particular the ICESCR—on provisions of the Arab Charta
when deciding that Egypt was obliged to provide for a minimum wage as stipulated
in Article 34 of its Labour Code.191
189
Southern African Development Community (2012) Final Communiqué of the 32nd Summit Of
SADC Heads of State and Government in Maputo, Mozambique 18 Aug 2012, para 24.; see also de
Wet (2013).
190
As cited by Mattar (2013), p. 119, 180.
191
Ibid, 136–137.
6 Other National Institutions
6.1 National Contact Points
The objective of the National Contact Points is to further the effectiveness of the
OECD Guidelines for Multinational Enterprises192 and to ensure their applica-
tion.193 The NCPs shall respond to enquiries about the Guidelines from other
NCPs, the business community, worker organizations, other nongovernmental orga-
nizations, the public, and governments of nonadhering countries by assessing the
situation, communicating with the involved parties, and offering good deeds.194
Following each procedure, the NCP shall publish the outcome and the names of all
the businesses involved.195 Furthermore, NCPs will report about their activities to
the Committee on a yearly basis.196 NCPs are government agencies.
The Guidelines provide for the duty of the State to protect human rights and set
forth that multinational operations should respect human rights, avoid causing
impact on human rights, perform due diligence concerning human rights, implement
a corporate social responsibility doctrine respecting human rights, and establish a
remedy process for cases in which they had impact on human rights (Chapter IV of
the Guidelines). The principles concerning human rights, newly introduced in 2011,
are based on the United Nations “Protect, Respect and Remedy” Framework for
Business and Human Rights and are streamlined with the Guiding Principles regard-
ing their implementation.197 The obligation for multinational enterprises stemming
from the Guidelines to respect at least the treaties commonly referred to as the
International Bill of Rights remains unaffected even if the State in which they
operate does not comply with its human rights obligations.198
Since 2011, NCPs are entrusted with the supervision of human rights compliance
by multinational enterprises. As the Guidelines are not binding, complaints before
the NCPs are the only possibility to reprimand the non-compliance with the Guide-
lines.199 However, the NCPs are not able to sanction behavior of enterprises. The
dissuasive effect of the NCP procedure is built on the “naming and shaming”
principle: during the procedure, enterprises have to publish certain documents and
become the focus of public attention as the NCPs shed a light on the malpractice of
the multinational enterprise. As naming and shaming is a very successful means to
192
As of September 2018 the OECD Guidelines for Multinational Enterprises have been accepted
by 48 states, all of which have created National Contact Points, mneguidelines.oecd.org/about.htm.
193
For a detailed presentation of the object and purpose of NCPs see Amendement of the Decision
of the council on the OECD guidelines for Multinational Enterprises, I.1., 68
194
Ibid, 72 et seq.
195
Ibid, 73.
196
Ibid, 74.
197
Ibid, 36.
198
Ibid, 38 et seq.
199
For an overview of the complaint procedure see Kasolowsky and Voland (2014).
378 M. Herdegen
harden soft law, it depends heavily on the public opinion and the distribution of the
procedures and decisions by mass media and NGOs. But first and foremost, it
depends on the willingness of the NCPs to consider human rights violations of
multinational enterprises in their annual reports and in complaints brought before
them. The activity of NCPs has considerably increased in the last years and shows
that civil society is ready to bring human rights complaints before NCPs.
In the case Forum v NBIM of May 2013, the Norwegian NCP concluded that
NBIM, a Norwegian state-owned investment bank, had violated the Guidelines by
not cooperating with the NCP and by not creating a due diligence mechanism
concerning human rights risks related to businesses in which NBIM has a legal
interest.200 The NCP subjected NBIM to the standards of the OECD Guidelines,
even in the context of investments as a minority shareholder. The NCP refers to the
interpretation of the term “business relationship” of the UN Office of the High
Commissioner for Human Rights laid out in the UN Guiding Principles.201
6.2 National Human Rights Institutions
National human rights institutions start to play a more important role in international
human rights law and in supervising its implementation at the national level.202 They
are defined as “a body which is established by a government under the constitution,
or by law or decree, the functions of which are specifically designed in terms of the
promotion and protection of human rights.”203 There are two different types of
NHRIs, which are not mutually exclusive, but often coexist in the same State:
national commissions and national ombudsmen. Whereas human rights commis-
sions focus on human rights violations of public or private actors,204 ombudsmen
focus on individual complaints of violations of human rights by public authori-
ties.205 Additionally, a number of NHRIs focus on a specific topic or on specific
vulnerable groups.
The International Coordinating Committee of National Institutions for the Pro-
motion and Protection of Human Rights—a subcommittee of the Office of the High
200
Norwegian National Contact Point for the OECD Guidelines for Multinational Enterprises
(2013) Final Statement: Complaint from Lok Shakti Abhiyan, Korean Transnational Corporations
Watch, Fair Green and Global Alliance and Forum for Environment and Development vs POSCO
(South Korea), ABP/APG (Netherlands) and NBIM (Norway), 6. Available under http://www.
responsiblebusiness.no/files/2013/12/nbim_final.pdf. Accessed 02 Nov 2017.
201
Ibid, 22.
202
As to the role of the Danish National Human Rights Institution in implementing human rights
decisions, see Christoffersen, Denmark, in this Volume.
203
Goodman and Pegram (2011), p. 1.
204
UN Office of the High Commissioner for Human Rights (2013) Fact Sheet No 19: National
Institutions for the Promotions and Protection of Human Rights.
205
Ibid, 5; Cardenas (2003), p. 25.
Commissioner for Human Rights—monitors and peer reviews the NHRIs founded
under the Paris Principles.206 In general, NHRIs differ vastly from State to State,
depending on the competences they were granted by the founding legislative act.
6.2.1 The Paris Principles
The Principles relating to the status of national institutions (Paris Principles) are a
set of rules that define the competences and the responsibilities that an NHRI shall
have and were drafted in 1991 and adopted by the United Nations General Assembly
in 1993.207 Paragraphs 1 and 3 (a) of the Paris Principles require States to give the
NHRI competence (i) to promote and protect human rights by giving it the right to
submit and publicize opinions, recommendations, proposals, and reports concerning
legislative or administrative decisions and in any other situation; (ii) in the prepara-
tion of state reports concerning human rights in general; (iii) and concerning the
reports that a State is required to submit to a United Nations treaty body (paragraph
3 (d)).
The main competences of the institutions concerning international law are the
following:
– promoting and ensuring the harmonization of national legislation, regulations,
and practices with international human rights law208;
– encouraging ratification of international human rights treaties and accession to
international human rights instruments209;
– contributing to state reports to treaty bodies210;
– cooperation with the United Nations and any other treaty body at the universal
and regional levels.211
After a bumpy start, NHRIs and international human rights treaty bodies are now
working closely together. Whereas NHRIs often refer to international human rights
206
As of 26 May 2017, there are 121 National Human Rights Institutions registered at the ICC, 78 of
which fully comply with the Paris Principles, 33 that do not fully comply and 10 that do not comply
at all with the Paris Principles. See International Coordinating Committee of National Institutions
for the Promotion and Protection of Human Rights (ICC) (2017) Chart of the Status of National
Institutions: Accredited by the International Coordinating Commitee of National Institutions for the
Promotion and Protection of Human Rights (Status as of 26 May 2017). Available under http://
www.ohchr.org/Documents/Countries/NHRI/Chart_Status_NIs.pdf. Accessed 02 Nov 2017.
207
United Nations General Assembly (1993) Resolution A/Res/48/134: National Institutions for the
promotion and protection of human rights (The Paris Principles) Available under http://www.ohchr.
org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx. Accessed 02 Nov 2017.
208
Ibid, Art 3, lit b.
209
Ibid, Art 3, lit c.
210
Ibid, Art 3, lit d.
211
Ibid, Art 3, lit e.
380 M. Herdegen
law, they are seen as a partner in monitoring and promoting international human
rights standards by international treaty bodies.212
Concerning international human rights standards, NHRIs shall promote and
ensure the harmonization and effective implementation of national legislation,
regulations, and practices with international human rights instruments (paragraph
3 (b) of the Paris Principles). Hence, the NHRIs play a crucial role in promoting
international human rights standards at the national level and in calling the attention
of courts and attorneys to international human rights treaties and decisions. With the
competence to address public opinion (methods of operation (c) of the Paris Princi-
ples), the institutions have a great power of making international human rights
treaties and decisions known at the national level and thus leading to a better
enforcement by domestic courts.
However, they are an administrative body, which has no competence in judicial
fields or in lawmaking. Nevertheless, most NHRIs have quasi-judicial compe-
tences,213 such as compelling the appearance of witnesses or the production of
evidence.214 For instance, the Canadian Human Rights Commission can refer
cases to the Canadian Human Rights Tribunal215; both were created by the Canadian
Human Rights Act. Complaints before the Tribunal require that the case has been
referred to and investigated by the Canadian Human Rights Commission. Its man-
date is to apply the Canadian Human Rights Act and only deals with cases of
discrimination.216
In the case Cruden v Canada, the Canadian Human Rights Tribunal referred to
the Universal Declaration of Human Rights and other human rights treaties such as
the ICCPR and the Convention on the Rights of Persons with Disabilities (CRPD) as
means of interpreting the Canadian Human Rights Act and the meaning of the
“dignity of all human beings.”217 The case was about a woman with type 1 diabetes,
who was not allowed to work for Canadian development programs in Afghanistan
because of her condition.218 In one of its first decisions, the Tribunal referred not
only to the ICCPR but to the Canadian state report to the Human Rights Committee
on implementing the ICCPR and interpreted Canadian national law in the light of
this report.219
212
Carver (2010), p. 11.
213
Quasi-judicial competences are not mandatory under the Paris Principles, although they include
additional principles concerning the status of commissions with quasi-judicial competence, see
United Nations General Assembly, Resolution A/Res/48/134, supra fn 202, section D.
214
Carver (2010), p. 4.
215
Art 48(1) Canadian Human Rights Act 1985.
216
Art 48.1(1) Canadian Human Rights Act 1985.
217
Canadian Human Rights Tribunal, Cruden v Canadian International Development Agency and
Health Canada, 2011 CHRT 13, paras 78 et seq.
218
Ibid, para 37.
219
Canadian Human Rights Tribunal, Smith v Western Guard Party, Case No T.D. 1/79.
The Australian Human Rights Commission has to consider human rights as

defined in international treaties and declarations adopted by the General Assembly
of the United Nations, such as the Declaration of the Rights of the Mentally Retarded
Persons.220 In general, most NHRIs at least refer to the Universal Declaration of
Human Rights, which is a nonbinding declaration but is not treated as such by the
NHRIs.221
The purpose of NHRIs is to serve as intermediaries between international law and
national law.222 Having a big impact at the national level, most NHRIs are involved
in treaty making at the international level and have speaking rights in the Human
Rights Council.223 The Optional Protocol on the Convention Against Torture and the
Convention on the Rights of Persons with Disabilities (CRPD) assign a role to
NHRIs in implementing and monitoring compliance by member States.224
6.2.2 NHRIs and International Organizations and Treaties
The aim of NHRIs is to promote and ensure the effective implementation of

international norms in the sector of human rights at the national level.225 By setting
up the Paris Principles and the Coordinating Committee for NHRIs, the United
Nations exerts great influence in defining the competences of these institutions.
Nearly half of the institutions have an explicit mandate to apply international
human rights law, whereas only a small minority focuses on national law.226 Despite
the fact that most NHRIs are trying to expand their mandate and consider interna-
tional human rights law even when they are not supposed to, the Mexican Human
Rights Commission does not refer to international law as much as it is mandated
to.227
The Georgian Human Rights Institution, the Public Defender’s Office, is referring
not only to international treaties when dealing with potential human rights infringe-
ments but also to the jurisprudence of the ECtHR,228 stressing the authority of treaty
bodies and international courts in interpreting human rights treaties.
The NHRIs in Africa follow a dualist approach by being connected not only to the
universal human rights protection system but also to the Banjul Charter. Article 26 of
the Charter obliges its contracting States to “allow the establishment and improve-
ment of appropriate national institutions entrusted with the promotion and protection
220
Australian Human Rights Commission Act 1986 Part I Section 3 human rights, Schedules 1–5.
221
Carver (2010), p. 13.
222
Ibid, 2.
223
Ibid.
224
Ibid, 3.
225
Cardenas (2003), p. 23.
226
Carver (2010), p. 6.
227
Ibid, 12.
228
Ibid, 13.
382 M. Herdegen
of the rights and freedoms guaranteed by the present Charter.” The African Com-
mission and the NHRIs shall cooperate with each other (Article 45 (1) lit. c).229
All in all, with NHRIs, the idea of national institutions monitoring compliance
with international human rights standards—which is as old as the Universal Decla-
ration of Human Rights230—became a reality.
6.2.3 Example: South African Human Rights Commission
The South African Human Rights Commission has no explicit mandate to apply or
monitor compliance with international human rights treaty law.231 Section 184 (3) of
the South African Constitution states that
the Human Rights Commission must require relevant organs of state to provide the Com-
mission with information on the measures that they have taken towards the realization of the
rights in the Bill of Rights concerning housing, health care, food, water, social security,
education and the environment.
It thus can ask the relevant organs to obtain information, resulting in a duty of the
organs to hand the requested information to the Commission.232 These reports must
serve the purpose of the SAHRC to promote respect for human rights and a culture of
human rights; promote the protection, development, and attainment of human rights;
and monitor and assess the observance of human rights in the Republic (Section 184
(1) of the South African Constitution). To do so, it can investigate and report on the
observance of human rights, take steps to secure appropriate redress where human
rights violations happened, carry out research, and educate (Section 184 (2) of the
South African Constitution). The SAHRC is deeply rooted in the young Constitution
and has obtained further powers in the South African Human Rights Commission
Act, the Promotion of Access to Information Act, and the Promotion of Equality and
Prevention of Unfair Discrimination Act. The Commission adheres to the Paris
Principles and works toward the implementation and ratification of international
and regional human rights instruments.233
Like the Kenyan and Ugandan NHRI, the SAHRC has the competence to deal
with individual complaints concerning human rights violations, to promote human
rights to the public, and to inspect places of detention. It has no general monitoring
powers as to compliance of South Africa with international human rights law.234
229
See the Resolution on Granting Observer Status to National Human Rights Institutions in Africa.
230
Ibid, 3.
231
Ibid, 10.
232
Liebenberg (1997), p. 163.
233
South African Human Rights Commission (2014) Annual Report, 11.
234
Dinokopila (2010), p. 31.
Nevertheless, it has played a leading role in South Africa in focusing on the

States’ obligations under international human rights treaties.235 However, the Com-
mission in its reports only refers to national and constitutional laws.236
7 Conclusions
The interplay between the decisions of international human rights courts, on the one
hand, and the receptivity of domestic courts to international case law, on the other, is
crucial for the implementation of human rights treaties.
The “control of conventionality,” as required by the IACtHR, is an effective
mechanism to ensure compliance with the American Convention and IACtHR’s
decisions. Under the European Convention, the doctrine of the “margin of appreci-
ation” vests national courts with some flexibility in order to accommodate domestic
standards with the European Convention. The European Convention, as well as its
American and African counterparts, has a political monitoring body to supervise
compliance with the decisions of the human rights courts established under the
respective convention. Unlike the European and the African courts, the Inter-
American Court of Human Rights assumes a broad supervisory jurisdiction as an
exception.
As the International Court of Justice and other bodies distinct from human rights
courts rule on human rights, the impact of these decisions on domestic courts
becomes an important issue. In this context, the rulings of courts in Germany and
the USA on the right to consular assistance provided by Article 36 (2) of the VCCR
illustrate the spectrum of possible approaches to due consideration of international
jurisprudence.
The analysis of the approach adopted by Australian institutions or Belizean courts
as to the Declaration on the Rights of Indigenous People shows that receptivity for
human rights standards might flow even from nonbinding instruments.
The response to the controversial findings of the CERD in the Sarrazin case in
Germany illustrates the functional difference between courts and other supervisory
treaty bodies. The findings of the CERD in this case triggered an intense debate in
Germany.
An analysis of the domestic attitudes toward the ECtHR’s jurisprudence shows a
clear tendency towards high receptivity, however with greatly varying degrees of
deference. German courts go to some lengths in order to interpret the Basic Law in
the light of the European Convention on Human Rights and accepting the ECtHR as
its authentic interpreter, although they maintain some reservation as to
235
Carver (2010), p. 10.
236
See e.g. South African Human Rights Commission (2013) Report on Economic and Social
Rights, 27, concerning the right to environment, where the Commission only refers to Section 24 of
the Constitution.
384 M. Herdegen
methodologically sound interpretation and the elementary principles of the Basic

Law. In the UK, the Supreme Court increasingly displays restrictive tendencies as to
the deference to the ECtHR’s decisions. The recent jurisprudence of the Russian
Constitutional Court on the constitutionality of the ECtHR decisions as a precondi-
tion for compliance presents a new challenge to the implementation of the
Convention.
Under the Inter-American system of human rights, the broad acceptance of the
“control of conventionality” by national courts has strengthened the IACtHR’s
position and the impact of its decisions at the domestic level. Still, the extensive
interpretation of the American Convention by the Court may foster counteractions
by national courts. It is not infrequent that rather activist supreme or constitutional
courts take issue with judicial activism at the international level.
Implementation of human rights standards by National Contact Points and
National human rights institutions logically differs from the implementation by
courts with regard to the binding character of underlying texts. NCPs are instructed
to supervise the implementation by multinational enterprises of human rights incor-
porated in the OECD Guidelines. Since compliance with the findings of NCPs
depends on the will of these enterprises to cooperate, their effect is often reduced
to “naming and shaming”. Still, the resulting media pressure should not be
underestimated. NHRIs raise the attention of courts, businesses, and other stake-
holders, as well as governments, to human rights issues and thereby indirectly
influence the implementation of human rights treaties.
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Russ Law J 2(3):130–140
Viljoen F (2012) International human rights law in Africa, 2nd edn. Oxford University Press,
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von der Wense W (1999) Der UN-Menschenrechtsausschuß und sein Beitrag zum universellen
Schutz der Menschenrechte. Springer, Berlin
Watson C (1977) The European Convention on Human Rights and the British Courts. Texas Int
Law J 12:61–73
Wildhaber L, Hjartarson A, Donnelly S (2013) No consensus on consensus? The practice of the
European Court of Human Rights. Human Rights Law J 33:248–263
Argentina and Mexico
Implementation of Inter-American Court of Human
Rights Judgments in Latin America: Examples from
Argentina and Mexico
Christina Cerna
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
2 The Jurisprudence of the Inter-American Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . 391
2.1 Control of Conventionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
2.2 The State’s Obligation to Prevent, Investigate, Punish, and Repair . . . . . . . . . . . . . . . . . 392
3 Argentina, Its Constitution, and the Case Law on Amnesty Laws . . . . . . . . . . . . . . . . . . . . . . . . . 394
3.1 Reform of the Argentine Constitution (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
3.2 Status of Human Rights Treaties in Other Latin American States . . . . . . . . . . . . . . . . . . . 395
3.3 Amnesty Laws, the Inter-American Court in Barrios Altos v Peru (2001),
and the Argentine Supreme Court in Simon (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
3.4 Subsequent Inter-American Jurisprudence on Amnesties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
4 Mexico, Its Constitution, and the Inappropriate Use of Military Jurisdiction for Human
Rights Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
4.1 Background of the Radilla Pacheco Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
4.2 Mexican Law on Military Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
4.3 The Reform of the Mexican Constitution with Regard to Human Rights . . . . . . . . . . . 401
4.4 Resolution of the Mexican Supreme Court Calling on the Judiciary to Carry Out
an Ex Officio Control of Conventionality (July 14, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
4.5 Supreme Court: Transfer to Civilian Jurisdiction (2012); Congress: Military Reform
Decree (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
4.6 Mexican Supreme Court: Inter-American Court Jurisprudence Binding on All
Mexican Judges (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
C. Cerna (*)
Georgetown University Law Center, Washington, DC, USA
e-mail: ccerna@comcast.net

https://doi.org/10.1007/978-3-319-94848-5_14
390 C. Cerna
1 Introduction
In spite of the proliferation of human rights treaties since the end of World War II,
states differ in the understanding of their obligations under these treaties. Limiting
our analysis to the Americas, the assumed obligations articulated by the United
States, for example, are vastly different from the obligations articulated and assumed
by countries such as Argentina and Mexico.1 This different attitude is reflected in the
approach of the respective domestic courts as regards their obligations under public
international law.
In Medellín v Texas, for example, the US Supreme Court granted certiorari to
decide two questions, one of which concerns us here: “Is the ICJ’s decision in Avena
directly enforceable as domestic law in a state court in the United States?”2 Medellín
contended that the ICJ’s judgment in Avena constituted a binding legal obligation on
the state and federal courts of the United States by virtue of the Supremacy Clause of
the US Constitution.3 The majority decision of Chief Justice Roberts4 stated “no one
disputes that the Avena decision (. . .) constitutes an international law obligation on
the United States.”5 The problem is
. . .not all international law obligations automatically constitute binding federal law enforce-
able in United States courts. The question we confront here is whether the Avena judgment
has automatic domestic legal effect such that the judgment of its own force applies in state
and federal courts.6
After a brief disquisition on “self-executing” and “non-self-executing” treaties,

the US Supreme Court majority decided in Avena that the relevant international
instruments did not create an obligation to give the ICJ judgment legally binding
force in the domestic courts of the United States:
Medellín and his amici nonetheless contend that the Optional Protocol, United Nations
Charter, and ICJ Statute supply the “relevant obligation” to give the Avena judgment binding
effect in the domestic courts of the United States. Reply Brief for Petitioner 5–6.4. Because
none of these treaty sources creates binding federal law in the absence of implementing
legislation, and because it is uncontested that no such legislation exists, we conclude that the
Avena judgment is not automatically binding domestic law.7
1
Compare the table of ratifications at http://www.ohchr.org/EN/Countries/Pages/HumanRightsin
theWorld.aspx; declarations and reservations are accessible via http://treaties.un.org. Accessed
11 July 2017. In particular, neither Argentina nor Mexico registered a domestic effect declaration
to the ICCPR like the United States, according to which “the provisions of Article 1 through 27 of
the Covenant are not self-executing”.
2
US SCt, Medellín v Texas, judgment of 15 Nov 2006, 552 U.S. 491 (2008), 2.
3
Ibid, 7–8. See also ICJ, Avena and Other Mexican Nationals (Mexico v US), judgment of 31 Mar
2004, ICJ Reports 2004, 12.
4
Justices Scalia, Kennedy, Thomas and Alito formed the majority with Chief Justice Roberts.
5
US SCt, Medellín v Texas, judgment of 15 Nov 2006, 552 U.S. 491 (2008), 8.
6
Ibid.
7
Ibid, 10.
Argentina and Mexico 391
“In its analysis of these international instruments, the majority noted that ‘Article
59 of the ICJ statute provides that [t]he decision of the [ICJ] has no binding force
except between the parties and in respect of that particular case.’”8 In footnote 7, the
US Supreme Court noted that Medellín argued that the Avena judgment is binding
“in respect of [his] particular case.” It, however, rejected his argument, concluding
that “Medellín does not and cannot have a case before the ICJ under the terms of the
ICJ Statute” because only nation-states and not individuals may be parties before
the ICJ.
The majority of the US Supreme Court concluded that the Avena case does not
constitute binding federal law in the United States because “neither Medellín nor his
amici have identified a single nation that treats ICJ judgments as binding in domestic
courts.”9 The Medellín case demonstrates the current inferior status of international
law vis-à-vis domestic law in US courts in contradiction with the Supremacy Clause
of the US Constitution. The case raises the important question of what obligations a
state assumes as regards compliance with an adverse judgment of an international
court. The current state of international law provides no clear guidance with regard to
this question.
This chapter discusses how Argentina and Mexico have treated judgments of an
international court, the Inter-American Court of Human Rights, as legally binding in
their domestic courts. Their respective supreme courts have done so in the context of
legislation on amnesty laws and in the context of the use of military jurisdiction for
human rights crimes. This chapter discusses these decisions in the light of the
jurisprudence of the Inter-American Court itself as to what the obligations are
under the ACHR in this respect, focusing on its doctrine of “control of convention-
ality” and on the obligation to prevent, investigate, prosecute, and repair, as well as
its specific jurisprudence on amnesties and on the use of military jurisdiction. The
Argentina and Mexico examples may serve as examples of good practices regarding
the treatment of judgments by a human rights court.
2 The Jurisprudence of the Inter-American Court

of Human Rights
2.1 Control of Conventionality
The American Convention on Human Rights (American Convention or ACHR), the

regional human rights treaty of the inter-American system, provides that judgments
of the Inter-American Court of Human Rights (IACtHR) “shall be final and not
8
Ibid, 15.
9
Ibid, 20.
392 C. Cerna
subject to appeal” and that the States Parties to the Convention “undertake to comply
with the judgment of the Court in any case to which they are parties.”10
Although the US Supreme Court interpreted “undertake to comply” in Article
94 of the UN Charter to mean that a state is not obligated to comply with a judgment
of the ICJ, the IACtHR, in interpreting the same language in the context of Article
68 ACHR, has established that states are obligated to comply. States are obligated to
comply in good faith with the terms of the treaty and with all the judgments of the
Inter-American Court, even in cases to which they were not party. States are required
to comply with the terms of the judgment of a case to which they were parties, but
they also are required to determine whether their laws are in accordance with the
provisions of the American Convention as interpreted in the judgments of the
IACtHR in all cases, which the IACtHR terms a “control of conventionality.” In a
case dealing with the compatibility of amnesty laws with the American Convention,
the IACtHR set forth what it meant by the concept of a “control of conventionality”:
The Court is aware that domestic judges and courts are bound to respect the rule of law, and
therefore, they are bound to apply the provisions in force within the legal system. But when a
State has ratified an international treaty such as the American Convention, its judges, as part
of the State, are also bound by such Convention. This forces them to see that all the effects of
the provisions embodied in the Convention are not adversely affected by the enforcement of
laws which are contrary to its purpose and that have not had any legal effects since their
inception. In other words, the Judiciary must exercise a sort of “conventionality control”
between the domestic legal provisions which are applied to specific cases and the American
Convention on Human Rights. To perform this task, the Judiciary has to take into account
not only the treaty, but also the interpretation thereof made by the Inter-American Court,
which is the ultimate interpreter of the American Convention.
By the same token, the Court has established that “according to international law,
the obligations that it imposes must be honored in good faith and domestic laws
cannot be invoked to justify their violation.” This provision is embodied in Article
27 of the Vienna Convention on the Law of Treaties of 1969 (VCLT).11
2.2 The State’s Obligation to Prevent, Investigate, Punish,

and Repair
From its earliest jurisprudence, the IACtHR has interpreted Article 1 (1) ACHR to
mean that States Parties have the obligation to “respect” and “ensure” the free and
full exercise of the rights and freedoms recognized in the Convention to mean that
states must “prevent, investigate, punish and repair” any violation of the rights set
10
Arts 67 and 68 ACHR. See also Cerna, State Obligations in the Inter-American System, in this
Volume.
11
judgment of 26 Sept 2006, paras 124–125.
forth in the American Convention. In its first merits judgment, issued in 1988, the
IACtHR defined the content of this state obligation:
The second obligation of the States Parties is to “ensure” the free and full exercise of the
rights recognized by the Convention to every person subject to its jurisdiction. This
obligation implies the duty of States Parties to organize the governmental apparatus and,
in general, all the structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human rights. As a conse-
quence of this obligation, the States must prevent, investigate and punish any violation of the
rights recognized by the Convention and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting from the violation.12
Amnesty laws, by their very nature, stop the state from pursuing the investigation
of human rights violations. In 1992, the Inter-American Commission on Human
Rights (Commission or IACHR) for the first time declared amnesty laws in Argen-
tina and Uruguay incompatible with the state’s obligations under Articles 1, 8, and
25 ACHR to conduct an investigation to determine the perpetrators of the human
rights crime and to punish them.13 Both Argentina and Uruguay ignored the Com-
mission’s decision at that time. In 2001, however, the IACtHR issued its judgment in
the first case it examined involving the alleged incompatibility of amnesty laws with
the American Convention. The Court, in the Barrios Altos v Peru case, held that
Peru’s amnesty laws were incompatible with its obligations under the American
Convention and consequently lacked “legal effect.”14 The IACtHR Court
invalidated the Peruvian amnesty laws and any other measures, such as statutes of
limitations, that prevented the investigation and punishment of serious human rights
crimes in the following terms:
This Court considers that all amnesty provisions, provisions on prescription and the estab-
lishment of measures designed to eliminate responsibility are inadmissible, because they are
intended to prevent the investigation and punishment of those responsible for serious human
rights violations such as torture, extrajudicial, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable rights recognized
by international human rights law.15
As mentioned earlier, Article 68 (1) of the American Convention provides that

States Parties to the American Convention shall “undertake to comply” with the
12
IACtHR, Velasquez Rodriguez v Honduras, judgment of 29 July 1988, para 166.
13
IACHR, Report no 28/92, cases 10.147, 10.181, 10.240, 10.262, 10.309 y 10.311 (Argentina) and
Report no 29/92, cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 y 10.375 (Uruguay)
all 2 Oct 1992.
14
IACtHR, Barrios Altos v Peru, judgment of 14 Mar 2001, para 51 (4). Peru had accepted
international responsibility during the litigation of this case before the Court. With the judgment
of the Court in hand, the authorities transmitted the judgment to the Peruvian Supreme Court. The
President of the Court sent it to several judicial instances, pointing out that the criminal proceedings
for the events of the Barrios Altos case must be reopened given the “binding and inexorable”
[vinculante e inexorable] character of the IACtHR’s judgment. As a result, arrest warrants were
issued for the 13 individuals allegedly implicated in the massacre to be investigated, including two
army generals.
15
Ibid, para 41.
394 C. Cerna
judgment of the Court in cases to which they are parties. Also, as noted above, the
Court has evolved a “control of conventionality” doctrine that requires states to
review the compatibility of their domestic laws with the provisions of the American
Convention. The legal authority to require a “control of conventionality” is based on
Article 2 ACHR.
3 Argentina, Its Constitution, and the Case Law

on Amnesty Laws
3.1 Reform of the Argentine Constitution (1994)
In 1994, Argentina reformed its Constitution and granted international human rights
norms the ranking of constitutional law.16 Argentine Judge Leonardo Franco of the
Inter-American Court suggests that this reform was foreshadowed already in 1992 in
the Argentine Supreme Court’s decision in the Ekmekdjian case.17 In that case, the
Supreme Court considered the right of reply set forth in Article 14 (1) ACHR to be
directly operative in Argentina, from the time of ratification of the American
Convention. The Argentine Supreme Court had based its decision on Advisory
Opinion No. 7 of the Inter-American Court, which specified that Article 14 (1) “rec-
ognizes an internationally enforceable right to reply” and when that right “is not
enforceable under the domestic law of a State Party, that state has the obligation,
under Article 2 of the Convention, to adopt, in accordance with its constitutional
processes and the provisions of the Convention, the legislative or other measures that
may be necessary to give effect to this right.”18 Article 2 ACHR, dealing with
domestic legal effects, provides as follows: “Where the exercise of any of the rights
or freedoms referred to in Article 1 is not already ensured by legislative or other
provisions, the States Parties undertake to adopt, in accordance with their constitu-
tional processes and the provisions of this Convention, such legislative or other
measures as may be necessary to give effect to those rights or freedoms.” Article
2 requires a state to bring its domestic legislation in line with the obligations
assumed under the American Convention upon becoming a party to the treaty.
16
Art 31: “This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and
treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province
are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or
constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of
11 November 1859”.
17
Argentine Supreme Court, Ekmekdjian, Miguel Ángel c Sofovich, Gerardo, 7 July 1992, fallos
315:1492. See also Franco (2009).
18
IACtHR, advisory opinion, OC-7/86, 29 Aug 1986, “Enforceability of the Right to Reply or
Correction (Arts. 14(1), 1(1) and 2 of the American Convention on Human Rights),” para 35.
Article 31 of the Argentine Constitution establishes the principle of constitutional

supremacy.19 The hierarchical relationship among the Constitution, laws, and
treaties has traditionally been that laws and treaties have an equal ranking and that
a later norm derogates an earlier one, i.e. that laws subsequently adopted supersede
earlier laws or treaties.20 The phenomenon of the internationalization of law and the
ratification by Argentina of the Vienna Convention on the Law of Treaties, which
began to apply to Argentina on January 27, 1980, led to the revision of this principle.
Specifically, Argentine jurists refer to Article 27 VCLT to explain the modification,
which provides that the provisions of internal law cannot be invoked to explain the
failure to comply with international law.
In paragraph 22 of Article 75 of the reformed Argentine Constitution, in 1994,
two declarations and eight international human rights treaties were given the same
standing in the Argentine legal hierarchy as the Argentine Constitution. Treaties that
were subsequently ratified have been added on later.21
3.2 Status of Human Rights Treaties in Other Latin American

States
This is not unique to Argentina. Article 46 of the Guatemalan Constitution of 1985

established that international human rights treaties accepted and ratified by the state
have supremacy over domestic law.22 Article 93 of the Colombian Constitution
established that human rights set forth in the Constitution are to be interpreted
19
See supra n 17.
20
The Argentine Constitution is strongly influenced by the US Constitution and the principle that
the later norm supersedes the earlier one even in the case of treaties is also the rule in the United
States. See Sabsay and Onaindia (2009), p. 115.
21
Para 22 of Art 75 of the amended Constitution provides: “To approve or reject treaties concluded
with other nations and international organizations, and concordats with the Holy See. Treaties and
concordats have a hierarchy superior to laws. The American Declaration of the Rights and Duties of
Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the
International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and
Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of
Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination;
the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention
against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention
on the Rights of the Child; in the full force of their provisions, have constitutional hierarchy, do no
derogate any section of the first part of this Constitution and are to be understood as complementing
the rights and guarantees recognized herein. They shall only be denounced, in such event, by the
Executive Branch after the approval of two-thirds of all the members of each Chamber. In order to
attain constitutional hierarchy, the other treaties and conventions on human rights shall require the
vote of two-thirds of all the members of each House, after their approval by Congress.”
22
Art 46: “Pre-eminence of International Law. The general principle is established that in the field of
human rights, treaties and conventions approved and ratified by Guatemala have precedence over
domestic law.”
396 C. Cerna
pursuant to international human rights treaties to which Colombia is a party.23

Article 23 of the Venezuelan Constitution established that international human rights
treaties have the same hierarchy as the Venezuelan Constitution.24 Article 74 (3) of
the Constitution of the Dominican Republic provides that international human rights
treaties rank equally with the Constitution in the legal hierarchy and are to be directly
implemented at the domestic level.25
3.3 Amnesty Laws, the Inter-American Court in Barrios

Altos v Peru (2001), and the Argentine Supreme Court
in Simon (2005)
Argentina transitioned from a military dictatorship to a democratic form of govern-

ment on December 10, 1983, when President Alfonsín assumed the presidency.
Three days after his inauguration (December 13, 1983), President Alfonsín signed
Decree No. 158, mandating the initiation of legal proceedings against the nine
military officers of the first three juntas, but not the fourth (ruled by General
Reynaldo Bignone).26 Leading members of the two (ERP and Montoneros) major
guerrilla groups were also ordered indicted and tried, leading to numerous sentences.
President Alfonsín was unable to convince the military to try the leaders of the four
military juntas during the period 1976–1983, and the case was transferred to civilian
courts. On April 22, 1985, the trial of the nine military leaders of the junta began, and
on December 9, 1985, Generals Videla and Massera received sentences of life
imprisonment, Viola to 17 years, Lambruschini to 8 years, and Agosti to four and
a half years.27 The other junta leaders were acquitted. Charges against an additional
600 military officials were filed, but these suits were stopped by the adoption of two
amnesty laws: the Full Stop Law of 1986, which limited suits to those indicted
23
Art 93: “The rights and duties consecrated in this Charter, will be interpreted in conformity with
international human rights treaties ratified by Colombia.”
24
Art 23: “The treaties, pacts and conventions relating to human rights, signed and ratified by
Venezuela, have constitutional ranking and prevail in the internal legal order, insofar as they contain
provisions concerning the enjoyment and exercise of such rights that are more favorable than those
established by this Constitution and the laws of the Republic, and shall be immediately and directly
applied by the courts and other organs of the Public Power.”
25
Art 74 (3): “The treaties, pacts and conventions relating to human rights, signed and ratified by the
Dominican State, have constitutional ranking and shall be directly and immediately applicable by
the courts and other organs of the State.”
26
Tried were Lt. Gen. Jorge Videla, Brig. Gen. Orlando Agosti, Admiral Emilio Massera, Lt. Gen.
Roberto Viola, Brig. Gen. Omar Graffigna, Admiral Armando Lambruschini, Lt. Gen. Leopoldo
Galtieri, Brig. Gen. Basilio Lami Dozo and Admiral Jorge Anaya.
27
General Jorge Videla was accused of various crimes and convicted and sentenced to different
prison terms. He died on 17 May 2013 in prison while on trial in the Plan Condor case. General
Emilio Massera died on 8 Nov 2010. General Roberto Viola died on 30 Sept 1994. General
Armando Lambruschini died on 15 Aug 2004. General Orlando Agosti died 6 Oct 1997.
within 60 days of the law’s enactment, and the Due Obedience Law of 1987, which
effectively halted most remaining trials of Dirty War perpetrators.28
President Alfonsín resigned in mid-1989 and was succeeded by President Carlos
Menem (served 1989–1999), who, in 1989 and 1990, pardoned approximately 1200
individuals who were serving prison sentences, including General Videla and other
top officials, many members of the guerrilla organizations, and a former Minister of
the Economy.29 The Full Stop Law, the Due Obedience Law, and the ten pardons
issued by President Menem for members of the military and members of the guerrilla
organizations became known as the “Impunity Laws.”
In 2005, in the landmark Simon case, the Argentine Supreme Court declared the
amnesty laws (Full Stop and Due Obedience) unconstitutional, overruling an earlier
decision in 1987 (the “Camps” case) that had held the Due Obedience Law consti-
tutional.30 The judgment in the Simon case eliminated the obstacles to reinitiating
ordinary criminal judicial proceedings against members of the military who were
responsible for violations of human rights during the military dictatorship, except for
the fact that they could not be tried for the same crimes as in the original trial of the
juntas.31 In the Simon case, the Argentine Supreme Court noted that the “progressive
evolution of the international law of human rights” and the elevation of human rights
to constitutional ranking in Argentina no longer permitted the state to avoid prose-
cuting crimes against humanity for reasons of social pacification based on erasing
these facts from memory.32 Amnesty laws have historically been used for national
reconciliation, the Court noted, and the Full Stop and Due Obedience laws were
28
Law 23.492, Full Stop Law, promulgated on 24 Dec 1986; Law 23.521, Due Obedience Law,
promulgated on 8 June 1987.
29
Presidential Decree 1002 of 7 June 1989 was the first of the ten pardons and included the members
of the military.
30
Argentine Supreme Court, Camps, Ramon Juan Alberto y otros, judgment of 22 June 1987, fallos
310:1162.
31
Following the repeal of the amnesty laws, on 13 July 2007, the Argentine Supreme Court revoked
General Videla’s pardon and his life sentence was reinstated. On 22 Dec 2010, Videla was again
convicted and sentenced to a second term of life imprisonment for the torture and death of
31 prisoners in Cordoba (crimes against humanity). Viola and Galtieri died before 2005, the year
that the Amnesty laws were repealed. In 2007, Bignone, the leader of the fourth junta, was charged
with human rights abuses and taken into custody; he was convicted in 2010 and received a 25-year
sentence. Hundreds of military officers have been tried following the Supreme Court decision and
according to the 4 Mar 2015 website of the Centro de Estudios Legales y Sociales (CELS), a leading
Argentine NGO, some 2071 civilians and armed forces and security personnel were involved in
cases related to state terrorism. Again, according to CELS, some 134 trials have been completed and
an additional 331 cases are still at different levels of processing. It should be noted that trials against
members of the guerrilla organizations were not reinitiated after the repeal of the amnesty laws
because under international human rights law only States can commit human rights violations. The
actions of the members of the guerrilla organizations were considered violations of the criminal
code and not human rights violations, and since crimes under the code have statutes of limitations,
the statutes of limitations had expired when the trials of the military were reinitiated. This
asymmetry is a cause of some concern today among certain sectors of Argentine society.
32
Argentine Supreme Court, Simón, Julio Héctor, Privación de la libertad y otros, judgment of
14 June 2005, causa 17.768, considerando 14.
398 C. Cerna
similarly intended to relegate to the past the confrontation between civilians and the
military. Insofar as these laws were designed to obliterate from memory serious
violations of human rights, however, they contradicted the provisions of the Amer-
ican Convention and the UN International Covenant on Civil and Political Rights
and were consequently determined to be “constitutionally intolerable.”33 For the
Argentine Supreme Court, the judgments of the Inter-American Court and the
directives of the Inter-American Commission “constitute an indispensable guideline
for the interpretation of the American Convention in domestic law.”34 The Argentine
Supreme Court noted that the IACtHR in the Barrios Altos judgment had declared
Peru in violation of Article 2 ACHR for the promulgation, as well as the application,
of the amnesty laws since these laws had stopped the state from investigating and
sanctioning violators of international human rights.35
The Argentine Supreme Court applied the Inter-American Court’s holding in
Barrios Altos directly, although the Court’s judgment in that case involved Peru and
not Argentina, and the American Convention provides that “States Parties to the
Convention undertake to comply with the judgment of the Court in any case to which
they are parties.”
3.4 Subsequent Inter-American Jurisprudence on Amnesties
Subsequent to Barrios Altos, the Inter-American Court issued judgments in cases

involving amnesty laws from other countries in the region. In Almonacid Arellano
et al. v Chile, the IACtHR found violations of Articles 1, 2, 8, and 25 ACHR and
declared the Chilean amnesty law incompatible with the American Convention and
without legal effect.36 In Gomes-Lund et al. (Guerrilha do Araguaia) v Brazil, the
IACtHR declared the Brazilian amnesty law incompatible with the American Con-
vention and without legal effect. It also declared a violation of Article 2 ACHR as a
consequence of the interpretation and application of the amnesty law to cases of
serious human rights violations.37 In Gelman v Uruguay, the IACtHR declared that
33
Ibid, considerando 16.
34
Ibid, considerando 17.
35
Ibid, considerando 22. The operative part of the Barrios Altos judgment (supra n 14) with regard
to a violation of Art 2 stated: “3. To find, in accordance with the terms of the State’s recognition of
international responsibility, that the State failed to comply with Articles 1(1) and 2 of the American
Convention on Human Rights as a result of the promulgation and application of Amnesty Laws
No. 26479 and No. 26492 and the violation of the articles of the Convention mentioned in operative
paragraph 2 of this judgment.”
36
37
IACtHR, Gomes-Lund et al (Guerrilha do Araguaia) v Brazil (preliminary objections, merits,
reparations and costs), judgment of 24 Nov 2010: “The provisions of the Brazilian Amnesty Law
that prevent the investigation and punishment of serious human rights violations are not compatible
the Uruguayan amnesty law did not constitute a direct obstacle to the investigation
and punishment of those responsible. Given the failure of the state to conduct an
effective investigation, however, the Inter-American Court called upon it to guaran-
tee that the amnesty law would be without effect and did not constitute an obstacle to
an investigation and punishment. In the Massacres of El Mozote and Nearby Places
v El Salvador, the IACtHR declared that the Salvadoran Law of General Amnesty
must never again represent an obstacle to the investigation of the facts that are the
subject matter of this case or to the identification, prosecution, and eventual punish-
ment of those responsible for the grave human rights violations that took place
during the armed conflict in El Salvador.38 On July 13, 2016, the Constitutional
Chamber of the Salvadoran Supreme Court declared the amnesty law unconstitu-
tional, overturning an earlier judgment.39
4 Mexico, Its Constitution, and the Inappropriate Use

of Military Jurisdiction for Human Rights Crimes
The second example we shall consider involves Mexico and the exercise of military
jurisdiction over human rights crimes.
4.1 Background of the Radilla Pacheco Case
On November 23, 2009, the Inter-American Court issued its judgment in a case
involving the forced disappearance of Mr. Radilla Pacheco in August 1974 at the
hands of the military in Guerrero, Mexico, which was to provoke the most dramatic
with the American Convention, lack legal effect, and cannot continue as obstacles for the investi-
gation of the facts of the present case, neither for the identification and punishment of those
responsible, nor can they have equal or similar impact regarding other serious violations of
human rights enshrined in the American Convention which occurred in Brazil,” at para 325 (3);
and: “The State has not complied with its obligation to adapt its domestic law to the American
Convention on Human Rights, pursuant to Article 2, in relation to Articles 8 (1), 25, and
1 (1) thereof, as a consequence of the interpretation and application given to the Amnesty Law in
cases of serious violations of human rights,” at para 325 (5).
38
Peru and Uruguay have repealed their amnesty laws whereas Brazil and Chile to date have not.
See Soltman (2013).
39
Corte Suprema de Justicia, Sentencias Definitivas n 44–2013AC de Sala de Lo Constitucional,
judgment of 13 July 2016. The judgment was 4:1. The four-person majority consisted of judges
Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, who grounded their
decision in the jurisprudence of the Inter-American Court of Human Rights. It should be noted
that Florentín Meléndez was a former member of the Inter-American Commission on Human
Rights.
400 C. Cerna
example of state compliance with the norms of the inter-American system to date.40
Mexico had become a party to the American Convention on March 24, 1981, and
accepted the compulsory jurisdiction of the Inter-American Court, pursuant to
Article 62 ACHR, on December 16, 1998.
Mr. Radilla Pacheco was arrested on August 25, 1974, and forcibly disappeared
by members of the Mexican Army in the militarized state of Guerrero, Mexico.
Given the lack of response to the formal complaints filed by Mr. Radilla Pacheco’s
family members denouncing his disappearance before state and federal authorities,
the Mexican Commission for the Defense and Promotion of Human Rights and the
Association of Family Members of the Detained-Disappeared and Victims of Vio-
lations of Human Rights in Mexico presented a complaint against Mexico before the
Inter-American Commission, alleging that the state had failed to conduct an effective
investigation to establish his whereabouts or to punish those responsible for his
disappearance. In 2005, the civilian court in Guerrero ordered the arrest of Lt. Col.
Francisco Quiroz Hermosillo, who was in charge of the militarized area where
Radilla Pacheco had been arrested. That court, however, ceded jurisdiction to the
military court, characterizing the offense as one of “military discipline, in accor-
dance with Article 57 of the Code of Military Justice.” Although Article 13 of the
Mexican Constitution provides that whenever a civilian is implicated in a crime
allegedly committed by a member of the military, the case shall be heard by the
civilian courts, Article 57 of the Code of Military Justice (CMJ) provided that
military courts shall hear any case involving a member of the military. Mr. Radilla
Pacheco’s relatives challenged the transfer of jurisdiction, to no avail since civilian
courts routinely transferred jurisdiction over such cases to military tribunals. On
November 29, 2006, the military court dismissed the case on account of the
“extinction of the criminal action” following the death of the defendant on
November 19, 2006.
The complaint on behalf of Mr. Radilla Pacheco was filed with the Inter-
American Commission on November 15, 2001, and despite the fact that the events
occurred in 1974, the case was formally admitted in 2005 because the crime of
forced disappearance is considered a “continuing” crime until the body or where-
abouts of the disappeared person are found.41 In July 2007, the Commission issued
its merits report, which included certain recommendations for the state.
The Mexican Government failed to comply with the Commission’s recommen-
dations. Accordingly, on March 15, 2008, the Commission submitted the case to the
Inter-American Court in accordance with the provisions of Article 61 (1) ACHR.
The judgment of the Inter-American Court determined that the arbitrary detention
and forced disappearance of Mr. Radilla Pacheco, in 1974, fell within a state
40
IACtHR, Radilla Pacheco v Mexico (preliminary objections, merits, reparations, and costs),
judgment of 23 Nov 2009.
41
IACHR, Rosendo Radilla Pacheco v Mexico, Report no 65/05, Petition 777/01, admissibility,
12 Oct 2005. Available online via http://www.cidh.org/annualrep/2005eng/Mexico777.01eng.htm.
practice, given the fact that approximately 500 other persons were also detained in
Mexico at that time, during what was termed “the dirty war of the seventies.”
4.2 Mexican Law on Military Jurisdiction
Article 13 of the Mexican Constitution provides that military jurisdiction shall

continue to exist in order to try offenses against military discipline but that in no
case and for no reason will military courts be permitted to extend their jurisdiction
over persons who are not members of the military. Article 57 of the Mexican CMJ,
however, extended military jurisdiction to any crime committed by a member of the
military. In the Radilla Pacheco case, the Inter-American Court concluded that the
Mexican military had not conducted an effective investigation into Mr. Radilla
Pacheco’s disappearance or applied the appropriate due diligence required. On
November 23, 2009, the Inter-American Court issued its judgment, ruling that the
forced disappearance of the victim at the hands of the Mexican military and the
transfer of the investigation of the crime from civilian jurisdiction to a military court
violated, inter alia, Articles 8 and 25 ACHR. The Court found that “upon expanding
the competence of the military jurisdiction to crimes that are not strictly related to
military discipline or with juridical rights characteristic of the military realm,” the
state had violated the rights of the next of kin to a competent tribunal and to a
recourse that allowed them to contest the exercise of military jurisdiction.42 In order
to prevent repetition of this violation, the Court ordered Mexico to “adopt, within a
reasonable period of time, the appropriate legislative reforms in order to make
Article 57 of the CMJ compatible with the international standards in this subject
and the American Convention of Human Rights.”43
4.3 The Reform of the Mexican Constitution with Regard

to Human Rights
On June 10, 2011, a legislative reform of the Mexican Constitution regarding human
rights entered into force. The new formulation incorporated the human rights from
international treaties to which Mexico is a party and gave them constitutional
standing in the Mexican legal hierarchy. Article 133, the Supremacy Clause of the
Mexican Constitution, was not modified during the constitutional reform process
and postulated the Constitution as the principal norm below which the normative
hierarchy of the Mexican legal order had been constructed. Within this formal
42
Ibid, para 312.
43
Ibid, operative para 10.
402 C. Cerna
hierarchy of norms, international treaties were inferior to the Constitution but

superior to the rest of Mexican laws.
But where in this hierarchy are international human rights treaties? Are they
below the Mexican Constitution, together with other international treaties? The June
2011 constitutional reform process situated the individual in the central axis around
which the reform would be constructed. The previous Article 1 of the Mexican
Constitution, “Individual Guarantees,” provided: “In the United States of Mexico
every individual will enjoy the guarantees that this Constitution grants, which cannot
be restricted or suspended, except in those cases and under the conditions which it
itself establishes.” With the reform, the title to Article 1 became “Human Rights and
its Guarantees,” emphasizing the changed focus on the centrality of human rights in
the Constitution. In addition, the language of Article 1 was expanded to reflect this
new recognition of human rights: “In the United States of Mexico all persons shall
enjoy the human rights recognized by the Constitution and international treaties to
which Mexico is party, as well as the guarantees for their protection, the exercise of
which cannot be restricted or suspended, except in the cases and under the conditions
established by this Constitution.” The new phrasing reflects the universal conception
of human rights as inherent in the human being and recognized, rather than granted
(otorgado), by the state, a term burdened by the possibility that the state that grants
them can also take them away. More importantly, however, it provides that human
rights, whether derived from the Constitution or an international treaty and their
guarantees, will be protected on an equal footing. Traditionally, the Mexican
Supreme Court noted, international human rights treaties were distinguished from
other international treaties. Article 1 of the Constitution recognizes that human rights
set forth both in the Constitution and in international treaties to which Mexico is
party are protected equally, without reference to the subject matter covered in the
international treaty. This means that rights that are covered in international treaties
that are not considered “international human rights treaties,” such as the paradig-
matic example of the right to notification, contact, and consular assistance, set forth
in the Vienna Convention on Consular Relations (VCCR), can be incorporated into
the catalog of human rights included in the Constitution. In Advisory Opinion
No. 16, requested by Mexico of the Inter-American Court, the Court held that the
denial of the VCCR rights was a denial of due process, a human right, despite the fact
that the ICJ, in the Avena case, declined to examine whether VCCR rights were
human rights.44
44
The ICJ in Avena declined to consider whether the VCCR rights were “human rights” and termed
them “individual” rights, without explaining the difference. See ICJ, Avena, supra n 3, para 124.
4.4 Resolution of the Mexican Supreme Court Calling

on the Judiciary to Carry Out an Ex Officio Control
of Conventionality (July 14, 2011)
In 2010, the Inter-American Commission presented two additional cases against

Mexico to the Court. In each of these cases, a member of the Mexican military was
charged with the rape of an indigenous woman. The military justice system had been
ceded the investigation and prosecution of the crimes and failed to bring the
perpetrators to justice. Since these crimes were also crimes against the civilian
population, pursuant to the Inter-American Commission’s jurisprudence and, in
particular, the IACtHR’s judgment in the Radilla Pacheco case, these cases should
have been transferred to the ordinary civilian judicial system. It was clear that these
new cases would have never reached the Inter-American Court had Mexico com-
plied with its earlier judgment in Radilla Pacheco.
In an attempt to clarify Mexico’s obligations in the face of an adverse judgment
from the Inter-American Court, on May 26, 2010, the President of the Mexican
Supreme Court requested the plenary of the Court to determine the obligations on the
Mexican judiciary with regard to the IACtHR’s Radilla Pacheco judgment. This
unusual request produced a remarkable opinion.
The Mexican Supreme Court interpreted reformed Article 1 of its Constitution as
an amalgam or “bloc” of human rights, the source of which may be the Constitution
or an international treaty. This amalgam of human rights norms comprises the new
parameter of control of regularity or validity of the norms of the Mexican legal order.
In the Inter-American Court’s judgment in the Radilla Pacheco case, the Court
called on the Mexican judiciary to carry out an ex officio “control of conventionality”
(convencionalidad) of its domestic legislation to determine whether it conforms to
the American Convention; the failure to do so comprises a violation of Article 2 of
the American Convention.
On July 14, 2011, in response to the May 26 request of the Mexican Supreme
Court’s president, the plenary of the Supreme Court approved the extraordinary
Opinion/Resolution “Miscellaneous 912/2010.”45
Section 5 of this remarkable Resolution states, after setting forth the recent
amendments to the Mexican Constitution and Mexican law as regards human rights,
that it is an “unobjectionable fact” that the determination of Mexico to submit itself
to the jurisdiction of the Inter-American Court “is a decision that is already con-
summated.”46 “Therefore,” it continues, “when Mexico has been party to a contro-
versy or litigation before the Inter-American Court, the judgment which is issued,
45
Available via http://fueromilitar.scjn.gob.mx/Resoluciones/Varios_912_2010.pdf. Accessed
11 July 2017. The English version is available via https://law.utexas.edu/colloquia/archive/
papers-public/2011-2012/03-19-12_The%20Rosendo%20Radilla%20Case%20(2010).pdf.
Accessed 11 July 2017. See also Cerna (2013).
46
Ibid “Quinto. Reconocimiento de la competencia contenciosa de la Corte Interamericana de
Derechos Humanos y de sus criterios vinculantes y orientadores.”
404 C. Cerna
together with all its considerations, constitutes res judicata.”47 The Mexican
Supreme Court noted that even when functioning as a constitutional court, it cannot
evaluate the litigation or question the competence of the Inter-American Court but
must limit itself to complying with the provisions that correspond to it and on its
terms.48 The Supreme Court, it explained, is not competent to analyze, revise,
comment on, or decide if a judgment issued by the Inter-American Court is correct
or incorrect or if the Court has exceeded itself with regard to the norms that govern
its subject matter and procedure. The Mexican Supreme Court may not make any
pronouncements that question the validity of what the Inter-American Court has
resolved since for the Mexican State, such judgments constitute, it repeated, res
judicata, and consequently, the only appropriate thing to do is to obey and recognize
the totality of the judgment on its terms.49
Furthermore, when Mexico is a party to a specific case, the judgment issued by
the Inter-American Court is binding on all the organs of the Mexican state in their
respective jurisdictions. That means for the Mexican judiciary that not only the
concrete points in the resolution of the judgment are binding on the state, but also the
totality of the criteria contained in the judgment by which the litigation was resolved
is binding.50 In addition, Mexican courts are required to exercise an ex officio
“control of conventionality” to determine whether Mexican laws are in accord
with the provisions of the American Convention.51 On the other hand, as regards
the judgments issued by the Inter-American Court in cases in which Mexico was not
a party to the litigation, the jurisprudence from those cases is accorded the character
of “orienting” Mexican judges.52 To summarize, all judges in Mexico are legally
bound to comply with the judgments of the IACtHR in cases to which Mexico was a
party and to consider as “orienting criteria” the jurisprudence of the Inter-American
Court in those cases in which Mexico was not a party.53
Since the specific facts of the Radilla Pacheco case dealt with the inappropriate
exercise of military jurisdiction over military officials who committed human rights
violations, the Mexican Supreme Court emphasized that Mexico was required to
carry out legal reforms in order to limit military jurisdiction to active duty members
of the armed forces who committed offenses that by their very nature affected legal
interests of the military. This Supreme Court “Resolution” was not legally binding
on the Mexican legal system since it was not a decision in (or disposition of) the
Radilla Pacheco or any other case but only established “criteria” to be used in
deciding an eventual case.
47
Ibid, para 15.
48
Ibid, para 16.
49
Ibid, para 17.
50
Ibid, para 19.
51
52
Ibid, para 20.
53
Ibid, para 31.
4.5 Supreme Court: Transfer to Civilian Jurisdiction (2012);

Congress: Military Reform Decree (2015)
A year later, on August 6, 2012, the Mexican Supreme Court began the review of
28 amparo appeal cases in which the exercise of military jurisdiction was the central
issue.54 At the conclusion of the review of these appeals, on September 13, 2012, the
President of the Mexican Supreme Court stated that the plenary had decided 11 of
the 28 amparo appeal cases and that the first chamber of the Mexican Supreme Court
would resolve the remaining 17 cases on the basis of the criteria that had been
established in these earlier cases. In each of these 11 cases, the Mexican Supreme
Court granted the petition that the case be transferred to a civilian court, including
those in which members of the military had been judged before military tribunals.
The most important of these 11 cases was that of Bonfilio Rubio Villegas because in
that case, the Mexican Supreme Court declared Article 57 of the CMJ
unconstitutional.
Bonfilio Rubio Villegas was a 30-year-old indigenous (Naua) Mexican who
sought to migrate again to the United States, looking for work. He set out on his
journey on June 20, 2009, and at approximately 10:30 at night, the bus he was riding
in, along with approximately 40 other passengers, was stopped by Mexican army
troops for a “routine check.” The soldiers made the passengers get off the bus and
detained one who was wearing military style boots. They detained him arbitrarily
since he had committed no crime. The driver of the bus asked the soldiers to sign the
passenger register as proof that a passenger had been detained. Having signed, the
soldiers let the bus leave, but once the driver stepped on the gas, they shot at least
five bullets at the windows of the bus. Bonfilio Rubio Villegas was killed when a
bullet passed through the window and penetrated his neck.
Jose Rubio Villegas, Bonfilio’s brother, in representation of his family, sought to
have the case heard by a civilian court, fearing that military jurisdiction would ignore
the matter since impunity was rampant in cases involving military abuse. On July
14, 2009, Jose Rubio formally requested the civilian court not to cede jurisdiction to
the military. Despite the family’s attempts to inquire about the status of the inves-
tigation, they received no information until May 31, 2011, when they were notified
that the civilian court had ceded jurisdiction to the military in 2009, pursuant to
Article 57 of the Mexican CMJ. As mentioned above, despite the constitutional
guarantee, civilian courts regularly ceded jurisdiction to military courts.
Having been informed that the investigation was being conducted by the military,
on June 22, 2011, Bonfilio’s relatives presented a writ of amparo in which they
impugned the civilian court’s decision to cede jurisdiction. They argued that Article
57 of the CMJ was unconstitutional and in violation of international treaties to which
54
An “amparo” lawsuit is a legal action in “protection of one’s constitutional rights. The party filing
the suit must demonstrate that a governmental authority caused the injury and that the injury is not
irreparable. Also, an amparo, inter alia, may contest the constitutionality of federal or state
legislation.
406 C. Cerna
Mexico was a party. Article 57 gave rise to the request for amparo, 818/2011, in the
Seventh District Court of the State of Guerrero and was filed against the President of
Mexico, who promulgated the CMJ, as well as against other authorities of the
Secretariat of National Defense (SEDENA).
On December 2, 2011, the amparo presented by Bonfilio’s relatives was granted.
For the first time, civilians who suffered from the illegal extension of military
jurisdiction were now protected by the federal judiciary. Judge Carlos Soto Morales,
the federal district court judge who issued the decision, held that the victims had
standing to file a request for amparo, that Article 57 of the CMJ was an unconsti-
tutional extension of the limits provided for in Article 13 of the Constitution, and that
the extension of military jurisdiction to cases that involve civilians is contrary to the
Court’s jurisprudence, which is binding on Mexican courts. Consequently, the
military judge in charge of the case must transfer it, as soon as possible, to a federal
civilian court.
On December 22, 2011, SEDENA, in representation of President Felipe
Calderon, appealed the amparo decision and argued, inter alia, that the decision of
the Mexican Supreme Court in “Varios 912/2010” was illegal because it was not the
decision of a case. Both SEDENA and the relatives of Bonfilio Rubio Villegas
requested that the case go to the Mexican Supreme Court.
On February 13, 2012, the Mexican Supreme Court indicated that it would
consider the case. The relatives of Bonfilio Rubio learned that their case would not
be the only one considered. On May 7, 2012, the Mexican Supreme Court ordered
that cases involving military jurisdiction in the lower courts that had not been
resolved would remain pending until the Supreme Court issued its judgment in
this matter.
On August 14, 2012, the Mexican Supreme Court’s discussion of the amparo
133/2012 appeal began. It was proposed by the judge in charge of the draft decision
that Bonfilio’s relatives be held to have standing to file the amparo (since Bonfilio
was dead). Citing two earlier judgments of the Inter-American Court, involving the
rape of indigenous women, the judge noted that the jurisprudence of the inter-
American system considers relatives of the victims also to be victims and that
Mexico is required to provide them with an effective recourse to protect their
human rights. On August 21, 2012, a majority of the Supreme Court held Article
57 of the CMJ to be unconstitutional because it was incompatible with Article 13 of
the Constitution and did not guarantee human rights victims a trial before an ordinary
civilian tribunal. The Court ordered that the Rubio Villegas case be transferred to the
appropriate civilian federal court.
In compliance with the Inter-American Court’s judgment, on June 13, 2014, the
Mexican Congress published its military justice reform decree in the Official Gazette
(Diario Oficial de la Federación).55 The decree provided, inter alia, that human
55
IACtHR, Resolución de la Corte Interamericana de Derechos Humanos de 17 de abril de 2015,
Casos Radilla Pacheco, Fernández Ortega y Otros, y Rosendo Cantú y Otra v México, Supervisión
de cumplimiento de sentencia. Available online via http://www.corteidh.or.cr/docs/supervisiones/
radilla_17_04_15.pdf. Accessed 11 July 2017.
rights violations and other crimes committed by military personnel against civilians
shall now be subject to prosecution in civilian, not military, courts.
4.6 Mexican Supreme Court: Inter-American Court

Jurisprudence Binding on All Mexican Judges (2014)
The Mexican Supreme Court’s judgment of April 25, 2014, resolved a “conflict
between jurisdictions” (contradicción de tesis) involving the status of international
human rights treaties in the Mexican legal hierarchy.56
Two Mexican Circuit Courts had issued contradictory opinions with regard to the
status of international human rights treaties in Mexican law. The First Circuit Court
(Séptimo Tribunal Colegiado en material Civil del Primer Circuito) declared that
“international treaties are hierarchically superior to federal laws but inferior to the
Mexican Constitution,” whereas the Eleventh Circuit Court (Primer Tribunal
Colegiado en Materias Administrativa y de Trabajo del Décimo Primer Circuito)
declared that “when conflicts arise in relation to human rights, international treaties
must be considered at the level of the Constitution.”57
With regard to the normative status of adverse judgments of the Inter-American
Court of Human Rights, the First Circuit decision declared that “international
jurisprudence was useful to help orient domestic courts in human rights matters,”
whereas the Eleventh Circuit declared that “international jurisprudence in human
rights matters was obligatory.”58 The earlier July 14, 2011, Opinion of the Mexican
Supreme Court (supra), which had inspired the decision of the First Circuit, found
that the Inter-American Court’s jurisprudence served as “guidance” for the Mexican
judiciary. In the April 25, 2014, decision, however, the Supreme Court, by a majority
of 6 votes, decided that the jurisprudence of the Inter-American Court is binding on
all Mexican judges (both federal and state), provided that the interpretation is the one
more favorable to persons (the “pro persona” principle).59
56
SCJN, Contradicción de tesis 293/2011, judgment of 25 Apr 2014, available online: https://www.
scjn.gob.mx/Transparencia/Epocas/Pleno/DecimaEpoca/293-2011-PL%20CT%20Ejecutoria.pdf.
In Mexico, jurisprudence is made in one of two ways: by the reiteration of a thesis or by the
resolution of a conflict among jurisdictions. The first consists of five decisions on the same subject
being resolved in the same way without interruption (eg five amparo appeals being decided in the
same way in succession) whereas in the second, the Supreme Court brings about the resolution of
divergent criteria used by different Chambers of the Mexican Supreme Court or by Circuit Courts.
The contradiction (the divergent criteria) can be denounced by the judges who make up the Circuit
Courts, the Supreme Court Chambers, or the parties that intervened in case that gave rise to the
contradiction.
57
Ibid, contradicción de tesis 293/2011.
58
Ibid.
59
Ibid, para 68.
408 C. Cerna
The basis for this decision builds on the reform of the second paragraph of Article
1 of the Mexican Constitution, which provides that human rights norms shall be
interpreted in conformity with the Constitution and international treaties. The
Supreme Court, however, in its judgment, jettisoned the concept of “hierarchy”
and, by a majority of 10 votes, decided that human rights are recognized as a whole,
on an equal footing, as a kind of amalgam, without regard as to whether they derive
from the Constitution or from international treaties to which Mexico is a party.60
The Mexican Supreme Court held that the reasoning behind the judgments of the
Inter-American Court was legally binding on Mexico, whether or not Mexico was a
party to the case in question. This is a very progressive evolution since the American
Convention itself, in Article 68, only requires states parties to comply with the
judgment of the Court in any case to which they are parties. The jurisprudence of the
Inter-American Court, however, has evolved beyond the text of the American
Convention, as the concurring opinion of Ad Hoc Judge Ferrer Mc-Gregor Poisot
makes clear in outlining the history of the “control of conventionality” doctrine. The
Court’s doctrine now requires states to conform their domestic legislation not only to
the American Convention but also to the Inter-American Court’s interpretation of the
provisions of the Convention.61
In all cases where it is possible, national judges are required to harmonize national
jurisprudence with the jurisprudence of the Inter-American Court; if it is not possible
to reconcile the two, the national judge is required to apply the jurisprudential
criterion, which is more favorable to the protection of the human rights (the “pro
persona” principle).
The Mexican Supreme Court also noted, in a much-criticized addition, that “when
the Constitution establishes an express restriction on the exercise of human rights,
this restriction must be respected. In this context, human rights, regardless of their
source, constitute the parameter of control of constitutional regularity, according to
which the validity of all the norms and acts of authority that form part of the Mexican
legal order must be analyzed.”62
Human rights groups have expressed concern that the enjoyment of human rights
may be restricted or limited, in cases and under conditions established by the
Constitution, which was echoed in the Supreme Court’s judgment, and has been
interpreted by Amnesty International, for example, as a step backward in the
protection of human rights.63 The charge is that the Supreme Court should have
60
Ibid, paras 50–53 and 67–68.
61
IACtHR, Cabrera García and Montiel Flores v Mexico (preliminary objection, merits, repara-
tions, and costs), judgment of 26 Nov 2010; see concurring opinion of judge ad hoc Eduardo Ferrer
Mac-Gregor Poisot (who was subsequently elected and is currently a judge on the Inter-American
Court).
62
Contradicción de tesis 293/2011, supra n 56, 40–42, 44, 52–53, 56–57. See dissent of judge José
Ramón Cossío Díaz.
63
Amnesty International Mexico, La Decisión de la SCJN es un retroceso en la protección de los
derechos humanos en México. Available via https://www.amnesty.org/es/documents/amr41/057/
2013/es/. Accessed 11 July 2017.
affirmed the “pro persona” principle in this context rather than emphasizing the
alleged priority of the restrictions in the Constitution over international treaties.
These are issues that will be resolved with time in the Mexican Supreme Court’s
future judgments. Suffice it to say at this point that Mexico has engineered an
extraordinary transformation of its internal legal system placing human rights at
the center of concern of its Constitution and laws. Its acceptance of the obligatory
force not only of the judgments but also of the jurisprudence of the Inter-American
Court of Human Rights is a shining example of best practices.64
5 Conclusion
The changing composition of national supreme courts and the democratic change in
governments in the region will continue to produce advances and setbacks in the
protection of human rights in the different states in the region. The Supreme Court of
Argentina, for example, in February 2017, while recognizing that adverse judgments
against it by the Inter-American Court of Human Rights are of obligatory compli-
ance, resolved that the Inter-American Court of Human Rights cannot revoke or
render without effect judgments issued by the Argentine Supreme Court.65 The
position of the Argentine Supreme Court was that to do so would be to convert the
Inter-American Court into a court of “fourth instance,” which would revise or annul
domestic court decisions in contradiction with the principle of subsidiarity of the
international instance to the domestic legal forum.
But as Eyal Benvenisti and Alon Herel have suggested, perhaps the debate about
hierarchy is a false choice. They propose that a “discordant parity paradigm”
whereby the tension under which international and state norms and courts constantly
compete with each other and attempt to assert their superiority over each other is a
positive tension that effectively ratchets up the promotion and protection of individ-
ual liberties.66
To return to the challenge posed by the US Supreme Court in the Medellín case, it
appears that some states in the Americas today, although perhaps not in 2008 when
Medellín was decided, are now willing to respect the binding nature of the judgments
of the Inter-American Court of Human Rights and to make them enforceable in
domestic courts. Since good faith compliance with international judgments,
according to the Vienna Convention on the Law of Treaties, is not generally
64
In recognition of these advances, the United Nations awarded the Mexican Supreme Court its UN
Prize in the field of Human Rights in 2013.
65
Corte Suprema de Justicia 368/1998 (34-M) /CS1, Ministerio de Relaciones Exteriores y Culto
s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico v Argentina’ por la Corte
Interamericana de Derechos Humanos, 14 Feb 2017. Available via http://www.uasb.edu.ec/docu
ments/62017/1494568/Sentencia+Corte+Argentina/24b5f91a-b1f6-4864-bcd8-6dbcecdfe031.
66
Benvenisti and Herel (2015); see also Benvenisti and Herel (2017).
410 C. Cerna
understood by states to mean that these judgments should be directly enforceable in

domestic courts and there is no consensus instrument to define this obligation,
perhaps the examples of Argentina and Mexico can play a role in defining the
obligations that a state assumes in becoming a party to an international human rights
instrument.
References
Benvenisti E, Herel A (2015) Against hierarchy: the case for discordant parity between constitu-
tional and international law. Paper presented at the University of Chicago public law workshop,
IDC faculty seminar, King’s College, London (25 Mar 2015) and Georgetown University Law
Center colloquium
Benvenisti E, Herel A (2017) Embracing the tension between national and international human
rights law: the case for discordant parity. Int J Const Law 15:36–59
Cerna C (2013) Unconstitutionality of Article 57, Section II, Paragraph a) of the code of military
justice and legitimation of the injured party and his family to present an appeal for the protection
of constitutional rights. Am J Int Law 107:199–206
Franco LA (2009) Recepción de la Jurisprudencia Interamericana en el Ordenamiento Jurídico
Argentino. In: Garcia Ramirez S and Castaneda Hernandez M (eds) Recepción Nacional del
Derecho Internacional de los Derechos Humanos y Admisión de la Competencia Contenciosa de
la Corte Interamericana. Universidad Nacional Autónoma de México – Instituto de
Investigaciones Jurídicas, Mexico, pp 157–171. Available via http://biblio.juridicas.unam.mx/
libros/6/2740/15.pdf. Accessed 11 July 2017
Sabsay DA, Onaindia JM (2009) La Constitución de los argentinos – Análisis y comentario de su
texto luego de la reforma de 1994; incluye comentarios a las leyes reglamentarias y
jurisprudencia posterior a la reforma. Editorial Errepar, Buenos Aires
Soltman D (2013) Applauding Uruguay’s quest for justice: dictatorship, amnesty, and repeal of
Uruguay Law No. 15.848. Wash Univ Glob Stud Law Rev 12:829–848
Brazil
International Human Rights in Brazil and the
Dialogue with the Inter-American System
Liliana Lyra Jubilut and Marcilio Toscano Franca Filho
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
2 Brazil and International Human Rights: Internal Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
2.1 Executive Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
2.2 Legislative Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
2.3 Judicial Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
3 Brazil and the Inter-American System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
1 Introduction
In the last years1, Brazil has been acquiring a growing regional and international
importance. The country has reached a higher political relevance in the international
and South American scenes, to a considerable extent owing to its economic prestige
in the global market. In a scenario with these characteristics, the Brazilian position in
relation to international human rights law has become increasingly important and the
focus of legitimate and growing international and regional attention.
1
It is relevant to note that this chapter was written in 2014 with the current scenario of Brazil in
mind, for the mandate of the ILA Committee on International Human Rights Law.
L. L. Jubilut
Universidade Católica de Santos (UniSantos), Santos, Brazil
M. T. Franca Filho (*)
Federal University of Paraíba (UFPB), João Pessoa, Brazil
Collegio Carlo Alberto, Turin, Italy
Turin Law Faculty, Turin, Italy

https://doi.org/10.1007/978-3-319-94848-5_15
412 L. L. Jubilut and M. T. Franca Filho
Like most Latin American countries, Brazil is a recently redemocratized country,2

and one of the main transformations this change has brought along is a renewed
commitment to human rights3 and their internationalization. This is seen in all areas,
from the state’s internal and international actions to the civil society movements, and
has as one of its symbols the consolidation of Brazil as a democratic state respecting
the rule of law.4
Given the broad scope of human rights and of the changes that they entail in any
society, this chapter aims to demonstrate the internalization of international human
rights law by Brazil (below, Sect. 2) and the regional dialogues involving Brazil, in
particular through an assessment of the relationship between Brazil and the Inter-
American Court of Human Rights (IACtHR) (Sect. 3). Resembling the pragmatic
aspects of a report, it assesses the novelties and particularities of international human
rights law in Brazil by describing its implementation through the executive, legisla-
tive, and judicial branches of the federal government,5 followed by a discussion of
the dialogue between the Brazilian state and the Inter-American human rights
system. The chapter posits that the values of human rights have to be incorporated
in all actions of the executive, legislative, and judiciary branches and cannot take
second place to other (political) considerations and that Brazil has to maintain its
commitment to human rights even when there are international judicial decisions
against the state.
This broad scope is, on the one hand, justified in light of the fact that international
human rights oblige states to respect, guarantee, and promote human rights6 and that
international law regards states as a unified unity and a single entity,7 which requires
a comprehensive analysis of international human rights in Brazil. On the other hand,
it diminishes the depth of analysis so this chapter will adopt a report-like quality to
provide a summarized panoramic view of the state of the art of international human
rights in Brazil, highlighting its positive developments and shortcomings.
2
Brazil lived under a military dictatorship from 1964 to 1988.
3
The Brazilian Constitution of 1988 is known as the Citizenship Constitution as it brings a vast list
of human rights in response to the limitations they suffered during the dictatorship. In this sense, the
former Minister of Foreign Relations of Brazil, Ambassador Celso Amorim, states that “Brazil has
renewed its international commitment to human rights, It has ratified the most relevant international
instruments on the topic. It has recognized the competence of the IACtHR and has permanently
invited the Special Rapporteurs of the UN”; see BRASIL (2010), p. 219.
4
Brazilian Constitution, Art 1.
5
This focus is justified as it is the federal government that represents Brazil in the international
arena.
6
Such as, for instance, the Inter-American Convention on Human Rights (1969).
7
As it is the case, for instance, in the federal clause in treaties and the rules on international state
responsibility.
Brazil 413
2 Brazil and International Human Rights: Internal

Application
2.1 Executive Branch
The executive branch in Brazil is mainly vested, in relation to human rights, with the
responsibilities of (i) aiding in the creation of internal normative standards,
(ii) establishing and enforcing public policies, and (iii) representing and making
commitments in the name of Brazil in the international arena.
With regard to the establishment of normative standards, although creating law in
Brazil is under the competence of the legislative branch, the executive branch is
entitled to propose new initiatives and to negotiate with the legislative to enhance the
protection of human rights in the country. It is also relevant in internalizing interna-
tional human rights law as it participates in the formal process of incorporation of
treaties in Brazil, given that Brazil adopts8 the moderate dualistic9 theory of the
relation of international and internal laws.
In relation to the establishment and enforcement of public policies, it is noticeable
that the Brazilian executive branch has been involved in efforts to strengthen the
human rights system in the country. For instance, it has established social programs
in order to diminish the number of people in extreme poverty (such as Fome Zero
and Bolsa Família) and the institution of the Secretaria Especial de Direitos
Humanos (Special Secretary for Human Rights—SEDH).10
If in theory these measures show a reinforcement of the pledge to human rights, in
practice there have been some critiques as to the fact that some of the programs have
only a subsidiary aspect and will not aid in eliminating poverty in the long run or the
fact that even if the SEDH is in itself a positive development in practice, its actions
have shortcomings, mainly when they clash with actions from other ministries, in
which cases the latter have been preferred.
Regarding Brazil’s commitments in the international arena, the executive
branch’s role is paramount: it is the branch that negotiates international treaties,
that initiates the internal incorporation of treaties into the Brazilian legal system, and
that formalizes the international ratification of treaties.
8
This is a consequence of the combination of Arts 84 (8), 21 (1) and 49 (1) of the Brazilian
Constitution.
9
Thus requiring a formal procedure of incorporation, but not statute law to incorporate the treaty
into internal law. In Brazil, the incorporation is finalized through the promulgation of a Presidential
Decree. This, alongside the fact that it is the executive branch that asks the legislative branch to
formally begin the incorporation process are the two main acts of the executive in terms of the
internal aspects of the internalization of treaties in Brazil.
10
The SEDH was first created as a Special Secretary from the Presidency of the Republic, was later
given the same standing as a ministry (although maintaining its name as a “Secretary”), and has
been set as a Special Secretary of the Ministry of Justice and Citizenship in 2006 (which has had its
named changed to Ministry of Justice and Public Security and is currently the Ministry of Justice).
In 2017 it was changed into the Ministry of Human Rights.
Since its democratization, Brazil has seen an increase in its dedication to inter-
national human rights, which can be noted by the continuous ratification of most of
the treaties that compose the core of the international human rights regime: the
Convention on the Prevention and Punishment of the Crime of Genocide (in 1952);
the International Convention on the Elimination of All Forms of Racial Discrimi-
nation (in 1968); the International Covenant on Economic, Social and Cultural
Rights (in 1992); the International Covenant on Civil and Political Rights
(in 1992); the Convention on the Elimination of All Forms of Discrimination
Against Women (in 1984); the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (in 1989); the Convention on the
Rights of the Child (in 1990); the Convention on the Rights of Persons with
Disabilities (in 2008); the International Convention for the Protection of All Persons
from Enforced Disappearance (in 2010); the Optional Protocol to the International
Covenant on Civil and Political Rights (2009); the Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of the
death penalty (2009); the Optional Protocol to the Convention on the Elimination of
All Forms of Discrimination Against Women (2002); the Optional Protocol to the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (2007); the Optional Protocol to the Convention on the Rights of the
Child on the involvement of children in armed conflict (2004); the Optional Protocol
to the Convention on the Rights of the Child on the sale of children, child prostitu-
tion, and child pornography (2004); the Optional Protocol to the Convention on the
Rights of Persons with Disabilities (2008).11 Brazil has also accepted the jurisdiction
of the IACtHR and, in this sense, enhanced the scope of its responsibility in
international human rights law.
Despite this increased commitment, one can see that human rights in the actions
of the executive branch frequently take second place in the agenda of international
politics: if the protection of human rights may be perceived as an obstacle or as
making the achievement of a prospective interest difficult, it has been left aside.
This can be seen in Brazil’s dialogues and negotiations with countries that are
dictatorships or have a poor record in the respect of human rights.12 It also appears in
the pressure that Brazil has posed to international organs that may condemn its
actions as not respectful of human rights.13
11
All information relating to Brazil’s participation in the International Human Rights system is
available at http://treaties.un.org/Pages/Treaties.aspx?id¼4&subid¼A&lang¼en and http://indica
tors.ohchr.org/. Accessed on 24 Nov 2016. As of Nov 2016, in terms of the core instruments of
human rights, Brazil has not yet ratified the International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families and the Optional Protocol to the Interna-
tional Covenant on Economic, Social and Cultural Rights. It has signed but not ratified the Optional
Protocol to the Convention on the Rights of the Child on a communications procedure.
12
As, for instance, in Brazil’s relations with Libya and Cuba.
13
As, for instance, in the case of the construction of the Bela Monte Dam and power plant that has
been criticized by the Inter-American Human Rights system. When the Inter-American Commis-
sion on Human Rights (IACHR) granted the provisional measures against the plant (Indigenous
Brazil 415
2.2 Legislative Branch
The legislative branch in Brazil is involved with international human rights (i) in
participating in the internal procedure for the incorporation of treaties as it falls upon
the legislative to give its consent to the treaties that the executive branch has
negotiated and (ii) in passing internal norms that are in keeping with international
human rights standards.
As seen above, Brazil is committed to most of the treaties that compose the core
of international human rights. Seen in this light, it seems the more relevant to
highlight the internal norms approved by the legislative branch that relate to
human rights.
In recent years, Brazil has seen a constant increase in the number of passed bills,
and this has been also the case with human rights. However, quantity is not a
guarantee of quality, and relevant issues of protection—such as in the cases of
nondiscrimination and equality on grounds of sexual orientation or specific law for
minorities—are either lacking or stalled in a long process of political negotiation.
In spite of this, however, in 2004 the legislative branch has approved a reform of
Brazil’s Constitution—the Emenda Constitucional 45/2004 (Constitutional Amend-
ment 45 of 2004—EC 45/04)—which had at least three important consequences for
human rights.
Firstly, the EC 45/04 has accepted the jurisdiction of the International Criminal
Court,14 ending a debate about its compatibility with the Brazilian legal system and
aiding in enhancing individual international responsibility in face of grave violations
of human rights. This step is relevant to international human rights as it is part of a
broader idea of international protection of human beings, which also comprises
international criminal law.
Secondly, this amendment to the Brazilian Constitution has established a proce-
dure (incidente de deslocamento de competência) through which, if the federal states
are not able or not willing to prosecute crimes against human rights, the competence
to do so is transferred to the federal government,15 thus aiming to ensure that the
violation of human rights will not go unpunished.
And thirdly, EC 45/04 has established a new procedure in relation to the incor-
poration of treaties into Brazilian internal law so as to allow for international treaties
to have a higher status in the Brazilian legal system.16
Communities of the Xingu River Basin, Pará, PM 382/10, 1 Apr 2010), the Brazilian government
called the decision rushed and unfounded (http://blog.planalto.govbr/brasil-considera-medidas-da-
oea-sobre-belo-monte-precipitadas-e-injustificaveis. Accessed on 23 Feb 2017). The Brazilian
government “threatened” to leave the Inter-American human rights system and the IACHR
(on 29 July 2010) revoked the measure and stated that the Brazilian government could build the
dam, but that the human rights organ would be vigilant of human rights abuses.
14
Brazilian Constitution, Art 5 (4).
15
16
This new procedure is the result of debates in relation (i) to the need of a formal
procedure of incorporation of international human rights treaties and (ii) to the
hierarchical status that human rights treaties would have once incorporated into
Brazilian law in view of the facts that the Brazilian Constitution states that the rights
guaranteed by it will not exclude those guaranteed by treaties to which Brazil has
committed itself17 and that human rights norms should have immediate
applicability.18
By providing for a new internalization procedure to human rights treaties, EC
45/04 seems to be based on the understanding that these types of documents have to
go through a formal incorporation procedure, as do all other treaties in Brazil, but
accorded to them the status of a Constitutional Amendment if they are approved by
both Houses of legislature by a 3/5 majority and in two separate votes.19
This seems to be an advancement in Brazil’s dedication to international human
rights law as almost all other types of treaties enter the Brazilian legal system in the
lowest hierarchical position (lei ordinária) but leaves the question of what would
happen with the treaties that have been approved prior to EC 45/04.20 Those
conventions, as mentioned, compose the majority of treaties pertaining to the core
of international human rights law. Such questions were dealt with by the judicial
branch, and will be analyzed below.
2.3 Judicial Branch
The judiciary has been perhaps the most active branch in relation to international
human rights. As the focus of this chapter is limited to the federal government that
represents Brazil in the international arena, and given that the protection of human
rights is an obligation deriving also from the Brazilian Constitution that establishes
the Supremo Tribunal Federal (Brazilian Supreme Court—STF) as its guardian,21
the focus of this section will be on the STF’s actions regarding human rights.
This analysis may be divided into two main aspects: the material and the
procedural implementation of human rights by the STF.
In regard to the procedural implementation, two main aspects have to be
highlighted. The first one is the fact that the STF, on more than one occasion, has
expressed that the material importance of human rights takes precedence over the
form in which the remedies for violations have been sought; i.e., even if the remedy
17
18
19
As it was the case of the Convention on the Rights of Persons with Disabilities and its Protocol.
20
It seems to be the position of the majority of the doctrine that treaties after the EC 45/04, that have
not passed the procedure created by it but were approved through the common procedure for all
treaties, enter into force in Brazil, but have an inferior hierarchical normative status.
21
Brazilian Constitution, Art 102.
Brazil 417
presented was not the correct one in a formal analysis, the Supreme Court has
nonetheless tried to uphold human rights and condemned the violation.
The second aspect goes back to the question presented at the end of Sect. 2.2 and
relates to the hierarchical normative strength of international human rights treaties
that have not been approved through the EC 45/04 special procedure and have been
internalized prior to its existence.
In this area, the STF has recently established in its jurisprudence the thesis—
which is defended by the majority of the justices—that international human rights
treaties, because of the importance of their content, are to be regarded as having
infraconstitutional but supralegal status.22 This is to say that international human
rights treaties will only lose clashes with the Brazilian Constitution and will prevail
when facing challenges from any other norm in the Brazilian legal system.
Although the adopted doctrine does not mention the international standard of the
“most protective norm” (regardless of it being internal or international, so-called pro
homine principle), it seems to be a positive development in Brazil’s relation to
international human rights, given that the position until its adoption was of uphold-
ing the norm last in time without any consideration regarding its content.
This positive development, however, cannot obscure the fact that the STF has a
guarded position in relation to international human rights treaties. This observation
can be exemplified, for instance, by the Supreme Court’s resistance in citing
international human rights treaties, preferring sometimes to use references to other
countries’ norms and doctrine.23 It is also expressed by a preference for internal
norms on the subject in the reasoning of the Supreme Court over international human
rights treaties.
Such posture is justified by the STF in light of Brazil’s sovereignty but seems to
forget that it was Brazil that gave its consent to be bound by international human
rights treaties and that the aim of the international protection of human beings is to
grant the most comprehensive protection possible, combining the primary protection
of states with the complementary international protection.
Another positive development in relation to the material aspects of international
human rights assessed by the Supreme Court is the increase in its references to
human dignity in its jurisprudence, especially since the beginning of the twenty-first
century. This is relevant in so far as human dignity is a principle both of the Brazilian
state24 and in the foundation of the international human rights system.
However, it seems that there is no consistency in the STF’s jurisprudence on
human rights, showing lack of general and principled theory on the subject, which
can lead to political decisions and the minimization (or even the violation) of respect
for human rights.25
22
Brazilian Supreme Court, RHC 79785 RJ (2000).
23
According to Piovesan (2009), the STF has only cited the IACtHR jurisprudence on two
occasions, whereas in 80 cases it referred to decisions by the US Supreme Court and in 58 cases
to decisions by the Constitutional Court of Germany.
24
25
See do Amaral and Jubilut (2009).
3 Brazil and the Inter-American System
If from the above it is clear that there is room for improving Brazil’s internal posture
regarding human rights, this seems to be also true in relation to the dialogue between
Brazil and the regional initiatives to which it belongs—the Inter-American human
rights system and MERCOSUR.
It is interesting to note that the topic of human rights has been present in relation
to both the Organization of American States (OAS), in which the Inter-American
human rights system is inserted, and MERCOSUR, even if the former has a broader
political nature and the latter mainly an economic basis.26
Regarding the dialogue between Brazil and the Inter-American human rights
system, one can see that, in theory, the relation seems to be in keeping with the
ideals of human rights as Brazil (i) has been a part of the American Convention on
Human Rights (Pact of San Jose, ACHR) since 1992, (ii) has ratified the Additional
Protocol to the Convention on Economic and Social Rights (Protocol of San
Salvador) in 1996, and (iii) has accepted the jurisdiction of the IACtHR since
1998.27
An example of a positive dialogue was the creation of a law criminalizing
domestic violence against women,28 which goes back to a decision of the Inter-
American Commission on Human Rights (IACHR) in the Maria da Penha Maia
Fernandes case.29
The Maria da Penha case was brought to the IACHR in 1998 and dealt with the
allegations that Mrs. Maria da Penha had been a victim of spousal abuse and
domestic violence for 15 years, having sought legal remedies and the assistance
with the police to no avail. Mrs. Maria da Penha has sustained irreversible medical
damages from the violence, including the inability to walk. The Commission
decided against Brazil in 2001 and recommended that domestic violence be
criminalized in order to avoid tolerance from state organs for situations such as
that of Mrs. Maria da Penha, which was followed by Brazil in 2006.
Other positive examples derive from the condemnation of Brazil by the IACtHR
in the cases of Ximenes Lopes and Escher. In the Ximenes Lopes case, Brazil was
brought to the IACtHR in 2004 and was sentenced in 2006 in relation to the death of
Damião Ximenes Lopez, who was mentally disabled and in medical custody. While
hospitalized in order to obtain psychiatric treatment, Mr. Ximenes Lopez was
assaulted, ill-treated, and killed, and the violations of human rights were not inves-
tigated by the police or any other state organ. In this light, the IACtHR ruled against
Brazil stating that (i) the medical custody was in the responsibility of the state,
26
On MERCOSUR see Franca Filho, Lixinski and Olmos Giupponi, Courts of Regional Economic
Communities in Latin America and Human Rights Law, in this Volume.
27
Information regarding Brazil’s participation in the Inter-American Human Rights system is found
at http://www.oas.org/DIL/treaties_signatories_ratifications_subject.htm. Accessed 3 Mar 2017.
28
Lei 11.340 (2006).
29
IACHR, Maria da Penha Maia Fernandes v Brasil, Report no 54/01, case 12.051, 16 Apr 2001.
Brazil 419
although it was operated through a delegation of powers; (ii) there were violations of
the rights to life and of physical integrity; (iii) there were violations of the rights of
access to justice; and (iv) the victims were Mr. Ximenes Lopez and his relatives.30 It
stipulated the need for restitution and the obligations of the state to bring the guilty
persons to justice and to improve mental health treatment conditions in the country.
In the Escher and Others case, the main topic of discussion was the violation to
human rights by illegal phone surveillance. Mr. Escher and the other victims were
members of social movements for land-distribution reforms (reforma agrária in
Brazil) and claimed that their phone conversations were wired and divulged. In
2009, the IACtHR ruled against Brazil in relation to the illegal wires, to the lack of
legal remedies and denial of justice, and to the violation of the right of association.31
The most recent case involving Brazil in the IACtHR, as of the timing of the
writing of this chapter in 2014, is related to the amnesty law in the country.32 In the
Gomes Lund case, decided in 2010, the Court ruled against Brazil and stated that its
amnesty law violated international human rights law by granting immunities and by
not allowing for the prosecution of torturers. Brazil has not changed its internal law
yet—which had been deemed constitutional by the Supreme Court prior to the
IACtHR ruling. Recently, however, the STF has complied with one aspect of the
IACtHR decision: the establishment of a truth commission to ascertain responsibil-
ities for human rights violations during the dictatorship in the country.33
In the Gomes Lund case, in particular, the IACtHR reiterated its jurisprudence
concerning the “control of conventionality,” which obliges the domestic judicial
branch to take into account, even ex officio, not only the international treaty (Pact of
San Jose) and its norms but also the interpretation that the regional organs of the
Inter-American system have given them in previous situations.34 Indeed, it indicated
in the judgment that the Brazilian Supreme Court did not consider the international
obligations of the state when it confirmed the validity of the amnesty law, in
violation of the American Convention.35
30
IACtHR, Ximenes Lopes v Brazil, judgment of 4 July 2006.
31
IACtHR, Escher and others v Brazil, judgment of 6 July 2009.
32
Since the time of writing, the following cases against Brazil have been decided by the IACtHR:
Herzog and others, Xucuru people and others, Favela Nova, and Workers of the Fazenda Brasil
Verde.
33
Lei 12.528 (2011). See for the full text of the Bill http://www.planalto.govbr/ccivil_03/_Ato2011-
2014/2011/Lei/L12528.htm. Accessed 3 Mar 2017.
34
IACtHR, Gomes Lund (‘Guerrilha do Araguaia’) v Brazil, judgment of 24 Nov 2010.
35
The IACtHR jurisprudence can be found at http://www.corteidh.or.cr/casos.cfm. Accessed
30 Mar 2017. In relation to Brazil, the IACtHR lists in its jurisprudence seven contentious cases
and 34 provisional measures (http://www.corteidh.or.cr/casos.cfm. Accessed 30 Mar 2017). The
IACHR lists as “cases in the court” four new cases against Brazil: Fazenda Brasil Verde – Report
169/11, Favela Nova Brasília – Report 141/11, Povo Indígena Xucuru – Report 44/15 and Vladimir
Herzog and others – Report 71/15 (http://www.oas.org/en/iachr/decisions/cases.asp and http://
www.oas.org/pt/cidh/decisiones/demandas.asp). Accessed 30 Mar 2017.
Thus, it is relevant to note that in terms of the dialogue between the Inter-
American system of human rights and the internal legal order in Brazil (including
the Supreme Court), the practice shows that some challenges seem to have emerged.
The first challenge relates to the already mentioned hierarchy of international
treaties once incorporated into the Brazilian system. For instance, this holds true in
relation to the possibility of arresting people who have received the possession of an
asset to keep it but have breached that duty (depositário infiel) as until recently
Brazil was applying its internal norm and not the international (regional) standard.
This has started to change with the abovementioned new position of the STF in
relation to the hierarchy of international human rights law, but is still not a consen-
sual position of the Supreme Court.
A second challenge relates to the consideration of the advisory opinions of the
IACtHR, for instance in cases like the one on the requirement of a diploma for
journalists,36 which was under analysis by the STF.37 This challenge relates not to
the obligations that would stem from advisory opinions, which are still not consen-
sual, but rather to the weight that the state puts on following international standards
of human rights protection even if they are soft law. In its decision regarding the
constitutionality of the requirement of a diploma for the exercise of the profession of
journalists, the STF took into account the advisory opinion of the IACtHR38
indirectly, when some ministers considered that the national norm would be incom-
patible with Article 13 ACHR (freedom of expression).
The third and most recent challenge highlights the already mentioned Brazilian
position when human rights clash with other national interests, with the latter having
been preferred. Recently, Brazil’s position on amnesty laws has been contested by
the Inter-American system, as has the construction of the Belo Monte dam and
power plant. In both cases, the Brazilian government—in all of its three branches—
has responded with political arguments and threats, which have even included the
threat of leaving the system and renouncing the competence of the IACtHR.39
The reaction of the Brazilian authorities to the decision of the IACHR of granting
precautionary measures for the members of the indigenous communities of the
Xingu River Basin in Pará, in 2011, was energical.40 The IACHR considered that
the construction of the Belo Monte hydroelectric power plant could endanger the life
and physical integrity of the alleged victims because of the major impact it would
36
IACHR, advisory opinion, 5/85, 13 Nov 1985 (http://www.corteidh.or.cr/docs/opiniones/seriea_
05_esp.pdf. Accessed 2 Mar 2017.
37
Brazilian Supreme Court, RE 511961, 13 Nov 2009, in the Brazilian legal system (http://redir.stf.
jus.br/paginadorpub/paginador.jsp?docTP¼AC&docID¼605643. Accessed 3 Mar 2017).
38
IACHR, advisory opinion, 5/85, 13 Nov 1985 (http://www.corteidh.or.cr/docs/opiniones/seriea_
05_esp.pdf. Accessed 2 Mar 2017).
39
It is interesting to note that, despite this criticism Brazil afterwards appointed a judge to the
IACtHR (Justice Roberto F. Caldas who was appointed in 2013 and is the President of the Court for
the 2016–2017 term) and the Executive-Secretary of the Inter-American Commission on Human
Rights (Mr. Paulo Abrão for a term from 2016 to 2020).
40
See supra, n 12.
Brazil 421
produce to their traditional way of living. The state was requested to stop immedi-
ately the construction of the plant until the fulfillment of the conditions established
by international human rights standards.
As a result, Brazil decided to withdraw its ambassador to the OAS and to suspend
its annual contribution to the organization. This political reaction, supported by other
Member States—especially Venezuela and Ecuador—led to41 a process of reforms
in the regional system on human rights, particularly in the functioning of the
IACHR, which started in 2011 and was only concluded in 2013. The reforms
made the rules of procedure of the Commission more rigorous and less flexible in
the consideration of complaints of possible violations and in the study of requests of
precautionary measures.
Such challenge is relevant as it puts into question the real commitment of Brazil to
its international human rights obligations and makes one wonder whether the
country’s dedication to the theme is only aimed at gaining soft power in international
relations or whether it has been truly internalized as a political choice and a legal
obligation. If the state purports to be a democratic state, which pledges to protect and
promote human rights, the protection of human beings cannot be subordinated to, or
be jeopardized in the pursuit of, other interests.
4 Conclusion
From all of the above, it is clear that the topic of human rights has increasingly
gained relevance in Brazil’s agenda; however, there is room for improvement.
Regarding its internal actions, despite the improvement of the general scenario
after the redemocratization, and a discourse in the international arena of
championing human rights, a clear theory (or at least a framework or guideline)
establishing that human rights take precedent over any other political or national
interest is still lacking. If human rights obligations are to be incorporated in all
actions of the executive, legislative, and judicial branches and do not take second
place to other interests, Brazil has to be clear about it and the preference it is giving to
human rights as a value, a political choice, and a legal obligation.
The introduction of such a “theory of precedence or preference” would positively
reflect on the relationship between Brazil and the Inter-American human rights
system (as well as any other regional and international organs in which Brazil
takes part). It could add to Brazil’s legitimacy in the international arena through a
model of leading by practice. In relation to the Inter-American system, Brazil’s
credibility in international fora would be enhanced if it maintains its commitments to
the human rights treaties it ratified and to the supervisory systems introduced by
these treaties even when the decisions taken in these systems are against it.
41
It also led to the Inter-American Commission on Human Rights revoking its preventive measure
against the dam and the plant power as mentioned above, n 12.
Not to mention that under international law Brazil is obliged to respect and to
enforce the international decisions (either in its favor or against it) of the systems and
regimes it has joined. The dedication to human rights in general, and human rights
law specifically, has to be a real commitment by the country and not a political tool
that can be used as a bargain or a threat in order to achieve other goals.
In light of the above, it seems that, although Brazil has improved its record in
relation to its human rights obligations, there is still a long way forward, and if its
commitment is real, it should adopt the idea that protection of human rights is
holistic and ascertain the most protective standards. In this sense, Brazil should be
more open to applying international law, especially in relation to human rights, and,
in this regard, has to foster its dialogue with the main regional player (the Inter-
American human rights system)42; besides making clear the precedence of human
rights over other interests.
References
BRASIL (2010) Ministério das Relações Exteriores do Repertório de Política Externa: Posições do
Brasil (2008–2009). FUNAG, Brasília, p. 219. http://funag.govbr/loja/download/699-
Repertorio_de_PolItica_Externa_Posicoes_do_Brasil_ 2008-2009.pdf. Accessed 3 Mar 2017
do Amaral A Jr, Jubilut LL (2009) O STF e o Direito Internaional dos Direitos Humanos. Quartier
Latin, São Paulo
Piovesan F (2009) Desafios de la vinculación de la justicia constitucional a las decisiones de la
Corte IDH, presentation at “La Justicia constitucional: prolegómeno de un Ius Constitutionale
Commune in America Latina”, Max-Planck-Institute for Comparative Public Law and
International Law
42
See Cerna, State Obligations in the Inter-American System, in this Volume.
Cambodia
Implementation of International Human Rights
and Human Rights Decisions in Cambodia
Daniel Heilmann
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
2 Status of International Human Rights Treaties Under Cambodian Constitutional Law . . . 425
3 Cambodian Human Rights Bodies and Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
3.1 Human Rights Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
3.2 Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
3.3 Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
4 Extraordinary Chambers in the Courts of Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
4.1 Structure and Effectiveness of the ECCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
4.2 Reference to International Human Rights in the Tribunal’s Work . . . . . . . . . . . . . . . . . . . 434
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
1 Introduction
The human rights situation in Cambodia is in many ways unique and different from
other countries because of the multidimensionality of the underlying issues. The
1970s and, particularly, the regime of the Khmer Rouge have deeply influenced
Cambodian society to this day. The Khmer Rouge is responsible for the genocide, in
which approximately two million Cambodians were killed in the short period from
1975 to 1979. It is remarkable that despite this traumatic experience—and while the
Khmer Rouge has been removed from power almost 40 years ago—only modest
progress has since been made regarding the implementation of international human
Any views expressed in this paper are those of the author in his private capacity only.
D. Heilmann (*)
Jakarta, Indonesia

https://doi.org/10.1007/978-3-319-94848-5_16
424 D. Heilmann
rights. The law is not the problem. The Cambodian Constitution1 includes a list of
constitutionally guaranteed rights, and Cambodia has ratified the most important
international human rights treaties,2 including the following:
• International Covenant on Civil and Political Rights;
• International Covenant on Social, Cultural and Economic Rights;
• Convention on the Elimination of All Forms of Discrimination Against Women;
• Convention on the Rights of the Child;
• Convention on the Prevention and Punishment of the Crime of Genocide;
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment;
• Convention on the Elimination of All Forms of Racial Discrimination.
However, the importance of protection and respect for human rights is not always
readily accepted. Among some state actors, especially in Asia, the opinion prevails
that human rights are a matter of domestic jurisdiction alone. In this context, much
has been said of “Asian values,” which, as argued by some, are opposed to the notion
of universality of human rights.3 Basically, the argument is that human rights
practices are “Western” and thus are not suitable for the Asian context because of
different traditions, culture, and religion.4 It has been claimed that the infringement
of human rights can be necessary, and thus justifiable, to achieve economic devel-
opment.5 Whether the internationally consented approach to human rights fits the
Cambodian government’s agenda may be debatable, but from a legal point of view,
this is not relevant because states are bound by the universal nature of human rights
and the treaties that they voluntarily enter into. In this regard, the 1993 Vienna
Declaration and Programme of Action, adopted by the World Conference on Human
Rights, explicitly affirms the “commitment of all States to fulfil their obligations to
promote universal respect for and observance and protection of all human rights and
fundamental freedoms for all [. . .] The universal nature of these rights and freedoms
is beyond question.”6 The Vienna Declaration also clarifies that while regional
1
The Cambodian constitution has been drafted with heavy support and under the influence of the
United Nations Transitional Authority in Cambodia (UNTAC) in 1992/1993; it is available at http://
www.wipo.int/edocs/lexdocs/laws/en/kh/kh009en.pdf. Accessed 11 Nov 2017.
2
Buergenthal identifies the mentioned treaties as the core international human rights treaties, see
Buergenthal (2007), para 11.
3
This stands in contrast to the concept of the universality of international law. This concept reflects
the conviction that there is, or should be, a common value system that governs all humankind (see
Nollkämper (2011), para 5). This substantive meaning of universality has in part been translated
into positive international human rights law, which before codification were part of customary
international law (ibid, para 6). Therefore, the conception of human rights includes that every
individual has legitimate claims against his or her society for the respect and guarantee of defined
freedoms and benefits. See Henkin (1989), p. 10.
4
For an in-depth analysis of the debate see Davis (1998), p. 109.
5
For an analysis of these claims see Donnelly (2013), p. 72 f.
6
Vienna Declaration and Programme of Action, para I. 1.
Cambodia 425
particularities must be taken into account, this does not conflict with the universality
of human rights.7 Furthermore, Cambodia is a full member in international organi-
zations such as the United Nations and ASEAN.8 All principles that have consen-
sually been developed and agreed upon in those institutions apply to Cambodia,
even though they may not be binding under international law.9
This article gives an overview over the state of affairs regarding the implemen-
tation of human rights and international human rights decisions in Cambodia.
Section 2 analyzes the complicated and ambiguous process of implementing
human rights treaties into Cambodian domestic law. Section 3 looks at the domestic
human rights bodies and the structure of the judicial system and highlights some
prominent cases in which human rights have been ignored. Section 4 briefly analyzes
the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC) and
discusses decisions in which international human rights courts, such as the European
Court of Human Rights or the Inter-American Court of Human Rights, have been
mentioned. The final section sums up the current state of affairs and draws some
conclusions.
2 Status of International Human Rights Treaties Under

Cambodian Constitutional Law
The relevance of human rights as a matter of domestic law is acknowledged by the

Cambodian Constitution in Article 31. This article states that “the Kingdom of
Cambodia recognizes and respects human rights as stipulated in the United Nations
Charter, the Universal Declaration of Human Rights and the covenants and conven-
tions related to human rights, women’s rights and children’s rights.” The provision is
silent on the question whether a transformation of international human rights treaties
into a domestically binding legal commitment is required. Therefore, it has been
argued that the wording of Article 31 blurs the line between monism and dualism.
Article 31 must be analyzed in the context of the overall Constitution. Article 26 of
the Constitution states that “the King signs and ratifies international treaties and
conventions after their approval by the National Assembly and the Senate.” Ulti-
mately, the wording of the Constitution is ambiguous. The Cambodian Constitution
stops short of declaring that binding international treaties are a part of Cambodian
7
The Vienna Declaration emphasizes that “all human rights are universal, indivisible and
interdependent and interrelated [. . .]” and that “while the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in mind, it is
the duty of States, regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms,” see Vienna Declaration and Programme of
Action, para I. 5.
8
See for example the ASEAN Human Rights Declaration, Association of Southeast Asian
Nations (2013).
9
Menzel (2014), p. 77.
426 D. Heilmann
law. Whether Cambodia adopts the monist or dualist approach is a question that is
not resolved by the constitutional text. In this sense, Ratana Taing argues that “this
article shows clearly that all the international instruments shall be included in
national laws of Cambodia after the ratification.”10 It can be concluded that Article
26, in conjunction with Article 31, implies that the Cambodian Constitution follows
a monist approach and that the legislature by its involvement in the ratification
process incorporates the international human rights treaty into domestic law—
without further transformation being required.11
The Cambodian government in its 1997 Report to the UN Committee on the
International Convention on the Elimination of All Forms of Racial Discrimination
took the standpoint that international human rights treaties are not directly applicable
in Cambodia. The government stated that “these covenants and conventions may not
be directly invoked before the courts or administrative authorities.”12 However, the
government’s interpretation of the Constitution seems to be at odds with an obiter
dictum on this issue by the Cambodian Constitutional Council. In its decision of July
10, 2007,13 the Constitutional Council clarified that ratified international human
rights treaties form part of domestic law.14 The Constitutional Council stated that
“[. . .] during the trial the judge [. . .] does not only rely on Article 8 of the Law on the
Aggravating Circumstances of Felonies [. . .], but also on the laws. The term ‘Laws’
[. . .] means the national law, including the Constitution which is the supreme law, all
the laws that remain in force, and the international laws already recognized by the
Kingdom of Cambodia, in particular the Convention on the Rights of the Child.”15
The official English translation of the decision is not very illuminative, but the
Constitutional Council clarified that “national law” includes international conven-
tions that Cambodia has recognized. The Constitutional Council has recognized that
although a law may not violate the Constitution, a court must consider whether its
application in a particular case would be incompatible with provisions of the
Constitution, other Cambodian law, or international conventions recognized by
Cambodia. In finding that a proposed amendment to the Law on the Aggravating
Circumstances of Felonies was consistent with the Constitution, the Constitutional
10
Taing (2014), p. 125.
11
See also Taing (2014), pp. 124–125.
12
UN Doc CERD/C/292/Add.2, 7, the report goes to state that “however, they provide a basis for
the development of national legislation, such as that pertaining to the observance of a protection of
human rights [. . .].”
13
Constitutional Council, decision of 10 July 2007, Dec No 092/003/2007. http://www.ccc.gov.kh/
admin/uploads/dec_2007_92.pdf. Accessed 10 Nov 2017.
14
Background of the decision was a petition from civil society organizations with the aim of
reducing custodial sentences for persons under the age of 18. The Law on Aggravating Circum-
stances for Felonies allegedly was in violation not only of the Cambodian Constitution but also the
Convention on the Rights of the Child. The Constitutional Council upheld the respective law, but
the Constitutional Council also ruled that it could not have been the legislature’s intention to violate
the Convention on the Rights of the Child.
15
Constitutional Council, decision of 10 July 2007, Dec No 092/003/2007, 2. See supra fn 13.
Cambodia 427
Council noted that the trial judge should rely not only on the proposed amended
article for a conviction but also on “the laws.” This is consistent with the above-
proposed interpretation of Article 31 Cambodian Constitution. Thus, even if inter-
national law were not directly enforceable in domestic courts, domestic judges, such
as ECCC judges, would be constitutionally obliged to consider international human
rights conventions and fair trial rights in applying and interpreting domestic law.
Furthermore, the Constitutional Council speaks not of international conventions
that have been transformed into domestic law but of the international conventions
themselves being national law.16 The Constitutional Council emphasizes the status
of international human rights treaties as a direct part of Cambodian national law.17
Hence, it did not merely clarify that ratified human rights treaties are domestic law
but also made clear that they are directly applicable. In the above-cited paragraph,
the Constitutional Council points out that judges must include in their decision-
making process all national laws—which according to the Constitutional Council
encompass the international human rights treaties that Cambodia has recognized. If
judges are urged to rely on these treaties, it follows that they must be invocable by
the parties to a dispute. An international treaty (or its provisions) is only invocable if
the treaty is sufficiently concrete and precise, but this is usually the case with human
rights treaties.
Accordingly, international human rights treaties are directly applicable and
invocable before Cambodian courts. The Cambodian government in the 1997 report
to the Committee on the Elimination of Racial Discrimination also stated that “[i]n
practice, Cambodia grants the provisions of international conventions precedence
over domestic legislation [. . .] Accordingly, in performing their respective tasks,
courts and administrative authorities at all levels refer to them in the absence of
national legislation.”18 It must be highlighted that not only in absence of domestic
law but generally do Cambodian courts and administrative authorities have to refer
to international human rights standards.
The clarity of the Constitutional Council’s 2007 decision in conjunction with
Article 31 of the Cambodian Constitution is exemplary. Ratified international human
rights treaties have the status of domestic law and are thus binding on the judiciary.
This, however, is only true for international human rights treaties. Hence, the
Cambodian Constitution recognizes two categories of international treaty law. The
first category is international human rights treaties. They are, as has been detailed
above, embedded in the Constitution through Article 31 and have equal value as
16
This seems also in line with Art 26 of the Constitution, which can be interpreted in a way that
parliamentary approval and the king’s ratification is sufficient to make international treaties
domestic law.
17
The decision does, however, not clarify the status of customary international law in the domestic
legal hierarchy. Menzel concludes that the Cambodian Constitution also intends a general respect
for customary international law because of its openness toward international law in general, see
Menzel (2014), p. 77.
18
UN Doc. CERD/C/292/Add.2, 9.
428 D. Heilmann
other constitutional provisions.19 The legislature may not adopt any law contrary to
these provisions because such a law is necessarily unconstitutional. The Cambodian
Government states in its 2014 National Report under the ICCPR Universal Periodic
Review that “Nothing in the Constitution and other laws of the Kingdom of
Cambodia contradicts the principle of human rights as stated in international
instruments.”20
The second category, however, refers to other international treaties. In case of a
contradiction between the Constitution and such other international treaty, the
Constitution prevails (because Article 31 is not applicable).21 This guiding principle
is set forth in Article 150 (2) of the Cambodian Constitution, which stipulates that
“laws and decisions by the State institutions shall have to be in strict conformity with
the constitution.” Laws include not only ordinary statutes but also all international
treaties that do not have constitutional rank because they do not fall under the human
rights clause of Article 31 of the Constitution.
3 Cambodian Human Rights Bodies and Court System
3.1 Human Rights Bodies
Three different human rights bodies are tasked with monitoring the human rights
situation in Cambodia22: two separate committees in parliament (Committees for the
Protection of Human Rights and Reception of Complaints, one each in the Senate
and the National Assembly)23 and the Cambodian Human Rights Committee, which
reports directly to the prime minister. These committees do not have regular meet-
ings or a transparent operating process. Their role is to follow up on complaints that
they receive from citizens, for example through fact-finding missions and
questioning government departments regarding human rights abuses. The two
19
Theng (2016), p. 257.
20
National report submitted in accordance with para 5 of the annex to Human Rights Council
Resolution 16/21 Cambodia, UN Doc. A/HRC/WG.6/18/KMH/1 (27 Jan–7 Feb 2014), para 37.
21
Theng (2016), p. 257.
22
See National report submitted in accordance with para 5 of the Annex to Human Rights Council
resolution 16/21 Cambodia, UN Doc. A/HRC/WG.6/18/KMH/1 (27 Jan–7 Feb 2014), paras 37 and
38.
23
See Principle 6 of the Internal Regulations of the National Assembly of Cambodia, available at
http://www.skpcambodia.com/Laws%20&%20Regulations%20of%20the%20Kingdom%20of%
20Cambodia/Legislative%20Power/NA%20Internal%20Regulation_Eng.pdf and Art 6 of the
Internal Regulations of the Senate of the Kingdom of Cambodia, available at http://policy.
mofcom.gov.cn/english/flaw!fetch.action?id¼1930a482-de49-4d02-b37f-a94150aec692. Both
accessed 10 Nov 2017.
Cambodia 429
committees receive several hundred complaints each year.24 The two committees of
the legislature have a ceremonial function and are not active in their role as
watchdogs. No draft bill has ever been submitted to parliament by one of the two
human rights committees of the legislature.
The Cambodian Human Rights Committee was established in 1998, and it was
assigned by the Royal Government to promote human rights and the rule of law. Its
role is to investigate human rights abuses, to collect information and remedy the
situation, and to organize trainings and disseminate information.25 Overall, it plays a
more important role than the committees in the legislature. Its duties also include the
submission of government reports for participation in international human rights
review processes such as the Universal Periodic Review.26 However, these activities
are usually heavily supported (financially and logistically) by international donor
agencies. In reality, the government’s human rights committee does not conduct
independent human rights investigations either. Overall, it seems fair to conclude
that the human rights committees have a very limited influence.27
3.2 Court System
The Cambodian justice system was in utter disarray in 1993, when the UN Transi-
tional Authority in Cambodia (UNTAC) administered the country for a short period
of time. There were only five judges and prosecutors at that time.28 Since then,
massive changes have taken place in the legal and institutional setup. In 2011,
Cambodia had already 396 trained judges and 92 prosecutors. However, the US
State Department in its 2013 report on the human rights situation in Cambodia stated
that “the constitution provides for an independent judiciary, but the government
generally did not respect judicial independence. The courts were subject to influence
and interference by the executive branch, and there was widespread corruption
among judges, prosecutors, and court officials. At times the outcome of
trials appeared predetermined. A lack of resources, low salaries, and poor training
24
The National Assembly Human Rights Committee received 1158 complaints from citizens
between 2006 and 2010, see Cambodian Center for Human Rights (2012) CCHR Institutions
Series: National Human Rights Bodies in Cambodia, 1.
25
Cambodian Center for Human Rights (2012) CCHR Institutions Series: National Human Rights
Bodies in Cambodia, 2.
26
Cambodia has been reviewed twice under the Universal Periodic Review procedure, see UN
Human Rights Council, Report of the Working Group on Cambodia, UN Doc. A/HRC/26/16
(27 Mar 2014), available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/KHSession18.aspx.
Accessed 10 Nov 2017.
27
US Department of State – Bureau of Democracy, Human Rights and Labor (2014), p. 18.
28
Hauerstein (2016), p. 230.
430 D. Heilmann
contributed to a high level of corruption and inefficiency in the judicial branch, and
the government did not provide for due process.”29
The Constitution of 1993 provides the blueprint for the rebuilding of the judicial
system. It introduced internationally recognized standards for legal and judicial
reform, such as the respect for the law in the preamble of the Constitution, the
separation of powers (Article 51 (3)), the introduction of a comprehensive adminis-
trative law system (Article 39),30 and the establishment of an independent judiciary
(Chapter XI). Cambodia opted for a system of courts of general jurisdiction where all
different types of cases are handled. The general jurisdiction courts fall into three
categories: the Supreme Court, the Appeal Court, and Courts of First Instance (one in
each province/municipality, 25 courts altogether).31 Besides the courts of general
jurisdiction, a few specialized courts exist. For example, the Military Court of First
Instance is not part of the regular court system, as well as the Extraordinary
Chambers in the Courts of Cambodia.
Until 2014, Cambodia had no comprehensive statuary framework for the judi-
ciary but was governed mostly through government regulations and informal prac-
tices. The ministry of justice controlled the judiciary as it not only administered the
operation of courts but also exercised power over the training, the selection, and the
career of judges, as well as nonjudicial clerks. Because of a lack of an effective legal
and institutional framework, the management of human and financial resources, as
well as court organization and case management, was exercised on an ad hoc basis.32
To address these issues, in 2014, three laws on the organization of the judiciary were
enacted and entered into force. These are (1) the Law on the Organization of the
Supreme Council of Magistracy, (2) the Law on the Status of Judges and Prosecu-
tors, and (3) the Law on the Organization of the Courts. However, the Cambodian
courts still are mostly ineffective. Adapting the system to the new legal framework is
a huge task, not only in terms of providing financial resources and infrastructure but
also in terms of changing the culture toward respect for international standards.33
3.3 Cases
Notwithstanding the constitutional requirements and the Constitutional Council‘s

decision to consider international human rights treaties, human rights have only
rarely been applied in practice by the courts in Cambodia.34 The 2010 report of the
UN Special Rapporteur on the situation of human rights in Cambodia raised
29
30
Art 128 (3) states that the judiciary shall consider all cases, including administrative cases.
31
32
33
Ibid.
34
Karnavas (2014), p. 54.
Cambodia 431
concerns about the independence and competence of the judiciary, observing that “in
spite of the Constitutional guarantees and the existence of various institutions to
enhance and safeguard its independence, the Special Rapporteur is of the view that
the judiciary has not been working as effectively, independently and impartially as
possible.”35 Political influence on the Cambodian judiciary is evidenced by politi-
cally motivated prosecutions, coupled with a failure to prosecute suspects who are
well connected.36 Judicial independence and the separation of powers are enshrined
in the Cambodian Constitution in Articles 128 and 51 respectively. In theory, these
norms provide checks and balances to interference by the government.
Nevertheless, many deficiencies have been exposed in various high-profile crim-
inal cases. One example is the 2012 controversy surrounding the 20-year jail term
handed down by the Phnom Penh Municipal Court to independent radio station
owner Mam Sonando for allegedly inciting insurrection activities in a village. The
sentence was imposed after a three-day trial37 during which the prosecution
presented little evidence of his involvement in the alleged activities. Observers
agreed that the conviction was based on Mam Sonando’s frequent on-air criticisms
of the government.38 Human rights groups claimed that the government fabricated
the plot to cover up its eviction of villagers who were involved in a land dispute with
a rubber plantation.39 Neither fair trial rights incorporated in the Cambodian Con-
stitution40 nor international standards, as enshrined in the ICCPR and the Universal
Declaration—and directly applicable as Cambodian law through Article 31 of the
Constitution—have been taken into account by the court.41
Another example of Cambodian courts ignoring international human rights is the
guilty verdict, and 7-year prison sentence, handed down to an opposition lawmaker
in 2016. Senator Hong Sok Hour was convicted on forgery and incitement charges
by the Phnom Penh Municipal Court for allegedly posting a video clip online
containing an image of a fictitious agreement between Cambodia and Vietnam to
35
Report of the Special Rapporteur on the situation of human rights in Cambodia, General
Assembly 15th Session, U.N. Doc. A/HRC/15/46, at 41. Areas of major concern in criminal
proceedings include limited legal argument in the courtroom; the absence of any analysis of law
or publication of reasoned decisions; corruption and political interference within the judiciary;
excessive reliance on confessions extracted in police custody, often under duress; lengthy detention
without charge; and a lack of trust by the public that the courts will deliver impartial justice.
36
Coughland et al. (2012), p. 19.
37
Criminal Case No. 206 of the Prosecution Department of the Kratie Court (18 May 2012); later
transferred to Criminal Case No 2207 of the Prosecution Department of the Phnom Penh Municipal
Court (16 July 2012).
38
39
See Zsombor (2012a, b).
40
The constitution includes, for example, the right to an impartial judge (Art 128); aspects of
integrity (Art 129); equality before the law (Art 31); procedural rights in criminal cases (Art 38), and
procedural rights in administrative cases (Art 39).
41
In Mar 2013, the Court of Appeals reduced the sentence from 20 years in prison to 5 years, with
the remainder of the sentence suspended and the defendant subsequently released from prison.
432 D. Heilmann
dissolve their shared border.42 He was held in pretrial detention for 450 days
following his arrest until his trial resumed.43
4 Extraordinary Chambers in the Courts of Cambodia
4.1 Structure and Effectiveness of the ECCC
The Extraordinary Chambers in the Courts of Cambodia (also known as the Khmer
Rouge Tribunal) play a special role in the Cambodian court system because of their
hybrid structure. They were established in 2006—more than 25 years after the
atrocities of the Khmer Rouge had been committed. The establishment of the
tribunal marked an important step in Cambodia’s attempt to come to terms with its
past. The temporal jurisdiction of the ECCC extends from April 17, 1975, the day the
Khmer Rouge took power, to January 6, 1979, the day the Khmer Rouge regime fell.
With this limited temporal jurisdiction, a fully fledged inquiry into the Cambodia
conflict—i.e., the crimes that were committed during the civil war before the Khmer
Rouge came to power, as well as the time beyond the Khmer Rouge period—is not
possible. Furthermore, jurisdiction ratione personae is limited to the senior leaders
of the Khmer Rouge and those most responsible for the crimes committed at that
time.44 The first trial against one of the main perpetrators was completed in 2010.
The first part of the high-profile trial against two of the leaders of the Khmer Rouge
was completed in August 2014.45
Some of the unique features of the tribunal, which are a result of the negotiations
between the United Nations and the Cambodian government regarding the estab-
lishment of the tribunal, have proven to be problematic (for example, the ECCC’s
inclusion of two pairs of investigators modeled after the French criminal law
system). Ultimately, the structure of the tribunal led to redundancy and gridlock.
Both the existence of investigating judges and the fact that both the Office of the
42
The treaty version posted by Hong Sok Hour includes the word “dissolve“ as part of an agreement
between the two countries over their shared border, rather than “redefine,” as the original treaty
says. The inaccurate wording, which was likely the result of a first translation from Khmer to
English and subsequently, a second translation from English back to Khmer by somebody who
apparently had not seen the original Khmer version, prompted Prime Minister Hun Sen to accuse
Senator Hong Sok Hour of treason and to order his arrest; see Sovuthy (2016).
43
Cheng (2016).
44
The limited scope of jurisdiction of the Tribunal had already been at the center of the negotiations
between the Cambodian government and the United Nations in the years leading up to the
establishment of the Tribunal. The eventual outcome of these negotiations is an unorthodox set
of hybrid chambers sui generis within the existing Cambodian court system—as is signified by the
name “Extraordinary Chambers in the Courts of Cambodia.”
45
It is still unclear whether and how the Tribunal will proceed after the completion of the second
phase of Case 02/002. Additional cases are under investigation. However, a major issue is that the
Cambodian government is reluctant to support the work of the Tribunal for much longer.
Cambodia 433
Co-Prosecutors and the Office of the Co-Investigating Judges are two-headed have
contributed to the inefficiency of the tribunal.
Overall, the ECCC has dealt with four different cases. Case 001 was the first case,
which saw Duch, the former Director of the S-21 Prison in Phnom Penh, sentenced
to lifelong imprisonment. In Case 002, four high-ranking Khmer Rouge cadres were
indicted, of which two, namely Nuon Chea (the former Deputy Secretary of the
Communist Party) and Khieu Samphan (the former Head of State), were sentenced
to life in prison for their involvement in the genocide. Cases 003 and 004 are still in
the investigation phase and have not proceeded to the trial stage as of yet.
The Cambodian government has an ambivalent relationship with the ECCC. In
2010, Prime Minister Hun Sen informed United Nations Secretary-General Ban
Ki-Moon that “Case 003 will not be allowed. [t]he court will try the four senior
leaders successfully and then finish with Case 002.”46 The Cambodian government
opposes the investigation of further crimes, and this position has not been abated
since. It must be pointed out that the Cambodian government’s position is predicated
on the law. The government argues that the Law on the Establishment of the
Extraordinary Chambers must be interpreted restrictively. Article 2 of the Law on
the Establishment of the ECCC states that the tribunal shall “bring to trial senior
leaders of Democratic Kampuchea and those who were most responsible for the
crimes and serious violations of Cambodian laws related to crimes.” The law speaks
of those “most” responsible. The government’s position is that the major culprits
have been tried and that justice has been done after the conclusion of Case 002. This
is a valid interpretation of the law.
In the struggles surrounding investigations of alleged crimes, two international
investigating judges have resigned, reportedly because of perceived interference in
their work.47 Also, the independence of Cambodian judges and prosecutors at the
tribunal from interference by the government has been questioned. For example,
pressure has been exerted when the Cambodian government rejected that sitting
officials are summoned as witnesses and when it opposed the investigation of
additional suspects. Concerning the issue of high-ranking officials being summoned,
the international judges of the pretrial chamber have (in a separate opinion to a
decision) stated that they find it reasonable to believe that one or more members of
the government may have knowingly and willfully interfered with or threatened and
46
See Crowther (2013).
47
In 2011, a considerable number of international staff members in the Office of the
Co-Investigating Judges walked out to protest the failure of the co-investigating judges (one
Cambodian and the other international) to investigate the crimes that form the basis of Case 003.
The international co-investigating judge ultimately bowed to pressure and stepped down. However,
his successor—while having a different approach—did also not hold this position for long and also
stepped down. An order delivered prior to his departure invited the co-prosecutors to file a
supplementary submission in the Case 003 investigation. This action was considered highly
controversial because the international co-investigating judge recommended that four high-ranking
officials in the sitting Cambodian government be interviewed concerning allegations of Khmer
Rouge war crimes; for a summary of these events see Coughland et al. (2012), pp. 31–32.
434 D. Heilmann
intimidated witnesses who may give evidence before the coinvestigation judges.48
Concerning the contentious issue of investigation of additional cases and suspects in
Cases 003 and 004, the international coprosecutor (unable to reach an agreement
with his national counterpart) filed a notice of disagreement and asked the pretrial
chamber to resolve it. An affirmative vote by the pretrial judges could not be reached
because the three Cambodian judges voted against the additional investigations and
the two international judges voted in favor.49 This is a symptomatic decision among
many, which are all divided on national/international lines.
That the government’s position is replicated by the Cambodian judges is no
surprise. Ultimately, there is a thin line between voluntarily aligning with the
government view and bowing to pressure. The opposing objectives of the
Cambodian government and the international community may ultimately taint the
legacy of the ECCC. Arguably, as a court established under Cambodian law, the
ECCC should embody the values of judicial independence and due process. These
principles are part and parcel of the Cambodian Constitution and are enshrined, for
example, in Articles 128 and 130 of the Constitution, which explicitly guarantee the
independence of the judiciary. Furthermore, the idea of hybrid courts in general, and
the ECCC in particular, includes an important demonstration effect in that they aim
at fostering a cultural shift in how the domestic courts are perceived by society.
Ideally, hybrid courts therefore aspire to the highest standards of independence,
impartiality, due process, and human rights and demonstrate the supremacy of law
and the ability of a court to operate free from political interference. When judges fail
to act in a transparent manner, the message sent to the domestic judicial system is
that of a lack of professionalism. The question must indeed be asked to what extent
the ECCC can have a positive impact on the national legal system and respect for
human rights when it is perceived as being a politically influenced institution.
4.2 Reference to International Human Rights

in the Tribunal’s Work
Despite the abovementioned shortcomings, the organs of the court have taken
international human rights treaties into account, and they have applied human rights
law at various stages of the proceedings. The Prosecutor has cited international
human rights decisions on various occasions. This has been the case, for example, in
2008 during the proceedings before the pretrial chamber. In this context, the
48
Extraordinary Chambers in the Courts of Cambodia, Second Decision on Nuon Chea’s and Ieng
Sary’s Appeal Against OCIJ order on Request to Summon Witnesses, Opinion of Judges Downing
and Marchi-Uhel (9 Sept 2010, Doc. 002/19-09-2007-EEEC-OPIJ (PTC 50), para 6.
49
Extraordinary Chambers in the Courts of Cambodia, Considerations of the Pre-Trial Chamber
Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71 (18 Aug
2009, Doc. 001/18-11-2008-ECCC/PTC).
Cambodia 435
Co-Prosecutors referred to the Inter-American human rights system in regard to the

granting of amnesties and the incompatibility with the state’s obligations to provide
appropriate punishment for those responsible for violations of human rights.50 The
Prosecutor went on and analyzed the United Nations human rights system, including
general comments of the Human Rights Committee51 and decisions of the UN
Committee Against Torture.52
The trial chamber, in its most important judgment in Case 002/01 of August 2014,
also referred to international human rights decisions, particularly of the European
Court of Human Rights and stated, in the context of a discussion of fair trial rights,
that a court may provide the opportunity for adversarial debate in various ways, but
“whatever method is chosen, it should ensure that the other party will be aware that
observations have been filed and will get a real opportunity to comment thereon.”53
This is a verbatim citation of the Öcalan v. Turkey judgment of the ECHR.54
Finally, also the international Co-Investigating Judge has extensively cited inter-
national human rights decisions, and particularly those of the European Court of
Human Rights. For example, in a 2016 decision on the crime of forced pregnancy, he
referred extensively to the jurisprudence of the International Criminal Tribunal for
the Former Yugoslavia,55 as well as the European Court of Human Rights.56 He also
discussed international human rights instruments pre-1975 (i.e., the time the Khmer
50
Extraordinary Chambers in the Courts of Cambodia, Prosecution’s Response to Ieng Sary’s
Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), para 30, citing
IACtHR, Velasquez Rodriguez Case, judgment of 29 July 1988, Series C No 4, para 174; and
IACtHR, Godinez Cruz Case, judgment of 20 Jan 1989, Series C No 5, para 184.
51
Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), at para 31: citing
HRCtee General Comment No 20 (44), para 15.
52
Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), para 31: citing
United Nations Committee Against Torture, Decisions relative to Communications 1/1988, 2/1988
and 3/1988 of 23 Nov 1989, para 7.2.
53
Extraordinary Chambers in the Courts of Cambodia, Case 002/01 Judgment (7 Aug 2014, Doc.
002/19-09-2007-ECCC/TC), para 64, citing ECtHR, Öcalan v Turkey, App No 46221/99, judgment
of 12 May 2005.
54
ECtHR, Öcalan v Turkey, App No 46221/99, judgment of 12 May 2005, para 146.
55
For example when discussing “other inhumane acts” as a crime against humanity, the ECCC
Co-investigating Judge refers to ICTY Trial Chamber, Prosecutor v Blagojević & Jokić, Case No
IT-02-60-T, judgement of 17 Jan 2005, para 624; and ICTY Appeals Chamber, Prosecutor
v. Stakić, Case No IT-97-24-A, judgement of 22 Mar 2006, para 315.
56
For example, para 35 reads: “For the purposes of assessing the reasonable duration of criminal
proceedings, I consider persuasive the jurisprudence of the European Court of Human Rights
that. . .”; see Extraordinary Chambers in the Courts of Cambodia, Consolidated Decision on the
Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impreg-
nation (13 June 2016, Doc. 004/07-09-2009-ECCC-OCIJ). ECtHR cases referred to in this context:
Deweer v Belgium, App No 6903/75, judgment of 27 Feb 1980; Neumeister v Austria, App No
1926/63, judgment of 27 June 1968; McFarlane v Ireland, App No 31333/06, judgment of
10 Sept 2010.
436 D. Heilmann
Rouge came to power), in particular with a view to the standards of the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Rights.57 These are some examples in which the tribunal discussed international
human rights standards. It must be noted that the discussion of international human
rights standards in the tribunal’s case law has been forced by the international judges
of the tribunal and not by the Cambodian judges and prosecutors.
Ratified international human rights treaties are a part of Cambodian domestic law
with constitutional rank. This includes their applicability and invocability in domes-
tic courts. However, a huge discrepancy exists between constitutionally guaranteed
human rights and their actual enforcement in Cambodian courts. While the inter-
national judges and prosecutors of the ECCC have not shied away from applying
international human rights decisions and treaties, this is not the case in the courts of
general jurisdiction in Cambodia. Ultimately, Cambodia’s modern constitution,
which incorporates international human rights and its revamped legal framework,
will be merely cosmetic if decision-makers agree not to apply the rules or to
circumvent them.58 Cambodian judges, prosecutors, and law enforcement agencies
must be trained regarding international human rights standards, and they must be
willing to investigate abuses and protect victims. Respect for human rights must be
enforced by the government. Human rights must not only be written down in the
laws, but they must also be firmly entrenched in the Cambodian legal culture.
References
Association of Southeast Asian Nations (2013) ASEAN human rights declaration and the Phnom
Penh statement on the adoption of the ASEAN Human Rights Declaration (AHRD). http://
www.asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf. Accessed 10 Nov
2017
Buergenthal T (2007) Human rights. In: Max Planck Encyclopedia of Public International Law.
Available via Oxford University Press Online. http://opil.ouplaw.com/view/10.1093/law:epil/
9780199231690/law-9780199231690-e810?rskey¼EcRzwx&result¼1&prd¼EPIL. Accessed
6 Nov 2017
Cambodian Center for Human Rights (2012) CCHR institutions series: National Human Rights
Bodies in Cambodia. http://cchrcambodia.org/admin/media/factsheet/factsheet/english/2012_
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Extraordinary Chambers in the Courts of Cambodia, Consolidated Decision on the Requests for
Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation (13 June
2016, Doc. 004/07-09-2009-ECCC-OCIJ), para 70.
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03_30_CCHR_Institutions_Series_Factsheet_National_Human_Rights_Bodies_ENG.pdf.
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Cheng T (2016) Senator Sok hour given seven years for forgery and incitement. The Phnom Penh
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years-forgery-and-incitement. Accessed 7 Nov 2017
Coughlan J, Ghouse S, Smith R (2012) The legacy of the Khmer rouge tribunal: maintaining the
status quo of Cambodia’s judicial and legal system. Amst Law Forum 4(2):16–35
Crowther S (2013) Commentary: the election and the ECCC. Cambodia Tribunal Monitor. Avail-
able under http://www.cambodiatribunal.org/2013/08/05/commentary-the-election-and-the-
eccc-2/. Accessed 7 Nov 2017
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Hauerstein K (2016) The constitutional role of the judiciary in Cambodia: international comparison
and implication for reform. In: Hor P, Kong P, Menzel J (eds) Cambodian constitutional law.
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Phnom Penh, pp 247–268
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cambodiadaily.com/archives/sonando-verdict-a-tough-test-for-kr-tribunals-legacy-3360/.
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Zsombor P (2012b) Donors Criticize Sonando Sentence. Available under https://www.
cambodiadaily.com/archives/donors-criticize-sonando-sentence-3220/. Accessed 7 Nov 2017
Denmark
Decisions in Denmark
Jonas Christoffersen
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
2 Implementation of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
2.1 Legislative Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
2.1.1 Incorporation of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
2.1.2 Other Legislation Based on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
2.2 Judicial Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
2.2.1 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
2.2.2 Judicial Self-Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
2.2.3 Interpretation of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
3 Institutional Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
3.1 Parliamentary Ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
3.2 National Human Rights Institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
3.3 Refugee Appeals Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
3.4 Immigration Appeals Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
3.5 Equality Appeals Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
1 Introduction
Denmark is a small state that believes in the rule of international law and accordingly
takes its international obligations seriously. The implementation of human rights
decisions in Denmark is now based on long-standing tradition, and Denmark makes
many efforts to follow the development in international human rights standards and
practice. Denmark always implements binding judgments delivered in cases against
it, just as it takes account binding judgments delivered in cases against other states,
J. Christoffersen (*)
Danish Institute for Human Rights (DIHR), Copenhagen, Denmark
e-mail: jch@humanrights.dk

https://doi.org/10.1007/978-3-319-94848-5_17
440 J. Christoffersen
as well as nonbinding statements, views, and decision—what we can call interna-

tional jurisprudence.
In the following, I will describe the overall stance on the implementation of
human rights obligations before I turn to various examples of implementation of
human rights jurisprudence.
2 Implementation of Human Rights
Denmark has ratified a large number of human rights conventions, in particular

stemming from the United Nations,1 the Council of Europe2 and the European
Union. Denmark has also accepted the rights of individual complaints in respect of
most international instruments, the latest under the UN Convention on the Rights of
Persons with Disabilities and the UN Convention on the Rights of the Child.3
Denmark adheres to the principle of dualism, and Denmark’s international
obligations need implementation to take effect in Danish law. The Constitution
does not govern the relationship between national and international laws, and the
relationship has been subject to intense legal debate over the last century.4
Danish law is based on the fundamental principle that the legislature has the main
responsibility to secure conformity between Danish law and international human
rights law—despite the judiciary’s responsibility to interpret Danish law in accor-
dance with international law. The legislature subscribed to the view of the presump-
tion of legislative responsibility expressed in the Report of 1991 on the incorporation
of the European Convention on Human Rights: ‘It is very important that the
legislature irrespective of an Incorporation Act continues to undertake an ongoing
adaptation of legislation. An Incorporation Act must not become a sleeping pillow
for the legislature with the effect that the main responsibility of the practical
observance of the convention is placed on the courts. The Act shall create a certain
legal basis for the courts control function, which merely can and should be a kind of
safety net for the correct observance of the convention.’5
1
Denmark has not yet acceded to the International Convention for the Protection of all Persons from
Enforced Disappearance and will not subscribe to the International Convention on the Protection of
the Rights of All Migrant Workers and Members of their Families.
2
Denmark has not accepted Protocol No 12 to the Convention for the Protection of Human Rights
and Fundamental Freedoms.
3
Denmark has not accepted individual complaints under the International Covenant on Social and
Economic Rights.
4
Betænkning 682/1973, (1973); 15; Matzen (1910), p. 23 and Espersen (1970), p. 165.
5
Betænkning 1220/1991 (1991), 148, cf 47 ff. ‘Folketingstidende 1991-92 tillæg A’ (1992), sp 5470
f and ‘Folketingstidende 1991-92 tillæg B’ (1992), sp 891 f.
Denmark 441
2.1 Legislative Implementation
Denmark’s international obligations are undertaken by the government as part of its

foreign policy prerogative, but parliament shall give its prior consent if its cooper-
ation is necessary to secure implementation. Because of the cooperation between
parliament and government in respect of the undertaking of international obligations,
it is assumed that legislation and other sources of Danish law are to respect
Denmark’s international obligations. It has been accepted for more than a hundred
years that organs and agents of the state shall respect international law6 and that
international obligations must be implemented by way of general legislation or
specific application.7 International norms cannot, without further ado, be enforced
by Danish authorities on equal footing with, let alone primacy over, ordinary Danish
law.8
Despite this starting point of dualism, the Danish legislature has never legislated
on the basis of an express recognition that legislation would violate international
law. Parliamentary practice respects international law. Even where politicians wish
(primarily) to legislate as far as possible within the confines of international law, the
bills presented to politicians and the acts adopted reflect the (secondary) desire to
respect international law. The most effective means of implementation of interna-
tional obligations remains legislation and interpretation thereof, but the European
Convention on Human Rights has a special status as it was incorporated into Danish
law in 1992.
2.1.1 Incorporation of the ECHR
Denmark decided in 1992 to incorporate the ECHR into national law by a special act
adding to what was a general human rights momentum in the immediate period
following the upheavals in Eastern Europe. The incorporation of the ECHR had been
recommended by legal scholars, and the Minister of Justice, on the basis of a
decision of Parliament of 19 May 1989, established a committee to assess the
implications of a general incorporation. In 1991, the so-called Incorporation Com-
mittee delivered a report recommending the incorporation of the ECHR with a view
to codifying the application of the ECHR thus far.9 The legislature adopted an
Incorporation Act in 1992 with effect from 1 July 1992.10
The incorporation was a breakthrough of the ECHR in Danish law. It remains a
special case because the 1992 incorporation of the ECHR has not been followed by
6
Matzen (1900), p. 237.
7
Spiermann (1999), p. 497.
8
Spiermann (1999), pp. 497 and 503.
9
Betænkning 1220/1991 (1991), 13, 147 and 193.
10
Act No 285 of 29 Apr 1992; cf Betænkning 1220/1991 (1991).
incorporation of further international human rights conventions despite various

recommendations to this effect.11
Since the incorporation of the ECHR in 1992, Danish courts have delivered
hundreds of judgments and decisions concerning the ECHR. The judiciary, and in
particular the Supreme Court, has played a major role in preventing Denmark’s
violation of its international obligations.
2.1.2 Other Legislation Based on Human Rights
The legislative power—government and parliament—has as already mentioned an

important role in ensuring compliance with the international human rights obliga-
tions of Denmark. During the preparatory work, bills are reviewed to make sure that
new legislation is not contrary to these obligations, and the legislature goes a long
way to ensure de facto implementation of Denmark’s human rights obligations also
as they are reflected in international decisions. In 2006, for example, Denmark was
found in violation of Article 11 ECHR by the European Court of Human Rights
(ECtHR) on account of the legality in Danish law of closed shop agreements on the
labour market. As a consequence of the judgment, the Minster of Employment
proposed an amendment to the Act of Freedom of Assembly, thus bringing the
Danish legislation in accordance with the Convention.12 Another example of legis-
lative initiatives based on international practice is found in 2014, when Denmark
introduced new legislation to secure the right to establish paternity as a consequence
of the ECtHR jurisprudence regarding Article 8 ECHR. The bill presented to
parliament made reference to the European Court’s judgment in Bäcklund v Finland
and described the Court’s practice in details.13 Most recently, the European Court of
Justice gave a preliminary ruling that prompted swift legislative action in respect of
the EU’s accession agreements with Turkey.14 There are many examples of legisla-
tive initiatives inspired as well as made necessary by international human rights
obligations, decisions and statements.
11
Betænkning 1407/2001 (2001) and betænkning 1546/2014 (2014).
12
ECtHR, Sørensen and Rasmussen v Denmark, judgment of 11 Jan 2006, nos 52562/99, and
52620/99 and ‘Lov om beskyttelse mod afskedigelse på grund af foreningsforhold’.
13
ECtHR, Bäcklund v Finland, judgment of 6 July 2010, no 36498/05, and ‘lov nr 483 af 21 maj
2014 om ændring af lov for Grønland om børns retsstilling og arvelov for Grønland’.
14
ECJ, Caner Genc, judgment of 12 Apr 2016, case C-561/14, ECLI:EU:C:2016:247, Genc and
‘lov nr 664 af 8 June 2012 om ændring af udlændingeloven’.
Denmark 443
2.2 Judicial Implementation
The judiciary has taken the task of ensuring compliance with international human
rights very seriously, and it has become a natural part of the work of the judiciary.
Many cases brought before the courts touch, directly as well as indirectly, upon the
sphere of human rights. It has become the difficult task of judges to carefully find a
balance between law and politics when determining whether or not to find a violation
of Denmark’s human rights obligations.
2.2.1 Interpretation
Danish authorities shall interpret Danish law in accordance with Denmark’s inter-
national obligations on the basis of the so-called rules of presumption of compliance
with international obligations and the ensuing rule of interpretation.15 The rules of
presumption and interpretation today provide the general framework for understand-
ing the relationship between Danish and international law, although it is difficult to
apply in cases of conflict between national legislation and international obligation.
In legal doctrine, the scope of application of international law by way of inter-
pretation has been sought to be limited to act as a minor source of correction,16 as a
last way out,17 as a kind of safety net18 and as basis for a more teleological than ad
verbatim interpretation.19 Similarly, reservations have been attached to the scope of
international law’s impact on Danish law, e.g. that the main rule of a legislative act
must maintain its most significant area of application20 or that intentions that have
been significant to the legislature must remain in effect.21 These kinds of reserva-
tions do not seem to have limited judicial interpretation in practice. In 1990, the
Supreme Court indicated that the application of the then non-incorporated ECHR
was not excluded as the legislature had not intended an exhaustive regulation of a
particular legal matter.22
The implementation of international law by way of interpretation seems, how-
ever, to be confined to the scope of ordinary principles of interpretation of Danish
15
Berlin (1916), p. 74 and Møller (1925), p. 10 f.
16
Espersen (1970), p. 390, cf 243 (‘korrekturhage’).
17
Espersen (1970), p. 495 (‘en slags nødløsning’).
18
Betænkning 1220/1991 (1991), 148 (‘en slags sikkerhedsnet’).
19
Department of Justice, ‘Justitsministeriets redegørelse af juli 1972 for visse statsretlige spørgsmål
i forbindelse med en dansk tiltrædelse af de Europæiske Fællesskaber’, Nordisk Tidsskrift for
International Ret 1971, 80 f (‘en mere formålsbestemt retsanvendelse frem for en ordret
fortolkning’).
20
Holm (1981), p. 127 ff. (‘lovens hovedregel bevare[r] sit væsentligste anvendelsesområde’).
21
Holst-Christensen (1989), p. 49 (‘intentioner, som har været væsentlige for lovgivningsmagten,
fortsat lader sig realisere’).
22
UfR 1990 13 H (‘udtømmende regulering’).
law.23 The Supreme Court may have confirmed this view, stating in 2007 that the
impact of non-incorporated treaties cannot extend to setting aside Danish legisla-
tion,24 just as the Supreme Court stated in 2009 that the general principle in EU law
of protection against discrimination on the basis of age could not be secured by way
of interpretation contra legem.25
The Supreme Court has in practice reached results that deviated from the hitherto
assumed legal position in Danish law. The Supreme Court has changed the inter-
pretation of Danish law,26 adopted restrictive interpretation of legislative provi-
sions,27 just as the Court has distanced itself from the preconditions of legislation
clearly reflected in the legislative text.28 To fully understand this practice, it must be
recalled that Danish courts are generally pragmatic and enjoy a relative wide room
for interpretation also where the ECHR is not concerned.29 There are accordingly no
clear examples of the Supreme Court having interpreted Danish law in a way that is
contrary to Denmark’s international human rights obligations at the time of
interpretation.
2.2.2 Judicial Self-Restraint
It has remained a key element—also after the incorporation of the ECHR some
25 years ago—that judicial self-restraint shall be exercised in the implementation of
international law since the main responsibility to secure conformity between Danish
law and international human rights law lies with the legislature.
A number of Supreme Court decisions from the late 1980s showed an intense
review of the conformity of Danish law with the standards of the ECHR, which were
used as a starting point for the Committee preparing the incorporation.30 However,
neither the Committee’s final report nor the report’s draft act repeated the intense
review exercised. It was moreover not reflected in the bill eventually presented to
Parliament. The Committee did, however, observe that the courts when possible
shall secure the respect of the ECHR by means of interpretation.31 The crucial
question would thus seem to be how this could be done. The Committee stated
that the courts shall have a clear basis for the application of the ECHR and exercise
restraint in the independent interpretation of the ECHR.
The Committee repeatedly made the case that the courts should exercise restraint
in adopting interpretations that would have wide-ranging consequences. More
23
24
UfR 2006 770 H.
25
UfR 2014 3667 H.
26
UfR 1994 536 H.
27
UfR 2000 1201 H, UfR 1996 234 H and perhaps UfR 1994 954 H.
28
UfR 1996 234 H.
29
UfR 2000 1326 H.
30
Betænkning 1220/1991 (1991), 80.
31
Betænkning 1220/1991 (1991), 12, 80, 146 and 192 (‘så vidt muligt’).
Denmark 445
precisely, the exercise of restraint would be relevant where consequences would

impact society32 and the content of Danish law,33 but seemingly also where no
particular interest warranted it.34 Restraint should thus be exercised in practically all
cases. It is clear that the political ambition was and remains to make sure that Danish
courts would not consider themselves in position to mimic the freedom of interpre-
tation enjoyed by the Strasbourg Court. Above all, the division of power between the
legislature and the courts should not be changed via Strasbourg or via the incorpo-
ration into Danish law of the ECHR.
2.2.3 Interpretation of the ECHR
Since the Incorporation Act of 1992, very few judgments delivered by Danish courts
seem to go beyond what is clearly required by the ECHR. Danish courts have
generally adopted a narrow interpretation of the ECHR. Or as the Supreme Court
put it in a 1996 decision on the impartiality of judges, an otherwise relevant rule of
the Administration of Justice Act cannot be binding if it is incompatible with Article
6 ECHR as it is interpreted by the Convention organs.35 Danish courts follow the
practice of the Strasbourg Court—no more and no less.
Former Supreme Court judge and then judge at the ECtHR Peer Lorenzen has
formulated a three-level model on which the considerations of further incorporation
on human rights treaties in 2001 was based. The model distinguishes between three
situations: (1) the European Court has pronounced itself on the specific matter of
interpretation, (2) the interpretation is settled with a significant degree of certainty,
and (3) there is no practice allowing conclusions to be drawn with a reasonable
degree of certainty.36 In the latter instance, Danish legislation cannot be set aside.
The model seems to enjoy some support,37 but it has also been viewed as too
narrow since authorities will in practice face questions of interpretation that have not
been settled and where independent thinking is required to reach a well-founded
interpretation of the different sources of law.38 More importantly, however, the
model is based on the assumption that no international legal obligation exists before
international practice determines this. However, this one cannot assume that inter-
national practice is the only source of law. The model is apt to secure that Danish
32
Betænkning 1220/1991 (1991), 197.
33
Betænkning 1220/1991 (1991), 149.
34
Betænkning 1220/1991 (1991), 146.
35
UfR 1996 234 H.
36
‘Betænkning 1407/2001’ (2001), 307. On the significance of international practice and other
sources of interpretation, as well as the distinction between general provisions and political
declarations. (‘programerklæringer’), see ‘Betænkning 1407/2001’ (2001), 150 ff. cf ‘Betænkning
1220/1991’ (1991), 147 f. and Betænkning 682/1973 (1973), 45 ff.
37
Melchior (2003), p. 201.
38
courts and administrative authorities do not run wild in the dynamic interpretation of
the ECHR and override the legislature, but it is ill-suited to enable the courts and
administrative authorities to act in daily situations where human rights consider-
ations can inform the exercise of discretion within the confines of Danish law. The
obligation to interpret independently does not mean that the interpretation shall
expand the scope of human rights. The independent interpretation may be strict
and narrow, but it cannot be avoided in the absence of relevant international practice.
The requirement of clarity of international law is generally flexible, but it may at
times be very strict.39 In the 2001 Report on the incorporation of further human
rights instruments, it was stated that the legislature’s substantive assessment of the
content of international conventions should be given weight as long as subsequent
international development did not shake the foundation of the assessment.40 The
Supreme Court in 2005 argued that the dismissal of a Muslim woman wearing a
headscarf was not in contravention of the relevant Discrimination Act. This was in
part due to the fact that the legislature had already balanced the interest of the
employer to set the dress code vis-à-vis the religious interest of the employee.41 It
is hard to second-guess how the Supreme Court might have decided the case without
the legislative assessment, but the Court clearly made a point out of exercising
restraint in the face of the legislative assessment.
Some commentators accept that the courts should be allowed to interpret the
ECHR differently than the Strasbourg Court.42 This may seem to contravene the
minimum standards of the ECHR, just as it is not for the courts but the legislature to
decide to violate international law. The clear point of departure is that Danish courts
and administrative authorities follow and must follow clear international standards,43
but one might add the caveat that international interpretations may be arbitrary or
clearly wrong44 or necessitate correction in view of the subsidiarity principle.45 At
the end of the day, the criterion of certainty is flexible.
39
UfR 2004 1765 H; cf ECtHR, Ciliz v The Netherlands, judgment of 11 July 2000, no 29192/95.
40
Betænkning 1407/2001 (2001), 308 (‘bør . . . indgå med vægt’). See also Betænkning 1546/2014
(2014)
41
UfR 2005 1265 H (‘Lovgiver har herved foretaget en afvejning af hensynet til en arbejdsgiver,
der kræver uniform eller bestemt beklædning, over for hensynet til en ansat, som af religiøse grunde
ikke kan opfylde beklædningsreglerne.’).
42
43
UfR 1996 234 H, Betænkning 1220/1991 (1991), 149.
44
BVerfG, Görgülü, judgment of 14 Oct 2004, 2 BvR 1481/04, section 60.
45
Christoffersen (2009), chapter 5.
Denmark 447
3 Institutional Protection
The implementation of human rights in Danish law cannot be fully understood

without taking a glance at the institutional structure in Denmark. Several Danish
institutions have the task of implementing human rights obligations as part of their
ordinary administration. A number of institutions could be mentioned, but a few
central ones have been selected.46
3.1 Parliamentary Ombudsman
The Parliamentary Ombudsman functions as a supervisory body handling com-

plaints concerning public authorities. The competence of the Ombudsman is codified
in the Ombudsman Act subject to Section 55 of the Constitution. The Ombudsman
can receive complaints and can raise cases on his own motion. The Ombudsman
inspects prisons, detentions, psychiatric departments, etc. and functions as National
Preventive Mechanism under the Optional Protocol to the United Nations Conven-
tion Against Torture. The Ombudsman also has a special department dealing only
with the rights of the child. The Ombudsman examines complaints from children
regarding decisions and behavior of schools, municipalities, foster homes, etc., just
as parents have the possibility of complaining on behalf of their children. The
Ombudsman also conducts inspections in public facilities housing children, as
well as in private homes, and oversees compliance with the United Nations Con-
vention on the Rights of the Child. Although the institution deals with a broad range
of matters, human rights issues are regularly, either directly or indirectly, part of the
cases. For instance, the Ombudsman has referred to the ECHR and the UN Con-
vention on the Rights of the Child in a statement concerning expulsion of a child and
his grandmother. The case was raised on the Ombudsman’s own motion as a result of
an inspection at the asylum centre where the child and grandmother lived prior to
expulsion.47
46
Other examples are the Independent Police Complaints Authority (use of force) and The Medi-
ation and Complaint-Handling Institution for Responsible Business Conduct (OECD’s guidelines
for multinational enterprises).
47
Available online via http://www.ombudsmanden.dk/find/udtalelser/beretningssager/alle_bsager/
2015-8/pdf1. Accessed 11 July 2017.
3.2 National Human Rights Institution
Denmark has established a National Human Rights Institution in accordance with the
UN Paris Principles.48 The institution works on the basis of the Constitution and all
human rights accepted at any given time by the international community. The
institution is an independent and self-governing institution within the public sector.
The institution promotes and protects human rights in particular by means of
monitoring and reporting on the implementation of human rights in Denmark, just as
the institution conducts analysis and research in order to advice parliament, the
government and other public institutions on the implementation of human rights in
Denmark. The institution, for example, annually reviews approximately 200 bills
presented to parliament with the purpose of securing conformity with human rights
law, just as it provides an annual report to parliament on the status and progress on
human rights in Denmark. The institution as a matter of course includes international
jurisprudence in its work.
3.3 Refugee Appeals Board
The Refugee Appeals Board is an independent, quasi-judicial board. The board

functions as a final administrative instance and its decisions are with a few excep-
tions not subject to judicial review. Danish asylum law is based on international law.
The Immigration Act contains a direct referral to the 1951 Refugee Convention, just
as it refers to Denmark’s other international obligations as grounds of asylum. The
refugee board has to comply with Denmark’s human rights obligations, and in this
context the right to life; the freedom from torture, inhuman or degrading treatment
and punishment; and the right to respect for one’s private and family life are
especially relevant.
The Board has published a range of memorandums concerning international
human rights, including the protection of asylum seekers in accordance with the
ECHR, the UN Convention Relating to the Status of Refugees, the UN International
Covenant on Civil and Political Rights and the UN Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.49 The Board
expressly refers to the jurisprudence of the human rights organs when delivering
decisions. For example, the board in January 2015 delivered three decisions where
the ECtHR judgment Tarakhel v Switzerland was used as a guideline for the
outcome of these.50 The refugee board has so far always reopens cases if UN treaty
monitoring bodies have found Denmark in violation of its obligations, but the review
48
See Badse (2013).
49
Available online via http://www.fln.dk/da/Publikationer/Notater.aspx. Accessed 11 July 2017.
50
Available online via http://www.flygtningenaevnet.dk/~/media/FLN/Nyheder/Nyhed12062015.
ashx. Accessed 11 July 2017.
Denmark 449
of the case in light of the intermediate views or decision of a UN committee does not
always lead to a decision granting asylum to the individual that won the case in
Geneva. In fact, since the fall of 2015, the Refugee Appeals Board has in a number of
cases maintained, despite the opposite view of the UN committee, that the individ-
ual’s rights would not be violated in case of expulsion.51
3.4 Immigration Appeals Board
The Immigration Appeals Board is an independent, quasi-judicial board dealing with

cases about family reunification, residence permit and extradition. The board has an
important role in ensuring compliance with Denmark’s human rights obligations as
human rights issues often arise in such cases, in particular, within the right to respect
for private and family life and the right to be free from torture, inhuman or degrading
treatment. The Immigration Appeals Board often refers to Article 8 ECHR and the
jurisprudence from the ECtHR when deciding in cases regarding family
reunification. In 2014, the board, for example, upheld a refusal of family
reunification stating that Article 8 ECHR—according to the ECtHR—does not entail
a general and unconditional right to family reunification, and the provision does not
entail an immediate right for families to choose the country where they want to
exercise the right to family life.52
3.5 Equality Appeals Board
The Equality Appeals Board is an independent quasi-judicial board that deals with
all forms of discrimination in violation of Danish law. It has competence to award
economic compensation to victims and, in cases regarding employment, to overrule
discriminatory dismissals. The decisions are not binding, but they are commonly
followed by the parties.
4 Conclusion
The political tradition and the dualistic principle governing the relationship between
national and international laws have generally served the implementation of human
rights well. Danish courts and public institutions apply and interpret international
51
Christoffersen (2016), p. 279.
52
Available online via http://udln.dk/da/Praksis/familiesammenfoering_andre/Foraldre%20til%
20herboende%20mindreaarige%20born/FAM_2014_211.aspx. Accessed 11 July 2017.
norms and standards generally in conformity with international jurisprudence and

practice without exercising any general opposition or restriction and also without
any measure of activism. The Danish courts follow international jurisprudence as far
as possible but not further than that. The political undertaking of international
obligations cannot alter the Constitution, and the international obligations accord-
ingly are not valid at a constitutional level.
Danish courts have undertaken the role of independently interpreting the ECHR,
and some argue that they have thereby encroached on the turf of the legislature.
However, there is little, evidence to suggest any general departure by the courts from
the position on which the incorporation was based, namely that the courts should
exercise self-restraint. This power balance was intended as the starting point in the
beginning of the 1990s. It was assumed that the legislature would take care of the
maintenance of Danish law in the light of international standards.53 The intermediate
period has, however, not witnessed the presumed level of precision in the adaptation
to international standards. There is, of course, nothing wrong per se with this
development. As long as Danish authorities, including the legislature, remains
within the boundaries of international norms, it is indeed only preferable that the
legislature determines the standard of protection in Denmark.
One should of course recognise that interpretations in government acts presented
to parliament may be politically inspired,54 and this, conversely, calls for a certain
measure of interpretational independence, rather than always restraint, by the judi-
ciary. Moreover, it is technically impossible in all details to adjust legislation to
developing international standards and thus relieve the courts of the burden of
interpretation.55 Judicial review in Denmark also plays the role of testing the
government’s human rights arguments at home before the test is made internation-
ally. As the Committee preparing the incorporation of the ECHR observed in 1991,
‘One can probably assume that if an organ of the state cannot convince the country’s
own courts of the legitimacy of an interpretation, there is little reason to think that
more luck will face the Government before international institutions’.56
When seen in the light of Denmark’s engagement in international law and human
rights over the last 60 years, there are, however, some broader conclusions to be
drawn from the interaction between Danish politics and international law. The most
striking is perhaps that Danish law was never seen to really be subject to interna-
tional law. Danish jurists—civil servants, lawyers, judges etc.—are now generally
accustomed to including international law in their work, but Danish politicians
apparently still look at the matter somewhat differently.57 An exceptionally strong
tradition of parliamentary supremacy governs Danish constitutional law, and politi-
cians are therefore not particularly used to be confined by legal boundaries, in
53
Betænkning 1220/1991 (1991), 148.
54
Zahle (2005), p. 428.
55
Olsen (2003), pp. 91–104.
56
Betænkning 1220/1991 (1991), 153.
57
Christoffersen (2014).
Denmark 451
particular international legal boundaries. Yet a perhaps equally strong adherence to

the rule of law, including the rule of international law, has caused Danish politicians
in practice to respect international human rights law.
The Nordic politics of promotion of human rights over the last 70 years have
perhaps come back to national politicians with a rather unexpected boomerang
effect. The original international politics of virtue in effect spurred the development
of an increasingly autonomous international legal order that is now promoting
changes in legal culture and practice at not only the international but also the national
level. The ECtHR has unsurprisingly played a key role in this development. It should
also be recalled that the main argument in favour of judicial development of
international norms remains the absence of a truly effective international legislature
and, thus, an essentially different institutional starting point than in national law and
politics.
The current situation might best be described as marked by a schism between an
advanced international legal integration in the area of human rights and a still
pervasive reluctance when it comes to the domestication of human rights. It is
precisely this schism that makes countries such as Denmark appear as not only
governed by a deeply embedded notion of dualism but also slightly confused in its
engagements in the area of human rights.
References
Badse C (2013) The Danish experience: the Danish Institute for Human Rights. In: Wouters J,
Meuwissen K (eds) National Human Rights Institutions in Europe – comparative, European and
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Christoffersen J (2009) Fair balance – a study of proportionality, subsidiarity and primarity in the
European Convention on Human Rights. Brill Nijhoff, Leiden
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Copenhagen
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2016:279–288
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Holst-Christensen N (1989) Gælder menneskerrettighederne i Danmark? Juristen 1989:49–57
Matzen H (1900) Forelæsninger over Den Positive Folkeret. Trykt hos J. H. Schultz, Copenhagen
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Copenhagen
Melchior T (2003) Maastricht, Tvind og hvad så...?. In: Iversen T et al (eds) Hyldesskrift til Jørgen
Nørgaard. Jurist - og Økonomforbundets Forlag, Copenhagen, pp 201–219
Møller A (1925) Folkeretten i Fredstid og Krigstid. G.E.C. Gad, Copenhagen
Olsen HP (2003) Når praksis overhaler grundloven. In: Jørgensen S et al (eds) Nye Retlige Design.
Jurist- og Økonomforbundet, Copenhagen, pp 91–104
Spiermann O (1999) Moderne Folkeret. Jurist- og Økonomforbundet, Copenhagen
Spiermann O (2004) Moderne Folkeret. Jurist- og Økonomforbundet, Copenhagen
Zahle H (2005) Praktisk Retsfilosofi. Christian Ejlers Forlag, Copenhagen
France
Decisions in France
Saïda El Boudouhi and Gesa Dannenberg
On n’exécute pas tout ce qui se propose; Et le chemin est long

du projet à la chose (“Not all things proposed are turned into
facts; the road is long, sometimes, from plans to acts”; trans.
page, CH (1908), G.P. Putnam, New York, slightly
modified.)—(Molière, Tartuffe, 1664, III, 1)
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
2 Express References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
2.1 Express Reference to the Authority and Legal Effects of International Decisions
on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
2.1.1 The Res Interpretata of International Decisions on Human Rights . . . . . . . . . 456
2.1.2 The Res Judicata of International Decisions on Human Rights . . . . . . . . . . . . . 457
2.2 Express Reference to Individual International Decisions on Human Rights . . . . . . . . 459
3 Implicit References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
3.1 Implicit Convergences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463
3.1.1 The Case of the ECtHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463
3.1.2 The Case of the UN Human Rights Committee and of the European
Committee on Social Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466
3.2 Implicit Divergences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
The authors would like to express their profound gratitude to Prof. Emmanuel Decaux who
entrusted them with and reviewed an early draft of this report. They however bear sole
responsibility for the final version.
S. El Boudouhi
Université de Valenciennes et du Hainaut-Cambrésis, Valenciennes, France
G. Dannenberg (*)
Université de Cergy-Pontoise, Cergy-Pontoise, France

https://doi.org/10.1007/978-3-319-94848-5_18
454 S. El Boudouhi and G. Dannenberg
1 Introduction
Analyzing the reception of international judicial decisions by domestic courts is no

easy task to tackle. French case law on international human rights decisions is no
exception. This is not because French courts completely ignore international deci-
sions on human rights or refuse to recognize their reach and effects in the national
legal order. The difficulty is actually threefold and lies in the way (1) French law
defines the relationship between international law and the domestic legal system,
(2) the French judicial system operates, and (3) the courts formulate and state the
reasons on which they base their adjudicatory acts.
Even though France is formally a monist state,1 the precise relationship between
international law and the domestic legal system depends on the source of interna-
tional law considered.2 According to Article 55 of the French Constitution, “Treaties
or agreements duly ratified or approved shall, upon publication, prevail over Acts of
Parliament, subject, with respect to each agreement or treaty, to its application by the
other party.”3 In mentioning only the treaties, this provision seems to leave aside
other sources such as the decisions issued by international courts. Despite the fact
that these acts derive their authority from the international agreements establishing
the courts, the French case law shows that their respective status cannot be assim-
ilated. The preamble to the Constitution of 1946, which is part of the so-called block
of constitutionality, further acknowledges in its paragraph 14 that “The French
Republic, faithful to its traditions, shall respect the rules of public international
law.”4 This is a rather obscure phrase generally interpreted as referring only to
international customary law5 but that still seems to leave some room for dynamic
interpretation. Ultimately, it is the national judge who conceives the precise articu-
lation between domestic law and international decisions. And this articulation is
multifaceted. For instance, as far as the reception of a human rights treaty as
interpreted by an international court is concerned, it depends not only on the
hierarchy of norms but also on the willingness of the domestic courts to base their
reasoning on the provisions considered. Even if a human rights treaty is applicable to
the dispute and invoked by one of its parties, the French judges do not necessarily
refer to it when a substantially identical national legal provision enables them to
settle the dispute. This attachment to subsidiarity6 has been famously summed up by
1
For a critical appraisal, see Pellet (2006).
2
For a general presentation of the status of international law within the French legal order see
Decaux (2011).
3
Official translation. Available via http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
english/constitution/constitution-of-4-october-1958.25742.html. Accessed 11 Oct 2017.
4
Ibid.
5
CE, Sect Soc, Nachfolger Navigation Company, judgment of 23 Oct 1987, no 72951; CE,
Aquarone, judgment of 6 June 1997, no 148683.
6
See Touze Introduction (2015a).
France 455
Advocate General Jéol in relation to the European Convention on Human Rights:

“there is no need to go get in Strasbourg what you can find in Paris.”7
The picture of the reception of international judicial decisions by French courts is
furthermore “blurred” by the work division that the latter established between
themselves. In that regard, the present report will focus on the case law of the
Constitutional Council (Conseil constitutionnel), the Court of Cassation (Cour de
cassation) as the supreme court of the judicial legal order, and the Council of State
(Conseil d’Etat) as the supreme court of the administrative legal order. Since the
famous IVG case decided by the Conseil constitutionnel,8 the “ordinary” courts,
headed by the Court of Cassation and the Conseil d’Etat, have been in charge of
reviewing the conflicts between statutes and international agreement (the so-called
control of conventionality). The Constitutional Council, conceived by the French
Constitution neither as a supreme court nor as a constitutional court stricto sensu, has
the monopoly in reviewing the constitutionality of statutes and international agree-
ments. More precisely, the latter has decided in the abovementioned decision that it
is not responsible for controlling the compatibility of statutes with international law.
This is one of the reasons why its position cannot be compared to that of other—
foreign—constitutional judges. But it most importantly explains why, within the
French judicial system, the reception of international decisions on human rights does
not operate in the same way at the different levels and in the case law of the different
courts.
As to the formulation of the adjudicatory act, the tradition of the imperatoria
brevitas and Montesquieu’s concept of the judge as la bouche qui prononce les
paroles de la loi9 have such a deep influence on the way judicial power is defined in
France that the supreme courts understand their judicial function to be about
affirming the applicable law and not about justifying the final solution. This is in
turn supported by the way the work division with the lower courts is conceived: the
supreme courts, as well as the Constitutional “Court,” pay attention only to the
applicable law, the facts being assessed by the lower courts at their sole discretion.
Consequently, the decisions are very short and concise, French judges considering
that they do not have to explain their decision by providing all the elements that may
have influenced their reasoning. Thus, the reading of the sole text of a judgment does
not suffice for understanding to what extent the French courts take into account
international decisions on human rights. There is also a need to consult further
information, which the courts now often provide themselves (arguments annexed
to the decisions, regular newsletters) or which can be found in documents issued
during the proceedings (the opinion of the avocat général, the report of the rappor-
teur, etc.).
7
Cited by Genevois (2007). Our translation.
8
CC, Interruption volontaire de grossesse (Termination of Pregnancy case), judgment of 15 Jan
1975, 74-54 DC.
9
[T]he mouth that utters the words of the law. Our translation.
The reception of international decisions on human rights therefore needs to be

addressed in two different ways: first the rare express references to international
decisions have to be identified (below, Sect. 2) before addressing the more complex
issue of implicit references (Sect. 3).
On the whole, the case law of the French courts illustrates the differing degree to
which domestic courts use international human rights decisions, a degree that varies
between a real domestic implementation worthy of its name and a more or less
assumed reception.
2 Express References
As has already been stated, express references to international decisions on human

rights are rarely to be found in the case law of French courts. Two different types can
nevertheless be distinguished: express references to the authority and legal effects of
a certain category of international decisions on human rights (Sect. 2.1) and express
references to individual decisions on human rights (Sect. 2.2).
2.1 Express Reference to the Authority and Legal Effects

of International Decisions on Human Rights
Among the express references, a further distinction has to be drawn between the
authority of a decision issued in disputes concerning other states (res interpretata)
and the authority and legal effects of a decision settling a dispute to which France
was a party (res judicata).
2.1.1 The Res Interpretata of International Decisions on Human Rights
As regards the authority of the decisions of the European Court of Human Rights
(ECtHR), predominant in French case law, the highest courts adopt different posi-
tions. According to the Cour de cassation, the decisions of the ECtHR have an erga
omnes effect: all the states and not only the party/parties to the dispute are obliged to
comply with the decisions.10 It moreover confirms that the domestic courts are
obliged to take into account the autonomous concepts defined by the ECtHR,11
which represent decisive legal vehicles to harmonize the implementation of the
Convention in the different national legal orders. In addition, the Cour de cassation
10
Cass, Ass Plén, judgment of 15 Apr 2011, no 10-17.049.
11
Cass, Soc, judgment of 21 Mar 2012, no 04-47.532 (notion of property according to Art 1 Protocol
No 1 ECHR).
France 457
acknowledges that the contracting states are bound to respect the decisions imme-
diately, meaning that they cannot wait to be themselves singled out by the ECtHR or
to have modified their legislation.12 This res interpretata was not easily accepted by
the Conseil d’Etat, which initially took some liberties with the interpretation of the
European Convention.13 It still insists on the relative character of the res judicata14
of individual decisions but nonetheless applies articles of the European Convention
on Human Rights (ECHR) as interpreted by the ECtHR.15
It may, however, be asserted that the status of ECtHR judgments as res
interpretata has to some extent been driven by the privileged position of the
judgments of the European Court of Justice (ECJ). Indeed, the articulation with
the Law of the European Union operates differently in view of a specific constitu-
tional provision. According to Article 88-1 Constitution 1958, “The Republic shall
participate in the European Union constituted by states which have freely chosen to
exercise some of their powers in common by virtue of the Treaty on European Union
and of the Treaty on the Functioning of the European Union, as they result from the
treaty signed in Lisbon on 13 December, 2007.” The Conseil constitutionnel has
declared that “the drafters of this provision thus formally acknowledged the exis-
tence of a Community legal order integrated into the domestic legal order and
distinct from the international legal order.”16 The reception of decisions of the
ECJ is therefore based on a logic of integration, which renders compliance with
the European case law even more necessary. The supreme interpretative role of the
ECJ appears, for instance, through the acceptance by the Conseil d’Etat of the
primacy of general principles of EU law (many of which concern human rights)
spelt out by the ECJ.17 This res interpretata of ECJ judgments operates in a
particular institutional and legal context in which the preliminary ruling mechanism
plays a significant role.18 One may therefore expect that the similar mechanism
provided for by Protocol 16 to the ECHR cannot but strengthen the position of the
ECtHR case law before French courts.
2.1.2 The Res Judicata of International Decisions on Human Rights
As regards the definition of the res judicata of international decisions on human

rights, it is again the ECtHR that is the most present in the case law of the French
domestic courts. The Cour de cassation and the Conseil d’Etat agree that in the case
12
13
CE, judgment of 27 Oct 1978, no 07103.
14
For example CE, judgment of 25 May 2007, no 296327.
15
CE, judgment of 25 May 2007, no 296327 and judgment of 6 May 2015, no 377487.
16
CC, The Treaty establishing a Constitution for Europe, judgment of 19 Nov 2004, no 2004-
505 DC.
17
CE, SNIP, judgment of 3 Dec 2001, no 226514.
18
Art 267 TFEU; ECJ, Da Costa en Schaake, judgment of 23 Mar 1963, ECLI:EU:C:1963:6.
of findings of violations of the European Convention, the state party is obliged to put
an end to the violations and to, as far as possible, erase their consequences.19
However, the Cour de cassation and the Conseil d’Etat both declare that while the
decisions of the ECtHR enable the victim to ask for reparation, they have no direct
incidence on the regularity of the decisions rendered by domestic courts.20 As a
matter of fact, they consider that the obligation to execute a decision of the ECtHR
does not imply a right to reexamination of the case in favor of the victims.21 This
position is actually consistent with the case law of the ECtHR since the latter
regularly reiterates the “essentially declaratory nature” of its judgments, as well as
the “discretion as to the manner of execution of a judgment,”22 the only exception
being the case in which “by its very nature, the violation found [. . .] does not leave
any real choice as to the measures required to remedy it.”23 In this regard, the French
Parliament, through the adoption of an act in 2000, has first introduced a right to
reexamination in criminal matters.24 This right has been extended in 2016 to civil
proceedings for the purposes of compliance with the ECtHR case law relating to
gestational surrogacy.25 Indeed, even though the Act is applicable in all matters of
“personal status” (état des personnes), it was adopted after the ECtHR had specif-
ically tackled the absence of a possibility of reexamination of cases in which it had
found a violation of rights relating to gestational surrogacy.26 While it has already
been successfully applied to cases of gestational surrogacy,27 it remains to be seen to
what extent this new provision will be applicable to other civil matters such as
parentage. In spite of its rather defensive stance, the Conseil d’Etat has also admitted
that the finding of non-compliance with the European Convention constitutes a new
19
Cass, 1ère Civ, judgment of 26 Sept 2012, no 11-17.034; CE, Section du contentieux, Baumet,
judgment of 4 Oct 2012, no 328502.
20
Cass, Crim, judgment of 3 Feb 1993, no 92-83.443; CE, Section du contentieux, Baumet,
judgment of 4 Oct 2012, no 328502; for a commentary of the latter decision cf Touze Les grandes
décisions de la jurisprudence française de droit international public (2015b).
21
CE, Chevrol, judgment of 11 Feb 2004, no 257682; Cass, Soc, judgment of 30 Sept 2005, no
04-47.130.
22
ECtHR, Assanidze v Georgia, judgment of 8 Apr 2004, no 71503/01, para 202.
23
Ibid.
24
Art 626-1 Code of criminal procedure (Act No 2000-516 of 15 June 2000, Art 89 Official Journal
of 16 June 2000): The reconsideration of a final criminal decision may be requested for the benefit
of any person judged guilty of an offence, where this conviction is held, in a judgment given by the
European Court of Human Rights, to have been declared in violation of the provisions of the
Convention for the Protection of Human Rights and Fundamental Freedoms, or its additional
Protocols, and where the declared violation, by its nature or seriousness, has led to harmful
repercussions for the convicted person, which the “just satisfaction” granted under Art 41 of the
Convention cannot bring to an end (English translation provided by https://www.legifrance.gouvfr/
Traductions/en-English/Legifrance-translations). Accessed 11 Oct 2017.
25
Act n 2016-1547 of 18 Nov 2016 of Modernization of Justice in the twenty-first Century. The
implementing Decree entered into force on 15 May 2017.
26
ECtHR, Foulon et Bouvet c. France, judgment of 21 July 2016, no 9063/14.
27
Court of reexamination, judgments of 17 Feb 2018, nos 17 RDH 001 and 002.
France 459
fact that enables the victims to submit a request for lifting administrative sanctions.
In its assembly decision on the Vernes case, the Conseil d’Etat indeed stated that,
upon the claimant’s request, a French regulatory authority (the Autorité des marches
financiers or AMF) must take into account the ECtHR’s decision.28 Even if it is not
obliged to overturn its prior decision, the administrative body has to consider the
findings of the Court to decide whether the sanction currently enforced should be
waived or adapted in order to comply with the ECHR.
However, French courts draw a clear line between international courts such as the
ECtHR on the one hand and human rights treaty bodies on the other. For instance,
the Conseil d’Etat has stressed on several occasions that the positions of the UN
Human Rights Committee are not legally binding for the state they are addressed
to.29 This is notwithstanding the Human Rights Committee’s more nuanced position
according to which “it is an obligation for the State Party to adopt appropriate
measures to give legal effects to the views of the Committee as to the interpretation
and application of the Covenant in particular cases arising under the Optional
Protocol”30 but also the view of the ICJ that analyzes the Committee’s practice as
“jurisprudence.”31 This is supported by a widely shared view in the legal literature
according to which even though they do not have proper res judicata effect, the
decisions of the Committee have a certain legal authority.32 However, another factor
must be taken on board when trying to understand the underrepresentation of the
practice of human rights treaty bodies in French case law: it cannot be disputed that
the case law of the ECtHR largely overshadows the practice of other international
human rights quasi-judicial bodies such as the UN Human Rights Committee.
2.2 Express Reference to Individual International Decisions

on Human Rights
It appears that express references to individual international decisions by French

courts concentrate on some rights in particular and above all on the right to fair trial
protected by Article 6 of the European Convention on Human Rights (ECHR).
France was indeed numerous times held in violation of the right to fair trial by the
ECtHR,33 and the case law reflects the difficulties that lied and, for some, still lie in
28
CE, Ass, Vernes, judgment of 30 July 2014, no 358564.
29
CE, judgment of 3 Nov 2003, no 239559; CE, Juge des référés, judgment of 11 Oct 2001, no
238849.
30
HRCtee, Bradshaw v Barbados, 19 July 1994, communication no 489/1992.
31
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (merits),
judgment of 30 Nov 2010, ICJ Reports 2010, 639, para 66.
32
Decaux (2009), Sudre (2015), p. 606; Santulli (2005), p. 19.
33
Cf i.e. the country profile issued by the ECtHR, http://www.echr.coe.int/Documents/CP_France_
ENG.pdf. Accessed 11 Oct 2017.
the articulation of the requirements of the ECHR and the particularism of the French
legal system.
The express references moreover pursue different purposes. They appear, for
example, when there is a need to address a lack of legal protection in the national
legislation. This was famously the case in France with the right of access to a defense
council during police custody. The Cour de cassation recognized this right by taking
note of the Salduz v Turkey and Dayanan v Turkey cases and by acknowledging the
ECtHR’s interpretation of Article 6 (1) ECHR.34 The Cour de cassation not only
followed the solution of the international decisions considered but moreover took
into account the precise reasoning of the European Court by mentioning that its
interpretation aimed at rendering the right to fair trial effective and concrete.35 But in
1984, it had already acknowledged under Article 6 (1), “as interpreted by a decision
of the European Human Courts dated 23rd June 1981,” the right to public hearing of
a lawyer subject to disciplinary proceedings.36
In addition to recognizing the rights identified by the ECtHR and Commission
under the ECHR, the French domestic courts also occasionally refer to the ECtHR’s
case law in order to give a concrete example of non-compliance. The Cour de
cassation, for instance, referred to the Wiggins v United Kingdom case to determine
an unjustified interference with the exercise of the right to property,37 the concept of
property being an autonomous concept the precise content of which has been shaped
by the ECtHR.
By following the interpretations of the European Court and Commission, the
French courts rely not only on the definition of terms but also on the legal tech-
niques. The Cour de cassation expressly cited the Sporrong and Lönnroth v Sweden
case of the ECtHR to justify the fair balance to be struck between the requirements of
the general interest and the protection of the fundamental rights of the individual
under Article 1 of the First Protocol to the European Convention.38 The way public
interest is to be taken into account in cases on the right to respect for private life has
also been deduced from a concrete example of the ECtHR case law.39
Explicit reference can also be found in decisions that need to address more
generally the articulation between human rights and general international law as
can be seen, for instance, with the articulation between Article 6 (1) ECHR (access to
a judge) and the general rules on state immunities. The Cour de cassation relied on a
series of decisions of the ECtHR to justify the frequently disputed and sensitive issue
34
35
Ibid.
36
Cass, 1e civ, judgment of 10 Jan 1984, no 82-16.968.
37
Cass, 2e civ, judgment of 23 Oct 2014, no 13-23.107.
38
Ibid. Other examples of direct references to ECtHR decisions on the right of property include:
Cass, 1e civ, judgment of 17 Jan 2018, no 16-25.146; Cass 1e civ, judgment of 30 Nov 2016, no
15-21.946.
39
Cass, 1e civ, judgment of 1 Mar 2017, no 15-22.946.
France 461
of compliance between the right to fair trial and immunity rules.40 Moreover, the
same Court referred to a decision of the ECtHR to justify the applicability of a
French reservation to the ECHR.41
However, because of the abovementioned work division between the ordinary
courts and the Conseil constitutionnel, the latter hardly ever gets the chance to
address international human rights law. Thus, most of its references to international
case law are implicit. There is, however, one exception: the Council included the
Leyla Sahin v Turkey judgment42 in the visas43 of its decision on the constitutionality
of the European Constitution.44 Underlining that the freedom to manifest one’s
religious beliefs under the European Charter of Fundamental Rights (EChFR) is
going to be interpreted the same way as under the ECHR, the reference to the
abovementioned decision in particular and to the case law of the ECtHR on the
freedom to manifest one’s religious beliefs in general enabled it to conclude that the
French constitutional tradition of secularism—laïcité—would be preserved.
Explicit reliance on international judicial decisions on human rights is even more
important but still constitutes no constant practice in cases in which France has been
declared by the ECtHR to be in breach of the Convention. Such a reference can be
limited to the sole “visa” of the judgment.45 Beyond that, French courts also accept
to take into account the finding of non-compliance with the ECHR and recognize its
precise legal effects in the national order.46 They most notably leave aside national
provisions that have been found in breach with the ECHR and overturn judgments of
lower courts that apply these provisions to the domestic dispute.47
A few explicit references to human rights decisions of the Court of Justice of the
European Union (ECJ) are finally to be mentioned. While the ECHR is still the
reference in French case law, the attention of domestic courts has nevertheless been
drawn in recent years to the law of the European Union, which has become more
visible with the adoption of the EChFR. Thus, in examining the validity of a
40
Cass, 1e civ, judgment of 28 Mar 2013, no 11-10.450 citing ECtHR, Al-Adsani v United
Kingdom, judgment of 21 Nov 2001, no 35763/97; ECtHR, Forgaty v United Kingdom, judgment
of 21 Nov 2001, no 37112/97; ECtHR, McElhinney v Ireland, judgment of 21 Nov 2001, no 31253/
96; ECtHR, Kalogeropoulou e.a. v Greece and Germany, judgment of 12 Dec 2002, no 59021/00;
ECtHR, Cudak v Lithuania, judgment of 23 Mar 2010, no 15869/02; ECtHR, Sabeh El Leil/France,
judgment of 29 June 2011, no 34869/05.
41
Cass, Crim, judgment of 22 Feb 2017, no 14-82.526; Cass, Crim, judgment of 6 Dec 2017, no
16-81.857.
42
ECtHR, Leyla Sahin v Turkey, judgment of 29 June 2004, no 4774/98. The decision of the
Constitutional Council was delivered before the judgment of the chamber was confirmed by the
Grand Chamber in the judgment of 10 Nov 2005.
43
“Visas” refers to the list of legal texts that the judicial body mentions before starting its reasoning.
44
CC, Traité établissant une Constitution pour l’Europe, 2004-505 DC, judgment of 19 Nov 2004.
45
Cass, Ass. plen., judgment of 16 Dec 2016, no 08-86.295.
46
Cass, Soc, judgment of 13 June 2007, no 05-43.225; CE, Section du contentieux, judgment of
4 Oct 2012, no 328502; CE, judgment of 1 Feb 2012, no 339388; CE, judgment of 1 Feb 2012, no
339387; CE, judgment of 15 Oct 2014, no 371538; CC, 2005-531 DC, 29 Dec 2005.
47
For instance Cass, Soc, judgment of 13 June 2007, no 05-43.225.
European directive according to the ECHR, the Conseil d’Etat took into account the
interpretation provided by the ECJ on the same question.48 It moreover referred to
the interpretations of provisions of the EChFR and of a European directive on
nondiscrimination issued by the European Court to assess the validity of a decree.49
For its part, the Cour de cassation cited a decision of the ECJ to define the principle
of the rights of defense.50
To sum it up, explicit references to international judicial decisions on human
rights by French courts are rather rare. Judicial restraint persists in that French courts
do not want to be seen as basing their reasoning on foreign sources. Thus, while they
very often refer to the applicable international treaty norm among the “visas” of the
judgment, they hardly ever refer to an international judicial decision in that same
section.51 “Judicial activism” toward the reception of international law emerges only
exceptionally in the context of the French legal system, as is shown by a recent
decision of the Court of Appeal of Noumea. Taking into account the specificity of
autochthon society in defining the nature of the damage suffered, the Court referred
to the case law of the Inter-American Court of Human Rights on “spiritual dam-
age,”52 despite the fact that this case law is clearly situated outside of the scope of
France’s international obligations. It is a singular technique, very unlikely to be
adopted by higher courts.
3 Implicit References
While the small number of express references might suggest that French courts
hardly ever base their reasoning on international case law, one must also pay
attention to the implicit reception that may be identified “between the lines” of
French judgments. Indeed, despite appearances, French case law implicitly con-
verges toward the relevant international practice (Sect. 3.1.). There are, however,
cases in which French judges may take implicit notice of an international decision
but at the same time assert their divergence with its content (Sect. 3.2).
48
CE, judgment of 10 Apr 2008, no 296845; ECJ, Ordre des barreaux francophones and
germanophone and Others, judgment of 26 June 2007, C-305/05, ECLI:EU:C:2007:383.
49
CE, judgment of 13 Mar 2013, no 352393; ECJ, Palacios de la Villa, judgment of 16 Oct 2007,
C-411/05, ECLI:EU:C:2007:604; ECJ, Prigge and Others, judgment of 13 Sept 2011, C-447/09,
ECLI:EU:C:2011:573.
50
Cass, Crim, judgment of 27 Nov 2013, no 12-86424; ECJ, Dow Chemical Ibéria, judgment of
17 Oct 1989, C-97/87, ECLI:EU:C:1989:380.
51
Few exceptions include: CE, Juge des référés, judgment of 6 Mar 2006, no 289947; CE, judgment
of 30 Mar 2016, no 395119.
52
CA Nouméa, Chambre coutumière, judgment of 20 Mar 2014, no 13/00068.
France 463
3.1 Implicit Convergences
Even though the Constitutional Council does not control the compatibility of
national legislative acts with international law,53 it appears that it considers interna-
tional law in an implicit way. This “dialogue without words,”54 as put by a former
member of the Council, shows that French judicial authorities do not necessarily
openly say that they are referring to international law—although they do. The same
applies to the two French highest courts, i.e. the Court of Cassation and the Conseil
d’Etat, which prove to be more open to international law and, particularly, to its
interpretation by judicial and quasi-judicial bodies than their scarce express refer-
ences would suggest. Even though there seems to be a difference of degree, rather
than of nature, between the attention paid by French judges to the case law of the
ECtHR (Sect. 3.1.1) and the practice of quasi-judicial bodies (Sect. 3.1.2), the
former’s higher presence in the reasoning of the French judges is worth
distinguishing its situation from that of the latter. As for the case law of the ECJ, it
does not seem necessary to identify the precise cases in which its decisions are
implicitly taken into account given the abovementioned particular status that the
French legal order is offering to the law of the European Union. Suffice it to say that
the French judge does not derogate to its tradition of imperatoria brevitas when
applying EU case law. Thus, most of its reliance on the case law of the ECJ is
implicit as is shown, for instance, in the KPMG case, in which the Conseil d’Etat
has, under the influence of the ECJ, widened the reach of the principle of legal
security.55
3.1.1 The Case of the ECtHR
The practice of the Constitutional Council on the one hand and that of the Court of
cassation and the Council of State on the other will be tackled separately since, as has
already been shown, they do not apply international law in the same way.
Implicit references of the Constitutional Council to international case law are
mostly used in order to interpret and expand the meaning of a given constitutional
norm. That is the case, for instance, for the obligation to deliver reasoned judgments
that lies on judicial authorities: implicit reliance on the case law of the ECtHR has
taken it to extend the meaning of the principle of legality of convictions and penalties
so as to cover the requirement to give reasons.56 The importance attributed to the
case law of the ECtHR, and in particular to the case Taxquet v Belgium, in which the
Court had clarified the requirements for a judgment to be compatible with the right to
53
Supra Sect. 1.
54
Dutheilleit de Lamothe (2009).
55
CE, Société KPMG et autres, judgment of 24 Mar 2006, no 288460.
56
CC, M. Xavier et autre, judgment of 1 Apr 2011, 2011-113/115 QPC.
a fair trial guaranteed under Article 6 ECHR,57 is particularly obvious in the analysis
published by the services of the Council.58 Thus, the implicit reference to interna-
tional case law is explicitly suggested by an “official” analysis of the Council’s
decision. Beyond that particular example, it is argued in French literature that the
case law of the ECtHR has contributed to the creation of “new” rights that were not
explicitly guaranteed by the French constitutional texts.59 These new rights, which
the Council has deduced from general national provisions, indeed correspond to
several rights guaranteed by the European Convention. In some cases, they match a
right that is explicitly guaranteed by the Convention such as the right to marriage
covered by Article 12 and which has been analyzed in France as an expression of the
more general right to personal freedom guaranteed by the 1789 Declaration. In other
cases, it is the ECtHR’s interpretation of a provision of the Convention that has
inspired the Council. For instance, the recognition of the right to have a “normal
family life” relies implicitly on the case law of the ECtHR relating to Article 8 and
the right to private and family life understood widely.60
As for the two highest courts, their situation is different because they are required
by Article 55 of the Constitution to control the compliance of statutes with interna-
tional law. Again, the fact that they do not display their reliance on international
judicial decisions does not mean that they do not accept to take them into account
implicitly. They do so in two situations, particularly, when it comes to fundamental
rights and freedoms.
First, the particular legal question raised by the French legal system may have
already been judged by the ECtHR. Both courts have proved to be very much
engaged with the ECtHR since the 1990s. Thus, French administrative law, for
instance, is deeply shaped by the case law of the ECtHR since there is a long list of
legal issues on which the Council of State has changed its position under the
influence of ECtHR judgments.61 Again, most of these cases deal with the right to
a fair trial as enshrined in Article 6 ECHR. While the evolution of the status of the
public “rapporteur” before administrative tribunals under the influence of the ECtHR
is due both to a change of the law by the government and to an adaptation by the
Council of State,62 the evolution of the role of the Ministry of Foreign Affairs in the
interpretation of international agreements63 is entirely due to a change of the
57
ECtHR, Taxquet v Blegique, judgment of 16 Nov 2010, no 926/05, para 84.
58
Commentaire aux Cahiers sur la décision M. Xavier et autre, judgment of 1 Apr 2011, 2011-113/
115 QPC.
59
Dutheilleit de Lamothe (2009).
60
CC, 93-325 DC, 13 Aug 1993.
61
For such a list, see Sauve (2010).
62
See in particular the judgments of the ECtHR, Kress v France, judgment of 7 June 2001, no
39594/98; Martinie v France, judgment 12 Apr 2006, no 58675/00; Union fédérale des
consommateurs “Que choisir” de Côte d’Or v France, judgment 30 June 2009, no 39699/03;
Marc-Antoine v France, judgment 4 June 2013, no 54984/09.
63
CE, Ass, GISTI, judgment of 29 June 1990, no 78519; Ass, Cheriet-Benseghir, judgment 9 July
2010, no 317747.
France 465
administrative judge’s mindset. This shows how the French judge directly “learns
the lessons” of the ECtHR without having to refer to it in its judgments.64 As far as
the Court of Cassation is concerned, an illustration may be found in a judgment of
July 2, 200365: the Court of cassation changed its case law, stable since 1992,
concerning the function of the government commissioner in expropriation proceed-
ings without ever referring to the finding of non-compliance with Article 6 (1) ECHR;
the Yvon v France judgment was decided only three months earlier by the ECtHR.66
It has taken much more time for the government to change the relevant regulation by
the adoption of a decree on May 13, 2005, which was welcomed by the European
Court, along with the case law of the Court of Cassation.67 To take a more recent
example, in the Surrogate Motherhood case, the Court of Cassation, as well as the
Conseil d’Etat,68 followed the ECtHR decisions judging the former French legisla-
tion to be in breach of the Convention.69 However, neither of them referred explicitly
to the judgment of the ECtHR. Only the Advocate General of the Court of Cassation
addressed the case law of the ECtHR. This reference in a preparatory document
nevertheless allows inferring that the case law of the ECtHR has been weighed in the
discussions leading to the judgment.
Second, French tribunals may also implicitly take into account the
abovementioned interpretative authority of ECtHR judgments. Concerning the series
of four judgments delivered on April 15, 2011, on the issue of police custody,70 it
can be noticed that while it referred explicitly to the judgments Salduz v Turkey and
Dayanan v Turkey in only one of the four judgments,71 the Court of Cassation relied
implicitly on the ECtHR in the other three to interpret Article 6 (1) as including a
right of access to a defense council during police custody as required by the Court’s
case law. This type of implicit reliance is again very frequent in the fields of
international immunities, such as the immunities of international organizations.
For instance, in a judgment of February 11, 2009, relating to UNESCO’s immunity,
the Court of Cassation implicitly relies on the case law of the ECtHR, and particu-
larly on the reasoning developed in Waite and Kennedy v Germany,72 in considering
that there is no violation of Article 6 (1) if the international organization provides for
an alternative dispute settlement system.73
64
Sudre (2009).
65
Cass, judgment 2 July 2003, no 02-70.047.
66
No 44962/98.
67
ECtHR, Roux v France, judgment of 25 Apr 2006, no 16022/02, para 14.
68
Cass, judgment of 3 July 2015, no 14-21.323; CE, Association Juristes pour l’enfance et autres,
judgment of 12 Dec 2014, nos 367324, 366989, 366710, 365779, 367317 and 368861.
69
ECtHR, Mennesson v France, judgment of 26 June 2014, no 65192/11 and Labassée v France,
judgment of 26 June 2014, no 65941/11.
70
Judgments nos P 10- 17.049, F 10-30.313, J 10-30.316 and D 10-30.242.
71
See Sect. 1.
72
ECtHR, Waite and Kennedy v Germany, judgment of 18 Feb 1999, no 26083/94.
73
Cass, De Beaugrenier v Unesco, judgment of 11 Feb 2009, no 07-44240.
3.1.2 The Case of the UN Human Rights Committee

and of the European Committee on Social Rights
As regards the Human Rights Committee, what is more striking than the absence of
express references in the French judgments is that the parties to the dispute them-
selves seem to ignore the practice of the Committee. Thus, it has been observed in
2006 that only one judgment refers to the practice of the Committee as being relied
on by one of the parties.74 More recently, however, there have been a few cases—all
of them on criminal matters—in which the parties actually refer to its practice75 or in
which the Court at least mentions the parties’ argument in that sense. In all these
cases, it can be assumed that the Committee’s practice has implicitly been taken into
consideration—but not necessarily followed. Apart from that, there is little indica-
tion that the practice of the Human Rights Committee exerts an important influence
on the French judges. But again, that is due both to the central position of the
ECtHR, even during the legal training, and to the substantial proximity of the rights
protected within the European and the UN systems rather than to a disdain for the
latter.
As for the European Committee of Social Rights, France has ratified the Revised
European Social Charter (ESC) and accepted the 1995 Additional Protocol
establishing a system of collective complaints on May 7, 1999, but has not yet
made a declaration enabling national NGOs to submit collective complaints. How-
ever, the first case in which the Cour de cassation refers to the Social Charter dates
back only to 2010.76 While it had shown reluctance toward the Charter for years, the
Conseil d’Etat has initiated a turn in 2014 by recognizing that one of its provisions—
Article 24 relating to the right to protection in cases of termination of employment—
is directly applicable.77 This allows to expect that the high administrative judge will
pay greater attention to the reports and decisions of the Committee in the future.
Even though applying directly the provisions of the Charter is not the same as relying
explicitly on the practice of the Committee, it necessarily constitutes a prerequisite.
Research actually shows that in some cases, the Cour de cassation, as well as the
Conseil d’Etat, finds inspiration in the practice of the European Committee without
spelling it out. That was particularly noticed in a case concerning the daily rate in
which the Court of Cassation seemed to implicitly follow the reasoning of the
74
Laurent-Boutot (2006), p. 254, referring to the case of the Cour de cassation (criminal chamber),
judgment of 17 Mar 1999, no 98-80413.
75
Five cases have been identified that were delivered by the criminal chamber of the Court of
cassation: judgment of 7 Aug 2013, no 13-85.076; judgment of 23 Oct 2013, no 13-83.499;
judgment of 20 May 2014, no 14-83.138; judgment of 4 Mar 2015, no 14-87.380; judgment of
8 Sept 2015, no 14-83.380.
76
Cass, Soc, judgment of 14 Apr 2010, no 09-60.426 and 09-60.429: the Court judged that Art
5 ESC is not incompatible with some form of trade union representation.
77
CE, judgment of 10 Feb 2014, no 358992.
France 467
Committee.78 The decision of the Social Chamber of the Court was delivered only a
few months after the Committee had ruled against France in this matter.79 It must,
however, be stressed that the implicit reliance may be due to the fact that in the
concerned matter, EU law referred explicitly to the ESC.80 There are many other
examples showing that the Cour de cassation endeavors through its margin of
interpretation to reach compliance with the Committee’s understanding of the
Charter. For instance, the Committee had first considered that French law was in
violation of Article 8 (2) ESC in that it did not provide for the possibility for a
dismissed employee in contravention of Article L.122.25.2 of the Labour Code to
apply to be reinstated in her former position. Then in its 2003 Conclusions
concerning France, it took note of a judgment of the Court of Cassation of October
9, 2001, which, by adding this legal requirement, brought the French legal system
into compliance with Article 8 (2).81
Even though the Conseil d’Etat has long been reluctant to apply directly the
provisions of the Social Charter, there is evidence that it did not ignore the decisions
of the Committee but used them as a guidance to interpret national rules. However, it
is to be noticed that this reception is purely informal and does not amount to a
consistent interpretation technique that would give a legal status to the international
norm at stake. For instance, after the European Committee has rendered its decision
on the merits of November 3, 2004, in the case International Federation of Human
Rights Leagues (FIDH) v France,82 the Conseil d’Etat contributed to ensure com-
pliance with the Charter.83 The Committee itself notes that a decision of the Conseil
d’Etat, taken together with an administrative document released by the government,
has brought the situation into conformity.84 What is worth noticing in that particular
judgment is that the Council puts aside the relevant provisions of the Charter
considering that they are not directly applicable. However, through the implicit
and informal reception technique, it eventually reaches the same conclusion as the
Committee concerning the illegality of the discussed provisions.
In all these cases, French courts implicitly opt for compliance with international
practice, even where it is a quasi-judicial one. In other words, they do not wait for the
government or parliament to change the law in the first place and endeavor to
interpret the existing law in accordance with the interpretation issued by an interna-
tional body. It may thus be asserted that these judges conceive themselves as
78
Cass, Soc, judgment of 29 June 2011, no 09-71.107, see the more general study by Akandji-
Kombe (2012).
79
European Committee of Social Rights, CGT v France, no 55/2009 and CGC v France, no
56/2009, 23 June 2010.
80
Art 151 of the TFEU states that “the Union and the Member States, having in mind fundamental
social rights such as those set out in the European Social Charter signed at Turin on 18 October
1961. . ., shall have as their objectives the promotion of employment. . ..”
81
Cass, Soc, Mrs Hille v société SVP Service, judgment of 9 Oct 2001, no 99-44.353.
82
Complaint no 14/2003.
83
CE, judgment of 7 June 2006, no 285576.
84
ESCR (2012), Conclusions 2011 (France).
responsible for compliance not only with treaty law but also with the decisions of
international bodies. Nonetheless, this is not always possible or wanted, and there are
situations in which French courts remain in a persistent divergence.
3.2 Implicit Divergences
In some cases, French judges decided to adopt an interpretation of a treaty provision

that differs from that given by the relevant international body without saying so. To
put it differently, even though the international decision is implicitly taken into
consideration, it is not followed or complied with. This calls for a clarification of the
concept of “reception”: it does not necessarily mean that the national tribunal
complies with the interpretation given by an international body. It simply means
that the international decision is not ignored, that it is even considered during the
deliberation of the national judges. Thus, a “reception” can also result in a divergent
jurisprudence or interpretation. Whether the divergence can still be justified or even
represents in itself a breach of international obligations is a different question. For
instance, there are cases in which French tribunals adopt an autonomous interpreta-
tion of the provisions of the ECHR without, however, explicitly pointing it out. A
judgment delivered on February 5, 1999, shows that this does not necessarily call
into question the protection provided by the Convention: the Plenary Chamber of the
Court of cassation adopted an interpretation of Article 6 ECHR by the ECtHR going
beyond what the European Court had established.85 In other words, it adopts a more
protective approach of the right to a fair trial.
The Constitutional Council may also deliberately depart from some positions of
the ECtHR. As far as the ne bis in idem principle is concerned, a decision known as
the “EADS decision”86 is worth mentioning in that the Constitutional Council seems
to be aware of its theoretical divergence with the European Court. The Council does
not give constitutional value to the principle non bis in idem as the case law of the
European Court would strictly require,87 but it does consider that in this particular
case, the applicable legislative provision is contrary to the constitutional principle of
necessity of criminal offences and penalties. In so doing, its solution converges
toward the position of the ECtHR. This is an example of a situation where the French
judges are not ready to comply entirely with an international decision but where they
nevertheless take it into consideration. This is all the more obvious in the present
85
No 97-16440.
86
CC, M. John L. et autres, judgment of 18 Mar 2015, 2014-453/454 QPC and 2015-462 QPC.
87
ECtHR, Sergueï Zolotoukhine v Russia, judgment of 10 Feb 2009, no 14939/03; see also ECtHR,
Grande Stevens v Italy, judgment of 4 Mar 2014, nos 18640/10, 18647/10 and 18663/10.
France 469
case since the “authorized” analysis of the decision, published by the administrative
services of the Council, explicitly refers to the case law of the ECtHR.88
That reception does not necessarily lead to a complete convergence between the
practice of international bodies, and national case law can also be seen in the case of
the practice of the UN Committee of Human Rights. In the Singh case, regarding the
freedom of religion, Mr. Bikramit Singh submitted his case to the UN Human Rights
Committee after he was prevented from wearing his keski, a sort of turban, in the
classroom. The Committee concluded that by implementing its controversial law on
secularism in public buildings introduced by Act No. 2004-228, France was in
breach of Article 18 ICCPR.89 This conclusion, however, challenges the consistent
legal practice of a state in which the principle of secularism—laïcité—is raised to a
foundational status. Furthermore, the opinion of the Committee runs counter not
only to the position adopted by the domestic law as interpreted by the Constitutional
Council (which considered that the 2004 Act on religious signs is compatible with
the rights guaranteed by the Constitution) but also to that of the ECtHR itself.
Indeed, given that the latter has judged that the 2004 Act is not in breach of the
European Convention,90 national authorities, and judges in particular, do not feel
compelled by the UN body’s contrary position. This is confirmed by the fact that no
legal proceeding has been initiated before French courts after the opinion of the
Committee in the Singh case.
4 Conclusion
By way of a conclusion, the French case law shows that even though the tribunals
hardly ever refer explicitly to the practice of international bodies, the latter are not
totally absent from their reasoning. Thus, besides the explicit and obvious mentions
of international practice in national judgments, one must look for indirect and
implicit references by taking into consideration the influence that is exerted in an
informal manner and that cannot be quantified otherwise than through deep knowl-
edge of the national case law and of its evolution.
88
“Commentaire,” in the Cahiers du Conseil constitutionnel, available via http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/root/bank/download/2014453_
454QPCet2015462QPC2014453_454_462qpc_ccc.pdf. Accessed 2 Feb 2017.
89
HRCtee, Bikramjit Singh v France, communication no 1852/2008, UN Doc. CCPR/C/106/D/
1852/2008 (2013).
90
See also the first case on the issue ECtHR, Dogru v France, judgment of 4 Dec 2008, no 27058/05.
References
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sur le Conseil constitutionnel. Available via http://www.conseil-constitutionnel.fr/conseil-
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en l’honneur du président Bruno Genevois. Dalloz, Paris, pp 1015–1032
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décisions de la jurisprudence française de droit international public. Dalloz, Paris, pp 708–716
Germany
Domestic Courts as International Human Rights
Courts: A German Perspective
Thilo Rensmann
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
2 German Courts and the Internalisation of International Human Rights . . . . . . . . . . . . . . . . . . . . 473
2.1 The Incomplete Entrenchment of Human Rights in the Basic Law . . . . . . . . . . . . . . . . . 473
2.2 The Judiciary’s Initial Failure to Take Human Rights Seriously . . . . . . . . . . . . . . . . . . . . 475
2.3 The Completion of the ‘Human Rights Revolution’ in Lüth . . . . . . . . . . . . . . . . . . . . . . . . . 477
2.3.1 Impunity for a Crime Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
2.3.2 Re-establishing Trust in the Trustees of International Human Rights . . . . . . . 478
2.4 The Federal Constitutional Court as an International Human Rights Court . . . . . . . . . 480
3 German Courts and the Rise of Treaty-Based Human Rights Protection . . . . . . . . . . . . . . . . . . 483
3.1 Princess Caroline and the Federal Constitutional Court’s Loss of Exclusive
Guardianship of International Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
3.2 Görgülü: The Federal Constitutional Court Reasserts Control Over International
Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
3.2.1 Establishing Itself as the Ultimate Domestic Guardian of the European
Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
3.2.2 Claiming the ‘Last Word’ in the Dialogue with the European Court
of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
3.2.3 Transforming the Duty to Abide by Judgments of the European Court
of Human Rights into a Duty to Take into Account . . . . . . . . . . . . . . . . . . . . . . . . . 490
3.3 Exercising ‘Joint Responsibility’ in a Constructive Dialogue . . . . . . . . . . . . . . . . . . . . . . . 492
4 Summary and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
T. Rensmann (*)
University of Augsburg, Augsburg, Germany
e-mail: thilo.rensmann@jura.uni-augsburg.de

https://doi.org/10.1007/978-3-319-94848-5_19
472 T. Rensmann
1 Introduction
Less than 6 months after the proclamation of the Universal Declaration of Human
Rights (UDHR),1 the Federal Republic of Germany (FRG) incorporated key ele-
ments of the emerging ‘value system’ of international human rights2 into its new
constitution, the Basic Law.3
Echoing the UDHR almost in haec verba,4 the very first article of the 1949 Basic
Law recognises human dignity as the highest constitutional value5 and acknowl-
edges ‘inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world’.6 This unequivocal commitment to human dignity
and universal human rights is explicitly protected against constitutional amendment7
and therefore belongs to the ‘eternal’ principles of the Basic Law which define the
‘constitutional identity’ of the FRG.8
The fundamental rights emanating from this solemn pledge to human dignity and
universal human rights9 bind all three branches of government ‘as directly applicable
1
Universal Declaration of Human Rights [‘UDHR’], 10 Dec 1948, GA Res 217 (III), UN GAOR,
III, Resolutions, 71.
2
On the ‘value system’ of the UDHR, see infra 2.2.
3
Basic Law for the Federal Republic of Germany, 23 May 1949, Bundesgesetzblatt (Federal Law
Gazette) 1949, 1; English translation available at: https://www.gesetze-im-internet.de/englisch_gg/.
Accessed 15 May 2018.
4
UDHR, Preamble, para 1: ‘[R]ecognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and peace in the
world’.
5
As to the notion of ‘highest constitutional value’, see Bundesverfassungsgericht (Federal Consti-
tutional Court [‘FCC’]), BVerfGE 115, 118 (152).
6
Art 1.1 and 1.2 Basic Law read: ‘Human dignity shall be inviolable. . . . The German people
therefore acknowledge inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world.’
7
Art 79.3 Basic Law. See also FCC, BVerfGE 109, 279 (310); 94, 49 (102–103); 84, 90 (120–121):
‘Article 79.3 of the Basic Law prohibits amendments to the Basic Law that affect the principles laid
down in Articles 1 and 20 of the Basic Law. This includes not only the principle of respect for and
protection of human dignity anchored in Article 1.1 of the Basic Law. The acknowledgement of
inviolable and inalienable human rights as the basis of the human community, peace and justice
contained in Article 1.2 of the Basic Law also becomes important in that regard; in conjunction with
the reference to the following fundamental rights contained in Article 1.3 of the Basic Law, the
guarantees of these rights are in principle immune to restriction since they are indispensable to the
maintenance of an order in compliance with Articles 1.1 and 1.2 of the Basic Law.’ (English
translation: Bröhmer et al. (2012), p. 709).
8
As to Art 79.3 Basic Law as a guarantee of ‘eternal’ principles or values and the notion of
‘constitutional identity’, see FCC, BVerfGE 142, 123, § 21; 140, 317 (336–337); 123, 267
(343–344).
9
As to the fundamental rights entrenched in the Basic Law as an emanation of international human
rights, see FCC, BVerfGE 128, 326 (369).
Germany 473
law’.10 Their enforceability is guaranteed by an independent judiciary,11 which

includes, as the ultimate ‘guardian of the constitution’,12 a specialised Federal
Constitutional Court (FCC) vested with the power of judicial review.13
Thus, long before the rights and freedoms proclaimed in the UDHR became
binding as a matter of international law, they were endowed with full normativity
and justiciability under German law by virtue of having been ‘internalised’14 in
Germany’s 1949 constitution. German courts were therefore amongst the first to be
faced with the challenge of implementing the International Bill of Rights within their
domestic legal system. In this sense, the fledgling (West) German democracy was to
become a pilot project for the new role of domestic courts as ‘trustees’ of the
observance of international human rights.15
2 German Courts and the Internalisation of International

Human Rights
2.1 The Incomplete Entrenchment of Human Rights

in the Basic Law
The drafters of the Basic Law attached great importance to the UDHR not only
because it had been endorsed by the United Nations General Assembly but also
because it embodied a ‘common understanding of . . . essential rights and free-
doms’,16 which had almost miraculously bridged the deepening ideological divide
between East and West.17 Taking the UDHR as a reference point for drafting the bill
of rights of the new West German state was informed by the hope that a constitution
anchored in this international value consensus could serve as a basis for overcoming
German partition and reinstating Germany as an ‘equal partner’18 within the inter-
national community.19
At the same time, however, the mothers and fathers of the Basic Law were
determined not to repeat the mistakes that had led to the downfall of the Weimar
10
Art 1.3 Basic Law.
11
See Arts 19.4, 20.2, 20.3, 92–104 Basic Law.
12
See, e.g. FCC, BVerfGE 119, 247 (258). This notion can be traced back to Schmitt (1931).
13
Arts 93, 94, 100 Basic Law.
14
As to the concept of ‘internalisation’ see Koh (1996), p. 183.
15
On this notion, see Lauterpacht (1945), p. 185.
16
UDHR, Preamble, para 6.
17
As to the role played by the UDHR during the process of drafting the Basic Law, see Rensmann
(2007), pp. 25–42 with further references.
18
Basic Law, Preamble, para 2.
19
See Rensmann (2007), pp. 25–26.
474 T. Rensmann
Republic.20 The Achilles’ heel of the Weimar Constitution of 1919 was considered
to have been its procedural, relativistic approach to democracy and, in particular, the
weak normative power of fundamental rights. As a response, Article 1.3 of the Basic
Law, which immediately follows the quotation from the UDHR, declares the bill of
rights binding on ‘the legislature, the executive and the judiciary as directly appli-
cable law’.
In the eyes of the drafters of the Basic Law, the intention of transforming human
rights into ‘directly applicable law’, whilst at the same time shaping their normative
content in accordance with the UDHR, created a virtually irreconcilable conflict.
Strictly following the template of the UDHR would have required the inclusion of
social rights and other positive human rights dimensions.21 The goal of endowing
human rights with strict normativity and justiciability, however, seemed to militate
against the incorporation of such positive human rights dimensions, which under the
Weimar Constitution had been widely considered mere ‘programmatic’ provisions
devoid of any normative force.22
Whilst, in the end, social rights and other positive human rights obligations were
not explicitly included in the catalogue of fundamental rights,23 the travaux
préparatoires indicate that this restraint was not exclusively motivated by doubts
as to the justiciability of such rights.24 Equally important was the concern that in the
dire economic situation prevailing in Germany at the time, social rights would stir up
hopes which could not be fulfilled. In addition, the drafters were convinced that the
Basic Law would soon be superseded by a constitution for a reunified Germany,
which would then be properly legitimised to decide on the fundamental social and
economic policy issues raised by the entrenchment of social rights.
In the process of drafting the Basic Law, the issue of reconciling the program-
matic commitment to human dignity and universal human rights on the one hand,
with the strict normativity of the new constitution on the other, thus remained largely
unresolved. The task of completing the ‘human rights revolution’25 proclaimed in
the first two sections of Article 1 of the Basic Law was therefore left to the judiciary,
and in particular the FCC.
20
See Rensmann (2007), pp. 33–34.
21
Cf Arts 22–28 UDHR.
22
See Rensmann (2007), pp. 53–62 with further references.
23
One of the few exceptions is Art 6.4 Basic Law according to which ‘[e]very mother shall be
entitled to the protection and care of the community’.
24
See Rensmann (2007), pp. 34–36, 40–42.
25
Cf Sohn (1982–1983), p. 1.
Germany 475
2.2 The Judiciary’s Initial Failure to Take Human Rights

Seriously
Initially, however, the judiciary and legal scholarship in post-war Germany struggled
to grasp and accept the far-reaching conceptual consequences of the constitutional
pledge to human dignity and the emerging body of international human rights law.
The UDHR had marked a paradigm shift in the evolution of human rights and
modern constitutionalism. It is built on a ‘value system’26 in which human dignity as
the highest value27 overarches the trinity of freedom, equality and brotherhood28
(or ‘solidarity’ in modern parlance). The drafters of the UDHR had lost the liberal
optimism that the free interplay of societal forces would be sufficient to guarantee
‘freedom from fear’ and ‘freedom from want’.29 The reach of human rights is
therefore no longer limited to ensuring ‘freedom’ in the sense of the individual’s
‘right to be let alone’30 by the state but extends to those societal conditions that are
‘indispensable’ for the ‘free and full development of the human personality’.31
This communitarian vision of ‘freedom in dignity’ changes the substantive ambit
and structure of human rights in two essential ways.
Firstly, in addition to the classical negative rights of the enlightenment period, the
UDHR also guarantees ‘economic, social and cultural rights’.32 All human rights—
liberal and social rights—are considered equally fundamental; they are ‘indivisible,
interdependent and interrelated’.33
Secondly, by tearing down the wall of separation established by the liberal human
rights conception between the governmental and societal spheres,34 human rights are
endowed with an additional constitutive and ‘transformative’35 dimension. This
finds its clearest expression in Article 28 UDHR, according to which ‘everyone is
entitled to a social and international order in which the rights and freedoms set forth
in th[e] [UDHR] can be fully realised’. Human rights are thus understood not only as
26
As to the conceptualisation of the UDHR as a ‘value system’ see Cassin (1951), pp. 277–279;
Glendon (2001), pp. 173–191; Rensmann (2007), pp. 18–21.
27
Art 1 Sentence 1; Preamble, para 1 UDHR.
28
Art 1 Sentences 1 and 2 UDHR.
29
See Preamble, para 2 UDHR (quoting Roosevelt’s Four Freedoms).
30
Cf Warren and Brandeis (1890).
31
Art 22 UDHR.
32
Arts 22, 23–27 UDHR.
33
Thus the formulation in the Vienna Declaration and Programme of Action, 25 June 1993, (1993)
32 ILM 1661, Chapter I, para 5.
34
Carl Schmitt describes this as the ‘fundamental distributive principle’ ( fundamentales
Verteilungsprinzip) of the liberal human rights conception, see Schmitt (1927), p. 164; English
translation: Seitzer (2008), p. 203.
35
As to human rights as the basis of ‘transformative constitutionalism’, see Hailbronner (2017),
pp. 527–565.
476 T. Rensmann
individual rights but also as normative ‘values’ or ‘principles’36 which underpin and
structure the social order at national and international levels. They provide the
essential constitutional building blocks, ‘the foundation’37 or ‘basis of every com-
munity . . . in the world’.38
For the reasons explained above, neither of these positive human rights dimen-
sions found a clear textual expression in the Basic Law.39 Despite the commitment to
human dignity and universal human rights having been conspicuously placed in the
very first article of the Basic Law, the fundamental rights following this commitment
are essentially formulated as a ‘charter of negative liberties’.40 It is therefore not
surprising that German courts and constitutional scholars were initially reluctant to
acknowledge the positive and ‘transformative’ dimensions inherent in the constitu-
tional pledge to human dignity and universal human rights.41 Indeed, in the early
1950s, some scholars even went so far as to brand the human dignity clause a
‘drafting error’.42
It was, however, not only the lack of textual guidance in the Basic Law that
accounted for the initial failure of the judiciary to recognise and acknowledge the full
implications of the constitutional entrenchment of human dignity and universal
human rights. Equally important were the systemic challenges of rebuilding the
rule of law and democracy on the ruins of a dictatorship which had brought moral
corruption, physical destruction and total defeat upon Germany.
In order to ensure the immediate and proper functioning of the newly established
legal system, the law previously in force in Germany remained applicable ‘insofar as
it did not conflict with th[e] Basic Law’.43 Accordingly, to this day, civil law and
criminal law in Germany are in essence based on the comprehensive codifications of
the late nineteenth century,44 which had proved sufficiently malleable over time to
survive the multiple ‘regime changes’ from the German Empire to the Weimar
Republic, the ‘Third Reich’ and finally the FRG.
Neither did the judiciary start with a clean slate. Given the lack of alternative
qualified lawyers, the young FRG felt compelled to rely on judges who had
36
On the interrelationship between ‘values’ and ‘principles’, see Alexy and Rivers (2009),
pp. 86–93.
37
UDHR, Preamble, para 1.
38
Art 1.2 Basic Law.
39
See supra 2.1.
40
Thus the expression used to describe the US Bill of Rights, see Jackson v City of Joliet, 715 F.2d
1200, 1203 (7th Cir. 1983) cert. denied, 465 US 1049 (1983).
41
See references in Rensmann (2007), pp. 43–46, 303–304.
42
Jerusalem (1950), p. 1. See also Forsthoff (1959), p. 146 (the human dignity guarantee in Art 1.1
Basic Law is to be understood as a mere expression of ‘solemn moral postulates’).
43
Art 123.1 Basic Law.
44
See, e.g. German Civil Code, 18 Aug 1896, Reichsgesetzblatt 1896, 195; German Criminal Code,
15 May 1871, Reichsgesetzblatt 1871, 127.
Germany 477
previously pursued legal careers during the Nazi dictatorship.45 Judges recruited to a
substantial extent from the ranks of lawyers who had practised under the old regime
and now continued to apply the familiar civil and criminal law statutes did not seem
ideally suited to act as trustees of the domestic observance of international human
rights. This dilemma was thrown into sharp relief by the sequence of events leading
up to the FCC’s seminal Lüth judgment, which was ultimately to pave the way for
completing the ‘human rights revolution’ in German constitutionalism.
2.3 The Completion of the ‘Human Rights Revolution’

in Lüth
2.3.1 Impunity for a Crime Against Humanity
At the heart of the Lüth case lay a crime against humanity.46 Adolf Hitler’s
propaganda minister Josef Goebbels had commissioned Veit Harlan to write the
screenplay for and direct the blatantly anti-Semitic film ‘Jud Süss’. After the war,
Harlan was charged before German courts with aiding and abetting a crime against
humanity for his involvement with the Nazi’s propaganda war against the Jews. He
was eventually acquitted on spurious grounds and subsequently resumed his career
as a film director.47
The screening of Harlan’s post-war films in German cinemas was accompanied
by violent clashes between demonstrators outraged by his acquittal and Harlan
supporters. The degree of public support for Harlan, at times accompanied by
open outbreaks of anti-Semitism, proved highly embarrassing for the young German
democracy.
Against this backdrop, Erich Lüth—at the time the press officer for the city-state
of Hamburg but acting, however, in his private capacity—made a public appeal for
the boycott of Harlan’s films. Harlan’s film production company sought an injunc-
tion against Lüth, enjoining him from making any further boycott calls. The Ham-
burg Regional Court granted the injunction on the basis that calling for a boycott was
contrary to public policy and hence forbidden under Section 826 of the German Civil
45
See, e.g., Görtemaker and Saffering (2016), pp. 269–279 (up until 1962 up to 80 percent of the
judges serving on the Federal Court of Justice had previously been part of the Nazi judiciary). In the
FCC, by contrast, only a minority of the first generation of judges had been associated with the Nazi
regime. In fact, nine of the 24 judges had been persecuted by the Nazis, see, ibid, 291–297.
46
The facts are summarised in FCC, BVerfGE 7, 198 (199–203). See also Collins (2015),
pp. 54–61. For English translations of the FCC’s judgment see Bröhmer et al. (2012),
pp. 352–357; Kommers and Miller (2012), pp. 442–448.
47
See Rensmann (2007), p. 82 with further references.
478 T. Rensmann
Code.48 Lüth took the case to the FCC claiming that the injunction violated his right
to freedom of speech under Article 5.1 of the Basic Law.49
Ultimately, the Lüth case was thus concerned with the attitude of German courts
and society towards a crime against humanity. At issue was, as the FCC put it, the
‘moral reputation’ of Germany,50 and in particular the question as to whether
German courts were committed to upholding human dignity and universal human
rights. The Court was hence called upon to re-establish trust in the trustees of the
observance of international human rights.
2.3.2 Re-establishing Trust in the Trustees of International Human

Rights
In terms of legal doctrine, the Lüth case raised the question of the horizontal
application of fundamental rights to what was essentially a private law dispute
between Lüth and Harlan’s film production company. Many scholars at the time
categorically denied any third-party effect (Drittwirkung) of fundamental rights
since in their view the German bill of rights only provided for classical liberal rights
against state interference.51 Others tried to reconstruct the horizontal application of
fundamental rights within the paradigm of negative liberties by arguing that it was
the court injunction that represented the relevant act infringing Lüth’s freedom of
speech.52
The FCC relied instead on a novel approach based on a positive duty to protect
the ‘value system’ embodied in the bill of rights:
Without doubt, the primary purpose of fundamental rights is to safeguard the individual
sphere of liberty against interference by public authority. They are defensive rights of the
citizen against the state. . . . It is equally true, however, that the Basic Law . . . has, in its
section on fundamental rights, also set up an objective order of values. . . . This value system,
which centres around human dignity and the human personality freely developing within the
social community, must be regarded as a fundamental constitutional decision for all areas of
law; it provides guidelines and impulses to the legislature, the executive and the judiciary.53
48
Landgericht (Regional Court) Hamburg, Case No 15 O 87/51, judgment of 22 Nov 1951.
Section 826 of the German Civil Code reads: ‘A person who, in a manner contrary to public policy,
intentionally inflicts damage on another person is liable to the other person to make compensation
for the damage.’ English translation taken from: https://www.gesetze-im-internet.de/englisch_bgb/
index.html. Accessed 15 May 2018.
49
Art 5.1 Basic Law reads: ‘Every person shall have the right freely to express and disseminate his
opinions in speech, writing, and pictures and to inform himself without hindrance from generally
accessible sources. . . .’.
50
FCC, BVerfGE 7, 198 (200).
51
See references in Laufke (1956), pp. 145–188.
52
See e.g. Nipperdey (1954), p. 21. On the links between Nipperdey’s approach, the US Supreme
Court’s ‘state action-doctrine’ and international human rights law see Rensmann (2006),
pp. 274–275.
53
FCC, BVerfGE 7, 198 (204–205). English translation based on Kommers and Miller (2012),
pp. 443–444.
Germany 479
The ‘order of values’ referred to by the FCC in fact replicates and hence
internalises the ‘value system’ of the UDHR.54 Both ‘value systems’ centre ‘around
human dignity and the human personality freely developing within the social
community’. By virtue of this communitarian notion of freedom, the fundamental
rights of the Basic Law—in the same way as international human rights—assume
additional, positive dimensions. ‘Freedom in dignity’ guarantees not only negative
‘liberty against interference by public authority’ but also ‘freedom from want’ and
‘freedom from fear’, which each requires ‘positive’ state action. Indeed, Article 1.1
sentence 2 of the Basic Law explicitly sets forth the duty of all state authorities to
‘respect and protect’ human dignity.55 What had been regarded by some at the time
as a ‘drafting error’ was now being taken seriously.
By transforming the bill of rights into a ‘value system’ based on human dignity,
the FCC projected the dual obligation ‘to respect and protect’ onto all fundamental
rights. As an integral part of each fundamental right, the duty to protect corresponds
with an individual right to be protected56 and binds all three branches of government
‘as directly applicable law’.57
The approach based on the duty to protect allowed the FCC to view the horizontal
effect of fundamental rights through the prism of the separation of powers.58
Whereas the negative duty to respect equally applies to all three branches of
government, the Court considered the responsibility for discharging the duty to
protect to lie primarily with the legislature. Parliament must ensure through adequate
legislation that individual liberties will not be unduly interfered with by non-state
actors.59 The protective duties of the judiciary and the executive are thus in principle
limited to taking account of the ‘guidelines and impulses’60 ‘radiating’ from the bill
of rights when interpreting and applying legislation.61
Against this doctrinal backdrop, the FCC eventually held that the Hamburg
Regional Court had failed in its duty to accord proper weight to Lüth’s freedom of
speech when finding that his boycott call was contrary to ‘public policy’.62 Under the
new human-rights-based constitution, no one was to be denied the right to speak out
against a crime against humanity.
The Lüth decision had a profound impact on the German legal system.
54
On the ‘value system’ of the UDHR see supra 2.2.
55
Art 1.1 Basic Law reads: ‘Human dignity shall be inviolable. To respect and protect it shall be the
duty of all state authority.’
56
See FCC, BVerfGE 7, 198 (207).
57
Art 1.3 Basic Law.
58
For a more detailed explanation of the FCC’s reasoning see Rensmann (2007), pp. 113–119.
59
FCC, BVerfGE 7, 198 (205).
60
See the quotation supra n 53.
61
FCC, BVerfGE 7, 198 (206–207).
62
FCC, BVerfGE 7, 198 (214–230).
480 T. Rensmann
Firstly, Lüth completed the ‘human rights revolution’, which had stopped half-
way during the process of drafting the Basic Law.63 The FCC resolutely merged the
programmatic commitment to human dignity and universal human rights with the
strict normativity and justiciability of constitutional law. Since Lüth, all state author-
ities are under a duty to protect the constitutional ‘value system’ emanating from the
bill of rights. Germany thereby became one of the first modern constitutional states
to entrench positive human rights obligations within its domestic legal order.
Secondly, as a result of the ‘radiating effect’64 of fundamental rights, the entire
body of private law, which mostly predated the FRG, was brought into line at one
fell swoop with the new constitutional ‘value system’ and its unequivocal commit-
ment to human dignity and universal human rights. Since Lüth, fundamental and
human rights are inextricably woven into the fabric of ordinary statute law.
Thirdly, by virtue of the obligation to take into account the ‘radiating effect’ of the
bill of rights, ‘ordinary’ (i.e., non-constitutional) courts were in effect transformed
into fundamental rights courts. Given that the constitutional ‘order of values’
internalises the ‘value system’ of the UDHR, ordinary courts were thus—in a
dédoublement fonctionnel65—at the same time charged with the responsibility of
acting as international human rights courts.
Fourthly, since the obligation of fundament rights-consistent interpretation is
anchored in the duty to protect, every individual affected by a court decision
disregarding the ‘radiating effect’ of his or her fundamental rights is empowered to
lodge a constitutional complaint with the FCC. The Lüth decision thus placed
ordinary courts in their role as trustees of the observance of fundamental and
human rights under the supervision of the FCC.66
2.4 The Federal Constitutional Court as an International

Human Rights Court
In the Lüth decision, the FCC firmly established itself as the ‘ultimate guardian’67 of
the observance of human and fundamental rights within the German legal system. It
was, however, not only in this domestic sense that the Court evolved into an
international human rights court. Having internalised the ‘value system’ of the
63
See supra 2.1.
64
FCC, BVerfGE 7, 198 (207) (‘Ausstrahlungswirkung’).
65
Scelle (1956), pp. 324–342.
66
See FCC, BVerfGE 7, 198 (209): ‘In its function as ultimate guardian of the fundamental rights
through the instrument of the constitutional complaint, the FCC must therefore have the power to
supervise the decisions of courts whose application of a general law in this area may unduly restrict
the scope of the fundamental right in the individual case’ (Translation based on Bröhmer et al.
(2012), p. 356).
67
See n 66.
Germany 481
UDHR, the FCC also played a pioneering role in fleshing out important doctrinal
aspects of the practical application of international human rights law, such as the
‘duty to protect and promote’ (Schutz- und Förderpflicht),68 the ‘radiating effect’69
and the proportionality test.70
The Court has thereby exerted significant influence on the jurisprudence of the
European Court of Human Rights71 and the European Court of Justice,72 as well as
many constitutional and apex courts around the world.73 In fact, it may even be
argued that in Lüth the FCC laid the foundations for a new ideal type of human
rights-based constitutionalism, which gradually displaced the US Constitution as the
leading paradigm of global constitutionalism.74
Today, many courts outside of Germany echo the FCC’s dictum that a constitu-
tion ‘is not merely a document regulating public power . . . [but] also . . ., like the
German Constitution, an objective, normative value system’75 built on the commit-
ment to human dignity and human rights.76 At the heart of this new type of
constitutionalism lies the premise that the legitimacy of governmental power is not
exclusively based on the will of ‘We the people’ but also on the universal values of
human dignity and human rights.77 The concomitant limitation of the democratic
process is effectuated through the supremacy of the constitution and judicial review.
Accordingly, judicial review as such does not pose a ‘counter-majoritarian diffi-
culty’78 but is rather the logical consequence of reining in the democratic process by
virtue of constitutionally entrenched human rights.
However, resolving the inherent tension between popular sovereignty and human
rights remains a considerable challenge for human rights-based constitutionalism.
The FCC can be credited with having made a significant contribution to rationalising
this dialectical puzzle. Whereas the Lüth decision was primarily concerned with the
68
See Rensmann (2007), pp. 147–200 and supra 2.3.
69
See supra n 61 and 64.
70
See infra text accompanying n 81–91.
71
See Nußberger (2014), p. 13.
72
73
See e.g. Hailbronner and Martini (2017), p. 367.
74
Rensmann (2007), pp. 266–268.
75
South African Constitutional Court, Carmichele v Minister of Safety and Security (CCT 48/00),
2001 (4) SA 938. (CC).
76
See, e.g., High Court of Kenya, Republic v National Assembly, Speaker of National Assembly &
6 others Exparte George Wang’ang’a, judgment of 17 Jan 2018, Miscellaneous Civil Application
391 of 2017, [2018] eKLR, para 78 (with a direct reference to the Lüth decision); Constitutional
Court of Peru, Eusebio Llanos Huasco, judgment of 13 Mar 2003, Expediente No 976-2001
AA/TC. For further references see Rensmann (2007), pp. 266–268.
77
In the German Basic Law this finds its clearest expression in the so-called eternity clause which
defines the FRG’s ‘constitutional identity’ (see references in n 8) by exempting the guarantees of
human dignity (Art 1.1), universal human rights (Art 1.2) and democracy (Art 20.1 and 20.2) from
constitutional amendment.
78
Bickel (1962), p. 16.
482 T. Rensmann
attitude of ordinary courts towards fundamental rights, it also contains important

observations on the role of the legislature within the new human rights-based
constitutional order.
Under the Basic Law, most fundamental rights are only guaranteed subject to
limitations determined by law. At the same time, however, the Basic Law introduces
a substantive check on the legislature’s power to restrict fundamental rights: ‘In no
case may the essence of a fundamental right be affected.’79
This provision reflects an important lesson drawn from the failure of the Weimar
Constitution. Fundamental rights become meaningless if they are permitted to be
neutralised by ordinary legislation.80 In Lüth, however, the FCC extended the
bulwark of the bill of rights significantly beyond the ‘essence’ of each fundamental
right and hence ventured much further into the realm of the democratic process than
suggested by the wording of the Basic Law.
The doctrinal starting point for the FCC’s approach was the interaction
(Wechselwirkung)81 between the limitation clause and the positive, protective
dimension of fundamental rights. According to the FCC, the legislature’s power to
limit fundamental rights is in turn limited by the ‘directives and impulses’ flowing
from the duty to protect the right at issue.82 Hence, in each individual case, the public
interest pursued by the legislature must be balanced against the ‘value’ of the
fundamental right affected.83 In order to structure this balancing exercise, the FCC
introduced the proportionality test,84 which it borrowed from German administrative
law.85 Each legislative measure restricting fundamental rights must pursue a legit-
imate aim, it must be both a suitable and the least intrusive means of achieving the
desired result, and it must be proportionate in the narrow sense, i.e. the benefits for
the public interest pursued must outweigh the cost for the fundamental right affected.
The proportionality principle is often dubbed Germany’s most successful consti-
tutional export article.86 The four-tier proportionality test (legitimate aim, suitability,
necessity and proportionality in the narrow sense) has indeed been widely adopted as
a standard for reviewing legislative restrictions of human and fundamental rights.87
The key to this ‘success story’ is, however, that the FCC’s jurisprudence on the
permissible limitation of fundamental rights essentially reflected the substantive
79
Art 19.2 Basic Law.
80
See also Lauterpacht (1950), pp. 368–369.
81
FCC, BVerfGE 7, 198 (209).
82
FCC, BVerfGE 7, 198 (208–209).
83
FCC, BVerfGE 7, 198 (209).
84
The FCC employed this test for the first time in the Pharmacy judgment, BVerfGE 7, 377
(404–408).
85
On the origins of the proportionality test see Grimm (2015), pp. 19–20; Schlink (2012),
pp. 294–295.
86
See e.g. Carter (2018), p. 375; Hailbronner and Martini (2017), p. 367.
87
Petersen (2017).
Germany 483
notion of democracy laid down in the UDHR.88 Whilst emphasising that ‘[t]he will
of the people shall be the basis of the authority of government’,89 the general
limitation clause of the UDHR allows legislative restrictions ‘solely for the purpose’
of meeting the ‘just requirements’ of ‘a democratic society’.90 The power of the
democratically elected legislature to limit human rights is thus in turn limited by the
values of ‘a democratic society’. It is this ‘interaction’ between values as ‘the genesis
of rights and freedoms’ on the one hand and the ultimate standard against which their
limitation must be justified on the other91 that also lay at the heart of the FCC’s
proportionality jurisprudence.
3 German Courts and the Rise of Treaty-Based Human

Rights Protection
3.1 Princess Caroline and the Federal Constitutional Court’s

Loss of Exclusive Guardianship of International Human
Rights
The entry into force of the ECHR in 1953 confronted German courts with new
challenges in fulfilling their role as trustees of the domestic observance of interna-
tional human rights. The constitutionally entrenched bill of rights—which had
internalised the ‘value system’ of the UDHR—was complemented by an ‘external’,
treaty-based set of human rights. This meant that German courts were suddenly
called upon to apply a ‘second bill of rights’ that was, however, only endowed with
the domestic status of the federal statute by virtue of which Parliament had assented
to the ratification and domestic application of the ECHR.92
Given that the ECHR closely follows the template of the UDHR and in the same
way as the Basic Law essentially restricts itself to incorporating classical civil and
political rights, the substantive duplication of human rights within the German legal
order did not pose any significant problems as such. Of greater consequence,
however, was the fact that the FCC had lost its exclusive position as the ‘ultimate
guardian’93 of the domestic observance of international human rights since the
ECHR opened up the possibility for individuals to challenge the Court’s decisions
before the ECtHR.94
88
On the German origins of this substantive notion of democracy, see Rensmann (2011),
pp. 988–990.
89
Art 21 (3) UDHR.
90
Art 29 (2) UDHR.
91
Formulation borrowed from Canadian S.Ct., R. v Oakes, [1986] 1 SCR 103; Gosselin v Quebec
(AG) [2002] 4 SCR 429.
92
See Art 59.2 Basic Law and infra n 110.
93
See n 66.
94
See Art 34 ECHR.
484 T. Rensmann
During the first five decades following the ratification of the ECHR, German
courts and the European Convention system coexisted in relative harmony. Only a
comparatively small number of complaints against Germany reached the ECtHR,
and very few violations were established.95
However, the situation changed dramatically in 2004, when a chamber of the
ECtHR handed down its judgment in the case of von Hannover v Germany.96 The
Chamber held that German courts had violated Article 8 ECHR by failing to provide
adequate protection to Princess Caroline of Hannover’s private life against paparazzi
taking and publishing photographs of a purely private nature without her consent. In
a carefully argued decision the FCC had previously come to the opposite conclu-
sion.97 In weighing the right to privacy against the freedom of the press, the FCC had
upheld a judgment by the Federal Court of Justice according to which Princess
Caroline as a ‘figure of contemporary society “par excellence”’ was required to
tolerate the publication of photographs of private activities, so long as they were
taken in a public place.98
The Strasburg judgment stirred up a wave of indignation in Germany.99 It was
perceived as an attack on the freedom of the press and the authority of the FCC. The
decision touched a raw nerve because it challenged a long-standing line of case
law—developed by the Federal Court of Justice and endorsed by the FCC100—that
had devised different categories of public figures with corresponding levels of
protection of privacy against intrusion by the press.
At a more fundamental level, the ECtHR decision was considered to question one
of the classical premises of the FCC’s fundamental rights jurisprudence, which,
starting with Lüth, has accorded special weight to freedom of speech and freedom of
the press in view of their ‘fundamental importance in a free and democratic state’.101
Despite considerable public pressure, the Federal Government eventually decided
not to request a referral of the case to the Grand Chamber. Acting on the advice of the
95
See the overview in Nußberger (2014), pp. 3–4.
96
ECtHR, von Hannover v Germany, judgment of 24 June 2004, App No 59320/00.
97
FCC, BVerfGE 101, 361.
98
Ibid, 391 ff.
99
See Rensmann (2017), pp. 727–729.
100
For references see FCC, BVerfGE 101, 361.
101
FCC, BVerfGE 7, 198 (208). In Lüth the FCC referred to the ‘preferred freedoms’ doctrine of the
US Supreme Court. The FCC quoted Cardozo’s famous dictum from Palko v Connecticut,
302 U.S. 319 (1937), according to which freedom of speech is ‘the matrix, the indispensable
condition of nearly every other form of freedom’. The FCC argued that there should therefore be a
‘presumption’ in favour of freedom of speech. This approach was in principle endorsed by the
ECtHR in Handyside v United Kingdom, judgment of 7 Dec 1976, Series A No 24, 23, § 49; see
also von Hannover v Germany (n 96), § 58. In applying this presumption some judges of the ECtHR
felt, however, that ‘the [German] courts ha[d] to some extent and under American influence made a
fetish of the freedom of the press’ (von Hannover v Germany (n 96), conc. op. Zupančič).
Germany 485
FCC, the German Minister of Justice argued that such an appeal was unnecessary
since German courts were under no obligation to follow the Chamber judgment.102
The Minister of Justice assured the German public that whilst German courts had ‘to
take into account’ ECtHR decisions, from a legal point of view it was still the FCC
that had ‘the last word’ in these matters. In a highly unusual move, the FCC itself
issued an official press release explicitly endorsing the Federal Government’s
decision not to appeal the Chamber judgment.103
3.2 Görgülü: The Federal Constitutional Court Reasserts

Control Over International Human Rights
A few weeks later, the FCC used the welcome opportunity of another case pending at
the time to elaborate on the status of ECtHR judgments within the German legal
order.104 At issue was a constitutional complaint by Kazim Görgülü, the father of a
son born out of wedlock whom the mother had given up for adoption. Görgülü had
unsuccessfully sought custody of his son. A constitutional complaint against the
rejection of his application for custody by a higher regional court had previously
been dismissed by the FCC as manifestly unfounded.105
Görgülü took the matter to the ECtHR, which found a violation of Article
8 ECHR.106 In keeping with its more recent practice of spelling out specific remedies
regardless of the declaratory nature of its judgments,107 the ECtHR indicated that
Germany would only be able to discharge its obligation to put an end to the
continuing violation of the Convention by ‘making it possible for the applicant to
at least have access to his child’.108
The higher regional court nevertheless continued to deny Görgülü access to his
son arguing that the ECtHR judgment had no binding effect on German courts.
Görgülü took the matter to the FCC for a second time, complaining that the higher
regional court had failed to implement the Strasburg decision properly.109
102
See Bundesregierung will nicht gegen ‘Caroline-Urteil’ vorgehen, 1 Sept 2004, Der Spiegel,
available at: http://www.spiegel.de/kultur/gesellschaft/pressefreiheit-bundesregierung-will-nicht-
gegen-caroline-urteil-vorgehen-a-316068.html. Accessed 15 May 2018.
103
Press Release 84/2004, 1 Sept 2004, available at: http://www.bundesverfassungsgericht.de/
SharedDocs/Pressemitteilungen/DE/2004/bvg04-084.html. Accessed 15 May 2018.
104
FCC, BVerfGE 111, 307. English translation available at: http://www.
bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2004/10/rs20041014_
2bvr148104en.html. Accessed 15 May 2018.
105
FCC, decision of 31 July 2001, 1 BvR 1174/01.
106
ECtHR, Görgülü v Germany, judgment of 26 Feb 2004, App No 74969/01.
107
other International Bodies that Involve International Human Rights Law; and Pinto de Albuquerque,
State Obligations in the European System, both in this Volume.
108
Ibid, § 64.
109
486 T. Rensmann
In addressing Görgülü’s complaint, the Court thoroughly reassessed the relation-

ship between the Convention system and the German constitutional order.
3.2.1 Establishing Itself as the Ultimate Domestic Guardian

of the European Convention on Human Rights
The first issue to be resolved was the question as to whether the disregard of an
ECtHR judgment by domestic courts could be challenged as such before the FCC by
means of a constitutional complaint.
The extent to which ECtHR judgments must be followed by German courts
primarily depends on the pertinent provisions of the Convention and their status
within the German legal order. The Court reaffirmed in Görgülü the generally
accepted view that the ECHR is endowed with the domestic status of the federal
statute assenting to the ratification of the Convention in accordance with Article 59.2
of the Basic Law.110 Given that the ECHR does not thus possess constitutional
status, a constitutional complaint cannot be based directly on a violation of the
Convention or the disregard of a judgment of the ECtHR.111 However, in a strategic
move resembling the approach followed in Lüth, the FCC in Görgülü endowed the
Convention with ‘constitutional significance’112 and hence proceeded to assume
control over the proper interpretation and application of the ECHR within the
German legal order.
The main lever for this partial ‘constitutionalisation’ of the ECHR is the com-
mitment to universal human rights expressed in Article 1.2 of the Basic Law, which
according to the FCC leads to a ‘substantive orientation of the German constitution
towards human rights’.113 The FCC was, however, careful not to attach ‘direct
constitutional status’ to the ECHR via the ‘gateway’ of Article 1.2114 since this
would not only have elevated the Convention guarantees to constitutional level but
also incorporated them into the core of ‘eternal’ constitutional principles exempt
from constitutional amendment.115
Instead, the FCC posited ‘a constitutional duty’ to interpret ‘content and scope’ of
the fundamental rights in the light of the ECHR, which it derived from Article 1.2 of
the Basic Law in conjunction with the more general principle of the Constitution’s
openness to international law.116 The Court argued that the constitutionally
entrenched fundamental rights ‘[are] to be understood as a manifestation of human
110
FCC, BVerfGE 111, 307 (317).
111
Ibid.
112
Ibid.
113
Thus the formulation in the Preventive Detention case (see infra 3.3.), FCC, BVerfGE 128, 326
(369). See also BVerfGE 111, 307 (329).
114
FCC, BVerfGE 128, 326 (369); 111, 307 (317).
115
Art 79.3 in conjunction with Art 1.2 of the Basic Law. See also supra n 7 and 8.
116
FCC, BVerfGE 111, 307 (329); 128, 326 (369).
Germany 487
rights’117 and that therefore internalised and external (treaty-based) human rights
standards in principle ought not to diverge from one another within the German legal
order.
Accordingly, if ordinary courts fail to pay due regard to the ECHR or ECtHR
judgments, they not only violate the rule of law principle, which requires them to
respect the binding force of the Convention as a federal statute (Article 20.3 of the
Basic Law),118 but also—in view of the Convention’s ‘radiating effect’ on the
German bill of rights—infringe the fundamental right corresponding to the Conven-
tion guarantee.119 The FCC thereby opened up the possibility for individuals to
challenge (ordinary) court decisions on the basis of the Convention and ECtHR
judgments not having been properly applied.
Via this partial ‘constitutionalisation’ of the ECHR—which is in effect, some-
what paradoxically, at the same time a partial ‘conventionalisation’ of German
fundamental rights—the FCC thus established itself as the ultimate (domestic)
guardian of the Convention. From the perspective of the ECHR, however, it was
the ECtHR that retained the ‘last word’ on the proper interpretation of Convention
guarantees.
3.2.2 Claiming the ‘Last Word’ in the Dialogue with the European
Court of Human Rights
In what appears to have been an effort to assuage the strong public protest against the
ECtHR’s Caroline judgment,120 the FCC included certain dicta in Görgülü, which
put a significant caveat on the acceptance of the authority of the Convention and the
ECtHR within the German legal order:
The Basic Law strives to integrate Germany into the legal community of peaceful and free
states, but does not waive the sovereignty contained in the “last word” of the German
constitution . . . It does not intend submission to non-German governmental acts removed
from any constitutional limitation and control.121
This was strong language indeed and certainly lent itself to being ‘misunder-
stood’.122 The invocation of the ‘S-word’,123 as well as the dogged insistence on the
‘last word’ of the German constitution (and of the FCC as its ‘guardian’),
contrasted—at least at first sight—sharply with the otherwise rather accommodating
and constructive spirit of the Görgülü decision.
117
FCC, BVerfGE 128, 326 (369).
118
FCC, BVerfGE 111, 307 (323, 325–326, 330).
119
FCC, BVerfGE 111, 307 (330).
120
See supra n 96.
121
FCC, BVerfGE 111, 307 (318–319).
122
Cf Nußberger (2014), p. 9 (‘The FCC’s judgment has often been misunderstood and quoted in a
distorted manner’).
123
Henkin (1999).
488 T. Rensmann
What was presumably intended as a political signal aimed at the German public
was to cause considerable collateral damage to the European Human Rights System.
The Russian Constitutional Court subsequently relied heavily on the Görgülü
decision when holding that ECtHR judgments incompatible with the Russian con-
stitution could not be implemented in the Russian legal order.124 The somewhat
imprudent wording of certain passages in Görgülü seemed to reflect a certain lack of
consciousness and appreciation of the FCC’s particular responsibility in view of the
considerable authority attributed to its case law by other constitutional and supreme
courts in Europe and beyond.
Read carefully and in the context of similar passages in other cases, the FCC’s
dictum points, however, to an important aspect of the conundrum raised by the
interplay of internalised and international law-based human rights protection.
When talking about ‘the sovereignty contained in the “last word” of the German
constitution’, the FCC in fact intended to refer to the ‘eternal’, ‘fundamental
principles of the constitution’, which define Germany’s ‘constitutional identity’.125
Given that these core values of the German constitution centre around human
dignity, human rights, the rule of law and democracy,126 the notion of ‘sovereignty’
employed by the FCC should be understood not in its old ‘Westphalian’ sense127 but
rather in the modern variation of a ‘responsibility to protect’. In this vein, the FCC
clarified in its subsequent case law that Görgülü had been aimed at highlighting the
‘ultimate responsibility’ of the German constitutional order ‘for ensuring respect for
human dignity and the observance of fundamental rights’.128
Hence, in the last analysis, the FCC’s dictum in Görgülü concerned the problem
of the lack of clear hierarchies in an international order largely governed by a
dualistic paradigm.129 Given that both domestic and international law are thus
124
Russian Constitutional Court, judgment No 21-P/2015 of 14 July 2015, English translation in
European Commission for Democracy through Law (Venice Commission), CDL-REF (2016)
019, 16–17. See also judgment No 12-P/2016 of 19 Apr 2016, English translation in European
Commission for Democracy through Law (Venice Commission), CDL-REF (2016) 033 and judg-
ment No 1-P/2107 of 19 Jan 2017, English translation available at http://www.ksrf.ru/en/Decision/
Judgments/Documents/2017_January_19_1-P.pdf. Accessed 15 May 2018.
125
See the FCC’s decision on the Treaty of Lisbon, BVerfGE 123, 267 (400–401), English
translation available at: http://www.bverfg.de/e/es20090630_2bve000208en.html: ‘The Basic
Law strives to integrate Germany into the legal community of peaceful and free states, but does
not waive the sovereignty contained in the last word of the German constitution as a right of the
people to take constitutive decisions concerning fundamental questions as to its own identity.’
(Emphasis added). Accessed 15 May 2018.
126
Art 79.3 in conjunction with Arts 1 and 20 Basic Law.
127
FCC, BVerfGE 123, 267 (346): ‘The Basic Law abandons a self-serving and self-glorifying
concept of sovereign statehood and returns to a view of the state authority of the individual state
which regards sovereignty as “freedom that is organised by international law and committed to
it”. . .’.
128
FCC, BVerfGE 112, 1 (25–26), English translation available at http://www.bverfg.de/e/
rs20041026_2bvr095500en.html. Accessed 15 May 2018.
129
See BVerfGE 123, 267 (401): ‘. . . contexts of political order which are not structured according
to a strict hierarchy . . .’.
Germany 489
fully justified in claiming to have the last say, the FCC’s insistence on the ‘last word’
being accorded to the German constitution was indeed ‘not opposed to an interna-
tional and European dialogue of courts, but . . . [rather] the normative basis for it’.130
In order to illustrate the relevance of its caveat, the FCC in a later judgment also
pointed to the Kadi II case before the European Court of Justice (ECJ),131 which the
FCC described as ‘a borderline case, [in which the ECJ] placed the assertion of its
own identity as a legal community above the commitment [to international law] that
it otherwise respects’.132
Against this backdrop, the practical conclusions drawn by the FCC in Görgülü
from its ‘last word’ dictum seem in principle plausible:
There is therefore no contradiction to the aim of openness to international law if the
legislature, exceptionally, does not comply with international treaty law – accepting, how-
ever, corresponding consequences under international law – provided this is the only way in
which a violation of fundamental principles of the constitution can be averted.133
In a more recent case, the FCC emphasised, however, that the power of legislative
‘treaty override’ is not subject to such narrow limitations in relation to non-human
rights treaties, such as double taxation agreements.134 From a human rights perspec-
tive, this should be noted with concern since certain guarantees pertaining to the
protection of human rights, such as the right to consular assistance,135 are set forth in
what are otherwise ‘non-human rights treaties’.
Thus far, the emergency power of the ‘last word’ has not yet been put to the test
with regard to regional or international human rights treaties. It has, however, been
recently demonstrated in relation to the European Union that such a scenario is not
an entirely virtual option. In cases concerning extraditions in accordance with the
European Arrest Warrant, the FCC has indeed felt the need to trigger this option and
exercise such ‘identity review’ in order to uphold the human dignity guarantee laid
down in Article 1.1 of the Basic Law.136
130
FCC, BVerfGE 128, 326 (369).
131
ECJ, C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, EU:C:2013:518.
132
FCC, BVerfGE 123, 267 (401).
133
FCC, BVerfGE 307, 111 (319).
134
FCC, BVerfGE 141, 1 (32), English translation available at: http://www.bverfg.de/e/
ls20151215_2bvl000112en.html. Accessed 15 May 2018.
135
The FCC left the question explicitly open as to whether Article 36 VCCR would qualify as a
human right, see BVerfGK 9, 174, § 58.
136
FCC, BVerfGE 140, 317. As to a more recent case see FCC, decision of 19 Dec 2017, 2 BvR
424/17.
490 T. Rensmann
3.2.3 Transforming the Duty to Abide by Judgments of the European

Court of Human Rights into a Duty to Take into Account
The main problem posed by the Görgülü case lay in determining the precise content
of the obligation imposed on German courts by an ECtHR judgment. Pursuant to Art
46 ECHR, Germany was bound ‘to abide by’ the judgment. At the level of interna-
tional law the substantive ambit of this obligation was in principle undisputed.
Despite the declaratory nature of ECtHR judgments, the respondent state is under
an obligation to put an end to any violation found by the Court and redress as far as
possible any effects of the breach of the Convention.137 This obligation is, however,
only an ‘obligation of result’, i.e. the state remains free to choose the means by which
it will discharge it.138
At the domestic level the FCC emphasised that by virtue of the statute incorpo-
rating the Convention into German law,139 the obligation pursuant to Article
46 ECHR in principle extends to all state organs.140 The Court further buttressed
the obligatory force of the Convention and ECtHR judgments within German law by
pointing to the rule of law principle laid down in Article 20.3 of the Basic Law
according to which the judiciary and the executive are bound by ‘statutes and the
law’.141
Whilst considering all state organs bound by Article 46 ECHR, the FCC
highlighted in Görgülü that the extent of the obligation for each of the branches of
government is limited by the separation of powers.142 Domestic courts may not thus
‘enforce’ ECtHR judgments ‘schematically’ regardless of conflicting statutory law
and higher-ranking constitutional law (see Article 20.3 of the Basic Law).143
According to the FCC, the original ‘duty to abide’ by ECtHR judgments therefore
turns into a mere ‘duty to take into account’ the Strasburg decisions ‘within the limits
of a methodologically justifiable interpretation of the law’.144
In Görgülü, the contours of this ‘duty to take into account’ remain, however,
somewhat vague:
If, in . . . proceedings in which the FRG is involved, the ECtHR establishes that there has
been a violation of the Convention, and if this is a continuing violation, the decisions of the
ECtHR must be taken into account in the domestic sphere, that is, the responsible authorities
or courts must discernibly consider the decision and, if necessary, justify plausibly why they
nevertheless do not follow the view expressed at the level of international law.145
137
See ECtHR, Görgülü v Germany (n 106), § 64; FCC, BVerfGE 111, 307 (321).
138
ECtHR, Görgülü v Germany (n 106), § 64; FCC, BVerfGE 111, 307 (321–322); 128, 326 (370).
139
See Art 59.2 of the Basic Law.
140
FCC, BVerfGE 111, 307 (323, 325–326).
141
Ibid.
142
FCC, BVerfGE 111, 307 (323).
143
FCC, BVerfGE 111, 307 (323–324).
144
FCC, BVerfGE 111, 307 (323).
145
FCC, BVerfGE 111, 307 (324).
Germany 491
The FCC identified two constellations in particular in which domestic courts

would not necessarily need to abide by ECtHR decisions.
The first exception concerns ‘multipolar fundamental rights relationships’146 such
as the Görgülü and the Princess Caroline cases, in which not only the relationship
between the applicant and the state but also the fundamental rights interests of third
parties are at issue. The FCC argued that in view of the fact that the affected third
parties were not actively involved in the proceedings before the ECtHR, their
interests had not been adequately considered.147 Implementing an ECtHR decision
without further review would therefore entail the risk of the fundamental rights
protection for such third parties falling below the level guaranteed by the Basic Law,
which would also be in contravention of Article 53 ECHR.148 However, given that in
similar multipolar constellations FCC decisions command binding effect without the
third parties affected necessarily having been fully represented in the proceedings,
this argument does not seem entirely convincing.149
With its second caveat, the FCC took direct aim at the Princess Caroline case.150
According to the FCC, it is the domestic legal system that, in accordance with the
principle of subsidiarity, is primarily responsible for the ‘sensitive balancing’
required in particular in ‘multipolar fundamental rights relationships’.151 In Görgülü
the FCC insisted that the careful ‘equilibrium between differing fundamental rights’
attained in ‘domestic sub-systems of law shaped by nuanced case law’ should not be
disturbed by the Strasburg court.152 The FCC considered it therefore to be the task of
domestic courts to preserve the integrity of such ‘domestic sub-systems’ by ‘inte-
grating’ the decision of the ECtHR into the relevant area of domestic law’ through a
process of ‘evaluative consideration’ (wertende Berücksichtigung).153
In Görgülü these exceptions were mere obiter dicta since the Higher Regional
Court had denied the binding force of the ECtHR judgment outright and hence
clearly violated the constitutional duty to take it into account. The FCC insisted,
however, that when rehearing the case the Higher Regional Court would not be
bound by the specific remedy indicated by the ECtHR.154 Given the time intervening
since the ECtHR had handed down its judgement, the FCC considered it necessary to
re-evaluate the interests of all parties involved in deciding whether Kazim Görgülü
should be granted a right of access to his son.155
146
FCC, BVerfGE 111, 307 (324).
147
FCC, BVerfGE 111, 307 (327–328).
148
FCC, BVerfGE 111, 307 (324–325); 128, 326 (371).
149
Rensmann (2017), p. 731 with further references.
150
See supra n 96.
151
FCC, BVerfGE 111, 307 (324).
152
FCC, BVerfGE 111, 307 (327).
153
FCC, BVerfGE 111, 307 (327–328).
154
FCC, BVerfGE 111, 307 (330–332).
155
FCC, BVerfGE 111, 307 (331–332).
492 T. Rensmann
Against this backdrop, it should come as no great surprise that the Higher
Regional Court continued to deny Görgülü’s access to his child.156 Görgülü, how-
ever, persisted. After a number of further complaints to the FCC, he was eventually
granted custody of his son.157 The assessment of the Strasburg judges prevailed
after all.
3.3 Exercising ‘Joint Responsibility’ in a Constructive

Dialogue
Given the robust rhetoric and the many caveats formulated in Görgülü, the FCC’s
subsequent jurisprudence has been surprisingly ‘friendly’ towards the ECtHR. The
current situation may therefore be described as a constructive dialogue in which
German courts and the ECtHR exercise their ‘joint responsibility’158 for securing
international human rights with mutual respect and consideration.
In the Princess Caroline case, a sequence of decisions by the Federal Court of
Justice,159 the FCC160 and the ECtHR161 eventually led the German courts to adapt
the ‘sub-system of law shaped by [their] nuanced case law’162 along the lines
suggested in the original chamber judgment of the ECtHR. Whilst this case essen-
tially concerned ‘nuanced case law’ developed by the Federal Court of Justice, in the
2011 Preventive Detention decision, the FCC even revised its own jurisprudence in
response to an ECtHR judgment.163 The ECtHR explicitly commended the FCC for
its constructive approach: ‘[The FCC’s] judgment . . . reflects and assumes the joint
responsibility of the State Parties and this Court in securing the rights set forth in the
Convention.’164
In the Preventive Detention case, the FCC considerably strengthened the author-
ity of ECtHR judgments beyond their res judicata effect pursuant to Article
46 ECHR. According to the FCC, German courts are under a constitutional duty
to take ECtHR decisions into account even if they do not relate precisely to the same
subject matter.165 The FCC based this duty on the fact that ‘the decisions of
international courts have at least a de facto effect as precedents’.166 Taking ECtHR
156
157
Ibid.
158
ECtHR, Kronfeldner v Germany, judgment of 19 Jan 2009, App No 21906/09, § 59.
159
BGHZ 171, 275.
160
161
ECtHR, von Hannover v Germany (No. 2), judgment of 7 Feb 2012, App Nos 40660/08 and
60641/08.
162
See supra n 152.
163
164
ECtHR, Kronfeldner v Germany, judgment of 19 Jan 2009, App No 21906/09, § 59.
165
FCC, BVerfGE 128, 326 (368–370).
166
FCC, BVerfGE 128, 326 (368–369).
Germany 493
decisions into consideration beyond the individual case at issue therefore ‘serves to
give the guarantees of the ECHR as extensive an application in the FRG as possible,
and in addition may help to avoid the FRG being held in violation’.167
The FCC has also applied this rationale to pertinent precedents by the Interna-
tional Court of Justice (ICJ) in cases involving the right of detainees to consular
assistance pursuant to Article 36 of the Vienna Convention on Consular Relations
(VCCR).168 The Court left the question explicitly open as to whether Article
36 VCCR would qualify as a human right.169 The constitutional duty to take into
account the case law of the ICJ was therefore exclusively based on the more general
observation that, by virtue of the openness of the Basic Law to international law, all
state organs are ‘indirectly placed in the service of enforcing international law’ and
in this way called upon to reduce the risk of failing to comply with international
law.170 This argument would in principle extend to the consideration of the case law
of other international courts, despite the FCC also having made a reference to the
ICJ’s particular status as the ‘principal judicial organ of the United Nations’ (Article
92 UN Charta).171
The FCC’s openness to international law and its general willingness to accom-
modate international human rights are reflected in a more recent case involving the
Convention on the Rights of Persons with Disabilities (CRPD).172 In dealing with
the question of the domestic status of pronouncements made by the CRPD Com-
mittee, the FCC adopted the ICJ’s reasoning in Diallo,173 which ascribes ‘great
weight’ to the interpretation of human rights treaties by the competent treaty bodies:
Remarks of a committee on the interpretation of a human rights convention that is competent
to make such statements have significant weight, but they are not binding under international
law for international or national courts.174
The FCC thus stopped short of imposing a constitutional duty on German courts
to take interpretations made by human rights treaty bodies into account. However,
with specific reference to the Görgülü and Preventive Detention cases, the FCC
argued that when interpreting and applying a human rights convention, domestic
courts ‘should . . . deal in an argumentative way and in good faith with the opinions
of a competent international treaty body’ without, however, ‘being under an obliga-
tion to endorse them’.175
167
FCC, BVerfGE 128, 326 (369).
168
FCC, BVerfGK 9, 174; BVerfGK 17, 390; FCC, order of 5 Nov 2013, 2 BvR 1579/11.
169
FCC, BVerfGK 9, 174, § 58.
170
FCC, BVerfGK 9, 174, § 58. As to this argument, see also BVerfGE 111, 307 (328).
171
FCC, BVerfGK 9, 174, § 61.
172
FCC, BVerfGE 142, 313. English translation available at: http://www.bverfg.de/e/ls20160726_
1bvl000815en.html. Accessed 15 May 2018.
173
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), ICJ
Reports 2010, 639 at 663–664, para 66.
174
FCC, BVerfGE 142, 313, § 90.
175
Ibid (Emphasis added).
494 T. Rensmann
4 Summary and Conclusion
Long before the rights and freedoms proclaimed in the UDHR became binding as a
matter of international law, they were endowed with full normativity and justicia-
bility by virtue of having been internalised in Germany’s 1949 Constitution. The
FRG thus became a pilot project for domestic courts exercising their new role as
trustees of the observance of international human rights.
Under the guardianship of the FCC, German courts made a significant contribu-
tion to overcoming the legacy of the Nazi dictatorship by firmly entrenching human
rights in German law and society. It was, however, not only in this domestic sense
that German courts, and in particular the FCC, evolved into international human
rights courts. The FCC’s fundamental rights jurisprudence fleshed out important
doctrinal aspects of international human rights law and thereby exerted significant
influence on the European Court of Human Rights, as well as many constitutional
and supreme courts around the world.
It is only in its more recent jurisprudence that the FCC has started to reflect on
and adapt to the increasingly transnational dimension of its role as trustee of the
observance of international human rights. The FCC struggled at first with losing its
exclusive position as the ultimate guardian of human rights in Germany to the
ECtHR and other international courts and treaty bodies. Strasburg judgments
pointing out shortcomings in German fundamental rights jurisprudence were
initially rejected as unjustified interventions in ‘domestic sub-systems of law’.
The FCC even felt the need to reassure the German public that it would neither
submit to ‘non-German’ acts nor relinquish the ‘last word’ of the German
constitution.
This bellicose rhetoric burdened not only the relationships between the FCC
and the ECtHR. The FCC also displayed a worrying lack of awareness of the
responsibility imposed on it by virtue of the particular authority attributed to its
case law by other courts in Europe and beyond. The Russian Constitutional Court
gratefully relied on the FCC’s jurisprudence to buttress its refusal to implement
ECtHR judgments within the Russian legal order. The ‘radiating effect’ of the
FCC’s case law had suddenly become a liability for international human rights
protection.
Today, the FCC’s harsh rhetoric has given way to a constructive dialogue with the
ECtHR and other international courts and treaty bodies. The FCC’s more recent
jurisprudence displays a much greater awareness of the fact that the protection of
human and fundamental rights is part of a common endeavour by all states and treaty
systems, which, like Germany in its 1949 Constitution, have made a solemn
commitment to follow the lodestar of the UDHR.
Germany 495
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Italy
The Italian Constitutional Court and the Impact
of the European Convention of Human Rights in Italy
Elena Sciso
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
2 ECtHR Judgments Involving Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
3 Responses to ECtHR Case Law by the Italian Legislator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
4 Responses to ECtHR Case Law by the Italian Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
1 Introduction
The European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), signed in Rome on November 4, 1950, and entered into force on
September 3, 1953, was ratified by Italy in 1955. Only years later, in 1973, Italy
accepted through an ad hoc declaration the competence of the existing supervisory
bodies—then the European Commission of Human Rights, an inquiry body that
supported the Court, and the Court as a deciding organ—to receive individual
applications filed against Italy by any person, nongovernmental organization, or
group of individuals claiming to be victims of a violation of the rights and freedoms
recognized by the Convention. This declaration, initially valid for a period of
2 years, was then extended.
This chapter discusses certain important judgments by the European Court of
Human Rights (ECtHR) against Italy. It then focuses on the responses by the Italian
legislator and judiciary, respectively, to this case law, with a focus on the judgments
of the Constitutional Court.
E. Sciso (*)
Public International Law, International Economic and Environmental Law, and International
Organizations and Human Rights, Luiss University of Rome, Rome, Italy
Luiss Guido Carli, Rome, Italy
e-mail: esciso@luiss.it

https://doi.org/10.1007/978-3-319-94848-5_20
498 E. Sciso
2 ECtHR Judgments Involving Italy
Following the tradition of the Council of Europe’s member States, Italy recognizes
and guarantees all fundamental rights and freedoms protected under the European
Convention, also at the constitutional level, according to Article 2 of the Italian
Constitution.1 However, the ECtHR often considered that the level of domestic
protection provided to some of these rights was not substantially equivalent to the
level of protection required by the Convention and went on to condemn Italy for
breach of the related obligations.
For instance, the Court has often found that Italy was in violation of Article
5 ECHR, safeguarding the right to personal liberty, because of the excessive length
of preventive detention. This happened especially with regard to the Italian emer-
gency legislation adopted in the 1970s, aimed at combatting internal terrorism by the
“Red Brigades,” which has also been applied to Mafia cases.2
Likewise, the ECtHR has repeatedly declared Italy to be in violation of the fair
trial requirements set forth in Article 6 ECHR, especially in relation to the excessive
length of both civil and criminal proceedings. It is the prime example of the category
of so-called repetitive cases before the ECtHR.3 With regard to the obligations
related to the protection of private property rights, as provided for in Protocol 1 to
the ECHR, the ECtHR has often considered inadequate the parameters used in the
domestic law to calculate the appropriate compensation in cases of expropriation or
of measures otherwise restricting the individual right to property.4
In recent years, the European Court censured the Italian government because of
some initiatives adopted to combat illegal immigration. In Hirsi v Italy, for instance,
the Italian Navy had intercepted boats with migrants on the high seas and enforced
their deportation back to Libya on the basis of bilateral agreements concluded with
Libya in 2009 (and suspended by Italy in February 2011), from where some of them
were sent to their countries of origin. The Court held that such conduct violated the
Convention since migrants were subject to collective expulsion prohibited under
Article 4 of Protocol No 4 and exposed to the risk of torture or inhuman and
degrading treatment in Libya or in the countries of origin, Somalia and Eritrea, in
violation of Article 3 ECHR. As those migrants, once on board Italian military ships,
were not allowed to apply for asylum or to claim the protection available under the
refugee status but were instead carried back to Libya without prior individual
1
For the status of the ECHR and ECtHR judgments in Italian domestic law, see contributions in
Repetto (2013); see also Sciso (2008), Candela Soriano (2008) and Sonelli (2015).
2
See, Guzzardi v Italy, Ser A 39 (1980), para 102; Ciulla v Italy, Ser A 148 (1989), para 40.
Currently, the law lays down the maximum periods of preventive detention in relation to individual
crimes.
3
See e.g. ECtHR, Gaglione et al. v Italy, judgment of 21 Dec 2010, no 45867/07, requiring Italy to
take general measures to remedy structural problems. In the list of the countries that most often
violate Art 6, prepared by the ECtHR, Italy tops the list with regard to the length of proceedings and
figures as fifth as regards the violation of other parameters of fair trial.
4
See, for instance, ECtHR, Scordino v Italy (No. 1), judgment of 29 Mar 2006, no 36813/97, para 82.
Italy 499
identification, the Court also found that Italy had violated, with respect to the two
abovementioned provisions, Article 13 ECHR concerning the obligation to guaran-
tee effective remedies.5
In more recent decisions on this issue, the ECtHR equally condemned Italy for the
violation of the same provisions of the Convention.6
There are also judgments involving systemic prison issues. In Torreggiani and
Others v Italy, the ECtHR condemned Italy, finding in the conditions of the detainees
in Italian prisons some elements that it interpreted as violations of Article 3 ECHR,
prohibiting torture and inhuman and degrading treatment.7 In this case, considering
that the violations related to a general situation in Italian detention centers and thus
constituted systemic violations, the Court suspended for 1 year the examination of
analogous individual applications, giving Italy the time to adopt the necessary
measures in order to ensure non-repetition. To execute this decision, the Italian
Government adopted Law Decree 92/2014, which establishes a new “compensatory”
remedy, according to which an inmate, whose imprisonment could be considered in
breach of Article 3 of the Convention, may apply to a supervisory judge for a
reduction of the sentence which remains to be served.8 Moreover, once released,
the individual may apply to the civil courts for pecuniary compensation.9
In a case involving ill-treatment by an antiriot unit at the end of the G8 summit in
Genoa in July 2001, the ECtHR concluded in 2015 that the inadequate criminal
5
ECtHR, Hirsi Jamaa and others v Italy, judgment of 23 February 2012, no 27765/09. For these
reasons, and considering the other violations ascertained, the Court ordered Italy to pay the sum of €
15,000 to each of the applicants. More specifically, in this interesting decision, the ECtHR
recognized, in line with what Italy argued, that Art 3 ECHR and Art 4 of Protocol No 4 on the
prohibition of collective expulsion refer to the territory of the State. Nevertheless, the ECtHR used
the opportunity of an extraterritorial interpretation of Art 4 of Protocol 4 to safeguard its useful
effect in the specific circumstances. In fact, according to the Court, if the provision at issue applied
only to the expulsion from the territory of the State, a typical aspect of the contemporary migration
phenomenon would remain outside the scope of application of the provision. Otherwise, migrants
deciding to cross over the sea risking their lives without any chance of reaching the territory of the
State would not be entitled, before suffering a possible expulsion, to be considered for a protection
grant (as refugees or asylum seekers), in contrast to migrants travelling on land.
6
Cf ECtHR, Sharifi and others v Italy and Greece, judgment of 21 Oct 2014, no 16643/09 and
Khlaifia and others v Italy, judgment of 15 Dec 2016, no 16483/12.
7
ECtHR, Torreggiani and others v Italy, judgment of 8 Jan 2013, no 43517/09.
8
The law establishes one day of reduction, for every ten days spent in detention conditions which
were not compliant with Art 3 ECHR.
9
The due compensation is eight Euros per day for the time spent in detention conditions not in
compliance with Art 3 ECHR. The pecuniary compensation remedy also applies to persons who
spent less than 15 days in such conditions or if the sentence remaining to be served is shorter than a
period which could be deducted. Some additional initiatives have been adopted, concerning:
(1) legislative measures aimed at increasing the use of alternative measures to imprisonment by
removing mandatory imprisonment for a number of minor offenses, limiting the use of detention for
minor offenses and increasing possibilities for prisoners to benefit from early release in certain
circumstances; (2) organizational measures, mainly focused on improving living conditions by
increasing freedom of movement of prisoners outside their cells; (3) renovation of prisons (Progress
of the Action Plan Submitted to the Committee of Execution of Sentences).
500 E. Sciso
legislation concerning the punishment of acts of torture was not an effective deter-
rent to prevent the repetition of the ill-treatment found. It also stressed the structural
nature of the problem and pointed out that Italy’s positive obligations under Article
3 might include the duty to introduce a properly adapted legal framework, including,
in particular, effective criminal law provisions.10 Until recently, in fact, the crime of
torture, as specifically defined in accordance with Italy’s international obligations,
was not included among the criminal offenses provided for in the domestic criminal
code. Only in July 2017, the Italian Parliament adopted Law n 110/2017 introduc-
ing the crime of torture in the Italian Criminal Code as well as in the Code of
Criminal Procedure.11 In 2016, in the Abu Omar case, the ECtHR had found Italy
responsible for a violation of Article 3 of the Convention in a case involving
impunity and extraordinary rendition.12 In addition, the ECtHR has also dealt with
a case involving violations of Articles 2 (right to life), 3 (prohibition on inhuman or
degrading treatment), and 14 (freedom from discrimination) ECHR for failure to
take prompt action on a complaint concerning domestic violence.13
3 Responses to ECtHR Case Law by the Italian Legislator
Especially in the last cases mentioned, where the violation found by the ECtHR
arose from structural gaps in the domestic legal order rather than from the
misapplication of laws, the Italian legal order does not provide for effective remedies
to ensure the execution of the judgment of the Court or to prevent the repetition of
ascertained violations. On a legislative level, only few and ineffective measures have
been taken. In 2001, a law, the Pinto law, was adopted in order to prevent individual
claims to the ECtHR concerning the excessive length of proceedings, granting to
individuals a remedy to obtain compensation for damages caused by the excessive
length of proceedings.14 Nevertheless, since then, the ECtHR has still been seized of
10
ECtHR, Cestaro v Italy, judgment of 7 Apr 2015, no 6884/11.
11
The Italian Parliament discussed the adoption of the crime of torture as a domestic criminal
offense within the Italian criminal law system on various occasions in the last five legislatures, the
most recent being Draft Bill C. 2168, discussed and approved by the Chamber of Deputies on 9 Apr
2015. The draft bill was sent to the Senate, and here discussion has stalled on 19 Jul 2016. Later on,
the discussion was resumed and the Italian Parliament adopted a new statute on torture in July 2017.
In several respects, however, Law n 110/2017, which entered into force on 18 July 2017, does not
comply satisfactorily with the international obligations of Italy. See Lattanzi (2018).
12
ECtHR, Nasr and Ghali v Italy (Abu Omar case), judgment of 23 Feb 2016, no 44883/09.
13
See ECtHR, Talpis v Italy, judgment of 2 March 2017, no 41237/14.
14
The Pinto law, No 89 of 24 Mar 2001, provides that the suit may be brought to the Court of
Appeal (with the possibility of a further appeal to the Supreme Court) against the authorities
involved. Those are the Ministry of Justice, for proceedings before the ordinary courts; the Ministry
of Defence, for proceedings before the military judge; the Ministry of Economy and Finance, for tax
proceedings; the President of the Council of Ministers, in other cases. The Court of Appeal must
decide on the application within 4 months. If a violation is ascertained, a ‘fair compensation’ to the
Italy 501
applications related to this Pinto law. Such applications have been generally
accepted by the ECtHR, which considered the remedy offered by domestic law
ineffective and criticized the restrictive criteria applied by Italian judges with regard
to the occurrence and the estimate of damages in case of a violation of the reasonable
duration of a trial.15 Many years after the 2001 adoption of the Pinto law, in 2016,
the Strasbourg Court found Italy responsible once more for violation of Article
6 ECHR in relation to the excessive length of judicial procedures, declaring inef-
fective the remedies provided by Legge Pinto.16
In 2006, a law was introduced specifically dealing with the execution of judg-
ments of the ECtHR.17 It charged the President of the Council of Ministers to
promote the execution of decisions by the ECtHR against Italy for which the
government is responsible. The law states that such judgments should be commu-
nicated promptly to the Parliament to be examined by competent parliamentary
committees and that the Head of the Government should report annually to the
Parliament on the state of execution of the Strasbourg Court’s judgments. Yet no
concrete measure has been taken so far. The law also contains a provision to
facilitate the payment of the sums awarded by the ECtHR as compensation to the
victims, stating that the payment of such amounts should be made by the Ministry of
Economy. The formalities required by this law shall be carried out by an appropriate
Department of the Presidency of the Council. However, by March 2017, it seems that
this legislation has not yet resulted in the full execution of the judgments of the
ECtHR.
On the specific issue of the execution of the ECtHR’s judgments ascertaining a
violation of the parameters of fair trial, the Council of Ministers gave an important
warning signal by the draft bill concerning the reform of the criminal trial approved
in February 2009. Article 9 of the draft bill provided for a modification of Article
630 of the Criminal Procedure Code by including the case of a supervening
judgment of the ECtHR finding a violation of Article 6 (3) ECHR concerning the
right of defence among the grounds that justify a review of a final judgment. Yet so
far, the draft bill did not conclude its legislative procedure.
4 Responses to ECtHR Case Law by the Italian Judiciary
In contrast to cases where internal law conflicts with a provision of EU law or a

preliminary ruling by the European Court of Justice, Italian courts cannot disregard a
domestic legislative measure that contradicts obligations arising from the European
applicant is granted. Formally, the legislative measure does not forbid the subsequent appeal to the
Strasbourg Court.
15
See, for example, ECtHR, Scordino v Italy (No. 1), judgment of 29 Mar 2006, no 36813/97.
16
See e.g. ECtHR, Olivieri and others v Italy, judgment of 25 February 2016, no 17708/12.
17
Law No 12 of 9 Jan, containing “provisions on the execution of judgments of the ECtHR.”
502 E. Sciso
Convention by directly enforcing an ECtHR judgment ascertaining a violation of the

Convention. Neither may the judge give direct effect to a judgment of the ECtHR
providing a review of a final domestic court decision in which a violation of the
parameters of fair trial under Article 6 of the Convention had been found.
The Italian Constitution regulates the relationship between the domestic legal
order and international obligations of the State in specific norms. Article 10 (1) states
the principle of conformity of the internal legal order with rules of general interna-
tional law. Article 117 (1), as amended by Constitutional Law No. 3 of October
18, 2001, provides that the legislative competences of the State and of autonomous
territorial entities must be exercised in line with the Constitution, the obligations
deriving from European legal order, and the international obligations of the Italian
State. Nevertheless, this does not mean that the international norms prevail, in case
of conflict, over domestic law.
The content and the effects of the abovementioned constitutional provisions have
been clarified by the Constitutional Court (Corte Costituzionale) in a series of
judgments, starting from two cases of 2007 with specific regard to the ECHR and
to the effect of the ECtHR decisions in the Italian legal order.18 The principles
outlined in these decisions have been reiterated in various subsequent judgments. It
is based on this case law that the relation between the Italian legislation and the treaty
obligation of the State has to be assessed, despite some sporadic positions in favor of
a “direct application” of ECtHR judgments by the Supreme Court of Cassation
(Corte Suprema di Cassazione).19
First of all, the Constitutional Court made clear that Article 117 (1) of the
Constitution governs exclusively the relationship between the Italian legal order
and international conventional norms, not concerning general international law, to
which another constitutional provision, Article 10 (1), refers.
Second, the Court held in unequivocal terms that, despite the fact that the wording
of Article 117 (1) of the Constitution places on the same level the obligations of the
State deriving from the EU membership and other conventional international
18
Cf the “twin judgments” No 348 and 349 (22 Oct 2007).
19
Since the approval of Protocol No 14 and the adoption of the domestic legislative measures
authorizing its ratification and implementation, the Supreme Court of Cassation developed an
approach aimed at recognizing direct effect to the ECtHR’s judgments, in clear contrast with its
previous case law. The internal system of sources of law did not provide for mechanisms giving
binding effect to ECtHR judgments for the national judge. However, in Drassich, judgment of
11 Dec 2008, no 45807, for example, the Court, analogically applying Art 625 of the Code of
Criminal Procedure providing for the extraordinary appeal against judgments of the Supreme Court
of Cassation for material or factual error, has partially removed the effect of res judicata of a
previous judgment. It ordered the partial reopening of the case as a result of an ECtHR judgment
declaring the process unfair because of a violation of Art 6 ECHR. In a previous judgment of 27 Jan
2007, no 2800 (Dorigo), the Supreme Court of Cassation annulled a criminal conviction formulated
as a result of a process that the ECtHR had declared unfair because of the violation of Art 6 of the
Convention (in particular, with regard to the right to defence of the applicant). Accordingly, the
Court provided for the release of the applicant despite a final criminal conviction. Decisions by the
Supreme Court of Cassation can be found at https://pst.giustizia.it.
Italy 503
obligations, the constitutional provision has to be construed as referring uniquely to

the latter. The amended formulation of Article 117 does not affect the results reached
by the Constitutional Court’s case law with respect to the internal ranking of EU law
based on a different constitutional provision, namely Article 11. Article 11 provides
a “constitutional umbrella” for limitations or transfer of sovereignty to which the
State has agreed, under an international treaty and according to conditional reciproc-
ity with other States, in favor of legal regimes (or organizations) aimed at ensuring
peace and justice among nations. The original function of this article was to ensure
the participation of Italy in the United Nations. However, it has been constantly
referred to by the Constitutional Court,20 based on the principle of separation
between the Community legal system and the domestic legal order, as a means to
anchor the preeminence of directly applicable Community law (including the pre-
liminary judgments of the ECJ) over domestic law. Therefore, in accordance with
Article 11 of the Constitution, in case of conflict, the national judge must apply EU
rules directly, also secondary legislation, and set aside conflicting domestic law. That
conclusion is also valid in principle, in the opinion of the Constitutional Court, for
any other international treaty regulating a transfer of sovereignty from the State to an
international organization or entity.21According to the Constitutional Court, Article
11 of the Constitution cannot be used for the purposes of clarifying the internal
ranking of ECHR obligations and the effects that have to be accorded to ECtHR
judgments in the domestic legal order. The Constitutional Court expressly recog-
nizes the peculiarities of the European Convention system, which goes beyond the
mere summation of reciprocal rights and obligations of the parties and provides for
the institution of a judicial organ—the ECtHR—entrusted with the interpretation of
treaty obligations and the assessment of any violation of the Convention by means of
binding judgments. However, according to the Constitutional Court, no limitations
or transfer of sovereignty from the State in favor of the ECHR or the ECtHR is
detectable. Moreover, the European Convention, having regard to the structure,
objectives, and nature of its provisions, does not “[. . .] impact directly and immedi-
ately the legal position of individuals” and, therefore, it does not allow the national
judge directly to set aside a conflicting internal rule.22 For those reasons, in the
Court’s opinion, with respect to fundamental rights, recourse to Article 11 of the
Constitution was not justified.23
20
See the well known judgment no 232, I.N.C.I.C. S.p.a. v Ministry of Foreign Trade (10 Oct 1975)
and order no 170, Granital Spa. (5 June 1984); all cases of the Italian Constitutional Court are found
at www.giurcost.org. Accessed 11 July 2017.
21
This is said without prejudice the discussion below, Sect. 5.
22
Const Court, no 349 (22 Oct 2007), para 6.1.
23
This fundamental conclusion of the Constitutional Court has remained applicable even after the
entry into force of the Lisbon Treaty, which qualifies the fundamental rights recognized by the
European Convention as “general principles” of EU law (Art 6 (3) TEU). In the opinion of the
Court, the principles at issue only count with respect to cases where EU law applies and not to the
cases that are solely governed by national law. Cf Const Court, no 80 (7 Mar 2011).
504 E. Sciso
Furthermore, to apply Article 10 of the Constitution in order to grant constitu-

tional rank to the ECHR would not be justifiable either. The European Convention is
an international treaty, source of a jus particulare, even though some of its pro-
visions could be found to correspond to general international law rules and thus be
applied in the domestic legal order by means of Article 10 (1) of the Constitution.
Some provisions of the European Convention could also coincide with treaty rules
concerning the treatment of aliens, to which Article 10 (2) of the Constitution
refers.24
Seen in this light, the issue of consistency of domestic law with the European
Convention on Human Rights and the determination of the Convention’s internal
rank is to be assessed exclusively under the “new” constitutional parameter offered
by Article 117 (1) of the Constitution. In this regard, following a systemic interpre-
tation, the Court comes to the conclusion that Article 117 (1) does not entail a
“constitutionalization” of rules of an international treaty incorporated into the
domestic legal order by means of ordinary law, as it is the case with the ECHR
provisions.25 Rather, international obligations of the State, to which Article
117 (1) of the Constitution refers, specified in their content case by case through
the relevant treaty, serve as a parameter of constitutional validity of the
domestic law.
On this basis, according to Article 117 (1) of the Constitution, national judges are
required, firstly, to interpret domestic law in accordance with the rules of the
European Convention as specified and applied by the Strasbourg Court, as far as it
is permitted by the wording of the rules concerned. Secondly, in the case in which no
consistency can be achieved between the two rules by means of interpretation, the
judge will have to submit to the Constitutional Court an issue of constitutionality of
the domestic provision in the light of the parameter offered by Article 117 (1) of the
Constitution. Thirdly, the Constitutional Court will have to establish whether an
irreconcilable conflict actually exists between the internal legislative measure and
the ECHR provisions. At the same time, it has to verify “whether those standards, as
interpreted by the Strasbourg Court, ensure to fundamental rights a protection at least
equivalent to the Constitution” in order to pursue a “proper balance” between the
need to ensure compliance with international obligations on the one hand and the
need to avoid that such compliance produces, on the other hand, a violation of the
Constitution.26
The coordination between national law and obligations of the State stemming
from the ECHR thus takes place through two phases and on two levels, integrating
each other in order to ensure at the same time the compliance of the domestic legal
24
See Const. Court judgment, no 349 (22 Oct 2007), para 6.1.
25
The internal legal order adjusts to conventional international norms usually through an ordine di
esecuzione on the level of ordinary law. Following the ordine di esecuzione in the internal legal
order, norms corresponding in toto to the provisions of the relevant treaty would arise. Art
117 (1) also regulates the internal rank of these provisions. Therefore, it assumes that the treaty
has been “transferred” into the internal legal order through the adjustment procedures.
26
Const Court, no 349 (22 Oct 2007), para 6.2.
Italy 505
order with the international obligations of the State and the recognition of the highest
degree of protection to individual rights. In this perspective, it should be noted that,
even before the abovementioned 2007 twin judgments, a consistent case law by the
Constitutional Court had recognized that the provisions of the European Convention
as clarified by the Strasbourg Court had an interpretative value with regard to
constitutional principles and parameters concerning the safeguard of individual
fundamental rights.27
As underlined, the consistency of national legislation with treaty obligations of
the State has to be pursued by the national judge through the principle of “consistent
interpretation” (interprétation conforme).28 The feasibility of such an interpretation
should be secured by resorting to all hermeneutic means available to the judge,
including, where not precluded by the provision at issue, the use of an extensive
interpretation of the domestic rule by analogy or even by radically correcting a
consolidated interpretative approach.29
27
In judgment no 187 (28 May 2010), the Constitutional Court ruled out an internal law, which
made the granting to non EU-foreigners of social and economic benefits dependent on the
possession of a residence permit (i.e. a certificate that a foreigner can obtain only after 5 years of
continuous presence on the territory of the State). The Court concluded that the distinction between
citizens and non-EU foreigners regularly living in the State was not in conformity with constitu-
tional standards, the more so considering that the measure concerned was inconsistent with the
principle of nondiscrimination enshrined in Art 14 ECHR as clarified by the ECtHR case law. In a
subsequent judgment (no 245, 25 Jul 2011), the Constitutional Court declared a legislative measure
unconstitutional preventing non-EU foreigners from getting married in Italy with an Italian citizen
unless submitting to the registrar a document certifying the regularity of their residence in the Italian
territory. According to the Constitutional Court, the contested measure was contrary to constitu-
tional principles and standards both because of a disproportionate breach caused to the fundamental
freedom to marry, vis-à-vis the need of ensuring the security interests of the State, and because of a
conflict with the right to marriage as recognized in Art 12 ECHR.
28
Indeed, that principle has been expressly recognized by the Court of Strasbourg (see the case
Scordino v Italy, supra, n 4), according to which the character of subsidiarity, which the interna-
tional protection possesses with respect to the primary protection offered by domestic law, implies
that the latter has to be interpreted and applied consistently with Convention standards.
29
One example is a recent Court of Cassation decision concerning the application Art 44 (2) of the
law on construction and urban planning, no 380 (6 June 2001). This rule provides the confiscation
of property as a criminal sanction for confirmed abusive parcelling; nevertheless, this expropriation
measure has traditionally been classified as an administrative sanction in the internal case law and,
as such, it has been applied even in the absence of a judgment of conviction, against the property
belonging to a third party acting in good faith. The ECtHR in Sud Fondi and others v Italy,
judgment of 20 January 2009, no 75909/01, qualified the confiscation as a criminal sanction and
found a violation of Art 7 ECHR and Art 1 AP No 1 to the extent that the measure was not
accompanied by appropriate compensation; see Sciso (2009). Following the ECtHR decision, the
Court of Cassation made a substantive interpretative revirement to remedy what appeared to be a
“systemic violation” with the potential to repeat itself until repeal of the contested legislative
measure or a radical correction of the interpretative approach. The Court, formally, did not leave
its traditional line of interpretation and in fact confirmed the independence of the qualification
criteria adopted in domestic law against those used by the ECtHR; it stated, accordingly, that the
notion of punishment adopted within the Convention does not necessary correspond with that
embodied within domestic law. Nevertheless, on the basis of a consistent interpretation by the
506 E. Sciso
Thus, a recourse to the Constitutional Court may be claimed by the ordinary judge
only insofar as an interpretation “constitutionally oriented” proves unfeasible due to
the presence of an inherent inconsistency of the internal rule that the judge cannot
autonomously disregard.30
The ultimate goal of both the interpretation of the ordinary judge and the
constitutional control subsequently exercised by the Constitutional Court is twofold:
to ensure the consistency of domestic law with international treaty obligations of the
State and, with regard to the European Convention, to realize the broadest protection
of fundamental rights within the internal legal order.31 To this end, the control by the
Constitutional Court will be directed (a) to exclude a domestic rule that entails a level
of protection that lags behind relevant ECHR guarantees and (b) to prevent that the
incorporation of a conventional rule involves a lower level of protection than, or
even a breach of, constitutional provisions that protect other fundamental rights.32
The purpose of this jurisprudence is to realize the necessary balance with other
constitutionally protected values and interests, within the limits of the “margin of
appreciation” granted by the Strasburg Court to member States. It should be noted
that this goal of the Constitutional Court can be also considered legitimate in the
light of the conventional system itself according to Article 53 of the European
Convention.33
The obligation of interprétation conforme finds, at present, an insurmountable

barrier in the prohibition for the judge to proceed with an interpretation contra
legem, e.g. a direct application of the conventional rule, also considering the judge’s
duty to adopt an interpretation reflecting the preeminence of the Constitution
ECtHR as well as related domestic law, the Cassation Court has excluded that the confiscation
measure can be imposed on third parties. On the other hand, the Court ruled that the confiscation,
where otherwise justified by an overriding public interest, must be accompanied by an appropriate
compensation measure, in line with the indication of the Strasbourg Court (Criminal Court of
Cassation, no 23761, 22 Oct 2010). See Sciso (2010).
30
The prior interpretative assessment constitutes a condition of admissibility of the issue of
constitutionality, as the Constitutional Court explicitly asserted in judgment no 239 (15 Jul
2009), considering that the ordinary judge failed to conform to the supervening ECtHR’s case-
law in the exercise of its interpretative powers, notwithstanding the fact that the contested provision
did not expressly prevent him to do so.
31
See Const Court judgment, no 317 (30 Nov 2009).
32
Ibid.
33
According to Art 53 ECHR, the Convention shall not limit nor derogate from any of the human
rights and fundamental freedoms ensured under the laws of any State Party or under any other
agreement to which it is a party if the latter guarantee a higher level of protection than the
Convention.
Italy 507
vis-à-vis the European Convention.34 Moreover, according to the Constitutional

Court, domestic courts have no obligation to pursue a consistent interpretation of
the internal rule with regard to an ECtHR judgment that does not express a
“consolidated case law.”35 The Committee of Ministers of the Council of Europe has
urged member States, through the adoption of some recommendations, to ensure the
consistency of domestic law with the obligations provided for in the Convention by
allowing national judges not to apply the inconsistent internal measures and, where
possible, to attribute direct effect to the ECtHR’s judgments.36 Yet despite this, the
position of the Constitutional Court has long remained very cautious. With regard to
the internal remedies to ensure the enforcement of ECtHR judgments assessing the
unfairness of a trial conducted in violation of Article 6 of the Convention, for
example, the Constitutional Court has definitely excluded the possibility for the
judge to directly apply the Strasbourg Court decision, emphasizing the role of the
legislator instead, stressing:
the urgent need for the domestic legal order to envisage appropriate measures . . . to repair
the consequences of the violations . . . of due process ascertained by judgments of the
Strasbourg Court.37
Nevertheless, against the inertia of the legislator, the Constitutional Court sub-
sequently intervened to expand the grounds for review by declaring unconstitutional,
in the light of Article 117 (1) of the Constitution, Article 630 of the Code of Criminal
Procedure, insofar as it does not provide for the reopening of proceedings when
necessary to comply with a final judgment of the Strasbourg Court. At the same time,
the Court once again emphasized the urgency for the legislator to act
in order to regulate by different means the mechanism of adaptation to the final judgments of
the Strasbourg Court, as well as to provide for rules on the specific aspects of it which the
present Court [the Constitutional Court, ed.] could not intervene upon [. . .].38
The Constitutional Court’s case law on the impact of the judgments of the ECtHR
in the Italian legal order highlights the willingness of the Court to use ECtHR case
law to ensure the highest level of protection of fundamental human rights through a
virtuous integration of the relevant constitutional principles with the European
standards as clarified by the hermeneutic activity of the Strasbourg Court.39 How-
ever, in pursuing this goal, the Constitutional Court is fully aware that, in principle,
34
Const Court, judgment no 49 (14 Jan 2015).
35
Ibid., para. 7.
36
In this context, the reopening of the case has been indicated as the most appropriate mechanism
for the restitutio in integrum in cases of violations of the procedural guarantees provided for in Art
6 ECHR (see Recommendation R (2000) 2).
37
See Const Court, judgment no 129 (16 Apr 2008).
38
See Const Court, judgment no 113 (4 Apr 2011).
39
See, as a recent example, the Constitutional Court’s judgment no 36 (19 Feb 2016). With this
judgment, the Court declares unconstitutional a provision of Legge Pinto (supra, n 14) because of
the excessive length of the remedial procedure, according to relevant case law of the European
Court.
508 E. Sciso
its decisions do not have normogenetic value. Even the monitoring activity over the
compliance with Italy’s international obligations, which the Constitutional Court
indirectly carries out on the basis of the abovementioned constitutional provisions,
finds a limit in the systemic deficiencies of the internal legal order and the inade-
quacy of the existing legal procedures. Such an issue cannot be overcome at a
hermeneutic level through the activity of interpretation and reconstruction of the
judge. In such cases, the intervention of the legislator, repeatedly encouraged by the
Constitutional Court, is indispensable. On the other hand, for the time being, it seems
unrealistic that the Constitutional Court could be induced—through an emphasis on
some “new” elements of the control mechanism over the execution of ECtHR’s
judgments as governed by Article 46 ECHR (repeatedly evoked in the most recent
constitutional case law) or in the light of the EU’s accession to ECHR—to evaluate
the opportunity to frame the relationship between domestic law and the Convention
within a perspective different from the one outlined in the judgments of 2007
until now maintained, by extending the reasoning developed with regard to directly
applicable EU law to the European Convention and the European Court’s judgment.
Furthermore, and to conclude, it is worth considering that the case law of the
Constitutional Court has constantly affirmed the preeminence of constitutional core
values and principles (such as the protection of fundamental human rights) over the
respect for international obligations of the State as provided for in the Constitution
itself. The Court does so by having recourse to the doctrine of “counter-limits” and
thus barring the entrance in the domestic legal order to any external rule or value
(be it of general as well as conventional international law) that could jeopardize the
constitutional core values on which the internal legal order is founded.40
A substantially equivalent view has been expressed by the Constitutional Court
more recently in relation to an EU rule directly applicable, Article 325 TFEU. This
provision aims at the protection of the financial interests of the European Union by
means of domestic criminal law. Following a judgment given by the European Court
of Justice (ECJ), according to which the national judge had to ignore the rules
concerning the domestic regime of prescription established in the Italian criminal
code in order to give application to the European rule,41 the Constitutional Court,
acting under Article 267 TFEU, referred questions of clarification to the ECJ. Should
the ECJ interpret Article 325 TFEU in a way that conflicts with the constitutional
principle of legality in criminal proceedings, as it is the opinion of Italian judges
called upon to give it application in conformity with the decision of the Court of
40
A good example of that reasoning is the Constitutional Court decision no 238 (22 Oct 2014). By
an interpretative judgment of dismissal, the Italian Constitutional Court declared that the customary
rule on State immunity, as interpreted by the ICJ judgment in Jurisdictional Immunities of the State
(Germany v Italy, ICJ Rep. 2012, 99), has never entered the domestic legal order because of its
inconsistency with constitutional core values and principles (such as the right to a judge, Art 24, and
the protection of fundamental human rights, Art 2). Consequently, the Court declared the uncon-
stitutionality of the legislative measures enacted by Art 3 of Law 14 Jan 2013 no 5 to give effect to
the ICJ judgment.
41
See ECJ, case C-105/15, Taricco (8 Sep 2015).
Italy 509
Justice, the European rule could not be applied.42 The said conclusion, in the opinion
of the Constitutional Court, follows from the principle of fair cooperation between
the EU and member States established in Article 4 (3) TEU and from the respect for
constitutional customs shared by member States recognized in Article 6 (3) TEU. It
can be added that the conclusion reached by the Constitutional Court is supported by
Article 53 ECHR and also by Article 53 of the EU Charter on Fundamental
Rights. With a judgment given on 5 December 2017, the EU Court of Justice has
agreed with the view expressed by the Italian Constitutional Court (M.A.S.,
M.B. C-42/17).
References
Candela Soriano M (2008) The reception process in Spain and Italy. In: Keller H, Stone Sweet A
(eds) A Europe of rights – the impact of the ECHR on national legal systems. Oxford University
Press, Oxford, pp 393–450
Lattanzi F (2018) La nozione di tortura nel codice penale italiano a confronto con le norme
internazionali in materia. Rivista di diritto internazionale 101:151–184
Repetto G (ed) (2013) The constitutional relevance of the ECHR in domestic and European law – an
Italian perspective. Intersentia, Cambridge
Sciso E (ed) (2008) Il rango interno della Convenzione europea dei diritti dell’uomo secondo la più
recente giurisprudenza della Corte costituzionale. Aracne, Roma
Sciso E (2009) Punta Perotti a Bari: ancora una condanna per una confisca da parte della Corte
europea dei diritti dell’uomo. Rivista di diritto internazionale 92:487–496
Sciso E (2010) Il principio dell’interpretazione conforme alla Convenzione europea dei diritti
dell’uomo e la confisca per lottizzazione abusiva. Rivista di diritto internazionale 93:131–134
Sonelli S (2015) Convenzione europea dei diritti dell’uomo e giudici nazionali nella giurisprudenza
“trial and error” della Corte costituzionale. Rivista di diritto internazionale 98:1155–1170
42
See Const Court order, no 24 (26 Jan 2017). In the same perspective, see Const Court judgments,
no 183 (27 Dec 1973) and no 232 (10 Jan 1989) and more recently no 269 (14 Dec. 2017).
Japan
Implementation of International Human Rights by
Japanese Courts
Koji Teraya
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
2 Brief History: Forming Legal Substrata and Waves of Internationalization . . . . . . . . . . . . . . . 513
3 Basic Framework: Promoting and Hindering Factors for International Human Rights . . . 515
3.1 Three Main Issues in Framing a System to Implement Human Rights Treaties
in the Domestic Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516
3.2 The Issue of “Direct Applicability” or “Self-Executing Treaty” . . . . . . . . . . . . . . . . . . . . . 520
4 Widespread Practice in the Use of International Human Rights Law in Domestic
Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
4.1 The General Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
4.1.1 Significance of International-Law-Friendly Interpretation or Indirect
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
4.1.2 Main Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
4.2 The Specific Situation: Human Rights Protection in the Private Sphere . . . . . . . . . . . . 528
4.2.1 Unique Problems in the Private Sphere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
4.2.2 Doctrines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
4.2.3 Main Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
The present author appreciates the comments by the members of the ILA Human Rights Law
Committee, especially Stefan Kadelbach, to the earlier draft. In researching laws in Japan, the
problem is that there is no official translation of judgments, decisions and laws in Japan. Unless
otherwise noted, all the translations of Japan’s laws are from http://www.
japaneselawtranslation.go.jp/?re¼02 (last access 10 Apr 2017), which is furnished by the
Ministry of Justice, though the translation is not official. The translations of judgments and
decisions are made by the present author, if so indicated.
K. Teraya (*)
Graduate Schools for Law and Politics, University of Tokyo, Tokyo, Japan
e-mail: teraya@j.u-tokyo.ac.jp

https://doi.org/10.1007/978-3-319-94848-5_21
512 K. Teraya
1 Introduction
Focusing on a specific state may seem to be of limited significance in research on the

implementation of human rights treaties because this topic should be a general
agenda, in view of the universal character of human rights. Parochial aspects usually
hinder any generalization of the way international human rights treaties are
implemented.
Nonetheless, research on this topic with respect to Japan seems to provide a
unique usefulness. In addition to the practical, simple, but important reason that a
population of more than one hundred million is under the jurisdiction of Japan,
several qualitative reasons should also be mentioned. Firstly, it is worth emphasizing
that Japan is an Asian state, far from the birthplace of the concept of human rights.
One of the criticisms of human rights theory is that the concept was born under
specific historical and geographical conditions in modern Europe and cannot be
extended to other regions.1 Against such a vulgar type of cultural relativism, the
success of the human rights tradition in Japan, however, bears witness to the degree
of its acceptance, which is suitable to strengthen the universal character of human
rights. Secondly, and more significantly, Japan has inherited elements from all the
major legal traditions in the world, except Islamic Law, and such blending has come
to have a major influence on the implementation of human rights treaties in Japan.
Given that most states have imported foreign elements into their legal systems, the
experience of Japan provides comparative guidance in the protection and promotion
of human rights. Finally, as a matter of fact, Japan has come to be considerably
influenced by UN human rights treaties, in addition to other states’ laws. Compared
with most of the states examined in the ILA Final Report,2 Japan is characterized as
being a party not to regional human rights treaties monitored by judicial bodies such
as the European Court of Human Rights (ECtHR) but to universal treaties monitored
by quasi-judicial bodies such as the Human Rights Committee under the Interna-
tional Covenant on Civil and Political Rights (hereafter ICCPR). While human rights
lawyers are attracted by the legally binding character of the European (ECHR) and
the American Convention on Human Rights (ACHR), the influence of the ICCPR as
a universal UN human rights treaty is more common, even if its monitoring body is
not a court itself.3 In Japan, domestic courts have come to rely on international
treaties more often than before, and this change is still in progress. The practice with
weak legal basis will provide another meaningful connotation to other states since it
is not surprising that states observe legally binding norms. The interesting question is
how the international society encourages states to follow the interpretations of the
1
See generally Onuma (1998, 2009).
2
International Law Association – International Human Rights Law Committee (2016), paras 40–91.
3
The concept of “good practice” still allows room to theoretical investigation to identify the nature
between minimum legal requirement and recommendable “best practice” with policy-oriented
nuance, but, as ILA Johannesburg Report rightly (ibid, para 38) notes, the usefulness of the concept
itself has been largely recognized.
Japan 513
monitoring body, which do not have such a clear-cut legally binding status as
compared to the judgments of the regional courts. In short, parochial aspects cannot
be avoided in country-based studies, but the practical issue of how such specific
aspects fit the general trend of the international protection of human rights is
certainly a universal concern. International human rights practice is not monolithi-
cally universal but open to pluralistic universalism.4 The study of Japanese human
rights experience serves to clarify the latter, which will contribute to global consti-
tutionalism,5 to use a popular term of contemporary international law discourse and
practically provide a noteworthy example of “good practice” in human rights law.6
This chapter discusses the features of Japan’s realization of human rights treaties.
Special attention is paid to hindering and promoting factors. After a brief review of
Japan’s legal history (Sect. 2), the basic framework of the Japanese system is
outlined (Sect. 3), with promoting and hindering factors. Then some representative
cases from Japanese courts are investigated, especially in terms of an international-
law-friendly interpretation (Sect. 4). This chapter ends with a summary, prospects,
and a future agenda (conclusion).
2 Brief History: Forming Legal Substrata and Waves

of Internationalization
To understand Japan’s present legal system, it is beneficial to review the country’s

legal history, even if only briefly.
In 1868, Japan was remodeled as a “modern state.”7 French law was initially used
as a reference in establishing the nation’s new legal system. When it came to drafting
the Constitution of Japan, however, French law was too liberal for the political
leaders because the new national polity centered on the emperor (Tennō) system.
They referred to the more authoritarian constitution of Germany (Prussia at that
time), and, as in other legal areas, German law has continued to exert a strong
influence.
The first Japanese constitution was introduced in 1889, known as the Constitution
of the Empire of Japan, or the Meiji Constitution. This was the second constitution in
Asia, just after that enacted in Turkey. The 1889 Constitution includes the rights of
4
Onuma (1998), especially 144, 295.
5
Global constitutionalism now looks not only a specific perspective but also a wide range of
academic field. See, for instance, a journal named after this concept http://journals.cambridge.org/
action/displayJournal?jid¼GCN and also a similar concept publication of International Journal of
Constitutional Law in the same trend, http://icon.oxfordjournals.org/. Accessed 11 Oct 2017.
Generally, see, Peters (2015) and Laughlin (2010).
6
The word “good practice” was certainly the key concept of the project of the ILA Human Rights
Law Committee. As for the concept, see supra n 3.
7
As for the pre-modern days, see, for instance, Oda (1999), pp. 12–21.
514 K. Teraya
nationals, but considerable limitations were imposed.8 After enjoying the flourishing
democracy of the Taishō era (1912–1926), Japan gradually attached less importance
to human rights.9 In the 1930s, Japan developed its imperial tendencies and waged
war while engaging in military agreements with Germany and Italy.
After the Second World War, Japan was under the control of GHQ/SCAP
(General Headquarters, the Supreme Commander for the Allied Powers). Under
strong US influence, a new constitution was drafted and promulgated in 1945.10 The
far-reaching US influence on Japan continues to this day. Fundamentally, in addition
to strong military and economic ties between the two states, there is also a sharing of
values, including respect for human rights. Article 11 of the new Constitution
provides that “the people shall not be prevented from enjoying any of the funda-
mental human rights. These fundamental human rights guaranteed to the people by
this Constitution shall be conferred upon the people of this and future generations as
eternal and inviolate rights.” The triune of human rights, democracy, and peace
became a pillar of the new national polity.
This drastic transformation often overlooks the continuity of certain elements
from older systems, as demonstrated by the democracy of the Taishō era (1912–
1926), but it is also true that the differences between the two constitutions are
considerable.11 As a sincere reflection on Japanese military actions in the Second
World War, constitutional lawyers have been so strenuous in their endorsement of
human rights, democracy, and peace that it has produced a distinctive ethos called
goken, literally meaning “protecting the Constitution,” which fundamentally
opposes any change to the provisions of the Constitution.12 This ethos comes to
the fore in the issues discussed later.
Japan signed the Peace Treaty of San Francisco in 1951 and joined the United
Nations in 1956. Since its accession, Japan has been bound by the human rights
clauses in the UN Charter and has been committed to the Universal Declaration of
Human Rights (UDHR) of 1948. Before that, Japan also ratified the four Geneva
8
For instance, Art 28: Japanese subjects shall, within limits not prejudicial to peace and order, and
not antagonistic to their duties as subjects, enjoy freedom of religious belief.
9
The Public Peace Preservation Act (1925, amended 1941) is a notorious indication.
10
This does not mean that German influence disappeared. Art 25 provides that “[a]ll people shall
have the right to maintain the minimum standards of wholesome and cultured living. In all spheres
of life, the State shall use its endeavors for the promotion and extension of social welfare and
security, and of public health.” This is certainly foreign to US law.
11
A theoretical issue arose how the new Constitution can be legitimate and what the relation to the
1889 Constitution is. Some even go on to say that it was coerced to Japan and actually this is the
main motives that the present ruling Liberal Democratic Party upholds that they aim to establish a
new Constitution (New platform updated in 2005 and 2010 https://www.jimin.jp/aboutus/declara
tion/#sec04. Accessed 11 Oct 2017). In academic literature, Miyazawa’s doctrine of “Revolution in
August”—asserting that there was a revolution in the end of War in August 1945 (Miyazawa 1955,
pp. 1–19; see also Koseki 1998, pp. 124–129)—has been frequently cited.
12
This position was especially expressed in the debate over Art 9 of the Constitution (renunciation
of war), but human rights has been understood to be strongly connected with peace and the idea of
human rights itself has also been highly appreciated.
Japan 515
Conventions of 1949. However, in the 1950s and 1960s, the international protection
of human rights was not full-fledged, and Japan was grappling with human rights
issues as an internal matter under the new Constitution.
The Indochina refugee crisis of the late 1970s is often regarded as Japan’s first
encounter with international human rights. This led to Japan’s accession in 1981 to
the 1951 International Convention on the Status of Refugees, and domestic laws
were changed in order to implement the terms of the Convention. For the first time,
the concept of “refugee” appeared in the Japanese legal system. More comprehen-
sive change was brought by the ratification of the two covenants of 1966, the ICCPR
and the ICESCR, which were legally binding, unlike the UDHR of 1948. Japan
ratified them in 1978, becoming involved in a growing global constitutionalism, if
this recently coined term may be used in retrospect. Although there was little
practical impact at the time, some lawyers were motivated to use international
human rights treaties to win cases where relying only on domestic laws was
ineffective. Human rights treaties were a new legal armory for them. In 1988, the
International Human Rights Law Association was established, a society consisting
of academics and practitioners whose aim was to focus on international human rights
law. In addition to international lawyers, there has been a recent trend for some
constitutional lawyers to refer enthusiastically to global constitutionalism, especially
those who specialize in the constitutions of states in Europe.13
To sum up, Japan’s modern legal system was formed and based on the civil law
tradition, especially German law, and also became influenced by the common law
tradition, especially through US law, in the aftermath of the Second World War. The
influence of the latter has been accompanied by an ardent passion for protecting the
Constitution. International human rights treaties can be counted as the third wave of
Japanese law in the history of human rights protection, but it has taken a different
form from the previous two influences in view of the specific legal tradition of
Japanese law, and this change has been gradually increasing over time.
3 Basic Framework: Promoting and Hindering Factors

for International Human Rights
The influence of international human rights treaties can be understood in the

framework of the nonintervention principle, as illustrated in Article 2 (7) of the
UN Charter and the Declaration of Principles of International Law concerning
Friendly Relations and Co-operation among states in accordance with the Charter
of the United Nations. Under this principle, each state chooses its own system to
keep a balance between its autonomy expressed as “sovereignty” and its commitments
13
For instance, Yamamoto (2011) p. 2011; Ejima (2013). Naturally, Japanese academics majoring
in EU Law come to participate in this lively discussion, using their rich knowledge. See Suami
(2013) and Ito (2014).
516 K. Teraya
to outsiders through international agreements. Japan is a party to most UN human

rights treaties and is required to implement them in good faith (Articles 26, 31 of the
Vienna Convention on the Law of Treaties, hereafter VCLT).14 With some specific
exceptions, the obligations in human rights treaties are understood to be obligations of
result: states have discretion to choose the means to implement human rights treaties.15
In Japan, there are several important issues concerning the means to implement
human rights treaties, as is discussed also in other states. There are influential
arguments surrounding each issue, but what is strange is that arguments not neces-
sarily compatible with each other continue to coexist as an established discourse.
3.1 Three Main Issues in Framing a System to Implement

Human Rights Treaties in the Domestic Legal Order
The first main issue is the relationship between international law and domestic law:
monism vs. dualism. There was much-heated controversy initially in Japan,16 but as
might be expected, as in other states, this seemed to produce little fruit in practice.
Especially since the 1980s, the academic literature in Japan has turned its attention
more to state practice rather than to doctrinal controversy. This practice-oriented
drift accorded with the world trend after the Second World War, but a significant
feature in Japan is that the drift was accentuated with particular reference to the
theory of coordination, which was led by eminent international lawyers in Britain
and Europe such as Fitzmaurice, Rousseau, and Brownlie.17 Through various means
of expression, the theory argues that international law and domestic law are two
separate legal domains and that it is necessary to coordinate conflicts between the
two not just as political facts but as legal obligations. This idea is backed up by
several provisions of international documents such as Article 27 VCLT and Article
3 of the Articles on Responsibility of States for Internationally Wrongful Acts
(2001). Since its introduction in an influential international law textbook,18 the
theory of coordination has become dominant, at least to the extent that it cannot be
ignored by international lawyers in Japan.
The second main issue in framing the system is how international law gains
validity in the domestic legal order: how states “incorporate,” “transform,” or
14
See ILA Johannesburg Report (2016), paras 5, 33–35.
15
See also Economides (2010), pp. 374–381; Crawford (2013), pp. 220–226.
16
Representatively, Yokota (1960), p. 33; Tabata (1973), p. 164. The former is a monist and the
latter a dualist, though the latter committed the claims of theory of coordination.
17
Fitzmaurice (1958), chapters III and IV; Rousseau (1958, 1970, 1984), Crawford (2008), p. 50.
See also Ipsen (1990), pp. 1076–1077; Malanczuk (1997), pp. 63–64; Shaw (2008), pp. 132–133;
Harris (2010), pp. 61–62; Dupuy (2012), p. 840.
18
Yamamoto (1994), pp. 85–86. The introduction of the theory in Japan was accompanied by some
modification. See, in detail, Teraya (2015), pp. 105–122.
Japan 517
“accept” international law.19 Article 98 (2) is the most relevant provision in the
Constitution of Japan: “The treaties concluded by Japan and established laws of
nations shall be faithfully observed.”
This brief article provides little precise guidance, but there is no controversy over
the understanding that Japan adopts the automatic standing incorporation of inter-
national rules: just after ratification, international treaties become immediately
binding in the domestic legal order, without the need for any ad hoc domestic
statutes.20 This is generally understood to be the same as in the US and other states,
in contrast to the Commonwealth states.
The established understanding that Japan adopts automatic standing incorpora-
tion is inferred from internal legal practice, but while this understanding is generally
true, it should be questioned or at least needs some modification.21 It needs to be
understood in two stages.
In the legislative stage, the distinctive role of the Cabinet Legislation Bureau
should be mentioned. The Bureau examines the compatibility of domestic laws with
international law ex ante, and Japan usually makes or modifies the corresponding
domestic laws in accordance with international law.22 The effectiveness of the
Cabinet Legislation Bureau makes the Japanese system look akin to the ad hoc
incorporation of the Commonwealth states, which may be overlooked by studies
focused on national judicial bodies. In a Japanese type of power balance, the
legislative body has the initiative in the implementation of human rights treaties.
In the judicial stage, the supposed hindrance of a final appeal to the Supreme Court is
relevant here. Masami Ito, a former judge of the Supreme Court, argued against the
limitation that the Constitution alone is given as a reason for final appeal among
domestic laws (as in Article 312 Civil Procedure Law and Article 405 Criminal
Procedure Law).23 As discussed later, there have been notable Supreme Court cases
that have included interpretations of international law, but this hindrance is system-
atic and the automatic standing incorporation can descend into mere lip service. It is
not surprising that judges ignore international law, or at least take a short cut,
believing that the Cabinet Legislation Bureau has already affirmed the compatibility
of international law. This relates to other factors, not systematic but practically
relevant, where judges are generally not familiar with international law. In their
career, they do not have to study international law intensively.24 Language barriers
19
The terms are difficult to differentiate. Here the present author does not define them strictly.
20
Roughly speaking, the Japanese system belongs to the civil law tradition or monism in textbooks
(see Crawford (2008), pp. 88–110; Aust (2007), pp. 183–187), but those terms are imprecise and
require to examine the concrete systems.
21
This is parallel to the indeterminacy of the dichotomy of monism and dualism, found in ILA
Johannesburg Report (2016), para 86.
22
See, ILA Johannesburg Report (2016), para 90.
23
Itoh (1990), pp. 10–11.
24
International law is not a compulsory subject for the bar exam, but it is one of the compulsory
optional subjects, http://www.moj.go.jp/jinji/shihoushiken/shiken_shinqa01.html with other sub-
jects: insolvency law, tax law, economic law, intellectual property law, labor law, environmental
518 K. Teraya
are also relevant: new arguments in foreign and international areas are usually
imported through academic works in Japanese.25 It is understandable that judges
feel more comfortable relying on domestic law whose compatibility with interna-
tional law they believe to be assured by the Cabinet Legislation Bureau.
Article 98 (2) is too vague to allow the opposite extreme argument. Some
commentators argue that, whether minor or major, all violations of international
law lead to violations of the Constitution via Article 98 (2).26 The position is
logically possible, faithful to the understanding of automatic standing incorporation,
but it is unbalanced and far from practice.
Naturally, the issue relates to the third controversial issue: the hierarchical
position of international law in the domestic legal order, which needs more delicate
consideration than the other two issues. The argument here functions not only as a
promoter of but also as a hindrance to international human rights law in Japan, while
only one characteristic tends to be conveniently emphasized, depending on the
purpose of the particular argument.
The issue of hierarchy has been debated as the question whether international law
prevails over the Constitution or vice versa in the Japanese legal order. Although
both doctrines were influential in the 1950s amid the internationalist atmosphere
stirred by regret for Japan’s wartime nationalism, the doctrine arguing for the
supremacy of the Constitution (the “constitutional supremacy theory”) has become
almost the established understanding since the 1960s.27 However, the point for the
advocates of human rights treaties is that even this theory presupposes the predom-
inance of international law over domestic statues and regulations.28 For them, the
rules of international human rights law should be prioritized if they conflict with
statutes and regulations, or they should at least be respected to the same degree.
Given the Japanese courts’ reluctance in applying human rights treaties, this argu-
ment offers reasonable criticism.
law, international relations law (public) and international relations law (private). The number of
examinees choosing international relations law (public) is the smallest among them. Most of law
schools in Japan do not make international law compulsory with some exceptions. In 2013, the
authority even tried to abolish the category of optional compulsory subjects including, international
relations law (public), though strong objection http://www.cas.go.jp/jp/seisaku/hoso_kaikaku/dai4/
siryou1.pdf prevented this reformation. At present, it seems difficult to promulgate the importance
of international law through bar exams. The curriculum in legal training center is dominated by
domestic law practice http://www.courts.go.jp/saikosai/sihokensyujo/sihosyusyu/sin_sihosyusyu/
index.html. All accessed 11 Oct 2017.
25
See, ILA Johannesburg Report (2016), para 90. As for the importance of academic writings
introducing foreign and international jurisprudence, see, Izumi (2014), pp. 16–17.
26
Not clearly claimed, this is the logical consequence, which needs discussion. See Uchino
(2000), p. 8.
27
For instance, Sato (2011), p. 89. The Political background was that constitutional lawyers take up
this issue especially in relation to the Japan-US security treaty and, in the spirit of goken, they avoid
the conclusion that this military treaty enjoy predominance over the peaceful constitution of Japan.
See Saito (2002), pp. 38–47.
28
For instance, in the context of foreigners’ rights, Shin (2011), p. 13; Teraya (2016).
Japan 519
On the other hand, this doctrine also functions to hinder the promotion of
international norms in relation to the Constitution. The Constitution of Japan is the
main source by which to judge human rights issues, and, under the hierarchical
order, reference to human rights treaties becomes almost redundant and even
inappropriate if they conflict with the Constitution. From this perspective, in extreme
cases, as is discussed later, it is illogical for a human rights treaty, as a lower norm, to
be referred to in interpreting the Constitution as a higher norm.29 This is also another
factor discouraging judges from using human rights treaties, along with the hin-
drance in appeal to the Supreme Court, the easy reliance on the Cabinet Legislation
Bureau, and the lack of familiarity with international law. In this sense, the hierar-
chical argument turns out to be a Trojan horse betraying the expectations of human
rights lawyers.
The serious theoretical flaws of this established doctrine are rarely mentioned in
constitutional legal studies. In reaching the established understanding, what consti-
tutional lawyers focus on is the provisions of the Code of the Constitution, especially
Article 98 (2), and not a few international lawyers submissively follow them.
However, the claim of predominance of the Constitution over international law
based on the Code of the Constitution is a circular argument. Still, the question of
coordinating domestic provisions with international law remains, as discussed in the
first main issue in the framing of the implementation discussion. The rise of the
international protection of human rights might make it possible to amend the
established understanding, arguing that international human rights laws have special
predominance over, or at least enjoy the same rank as, the Constitution.30 However,
this position is rarely echoed among academics, and there remains much room for
theoretical support.
The function of the constitutional supremacy theory in Japan is paradoxical. It
promotes use of the provisions of human rights treaties because the doctrine implies
its predominance over statute law, but it is within the framework of the domestic
Constitution, which maintains the dominance of the domestic ethos.
Another promising approach, compatible with hierarchical arguments, would be
along the lines of the theory of coordination. The legal order is dynamic, not as in an
established static order, as is currently debated in the multilayered legal order in
Europe, especially if one does not accept the determinacy of the hierarchy in the
Japanese legal order. The epistemological approach coincides accordingly. There is
still much room for Japanese lawyers to refer to arguments about other legal orders in
terms of both practice and theory.
29
Munesue (2006), p. 262.
30
In this relation, Masaaki Saito tries to give “an indirect constitutional status” to international
human rights treaties without changing the constitutional supremacy theory (Saito 2002,
pp. 363–440). In spite of the term “status,” this claim is the same as the emphasis on the importance
of the international friendly interpretation discussed later, but it is notable that he takes up
international human rights treaty alone. Saito (2002), pp. 38–47.
520 K. Teraya
3.2 The Issue of “Direct Applicability” or “Self-Executing

Treaty”
The application of human rights treaties in domestic courts has been discussed
curiously under the condition that the dominant understanding of the main theoret-
ical issues coexists without coherent relationship between different concepts. The
concept of “direct applicability” (chokusetsu tekiyō) or “self-executing treaty” is also
a part of this discussion. In the earlier stage of the discussion, the concepts gained
more focus in practice. What is confusing is that the concepts have several origins in
Europe, the US, and the PCIJ, and despite being generally accustomed to importing
foreign ideas,31 Japanese courts have not made a success of their application, using
ambiguous concepts in an equivocal way. There is controversy over whether the
terms should even be used in Japan.
As a preliminary matter, the terms “direct applicability” and “self-execution”
have been interchangeable in Japanese cases: A self-executing treaty is directly
applicable in domestic courts, and a directly applicable treaty is a self-executing
treaty. Most academic literature is also in a similar situation. Some commentators
find the term “self-executing” confusing and so avoid using it.32 For them, only the
term “direct applicability” should be used.
The term has been used basically in two senses. The first is that a directly
applicable treaty is valid in domestic courts without further legislation, as in, for
instance, the Tokushima District Court (1996) and the Takamatsu High Court
(1997).33 This usage accords with the usage in the Medellín case by the US Supreme
Court (2008).34 The problem is that this usage goes backward to the issue of validity
discussed above. Since it is widely accepted that Japan recognizes automatic stand-
ing incorporation, this usage of direct applicability is redundant.
Direct applicability in the second sense means that a treaty can be applied by
courts and executive bodies without further legislation. In this usage, application of a
treaty cannot be assured even if it has validity in domestic court. The second usage,
notably endorsed by Yuji Iwasawa,35 provides unique significance unlike the first
use. In this understanding, all treaties are valid in the domestic legal order, but to be
directly applicable, treaties need to satisfy additional requirements. The clearest
dictum is found in the Tokyo High Court Siberia Detainee case (1993).36 After
recognizing the domestic effect of treaties and customary international law without
any special legislative act, the Court stated that “it is quite a different matter if such
international rules [. . .] may be directly applicable, and the criteria for judging the
31
Iwasawa (1985). For the most recent version, see Iwasawa (2016).
32
Iwasawa (2010), p. 114; Hakamoto (2011), pp. 386–388.
33
Tokushima District Court, Hanrei Jihō No 1597, judgment 15 Mar 1996, 123; Takamatsu High
Court, Hanrei Jihō No 1653, judgment 25 Nov 1997, 120.
34
US SCt, Medellín v Texas, 552 US 491(2008), 9, fn 2.
35
Iwasawa (1985), p. 115.
36
Tokyo High Court, Hanrei Jihō No 1466, judgment 5 Mar 1993, 40.
Japan 521
matter shall be the will of the state party to the treaty and especially the clarity and
precise nature of the content of the rules.”37 The criterion of the intention of the
States Parties was emphasized in the PCIJ Advisory Opinion (1928).38
The problem of the second usage is that these requirements have been used too
rigidly to be satisfactory, and these well-known criteria have rarely been used since
then. Some lower courts have made the judgment that the ICCPR is self-executing,
but the Supreme Court has not accepted this so far. More seriously, under the
situation where the concepts are vague and the first usage and second usage are
confused, if one retains the requirements of direct applicability relying on the famous
standard, serious misunderstanding results: treaties cannot be valid if these rigid
requirements are met. Then automatic standing incorporation becomes vulnerable,
despite being widely recognized as fundamental to the implementation of human
rights treaties. Koki Abe regards the concept of direct applicability as a “stumbling
block” to understanding, claiming that Japanese judicial practice should be exam-
ined without sticking to this concept.39 The confusion arising from the combination
of the above factors and the excessive focus on the concept of direct applicability or
self-executing treaties adds to the reluctance of Japanese courts to use human rights
treaties. Judicial bodies in Japan cannot embrace the concept given the negative
attitude to international human rights law.
If the concept of direct application is to play a prominent role in courts, it needs to
be admitted that international law is generally presumed to be directly applicable and
that the intention of the States Parties is relevant in opposing this presumption only
when adverse intent is clearly expressed and also that judicial bodies should play a
more active role in applying treaties directly even in ex ante regulation of the
legislature in the domestic power-balance structure. This presumption as claimed
by Iwasawa is reasonable,40 but as a matter of fact, Japanese courts have not taken
this route so far. This does not mean that his claim is logically defective but rather
means that Japanese courts do not have sufficient capacity to take this route because
of the various factors mentioned above. As a matter of historical choice, Japanese
courts have taken the more moderate approach explained in the next section. The
recent report on the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) criticizes the ruling of one Japanese court not to
recognize the CEDAW as being either directly applicable or self-executing,41 but
using human rights treaties does not necessarily imply regarding them as self-
executing. It could be argued that adhering to the concept of direct applicability is
37
Ibid; translated in (1994) JAIL 37:139.
38
PCIJ, Jurisdiction of the Courts of Danzig (advisory opinion), 3 Mar 1928, Series B, No
15, 17–18.
39
Abe (2001), p. 269. Without sticking to the concept of direct applicability, the fruitful use of
human rights treaties is possible in Japanese jurisprudence. See, for instance, Yakushiji (2006).
40
Iwasawa (1985), p. 301; Iwasawa (2010), p. 116; Though avoiding the concept of direct
applicability, see Abe (2001), p. 280.
41
CEDAW/C/JPN/CO/7-8, 7 Mar 2016, para 8.
522 K. Teraya
poor tactics. However, it seems too much to conclude, as some commentators do,
that the concept of direct application is too foreign to use in Japan since it is a
centralized, not a federal, state.42 Legislature does not always respond appropriately
to changes in the international environment, which increase the necessity for judicial
bodies to use human rights treaties. As a mode of the usage, there was and still is a
possibility that the concept plays a more substantial role.
The value of the concept of direct applicability in a Japanese context has been not
necessarily in the usefulness of the concept itself but rather in the theoretical
demonstration of a clear distinction between application and validity in its second
sense, through which it has prepared the theoretical foundations for other types of
application considered in the next section.
4 Widespread Practice in the Use of International Human

Rights Law in Domestic Courts
4.1 The General Situation

4.1.1 Significance of International-Law-Friendly Interpretation or
Indirect Application
The prevailing means of applying international human rights law in domestic courts
is through indirect rather than direct application. In the academic literature, this is
usually called the international-law-friendly interpretation, or more frequently in
Japan, “indirect application” (kansetsu tekiyō), or referring to international law in
interpreting domestic law.43 Compared with direct application, this is indirect in the
sense that international law is applied through domestic law. Its main part is the same
as “the interpretive effect of the Covenant in the application of national law.”44
“Direct application” and “indirect application” are usually explained in Japanese
texts as being like twins, though this seems a rather casual dichotomy with no precise
understanding.45
42
Matsuda (2016), p. 123; see also Matsuda (2010).
43
This is not a local usage in Japan, but some literature outside Japan also uses this expression. See,
for example, Simma et al. (1997), p. 94; Shelton (2011), pp. 18–20. This chapter uses the term
international law-friendly interpretation. One of the reasons is that the expression of indirect
application is inaccurate. Indirect application itself can hardly be an “application” in terms of
legal syllogism. See, as an example in Japanese literature, Matsuda (2010). So-called “indirect
application” can be application when one understands that international legal instruments are the
norms incorporated as domestic law, but in any case, “reference” or “interpretation” is more
appropriate than “application.” Another reason is that the term is confusing. Constitutional lawyers
use the similar name “doctrine of indirect application” in a different but overlapping context, as
discussed later.
44
CCPR/C/21/Re.1/Add. 13, 26 May 2004 (General Comment No 31), para 15.
45
Generally, Abe et al. (2002), pp. 30–39; Sakamoto, in: Serita et al. (2008), pp. 205–208. The
present author’s critique to this dichotomy is found in Teraya (2009).
Japan 523
As discussed previously, the concept of direct applicability should be used in the

second usage, to distinguish validity and applicability. Then the question arises as to
what role a treaty can play when it is valid but not directly applicable. Indirect
application, or the international-law-friendly interpretation, is one such role.
The modest character of the international-law-friendly interpretation in its legal
interventional form gives the impression that it is less significant than direct appli-
cability, but the truth is to the contrary. Firstly, in a state where judges find it
difficult, or at least feel some hesitation in applying international law in their
court, this indirect form allows them to use international law in interpreting domestic
law. In the competition and collaboration of the domestic power balance in
implementing human rights treaties, the international-law-friendly interpretation is
an easier means than direct application for reluctant or inflexible courts to venture to
use human rights treaties.46 Hindrance in appeal to the Superior Court in Japan may
not be a common difficulty, but hesitation in applying international law directly is a
prevailing phenomenon. This is related to the second point, namely that the legal
structure of international society is administered not by a world government but by a
number of sovereign states. States are equally respected, and so are their domestic
laws. The international-law-friendly interpretation is, compared with direct applica-
tion, a combination of domestic law and international law. From the viewpoint of
political philosophy, this mode harmonizes international justice and national democ-
racy. The international-law-friendly interpretation is consistent with the basic
requirements of contemporary international society.
In the context of human rights, the international-law-friendly interpretation
deserves more attention, for both doctrinal and practical reasons. Under the domi-
nant doctrine of the predominance in the domestic sphere of the Constitution over
international law, the most likely way for international law to influence domestic law
is indirectly as a reference in interpreting domestic law. The main source of human
rights in Japan is in the Constitution of Japan, while other issues such as the
economy and environment are regulated by lower statutory law, over which inter-
national law prevails. At the same time, the articles of the Constitution are generally
brief, so any practical guidance from human rights treaties can be useful. Human
rights treaties dealing with specific topics such as racial discrimination have detailed
articles and are therefore particularly helpful as an interpretative guide for the
Constitution.
4.1.2 Main Cases
Among numerous relevant cases, the following cases are more leading and instruc-
tive in studying the international-law-friendly interpretation of human rights treaties
in domestic courts.
46
As for the power-balance especially with regard to the concept of self-execution in the context of
Japan, see Matsuda (2016).
524 K. Teraya
Nibutani Dam Case (1997)
The Nibutani Dam Case47 is known as the leading case in which the Japanese courts
recognized the Ainu as an indigenous people for the first time, but turning an eye to
its reasoning, we find that the international-law-friendly interpretation played a
significant role.
Nibutani was a sacred site for the Ainu people. In 1978, a flood-control dam was
planned for the site. The problem behind the negotiations was whether the public
interest in building the dam should take priority over protecting the interests of the
Ainu people. The relevant act covering this issue was the Compulsory Purchase of
Land Act (Act No 219 of 9 June 1951). Article 20 provides that “the Minister of
Land, Infrastructure, Transport and Tourism or the prefectural governors may make
the accreditation if the projects pertaining to the application fall under any of the
following items: (. . .) 3. The project plans contribute to due and reasonable land
use.”
Here, the phrase “due and reasonable land use” is not particularly clear. It does
not mention the scope of the elements to be considered or the criteria for their
application. The Sapporo District Court recognized the discretion of the administra-
tive authority in comparing benefits gained and interests harmed, but the Court also
upheld its power to examine the methods and process of this comparison.48
When the Court declared “the right of minorities to enjoy their own culture” as the
losing interest, the Court relied on two documents. One of them was the Constitu-
tion. Article 13 of the Constitution (the right to the pursuit of happiness) provides
that “all of the people shall be respected as individuals. Their right to life, liberty, and
the pursuit of happiness shall, to the extent that it does not interfere with the public
welfare, be the supreme consideration in legislation and in other governmental
affairs.” This is one of the fundamental articles of the Constitution, but this is too
general to lead to specific claims.
The ICCPR, the other instrument that the Court relied on, plays a more significant
role. Confirming that “the Government of Japan,(. . .), stated in its third report
required under Article 40 ICCPR that there is no difficulty in recognizing the Ainu
people to be an ethnic minority as referred to in Article 2 ICCPR. It took the same
position in the proceedings of the present case,” the Court notes that “the Ainu
people, as an ethnic minority which maintains its cultural individuality, are
guaranteed the right to enjoy their own culture under article 27 ICCPR. In the
light of article 98 (2) of the Japanese Constitution, the government of Japan is
obliged to observe the article faithfully.”49
Here, the rights of a minority, indigenous people in this case, covered in Article
27 were expressly regarded as relevant to the interpretation of “due and reasonable
land use” in the Compulsory Purchase of Land Act. Article 27 ICCPR was not
47
A more detailed introduction is found in Milhaupt et al. (2012), pp. 317–322.
48
Sapporo District Court, Hanrei Jihō No 1598, judgment of 27 Mar 1997, 43.
49
Ibid, 44; translated in (1998) JAIL 41:93 with minor changes by the present author.
Japan 525
directly applied, but the international-law-friendly interpretation was so decisive in

this judgment that one commentator even regarded this as essentially a direct
application.50 However, this is not true. What was “applied” was the Land Expro-
priation Law by way of an international-law-friendly interpretation.
The Nationality Act Case (2008)51
The next case relates to Article 3 of the Nationality Act (Act No 147 of 4 May 1950).
Article 3 relates to the acquisition of nationality by acknowledged children. At the
time the case was brought to the Court, it provided that “a child (excluding a child
who was not a Japanese national) under twenty years of age who has acquired the
status of a legitimate child of his/her father and mother by reason of their marriage
and the father’s recognition, may acquire Japanese nationality by making a notifi-
cation to the Minister of Justice, if the father who has effected the recognition or the
mother was at the time of the child’s birth a Japanese national, and if the father or
mother is presently a Japanese national or was at the time of his or her death a
Japanese national.”52 The system as a whole with other relevant provisions is rather
complicated, but the point is that in order to acquire Japanese nationality, either the
father or the mother must be Japanese.53 Therefore, if the mother is a foreigner who
is not married to a Japanese person, either the father’s intention to marry or his
acknowledgement of the child prior to birth is necessary. Difficulties arise when a
father has no intention to marry or the acknowledgement is made after the birth. This
is what Article 3 targets. However, doubts were raised about the requirement of child
legitimation in Article 3 when challenged with Article 14 (1) of the Constitution of
Japan (equality under the law).54 Japan had also received severe criticism from
international human rights bodies such as the ICCPR Human Rights Committee
(HRCtee) and the CEDAW over its discrimination against children born out of
wedlock.55
In this judgment, the part italicized above was judged to be unconstitutional and
replaced by “acknowledged by the father or mother.” This meant that legitimation by
marriage was removed as a necessary condition for the acquisition of Japanese
nationality. The Supreme Court noted:
50
Iwasawa (2006), p. 367. The expression “direct application in essence” must be perplexing,
because direct application is recognized in a totally formalistic manner.
51
Supreme Court, Hanrei Jihō No 2002, judgment o4 June 2008, 3.
52
Translation (2009) JYIL 52:648, fn 2.
53
Details are discussed, inter alia, by Sano (2008).
54
Art 14: “All of the people are equal under the law and there shall be no discrimination in political,
economic or social relations because of race, creed, sex, social status or family origin [. . .].”
55
See, for the HRCtee: CCPR/C/JPN/CO/5, 2008, para 28; and for CEDAW: A/58/38 (Concluding
comments of the Committee on the Elimination of Discrimination against Women: Japan [fourth
and fifth periodic reports]), 2003, para 371. The HRCtee Concluding Observations were delivered
on 5 Dec 2008, after the judgment of 4 June in the same year.
526 K. Teraya
[. . .] Moreover, it seems that other states are moving toward redressing discriminatory
treatment in law against children born out of wedlock, and in fact, the ICCPR and the
Convention on the Rights of the Child, which Japan ratified, also contain provisions to the
effect that children shall not be subject to any discrimination based on their birth. Further-
more, since the provision of Article 3 (1) was introduced, many states that had previously
required legitimation as a condition for granting nationality to children born out of wedlock
to citizen-fathers have subsequently amended their laws to grant nationality without any
further requirement when a father-child relationship is established through, e.g.,
acknowledgment.
In social and other changes occurred domestically as well as internationally, it is

now difficult to find any reasonable relevance between the policy of maintaining
legitimation as a requirement for the acquisition of Japanese nationality through
notification after birth and the original legislative purpose.56
In this case, the international-law-friendly interpretation affected domestic law
not only through interpretation but also through its existence as a legislative fact
together with other social facts. This legal construction is related to the feature of this
judgment to deal with changes in the law. The Court could propose this new
interpretation without denying the original purpose of Article 3 (1) of the Nationality
Act, which was previously accepted as rational.
Another feature of the judgment relates to the active role of judicial bodies. After
the decision, the Japanese Diet amended the Nationality Act, simply deleting the
void part of the provision. This is also notable. As mentioned before, ex ante
regulation, mainly by the Cabinet Legislation Bureau, is the main way to avoid
inconsistencies between international law and domestic law in Japan. However, legal
texts are gradually losing their usefulness over time, and judicial bodies are expected
to play a greater role in the interpretation of the law. Judicial activism has long been
foreign to Japanese legal practice, but the basic landscape is changing.
International human rights bodies welcomed the Supreme Court’s judgment in
this case.57
The Statutory Share in Inheritance of Children Born Out of Wedlock Case (2013)
This case is related to Article 900 item 4, which reads: “The share in inheritance of a
sibling who shares only one parent with the decedent shall be one half of the share in
inheritance of a sibling who shares both parents.” This article was challenged against
Article 14 of the Constitution (equality under the law). In a previous judgment
(1995),58 the Supreme Court had judged the provision to be constitutional, but its
56
Supreme Court, Hanrei Jihō No 2002, judgment of 4 June 2008, 14, translated in (2009) JYIL 52:
653.
57
See e.g. HRCtee, CCPR/C/JPN/CO/6, 2014, para 3; and CEDAW/C/JPN/CO/6, 2009, para. 6.
58
Supreme Court, Hanrei Jihō No 1540, judgment of 5 July 1995, 3. In the prior decision of the
Tokyo District Court (Hanrei Times, No 823, judgment of 23 June 1993, 122), the provision was
held unconstitutional with a reference to the spirit of Art 24 (1) ICCPR and of Art 2 (2) CRC.
Milhaupt et al. (2012), p. 587.
Japan 527
judgment had been strongly criticized by many commentators and international

organs, including the ICCPR HRCtee.59
In 2013, the Supreme Court amended its previous judgment.60 One of the features
of this new judgment is its high estimation of human rights monitoring bodies. After
singling out the ICCPR and the Convention on the Rights of the Child, both of which
contain provisions intended to protect children from any discrimination based on
their birth, as well as monitoring bodies and their power to express opinions and
recommendations, the Supreme Court mentioned the Committee’s two concerns and
recommendations for laws in Japan, including the renewed 2010 opinion by the
Committee on the Rights of the Child, expressing their concerns about the existence
of the provision in question.
Based on this understanding, the Court provided a framework for judgment:
Among the various changed factors which related to the rationality of the said provision in
this case, no single reason is put forward as decisively proving the irrationality of the
provision of differentiated statutory share in inheritance. However, the notion of respect
for individuals within the family as community has come to be more widely recognized in
the light of a number of legal and social changes. Such changes include social trends from
the time of the amendment of the civil code in 1947 to the present day, and diversification in
the nature and structure of the family and its accompanying changes in national conscious-
ness in Japan. Developments in legislation in foreign countries and the content of conven-
tions ratified by Japan, as well as the comments of the Committees based on these
conventions, have also been influential, as have changes in the law regarding the differen-
tiation between legitimate and illegitimate children, and the repeated comments by the courts
drawing attention to this issue. Despite the established legal status of wedlock itself in Japan,
the above changes in awareness have established the understanding that it is not acceptable
to cause detriment to children merely on the grounds that their father and mother are not
legally married under that system, a fact that they themselves cannot choose and modify, and
that children should be respected as individuals and their rights protected.61
In this framework, the Court concluded that since July 2001 at the latest, the time
at which the plaintiffs claimed their inheritance, there had no longer been rational
grounds to differentiate the statutory share of inheritance between legitimate and
illegitimate children, even taking into consideration the discretionary power of the
legislature, and that the said provision had been in violation of Article 14 (1) of the
Constitution since July 2001 at the latest.
While this judgment can be interpreted within the same framework as the
Nationality Act Case (2008), which also refers to international instruments as
legislative facts in changes to the law, this Supreme Court judgment elaborates the
framework in more detail and is more friendly to international elements. Even the
previous 1995 judgment, arguing for the constitutionality of item 4, recognized that
it was not conclusive but rather complementary in relation to other items dealing
with this issue. This had already been the framework to enable easy accommodation
59
Supra n 55.
60
Supreme Court, Case on Statutory Share in Inheritance of Children Born out of Wedlock,
61
Translation by the present author.
528 K. Teraya
of the principle and any exceptions. In the same framework, equality is more
emphasized in this 2013 decision to change the conclusion, and at least five different
elements, including international elements, play a significant role in this change. The
decision refers not only to the international treaty itself but also to the opinions of
monitoring bodies, which should be a less authoritative understanding than the treaty
itself. The ICCPR HRCtee gave a positive evaluation to the changes to civil law in
Japan in its Concluding Observations (2014).62
From another perspective, however, it is not clear how the Court rates the various
elements in its reasoning. Recourse to the same framework means that the change to
the conclusion depended on the rating of elements. In general, considering various
elements at once is not the only pattern of the international-law-friendly interpreta-
tion. The theoretical basis for this consideration of various elements requires further
examination in the future.
Attention should also be given to institutional influence over the judiciary system.
Despite some dicta left unclear, this decision made by the highest court is a landmark
decision in terms of the internationalization of judicial bodies in general. While
lower courts had made some noticeable decisions, the Supreme Court had been
generally negative, or at best had made only token reference.63 In this judgment,
however, international treaties and opinions were one of the decisive elements
leading to the conclusions. International human rights law, often but not always,
has a significant influence on conclusions. Judges in lower courts should now feel
freer than before to rely on international human rights law, which will lead to more
progressive jurisprudence in favor of using human rights treaties.
4.2 The Specific Situation: Human Rights Protection

in the Private Sphere
4.2.1 Unique Problems in the Private Sphere
Among the several ways of regulating private persons, it is common in Japanese

legal discourse to separate the issue of the private sphere from general problems of
international human rights law in the domestic legal system.64 This approach may
appear odd to lawyers from different legal traditions, especially the common law
tradition, but it relates to the Japanese legal substrata mentioned above. Strongly
influenced by the civil law tradition, especially in Germany, the issue of
Drittwirkung (the third-party effect) requires particular consideration.65
62
CCPR/C/JPN/CO/6, 20 Aug 2014, 1–2.
63
Iwasawa (1997), p. 254. See also the comments and investigations by the former judges of the
Supreme Court: Itoh (1990), Sonobe (2000) and Izumi (2014).
64
In international law literature, notably, Ruggie (2011).
65
Generally, for instance, Michelman (2012) and Oliver and Fedtke (2007).
Japan 529
This issue has its roots in the sharp distinction between public and private. Under
this conception, constitutional law as the foundation of public law cannot be applied
to the horizontal relations covered by private law such as contract law and tort law.
Constitutional law is understood to be addressed to states, imposing obligations on
their behavior. For instance, following the Nibutani Dam Case, Japan has an
obligation under the Constitution not to violate the rights of indigenous people.
The case is concerned with the relation between the state and private persons.
Nonetheless, states are not the only violator of human rights. In contemporary
society, non-state actors such as business corporations, media organizations, and
religious groups are also serious violators of human rights, and there is a social need
for the observation of human rights norms that are observed in constitutional law.
However, the Constitution is understood to be addressed to states, not to private
persons. It is private law that applies between private persons. The question arises as
to whether or not the Constitution can be applied to the private sphere and, if it can,
how this is possible.
Another reason to separate the issue of human rights in the private sphere from
general issues lies in justifying limitations on human rights. While public interest in a
wider sense limits human rights in a general situation, among individuals, one
person’s exercise of his or her human rights may limit the human rights of another
person. In other words, various human rights are competing with each other in this
situation. Casual emphasis on human rights in a general manner does not provide a
delicate framework to compare values, and it is not sufficient to argue a procedural
issue to fulfill international treaties in a domestic legal order without investigating
the substantive value of each human right. It matters the precise range and the
importance of human rights in each human rights treaty and each domestic law.
4.2.2 Doctrines
At least in a Japanese context, constitutional doctrines cannot be ignored when

attempting to grasp the legal reasoning behind the application of international
human rights treaties in the private sphere. International law studies do not have to
follow the previous discussion in constitutional legal studies, and there would
be other ways to construct a theory. However, discussion of human rights treaties
has come to be regarded as an extension to constitutional legal studies, mainly
because of the dissatisfaction of constitutional lawyers on account of their inability
to win cases relying only on domestic laws and their wish to use international human
rights treaties to support their arguments. Practitioners welcomed human rights
treaties as a new legal weapon and tried to combine them with constitutional
arguments. In addition, international law, usually understood to be addressed to
530 K. Teraya
states, is usually categorized as public law as with the Constitution, which made the
extension of the exisiting argument more familiar.
Japanese academics have resorted to three approaches, strongly influenced by
German theories.66 The first is the nonapplication doctrine, which denies the appli-
cation of constitutional law in the private sphere, maintaining its original identity as
law between the state and individuals.67 The second is the direct application doc-
trine, which affirms the application, responding to the practical need to overcome the
danger of human rights violations by private actors. The former doctrine’s advantage
is the latter’s disadvantage and vice versa. Because of these disadvantages, neither
doctrine has become dominant in Japanese academia, and the third position between
the two poles, the indirect application doctrine, has come to enjoy widespread
support in academia and among legal practitioners.68 According to this theory,
what is applied is not constitutional law but private law, such as contract law and
tort law. In its interpretation and application, however, one attempts “to regulate acts
among private persons indirectly” “by considering the purport of constitutional
law.”69 In this sense, constitutional law is applied not directly but indirectly to the
private sphere. The leading case is the Mitsubishi Jushi Case of the Supreme Court
(1973), which has long been regarded as having adopted the indirect application
doctrine.70
The foremost figure among the supporters of the indirect application doctrine was
Nobuyoshi Ashibe, the most influential constitutional lawyer in academia and in
practice after the Second World War. His argument is mainly based on German
doctrines on the third-party effect, but, most interestingly, he also referred to the US
jurisprudence of state action. After considering German theory, Ashibe adopts the
indirect application doctrine, arguing that this is the position of the courts and
common understanding among academics. The truth is that it is this author who
influences academic society and, without doubt, judicial practice. Firstly, he points
out that the direct application doctrine endangers the principles of private autonomy.
Secondly, it is preferable to maintain the traditional essence of human rights as a
defensive right against state power. He thinks that it is desirable to leave the matters
in the private sphere to the parties’ own disposal, not to state power, and that indirect
application theory can resolve the issue of the social power to the same extent as the
66
As for the analysis of recent arguments, Shishido (2010) and Matsumoto (2011).
67
The expression “non-effect doctrine” is also common and the same is true of the following two
theories. The terms “application” and “effect” is certainly different, but the usage largely depends
on what each author emphasize in their arguments. Interchangeable use, or simply confusing use, of
“effect (validation) ” and “application” is found here as well as the use of “direct-applicability” in
the first sense (see Sect. 3.2).
68
“Indirect application doctrine” regarding the issue in the private sphere is similar to “indirect
application,” or international law-friendly interpretation, regarding the implementation of interna-
tional law in domestic legal order. Both ideas relating to interpretation are confusing, but should be
distinguished. See, also supra n 43.
69
Ashibe (2002), p. 107; Ashibe (1995), pp. 294–313.
70
Supreme Court, judgment of 12 December 1973, Minshū 27:1536.
Japan 531
direct application doctrine.71 State interference to solve conflicts between private

persons necessarily leads to the imposition of limitations on one party’s rights in the
name of protecting the other’s rights. Herein lies the danger of arbitrary state
interference in the lives of private persons. Even after his death, Ashibe has
continued to be the most significant influence on the following generation, either
explicitly or implicitly. This is strongly reflected in the post-Second World War
atmosphere of goken, or rather, it is right to say that he himself is a key figure in
goken.72
This vigilance in the face of state power characterizes the underlying spirit of
constitutional lawyers. While the main means of controlling states for international
lawyers is to involve them in banning or promoting a specific measure, constitutional
lawyers are averse to states’ commitments, a position fostered by bitter memories of
Japan’s human rights violations before and during the Second World War.
In this respect, the rising idea in the present Japanese academia is, again under the
strong influence of German theories and practice, the doctrine of states’ obligation to
protect basic rights (grundrechtliche Schutzpflicht des Staates).73 According to Go
Koyama, one of the leading proponents of this doctrine, it is jurisprudence that
“basic rights oblige states to take positive action to protect the interests of basic
rights from violation by a third party.”74 The leading precedent in Germany is the
first Abortion Case (1975), where the constitutionality of Article 218 of the German
Criminal Code was argued.75 The doctrine of states’ obligation to protect basic rights
reconstructs the schema of the argument, regarding not only bilateral relations
between private persons but also the trilateral relation of private persons and the
state: in this case, the right of an unborn child, who cannot claim to be protected by
the states’ positive action. Some scholars propose introducing this jurisprudence to
Japan. The present popularity of this theory comes not from political factors but from
the theoretical appeal of legal constructions.
For international law theory, the point is that this new argument shares the same
focus: states’ obligations. This makes international lawyers feel more familiar with
this argument than other legal constructions, unlike many Japanese constitutional
lawyers who emphasize individuals’ rights as a starting point.
In spite of the similarity, the two approaches do not combine with each other
coherently because the bases for identifying states’ obligations are different. One is
deduced from an interpretation of international law such as international treaties,
71
Ashibe (1995), especially 287–290.
72
As for this pacifist interpretation regarding an army of self-defense see, for instance, Ashibe
(2002), pp. 54–70.
73
Literally, it should be translated to “states’ obligation of basic rights,” but it is also expressed “the
protective function of the state.” See Grimm (2005), p. 137.
74
Translation by the author; Koyama (1998), p. 1. As for the background of this idea, see
Grimm (2005).
75
The German Constitutional Court argued in its judgments that “[t]he obligation of the state to
furnish protection is comprehensive. This orders the state not only the prohibition of direct violation
of unborn life but also the protection and promotion of this life.” See also Kommers and Miller
(2012), pp. 374–383.
532 K. Teraya
while the other is deduced from an interpretation of constitutional law. The two are
not necessarily compatible. As a matter of fact, the doctrine of states’ obligation to
protect basic rights has failed to dominate the issue because of the obsessive
vigilance of constitutional lawyers to state power since the Second World War.
In short, studies of international law and constitutional law in Japan have collab-
orated in arguing this issue to a certain degree, despite not necessarily sharing
approaches and ethos.76
4.2.3 Main Cases
Among relevant cases, the following two cases best illustrate the application of
human rights treaties in the private sphere.
Otaru Public Bath Case (2002)77
This case arose from an incident that occurred in a public bath in Otaru, a Japanese
port town visited by many Russian sailors. Not sharing the same customs as the
Japanese bathers, the sailors were very boisterous in the public bath, drinking vodka
and diving into the bathtubs. There are cultural differences regarding bathing. For
Japanese, taking a bath is not just for washing but also for relaxing and relishing the
peace. Japanese customers to the bath decreased, and after various efforts and much
struggle, one of the managers of the public baths came to take a bolder measure,
putting up a signboard saying “Japanese Only.” On three occasions in 1999 and
2000, the plaintiffs and others visited this public bath and were refused entrance. The
main plaintiff was a young white man originally from the US, who had Japanese
nationality through marrying a Japanese woman. This meant that the discrimination
was based not on nationality but on his appearance, his color. The plaintiffs sued the
manager of the public bath.78 According to the Court:
In the evaluation that, by the act of an individual, another individual’s fundamental freedom
and equality are violated in actuality or are in danger of violation and the violation exceeds
the limits of a socially permissible range, the said administrative measure to violate the
individual’s fundamental freedom and equality is judged to be null and illegal according to
Articles 1 and 90 of the Civil Code79 concerning general restrictions on the principle of
76
As for this curious collaboration of different philosophies, see Teraya (2012).
77
Sapporo District Court, Hanrei Jihō No 1806, judgment of 11 November 2002, 84. More detailed
introduction and analysis are found in Milhaupt et al. (2012), pp. 317–322; Teraya (2011),
pp. 19–39.
78
In this case, there are two respondents. In addition to the manager of the Bathhouse, Yunohana,
another respondent is, interestingly, the Otaru City, which, according to the plaintiff, is responsible
for the discriminatory act. This raises another important issue on implementations by local author-
ity. See Teraya (2011), pp. 28–30.
79
Relevant parts of the Civil Code (Act No 89 of 27 Apr 1896) read as follows: Art 1 (Fundamental
Principles): “(1) Private rights must conform to the public welfare. (2) The exercise of rights and
performance of duties must be done in good faith. (3) No abuse of rights is permitted.” Art
90 (Public Policy): “A juristic act with any purpose which is against public policy is void.”
Japan 533
private autonomy, rules of tort law80 etc., and so the individual's interest should be given
legal protection. In the interpretation of the regulations of the above-mentioned laws
concerning individual rights, Article 14 (1) of the Japanese Constitution, the ICCPR and
the International Convention on the Elimination of All Forms of Racial Discrimination
(CERD)81 may be considered standards of interpretation.82
The directly applied articles in the case are Article 90 and articles on tort law, but,
again, these articles cover a wide range of interpretations. Terms such as “public
policy” and “any right” and “any damages” are too general, calling for detailed
jurisprudence to make them useful. It is not necessarily clear whether the racial
discrimination in this case would have fallen under the scope of these articles. In its
interpretation, the Court referred to the Constitution and the ICCPR. In other words,
those laws were indirectly “applied” through private laws. The Court concluded that
the respondent should pay each plaintiff a total of one million yen.83
As discussed above, from a different angle, human rights protection in the private
sphere raises the issue of accommodating opposing human rights, and in this case,
the conflict arose between the plaintiffs’ right not to be discriminated based on color
and the respondent’s freedom of business. The former is deduced from Article 14 of
the Constitution and the latter from Article 22 (1) of the Constitution.84 It is
understood that the Court imposed a restriction on “freedom of business” by
“prohibition of racial discrimination,” which has enjoyed the status of obligation
erga omnes in international law discourse,85 though the violation was isolated in this
case. This seems a justifiable judgment in terms of the generally accepted hierarchi-
cal order of values.
Kyoto Hate Speech Case (2013, 2014)86
A recent notable instance of the international-law-friendly interpretation in the

private sphere relates to the leading case regarding hate speech in Japan. The
80
Tort law provisions in the Civil Code of Japan are follows: Art 709 (Damages in Torts): “A person
who has intentionally or negligently infringed any right of others, or legally protected interest of
others, shall be liable to compensate any damages resulting in consequence.” Art 710 (Compensa-
tion for Damages Other than Property): “Persons liable for damages under the provisions of the
preceding Article must also compensate for damages other than those to property, regardless of
whether the body, liberty or reputation of others have been infringed, or property rights of others
have been infringed.”
81
Not clearly specified in this judgment, the relevant provisions must be Art 26 ICCPR, Arts
2 (1) and 6 CERD.
82
Translation in (2003) JAIL 46:156 (with minor changes by the present author).
83
At that time of the judgment, one million yen was about 8300 US dollars.
84
Art 22 provides that “[e]very person shall have freedom to choose and change his residence and to
choose his occupation to the extent that it does not interfere with the public welfare.”
85
ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second
Phase), judgment 5 Feb 1970, ICJ Reports 1970, 3, para 34.
86
Kyoto District Court, Hanrei Jihō No 2208, judgment of 7 Oct 2013, 74; Osaka High Court,
Hanrei Jihō No 2232, judgment of 8 July 2014, 34.
534 K. Teraya
respondents were members of Zaitokukai, groups of ultra-right activists, and other

similar groups and individuals. Claiming that an elementary school for Korean
students illegally occupied a nearby city-run park, the group members hurled
abuse at the elementary school on three occasions between December 2009 and
March 2010, using handheld megaphones and loudspeaker trucks. In June 2010, the
school sued them, demanding compensation and a ban on its rally activities, while
the respondents argued in court that protesting the occupation of the park by the
school had a public objective and the lawsuit would infringe on their freedom of
speech (Article 21 of the Constitution).
In October 2013, the Kyoto District Court ruled that the content of the respon-
dents’ speeches represented “racial discrimination” under the CERD and ordered the
payment of twelve million yen as compensation. The judgment was upheld with
different reasoning by the Osaka High Court in 2014 and finalized by the Supreme
Court’s dismissal of an appeal in the same year.
The judgment of the District Court deserves particular attention, demonstrating a
new logic that had never been expressed in similar precedents. It was changed more
moderately by the Osaka High Court, but its innovative character demonstrates
progress in using human rights treaties in Japan. The District Court noted, with
quoting articles 2 and 6 of the CERD:87
In accordance with article 98 (2), treaties ratified and promulgated by Japan have the
domestic effect of taking precedence over statutes, unless the statutes require implementa-
tion. (. . .) These articles [article 1, article 2 (1) chapeau and (d), and article 6] are interpreted
as imposing not only international obligations on State Parties, but also a direct obligation on
the national courts as the addressees. For this reason, under the terms of the CERD, the
courts in Japan are under an obligation to interpret statutes in accordance with the provisions
of this convention.
After recognizing its own obligation, the Court continues:

. . .in cases where it is possible to order the author of an act of racial discrimination to pay
compensation to the victim under article 709 of the Civil Code due to the fact that the act
gives rise to immaterial damage,. . .the Japanese courts are obliged by the Convention to
determine the amount of compensation for the immaterial damage in conformity with the
provisions of the Convention.
First, it is surprising that, in applying Article 709 of the Civil Code (general
provision on tort), the Court refers not to the Constitution but only to the CERD. At
least on the surface, one of the reasons why Japanese courts have shown a negative
attitude to human rights treaties is that the courts believed the Constitution to be
sufficient to protect human rights. Given this understanding, international human
rights law was seen to be redundant, or an appendage at best to make judgments look
good. The lack of a reference to the Constitution suggests an independent signifi-
cance for human rights treaties in indirect application. In fact, from a practical
87
My translation. Another translation is also found in (2014) JYIL 57:507.
Japan 535
viewpoint, the CERD is much more efficient than the Constitution. The Court could
have referred to Article 13 and/or 14 (1), but those articles are highly general and
cannot provide useful guidance in interpreting Article 709 of the Civil Code, which
is also too general. The wording of the CERD is more precise and highly relevant to
this case.
Despite its innovative appearance, the reasoning of the District Court can also be
understood within an orthodox framework in the application of human rights
treaties. The Court starts with the constitutional basis of Article 98 (2) and, empha-
sizing the separation of powers, states that “no court or tribunal would be allowed to
order the authors of the acts to pay compensation to the members of the group
concerned by finding that they constitute tortious acts under Article 709 of the Civil
Code. . . without new legislation.” This is supperfluous consideration because the
CERD is already effective in the Japanese domestic legal order by the conclusion of
administrative body and recognition of legislative body under the Japanese political
system basing on the philosophy of the separation of powers. Courts are able to order
compensation based on the Civil Code with reference to the CERD and without new
legislation. Moreover, in the hierarchy of the Japanese legal order, human rights
treaties become “Japanese law,” occupying a hierarchical status between the Con-
stitution and law and regulations. In the application of the civil law, it would be
understood that the District Court just referred to the CERD as a domestic law higher
than the civil law. The District Court seems to have tried to limit its own power by
referring to the power balance of domestic organs to counterbalance the above
innovative logic.88 The reasoning was unnecessary and wrong, but the legal con-
struction as a whole was supposed to be put by excessive consideration for the
domestic power balance, though it was not successful.
In any case, the Osaka High Court revived reference to the Constitution and
deleted the accompanying unnecessary dictum.89 It returns to the moderate under-
standing, which makes vague the relation and the meaning of the prevailing dis-
course regarding validation, incorporation, and status in the domestic hierarchy.
Nonetheless, it is significant that the District Court actually delivered the new
possible reasoning.
Second, it is worth considering the reasoning used to deduce the obligation to
interpret in accordance with treaties. Going as far as to recognize a “direct obligation
of the national courts as the addressees,” the District Court regards the reference to
international treaties, at least the CERD, as an obligation not just at the court’s
discretion, as most of the previous decisions recognized. This seems an appropriate
decision in many respects, such as implementing the CERD in good faith and the
hierarchical status of the treaty in the domestic legal order.
It is nevertheless debatable whether the District Court characterizes the obligation
as a “direct” obligation. Emphasizing the importance of the role of judicial bodies is
favorable, but the expression “direct” is vague. Treaties are addressed to states as a
88
Teraya (2014), p. 293.
89
Osaka High Court, Hanrei Jihō No 2232, supra n 86, 36.
536 K. Teraya
whole, and judicial bodies bear obligations as one of the organs of the state. In any
case, the importance of recognizing courts’ obligations remains.90
Lastly, the judgment of the District Court is distinctive in its impact, particularly
in the twelve-million-yen compensation ordered; twelve times larger than in the
Otaru Public Bath Case; and unusually large compared with other such cases.91 The
District Court stated that “it is interpreted that the amount shall assure effective
protection and remedies against any acts of racial discrimination. [. . .] It cannot be
denied that the CERD has had a direct effect on the interpretation of civil law and has
become a factor in the increase in the amount of compensation awarded for imma-
terial damage.” It was not the first time that a court had recognized the possibility of
considering the violation of human rights treaties in evaluating the amount of
compensation, but the elaboration of the jurisprudence had not been sufficient. In
fact, the amount of compensation depends to a high degree on the discretion of
judges. In this judgment, the Court recognized that compensation for violations of
human rights needs to be considered as obligatory, not discretionary. The function of
tort provisions is said to be compensatory, preventive, and punitive,92 but unlike in
the US, the Japanese judicial system clearly avoids punitive compensation. How-
ever, the unusually large amount of compensation ordered by the District Court in
this Case invited the suspicion that the judgment ordered what amounted to punitive
compensation. With much reference to the CERD, the judgment gave the impres-
sion, strengthened by the first and second points mentioned above, that the treaty
comes to hold more constituent meaning in domestic jurisprudence.
To clear away any confusion, the High Court again took a moderate position,
clearly stating that “the system does not aim to impose sanctions on the perpetrator
or prevent similar acts in the future. Thus, it is not possible to order compensation for
the purpose of sanction and general prevention, over and above the amount of actual
damage suffered by the victim.”93 Despite this statement, the High Court, interest-
ingly, maintained the same amount of compensation as the District Court. This
judgment would not have been possible without the prior judgment of the District
Court. This gradual change seems more meaningful than possible drastic change to
take a punitive compensation in rooting the steady influence of human rights treaties
in domestic legal order because the human rights treaties gave an influence in
substance without unnecessary backrush to too idealistic a change. This progress
is modest but steady with a solid basis, a characteristic of the international-law-
friendly interpretation.
In this case, comparing the importance of conflicting rights is not so easy.
Discrimination based on race was at issue, as in the Otaru Public Bath Case, but
the opposing right here is freedom of expression, which has been strongly protected
in Japan. It is generally understood that the protected area of freedom of expression
90
Saito (2014), p. 113.
91
At the time of the judgment, the sum amounted to 123,400 US dollars.
92
Among literature on tort law in Japan see, for example, Hirai (1992), pp. 5–6.
93
Osaka High Court, Hanrei Jihō No 2232, supra n 86, 37.
Japan 537
in Japan is as wide as in the US,94 but the manner of expression by the respondent in
this case was so excessive that this judgment was widely endorsed among academics
and practitioners. In the wake of this case, the need for an act to ban hate speech was
widely recognized, resulting in much debate, and then the Diet passed the Hate
Speech Act in 2016, although there still remains a debate whether the Act shall go on
to impose penalties on the violators.95
5 Conclusion
The obligations imposed by international human rights law are generally obligations
of result. States have discretion in choosing among various means to meet their
international obligations. The variety of experiences in attempting to meet these
obligations provides many useful suggestions to other states, and in the case of
Japan, the features to realize international human rights obligations are as follows.
One of the prominent features is that Japan has adopted various legal traditions
and doctrines: the civil law tradition from Europe (especially German law), the
common law tradition (especially US law), and others. There was no single reference
state throughout the development of Japan’s domestic legal system. Inevitably, the
Japanese legal system is not a monolithic system but a sort of amalgam. The
formation of a legal system is rather contingent on historical conditions than on
any deductive truth. Being conditioned by historical environment rather than
through calculated cherry picking is not necessarily a serious defect because no
particular archetype can claim a priori excellence. Overall, Japan’s attempt at a
unique mixture of several legal traditions seems not to have failed. For instance,
introducing the idea of direct applicability has not been successful, at least so far, but
it has worked as a stimulus to use international treaties to promote the international-
law-friendly interpretation, and any shortcomings are not necessarily due to the
Japanese approach in adopting it but are mainly due to the vagueness of the concept
itself.
Another notable feature is that implementation of international human rights
treaties is a creative but odd collaboration of international law and international
legal studies on the one hand and domestic constitutional law and constitutional legal
studies on the other. The ethos and the intentions of both sides do not correspond
under the same banner of human rights protection. The relationship between the two
is not always harmonious. Technically, terms in both disciplines are disconnected.
For instance, the term “indirect application,” or the international-law-friendly inter-
pretation in international law as one of the general modes to implement international
94
At the same time, the difference of the protected area is not so simple. See Abe (2006),
pp. 230–255.
95
In its accompanying resolution, the CERD is mentioned, which shows the impact of human rights
treaties. There still exists a criticism that the Act does not provide punishment for offenders.
538 K. Teraya
treaties, is used in a more specific context of application in the private sphere in

constitutional legal studies without sufficient examination of the relationship with
international law. The difference in ethos is more serious. The first and foremost
source for constitutional lawyers is the Constitution of Japan, while international
lawyers are more concerned with violations of international law. The constitutional
lawyers’ approach is vindicated both by their profession and by the dominant
understanding, the constitutional supremacy theory. However, the validity of their
position is confined to an interpretation of the Constitution itself, and the argument
does not fully succeed in harmonizing domestic law with international obligations,
in spite of Article 98 (2) of the Constitution. The attempt to base the hierarchical
foundation in the ideas of legal philosophers such as Hans Kelsen, an influential
figure in postwar Japanese jurisprudence, is an accompanying cause of this failure.
In practice, judges tend to be satisfied with domestic conceptions because the
Cabinet Legislation Bureau is supposed to have checked the compatibility of
domestic law with international law. What makes this tendency strong is that the
preference for domestic laws appears more compatible with a legitimate political
principle: national democracy. Though it is an amalgam of various schools in
postwar Japan, goken seems to have taken a parochial attitude in accepting interna-
tional trend, in spite of its emphasis on the universality of human rights.
The tendency to use international human rights treaties is, however, growing,
especially in the form of the international-law-friendly interpretation. In terms of
substantive norms, it has become clear that some human rights are not sufficiently
covered by domestic laws, or at least that international treaties are useful in the
protection of human rights. Though not always accommodating, the hierarchical
argument can be a helpful tactic for those advocating human rights. In terms of
procedure, the existence of a considerable number of cases proves that hindrance
limiting the Constitution alone as a reason in appealing to the Supreme Court is not
decisive, especially because international law plays a role in interpreting the Con-
stitution. It should also be pointed out that the Supreme Court has become more
progressive, as demonstrated in the cases mentioned above. This seems to be a new
trend in Japanese courts, which have traditionally been characterized by their judicial
passivism. The use of international human rights treaties in court will be accelerated
if plaintiffs and respondents become more aware of the relevant decisions and
opinions in international forums and consider the treaties useful in their judicial
strategy.
When considering future developments, three points deserve particular attention.
Firstly, application other than direct application takes various forms, and thus the
organizational framework requires further elaboration. The Japanese courts have not
been able to supply sufficient legal stability. The Supreme Court’s 2013 judgment on
the rights of children born out of wedlock was epoch-making, but its unsystematic
approach in taking various elements into consideration at once left confusions and
suspicions, especially among the cautious mainstream of constitutional lawyers. A
clearer exposition of global constitutionalism with the international-law-friendly
interpretation is essential to avoid unnecessary anxiety and combine the laws of
national constitutions with international human rights law. Secondly, related to the
Japan 539
first point, the static validity approach with hierarchical thinking in the domestic
legal order should be replaced by a more dynamic understanding clearly demon-
strated in the idea of a “dialogue of judges.”96 Whatever rank international law
occupies in the domestic legal order, it does not change the fact that states are
obliged to observe international law, and thus states have to change their domestic
systems in order to fulfill those obligations. The validity approach needs to be
understood in combination with the theory of coordination, which urges dialogue
between multiple legal orders. Lastly, it should be borne in mind that using interna-
tional law is not itself the objective. International law remains basically an aid to
protect and promote human rights. For instance, it is superfluous to argue that
national judges are directly under the obligations of international law. Also, it is
too much to argue that all violations of international human rights law are unconsti-
tutional in terms of Article 98 (2) of the Constitution. Unlike numerous statements
by human rights treaty bodies, arguing for the self-executing character of interna-
tional law as the best means to promote the use of human rights treaties is not
necessarily fruitful. Promoting the use of international human rights law should be
based on the balance between national democracy and international reason. Exces-
sive monistic thinking will invite unnecessary backlash. Much room is recognized
for Japanese legal practice to need the help of international human rights law, and by
borrowing its power, Japanese practice serves to strengthen the global human rights
system in turn.
The way that these issues have come to the fore is largely unique in Japan, but the
issues themselves are universal. The case study of Japan provides a number of
universalizable suggestions in considering the constitutional process throughout
the world.
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Kenya
Implementation and Interpretation of International
Human Rights Norms by Kenyan Courts
Duncan M. Okubasu
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543
2 Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544
2.1 Institutional and Normative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544
2.2 Historical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545
2.3 Textual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
3 Practical Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
3.1 ‘African’ Regional Human Rights Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552
3.2 Global Human Rights Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553
3.2.1 CEDAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553
3.2.2 UDHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554
3.2.3 ICCPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555
3.2.4 ICESCR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
3.3 International Human Rights Norms: A General Survey of Jurisprudence . . . . . . . . . . . 558
3.3.1 UN Human Rights Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 558
3.3.2 African Commission on Human and Peoples’ Rights . . . . . . . . . . . . . . . . . . . . . . . . 558
3.3.3 East African Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559
3.3.4 European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560
4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562
1 Introduction
The stature hence usage of international legal norms in human rights adjudication in
Kenya has transmuted since 2010. Even though prior to 2010 Kenya had ratified
legion international human rights instruments, textual silence on the place of inter-
national law in Kenya’s legal system created some uncertainty on the legitimacy of
the use of (ratified yet undomesticated) international legal norms in the adjudication
of human rights claims. The legitimating legislation on sources of laws in Kenya, the
D. M. Okubasu (*)
Department of Public Law, Moi University, Eldoret, Kenya

https://doi.org/10.1007/978-3-319-94848-5_22
544 D. M. Okubasu
Judicature Act,1 did not make formal mention, or recognition, of international law.2
Kenya was considered a dualist state, a country whose use of international legal
norms was predicated on their domestication, and its courts were predisposed to use
international legal norms only to the extent that they had accordingly been domes-
ticated.3 Consequently, to be considered part of textually sanctioned use, interna-
tional law required to be afforded a statutory status through a parliamentary
enactment.4
Year 2010 was a watershed moment because the constitution enacted that year
did make formal mention of international law, hence altering its status as a source of
law.5 This development, which has been a subject of robust introspection—partic-
ularly on the question whether Kenya is now a monist or a dualist state—has
nonetheless articulated a textual basis for direct use of international norms by
Kenyan courts.6 Indeed, judicial decisions that refer to international human rights
norms after 2010 are manifold regardless of the conceptual and practical complica-
tions that the wording that Articles 2 (5) and 2 (6) of Kenya’s Constitution have
posed.
This largely descriptive chapter is an audit of the use of international human
rights norms (IHRN) by Kenyan courts after 2010. It considers the use of IHRN
derived from regional and global human rights systems. It commences with a
discussion on the pre-2010 use of IHRN in view of the silence in the Judicature
Act about the place and standing of international law with the intention of demon-
strating that the status of international law in a legal system has a significant
implication for the attendant use of human rights norms by courts in the legal
system. In judging the post 2010 use of IHRN, it locates the justification for the
employment of IHRN in the constitutional formulation that gives courts a broad
normative basis for recourse to international norms. It also describes the actual use of
IHRN from select instruments in general terms.
2 Context
2.1 Institutional and Normative
There is no special court in Kenya with exclusive jurisdiction over human rights
claims. The jurisdiction to determine claims of violation of rights has been vested in
1
Chapter 9 Laws of Kenya.
2
Id.
3
See, Harvey (1975), p. 413.
4
See e.g. Matru (2015), p. 87.
5
See Zartner (2014), p. 198.
6
See Nyachae and Ogendi (2015), pp. 177, 179; Mbondenyi and Ambani (2012), p. 34; Omiti
(2012) and Oduor (2015).
Kenya 545
Kenya’s High Court but also (implicitly) in what can be described as special superior
courts.7 The Constitution creates three judicial institutions, with similar status, all of
which have the obligation to determine claims relating to violations of rights. These
are, first, the High Court8; second, the Employment and Labour Relations Court,9
which deals with employment disputes, including labour rights; and, third, the
Environment and Land Court, which has been clothed with jurisdiction to hear
and determine cases concerning the environment and land ownership and use.10
The High Court is in turn administratively divided into various divisions.11 There is
a particular division that hears and determines judicial review and constitutional
issues (the Constitutional and Human Rights Division).12 That, in practice, is the
division that hears most human rights claims, though whenever a human rights issue
arises within the context of, say, a criminal dispute, it would be disposed by the
division where the issue arises—in this example, the Criminal Division of the High
Court.13 Also, these administrative divisions exist only in Nairobi, where there are
many judges and numerous disputes. Other High Court stations do not have these
divisions and deal with all issues, except those within the competence of the
Employment and Labour Relations Court or the Environment and Land Court.
As indicated, when courts are adjudicating human rights claims, they are guided
by the Judicature Act. Section 3 of this Act lists sources of law in a hierarchical way:
the Constitution, statutes, common law, equity and customary law. International law,
as well as foreign law, is not listed as a source of law under the Judicature Act, but it
was enacted before the Constitution of Kenya 2010, which demands that all laws that
were in force before 2010 should be read with adaptations and qualifications to bring
them into conformity with the Constitution. Thus, although international law is not
catalogued in the Judicature Act, by virtue of the 2010 Constitution, it is part of the
laws of Kenya, and courts are required to consider it when adjudicating human rights
claims.
2.2 Historical
Generally, Kenya’s formal attitude towards international instruments has been

unusually open. It is a party to many international instruments: about 42 international
7
Constitution of Kenya, Art 23 and 165.
8
Constitution of Kenya, Art 165.
9
Constitution of Kenya, Art 162.
10
Id.
11
Republic of Kenya: The Chief Registrar of the Judiciary (2014) The High Court of Kenya. http://
www.judiciary.go.ke/portal/page/high-court. Accessed 2 June 2016.
12
Id.
13
See e.g. High Court at Kisumu, Timothy Karuibu Ngugi v Republic, judgment of 28 Sept 2015.
Available via eKLR. http://kenyalaw.org/caselaw/cases/view/113737/. Accessed 31 May 2016.
546 D. M. Okubasu
agreements, 13 charters, 315 conventions, 5 covenants, 9 declarations and

12 treaties.14 In fact, some of these treaties, such as the African (Banjul) Charter
on Human and Peoples’ Rights, were adopted in Kenya following the Organization
of African Union (OAU) Summit of 1981 in Nairobi. It is thus noteworthy that
Kenya’s relationship with what forms the corpus of IHRN, even post-2010, was
established before 2010. Most instruments were signed, ratified or acceded to
before then.
The problem regarding the use of IHRN may not thus have been the absence of a
textual authorisation but may rather have been an intolerable consciousness by the
state towards human rights generally before 2010 in practical terms.15 The presence
of an authoritarian state, known for human rights abuses, meant that the existence of
attractive formal normative values alone did not imply their usefulness.16 For
instance, although Kenya has had a bill of rights since 1963, Kenyan courts were
reluctant to determine human rights violations, let alone review the legality of
legislation or policy as against human rights norms. According to Musila and
Biegon:
Not surprisingly, until 2001, the courts had declined to enforce human rights citing absence
of rules of procedure. Consequently, for many decades, judicial enforcement of socio-
economic rights in Kenya was conspicuously absent.17
Before 2010, though, following political change that came with the President
Kibaki regime in 2002, courts began to acknowledge the essence of and need to pay
homage to IHRN and did in fact start using such norms in human rights adjudication.
In 2002, for instance, Kenya’s then apex court, the Court of Appeal, used IHRN
in Rono v Rono to resolve a dispute on inheritance, even though such use was
apparently inconsistent with customary laws.18 That case was a succession dispute
that concerned distribution of property, and the court made the following remarks:
Is international law relevant for consideration in this matter? As a member of the interna-
tional community, Kenya subscribes to international customary laws and has ratified various
international covenants and treaties. In particular, it subscribes to the international Bill of
Rights, which is the Universal Declaration of Human rights (1948) and two international
human rights covenants: the Covenant on Economic, Social and Cultural rights and the
Covenant on Civil and Political Rights (both adopted by the UN General Assembly in
[1966]). In 1984 it also ratified, without reservations, the Convention on the Elimination of
All Forms of Discrimination Against Women, in short, ‘CEDAW’. In the African context,
Kenya subscribes to the African Charter of Human and Peoples’ Rights, otherwise known as
the Banjul Charter (1981), which it ratified in 1992 without reservations. In Article 18, the
Charter enjoins member states, inter alia: ‘ensure the elimination of every discrimination
14
National Council for Law Reporting, Treaties Database. Available via kenyalaw.org. http://
kenyalaw.org/treaties/. Accessed 16 Oct 2017.
15
Generally see, Truth Justice and Reconciliation Commission (‘TJRC’) (2013).
16
Id.
17
Biegon and Musila (2010), p. 32.
18
Court of Appeal at Eldoret, Rono v Rono, judgment of 29 Apr 2005. Accessible via eKLR. http://
kenyalaw.org/caselaw/cases/view/11233/. Accessed 16 Oct 2017.
Kenya 547
against women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions’.19
Judicial attitude towards international law, hence IHRN, therefore began to

change well before 2010, an inclination that did not just serve as a justification but
also provided a context that ushered in the post-2010 era with diminished tension
between the new text and the practice. This prelude is seen in 2005 in the case of
Martha Karua vs. Radio Africa Ltd T/A Kiss F.M. Station & 2 Others, a case in
which Justices Nyamu and Emukule remarked:
Perhaps we should also add that the fundamental rights and freedoms have over the years
acquired an international dimension which can no longer be ignored by the municipal courts.
Courts should therefore recognize that there is an international public law dimension to the
Chapter 5 rights and freedoms and also that the interpretation should also be guided by the
underlying purpose of the right or freedom.20
Kenya as a state had emerged from repressive Kenyatta-Moi regimes, and the
need for articulate incorporation of human rights into her governance agenda
required IHRN to acquire a more prominent status than it had, or at least that explicit
textual endorsement to support the then ensuing judicial practice. It is this need that
justifiably informed two formulations in the 2010 Constitution, which are of concern
to the analysis below.
2.3 Textual
Two inventions in the 2010 Constitution have fundamentally reoriented the status of
IHRN in Kenya’s legal system. The first relates to the place of international law
generally, while the second pertains to a special feature of the Bill of Rights. Both of
these are new creations, hence not a restatement of the pre-2010 positions. In fact,
the formulation relating to the status of international law in Kenya had the effect of
redefining the nature of Kenya’s legal system and in particular its interaction with
international law. The Supreme Court of Kenya summed up the import of the 2010
Constitution on IHRN when it noted In The Matter of the Principle of Gender
Representation in the National Assembly and the Senate21 that ‘[i]t is clear to us
that the Constitution of Kenya, 2010 which generously adopts such language of the
international human rights instruments, draws inspiration from them’.22
19
Id.
20
The High Court of Kenya, Martha Karua vs. Radio Africa Ltd T/A Kiss F.M. Station & 2 Others,
judgment of 21 July 2006. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/23016/.
Accessed 16 Oct 2017.
21
Supreme Court of Kenya, In The Matter of the Principle of Gender Representation in The
National Assembly and the Senate, Advisory Opinion of 11 Dec 2012. Available via eKLR.
http://kenyalaw.org/caselaw/cases/view/85286. Accessed 16 Oct 2017.
22
Id, para 52.
548 D. M. Okubasu
The first formulation is the incorporation of Articles 2 (5) and 2 (6) in the
Constitution of Kenya 2010. Article 2 (5) of the Constitution provides: ‘The general
rules of international law shall form part of the law of Kenya’, while Article
2 (6) states that ‘Any treaty or convention ratified by Kenya shall form part of the
law of Kenya under this Constitution’. According to Chief Justice Mutunga, ‘[. . .]
Kenya seems to have become a monist rather than a dualist state in which domestic
and international law are both given effect in the Constitution’. In the case of David
Njoroge Macharia v Republic,23 a judgment delivered in 2011, the Court of Appeal
summarised the place of international law as follows:
Kenya is traditionally a dualist system, thus treaty provisions do not have immediate effect in
domestic law nor do they provide a basis upon which an action may be commenced in
domestic courts. For international law to become part and parcel of national law, incorpo-
ration is necessary, either by new legislation, amended legislation or existing legislation.
However, this position may have changed after the coming into force of our new
Constitution.
Certainly, what this means is that courts now have a textual foundation for
resorting to international norms, a validation that did not exist pre-2010 unless the
norms had been expressly incorporated in the legal system through domestication.
Hence, Oduor writes:
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the
domestic legal order. This provides courts with the opportunity to seek inspiration from the
non-municipal legal framework when resolving disputes.24
Orago also writes regarding the import of the 2010 Constitution and its influence
on the status and hence place of international law in Kenya’s legal system:
The promulgation in August 2010 of the new Kenyan Constitution has radically changed the
position of international human rights law in the Kenyan domestic legal system [. . .]. With
the promulgation, international human rights law in ratified treaties have been directly
incorporated into the Kenyan domestic legal system through Article 2(6)1of the Constitu-
tion. The entrenchment of the primacy of international human rights law into the Kenyan
legal system, a system that has been plagued by almost four decades of totalitarian rule, is
not a strangely Kenyan phenomenon, but has been witnessed worldwide, and is based on the
importance of a commitment to international human rights protective values at the highest
level possible with the hope of non-regression to totalitarian rule.25
The meaning of this textual recognition of international law as a source of legal

norms is not just the elimination of doubt concerning the legality of use of interna-
tional law but also, to an extent, the insulation of international norms from conse-
quences attendant upon domestication. In a bid to culturally contextualise human
rights norms, certain norms and intentions would be deformed if not lost. After 2010,
23
Court of Appeal at Nairobi, David Njoroge Macharia v Republic, judgment of 18 Mar 2011.
Available via eKLR. http://kenyalaw.org/caselaw/cases/view/74661/. Accessed 16 Oct 2017.
24
Oduor (2015).
25
Orago (2013), pp. 419, 420.
Kenya 549
if Kenya ratifies a treaty, there is thus no risk that, in an effort at domesticating it,
certain content could be lost.
The second formulation of direct influence on the use of IHRN is Article
19 (3) (d), which states that ‘[. . .] rights and fundamental freedoms in the Bill of
Rights [. . .] do not exclude other rights and fundamental freedoms not in the Bill of
Rights, but recognized or conferred by law [emphasis added], except to the extent
that they are inconsistent with this Chapter’. Given the provisions of Articles
2 (5) and 2 (6), it is arguable that the word ‘law’ as used under Article 19 (3) of
the Constitution also refers to ‘international law’ and more so human rights law.
Consequently, a right under international law is part of the rights under Kenya’s Bill
of Rights and can form a basis of adjudication of a claim to the extent that it is not in
conflict with the Bill of Rights itself.
The impact of Article 19 (3) is, first, that the international catalogue of rights can
now form a basis for adjudication where the Constitution is silent, and, second, it can
form a basis for explaining the content of rights that are already contained in the
Constitution. For instance, the right to self-determination is not listed in Kenya’s Bill
of Rights, but by virtue of the International Covenant on Civil and Political Rights
(ICCPR), it formed (though implicitly) a basis for resolution of a dispute concerning
human rights in Morris Jarha Maro & Another v Registrar of Societies & Another.26
In that case, Justice Emukule of the High Court made mention of the right to self-
determination in the following manner:
International instruments addressing the right to self-determination such as the Charter of the
United Nations, the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, the African Charter on Human and
People’s Rights (1982), (Banjul Charter) and the 1993 Vienna Declaration, all are intended
to apply to people in non-self-governing conditions. In any event, the right to self- determi-
nation is subject to the application of uti possidetis juris which would mean that any acts
done in pursuit of this right would have to be conducted within the law, else they would be
considered unlawful, unless through a freely negotiated treaty with the governing/parent
state.27
The second import, as mentioned above, is that the contents of rights already in
the Bill of Rights have been broadened beyond the scope of what the Constitution
prescribed, thanks to IHRN. Jackson Maina Wangui & Another v Republic28
illustrates that the content of prescriptions in the Bill of Rights can be stretched
based on IHRN. In that case, the court was addressing the legality of the death
penalty under Article 26 of the Constitution, which provides that ‘every person has
26
High Court at Mombasa, Morris Jarha Maro & another v Registrar of Societies & another,
judgment of 18 Mar 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/107729/.
27
Id, para 25. See also High Court at Mombasa, Randu Nzai Ruwa & 2 Others vs. Internal Security
Minister & Another, judgment of 25 July 2012. Available via eKLR. http://kenyalaw.org/caselaw/
cases/view/81426/. Accessed 16 Oct 2017.
28
High Court at Nairobi, Jackson Maina Wangui & another v Republic, ruling of 02 Oct 2014.
550 D. M. Okubasu
the right to life’ and that ‘[a] person shall not be deprived of life intentionally, except
to the extent authorised by this Constitution or other written law’. The court made
reference to the ICCPR and in particular the content and scope of the right to life.
Though the court dismissed the petition, it could have found otherwise had Kenya
ratified the Second Optional Protocol to the ICCPR.29
Besides those two reasons, it has to be mentioned that most provisions of the Bill
of Rights in the Constitution of Kenya 2010 were largely drafted in an open-textured
manner. In many, if not all, instances, they do not state with precision the exact
content of a right. In addition, to proving a normative value or extrapolation of the
content of domestic human rights norms, IHRN act as an important interpretational
aid to courts when adjudicating rights. In this regard, the General Comments have
been a port of call for judges whenever they are interpreting the Bill of Rights, in
particular with respect to state obligations. Thus, the rights catalogued under Article
43 of the Constitution of Kenya (socio-economic rights) have immensely benefitted
from the interpretative aids in the General Comments. In Mathew Okwanda v
Minister of Health and Medical Services & 3 Others, the High Court held30:
The Committee on Economic, Social and Cultural Rights (CESCR) has elaborated the scope,
content and nature of State obligations under Article 12 of the ICESCR. The CESCR
General Comment No. 14 on The Right to the Highest Attainable Standard of Health, the
right to health is defined in the following terms; ‘[. . .] a fundamental human right indis-
pensable for the exercise of other human rights’.31
The High Court also explained in Gabriel Nyabola v Attorney General & 2 Others
as follows:
The ICESCR Committee General Comment 13 (21st Session, 1999 on ‘The Right to
Education Article 13’) at Para. 1 recognized the centrality of the right to education in the
following terms: ‘Education is both a human right in itself and an indispensable means of
realizing other human rights. As an empowerment right, education is the primary vehicle by
which economically and socially marginalized adults and children can lift themselves out of
poverty and obtain the means to participate fully in their communities. [. . .]’ Likewise, the
importance of education is captured in the ICESCR General Comment No. 11 [. . .] at Para.
2 [. . .].32
29
The Court observed at para 67: ‘Kenya has been party to this Covenant since May 1972. This
country, however, is not a party to the Second Optional Protocol to the International Covenant on
Civil and Political Rights which aims at the abolition of the death penalty. This is instructive
because it points out that under our law as it stands the death sentence continues to be a valid
sentence that can be passed by a court of law.’
30
High Court at Nairobi, Mathew Okwanda v Minister of Health and Medical Services & 3 others,
judgment of 17 May 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/88803/.
31
Id.
32
High Court at Nairobi, Gabriel Nyabola v Attorney General & 2 others, judgment of 10 Oct 2014.
Kenya 551
And in yet another case, Mitu-Bell Welfare Society v Attorney General &
2 Others, the High Court made the following remarks:33
Article 2(5) and (6) of the Constitution make the general rules of international law and any
treaty or convention that Kenya has ratified part of the law. Consequently, the state, state
organs and all persons, in carrying out evictions, should do so in accordance with the United
Nations Guidelines on Evictions as enunciated by the United Nations Office of the High
Commissioner for Human Rights in General Comment No. 7.34
3 Practical Usage
As noted above, there are no special courts with exclusive human rights jurisdiction.
Although Article 23 of the Constitution provides that it is the High Court that has
jurisdiction to hear and determine applications for redress of a denial, violation or
infringement of a right, Article 20 of the Constitution envisages that interpretation of
the Bill of Rights can be undertaken by a court, tribunal or other ‘interpreting
authority’. Though a claim that exclusively concerns human rights should be lodged
with the High Court, if a claim of human rights violations is raised in any court or
tribunal when dealing with any matter competent before it, the court or tribunal
(more so if it is a superior court) cannot defer the human rights issue to the High
Court. It is determined within the proceedings where it arises.
The implication of this has been that IHRN are not only used to determine matters
framed exclusively as ‘human rights violations’. Matters that would be considered as
falling under, say, family disputes or criminal proceedings also receive the aid of
human rights norms. Indeed, some of the cases that have been determined in Kenyan
courts using IHRN have included personal matters relating to matrimonial property,
divorce, child maintenance and civil processes, which are not exclusively so-called
‘human rights’ matters.
In terms of the IHRN corpus, courts have made as much reference to international
instruments as they have had to decisions from international bodies. Sometimes no
distinction has been made between IHRN to which Kenya is a party vis-à-vis those to
which Kenya is not a party. For example, and as shall be shown below, even
decisions of the European Court of Human Rights have found a direct application
in Kenya’s legal system. This was possible because courts often resort to compar-
ative jurisprudence at times without any reservations. The subsequent discussion is a
broad survey of how courts in Kenya have used IHRN.
33
High Court at Nairobi, Mitu-Bell Welfare Society v Attorney General & 2 others, judgment of
11 Apr 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/87948/. Accessed
18 Oct 2017.
34
Id.
552 D. M. Okubasu
3.1 ‘African’ Regional Human Rights Norms
Regional instruments have been the subject of widespread reference and in particular
the African (Banjul) Charter on Human and Peoples’ Rights. In W.J & Another v
Astarikoh Henry Amkoah & 9 Others,35 the question of liability of state and state
organs in the education sector when persons under their employ, and over whom
they exercise powers of discipline and control, violation the rights of children placed
under their care was adjudicated on the basis of the Banjul Charter. In yet another
case, Jaoko Noo Ooro & 5 Others v Attorney General,36 the court in finding that
fundamental rights and freedoms were violated made reference to the Banjul Charter
(Article 5), which establishes that treatment will be considered inhuman when it
causes intense physical or mental suffering; inhuman acts will amount to torture
when used to deliberately cause serious and cruel suffering, and treatment or
punishment will be degrading if it humiliates and debases a person beyond that
which is usual from punishment. Further, in Satrose Ayuma & 11 Others v Regis-
tered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others,
the court made extensive reference to different authorities such as the African
Commission on Human and Peoples’ Rights stating that although the right to
housing or shelter is not explicitly provided for under the African Charter of
Human and Peoples’ Rights, housing rights are protected through the combination
of provisions protecting the right to property, the right to enjoy the best attainable
standard of mental and physical health and the protection accorded to the family.
In Eric Gitari v Non-Governmental Organizations Co-ordination Board &
4 Others,37 the Non-Governmental Coordination Board rejected a registration appli-
cation on the basis that homosexuality is a crime under Kenyan law. The court cited
Articles 17(3), 27 and 29(7) of the Banjul Charter in attending to that case. Article
27 of the ACHPR states that ‘The rights and freedoms of each individual shall be
exercised with due regard to the rights of others, collective security, morality and
common interests’. The ACHPR also recognised, in Article 17(3), that ‘The promo-
tion and protection of morals and traditional values recognized by the community
shall be the duty of the State’ and under Article 29(7) that ‘. . .every individual has
the duty to preserve and strengthen positive African cultural values and to contribute
to the moral wellbeing of society’. The court relied on the African Court of Human
and Peoples’ Rights’ decision in Ghazi Suleiman v Sudan,38 holding that preventing
35
High Court at Nairobi, W.J & another v Astarikoh Henry Amkoah & 9 others, judgment of
19 May 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/109721/. Accessed
18 Oct 2017.
36
High Court at Nairobi, Jaoko Noo Ooro & 5 others v Attorney General, judgment of 06 Sept
2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/90502/. Accessed 18 Oct 2017.
37
High Court at Nairobi, Eric Gitari v Non-Governmental Organizations Co-ordination Board &
4 others, judgment of 24 Apr 2015, http://kenyalaw.org/caselaw/cases/view/108412/. Accessed
18 Oct 2017.
38
AfCtHPR, Ghazi Suleiman v Sudan, (II) (2003) AHRLR 144 (ACHPR 2003).
Kenya 553
an individual from gathering with others to discuss human rights and by punishing
him for doing so had violated the individual’s human rights under Articles 10 and
11 of the African Charter.
3.2 Global Human Rights Norms
The most often cited international human rights instruments are (a) the Convention
on Elimination of Discrimination Against Women (CEDAW), (b) the Universal
Declaration on Human Rights (UDHR), (c) the International Covenant on Civil and
Political Rights (ICCPR) and (d) the International Covenant on Economic, Social
and Cultural Rights (ECSECR).
3.2.1 CEDAW
There are several cases where Kenyan courts have used CEDAW.39 The Supreme
Court of Kenya, In the Matter of the Principle of Gender Representation in the
National Assembly and the Senate, cited Article 3 of CEDAW to advance the
position that gender equality could be realised progressively.40 The Chief Justice,
in a dissenting opinion in that case, drew inspiration from CEDAW, thus:
[. . .] from CEDAW, it is clear that disenfranchisement of the Kenyan women in the political
arena is a form of discrimination. CEDAW applies through the operation of Article 2 (6) of
the Constitution of Kenya, having been acceded to by Kenya on 9 Mar 1984. These
39
All available via eKLR. All accessed 18 Oct 2017. High Court at Meru, C K (A Child) through
Ripples International as her guardian & next friend & 11 others v Commissioner of Police/
Inspector General of the National Police Service & 3 others, judgment of 27 May 2013, http://
kenyalaw.org/caselaw/cases/view/89322/. High Court at Nairobi, Mary Wanjuhi Muigai v Attorney
General & another, judgment of 28 Oct 2015, http://kenyalaw.org/caselaw/cases/view/115691/;
Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others, judgment of
05 Dec 2014, http://kenyalaw.org/caselaw/cases/view/104234/; Rose Wangui Mambo & 2 others v
Limuru Country Club & 17 others, judgment of 12 Mar 2014 http://kenyalaw.org/caselaw/cases/
view/95512/and In Re Estate of Grace Nguhi Michobo (Decesead), judgment of 28 May 2004,
http://kenyalaw.org/caselaw/cases/view/2126/. High Court at Kakuru, Lucy Waihiga Wanjohi v
Johnstone Gikandi Theuri, judgment of 25 Nov 2011, http://kenyalaw.org/caselaw/cases/view/
78807/. High Court at Kitale, JAO v NA, judgment of 27 June 2013, http://kenyalaw.org/caselaw/
cases/view/83538. Court of Appeal at Eldoret, Mary Rono v Jane Rono & Another, judgment of
29 Apr 2005, http://kenyalaw.org/caselaw/cases/view/11233/. Employment and Labour Relations
Court at Nairobi, Koki Muia v Samsung Electronics East Africa Limited, award of 21 Aug 2015,
http://kenyalaw.org/caselaw/cases/view/112905/; Peris Nyambura Kimani v Dalbit Petrolium Lim-
ited, judgment of 09 July 2015, http://kenyalaw.org/caselaw/cases/view/112267/; G M V v Bank of
Africa Kenya Limited, award of 31 July 2013, http://kenyalaw.org/caselaw/cases/view/90648/ and
P O v Board of Trustees, A F & 2 others, http://kenyalaw.org/caselaw/cases/view/95084/.
40
Supreme Court of Kenya, In The Matter of The Principle Of Gender Representation In The
National Assembly And The Senate, advisory opinion of 11 Dec 2012. Available via eKLR. http://
554 D. M. Okubasu
provisions collectively call for the immediate removal of this discrimination through the
empowerment of women representation in political office, with CEDAW calling for stop-
gap measures to be put in place to reverse the negative effects on our society through the
operation of this systemic discrimination.41
Other post-2010 cases that considered CEDAW include R.M.M. v B.A.M., to

advance a non-discrimination argument in a matrimonial property dispute but in
which human rights concerns were under consideration42; Re Estate of Kamonjo
Njiinu Alias Kamonjo Gachinu (Deceased), an inheritance dispute43; Mary Mwaki
Masinde v County Government of Vihiga & 2 Others,44 an employment dispute
involving a county government; Satrose Ayuma & 11 Others v Registered Trustees
of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others, where the court
used CEDAW as one of the instruments that provided a textual basis for the right to
water as an international right, to list but a few.45
3.2.2 UDHR
The other instrument that has been a subject of consideration by the court is the
Universal Declaration on Human Rights (UDHR).46 Some important cases include
41
Id.
42
Court of Appeal at Nairobi, R.M.M. v B.A.M., judgment of 20 Feb 2015. Available via eKLR.
http://kenyalaw.org/caselaw/cases/view/106171/. Accessed 18 Oct 2017.
43
High Court at Nakuru, Re Estate of Kamonjo Njiinu Alias Kamonjo Gachinu (Deceased),
judgment of 20 May 2011. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/76880/.
Accessed 31 May 2016.
44
High Court at Kakamega, Mary Mwaki Masinde v County Government of Vihiga & 2 others,
judgment of 09 July 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/111633/.
45
High Court at Nairobi, Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways
Staff Retirement Benefits Scheme & 3 others, judgment of 30 Aug 2013. Available via eKLR. http://
46
All available via eKLR. All accessed 18 Oct 2017. High Court at Kakamega, Mary Mwaki
Masinde v County Government of Vihiga & 2 others, judgment of 09 July 2015. http://kenyalaw.
org/caselaw/cases/view/111633/.
High Court at Machakos, Andrew Manunzyu Musyoka (DECEASED), ruling of 15 Dec 2005,
http://kenyalaw.org/caselaw/cases/view/14756/. High Court at Nairobi, Refugee Consortium of
Kenya & another v Attorney General & 2 others, judgment of 18 Dec 2015, http://kenyalaw.org/
caselaw/cases/view/117151/; Margaret Wanjiru Ndirangu & 4 others v Attorney General, judg-
ment of 11 Sept 2015, http://kenyalaw.org/caselaw/cases/view/113080/; Pravin Bowry v Ethics &
Anti-Corruption Commission, judgment of 29 May 2015, http://kenyalaw.org/caselaw/cases/view/
109801/; David Gitau Njau & 9 others v Attorney General, judgment of 01 Nov 2013, http://
kenyalaw.org/caselaw/cases/view/91833/; Nairobi Law Monthly Company Limited v Kenya Elec-
tricity Generating Company & 2 Others, judgment of 13 May 2013, http://kenyalaw.org/caselaw/
cases/view/88569/; Fredrick Gitau Kimani v Attorney General & 2 Others, judgment of 02 Aug
2012, http://kenyalaw.org/caselaw/cases/view/81883/; and Johnson Muthama v Minister for Justice
& Constitutional Affairs & another, judgment of 29 June 2012, http://kenyalaw.org/caselaw/cases/
view/80498/. High Court at Nakuru, KAPI LTD & another v Pyrethrum Board of Kenya, ruling of
26 Apr 2013, http://kenyalaw.org/caselaw/cases/view/89135/.
Kenya 555
G M V v Bank of Africa Kenya Limited, a claim of discrimination in the context of

employment47; Mohammed Ibrahim Naz v Cabinet Secretary Responsible for Mat-
ters Relating to Citizenship and the Management of Foreign Nationals & Another, a
claim relating to deportation48; R.M.M. V B.A.M., a dispute relating to distribution of
matrimonial property49; Eric Gitari v Non-Governmental Organisations
Co-ordination Board & 4 Others, a judicial review claim concerning
non-registration of an NGO50; JWI v Standard Group Limited & Another, relating
to privacy51; Kenya Small Scale Farmers Forum & 6 Others v Republic of Kenya &
2 Others, where Article 21 of the UDHR was used to determine that ‘international
instruments recognize the general right to political participation that extends beyond
the right to vote’52; Patrick Chege Kinuthia & 2 Others v Attorney General, where
the UDHR inspired the supposition that ‘[. . .] law on protection against torture and
other degrading and inhuman treatment is clear that all those actions are prohibited
under international human rights law’53; and Kituo Cha Sheria & 8 Others v
Attorney General, where mention was made of the UDHR in a claim relating to
refugee rights.54
3.2.3 ICCPR
The ICCPR is also featured in a multitude of decisions.55 Significant cases in which

it was cited include Patrick Njuru Mwangi v Republic, to support a proposition that
47
Industrial Court at Nairobi, G M V v Bank of Africa Kenya Limited, judgment of 31 July 2013.
Available via eKLR. http://kenyalaw.org/caselaw/cases/view/90648/. Accessed 31 May 2016.
48
High Court at Nairobi, Mohammed Ibrahim Naz v Cabinet Secretary Responsible for Matters
Relating to Citizenship and the Management of Foreign Nationals & another, judgment 3 July
2013. Available at eKLR. http://kenyalaw.org/caselaw/cases/view/83830/. Accessed 18 Oct 2017.
49
Court of Appeal at Nairobi, R.M.M. v B.A.M., judgment of 20 Feb 2015. Available via eKLR.
http://kenyalaw.org/caselaw/cases/view/106171/. Accessed 18 Oct 2017.
50
High Court at Nairobi, Eric Gitari v Non- Governmental Organisations Co-ordination Board &
4 others, judgment of 24 Apr 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/
108412/. Accessed 18 Oct 2017.
51
High Court at Nairobi, JWI v Standard Group Limited & another, judgment of 06 June 2013.
52
High Court at Nairobi, Kenya Small Scale Farmers Forum & 6 others v Republic of Kenya &
2 others, judgment of 31 Oct 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/
91805/. Accessed 18 Oct 2017.
53
High Court at Nairobi, Patrick Chege Kinuthia & 2 others v Attorney General, judgment of
18 Aug 2015. Available via eKLR http://kenyalaw.org/caselaw/cases/view/112858/. Accessed
18 Oct 2017.
54
High Court at Nairobi, Kituo Cha Sheria & 8 others v Attorney General, judgment of 26 July
2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/84157. Accessed 18 Oct 2017.
55
All available via eKLR. All accessed 18 Oct 2017.
Court of Appeal at Nairobi, New Vision Kenya (Nvk Mageuzi) & 3 Others v Independent
Electoral And Boundaries Commission & 5 Others, judgment of 06 June 2014, http://kenyalaw.
org/caselaw/cases/view/98283/; and Royal Media Services Limited & 2 others v Attorney General
& 8 others, judgment of 28 Mar 2014, http://kenyalaw.org/caselaw/cases/view/96676/.
556 D. M. Okubasu
‘[t]he ICCPR itself does not outlaw the death penalty. Instead it permits the penalty
for the crime of genocide and serious crimes in countries that have not abolished it
but requires that the execution thereof be carried out in accordance with that
convention’56; David Njoroge Macharia v Republic (a criminal case citing fair
trial)57; Beatrice Wanjiku & Another v Attorney General & Another (a civil claim
relating to the legality of imprisonment based on a civil judgment)58; Rachael
Mwikali Mwandia v Ken Maweu Kasinga, in which the court noted that ‘the
provision of Article 11 of the International Covenant on Civil and Political Rights
which Kenya has ratified is part of the Kenyan Law. Therefore, enforcing a civil debt
through imprisonment is against the said Covenant which guarantees parties basic
freedoms of movement and of pursuing economic social and cultural
development.’59
Environment and Land Court at Nakuru, Clement Kipchirchir & 38 others v Principal Secretary
Ministry of Lands Housing and Urban Development& 3 others, judgment of 21 Apr 2015, http://
kenyalaw.org/caselaw/cases/view/108867/. High Court at Nairobi, Sheila Amalemba & another v
Attorney General & 4 others, judgment of 25 Nov 2015, http://kenyalaw.org/caselaw/cases/view/
116746/; Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others,
judgment of 18 Dec 2013, http://kenyalaw.org/caselaw/cases/view/93354/; Kenya Small Scale
Farmers Forum & 6 others v Republic of Kenya & 2 others, judgment of 31 Oct 2013, http://
kenyalaw.org/caselaw/cases/view/91805/; Jayne Wangui Gachoka v Kenya Commercial Bank
Limited, judgment of 05 July 2013, http://kenyalaw.org/caselaw/cases/view/83910/; Nairobi Law
Monthly Company Limited v Kenya Electricity Generating Company & 2 Others, judgment of
13 May 2013, http://kenyalaw.org/caselaw/cases/view/88569/; Republic v Permanent Secretary
Office of The President Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi,
judgment of 03 Apr 2013, http://kenyalaw.org/caselaw/cases/view/96395/; John Swaka v Director
of Public Prosecutions, Attorney General & 2 others, judgment of 18 Jan 2013, http://kenyalaw.
org/caselaw/cases/view/86212/; Chirau Alimwakwere v Robert M. Mabera & 4 Others, judgment of
27 July 2012, http://kenyalaw.org/caselaw/cases/view/81744/; and Republic v Surbodinate Court
Of The 1st Class Magistrate At City Hall, Nairobi & another Ex-parte Yougindar Pall Sennik &
another, judgment of 28 Apr 2006, http://kenyalaw.org/caselaw/cases/view/16122/.
56
Court of Appeal at Nairobi, Patrick Njuru Mwangi v Republic, judgment of 20 Dec 2013.
57
Court of Appeal at Nairobi, David Njoroge Macharia v Republic, judgment of 18 Mar 2011.
58
High Court at Nairobi, Beatrice Wanjiku & another v Attorney General & another, judgment of
23 July 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/81477/. Accessed
18 Oct 2017.
59
High Court at Nairobi, Rachael Mwikali Mwandia v Ken Maweu Kasinga, ruling of 28 Jan 2013.
Kenya 557
3.2.4 ICESCR
Because of the inclusion of socio-economic rights, the ICESCR has also been the
subject of generous citation.60 In Gabriel Nyabola v Attorney General & 2 Others,
the ICESCR was cited in a claim relating to basic education61; in Seventh Day
Adventist Church (East Africa) Limited v Minister for Education & 3 Others, the
ICESCR was mentioned in a claim relating to religion62; in Ibrahim Sangor Osman v
Minister of State for Provincial Administration & Internal Security & 3 Others, the
court in adjudicating a right to housing claim observed:
Kenya ratified the International Covenant on Economic, Social and Cultural Rights
(ICESCR) on 3/1/1976 and consequently became bound to respect, protect and enforce
the rights therein, including the right to adequate housing and the related prohibition of
forced evictions as guaranteed by Article 11 of the Covenant and the right to education as
guaranteed under Article 13. The UN Committee on Economic Social and Cultural Rights
(CESCR), mandated with monitoring compliance with the ICESCR, provides a detailed
analysis of the prohibition on forced eviction under international law.63
60
All available via eKLR. All accessed 18 Oct 2017. Supreme Court of Kenya, In The Matter of The
Principle Of Gender Representation In The National Assembly And The Senate, advisory opinion of
11 Dec 2012, http://kenyalaw.org/caselaw/cases/view/85286/. High Court at Mombasa, Karisa
Charo Dunda & 2 others v Francis Wanjohi Wang’ang’a & 4 others, judgment of 29 July 2015,
http://kenyalaw.org/caselaw/cases/view/112225/; and Stanley Kamere & 26 others v National
Housing Corporation & 2 others, judgment of 17 July 2015, http://kenyalaw.org/caselaw/cases/
view/112078/. High Court at Nairobi, Githunguri Residents Association v Cabinet Secretary -
Ministry of Education, Attorney General & 5 others, judgment of 29 May 2015, http://kenyalaw.
org/caselaw/cases/view/109726/; Mathew Okwanda v Minister of Health and Medical Services &
3 others, judgment of 17 May 2013, http://kenyalaw.org/caselaw/cases/view/88803/; Jeffer Isaak
Kanu v Ministry Of Justice, National Cohesion And Constitutional Affairs & 3 others, judgment of
11 Jan 2013, http://kenyalaw.org/caselaw/cases/view/86679/; John Kabui Mwai & 3 Others v
Kenya National Examination Council & 2 Others, judgment of 16 Sept 2011, http://kenyalaw.
org/caselaw/cases/view/76970/; and Republic v Minister For Home Affairs & 2 Others Ex-Parte
Leonard Sitamze, judgment of 18 Apr 2008, http://kenyalaw.org/caselaw/cases/view/42548/. Envi-
ronment and Land Court at Nakuru, Clement Kipchirchir & 38 others v Principal Secretary
Ministry of Lands Housing and Urban Development& 3 others, judgment of 21 Apr 2015, http://
kenyalaw.org/caselaw/cases/view/108867/.
61
High Court at Nairobi, Gabriel Nyabola v Attorney General & 2 others, judgment of 10 Oct 2014.
62
High Court at Nairobi, Seventh Day Adventist Church (East Africa) Limited v Minister for
Education & 3 others, judgment of 18 Dec 2013. Available via eKLR. http://kenyalaw.org/
caselaw/cases/view/93354/. Accessed 24 Oct 2017.
63
High Court at Embu, Ibrahim Sangor Osman V Minister of State For Provincial Administration &
Internal Security & 3 Others, judgment of 03 Nov 2011. Available via eKLR. http://kenyalaw.org/
caselaw/cases/view/80291/. Accessed 24 Oct 2017.
558 D. M. Okubasu
3.3 International Human Rights Norms: A General Survey

of Jurisprudence
3.3.1 UN Human Rights Bodies
Some adjudications in Kenya make use of the decisions of the United Nations
Human Rights bodies. These include (a) the Human Rights Council and Special
Rapporteurs and (b) UN treaty bodies, in particular their General Comments. In the
case of Kenya Small Scale Farmers Forum & 6 Others v Republic of Kenya &
2 Others,64 the High Court made reference to the interpretation through the UN
Human Rights Committee’s General Comment on Article 25 of the ICCPR. The
court in Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways
Staff Retirement Benefits Scheme & 3 Others65 also made reference to the Special
Rapporteur’s Report on Adequate Housing.66 Examples such as these are replete in
Kenyan courts.
3.3.2 African Commission on Human and Peoples’ Rights
Decisions of the African Commission of Human and Peoples’ Rights have been the
subject of continued usage since 2010. In the Satrose Ayuma & 11 Others v
Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme &
3 Others,67 the African Commission on Human Rights’ cases of Ogoni people
against Nigeria, Social Economic Rights Centre & Centre for Economic and Social
Rights v Nigeria,68 Free Legal Assistance Group and Others v Zaire,69 Centre for
Housing Rights and Evictions (COHRE) v Sudan,70 Centre for Minority Rights and
Minority Rights Group International on Behalf of Endorois Welfare Council v
64
High Court at Nairobi, Kenya Small Scale Farmers Forum & 6 others v Republic of Kenya &
2 others, judgment of 31 Oct 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/
91805/. Accessed 18 Oct 2017.
65
High Court at Nairobi, Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways
Staff Retirement Benefits Scheme & 3 others, judgment of 30 Aug 2013. Available via eKLR. http://
66
Kothari (2004).
67
Id.
68
AfCHPR, Social and Economic Rights Action Center (SERAC) and Center for Economic and
Social Rights (CESR) v Nigeria, decision of 27 Oct 2001. Com No 155/96.
69
AfCHPR, Free Legal Assistance Group and Others v Zaire, decision of 04 Apr 1996. Com Nos
25/89, 47/90, 56/91, 100/93.
70
AfCHPR, Centre for Housing Rights and Evictions (COHRE) v Sudan, decision of 27 May 2009.
Com Nos 279/03-296/05.
Kenya 559
Kenya71 were referred to. The court also cited Jawara v The Gambia,72 Amnesty
International v Zambia,73 Aminu v Nigeria74 and Civil Liberties Organisation v
Nigeria75 in Eric Gitari v Non-Governmental Organizations Co-ordination Board &
4 Others.76 Further, in W.J. & Another v Astarikoh Henry Amkoah & 9 Others,77
Purohit and Moore v The Gambia78 and Free Legal Assistance Group and Others v
Zaire79 were cited.
3.3.3 East African Court of Justice
The East African Court of Justice decisions have also been used in Kenyan courts. In
Gladys Boss Shollei v Judicial Service Commission,80 the court cited the cases of
Mary Aiviza & Okoth Mondoh v Attorney General of Kenya,81 Prof. Peter Anyang
Nyongo and 10 Others v The Attorney General of Kenya and 5 Others82 and East
African Law Society and 4 Others v The Attorney General of the Republic of Kenya
and 3 Others.83 Civicon Limited v Kenya Revenue Authority the Commissioner of
71
AfCHPR, Centre for Minority Rights and Minority Rights Group International on Behalf of
Endorois Welfare Council v Kenya, decision of 25 Nov 2009. Com No 276/03.
72
AfCHPR, Jawara v The Gambia, decision of 11 May 2000. Com No 147/95-149-96. AHRLR
1:107–119.
73
AfCHPR, Amnesty International v Zambia, decision of 05 May 1999. Com No 212/98. AHRLR
1:325–334.
74
AfCHPR, Aminu v Nigeria, decision of 11 May 2000. Com No 205/97. AHRLR 1:258–261.
75
AfCHPR, Civil Liberties Organisation v Nigeria, decision of 22 Mar 1995. Com No 101/93.
76
High Court at Nairobi, Eric Gitari v Non-Governmental Organizations Co-ordination Board &
4 others, judgment of 24 Apr 2015, http://kenyalaw.org/caselaw/cases/view/108412/. Accessed
18 Oct 2017.
77
High Court at Nairobi, W.J. & another v Astarikoh Henry Amkoah & 9 others, judgment of
19 May 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/109721/. Accessed
20 Oct 2017.
78
AfCHPR, Purohit and Moore v The Gambia, decision of 29 May 2003. Com No 241/01, para 80.
79
AfCHPR, Free Legal Assistance Group and Others v Zaire, decision of 04 Apr 1996. Com Nos
25/89, 47/90, 56/91, 100/93.
80
Industrial Court at Nairobi, Gladys Boss Shollei v Judicial Service Commission, judgment of
22 Nov 2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/92623/. Accessed
20 Oct 2017.
81
East African Court of Justice at Arusha, Mary Aiviza & Okoth Mondoh v Attorney General of
Kenya, ruling of 01 Dec 2010. Application No 3 of 2010 [arising out of Reference No 7 of 2010].
See also Emmanuel Mwakisha Mjawasi And Others v Attorney General [2012] eKLR. The East
African Court Of Justice As Reference No. 2 of 2010.
82
East African Court of Justice at Arusha, Prof. Peter Anyang’ Nyong’o and 10 others v The
Attorney General of Kenya and 5 others, ruling of 27 Nov 2006. Reference No 1 of 2006.
83
East African Court of Justice at Arusha, East African Law Society and 4 others v The Attorney
General of the Republic of Kenya and 3 others, ruling of 11 July 2007. Application No 9 of 2007
[arising out of Reference No 3 of 2007].
560 D. M. Okubasu
Customs & Another also cited the case Attorney General of Kenya v Prof. Anyang
Nyong'o & 10 Others.84
3.3.4 European Court of Human Rights
Decisions of the Strasbourg Court (as well as the European Convention on Human
Rights) have also found their way into Kenyan courts despite the fact that the
European Convention on Human Rights does not fall within the contemplation of
Articles 2 (5) and 2 (6). There is indeed a multitude of cases where the Kenyan courts
have adopted Strasbourg jurisprudence. In Nyakamba Gekara v Attorney General &
2 Others,85 the court, noting that the Constitution does not define religion, relied on
an analysis of Article 9 of the European Convention on Human Rights (ECHR). It
could do so since, arguably, Article 32 (2) of Kenya’s Constitution 2010 relies on
similar terms as Article 9 of the ECHR. In Seventh Day Adventist Church (East
Africa) Limited v Minister for Education & 3 Others,86 a claim citing violation of the
right to freedom of religion as guaranteed under Article 32 of the Constitution of
Kenya for students professing the Seventh Day Adventist faith across the country
was dismissed relying on Konttinen v Finland.87 Mtana Lewa v Kahindi Ngala
Mwagandi88 concerned the doctrine of adverse possession. The court, holding that
the doctrine of adverse possession is neither an arbitrary nor an unconstitutional
limitation on the right to property, made reference to the European Court of Human
Rights’ decision in Oxford & Another v The United Kingdom89 and its view that the
United Kingdom law on adverse possession was not a violation of Article 1 of
Protocol No 1 of the European Convention on Human Rights.
84
East African Court of Justice, Attorney General of Kenya v Prof. Anyang Nyong’o & 10 Others,
ruling of 6 Feb 2007. Application No 5 of 2007.
85
High Court at Nairobi, Nyakamba Gekara v Attorney General & 2 others, judgment of 01 Nov
2013. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/91846/. Accessed
01 Nov 2013.
86
High Court at Nairobi, Seventh Day Adventist Church (East Africa) Limited v Minister for
Education & 3 others, judgment of 18 Dec 2013. Available via eKLR. http://kenyalaw.org/
caselaw/cases/view/93354/. Accessed 18 Dec 2013.
87
ECtHR, Konttinen v Finland, decision of 03 Dec 1996. Application No 24949/94. DR 87:68–77.
88
Court of Appeal at Malindi, Mtana Lewa v Kahindi Ngala Mwagandi, judgment of 17 July 2015.
89
ECtHR, Case of J.A. Pye (Oxford) Ltd. and J.A. Pye (Oxford) Land Ltd. v The United Kingdom,
judgment of 30 Aug 2007. Application No 44302/02.
Kenya 561
4 Conclusion
The formulations of the Constitution of Kenya 2010 on international law have raised
three normative concerns regarding the place and status of IHRN, hence their
applicability. The first is about whether Kenya is now a monist state or not, the
second concerns the meaning of the phrase ‘general rules of international law’ and
the third relates to conflicting domestic and international norms. Regarding the first,
academics have written suggestions that Kenya is now a monist state, though they do
so with hesitation.90 What Kenya is in terms of its relationship with international law
certainly has a direct implication on the legitimacy of the use of undomesticated
IHRN, but it appears that the judicial attitude towards international law favours
construing Kenya as a monist state. In fact, no standards have been set either in
legislation or case law suggesting the circumstances when IHRN are to be cited or
not. As long as a norm is not in conflict with the Constitution, the tendency has been
to cite it.
The second issue concerns the conflict between domestic and international norms.
This conflict has presumably arisen because the Judicature Act did not make mention
of international law, yet it is the instrument that ordinarily guides courts in Kenya
when resolving conflicts relating to norms. The pre-2010 understanding of Kenya as
a dualist state certainly did not pose a problem of conflict because international law
would find its placement in Kenya’s legal system through legislation that is listed
under the Judicature Act. Recently, there have been instances where a domestic
norm is in direct conflict with an international standard. For instance, in Re Zipporah
Wambui Mathara, the court having invoked international law found itself compelled
to declare the practice of enforcement of judgments through committal to civil jail as
contravening the provisions of the ICCPR on the effects of failure to fulfil a
contractual obligation.91 In dealing with this issue, courts seem to shun the question
of invalidity of norms but instead appear to adopt an interpretation that reconciles the
formative conflict.92
The third concern relates to the meaning of ‘general rules of international law as
contained in Article 2 (6)’. It is noteworthy that very few decisions, if any, have
made use of general rules of international law mentioned under the Constitution
perhaps because the content of the formulation is ambiguous. It is difficult to tell
whether this provision means customary international law or principles of law
recognised by civilised nations.
Despite these contentions, the use of IHRN has been prevalent in post-2010
Kenya. Such use is justified by explicit textual changes that make an explicit mention
of international law as part of the laws of Kenya and the change in context under
90
See Oduor (2015) and Mbondenyi and Ambani (2012).
91
High Court at Nairobi, Re: Zipporah Wambui Mathara, ruling of 24 Sept 2010. Available via
eKLR. http://kenyalaw.org/caselaw/cases/view/71032/. Accessed 24 Oct 2017.
92
See Oduor (2015).
562 D. M. Okubasu
which human rights operate post-2010. Indeed, IHRN are now used to resolve not
only exclusive human rights violations claims but also private matters that relate to
such rights.93
References
Biegon J, Musila G (2010) Socio-economic rights as one promise of a new constitutional era. In:
Biegon J, Musila G (eds) Judiciary watch report: judicial enforcement of socio-economic rights
under the new constitution: challenges and opportunities for Kenya. Kenya Section of the
International Commission of Jurists, Nairobi
Harvey W (1975) Introduction to the legal system in East Africa. East African Literature Bureau,
Kampala
Kothari M (2004) Adequate housing as a component of the right to an adequate standard of living.
Report of the Special Rapporteur to the United Nations Economic and Social Council. UNDoc
E/CN.4/2005/48/Add.2. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/168/86/
PDF/G0416886.pdf. Accessed 18 Oct 2017
Matru SF (2015) The post-election violence in Kenya – domestic and international legal responses.
Springer, Berlin
Mbondenyi M, Ambani J (2012) The new constitutional law of Kenya: principles, government and
human rights. Law Africa Publishing, Nairobi
Nyachae J, Ogendi P (2015) Litigating the right to health in Kenya: an analysis of select cases. In:
Durojaye E (ed) Litigating the right to health in Africa – challenges and prospects. Ashgate,
Farnham
Oduor M (2015) The status of international law in Kenya. Afr Nazarene Univ Law J 2:97–125.
Available via SSRN. http://ssrn.com/abstract¼2326135. Accessed 16 Oct 2017
Omiti H (2012) The Monist Dualist Dilemma and the place of international law in the hierarchy of
valid norms under the Constitution of Kenya 2010. Available via SSRN. https://papers.ssrn.
com/sol3/papers.cfm?abstract_id¼2099043. Accessed 16 Oct 2017
Orago N (2013) The 2010 Kenyan Constitution and hierarchical place of international law in the
Kenyan domestic legal system: a comparative perspective. Afr Human Rights Law J
13:415–440
Truth, Justice and Reconciliation Commission (2013) Report of the Truth, Justice and Reconcili-
ation Commission, vol IV. Available via Internet Archive. http://wayback.archive-it.org/1068/
20140623214014/http://www.tjrckenya.org/images/documents/TJRC_report_Volume_4.pdf.
Zartner D (2014) Courts, codes, and custom – legal tradition and state policy toward international
human rights and environmental law. Oxford University Press, New York
93
See e.g. Court of Appeal at Malindi, Mtana Lewa v Kahindi Ngala Mwagandi, judgment of
17 July 2015. Available via eKLR. http://kenyalaw.org/caselaw/cases/view/111658/. Accessed
24 Oct 2017.
Slovenia
Decisions in Slovenia
Dragica Wedam Lukić
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563
2 The Right to Judicial Protection and the Right to the Equal Protection of Rights in Civil
Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566
3 The Right to an Impartial Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
4 Basic Procedural Safeguards in Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571
5 The Right to Personal Liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
6 The Right to the Protection of Personal Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575
7 The Freedom of Expression and Artistic Endeavour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
8 The Right to Effective Protection of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580
9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586
1 Introduction
Article 8 of the Constitution of the Republic of Slovenia (hereinafter referred to as

the Constitution) determines that laws and regulations must comply with generally
accepted principles of international law and with treaties that are binding on Slovenia
and that ratified and published treaties shall be applied directly. This entails that the
Republic of Slovenia recognises the primacy of international law over laws and other
regulations of internal law, which, in the hierarchy of legal norms, places interna-
tional law below the Constitution and above internal laws.1 Through ratification and
1
See Škrk (2010), p. 46, who refers to two decisions of the Constitutional Court: Decision U-I-6/93,
dated 1 Apr 1994, in which the Constitutional Court adopted the standpoint that Art 8 of the
Constitution gives precedence to the norms of international law over all sub-constitutional norms of
domestic law, and Opinion Rm-1/97, dated 5 June 1997, by which in paragraph 12 of the reasoning
the Constitutional Court underlined that the Slovene legal system does not recognise the primacy of
D. Wedam Lukić (*)

University of Ljubljana, Ljubljana, Slovenia
e-mail: dragica.wedam@pf.uni-lj.si

https://doi.org/10.1007/978-3-319-94848-5_23
564 D. Wedam Lukić
publication, treaties become an integral part of the national legal system, and only if
their provisions cannot be directly applied in determining the rights and obligations
of individuals is it necessary to adopt appropriate rules for their implementation.
However, if their provisions are directly applicable (i.e., self-executing), they are to
be used directly regardless of whether their content is reproduced in the national
regulations or not.2 The Constitution attributes particular importance to treaties on
the protection of human rights and fundamental freedoms by determining in Article
15 (5) that no human right or fundamental freedom regulated by legal acts in force in
Slovenia may be restricted on the ground that the Constitution does not recognise
that right or freedom or recognises it to a lesser extent.
The Convention for the Protections of Human Rights and Fundamental Freedoms
(hereinafter referred to as the Convention or ECHR) is accorded a particular position
among the international instruments for the protection of human rights that are
binding on the Republic of Slovenia3 as it provides individuals effective protection
before the European Court of Human Rights (hereinafter referred to as the ECtHR)
in the event of a violation of their Convention rights. With the ratification of the
Convention, contracting states commit themselves to respecting the standards on
human rights and fundamental freedoms guaranteed by the Convention (Article
1 ECHR) and undertake to abide by the final judgment of the ECtHR in any case
to which they are parties (Article 46 (1) ECHR).
It is undisputable that the ECtHR cannot interfere with individual judicial pro-
ceedings and cannot set aside judgments of a national court that, in its opinion, have
violated the applicant’s human right but may only afford just satisfaction to the
injured party in the form of pecuniary compensation (Article 41 ECHR). As it has
proven that in certain circumstances such is not sufficient and that the only efficient
measure for remedying the violation would be that the injured party is restored to the
same situation that he or she enjoyed prior to the violation (i.e., restitutio in
integrum), the Committee of Ministers in 2000 recommended that Member States
consider the possibility of introducing the legal remedy of the re-examination or
reopening of certain cases in which violations of human rights took place.4 In
accordance with this Recommendation, the states should consider this possibility,
international law over constitutional provisions. Commentators on the Constitution deem that the
Constitutional Court treats international and national law as two separate systems. See Graseli
(2002), p. 140, and Umek (2011), p. 135 and the therein cited case law of the Constitutional Court.
2
This view may be found in numerous decisions of the Constitutional Court; see Sovdat (2002),
pp. 144–148.
3
The Republic of Slovenia is a party to, among other instruments, the International Covenant on
Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the
Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees;
the International Convention on the Elimination of All Forms of Racial Discrimination; the
Convention on the Elimination of All Forms of Discrimination against Women; the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the
Convention on the Rights of the Child.
4
Recommendation No R (2000) 2, 19 Jan 2000.
Slovenia 565
especially in a situation wherein the injured party continues to suffer very serious
negative consequences because of the outcome of the domestic decision at issue,
which are not adequately remedied by just satisfaction, and in situations in which the
judgment of the ECtHR leads to the conclusion that on the merits the impugned
domestic decision is contrary to the Convention or that the violation found is based
on procedural errors or shortcomings of such gravity that serious doubt is cast on the
outcome of the domestic proceedings. Pursuant to the Slovene procedural legisla-
tion, a judgment of the ECtHR can be a basis for reopening criminal proceedings,5
whereas other procedural laws do not envisage such possibility.
In cases in which the ECtHR establishes that the violation is a consequence of
inappropriate legislation, it may require that a contracting state adopt or amend the
legislation. The ECtHR has recently begun to apply this possibility also in cases of
systemic violations of human rights.6 Thereby, the ECtHR attempts to prevent
further violations of human rights and ensure that violations that have already
taken place will be remedied at the national level. In cases that concern merely a
question of the interpretation and scope of an individual human right in an individual
case, ECtHR judgments have significance of a precedent also for other similar cases.
Regardless of the fact that contracting states are not formally bound by ECtHR
judgments when interpreting the Convention, recently there has been an increasingly
strict requirement that national courts are to apply the Convention as it proceeds
from ECtHR judgments. Dr Wildhaber, former President of the ECtHR, has repeat-
edly pointed to the importance of cooperation between the ECtHR and national
constitutional and supreme courts in the field of human rights protection. In view of
the ECtHR being overburdened with a large number of pending cases, the European
system of human rights protection cannot succeed unless the national courts assume
the role entrusted to them by the Convention.7 The ECtHR referred to this obligation
in its judgment in Kudła v Poland8; this view was expressly emphasised also in the
Interlaken Declaration of 19 February 2010 adopted at the Interlaken Conference on
the future of the ECtHR.9 The Convention is namely a ‘living instrument’, further
developed through its protocols, as well as through the case law of the ECtHR.10
5
Art 416 of the Criminal Procedure Act (Official Gazette RS, No 63/94 et sub) determines: “The
provisions of this chapter on the reopening of criminal proceedings (Articles 406 through 415) shall
apply mutatis mutandis to the request for modification of a final judicial decision pursuant to the
decision of the Constitutional Court by which the latter reversed or abolished the regulation on
the basis of which the final judgment of conviction was passed, or pursuant to a decision of the
European Court of Human Rights relating to grounds for reopening criminal proceedings.”
6
Frowein (2007), pp. 261–263.
7
See Wildhaber (2006), pp. 17, 57, 93, 174, as well as Zupančič (2004), p. 26.
8
ECtHR, Kudla v Poland, Reports 2000-XI.
9
Ribičič (2010), p. 118.
10
The ECtHR used this phrase already in Tyrer v The United Kingdom, Series A 26 (1978), in which
it underlined: “The Court must also recall that the Convention is a living instrument which, as the
Commission rightly stressed, must be interpreted in the light of present-day conditions.” See
Bernhardt (2007), p. 92; see also Ribičič (2007), p. 201.
566 D. Wedam Lukić
The view that it is necessary to consider the case law of the ECtHR when
interpreting the content of individual human rights and fundamental freedoms also
follows from the decisions of the Constitutional Court of the Republic of Slovenia
(hereinafter referred to as the Constitutional Court). Below, some of the decisions of
the Constitutional Court in which constitutional provisions have been interpreted in
accordance with the case law of the ECtHR will be illustrated.
2 The Right to Judicial Protection and the Right

to the Equal Protection of Rights in Civil Proceedings
Pursuant to Article 6 (1) ECHR, in the determination of their civil rights and
obligations or of any criminal charge against them, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Article 22 of the Constitution guarantees everyone equal pro-
tection of their rights before a court and other authorities, Article 23 enshrines the
right to judicial protection, while Article 24 guarantees the public nature of court
proceedings.
The Constitutional Court entirely adopted the standards that were implemented
by the ECtHR regarding the right to a fair trial. The criteria for determining whether,
in a given case, there has been a violation of the right to the equal protection of rights
determined in Article 22 of the Constitution in civil proceedings were established by
the Constitutional Court in Decision Up-39/95. In this decision, the Constitutional
Court noted:
Parties and anyone who has the same position as a party must therefore be enabled to state
arguments supporting their point of view, to be heard in a dispute in relation to questions of
both facts and law. They must be guaranteed the same right as other parties to state the facts
and produce evidence, the possibility to respond to the allegations of the opposing party and
to the results of evidence produced, as well as the right to be present at the introduction of
evidence. The right of parties to be heard in proceedings corresponds to the obligation of the
court to take all their statements into consideration, to weigh their relevance, and to identify
in the reasoning of the judgment those statements which were of essential significance for the
decision.11
From the above-cited, it is clear that the Constitutional Court interpreted the right
to the equal protection of rights in accordance with the standards established by the
ECtHR for the application of Article 6 (1) ECHR, although it did not expressly refer
to the case law of the latter court in the above-cited decision, while in its later
decisions it in general referred to the above-cited decision. In Decision Up-108/00,
by referring to the judgment in Nideröst-Huber v Switzerland, it additionally sub-
stantiated the position that parties to a dispute must be ensured the opportunity to
11
Constitutional Court, Up-39/95, judgment of 16 Jan 1997.
Slovenia 567
express their views on every document in the court file that may influence the
decision of the court.12
The Constitutional Court has taken the same approach in cases pertaining to the
issue of whether there has been a violation of an individual’s right to access to court.
It proceeds, for example, from Decision Up-103/97, that the Constitutional Court
was familiar with the position of the ECtHR whereby the state must ensure real and
effective access to court, which the ECtHR adopted in Airey v Ireland.13 In the case
at issue, the Constitutional Court did not accept the constitutional complaint for
consideration; however, in the reasoning, it noted: ‘From the right to judicial
protection pursuant to Article 23 of the Constitution there also proceeds the require-
ment that the state must ensure real and effective exercise of this right. The latter,
inter alia, envisages that for persons in a disadvantageous financial position the
amount of court costs must not present an insurmountable obstacle to access to court
[. . .].’ In Decision Up-1857/07, in which the Constitutional Court abrogated Article
23 of the Act on the Succession Fund of the Republic of Slovenia and the High
Representative of the Republic of Slovenia for Succession,14 the Constitutional
Court explicitly referred to the ECtHR judgments in Kutić v Croatia and Aćimović
v Croatia.15 On the basis of the challenged statutory provision, which reinstated the
suspension of judicial proceedings concerning foreign exchange savings accounts in
commercial banks and their branches in any successor state of the former SFRY, the
Constitutional Court—as in previous two decisions that referred to the same regu-
lation in terms of content16—established that the lengthy suspension of judicial and
enforcement proceedings, which at the time of the Constitutional Court proceedings
had already lasted 13 years, entails an inadmissible interference with the right to
judicial protection as it in fact ‘hollows out’ the core of this right. In the reasoning,
the Constitutional Court stated, inter alia, that essential importance must be attrib-
uted to the temporal component of the right to judicial protection demonstrated by
the phrase ‘without undue delay’ contained in Article 23 (1) of the Constitution. Its
objective is to ensure the effectiveness of judicial protection: if such protection
comes too late, the affected person would be in the same position as if there were
no judicial protection available at all.
The Constitutional Court also relied on the case law of the ECtHR in Decision
Up-13/99, in which it addressed the issue of whether the complainant’s right to
judicial protection was violated by the court’s dismissal of his action against a
12
Constitutional Court, Up-108/00, judgment of 20 Feb 2003, referring to ECtHR, Nideröst-Huber
v Switzerland, judgment of 18 Feb 1997, no 18990/91.
13
Constitutional Court, Up-103/97, judgment of 26 Feb 1998; cf ECtHR, Airey v Ireland, Series A
32 (1979).
14
Official Gazette RS, No 29/06.
15
Constitutional Court, Up-1857/07, U-I-161/07, judgment of 3 Dec 2009; see ECtHR, Kutić v
Croatia, judgment of 1 Mar 2002, no 48778/99; Aćimović v Croatia, judgment of 9 Oct 2003, no
61237/00.
16
Constitutional Court, U-I-195/99, judgment of 12 Dec 2002 and Up-76/03, U-I-288/04, judgment
of 17 Mar 2005.
568 D. Wedam Lukić
foreign state by reason of the latter having invoked its immunity from Slovene
jurisdiction.17 The Constitutional Court referred to the ECtHR judgment in Waite
and Kennedy v Germany, in which the ECtHR adopted the standpoint that the
decisions of the German courts by which actions against the European Space Agency
were dismissed because it validly relied on its immunity from jurisdiction interfered
with the right to access to court; however, such interference was admissible.18 In the
case decided by the Constitutional Court, the plaintiff filed an action before a
Slovene court against the Federal Republic of Germany claiming compensation for
damages as during World War II, he, together with many others, had been forcibly
taken from his parents and transported to Germany in order to be Germanised. The
Constitutional Court established that there was an interference with the right to
judicial protection; however, it decided that such interference was admissible. In
the reasoning, it noted that judicial immunity reflects the principle of the equality of
states and thereby respect for the independence and integrity of another state and that
this is a constitutionally legitimate goal in excluding judicial protection. On the other
hand, by the challenged rulings, the complainant is deprived not of all judicial
protection but only of such before domestic courts. According to general rules on
jurisdiction (namely, actor sequitur forum rei), the complainant may file an action
against the Federal Republic of Germany before its courts. In reviewing proportion-
ality in the narrow sense, the Constitutional Court also considered that the matter
concerned a state in which general standards on human rights protection have been
adopted in the framework of the Council of Europe and that the decisions of its
courts are subject to review by the ECtHR. Several months later, the ECtHR resolved
the question of whether rejecting judicial protection in cases in which a foreign
country claims immunity from jurisdiction entails a violation of the right to judicial
protection. On 21 November 2001, it rendered three judgments: McElhinney v
Ireland, AL-Adsani v The United Kingdom and Fogarty v The United Kingdom.19
In all three cases, the applicants alleged that their right to access to court determined
in Article 6 (1) ECHR20 was violated as the courts denied them judicial protection
because foreign states relied on state immunity; however, in all three cases, the
ECtHR dismissed their applications, stating fundamentally the same arguments as
the Constitutional Court. The ECtHR thereafter adopted the same position also in
Kalogeropoulou v Greece and Germany.21
17
Constitutional Court, Up-13/99, judgment of 8 Mar 2001.
18
ECtHR, Waite and Kennedy v Germany, Reports 1999-I.
19
ECtHR, McElhinney v Ireland, Reports 2001-IX; Al-Adsani v The United Kingdom, Reports
2001-XI; Fogarty v The United Kingdom, Reports 2001-IX.
20
In the first case, the applicant filed an action before an Irish court against the United Kingdom
concerning an incident allegedly involving being assaulted by a British soldier on Irish territory; the
second case concerned an action before a court in England against the State of Kuwait for
compensation in respect of injury caused by torture; in the third case the applicant sued the USA
before a court in England concerning her employment at the United States Embassy.
21
ECtHR, Kalogeropoulou and Others v Greece and Germany, Reports 2002-X. In that case, Greek
civil law courts granted the claims for compensation of Greek citizens against Germany for acts that
Slovenia 569
In accordance with the case law of the ECtHR, the Constitutional Court also
defined the right to an effective enforcement procedure as a constituent part of the
right to judicial protection. In Decision Up-181/99, it noted:
The right determined in Article 23 of the Constitution namely not only ensures the right to
request a decision on the merits of a dispute from a court, but also entails the right to request
the enforcement of the judicial decision by which the court decided on a right or obligation.22
The Constitutional Court reiterated this position in Decision Up-1004/11,

whereby it explicitly referred to Immobiliare Saffi v Italy, in which the ECtHR
underlined that the right to access to court would be illusory if a contracting state’s
domestic legal system allowed a final, binding judicial decision to remain inopera-
tive to the detriment of one party.23
3 The Right to an Impartial Tribunal
The Constitutional Court defined the right to an impartial tribunal in Decision

Up-365/05.24 In the reasoning of this Decision, the Constitutional Court reiterated,
considering the view advanced by the ECtHR in Saraiva de Carvalho v Portugal,25
that ‘the existence of impartiality must be determined according to a subjective test,
that is on the basis of the personal conviction of a particular judge in a given case,
and also according to an objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect’. In light of these
considerations, in the case at issue, in which the complainant’s motion seeking the
disqualification of a judge was decided only after the final decision had been issued,
the Constitutional Court established that the appearance of the impartiality of the
trial was compromised to such an extent that even a subsequent decision on the
motion seeking the disqualification of the judge could not have re-established such.
The Constitutional Court will apparently have to further intensify the criteria for
the appearance of impartiality. In two cases, the ECtHR established a violation of the
right to an impartial tribunal after the applicants had unsuccessfully claimed such
violation before the Constitutional Court. In the first case, Alenka Pečnik v Slovenia,
a fine was imposed on the applicant as in the appeal, she allegedly insulted a judge
who had decided in the first instance.26 In the constitutional complaint, she stated
German soldiers committed in the village of Distomo during World War II, however the Greek
Ministry of Justice did not grant consent to the enforcement of the judgment. For more on this, see
Škrk (2007), p. 291.
22
Constitutional Court, Up-181/99, judgment of 18 Dec 2002.
23
Constitutional Court, Up-1004/11, judgment of 8 Nov 2012; see ECtHR, Immobiliare Saffi v
Italy, Reports 1999-V.
24
Constitutional Court, Up-365/05, judgment of 6 July 2006.
25
ECtHR, Saraiva de Carvalho v Portugal, Series A 286-B (1994).
26
ECtHR, Alenka Pečnik v Slovenia, judgment of 27 Sept 2012, no 44901/05.
570 D. Wedam Lukić
that her right to an impartial tribunal had been violated as the decision on the fine was
issued by a judge who felt personally affected by the alleged contemptuous state-
ments. The Constitutional Court dismissed the applicant’s allegation of a violation of
the right to an impartial tribunal, noting that by imposing sanctions for contemptuous
applications, a judge does not decide on his or her own case; thus, such decision
cannot be inconsistent with the right to an impartial court determined in Article
23 (1) of the Constitution.27 In this respect, the Constitutional Court referred to
Decision U-I-145/03, in which it reviewed the admissibility of imposing sanctions
for contemptuous applications in civil proceedings.28 In the reasoning of this
decision, the Constitutional Court noted that irrespective of whether or not all
procedural guarantees pursuant to Article 23 of the Constitution are fulfilled, the
regulation is not inconsistent with the right to an impartial trial according to Article
23 (1) of the Constitution. As an argument, it stated that from domestic and ECtHR
case law, as well as from comparative law (e.g., concerning the institution of
contempt of court in the Anglo-American legal order), it proceeds that as regards
institutions of this type, the protected value is not the honour and good reputation of
the specific judge but the protection of trust in the judiciary and the protection of the
authority of the judicial branch of power. In this respect, the Constitutional Court
referred to the judgments in Putz v Austria and Ravnsborg v Sweden.29 However, the
ECtHR did not agree with the decision of the Constitutional Court. It found that in
the case at issue, the disputed criticism was directed at the judge who decided on the
case as the applicant criticised the manner in which he conducted the proceedings, as
well as his behaviour. The ECtHR noted that the fact that the judge assumed the roles
of complainant, witness, prosecutor and judge when imposing the fine revealed a
functional defect and raised objectively justified fears as to the impartiality of the
court and failed to meet the required Convention standard of impartiality under the
objective test.
The second case, Peruš v Slovenia, originated in a labour dispute in 2003 in
which a judge was sitting in the panel of the Supreme Court who had decided in the
same case in the second instance in 1994.30 The applicant claimed so in a constitu-
tional complaint, which the Constitutional Court rejected, stating that on account of
the fact that the employer—the opposing party in the dispute—had been deleted
from the register of companies, the complainant no longer had any legal interest.31
Also in this case, the ECtHR established a violation of the right to an impartial
tribunal. It observed that there was a risk of problems arising in a system that lacks
27
Based on the date of the issuance of the decision and on the information that the decision was
adopted by five votes to four, I conclude that the decision concerned is Up-332/03, judgment of
27 Oct 2005.
28
Constitutional Court, U-I-145/03, judgment of 23 June 2005.
29
ECtHR, Putz v Austria, Reports 1996-I, and Ravnsborg v Sweden, Series A 283-B (1994).
30
ECtHR, Peruš v Slovenia, judgment of 27 Sept 2012, no 35016/05.
31
Based on the date of the issuance of the decision, I conclude that the decision concerned is Up-48/
04, judgment of 11 Mar 2005.
Slovenia 571
safeguards to ensure that judges are reminded of their prior involvement in particular
cases.
In two cases, the ECtHR established a violation of the right to an impartial
tribunal by the Constitutional Court. In Švarc and Kavnik v Slovenia, the ECtHR
established a violation of the right to an impartial tribunal because of the fact that a
judge who had delivered an expert opinion for the opposing party in prior civil
proceedings was sitting in the panel of the Constitutional Court that did not accept
the applicant’s constitutional complaint for consideration.32 In the second case, Hit
d. d. Nova Gorica v Slovenia, a judge, who had been on the panel of the Constitu-
tional Court that refused to accept the applicant company’s constitutional complaint
for consideration, had previously decided on the appeal of the opposing party in
proceedings before the Higher Labour and Social Court in one of the preliminary
stages of the proceedings.33 The ECtHR found that the applicant’s right to an
impartial judge was violated before the Constitutional Court, although the judge in
question had not decided on the appeal in the new proceedings in which the Supreme
Court had issued a decision that was later challenged by the constitutional complaint.
4 Basic Procedural Safeguards in Criminal Proceedings
In addition to the rights referred to in Article 6 (1) ECHR, which apply to all judicial
proceedings, the Convention also sets out certain specific rights applicable in
criminal proceedings: the presumption of innocence (Article 6 (2)), the basic proce-
dural safeguards in criminal proceedings (Article 6 (3)) and the principle of legality
in criminal proceedings (Article 7). Pursuant to Article 6 (3), everyone charged with
a criminal offence has the following minimum rights: the right to be informed in a
language that he understands of the nature and cause of the accusation against him;
the right to have adequate time and facilities for the preparation of his defence; the
right to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require; the right to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; the right to have the free
assistance of an interpreter if he cannot understand or speak the language used in
court. In addition, Protocol No. 7 provides for a right of appeal in criminal matters
(Article 2), the right to compensation for wrongful conviction (Article 3), as well as
the right not to be tried or punished twice (Article 4).
In the Constitution, the presumption of innocence is regulated in Article 27, the
principle of legality in criminal law in Article 28, the right to rehabilitation and
compensation for wrongful conviction in Article 30 and the prohibition of double
32
ECtHR, Švarc and Kavnik v Slovenia, judgment of 8 Feb 2007, no 75617/01.
33
ECtHR, Hit d. d. Nova Gorica v Slovenia, judgment of 5 June 2014, no 50996/08.
572 D. Wedam Lukić
jeopardy in Article 31. The right to appeal, which extends to all proceedings in which
the rights, duties or legal interests of an individual are determined, is regulated in
Article 25 of the Constitution. Article 29 of the Constitution guarantees anyone
charged with a criminal offence the following rights: the right to have adequate time
and facilities to prepare his defence, the right to be present at his trial and to conduct
his own defence or to be defended by a legal representative, the right to present all
evidence to his benefit and the right not to incriminate himself or his relatives or
those close to him or to admit guilt.
As the Constitution mostly ensures the same fundamental procedural guarantees
as the Convention, in numerous cases, the Constitutional Court has reviewed
allegations of violations of the provisions of the Convention from the perspective
of the relevant provisions of the Constitution. The exception is the right to examine
incriminating witnesses, which the Constitution does not explicitly ensure. In this
respect, in Decision Up-207/99, the Constitutional Court stated that the complain-
ant’s allegations
should be considered in the light of a legal guarantee which is not explicitly mentioned in the
Constitution, but may be found in the Convention [. . .]. In Article 6(3)(d) the Convention
provides, inter alia, that everyone who is charged with a criminal offence has the right ‘to
examine or have examined witnesses against him’. In accordance with Article 8 of the
Constitution, the Convention is applied directly.34
In this case, the Constitutional Court established that the complainant was
provided with ample opportunity to examine incriminating witnesses, and therefore
it dismissed his constitutional complaint. However, the Constitutional Court
established violations of the above-mentioned right in several subsequent decisions.
In the reasoning of Decision Up-518/03, Constitutional Court explicitly referred to
Lüdi v Switzerland and established a violation of Article 6 ECHR.35 In Decision
Up-719/03, the Constitutional Court found that Article 6 (3) ECHR and Article 29 of
the Constitution had been violated in view of the fact that the complainant had not
been given the opportunity to examine his co-defendants who had incriminated him
in the investigation.36 In subsequent decisions, it defined the right to examine
incriminating witnesses as an independent element of the right to a defence ensured
in Article 29 of the Constitution.37
34
Constitutional Court, Up-207/99, judgment of 4 July 2002.
35
ECtHR, Lüdi v Switzerland, Series A 238 (1992).
36
Constitutional Court, Up-719/03, judgment of 9 Mar 2006.
37
See Up-1544/10 and Up-1293/10, judgments of 21 June 2012.
Slovenia 573
5 The Right to Personal Liberty
The right to personal liberty is one of the values on which both the ECtHR and the
Constitutional Court place the utmost importance. While Article 5 (1) ECHR enu-
merates cases in which this right may be restricted, subject to certain conditions
being met, Article 19 (2) of the Constitution only contains a general provision under
which no one may be deprived of his liberty except in such cases as are provided by
law. Article 20 of the Constitution establishes the conditions for ordering detention
(in more detail than its Convention counterpart in Article 5 (3)). The Constitutional
Court addressed the issue of the admissibility of detention in the so-called leading
case on detention, in which it examined the constitutionality of several provisions of
the Criminal Procedure Act38 in force at that time.39 The Constitutional Court
abrogated some of the contested provisions, while others were found to be incon-
sistent with the Constitution. Although the decision contains no direct reference to
the Convention, it proceeds from the reasoning that the standards set by the ECtHR
were taken into account.
One of the cases in which the Convention explicitly allows the deprivation of
liberty is the lawful detention of mentally ill persons. In reviewing the provisions on
compulsory detention of persons in psychiatric hospitals of the Non-litigious Civil
Procedure Act40 in force at that time, in Decision U-I-60/03, the Constitutional Court
referred to the criteria laid down by the ECtHR with regard to the admissibility of the
detention of mentally ill persons. In its reasoning, the Constitutional Court noted the
following:
The [ECtHR], deciding in the case of Winterwerp v the Netherlands, determined three
fundamental requirements that must be met for the detention of mental patients to be lawful.
According to the ECtHR, involuntary commitment is allowable only if the mental disorder
has been reliably demonstrated based on objective medical expertise, and if the patient’s
mental disorder is of such a kind or such gravity as to make him an actual danger to himself
or to others. The third requirement refers to the duration of commitment. Commitment may
last only as long as the mental disorder justifying it persists.41
The Constitutional Court took the view that in the process of detention, individ-
uals should be able to rely on the procedural safeguards provided by Article
5 (4) ECHR for all cases of the deprivation of liberty. Referring to the case of
Winterwerp,42 the Constitutional Court noted:
[. . .] it was essential that the person should have ‘access to court’ and ‘the opportunity to be
heard either in person or, where necessary, through some form of representation’. The
ECtHR thus requires even in such proceedings that the right to the adversarial procedure
be respected. The so-called equality of arms must be ensured in court proceedings. With
38
39
Constitutional Court, U-I-18/93, judgment of 11 Apr 1996.
40
Official Gazette SRS, No 30/86 and Official Gazette RS, No 87/02.
41
Constitutional Court, U-I-60/03, judgment of 4 Dec 2003.
42
ECtHR, Winterwerp v The Netherlands, Series A 33 (1979).
574 D. Wedam Lukić
reference to such, it is important that the involuntarily committed person has the right to
access records which contain information on the basis of which he or she was committed,
and to submit counter evidence.
Subsequently, the Constitutional Court also relied on the ECtHR’s position that
the courts must assess in each individual case whether detained persons are capable
of exercising their rights in proceedings, and if they consider that not to be the case,
they must arrange for them to have legal representation free of charge.
The Constitutional Court also recalled several decisions of the ECtHR43 when it
reviewed the provisions of the Civil Procedure Act44 on imposing sanctions on
parties to proceedings and other participants in proceedings for filing contemptuous
applications.45 It held that the sanctions themselves are not inconsistent with the
Constitution; however, it abrogated the provisions of the Civil Procedure Act under
which fines could be transformed into a prison sentence of up to 30 days, or up to
100 days for a sole proprietor or attorney. In consideration of the criteria set forth by
the ECtHR, the Constitutional Court decided that the prescribed sanctions reached a
level of gravity that constitutes a criminal charge and therefore required all the
procedural and substantive safeguards applicable to criminal proceedings and crim-
inal offenses; however, the contested act did not provide for any such safeguards.
The Constitutional Court adopted a different standpoint in Decision U-I-344/06,
in which it reviewed the provisions of the Enforcement of Judgments in Civil
Matters and Securing of Claims Act46 regarding imposing sanctions on debtors
who hide their property in enforcement proceedings or in some other manner prevent
or obstruct enforcement.47 Regardless of the fact that the amount of the fine
determined in the contested provision was the same as in the abrogated provision
of the Civil Procedure Act, the Constitutional Court decided that in the case at issue,
the contested provision was not inconsistent with the Constitution as its objective
was not merely to punish but rather that the legislature aimed at ensuring that debtors
refrain from obstructing enforcement and thereby ensure effective enforcement and
the protection of creditors’ right to judicial protection. The Constitutional Court
noted that despite the use of the term ‘a penalty’, such in fact did not concern the
imposition of a sanction but entailed a means for ensuring enforcement in a broader
sense; therefore, in the case at issue, the requirement that the same procedural and
substantive safeguards must be ensured as in criminal proceedings does not apply.
The Constitutional Court thereafter reviewed the contested provision from the
viewpoint of the right to personal liberty determined in Article 19 of the Constitution
43
Such as ECtHR, Nikula v Finland, Reports 2002-II; Prager and Oberschlick v Austria, Series A
313 (1995); Sunday Times v The United Kingdom (No. 1), Series A 30 (1979); Worm v Austria,
Reports 1997-V; Putz v Austria, Reports 1996-I; Schöpfer v Switzerland, judgment of 20 May 1998,
no 25405/94; Ravnsborg v Sweden, Series A 283-B (1994); Weber v Switzerland, Series A
177 (1990); T. v Austria, judgment of 14 Nov 2000, no 27783/95.
44
Official Gazette RS, No 26/99 et sub.
45
Constitutional Court, U-I-145/03, judgment of 23 June 2005.
46
Official Gazette RS, No 3/07 – official consolidated text, and no 93/07.
47
Constitutional Court, U-I-344/06, judgment of 20 Nov 2008.
Slovenia 575
and found that the interference with this right was not excessive. As an argument, it
stated that debtors may prevent the deprivation of their liberty by fulfilling the
obligations stemming from the instrument authorising enforcement; they can also
prevent the enforcement of imprisonment by paying a fine.
However, the Constitutional Court adopted a different standpoint in its review of
the provisions of the Minor Offences Act regarding the enforcement of a fine by
imprisonment.48 The Constitutional Court stated that the regulation, according to
which an offender who, in part or in whole, does not pay a fine within a determined
time period is sentenced to imprisonment until the fine is paid, but not exceeding
30 days, which does not excuse the offender from this obligation, entails an
interference with the right to personal liberty determined by Article 19 of the
Constitution, which is in and of itself not inadmissible. In this respect, it cited the
judgment in Tyrrell v United Kingdom, in which the ECtHR stated that detention for
an unpaid fine fell within the first part of Article 5 (1) (b) ECHR.49 However, the
Constitutional Court established that certain requirements and the regulation of the
proceedings, as determined for imposing imprisonment to enforce a fine, are incon-
sistent with the Constitution as they do not provide to a sufficient extent the
guarantees ensured by the Constitution, and therefore the Constitutional Court
abrogated the regulation of the enforcement of a fine by imprisonment. In this
respect, inter alia, it cited the judgment in Gatt v Malta, in which the ECtHR decided
that in the circumstances of the present case, and especially on account of its duration, the
applicant’s detention was disproportionate. In particular, the law as applied in the applicant’s
case failed to strike a balance between the importance in a democratic society of securing the
immediate fulfilment of the obligation in question and the importance of the right to
liberty.50
6 The Right to the Protection of Personal Data
The right to the protection of personal data is regulated in Article 38 of the

Constitution as a special right, whereas in the Convention this right is contained in
Article 8, which guarantees that everyone has the right to respect for his private and
family life, his home and his correspondence. In Decision U-I-312/11, the Consti-
tutional Court reviewed the question of retaining data on the DNA profiles of
individuals.51 It decided that the provision of the Police Act52 that allowed that the
DNA profiles of individuals who were suspected but not convicted of criminal
offences are permanently retained was inconsistent with the Constitution. In this
respect, it cited the ECtHR judgment in S. and Marper v United Kingdom, in which
48
49
ECtHR, Tyrrell v United Kingdom, judgment of 4 Sept 1996, no 28188/95.
50
ECtHR, Gatt v Malta, judgment of 27 July 2010, no 28221/08.
51
52
Official Gazette RS, No 66/09 – official consolidated text, and No 22/10.
576 D. Wedam Lukić
the ECtHR found that permanent, blanket and indiscriminate retention, thus reten-
tion irrespective of the nature or gravity of the criminal offence of which the
individual was originally suspected or of the age of the suspected offender, consti-
tutes a violation of Article 8 ECHR.53
7 The Freedom of Expression and Artistic Endeavour
The Convention regulates freedom of expression in Article 10 (freedom of speech),

which is defined as the freedom to hold opinions and to receive and impart infor-
mation and ideas without interference by public authority and regardless of frontiers.
Pursuant to paragraph 2 of this Article, the exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence or for maintaining the authority and impartiality
of the judiciary. Pursuant to Article 39 of the Constitution, everyone is guaranteed
freedom of expression of thought, freedom of speech and public appearance, of the
press and other forms of public communication and expression; everyone may freely
collect, receive and disseminate information and opinions. Freedom of scientific and
artistic endeavour is considered a specific aspect of freedom of expression and is
regulated by Article 59 of the Constitution.
As follows from a number of Constitutional Court decisions, the Constitutional
Court attaches particular importance to freedom of expression and considers the
standpoints adopted by the ECtHR in this regard. This has become particularly
evident in cases in which the Constitutional Court decided on a conflict between
freedom of expression and the personality rights of others. The Constitutional Court
set out the fundamental starting points for the above-mentioned in Decision U-I-226/
95, in which it decided that the provisions of the Penal Code54 that in certain
instances permit interferences with the honour and good reputation of an individual
are not inconsistent with the Constitution.55 In such a case, the Constitutional Court
noted that also the ECtHR deems interferences with a person’s honour and good
reputation admissible if such is necessary for the protection of freedom of expres-
sion.56 The Constitutional Court relied on the standpoints of the ECtHR also when
deciding on constitutional complaints that concerned a collision between freedom of
53
ECtHR, S. and Marper v the United Kingdom, judgment of 4 Dec 2008, nos 30562/04 and 30566/04.
54
55
Constitutional Court, U-I-226/95, judgment of 8 July 1999.
56
The Constitutional Court cited ECtHR, Lehideux and Isorni v France, Reports 1998-VII.
Slovenia 577
expression and artistic endeavour, on one hand, and the personality rights of others,
on the other.57 In one of them, Up-406/05, the complainant challenged a judgment
ordering her to withdraw her book from the market by which she allegedly inad-
missibly interfered with the personality rights of the plaintiffs, who recognised their
parents in the book. The judgment also determined a fine in the event of a breach of
this order and awarded damages to the plaintiffs. The Constitutional Court referred
to the ECtHR judgments in Éditions Plon v France, Association Ekin v France and
Vereinigung Bildender Künstler v Austria.58 In its reasoning, the Constitutional
Court stated that ‘[i]n such cases, also the [ECtHR] assesses the interference in the
light of the case as a whole and determines whether it was proportionate to the
legitimate aim pursued and whether the reasons adduced by the national authorities
to justify it are relevant and sufficient’. With consideration thereof, the Constitu-
tional Court proceeded to weigh the gravity of the interference with the complain-
ant’s right to freedom of artistic endeavour, on one hand, against the gravity of the
complainant’s interference with the personality rights of the plaintiffs, on the other,
and held that the interference of the courts with the complainant’s right to artistic
endeavour was excessive. The Constitutional Court itself ruled on the matter and
dismissed all claims of the plaintiffs. The plaintiffs thereafter lodged an application
with the ECtHR in which they claimed that this decision violated their personality
rights. The ECtHR found that ‘in balancing the conflicting interests at stake, the
Constitutional Court did not overstep the margin of appreciation afforded to the State
in this area’, and thus it dismissed the application as ‘manifestly ill-founded’.59
In several cases, the Constitutional Court had to answer the question of whether
journalistic reporting entails an inadmissible interference with individuals’ person-
ality rights. In Decision Up-1391/07, it dismissed the constitutional complaint
lodged by the complainant (i.e., Mladina magazine) against a judgment that ordered
the magazine to pay damages for its offensive article about the plaintiff.60 In its
reasoning, the Constitutional Court referred to the ECtHR judgments De Haes and
Gijsels v Belgium, Kobenter and Standard Verlags GmbH v Austria and Thorgeir
Thorgeirson v Iceland, in which the ECtHR underlined the significance of freedom
of expression as one of the essential foundations of democratic society, extending
also to information and ideas that offend, shock or disturb.61 The Constitutional
Court noted that it proceeds from the case law of the ECtHR that restrictions of this
57
Constitutional Court, Up-50/99, judgment of 14 Dex 2000), Up-422/02, judgment of 10 Mar
2005, and Up-406/05, judgment of 12 Apr 2007.
58
ECtHR, Éditions Plon v France, judgment of 18 May 2004, no 58148/00; Association Ekin v
France, judgment of 17 July 2001, no 39288/98; Vereinigung Bildender Künstler v Austria,
judgment of 25 Jan 2007, no 68354/01.
59
ECtHR, Jelševar and Others v. Slovenia, judgment of 11 Mar 2014, no 47318/07.
60
Constitutional Court, Up-1391/07, judgment of 10 Sept 2009.
61
ECtHR, De Haes and Gijsels v Belgium, Reports 1997-I; Kobenter and Standard Verlags GmbH
v Austria, judgment of 2 Nov 2006, no 60899/00); Thorgeir Thorgeirson v Iceland, Series A
239 (1992).
578 D. Wedam Lukić
freedom must be construed strictly and convincingly62 and that in cases that concern
political speech or debate on questions of public interest, there is little scope for such
restrictions.63 The Constitutional Court then referred to certain decisions of the
ECtHR illustrating restrictions on the freedom of expression of journalists on
account of the protection of the rights of others (personality rights in particular). It
underlined that a distinction needs to be made between facts and value judgments.
Regardless of the fact that value judgments are not susceptible of proof, they should,
however, according to the ECtHR, have a sufficient factual basis.64 In the case at
issue, the Constitutional Court decided that the journalist’s comments could not be
deemed a fair comment on the deputy’s speech, even if such speech was inappro-
priate and offensive to homosexuals, and therefore the Constitutional Court
dismissed the constitutional complaint. The ECtHR did not agree with this deci-
sion.65 The ECtHR found that the whole context of the case in which the parlia-
mentarian’s speech was cited almost in its entirety, including the description of the
parliamentarian’s imitation of homosexual behaviour, followed by the author’s
comment, which was not merely a value judgment but also a metaphor, had not
been given sufficient consideration by the national courts. The ECtHR thus found
that the Slovene courts had failed to strike a balance between the parliamentarian’s
right to the protection of his reputation and the publisher’s right to freedom of
expression, which constitutes a violation of Article 10 of the Convention.
The Constitutional Court subsequently referred to the ECtHR judgment in
Mladina v Slovenia in its Decision Up-584/12, by which it abrogated a judgment
by which a court imposed on the complainant (i.e., in the proceedings before the
Constitutional Court) the payment of damages because he had insulted the plaintiff
(i.e., in the proceedings before the regular courts) in a satirical TV show and
interviews for various media.66 The Constitutional Court found that when weighing
the plaintiff’s right to the protection of honour and good reputation and the com-
plainant’s right to freedom of expression, the courts had not assessed the complain-
ant’s statement that his words were uttered in the context of informing the public of
62
In this respect, the Constitutional Court referred to ECtHR Nilsen and Johnsen v Norway, Reports
1999-VIII and Kobenter and Standard Verlags Gmbh v Austria, judgment of 2 Nov 2006, no
60899/00.
63
This standpoint proceeds from ECtHR, Sürek v Turkey (No. 1), Reports 1999-IV.
64
In this part of the reasoning, the Constitutional Court referred to the ECtHR judgments in De Haes
and Gijsels v Belgium, Reports 1997-I; Kobenter and Standard Verlags Gmbh v Austria, judgment
of 2 Nov 2006, no 60899/00; Lombardo and Others v Malta, judgment of 24 Apr 2007, no 7333/06;
Lingens v Austria, Series A 103-B (1986); Karman v Russia, judgment of 14 Dec 2006, no 29372/
02; Scharsach and News Verlagsgesellschaft mbH v Austria, Reports 2003-XI; Feldek v Slovakia,
Reports 2001-VIII; Jerusalem v Austria, Reports 2001-II. In Karman v Russia, the ECtHR stressed
the fundamental importance of this requirement and established that the term ‘local neofascist’
(a value judgment) had sufficient factual basis in the reports of independent experts who, having
examined the publications issued by the plaintiff, unanimously concluded that they resembled the
ideals of National Socialism.
65
ECtHR, Mladina v Slovenia, judgment of 17 Apr 2014, no 20981/10.
66
Constitutional Court, Up-584/12, judgment of 22 May 2014.
Slovenia 579
the censorship of a satirical TV show of which the plaintiff was editor-in-chief as a

member of the management of the public television station. The Constitutional Court
found that this resulted in a violation of the complainant’s right to freedom of
expression.
In several cases, the Constitutional Court had to decide the question of whether
journalistic reporting entails an inadmissible interference with the individuals’ right
to privacy. In one case, it abrogated a challenged judgment in a case in which a
plaintiff was awarded compensation for a violation of his personality rights on
account of the publication of, in his opinion, untrue information in the press.67
The case concerned several newspaper articles that dealt with the suspicion that
three police officers (among them also the plaintiff) had committed criminal offences
in the course of performing their duties. In this respect, the Constitutional Court
referred to the case law of the ECtHR, especially to the case of Dyundin v Russia, in
which the ECtHR, inter alia, pointed out that although it cannot be said that civil
servants knowingly lay themselves open to close scrutiny of their every word and
deed to the extent politicians do, they are nevertheless subject to wider limits of
acceptable criticism than private individuals.68 The Constitutional Court underlined
as decisive also the circumstance that the case concerned journalistic reporting that
was of great public concern. In the second case, the complainants (a journalist and
the Večer newspaper publisher) challenged a judgment by which they were ordered
to pay compensation for damages on account of newspaper articles in which the
journalist published the name and surname of the plaintiff, who had made deposits at
a bank, of which the bank, contrary to the law, did not inform the Office for the
Prevention of Money Laundering.69 The Constitutional Court assessed that the court
inadmissibly limited the leeway of the journalist and the newspaper to report on a
topic that was of great public concern. The Constitutional Court considered it
essential that an objective of the disputed article was not merely to report on the
irregularities in the bank’s operations but also to disclose influential economic
networks that may influence the conduct of banks in individual cases. In this context,
the first complainant presented facts concerning the plaintiff’s activities and his
financial condition supporting the position that it was not a coincidence that the bank
had not complied with the above-mentioned statutory duty precisely in the plaintiff’s
case and that therefore the public has the right to be informed thereof. The third case
concerned the Supreme Court judgment prohibiting the distribution of a book in
which the author had published several excerpts from the plaintiffs’ letters without
their consent.70 The Constitutional Court again referred to several decisions of the
ECtHR from which it proceeds that in the event of a collision between two rights, a
court must find an appropriate balance between them. The Constitutional Court held
that the Supreme Court attached special importance to the value of preserving the
67
Constitutional Court, Up-2940/07, judgment of 5 Feb 2009.
68
ECtHR, Dyundin v Russia, judgment of 14 October 2008, no 37406/03.
69
Constitutional Court, Up-570/09, judgment of 2 Feb 2012.
70
Constitutional Court, Up-444/09, judgment of 12 Apr 2012.
580 D. Wedam Lukić
confidentiality of the letters; however, it was not evident from the reasoning of the
judgment that the Supreme Court had taken into account certain constitutionally
relevant circumstances that were important from the perspective of the protection of
the complainant’s right to freedom of expression. In the case at issue, these were in
particular the following: (1) the possible interest of the public to be informed of the
functioning and interests of an association, (2) the characteristics of the plaintiffs as
officials of the association and (3) the contents and nature of the published letters.
8 The Right to Effective Protection of Human Rights
According to Article 15 (4) of the Constitution, everyone is guaranteed judicial

protection of human rights and fundamental freedoms and the right to obtain redress
for the violation of such rights and freedoms. Accordingly, Article 13 of the
Convention stipulates that everyone whose rights and freedoms as set forth in the
Convention are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity. As follows from the case law of the ECtHR, this provision is of
particular importance in cases where there has been a violation of the human rights
determined in Article 2 (right to life) and Article 3 of the Convention (prohibition of
torture) by the law enforcement authorities of the state. If an individual suffers
serious injuries or death while under the physical control of such state authorities,
it is incumbent on the state to provide a plausible explanation of how these injuries or
death occurred, or else, according to the ECtHR, such entails a violation of the
procedural aspects of Articles 2 and ECHR. To this end, the state must ensure that
appropriate procedures are implemented in order to investigate, in accordance with
the principle of immediacy, all relevant facts and circumstances pertaining to the
incident under consideration, and in particular the probable cause of death or injury
of the individual.71
The Constitutional Court considered the above-mentioned case law in Decision
Up-555/03, Up-827/04.72 In this case, the family members of a person who had died
while his premises were being searched lodged a constitutional complaint against the
judicial decisions rejecting their request to initiate a criminal investigation. Regard-
less of the fact that the Constitutional Court does not recognise the legal interest of an
injured party acting as a prosecutor or a private prosecutor to lodge a constitutional
complaint against a final judgment of acquittal or other judicial decision by which
criminal proceedings were finally concluded, in the case at issue the Constitutional
Court accepted the constitutional complaint for consideration. Referring to the case
71
ECtHR, Ribitsch v Austria, Series A 336 (1995); Selmouni v France, Reports 1999-V; Salman v
Turkey, Reports 2000-VI; Rehbock v Slovenia, Reports 2000-XII; Avşar v Turkey, Reports 2001-
VII. See also Wildhaber (2006), p. 97.
72
Constitutional Court, Up-55/03 and Up-827/04, judgment of 6 July 2006.
Slovenia 581
law of the ECtHR, the Constitutional Court subsequently adopted a declaratory

decision by which it established that the complainants’ right to the effective protec-
tion of rights determined in Article 15 (4) of the Constitution, read in conjunction
with Article 13 of the Convention, was violated as they were not granted an
independent investigation of the circumstances of the incident. In its reasoning, the
Constitutional Court noted that the Constitution does not explicitly regulate a right to
an independent investigation; however,
[. . .] Article 15 (4) of the Constitution is to be understood in a manner such that it also
includes the right to an independent investigation of the circumstances of an incident in
which a person was allegedly subjected to torture or inhuman or degrading treatment by law
enforcement authorities, or in which a person died during an action carried out by law
enforcement authorities. Moreover, the above-mentioned right includes the right of the
affected persons to effective access to such investigation.
The Constitutional Court held that it is not necessary to conduct such an inves-
tigation within the scope of criminal proceedings, but it suffices to institute an
extrajudicial investigation provided that the latter meets the requirements of inde-
pendence and ensures the effective participation of the affected persons. In its
(subsequent) judgment in Matko v Slovenia, the ECtHR welcomed this decision of
the Constitutional Court but reiterated that the purpose of an independent investiga-
tion should be more than just to establish the facts; such an investigation should also
be capable of leading to the identification and punishment of those responsible.73
Relatives of a person who had died during a police action filed an action against
the state for the payment of damages because of the death of their relative; however,
the court dismissed their claim. The court found that the payment of damages was
not substantiated as the police action had a legal basis and the complainants had
failed to prove the unlawfulness of the conduct of the police in the procedure. The
relatives subsequently lodged a constitutional complaint with the Constitutional
Court, which upheld their constitutional complaint in Decision Up-679/12.74 It
underlined that the state should have, in conformity with Article 15 (4) of the
Constitution, read in conjunction with Article 13 ECHR, carried out an independent
investigation of the circumstances of the incident and enabled the relatives of the
deceased effective access to such investigation. As the state did not carry out such an
investigation, the circumstances of the death and the possible liability of the state for
the death of the individual when he or she was under the physical supervision of its
repressive authorities should be impartially and objectively clarified in proceedings
for damages. In this respect, the Constitutional Court, inter alia, cited the ECtHR
judgments in the cases Rehbock, Matko and Butolen.75 In these cases, the Republic
of Slovenia was convicted for a violation of Article 3 ECHR because the government
failed to submit credible and plausible arguments by which it could explain or justify
73
EctHR, Matko v Slovenia, judgment of 2 Nov 2006, no 43393/98.
74
Constitutional Court, Up-679/12, judgment of 16 Oct 2014.
75
ECtHR, Rehbock v Slovenia, Reports 2000-XI; Matko v Slovenia, judgment of 2 Nov 2006, no
43393/98; Butolen v Slovenia, judgment of 26 Apr 2012, no 41356/08.
582 D. Wedam Lukić
the type of force that it applied during the relevant police action that deprived the
individuals at issue of their liberty.
According to the case law of the ECtHR, the right to effective judicial protection
ensured under Article 6 (1) ECHR also enjoys the specific protection of Article
13 ECHR. In numerous judgments the ECtHR has underlined that if legal redress is
afforded too late, the affected person is in the same position as if there were no
redress available at all ( justice delayed is justice denied). In Kudła v Poland, the
ECtHR took the view that the issue of whether the applicant in a given case was
afforded a trial within a reasonable time in the determination of his civil rights and
obligations or a criminal charge is separate from the issue of whether an effective
remedy enabling him to enforce his rights was available under domestic law.76
Furthermore, in Šoć v Croatia, the ECtHR established a violation of Article
13 ECHR as there was no (domestic) remedy available to the applicant whereby
he could enforce his right to a hearing within a reasonable time in proceedings that
had already concluded.77 Considering the above-mentioned decisions, in Decision
U-I-65/05, the Constitutional Court held that the Act on the Judicial Review of
Administrative Acts78 was inconsistent with the Constitution as it did not contain
any specific provisions that would enable affected persons to enforce the right to just
satisfaction in the sense of the Convention.79 In its reasoning, the Constitutional
Court noted that, in view of the case law of the ECtHR, Article 15 (4) of the
Constitution must ‘[. . .] in the spirit of the Convention, be interpreted in a manner
such that it requires that, in the framework of the judicial protection of the right to a
trial without undue delay, also the possibility of claiming just satisfaction in cases in
which a violation has already ceased be ensured’. Almost simultaneously, the
ECtHR established the same in Lukenda v Slovenia.80 As the ECtHR in this case
established that this was not an isolated incident but that excessively long judicial
procedures in Slovenia are rather a systemic problem, it encouraged the state to adopt
appropriate remedies in order to ensure the right to a trial within a reasonable time.
On the basis of this judgment, the Protection of the Right to Trial Without Undue
Delay Act was adopted in 2006.81 In Decision Up-695/11, the Constitutional Court
subsequently abrogated the Supreme Court judgment by which the Supreme Court
dismissed a claim for compensation for the damage that the complainant incurred
because of the excessively long judicial proceedings as the complainant did not
prove unlawful conduct that can be attributed to a particular person or to a particular
authority.82 In this respect, the Constitutional Court also cited the case law of the
76
ECtHR, Kudła v Poland, Reports 2000-XI.
77
ECtHR, Šoć v Croatia, judgment of 9 May 2003, no 47863/99.
78
79
Constitutional Court, U-I-65/05, judgment of 22 Sept 2005.
80
ECtHR, Lukenda v Slovenia, Reports 2005-X.
81
Official Gazette RS, No 67/12 – official consolidated text.
82
Constitutional Court, Up-695/11, judgment of 10 Jan 2013.
Slovenia 583
ECtHR83 in accordance with which a state is held liable for a violation of the right to
a trial without undue delay also in the event that an unreasonably long trial is a
consequence of the objective state of a backlog of cases at the court as it did not
organise the justice system in such manner that the courts can implement the
requirements determined by Article 6 ECHR.
9 Conclusion
In accordance with the principle of subsidiarity,84 it is primarily the duty of national

courts85 to ensure the protection of human rights, and the Constitutional Court is
well aware of its role. As the catalogue of human rights and fundamental freedoms
guaranteed by the Convention broadly corresponds to the catalogue of human rights
guaranteed by the Constitution, the Constitutional Court often examines allegations
of a violation of a Convention right in the light of relevant constitutional rights by
also taking into account the standards established by the ECtHR. In this respect, the
Constitutional Court also deems that the Constitution provides for certain rights
(e.g., rights and duties of parents, pursuant to Article 54 of the Constitution; the right
to decide freely whether to bear children, pursuant to Article 55 of the Constitution;
the rights of children, pursuant to Article 56 of the Constitution; and certain social
and economic rights) that are not explicitly defined in the Convention; however, the
ECtHR guarantees their protection under some other Convention right (e.g., within
the framework of the right to respect for private and family life determined in Article
8 ECHR). In implementing the European standards of human rights protection, the
Constitutional Court also has an important influence on the case law of regular
courts.86 Regardless of the above-mentioned, the Constitutional Court, especially in
cases that concern a collision between individual human rights, still decides differ-
ently than regular courts on which right should be given priority. This in particular
applies to the relationship between freedom of expression and the personality rights
of others, as in the majority of cases the Constitutional Court has decided that regular
courts did not weigh the rights in an appropriate manner.87 The exception is the case
Mladina v Slovenia; however, in that case, the ECtHR found that the Constitutional
83
For example the judgements ECtHR, Giancarlo Lombardo v Italy, Series A 249-C (1992); Duclos
v France, Reports 1996-VI, para 55; Süßmann v Germany, Reports 1996-IV, para 4; Pammel v
Germany, Reports 1997-IV.
84
For more on the principle of subsidiarity, see Petzold (1993), pp. 41–62, and Wildhaber
(2006), p. 94.
85
Wildhaber (2006), p. 184.
86
On the influence of the ECtHR on the case law in civil matters, see Betetto (2012),
pp. 1235–1248.
87
Čeferin (2012), pp. 250–262, notes that the regular courts in Slovenia are more restrictive
regarding freedom of expression and freedom of the press than the Constitutional Court, whereby
the latter evaluates these rights very similarly as the ECtHR.
584 D. Wedam Lukić
Court, regardless of the fact that it had cited the case law of the ECtHR, failed to
strike a balance between the parliamentarian’s right to the protection of his reputa-
tion and the publisher’s right to freedom of expression.
The Constitutional Court received validation of its understanding of Convention
rights in several subsequent decisions of the ECtHR. In the judgments in
McElhinney, Al-Adsani and Fogarty,88 the ECtHR—as did the Constitutional
Court in Decision Up-13/9989—adopted the standpoint that not recognising judicial
competence by reason of the immunity of a foreign state does not entail an inad-
missible interference with the right to access to court. The International Court of
Justice in the Haag agreed with the above-mentioned standpoint in Germany v
Italy,90 in which Constitutional Court Decision Up-13/99 was among the relevant
case law of national courts cited.91 In Kurić and Others v Slovenia,92 in which grave
violations of the human rights of the ‘erased’ persons were established, the ECtHR
explicitly referred to decisions of the Constitutional Court.93 The judgment of the
ECtHR, inter alia, required Slovenia to set up an ad hoc domestic compensation
scheme for ‘erased’ persons within 1 year, which the state did by the Act on
Compensation for Damage to Persons Erased from the Register of Permanent
Residents.94
In respect of the standards that the Constitutional Court established regarding a
defendant’s right to examine incriminating witnesses, the ECtHR in Štefančič v
Slovenia (judgment of 25 October 2012, no 18027/05) confirmed the standpoint of
the Slovene courts that the mentioned right of the applicant had not been violated in
the case at issue. The Constitutional Court was less successful, however, in
reviewing violations of the right to an impartial tribunal as in two cases, the
ECtHR established a violation of this right after the applicants had unsuccessfully
claimed such before the Constitutional Court (Alenka Pečnik v Slovenia and Peruš v
Slovenia),95 while in two cases (Švarc and Kavnik v Slovenia and Hit d. d. Nova
Gorica v Slovenia),96 even the Constitutional Court itself violated this right.
There are several reasons why the ECtHR has adopted different standpoints than
the Constitutional Court regarding violations of certain human rights. In cases in
which contradicting rights or legally protected interests must be weighed against
each other, the outcome certainly also depends on which values individual judges are
88
Supra n 19.
89
Supra n 17.
90
ICJ, Jurisdictional Immunities of the State (Germany v Italy, Greece intervening), judgment of
3 Feb 2012, ICJ Reports 2012, 99.
91
See Škrk (2012), p. 321.
92
ECtHR, Kurić and Others v Slovenia, judgment of 26 June 2012, no 26828/06.
93
In particular U-I-284/94, judgment of 4 Feb 1999 and U-I-246/02, judgment of 3 Apr 2003, see
Kogovšek Šalamon (2012), p. 26.
94
95
Supra n 26 and 30.
96
Supra n 32 and 33.
Slovenia 585
more inclined to. In addition, the Constitutional Court often interprets and applies
judgments of the ECtHR in a similar manner as legal rules—it subsumes established
facts under a standpoint which it decides corresponds to the case at issue, and in
doing so it overlooks that the case law of the ECtHR is largely casuistic and only
occasionally contains statements capable of general application.97 Zupančič under-
lines that, in accordance with the doctrine of precedent, a decision extends (only) as
far as allowed by the facts, and therefore a standpoint adopted by the ECtHR in an
individual case, as a general rule, cannot be raised to the level of a general principle
independent of the facts of the case at issue.98 An answer to the question of what
standpoint the ECtHR will adopt in respect of the violation of a certain human right
is to be sought by means of analogy, i.e. by looking for similarities between the case
at issue and a specific precedent of the ECtHR.99 Furthermore, the difference in the
position and powers of these two highest judicial institutions for the protection of
human rights and fundamental freedoms must also be taken into account. The fact
that the ECtHR cannot interfere with individual judicial proceedings and set aside
the judgments of national courts, on one hand, entails that in such a case, it has less
power than national supreme or constitutional courts. On the other hand, however,
the ECtHR may establish the violation of a human right and award the injured person
just satisfaction also in cases in which the Constitutional Court rejected a constitu-
tional complaint on procedural grounds and did not decide on the merits of the
violation of the human right.100 It proceeds from the cases presented above that the
ECtHR has decided on certain cases notwithstanding the claim that all domestic
legal remedies had not been exhausted as it established that such legal remedies
would not have been effective or that there were no effective remedies available to
the injured persons.101
Finally, it should be underlined that the Convention provides only minimum
standards of human rights protection. Article 53 provides that nothing in the
Convention may be understood as limiting or derogating from any of the human
rights and fundamental freedoms that may be ensured under the laws of any
contracting party or under any other agreement to which it is a party. Furthermore,
the ECtHR grants the contracting parties to the Convention a certain margin of
appreciation102 as regards the restriction of human rights that are necessary in a
democratic society. Thereby, the ECtHR acknowledges specific characteristics of the
legal systems of the contracting states, as well as the political, economic, social and
cultural situations in these states. This entails that in cases in which the ECtHR
97
Matscher (1993), p. 63.
98
Zupančič (2004), p. 23.
99
Zupančič (2004), p. 26. That the binding effect of a precedent judgment primarily concerns a
question of analogy and not deduction is also noted by Kerševan (2012), p. 807.
100
In Peruš v Slovenia, the ECtHR established a violation of the right to an impartial tribunal, after
the Constitutional Court had rejected the constitutional complaint due to a lack of legal interest.
101
The ECtHR established such violation also in Kurić and Others v Slovenia.
102
Macdonald (1993), p. 83. See also Wildhaber (2006), p. 95.
586 D. Wedam Lukić
follows a restrictive approach, its case law should not be construed as an argument in
favour of a restrictive interpretation of human rights that are afforded broader
protection under the respective Constitutions.103
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United States of America
International Human Rights in US Law
Mark Weston Janis
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589
2 Sosa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590
3 Medellin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
4 International Human Rights Law in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
1 Introduction
What is the role of international human rights in U.S. law? This essay first introduces
two recent important decisions of the U.S. Supreme Court. Sosa v. Alvarez-Machain
addresses customary international human rights law.1 Medellin v. Texas has to do
with treaties.2 Taken together, Sosa and Medellin assign international human rights
judgments only a modest role in U.S. law. This modest role is really not all that
surprising. Unlike the many states that belong either to the European Court of
Human Rights or the Inter-American Court of Human Rights, the United States
belongs to neither. So the extensive jurisprudence one finds in so many other
Western states relating to the relationship between national law and an international
human rights tribunal simply does not exist for the United States. However, there is
much more to say about the relationship of U.S. law to international law in general
that does impact on international human rights, and this essay concludes with a
review of this long tradition.
1
Sosa v Alvarez-Machain, 542 US 692 (2004).
2
Medellín v Texas, 552 US 491 (2008).
M. W. Janis (*)
University of Connecticut School of Law, Hartford, CT, USA
University of Oxford, Oxford, UK

https://doi.org/10.1007/978-3-319-94848-5_24
590 M. W. Janis
Before proceeding, it is perhaps worthwhile to remind the reader that the United
States, compared at least to its European cousins, has what I have, in my book on the
American tradition of international law, called “distinctive and contradictory per-
ceptions of international law.”3 Although I am no expert on the status of interna-
tional law in any other country, it may well be that most countries are also distinctive
in their approach to our subject. However, the United States, more than others, is
often termed exceptional in this as in other respects. Perhaps this is so because
Americans generally share a European heritage, so we are a bit like European
nations, but most Americans came to the new continent rejecting many important
European traditions—monarchy, state religion, a rigid class structure, a state-
controlled economy, etc. So it is long-standing that Americans often simultaneously
accept and reject a European mindset, international law being no exception. Hence,
just as Americans are often in two minds about European traditions, it is only right
and proper for Europeans to be in two minds about American traditions. Our topic,
international human rights in domestic law, is no exception to such American
exceptionalism.
2 Sosa
The plaintiff in Sosa v. Alvarez-Machain was Dr. Humberto Alvarez-Machain,

kidnapped in 1990 in Mexico by agents of the U.S. Drug Enforcement Administra-
tion (DEA). Taken to the United States for trial, Alvarez-Machain was charged with
participating alongside members of a Mexican drug gang in the torture and death of a
DEA agent in Mexico. Alvarez-Machain contended that his kidnapping violated a
bilateral U.S.–Mexican extradition treaty. The Supreme Court, in 1992, ruled rather
remarkably in United States v. Alvarez-Machain that since the bilateral extradition
treaty did not explicitly prohibit governmental kidnappings, it permitted them.4 At
his subsequent trial in California, Alvarez-Machain was released by the U.S. trial
judge for want of evidence.5 Returned to Mexico, Alvarez-Machain sued the
U.S. government and its agents, including defendant and petitioner Francisco
Sosa, a Mexican national, for false arrest and, in the case of Sosa, for a violation
of the law of nations. The charge against Sosa was based on the Alien Tort Statute of
1789 (ATS), which inter alia provides that “[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States.”6 In 2004, in Sosa v. Alvarez-
Machain, the Supreme Court ruled that Alvarez-Machain failed in his case against
the United States: the Federal Tort Claim Act, under which he sued, includes an
3
Janis (2010).
4
United States v Alvarez-Machain, 504 US 655 (1992).
5
Ibid, 698; Mydans (1992).
6
28 USC §1350.
United States of America 591
exception for “[a]ny claim arising in a foreign country.”7 The Supreme Court also
rejected Alvarez-Machain’s claim against Sosa, holding that “a single illegal deten-
tion of less than a day, followed by the transfer of custody to lawful authorities and a
prompt arraignment, violates no norm of customary international law so well defined
as to support the creation of a federal remedy.”8
Although Alvarez-Machain was disappointed by the outcome of his case, Sosa
gave international human rights lawyers reason for relief. It had been feared that the
Supreme Court would prove to be much more hostile to customary international law
than it was.9 Importantly, the Supreme Court in Sosa acknowledged that the ATS
was based on the Founding Fathers’ understanding that some of the customary law
of nations was part of American common law.10 Moreover, the Supreme Court
interpreted the ATS to provide that the statute had been meant to include new rules of
the customary law of nations that were developed later in time, so long as each rested
on a norm of international character accepted by the civilized world and defined with
a specificity comparable to the feature of the eighteenth century paradigm of the
incorporated rules at the time of the drafting of the ATS.11
Sosa addressed customary rules of the law of nations, not international judg-
ments, but the case teaches that international law and judgments can serve as weights
on the balancing scales when determining whether or not there is a rule of customary
international law definite enough that it ought to be included in U.S. law.12 So, for
example, a footnote in Sosa refers to “a finding by the United Nations working
group” concerning detention.13 This in itself was insufficient to meet the Court’s
“demanding standard of definition,”14 but at least the U.N. group’s finding was taken
into account for balancing purposes.
Another lesson from Sosa is that it may be that an international judgment might
actually limit an American court’s ATS jurisdiction. So in another footnote, the Sosa
court remarked: “the European Commission argues as amicus curiae that basic
principles of international law require that before asserting a claim in a foreign
forum, the claimant must have exhausted any remedies available in a domestic legal
7
Sosa v Alvarez-Machain, 542 US 692, 712 (2004).
8
Ibid, 738. Recently, the Supreme Court further limited the reach of the Alien Tort Statute, ruling in
2013, that there is presumption against the extraterritorial application of the Act. Kiobel v Royal
Dutch Petroleum Co, 133 SCt 1659 (2013). See Wuerth (2013), p. 601.
9
Caron and Roth (2004), pp. 800–801.
10
Sosa v Alvarez-Machain, 542 US 692, 714–720 (2004).
11
Ibid, 725. See the discussion of Blackstone, De Longchamps, and Paquete Habana below.
12
For the balancing test in customary international law, see Janis (2012), pp. 46–52.
13
Sosa v Alvarez-Machain, 542 US 692, 738, n 30 citing Report of the United Nations Working
Group on Arbitrary Detention, UN Doc. E/CN.4/1994/27, 17 Dec 1993, 13–140. The possible
influence of international human rights decisions was also noted by Justice Kennedy in Lawrence v
Texas, where he found support in a judgment of the European Court of Human Rights respecting
rights of homosexuals. 539 US 558, 573 (2003). This is considered further in the final section.
14
Ibid, 738.
592 M. W. Janis
system, and perhaps in other forums such as international claims tribunals.”15 The
Supreme Court observed that “[w]e would certainly consider this requirement in an
appropriate case.”16 Therefore, Sosa hints that international judgments may not only
help tilt the balance in finding customary international law but might also play a part
in determining the proper choice of forum.17
3 Medellin
The U.S. Constitution in Article VI(2) provides that “all treaties . . . shall be the
Supreme Law of the Land.” Though the Constitution makes no mention of interna-
tional judgments, these, as we shall see in the final section, have been sometimes
applied by U.S. courts when grounded on a treaty obligation. The crucial modern
Supreme Court decision on both the force of treaties and that of international
judgments is its 2008 holding in Medellin v. Texas.18 Again, Mexico was involved.
The Mexican government had won a 2004 judgment, Avena,19 in the International
Court of Justice (ICJ) in The Hague against the United States, on behalf of 51 Mex-
ican nationals who had been convicted of crimes in the United States without being
informed of a treaty-based right that Mexico be notified pretrial of their detentions
pursuant to Article 36(1) of the Vienna Convention on Consular Relations, a treaty
ratified by the United States in 1969.20 The ICJ held that “the United States was
obligated ‘to provide by means of its own choosing, review and reconsideration of
the convictions and sentences of the [affected] Mexican nationals.’”21
Medellin was one of those 51 Mexican nationals. He had been convicted of the
rape and murder of two girls in Texas, but it was only after his conviction that
Mexico was notified that it might have contributed to Medellin’s criminal defense.
Despite its violation of Medellin’s treaty-based right, Texas refused to grant
Medellin a review and a retrial of his conviction, rejecting the legal force of both
the ICJ Avena judgment and an order from U.S. President Bush.
15
Ibid, 733.
16
Ibid.
17
For choice of forum consideration in international law, see Janis (2012), pp. 321–360.
18
Medellín v Texas, 552 US 491 (2008).
19
ICJ, Case Concerning Avena and Other Mexican Nationals (Mexico v United States), judgment
of 1 Mar 2004.
20
Vienna Convention on Consular Relations, 24 Apr 1963, [1970] 21 UST 77, TIAS No 6820. The
Supreme Court has long been troubled by violations of the Vienna Convention. In Breard v Greene,
523 US 371 (1998), a 6-3 majority of the Supreme Court failed to stay Virginia’s execution of a
Paraguayan citizen who had not been informed of his right to contact the Paraguayan consulate. The
International Court of Justice had issued an order requesting a stay. See Bekker and Highet (1998).
Available via https://www.asil.org/insights/volume/3/issue/4/international-court-justice-orders-
united-states-stay-execution-paraguayan. Accessed 11 July 2017.
21
Medellín v Texas, 552 US 491, 502–503 (2008).
In a 6-3 judgment in 2008, the U.S. Supreme Court held that Texas was not
legally obliged to take account of either the international judgment or the presidential
order. Despite the divisions in the Court—a majority decision by Chief Justice
Roberts, a concurring opinion by Associate Justice Stevens, and a dissenting opinion
by Associate Justice Breyer—there was agreement by all of the members of the
Court on some of the issues relevant here. For example, in a key part of the majority
opinion, Justice Roberts wrote:
[W]e found it pertinent that the requested relief would not be available under the treaty in any
other signatory country. . . . [T]he lack of any basis for supposing that any other country
would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly
suggests that the treaty should not be so viewed in our courts.22
This assumption may or may not be a fair one, but it buttressed the Supreme
Court’s decision with respect to the direct force of the ICJ judgment and to the force
of the presidential order directing Texas to comply with the Avena judgment. Neither
Associate Justice Stevens’ concurrence nor Associate Justice Breyer’s dissent
directly refuted this claim. Justice Breyer did briefly mention the Dutch constitution
respecting incorporation of treaties: “And the law of other nations, the Netherlands
for example, directly incorporates many treaties concluded by the executive into its
domestic law even without explicit parliamentary approval of the treaty.”23
The jurisdiction of the ICJ in Avena was grounded on an Optional Protocol
concerning the Compulsory Settlement of Disputes to the Vienna Convention.
This provides that disputes arising out of the interpretation of the Vienna Convention
“shall lie within the compulsory jurisdiction of the International Court of Justice.”24
The dispute between Mexico and the United States concerned Article 36(1)(b) of the
Vienna Convention itself, which reads that “if [a person detained by a foreign
country] so requests, the competent authority of the receiving state shall, without
delay, inform the consular post of the sending State [of such detention], . . . [and]
inform the [detainee] of his righ[t] . . . [to request assistance from the consul of his
own state].”
A third relevant treaty provision was Article 94(1) of the U.N. Charter: “[e]ach
member of the United Nations undertakes to comply with the decision of the [ICJ] in
any case to which it is a party.” Chief Justice Roberts agreed with all members of the
Court in holding that “[b]y ratifying the Optional Protocol to the Vienna Convention,
the United States consents to the specific jurisdiction of the ICJ with respect to claims
arising out of the Vienna Convention.”25 The first question was whether Texas was
legally obliged to comply with the ICJ’s rightfully rendered Avena judgment.
The problem was that neither Medellin nor his counsel nor apparently Texas
knew of Medellin’s Vienna Convention right until after his conviction. Hence, the
right was asserted “in his first application for state post-conviction relief [and the]
22
Medellín v Texas, 552 US 491, 517 (2008).
23
Ibid, 548.
24
24 Apr 1963, [1970] 21 UST 325, TIAS No 6820.
25
Medellín v Texas, 552 US 491, 500 (2008).
594 M. W. Janis
state trial court held the claim was procedurally defaulted because Medellin had
failed to raise it at trial or on direct review.”26 Indeed, Justice Breyer wrote that
Texas “did not consider fully, for example, whether appointed counsel’s cotermi-
nous 6-month suspension from the practice of the law ‘caused actual prejudice to the
defendant,’ prejudice that would not have existed had Medellin known he could
contact his counsel and thereby find a different lawyer.”27
While Medellin was proceeding in U.S. federal court challenging his Texas
conviction, the ICJ issued its Avena decision, ordering the United States to provide
for review and retrial of Medellin’s conviction and those of the other 51 Mexican
nationals named in Mexico’s claim at The Hague.28 In light of the ICJ’s Avena
judgment, President Bush ordered as follows:
I have determined, pursuant to the authority vested in me as President by the Constitution
and the laws of the United States of America, that the United States will discharge its
international obligations under the decision of the International Court of Justice in [Avena],
by having State courts give effect to the decision in accordance with general principles of
comity in cases filed by the 51 Mexican nationals addressed in that decision.29
Before turning to the possible legal authority of the presidential order, the
Supreme Court asked whether the ICJ’s Avena decision was itself “a ‘binding’
obligation on the state and federal courts of the United States.”30 Chief Justice
Roberts, like all nine Supreme Court justices, agreed that “[n]o one disputes that
the Avena decision – a decision that flows from the treaties through which the United
States submitted to ICJ jurisdiction with respect to Vienna Convention disputes –
constitutes an international law obligation of the United States.”31 The question was
whether Avena also had “automatic domestic legal effect such that the judgment of
its own force applies in state and federal courts.”32
The most important difference between the ruling of the Court— the majority
holding of five and also Justice Stevens’ concurrence—on the one hand, and the
dissenting opinion of three, on the other hand, was whether or not Avena was self-
executing, that is to say, whether it would “automatically have effect on domestic
law.”33 Chief Justice Roberts, writing for the majority, concluded that “none of [the]
treaty sources [in Avena] creates binding federal law in the absence of implementing
legislation, and because it is uncontested that no such legislation exists, . . . the Avena
judgment is not automatically binding domestic law.”34 Justice Stevens in his
separate opinion agreed; at best, the treaty sources “contemplate[d] future action
26
Ibid, 501.
27
Ibid, 563.
28
Ibid, 502–503.
29
Ibid, 503.
30
Ibid, 504.
31
Ibid.
32
Ibid.
33
Ibid.
34
Ibid, 506.
by the political branches.”35 However, Justice Breyer for the dissenters found “the
relevant treaty provision self-executing as applied to the ICJ judgment before us
(giving that judgment domestic legal effect).”36
Central to the majority’s conclusion that Avena was not self-executing was the
nature of the international political structure surrounding Article 94(1) of the
U.N. Charter: “[e]ach member of the United Nations undertakes to comply with
the decision of the [ICJ] in any case to which it is a party.” Not only does the term
“undertakes to comply” apparently signal that the international legal obligation is
directed to the political, not the judicial, branch of the U.S. government, but Article
94(1)’s formal enforcement mechanism is to be found in Article 94(2): “recourse to
the Security Council, which may, if it deems necessary make recommendations or
decide upon measures to be taken to give effect to the judgment.” Within the
Security Council, of course, the United States, like the other four permanent
members—China, France, Russia, and the United Kingdom—may legally veto
any enforcement action. Chief Justice Roberts reasoned that to give Avena direct
effect in U.S. law would undermine the U.S. veto power: “[i]n light of the
U.N. Charter’s remedial scheme, there is no reason to believe that the President
and Senate signed up for such a result.”37 Justice Stevens agreed: “[i]n my view, the
words ‘undertake to comply’ – while not the model of either a self-executing or a
non-self-executing commitment – are most naturally read as a promise to take
additional steps to enforce ICJ judgments.”38
Justice Breyer looked very differently at Article 94(1):
True, neither the Protocol nor the Charter explicitly states that the obligation to comply with
an ICJ judgment automatically binds a party as a matter of domestic law without further
domestic legislation. But how could the language of those documents do otherwise? The
treaties are multilateral. . . . some signatories follow British further-legislation-always-
needed principles, others follow United States Supremacy Clause principles, and still others,
e.g., the Netherlands, can directly incorporate treaty provisions into their domestic law in
particular circumstances. Why, given national differences, would drafters, seeking as strong
a legal obligation as practically attainable, use treaty language that requires all signatories to
adopt uniform domestic-law treatment in this respect?39
For seven reasons, Justice Breyer reasoned that Avena was self-executing
(i) because of “the language of the relevant treaties”40; (ii) because the Optional
Protocol “is itself self-executing and judicially enforceable”41; (iii) because “logic
suggests that a treaty provision providing for ‘final’ and ‘binding’ judgments that
35
Ibid, 534.
36
Ibid, 551.
37
Ibid, 510.
38
Ibid, 532.
39
Ibid, 552.
40
Ibid, 551.
41
Ibid, 555.
596 M. W. Janis
‘settl[e]’ treaty-based rights is self-executing”42; (iv) because the majority’s holding

“has seriously negative practical implications,” e.g. casting doubt on “at least
70 treaties that contain provisions for ICJ dispute settlement”43; (v) because courts
are well-suited to review the practice of criminal procedure like that at issue in Avena
and Medellin44; (vi) because enforcing Avena would not “threaten constitutional
conflict with other branches” of the U.S. government45; and (vii) because “neither
the President nor Congress has expressed concern about direct judicial enforcement”
of Avena.46 Though concurring with the non-self-executing majority, Justice Ste-
vens found “a great deal of wisdom in Justice Breyer’s dissent.”47 However, Chief
Justice Roberts dismissed Justice Breyer’s seven reasons as “a grab bag” that
provided “no sort of guidance.”48
The second part of Medellin’s claim was founded on President Bush’s order “that
the United States will discharge its international obligations [in Avena], by having
State courts give effect to the [ICJ] decision in accordance with general principles of
comity in cases filed by the 51 Mexican nationals addressed in that decision.”49
Chief Justice Roberts rejected the enforceability of the order:
The President has an array of political and diplomatic means available to enforce interna-
tional obligations, but unilaterally converting a non-self-executing treaty into a self-
executing one is not among them. The responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic law falls to Congress. As
this Court has explained, when treaty stipulations are not self-executing they can only be
enforced pursuant to legislation to carry them into effect. Moreover, ‘[u]ntil such act shall be
passed, the Court is not at liberty to disregard the existing laws on the subject.’50
In his concurrence, Justice Stevens agreed that the presidential order was not
binding law, but he praised its intent:
Even though the ICJ’s judgment in Avena is not ‘the supreme Law of the Land,’ U.S. Const.,
Art. VI, cl. 2, no one disputes that it constitutes an international law obligation on the part of
the United States. By issuing a memorandum declaring that state courts should give effect to
the judgment in Avena, the President made a commendable attempt to induce the States to
discharge the Nation’s obligation. I agree with the Texas judges and the majority of this
Court that the President’s memorandum is not binding law. Nonetheless, the fact that the
President cannot legislate unilaterally does not absolve the United States from its promise to
take action necessary to comply with the ICJ’s judgment.51
42
Ibid, 556.
43
Ibid, 559.
44
Ibid, 560–561.
45
Ibid, 561.
46
Ibid.
47
Ibid, 533.
48
Ibid, 516.
49
Ibid, 503.
50
Ibid, 525–526.
51
Ibid, 536.
In his dissent, Justice Breyer was “content to leave the matter [of the presidential
order] in the constitutional shade from which it emerged.”52 However, his “silence
. . . cannot be taken as agreement with the majority’s” conclusion53:
Given the Court’s comparative lack of expertise in foreign affairs; given the importance of
the Nation’s foreign relations; given the difficulty of finding the proper constitutional
balance among state and federal, executive and legislative, powers in such matters; and
given the likely future importance of this Court’s efforts to do so, I would very much hesitate
before concluding that the Constitution implicitly sets forth broad prohibitions
(or permissions) in this area.54
Medellin, unlike Sosa, directly addressed the question of the role of international
judgments in U.S. law. Though Medellin recognized two paths that international
judgments might follow to make a direct impact on U.S. law, neither is easy to
follow to a successful conclusion. First, all members of the Medellin court agreed
that an international judgment might in principle be made self-executing by virtue of
a self-executing treaty provision. However, the ruling six members of the Court did
not believe that even the combination of the compulsory ICJ jurisdictional clause of
the Vienna Convention with the promise made by the United States in the
U.N. Charter to respect ICJ judgments transformed the international legal obligation
of the United States to enforce Avena into a rule enforceable by U.S. courts. To this
observer, this seems remarkably unpersuasive.
Medellin’s second possible direct impact path is equally fraught. Although all
nine justices agreed that President Bush was obliged at international law to enforce
Avena, the majority ruled that the President was constitutionally unable to fulfill
America’s promise without an explicit congressional mandate. Again, this seems a
remarkable outcome. To this observer, it seems unlikely that Congress would ever
legislate a specific international judgment into U.S. law. It would seem to be enough
that Congress would agree, as it did in the U.N. Charter, to generally oblige the
United States to respect the judgment of an international court like the ICJ.
Looking at Medellin, at best one can only join in the concurrence of Justice
Stevens:
The decision in Avena merely obligates the United States ‘to provide, by means of its own
choosing, review and reconsideration of the convictions and sentences of the [affected]
Mexican nationals,’ with a view to ascertaining whether the failure to provide proper notice
to consular officials ‘caused actual prejudice to the defendant in the process of administration
of criminal justice.’ The cost to Texas of complying with Avena would be minimal,
particularly given the remote likelihood that the violation of the Vienna Convention actually
prejudiced Jose Ernesto Medellin. It is a cost that the State of Oklahoma unhesitatingly
assumed.
On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The
entire Court and the President agree that breach will jeopardize the United States ‘plainly
52
Ibid, 566.
53
Ibid.
54
Ibid, 565–566.
598 M. W. Janis
compelling’ interests in ‘ensuring the reciprocal observance of the Vienna Convention,

protecting relations with foreign governments, and demonstrating commitment to the role
of international law.’ When the honor of the Nation is balanced against the modest cost of
compliance, Texas would do well to recognize that more is at stake than whether judgments
of the ICJ, and the principled admonitions of the President of the United States, trump state
procedural rules in the absence of implementing legislation.
The Court’s judgment, which I join, does not foreclose further appropriate action by the State
of Texas.55
However, Texas did not respect the Avena judgment. The State executed
Medellin without providing him with a review of his conviction. In so doing,
Texas violated the Vienna Convention, the U.N. Charter, and the order of the
President of the United States. Moreover and more importantly, Texas, enabled by
the majority decision of the U.S. Supreme Court, also brought the United States into
violation of international law. Although all the members of the Supreme Court had
agreed that the United States was obliged to enforce Avena, the majority ruled that
the ICJ judgment had force only in international law and that only an act of Congress
could transform Avena into domestic law.
4 International Human Rights Law in General
Somewhat more favorable to international human rights in the U.S. legal system than
the role assigned to international judgments by the U.S. Supreme Court and the State
of Texas in Medellin is the general place of international human rights law. This is
probably not at all that surprising since, as a legal system more than two hundred
years old, U.S. law has a long and nuanced history of incorporating international and
foreign law.
Indeed, U.S. jurisprudence still preserves features that predate the creation of the
very term international law as invented in 1789, by Jeremy Bentham, who thought,
mistakenly, that he was simply substituting his new term, international law, for the
traditional term of the common law, the law of nations.56 William Blackstone, a
more reliable lawyer albeit not so fine a philosopher as Bentham, had correctly
recorded in 1769 that “the law of nations (wherever any question arises which is
properly the subject of its jurisdiction) is here [in England] adopted in its full extent
by the common law, and is held to be a part of the law of the land.”57
The principle that the law of nations is part of the common law was adopted as
early as 1784, by the Chief Justice of Pennsylvania, McKean, in a case applying it to
the protection of the French Counsel General in Philadelphia, then the capital of the
55
Ibid, 537.
56
Burns and Hart (1970) and Janis (1984), p. 405.
57
Blackstone (1979), p. 67.
United States, in Respublica v. De Longchamps.58 McKean held that the law of

nations “in its full extent, is part of the law of this State, and is to be collected from
the practice of different Nations, and the authority of writers.”59 The principle was
famously reaffirmed by Mr. Justice Gray in 1900 in The Paquete Habana, where the
U.S. Supreme Court protected Cuban fishermen against internationally illegal war-
time seizure by the U.S. Navy during the Spanish–American War.60 Gray’s words
were in terms of international law, but the principle was the same as the traditional
common law law of nations: “International Law is part of our law, and must be
ascertained and administered by the courts of justice of appropriate jurisdiction, as
questions of right depending upon it are duly presented for their determination.”61
This is, of course, a different sort of incorporation than that presented by Sosa and
similar modern cases relying upon the 1789 Alien Tort Statutes. Sosa’s incorpora-
tion is via statutory reference. The incorporation of Blackstone, De Longchamps,
and Paquete Habana are by way of the common law, treating the rules of the law of
nations as common law rules, rather as one would the common law rules of tort and
contract. The potential potency of the Blackstonian concept is so great that
U.S. courts, both federal and state, have been reluctant to employ it to its full, albeit
there are some more modern cases where the U.S. Supreme Court has relied upon the
law of nations to state a common law principle, e.g., the act of state doctrine in Banco
Nacional de Cuba v. Sabbatino.62
More numerous by far are U.S. cases where international law, including what
might be rightly considered modern international human rights law, has been
incorporated by way of treaty. Here, as noted in Medellin, the legal pathway is an
explicit constitutional provision, the so-called supremacy clause. “Treaties made, or
which shall be made, under the Authority of the United States,” along with the
Constitution itself and Congressional statutes made pursuant to the Constitution,
“shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”63
As early as 1796, the supremacy clause has been employed by aliens protecting
their rights and relying on treaty provisions in U.S. courts. In Ware v. Hylton, the
U.S. Supreme Court shielded a British creditor from a Virginia statute depriving him
of property rights under the 1783 Peace of Paris protecting him from discriminatory
treatment as a national of the United Kingdom.64 The protection of Article VI(2) has
been extended many times over the course of more than two centuries. One of the
more famous cases is Asakura v. Seattle, where a Japanese national complained of a
58
Respublica v De Longchamps, 1 US (1 Dallas) 111 (1784).
59
Ibid, 116.
60
The Paquete Habana, 175 US 677 (1900).
61
Ibid, 700.
62
Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964).
63
US Constitution, Art VI(2).
64
Ware v Hylton 3 US (3 Dallas) 199 (1796).
600 M. W. Janis
city ordinance under the law of the State of Washington depriving him of his right to
practice his trade as a pawnbroker, a right that had been limited to U.S. nationals.65
The Court struck down the deprivation, relying on a bilateral 1911 Friendship,
Commerce, and Navigation Treaty between Japan and the United States. This
provided that “the citizens or subjects of each of the High Contracting Parties shall
have liberty to enter, travel and reside in the territories of the other to carry on trade
. . . upon the same terms as native citizens or subjects.”66
However, we have already seen in Medellin that these protections are limited by
several doctrines. Importantly, no treaty or its rules will be incorporated if either
contradict the U.S. Constitution, the most “supreme” of the three provisions of the
supremacy clause. In Reid v. Covert, the U.S. Supreme Court held that “no agree-
ment with a foreign nation can confer power on the Congress, or on any other branch
of Government, which is free from the restraints of the Constitution.”67
Another judicial limit placed on Article VI(2) incorporation of treaties is the
so-called self-executing treaty doctrine, which for our purposes is more interesting
when the doctrine does not apply, i.e., when a treaty rule is deemed by the courts as
not to be self-executing. The self-executing treaty doctrine was framed, albeit not yet
named, by the U.S. Supreme Court in the most famous U.S. treaty case of all, Foster
& Elam v. Neilson.68 The case involved conflicting property claims in what had been
known as West Florida before becoming part of the new state of Louisiana east of
New Orleans. Between 1800 and 1821, the territory had been transferred back and
forth between Spain, France, and the United States, and there was much doubt as to
which of the three states possessed West Florida in the period. After the 1821
ratification of an 1819 treaty of amity between Spain and the United States, West
Florida had become finally part of the United States. It was a provision of the 1819
treaty that was at issue since it provided that “all the grants of land made before the
24th of January 1818 by [the King of Spain] in the said territories ceded by his
majesty to the United States, shall be ratified and confirmed to the persons in
possession of the lands.” Foster & Elam claimed land under an 1804 Spanish
grant. Neilson alleged that the Spanish grant was invalid because the land in question
had been ceded by Spain to France.
Rather than try to untangle the complicated and contradictory history of the
transfer of West Florida among Spain, France, and the United States, Chief Justice
Marshall, perhaps the most famous U.S. Supreme Court judge, ruled that, whatever
the real story, the clause of the 1819 treaty allegedly protecting Foster & Neilson
could not be applied. Marshall acknowledged that in some instances, Article VI
(2) would make a treaty rule directly applicable in U.S. courts, but when “the treaty
addresses itself to the political, not the judicial department . . . the legislature must
65
Asakura v Seattle, 205 US 332 (1924).
66
Ibid, 340–344.
67
Reid v Covert, 354 US 1, 16 (1957).
68
Foster & Elam v Neilson, 27 US (2 Peters) 253 (1829).
execute the contract [reading a treaty as an inter-state contract] before it can become
a rule for the Court.”69
As we have seen in Ware and Asakura, the courts do find some treaties and their
provisions self-executing, a powerful force for the respectful observance of treaty
obligations by the United States. However, as we saw in Medellin, when the courts
choose to find a treaty non-self-executing, there can be a real obstacle to treaty
observance. Sometimes, this roadblock is avoided by other avenues in U.S. law. For
example, in Sei Fujii v. State of California, the California Supreme Court in 1952
considered a California statute prohibiting certain aliens from owning land. Sei Fujii,
a Japanese national adversely affected by the statute, could no longer rely on the
1911 U.S.–Japanese bilateral trade agreement because it had been repudiated by the
United States in 1939 as part of economic sanctions imposed by the West against
Japanese aggression in China. However, he invoked the human rights provisions of
the Preamble and Article 1 of the 1945 U.N. Charter. California Chief Justice Gibson
ruled that the U.N. Charter human rights protections were not self-executing: “[t]hey
state general purposes and objectives of the United Nations Organization and do not
purport to impose legal obligations on the individual member nations or to create
rights in private persons.”70
Sei Fujii’s rights, however, were ultimately saved by the California court’s
application of the 14th Amendment of the U.S. Constitution. It could well be that
in Sei Fujii, the U.N. Charter “was an important influence on the judiciary, sub
silentio.”71 The U.N. Charter seems to have played a role in molding
U.S. perceptions of the due process and equal protection clause of the 14th Amend-
ment and the due process clause of the Fifth Amendment.72 This is an important
reminder that constitutional civil rights protection, in both federal and state courts,
applying both the U.S. Constitution and the 50 state constitutions, achieves many of
the goals of international human rights law.73
Besides the incorporation of international law in U.S. law by way of the law of
nations or Article VI(2) respecting treaties and the doctrine of self-execution, two
other influences of international law on U.S. law need to be mentioned. The first is
the so-called Charming Betsy doctrine. The common law principle drawn from the
case was enunciated by Chief Justice Marshall in 1804: “an act of Congress ought
never to be construed to violate the law of nations if any other possible construction
remains.”74 The point at issue was whether or not a shipowner who voluntarily
renounced his U.S. citizenship to become a Danish subject was protected by the law
of nations in his new nationality from being subject to U.S. neutrality laws
prohibiting trade with belligerents in the Napoleonic Wars. This useful interpretative
69
Ibid, 310.
70
Sei Fujii v State of California, 242 P.2d 617, 620–622 (1952).
71
Lockwood (1984), p. 949.
72
Ibid, 902.
73
Chemerinsky (2006), pp. 473–1267.
74
Murray v Schooner Charming Betsy, 6 US (2 Cranch) 64, 118 (1804).
602 M. W. Janis
principle can be extended to extremes. For example, in United States v. Palestine

Liberation Organization, a U.S. district court judge ruled in 1988 that the 1987 Anti-
Terrorism Act should not be read to shut down the PLO’s U.N. Office in New York
because the Congressional statute ordering closure conflicted with the 1947 U.S.–U.
N. Headquarters Agreement.75 As Professor Rosalyn Higgins, later a judge on the
International Court of Justice, put it at the time, the PLO Case was “a remarkable
piece of judicial reasoning, at once admirably purpose-oriented, but unpersuasive.”76
Another way in which international law may influence U.S. law is by reference to
international and foreign decisions when interpreting the U.S. Constitution. From its
very origins, the United States has been conscious of what Thomas Jefferson in the
1776 Declaration of Independence termed “a decent respect to the opinion of
mankind.”77 In 1857, a bitterly divided (7-2) Supreme Court used international
and foreign law extensively supporting and rejecting the majority’s opinion that
African-Americans could never be U.S. citizens and denying Congress the consti-
tutional power to abolish slavery in federal territorities.78 The decision helped
precipitate the U.S. Civil War (1861–1865). “[A]t no time was the gap between
our human rights rhetoric and our human rights practices so great.”79
In modern times, some, though not all, of the justices of the Supreme Court have
turned to international and foreign law to bolster their findings in cases involving
human rights. So, for example, in Lawrence v. Texas, Justice Kennedy looked to the
Dudgeon Case from the European Court of Human Rights for guidance about the
rights of homosexuals.80 And, in Roper v. Simmons, a case testing the juvenile death
penalty, Kennedy turned again to international and foreign law, writing: “The
opinion of the world community, while not controlling our outcome, does provide
respected and significant confirmation for our own conclusions.”81 Others making
use of international and foreign law when interpreting general language in the
Constitution have been justices White and Breyer, while those opposing such use
include justices Scalia and Thomas. Altogether, the use of international and foreign
law in this way is highly contentious both in the courts and in the literature.82
75
United States v. Palestine Liberation Organization, 695 Federal Supplement 1456 (S.D.N.Y,
1988), ordinarily in US law in case of a conflict between a statute and a treaty, the later in time
controls: Whitney v Robertson, 124 US 190 (1888). Thus, it seemed as if the 1987 statute not the
1947 treaty in the PLO Case should control.
76
Higgins (1994), p. 215. For more discussion, see Janis and Noyes (2014), pp. 290–297.
77
“The Declaration of Independence” (1776) reprinted in Hall et al. (1991), p. 66.
78
Janis (2005), p. 763.
79
Ibid, 810.
80
Lawrence v Texas, 539 US 558, 573 (2003).
81
Roper v Simmons, 543 US 551, 578 (2005).
82
See Janis and Noyes (2014), pp. 329–330 and Damrosch et al. (2004), pp. 42–108.
5 Conclusion
Thus, for a country not subject to the jurisdiction of any regional court of human
rights, the United States has rather a remarkably old and complex jurisprudence
respecting the application of international law and international human rights. There
are avenues, albeit narrow, in both the common law in the fashion of Blackstone, De
Longchamps and Paquete Habana, and by way of the Supremacy Clause of Article
VI(2) of the U.S. Constitution and self-execution à la Foster & Elam, even given the
restrictions of Medellin, for the direct incorporation of international law. An old
statutory provision, the 1789 Alien Tort Statute, is sometimes used in modern times
to interpret and apply international human rights standards, a use sanctioned by the
Supreme Court in Sosa. There are also interpretative doctrines that may be favorable
to the influence of international law, for example, the rule in the Charming Betsy
encouraging respect for international law when a statute may be interpreted in
various ways. Finally, international law has sometimes been used, for ill as in
Dred Scott and for good as in Lawrence and Roper, to bolster constitutional
interpretations of human rights.
Acknowledgement With thanks to Alexa Millinger, UConn Law '14, for her help in proofreading
and footnoting this essay.
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ILA Johannesburg Guidelines
The Obligations of a State and Its Domestic Courts with

Respect to a Decision Issued by an International Judicial
or Quasi-Judicial Body Involving International Human
Rights Law
Adopted by the International Law Association at its 77th Conference (77th) in

Johannesburg, South Africa, 11 August 20161
1. States, on becoming parties to human rights treaties, undertake to make such

changes to domestic laws and practices as are necessary to ensure their
conformity with the treaties and the jurisprudence of any judicial or quasi-
judicial body with jurisdiction to interpret and apply the pertinent human
rights provisions.
2. States give human rights treaties the force of law, allowing individuals to
invoke them before domestic courts, and to take precedence over any
conflicting national law.
3. States are under an obligation to organise the governmental apparatus, i.e. all
structures through which public power is exercised, including the judiciary, so
that they are capable of compliance with international human rights law. This
obligation extends to
(a) bringing ongoing violations to a stop,
(b) preventing future violations from occurring,
1
Annex to Resolution 2/2016, ILA Report 2016, at 22. As to the background and genesis of the
Guidelines see ILA Report (Part 2), The Domestic Implementation of Judgments/Decisions of
Courts and other International Bodies that Involve International Human Rights Law, in this
Volume.

https://doi.org/10.1007/978-3-319-94848-5
606 ILA Johannesburg Guidelines
(c) offering interim measures to prevent irreparable harm to persons,

(d) conducting effective investigation of human rights violations and, if
warranted, guaranteeing that criminal proceedings are opened,
(e) providing for the option to re-open closed cases in which judgments and
decisions are based on human rights violations and
(f) guaranteeing that restitution for a violation is made and, where such
restitution proves inadequate or impossible, that damages are compensated.
4. States are encouraged to recognise individual complaint procedures pertaining

to the treaty systems to which they are party. They are under an obligation to
provide adequate and effective remedies for violations of international human
rights law.
5. The state, in the implementation of a judgment or decision is more apt to
render justice to the petitioner under a human rights treaty when that judgment
or decision is principled, precise and clearly spells out the state's obligations in
its operative paragraphs. In cases where the state has been unable or unwilling
to execute the supervisory body's final judgment, the petitioner continues
to have standing before the court or body, which delivered the judgment or
decision, either by means of a new petition on the failure of compliance or by
means of follow-up to the original petition until justice is rendered.
6. States are under an obligation to cooperate with the supervisory bodies
in the processing of a case, i.a., by respecting interim measures and providing
necessary information. They ensure the right to petition, i.a., by
protecting petitioners and their counsel against threats and reprisals for bring-
ing complaints.
7. States and their courts are under an obligation to give full effect to legally
binding decisions of competent international courts and give due regard in
good faith to all other decisions of competent international bodies.
8. States are under an obligation to cooperate in good faith with the follow-up
mechanism developed to ensure compliance with decisions of international
bodies.
9. Good practices of states lead to the following recommendations:
(a) Constitutional and supreme courts develop and practice control of con-
ventionality. All courts accordingly interpret domestic law in conformity
with international human rights law. They take the pertinent judgments
and decisions of courts and quasi-judicial bodies, also in those cases to
which the state was not a party, fully into account and integrate them in
their reasoning in good faith.
(b) Domestic courts take into account the practice of courts of other states in
their implementation of international human rights law. Courts facilitate
this practice by translating their judgments.
ILA Johannesburg Guidelines 607
(c) To avoid norm conflicts before courts, institutions and procedures are in
place to review bills to be presented in the legislatures with respect to their
compatibility with international human rights law and the pertinent juris-
prudence of the competent international bodies.
(d) States establish paths of dissemination, including translation of judge-
ments and decisions in international human rights law to governmental
bodies, legislative committees and the judiciary with a view to enhancing
awareness of these practices and their impact on domestic law.
(e) States establish independent National Human Rights Institutions (NHRIs),
in accordance with the UN Paris Principles.
Table of Cases
International Courts, Arbitral Tribunals and Treaty Bodies
Committee Against Torture
– Colmenarez and Sanchez v. Venezuela, Com No 456/2011, decision of 15 May

2015——66
– Guengueng et al. v. Senegal, Com No 181/2001, decision of 17 May 2006——
26, 27
– Ltaief v. Tunisia, Com No 189/2001, decision of 14 Nov 2003——26
– O.R. et al. v. Argentina, Com Nos 1/1988, 2/1988 and 3/1988, decision of 23 Nov
1989——26, 435
Human Rights Committee
– Ahani v. Canada, Com No 1050/2002, Views of 10 Jan 2002, U.N. Doc CCPR/
C/80/D/1051/2002——265
– Ashby v. Trinidad and Tobago, Com No 580/1994, Views of 21 Mar 2002, U.N.
Doc. CCPR/C/74/D/580/1994 (2002)——263
– Bordes and Temeharo v. France, Com No 645/1995, Views of 22 July 1996,
U.N. Doc. CCPR/C/57/D/645/1995 (1996)——130
– Bradshaw v. Barbados, Com No 489/1992, Views of 19 July 1994, U.N. Doc.
CCPR/C/51/D/489/1992 (1994)——459
– Herrera Rubio et al. v. Colombia, Com No 161/1983, Views of 2 Nov 1987, U.N.
Doc. CCPR/C/OP/2——263
– J. B. et al. v. Canada, Com No 118/1982, Views of 18 July 1986, U.N. Doc.
Supp. No. 40 (A/41/40)——260

https://doi.org/10.1007/978-3-319-94848-5
610 Table of Cases
– Jayawardena v. Sri Lanka, Com No 916/2000, Views of 22 July 2002, U.N. Doc.
CCPR/C/75/D/916/2000——57
– Kennedy (2) v. Trinidad and Tobago, Com No 845/1998, Views of 26 Mar 2002,
U.N. Doc. CCPR/C/74/D/845/1998——45, 140
– Maroufidou v. Sweden, Com No 58/1979, Views of 9 Apr 1981, U.N. Doc.
CCPR/C/12/D/58/1979——24
– Páez v. Colombia, Com No 195/1985, Views of 12 July 1990, U.N. Doc. CCPR/
C/39/D/195/1985——57
– Pinto v. Trinidad and Tobago, Com No 232/1987, Views of 20 July 1990, U.N.
Doc. CCPR/C/39/D/232/1987——263
– Reid v. Jamaica, Com No 250/1987, Views of 20 July 1990, U.N. Doc. CCPR/C/
39/D/250/1987——263
– Roberts v. Barbados, Com No 504/1992, Views of 19 July 1994, U.N. Doc.
CCPR/C/51/D/504/1992——64
– Singh v. France, Com No 1852/2008, Views of 1 Nov 2012, U.N. Doc. CCPR/C/
106/D/1852/2008——81, 469
– Timoshenko v. Belarus, Com No 1950/2010, Views of 29 June 2015, U.N. Doc
CCPR/C/114/D/1950/2010——112
– Tyan v. Kazakhstan, Com No 2125/2011, Views of 16 Mar 2017, U.N. Doc.
CCPR/C/119/D/2125/2011——14
– Waldman v. Canada, Com No 694/1996, Views of 5 Nov 1999, U.N. Doc.
CCPR/C/67/D/694/1996——78
– Weiss v. Austria, Com No 1086/2002, Views of 3 Apr 2003, U.N. Doc. CCPR/C/
77/D/1086/2002——167
Inter-State Arbitration
– The “Arctic Sunrise” Case Arbitration (Netherlands v. Russia), Case 2014-02,

judgment of 14 Aug 2015——19
International Court of Justice
– Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the

Congo), decision on preliminary objections of 24 May 2007, ICJ Rep 2007,
582——34
Congo), judgment of 30 Nov 2010, ICJ Rep 2010, 639——6, 15, 24, 25, 28,
31, 33, 64, 104, 116, 118, 353, 459, 493
Congo), judgment of 19 June 2012, ICJ Rep 2012, 324——8, 28, 29, 34, 35,
104, 118, 119
Table of Cases 611
– Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of
26 Feb 2007, ICJ Rep 2007, 43——39, 166
– Application of the International Convention for the Suppression of the Financing
of Terrorism and of the International Convention on the Elimination of All Forms
of Racial Discrimination (Ukraine v. Russian Federation), order for provisional
measures of 19 Apr 2017——132, 136, 149, 152, 154–158, 160, 163
– Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), order of 15 Oct 2008,
ICJ Rep 2008, 353——37, 39, 136, 141, 144
– Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), judgment of 1 Apr 2011,
ICJ Rep 2011, 70——144, 163
– Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Rwanda), judgment on jurisdiction of 3 Feb 2006, ICJ Rep 2006,
6——23
Congo v. Uganda), judgment of 19 Dec 2005, ICJ Rep 2005, 168——23, 38,
40, 159, 160
Congo v. Uganda), order of 1 July 2000, ICJ Rep 2000, 111——131, 141
– Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), order of 10 July 2002, ICJ
Rep 2002, 219——45
– Armed Activities on the Territory of the Congo (New Application: 2002) (Dem-
ocratic Republic of the Congo v. Rwanda), judgment on jurisdiction and admis-
sibility of 10 Feb 2006, ICJ Rep 2006, 6——45, 141
– Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
judgment of 14 Feb 2002, ICJ Rep 2002, 3——33
– Avena and Other Mexican Nationals (Mexico v. United States of America), order
of 5 Feb 2003, ICJ Rep 2003, 96——131, 147, 151, 164
– Avena and Other Mexican Nationals (Mexico v. United States of America),
judgment of 31 Mar 2004, ICJ Rep 2004, 12——32, 33, 45, 104, 108, 109,
114–116, 142, 147, 162, 353, 390, 402, 592
– Barcelona Traction, Light and Power Company, Limited, (Belgium v. Spain),
judgment of 5 Feb 1970, ICJ Rep 1970, 3——35, 121, 533
– Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), order for provisional measures of 8 Mar 2011, ICJ Rep 2011,
6——43, 133, 134, 148–150, 153, 154
v. Nicaragua), order of 16 July 2013, ICJ Rep 2013, 230——134
v. Nicaragua), order for new provisional measures of 22 Nov 2013, ICJ Rep
2013, 354——43, 134
612 Table of Cases
v. Nicaragua), judgment of 16 Dec 2015, ICJ Rep 2015, 665——135, 158–
160, 166
– Certain Expenses of the United Nations, advisory opinion of 20 July 1962, ICJ
Rep 1962, 151——25, 267
– Construction of a Road in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica), order of 16 July 2013, ICJ Rep 2013, 398——158
– Construction of a Road in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica), judgment of 16 Dec 2015, ICJ Rep 2015, 29——135, 159
– Corfu Channel (United Kingdom of Great Britain and Northern Ireland
v. Albania), judgment of 15 Dec 1949 (compensation), ICJ Rep 1949, 244——
34, 35, 37
– Frontier Dispute (Burkina Faso v. Republic of Mali), judgment of 22 Dec 1986,
ICJ Rep 1986, 554——165
– Frontier Dispute (Burkina Faso v. Republic of Mali), order for provisional
measures of 10 Jan 1986, ICJ Rep 1986, 3——43, 135, 148, 158
– Immunities and Criminal Proceedings (Equatorial Guinea v. France), order of
7 Dec 2016, ICJ Rep 2016, 1148——149, 158
– Jadhav (India v. Pakistan), order of 18 May 2017——131, 147, 150, 151
– Judgment No. 2867 of the Administrative Tribunal of the International Labour
Organization upon a Complaint Filed against the International Fund for Agri-
cultural Development, advisory opinion of 1 Feb 2012, ICJ Rep 2012, 10——29
– Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening),
judgment of 3 Feb 2012, ICJ Reports 2012, 99——25, 584
– LaGrand (Germany v. United States of America), judgment of 27 June 2001, ICJ
Rep 2001, 466——32, 39, 42, 44, 104, 147, 150, 161, 166, 353
– LaGrand (Germany v. United States of America), order for provisional measures
of 3 Mar 1999, ICJ Rep 1999, 9——33, 42, 44, 131, 147, 150, 161
– Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria), order for provisional measures of 15 Mar 1996, ICJ Rep 1996,
13——43, 148
– Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, advisory opinion of 9 July 2004, ICJ Rep 2004, 136——23, 38, 117
– Legality of the Threat or Use of Nuclear Weapons, advisory opinion of 8 July
1996, ICJ Rep 1996, 226——38
– Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), judgment on the merits of 27 June 1986, ICJ Rep
1986, 14——165, 340
– Nuclear Tests case (Australia v France), order for provisional measures of
22 June 1973, ICJ Rep 1973, 99——130, 131, 145, 146
– Nuclear Tests case (New Zealand v France), order for provisional measures of
22 June 1973, ICJ Rep 1973, 135——130, 131, 145, 146
– Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. India, Pakistan and the
UK), judgment of 5 Oct 2016, ICJ Rep 2016, 255——8, 163
Table of Cases 613
– Pulp Mills on the River Uruguay (Argentina v. Uruguay), order of 13 July 2006,
ICJ Rep 2006, 113——128
– Pulp Mills on the River Uruguay (Argentina v. Uruguay), order for provisional
measures of 23 Jan 2007, ICJ Rep 2007, 3——132, 133, 149
– Pulp Mills on the River Uruguay (Argentina v. Uruguay), judgment of 20 Apr
2010, ICJ Rep 2010, 14——211, 218
– Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), order of 28 May 2009, ICJ Rep 2009, 139——153
– Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), judgment of 20 July 2012, ICJ Rep 2012, 422——26, 27, 31, 35,
125, 128, 130
– Questions relating to the Seizure and Detention of Certain Documents and Data
(East Timor v. Australia), order of 3 Mar 2014, ICJ Rep 2014, 147——149, 154,
158
– Reparations for Injuries Suffered in the Service of the UN, advisory opinion of 11
Apr 1949, ICJ Rep 1949, 174——58, 227, 232, 267
– Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), order for
provisional measures of 18 July 2011, ICJ Rep 2011, 537——43, 45, 135, 136,
140, 142, 148, 149, 163
– Request for Interpretation of the Judgment of 31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v. United States of
America), order of 16 July 2008, ICJ Rep 2008, 311——131, 135, 141–143, 147,
158, 163
– Request for Interpretation of the Judgment of 31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v. United States of
America), judgment of 19 Jan 2009, ICJ Rep 2009, 3——116, 142, 143, 164, 165
– South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),
judgment on preliminary objections of 21 Dec 1962, ICJ Rep 1962, 319——25
– United States Diplomatic and Consular Staff in Tehran (United States of America
v. Iran), order for provisional measures of 15 Dec 1979, ICJ Rep 1979, 7——41,
42, 131, 141, 145, 146, 158
– United States Diplomatic and Consular Staff in Tehran (United States of America
v. Iran), judgment of 24 May 1980, ICJ Rep 1980, 3——41, 147
– Vienna Convention on Consular Relations (Paraguay v. United States of America),
order of 9 Apr 1998, ICJ Rep 1998, 266——114, 131, 147, 158, 161
International Criminal Court
– Prosecutor v. Blogojević & Jokić, Case No IT-02-60-T, judgment of 17 Jan

2005——435
– Prosecutor v. Stakić, Case No IT-97-24-A, judgment of 22 Mar 2006——435
614 Table of Cases
International Tribunal on the Law of the Sea
– The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation),

order of 22 Nov 2013——7, 9, 36, 37
– The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of
Spain), judgment of 28 May 2013——353
– The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea),
judgment of 1 July 1999——36, 353
– The MOX Plant Case (Ireland v. United Kingdom), order of 3 Dec 2001——131
Investor-State Arbitration
– El Paso Energy International Company v Argentina, ICSID Case No ARB/03/15,

award of 31 Oct 2011——10
– Glamis Gold Ltd. v United States of America, award of 08 June 2009——10
– Hesham Talaat M. Al-Warraq v Republic of Indonesia, final award of 15 Dec
2014——10
– IBM World Trade Corp. v Republic of Ecuador, ICSID Case No ARB/02/10,
decision on jurisdiction and competence of 22 Dec 2003——10
– Tulip Real Estate v Turkey, ICSID Case No ARB/11/28, decision refusing
annulment of 30 Dec 2015——10
– Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur
Partzuergoa v The Argentine Republic, ICSID Case No ARB/07/26, award of
8 Dec 2016——10
Permanent Court of International Justice
– Denunciation of the Treaty of November 2nd, 1865, between China and Belgium
(Belgium v. China), Case No 22, order for measures of protection of 8 Jan 1927,
PCIJ Series A No 8——40, 146
– Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Case No 78,
order of 5 Dec 1939, PCIJ Series A/B No 79——138
– Factory at Chorzów (Germany v. Poland), Case No 13 (claim for indemnity),
judgment of 26 July 1927, PCIJ Series A No 9——147
– Factory at Chorzów (Germany v. Poland), Case No 13 (claim for indemnity),
judgment of 13 Sept 1928, PCIJ Series A No 17——35, 58, 117
– Jurisdiction of the Courts of Danzig, Case No 29 (pecuniary claims of Danzig
railway officials who have passed into the Polish Service, against the Polish
Table of Cases 615
Railway Administration), advisory opinion of 3 Mar 1928, PCIJ Series B No

15——105, 106, 521
– Mavrommatis Palestine Concessions (Greece v. UK), Case No 28, judgment of
30 Aug 1924, PCIJ Series A No 2——105, 120
Regional Courts and Treaty Bodies
Africa
African Commission on Human and Peoples’ Rights
– Amnesty International v. Zambia, Com No 212/98, decision of 05 May 1999——

559
– Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for
Human Rights, Association of Members of the Episcopal Conference of East
Africa v. Sudan, Com Nos 48/90, 50/91, 52/91 and 89/93, decision of 15 Nov
1999——328, 329
– Art. 19 v. Eritrea, Com No 275/03, decision of 30 May 2007——325, 328, 329
– Association of Victims of Post Electoral Violence & INTERIGHTS v. Cameroon,
Com No 272/03, decision of 25 Nov 2009——303, 316, 320, 326
– Centre on Housing Rights and Evictions (COHRE) v. Sudan, Com Nos 279/03–
296/05, decision of 27 May 2009——558
– Centre for Minority Rights and Minority Rights Group International on Behalf of
Endorois Welfare Council v. Kenya, Com No 276/03, decision of 25 Nov
2009——559
– Civil Liberties Organisation v. Nigeria, Com No 101/93, decision of 22 Mar
1995——559
– Commission Nationale des Droits l’Homme et des Libertés v. Chad, Com No 74/
92, decision of 11 Oct 1995——321
– Egyptian Initiative for Personal Rights & INTERIGHTS v. Egypt, Com No 323/
06, decision of 12 Dec 2011——317, 320–325, 332, 335, 336
– Free Legal Assistance Group and Others v. Zaire, Com Nos 25/89, 47/90, 56/91
and 100/93, decision of 4 Apr 1996——558, 559
– Gabriel Shumba v. Zimbabwe, Com No 288/04, decision of 2 May 2012——322,
323
– Ghazi Suleiman v. Sudan, App No 228/1999, judgment on the merits of 29 May
2003——552
– Institute for Human Rights and Development in Africa (on behalf of Esmaila
Connateh & 13 others) v. Angola, Com No 292/04, decision of 22 May 2008——
303, 320
– Kazeem Aminu v. Nigeria, Com No 205/97, decision of 11 May 2000——559
– Kenneth Good v. Botswana, Com No 313/05, decision of 26 May 2010——25
616 Table of Cases
– Kevin Mgwanga Gunme et al. v. Cameroon, Com No 266/03, decision of 27 May

2009——323
– Malawi African Association and Others v. Mauritania, Com Nos 54/91, 61/91,
96/93, 98/93, 164/97–197/97 and 210/98, decision of 11 May 2000——328
– Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and
OMCT) v. Sudan, Com No 379/09, decision of 10 Mar 2015——320, 329
– Mouvement ivoirien des droits humains (MIDH) v. Côte d’Ivoire, Com No 246/
02, decision of 29 July 2008——326
– Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum)
v. Zimbabwe, Com No 340/07, decision of 4 June 2014——327
– Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi v.
Zimbabwe, Com No 295/04, decision of 12 Oct 2013——320, 322, 326, 327
– Purohit and Moore v. Gambia, Com No 241/01, decision of 29 May 2003——
559
– Sir Dawda K. Jawara v. Gambia, Com Nos 147/95–149/96, decision of 11 May
2000——320, 559
– Social and Economic Rights Action Center (SERAC) and Center for Economic
and Social Rights (CESR) v. Nigeria, Com No 155/96, decision of 27 Oct
2001——317, 318, 321, 558
– Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, Com No
338/07, decision of 21 Nov 2010——327
– Sudan Human Rights Organisation & Centre on Housing Rights v. Sudan, Com
Nos 279/03–296/05, decision of 27 May 2009——318, 322, 325, 333, 335
– World Organization against Torture and International Association of Demo-
cratic Lawyers, International Commission of Jurists, Inter-African Union for
Human Rights v. Rwanda, Com Nos 27/89, 46/91, 49/91, 99/93, decision of
31 Oct 1996——25
– Zimbabwe Human Rights NGO Forum v. Zimbabwe, Com No 245/02, decision of
15 May 2006——316, 317, 321, 322, 325, 328, 332, 335
– Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development in Africa v. Zimbabwe, Com No 293/04, decision of 22 May
2008——320
African Court on Human and Peoples’ Rights
– Actions pour la Protection des Droits de l’Homme (APDH) v. Republic of Cote

d’Ivoire, App No 001/2014, judgment on the merits of 18 Nov 2016——319,
333, 338, 339
– African Commission on Human and Peoples’ Rights v. Libya, App No 002/2013,
judgment on the merits of 3 June 2016——319, 334, 338, 340
– Mohamed Abubakari v. United Republic of Tanzania, App No 007/2013, judg-
ment on the merits of 3 June 2016——15, 330, 331, 338, 340
– African Commission on Human and Peoples’ Rights v. Republic of Kenya, App
No 006/2012, judgment of 26 May 2017——14
Table of Cases 617
– Alex Thomas v. United Republic of Tanzania, App No 005/2013, judgment on the

merits of 20 Nov 2015——318–320, 337
– Ally Rajabu and Others v. United Republic of Tanzania, App No 007/2015, order
for provisional measures of 18 Mar 2016——333
– Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest
Zongo and Blaise Ilboudo & the Burkinabe Human and Peoples’ Rights Move-
ment v. Burkina Faso, App No 013/2011, judgment on the merits of 28 Mar
2014——15, 57, 318, 320, 329–332, 337
– Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest
Zongo and Blaise Ilboudo & the Burkinabe Human and Peoples’ Rights Move-
ment v. Burkina Faso, App No 013/2011, ruling on reparations of 5 June
2015——333, 334
– Ingabire Victoire Umuhoza v. Republic of Rwanda, App No 003/2014, corrigen-
dum to ruling on withdrawal of declaration of 05 Sept 2016——315
– Tanganyika Law Society and Human Rights Centre v. United Republic of
Tanzania, App No 009/2011, judgment on the merits of 14 June 2013——57, 333,
337
– Lohé Issa Konaté v. Burkina Faso, App No 004/2013, judgment on the merits of
5 Dec 2014——333, 337
– Peter Joseph Chacha v. The United Republic of Tanzania, App No 003/2012,
ruling of 28 Mar 2014——340
East African Court of Justice
– Attorney General of Kenya vs Independent Medical Legal Unit, App No 2 of

2012, decision of 1 Mar 2013——229, 239, 240
– Attorney General of Kenya vs Nyong’o, App No 5 of 2007, decision of 6 Feb
2007——237, 560
– Attorney General of Rwanda vs Plaxeda Rugumba, App No 8 of 2010, decision
of 5 May 2013——228, 239, 244, 245, 252
– Attorney General of Rwanda vs Plaxeda Rugumba, App No 1 of 2012, decision
of 21 June 2012——233
– Attorney General of Uganda vs Omar Awadh and 6 others, App No 1 of 2012,
decision of 27 June 2012——245, 248
– Democratic Party vs The Secretary General of the East African Community and 4
others, Ref No 2 of 2012, decision of 29 Nov 2013——228, 229
– Democratic Party vs The Secretary General of the East African Community and 4
others, App No 1 of 2014, decision of 28 July 2015——229, 240, 249
– East African Law Society and 4 others vs The Attorney General of the Republic of
Kenya and 3 others, Ref No 3 of 2007, decision of 31 Aug 2008——559
– Emmanuel Mwakisha Mjawasi and 748 others vs Attorney General of Kenya, Ref
No 2 of 2010, decision of 28 Sep 2011——239, 559
– Independent Medical Unit vs The Attorney General of Kenya and 4 others, Ref
No 3 of 2010, decision of 29 June 2011——238
618 Table of Cases
– James Katabazi and 21 others vs Secretary General of the East African Commu-
nity and Attorney General of the Republic of Uganda, Ref No 1 of 2007, decision
of 31 Oct 2007——228
– Mary Ariviza & Okoth Mondoh vs Attorney General of Kenya, Ref No 7 of 2010,
decision of 1 Dec 2010——559
– Prof. Peter Anyang’ Nyong’o and 10 others vs Attorney General of Kenya and
5 others, Ref No 1 of 2006, decision of 27 Nov 2006——228, 559
– Samuel Mukira Mohochi vs Attorney General of the Republic of Uganda, Ref No
5 of 2011, decision of 17 May 2013——240, 244, 248, 252
ECOWAS Court
– Alhaji Hammani Tidjani v. Federal Republic of Nigeria & 4 Others, Case No

ECW/CCJ/APP/01/06, judgment of 28 June 2007——231
– Chief Ebrima Manneh v. Republic of the Gambia, Case No ECW/CCJ/APP/04/
07, judgment of 5 June 2008——231
– Chude Mba v. Republic of Ghana, Case No ECW/CCJ/APP/01/13, judgment of 6
Nov 2013——242
– Dame Hadijatou Mani Koraou v. Republic of Niger, Case No ECW/CCJ/APP/08/
07, judgment of 27 Oct 2008——231, 232, 246, 250–252
– Djelou Agbelengo Kodjovi & 2 Others v. Republic of Togo, Case No ECW/CCJ/
APP/18/13, judgment of 6 Oct 2015——250, 251
– Femi Falana & Another v. Republic of Benin & 2 Others, Case No ECW/CCJ/
APP/10/07, judgment of 24 Jan 2012——246
– Hans Capehart Williams (Senior) & Another v. Republic of Liberia & Others,
Case No ECW/CCJ/APP/06/14, judgment of 30 Nov 2015——250
– Hon. Dr. Jerry Ugokwe v. Federal Republic of Nigeria, Case No ECW/CCJ/APP/
02/05, judgment of 7 Oct 2005——230, 241, 242, 249
– Kemi Pinheiro (San) v. Republic of Ghana, Case No ECW/CCJ/APP/07/10,
judgment of 6 July 2012——242, 246
– Moussa Leo Keita v. Republic of Mali, Case No ECW/CCJ/APP/05/06, judgment
of 22 Mar 2007——250
– Olajide Afolabi v. Federal Republic of Nigeria, Case No ECW/CCJ/APP/01/03,
judgment of 27 Apr 2004——235
– Prof. Etim Moses Essien v. Republic of Gambia & Another, Case No ECW/CCJ/
APP/05/05, ruling of 14 Mar 2007——231, 242, 250, 251
– Registered Trustees of the Socio-Economic Rights & Accountability Project
(SERAP) v. President of the Federal Republic of Nigeria & Another, Case No
ECW/CCJ/APP/08/09, ruling of 10 Dec 2010——242
– Registered Trustees of the Socio-Economic Rights & Accountability Project
(SERAP) v. President of the Federal Republic of Nigeria and Another, Case No
ECW/CCJ/APP/12/07, judgment of 30 Nov 2010——247
– Sikiru Alade v. Federal Republic of Nigeria, Case No ECW/CCJ/APP/05/11,
judgment of 11 June 2012——250, 253
Table of Cases 619
– The Incorporated Trustees of Fiscal and Civil Rights Enlightenment Foundation

v. Government of the Federal Republic of Nigeria et al., Case No ECW/CCJ/
APP/02/14, judgment of 7 June 2016——247, 250, 251
The Americas
Caribbean Court of Justice
– Johnson v CARICAD, App No AR2 of 2008, judgment of 2 Mar 2009——207
Inter-American Commission on Human Rights
– Argentina, Cases No 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Rep No
28/92, 02 Oct 1992——393
– Chaparro Álvarez and Lapo Íñiguez v Ecuador, Series C, No 170, 21 Nov
2007——29
– Maria da Penha Maia Fernandes v Brasil, Case No 12.051, Rep No 54/01,
16 Apr 2001——57, 418
– Povo Indígena Xucuru v Brazil, Case No 12.728, Rep No 44/15, 28 July
2015——419
– Rosendo Radilla Pacheco v Mexico, Petition No 777/01, Rep No 65/05, 12 Oct
2005——400, 401
– Uruguay, Cases No 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and
10.375, Rep No 29/92, 2 Oct 1992——393
– Vladimir Herzog and others v Brazil, Case No 12.879, Rep No 71/15, 28 Oct
2015——419
Inter-American Court of Human Rights
– Almonacid-Arellano et al v. Chile, judgment of 26 Sept 2006, Series C No

154——13, 61, 62, 301, 306, 350, 392, 398
– Anzualdo-Castro v. Peru, judgment of 22 Sept 2009, Series C No 202——299
– Arguelles et al v. Argentina, judgment of 20 Nov 2014, Series C No 288——293
– Artavia Murillo et al. v. Costa Rica, judgment of 28 Nov 2012, Series C No
257——352, 371
– Baena Ricardo et al v. Panama, judgment of 28 Nov 2003, Series C No 104——
351, 352
– Bámaca Velásquez v. Guatemala, judgment of 25 Nov 2000, Series C No 70——
299
620 Table of Cases
– Barrios Altos v. Peru, judgment of 14 Mar 2001, Series C No 75——62, 74, 301,
393, 398
– Barrios Altos v. Peru, judgment of 3 Sept 2001, Series C No 83——302
– Berenson-Mejía v. Peru, judgment of 25 Nov 2004, Series C No 119——62, 303
– Caballero-Delgado and Santana v. Colombia, judgment of 8 Dec 1995, Series C
No 22——298
– Cabrera García and Montiel Flores v. Mexico, judgment of 26 Nov 2010, Series
C No 220——61, 86, 301, 309, 371, 408
– Cantoral Benavides v. Peru, judgment of 3 Dec 2001, Series C No 88——28
– Caracazo v. Venezuela, judgment of 29 Aug 2002, Series C No 95——111
– Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism (Arts. 13 and 29 American Convention on Human Rights), advisory
opinion OC-8/85 of 13 Nov 1985, Series A No 5——7, 420
– El Amparo v. Venezuela, order of 4 July 2006, Series C No 28——351
– Enforceability of the Right to Reply or Correction (Arts. 14(1), 1(1) and 2
American Convention on Human Rights, advisory opinion OC-7/85 of 29 Aug
1986, Series No A No 7——394
– Escher and others v. Brazil, judgment of 6 July 2009, Series C No 200——419
– Favela Nova Brasília v. Brasil, judgment of 16 Feb 2017, Series C No 333——
419
– Fernandez Ortega et al. v. Mexico, judgment of 30 Aug 2010, Series C No
215——301
– Gelman v. Uruguay, judgment of 24 Feb 2011, Series C No 221——306
– GondÍnez-Cruz v. Honduras, judgment of 20 Jan 1989, Series C No 5——435
– Gomes Lund v. Brazil, judgment of 24 Nov 2010, Series C 219——77, 306–308,
398, 419
– Gomes Lund et al. v. Brazil, order of 17 Oct 2014 Series C No 219——308
– González et al. v. Mexico, judgment of 16 Nov 2009, Series C No 205——56, 63
– Gutiérrez Soler v. Colombia, judgment of 12 Sept 2005, Series C No 132——28
– Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, judgment of
21 June 2002, Series C No 94——69, 111
– Indigenous Community Yakye Axa v. Paraguay, judgment of 17 June 2005, Series
C No 125——69
– Interpretation of the American Declaration of the Rights and Duties of Man
within the Framework of Article 64 of the American Convention on Human
Rights, advisory opinion OC-10/89 of 14 July 1989, Series A 10——67
– La Cantuta v. Peru, judgment of 29 Nov 2006, Series C No 162——303–305
– Loayza-Tamayo v. Peru, judgment of 17 Sept 1997, Series C No 33——62
– López-Álvarez v. Honduras, judgment of 1 Feb 2006, Series C No 141——14
– Mapiripán Massacre v. Colombia, judgment of 15 Sept 2005, Series C No
122——55
– Massacres of El Mozote and nearby places v. El Salvador, judgment of 25 Oct
2012, Series C No 252——306
– Miguel Castro – Castro Prison v. Peru, judgment of 25 Nov 2006, Series C No
160——14, 56
Table of Cases 621
– Olmedo Bustos v. Chile, judgment of 5 Feb 2001, Series C No 73——61

– Pueblo Bello Massacre v. Colombia, judgment of 31 Jan 2006, Series C No
140——301
– Radilla Pacheco v. Mexico, judgment of 23 Nov 2009, Series C No 209——86,
301, 350, 400
– Rochela Massacre v. Colombia, judgment of 11 May 2007, Series C No 163——
301
– Rosendo-Cantú and et al. v. Mexico, judgment of 31 Aug 2010, Series C No
216——301
– The Right to Information on Consular Assistance in the Framework of the
Guarantees of the due Process of Law, advisory opinion OC-16/99 of 1 Oct
1999, Series A No 16——107–109, 114, 351, 353
– Ticona Estrada et al. v Bolivia, judgment of 27 Nov 2008, Series C No 191——
299
– Tiu Tojín v. Guatemala, judgment of 26 Nov 2008, Series C No 190——301
– Trabalhadores da Fazenda Brazil Verde v. Brasil, judgment of 20 Oct 2016,
Series C No 318——419
– Trujillo Oroza v. Bolivia, judgment of 27 Feb 2002, Series C No 92——61
– Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Series C No 4——
14, 260, 295–298, 321, 322, 334, 393, 435
– Velasquez Rodriguez v. Honduras, judgment of 21 July 1989, Series C No 7——
56
– Ximenes Lopes v. Brazil, judgment of 4 July 2006, Series C No 149——419
MERCOSUR (Ad hoc) Tribunals
– Aplicación de Medidas Antidumping contra la Explotación de Pollos Enteros,

Provenientes de Brasil, Resolución Nº574/2000 del Ministerio de Economía de la
República Argentina (Brasil v. Argentina), Decision IV of 21 May 2001——209
– Aplicación de Medidas de Salvaguardia sobre Productos Textiles (Res. 861/99)
del Ministerio de Economía y Obras y Servicios Públicos (Brasil v. Argentina),
Decision III of 10 Mar 2003——209
– Aplicación del “IMESI” (Impuesto Específico Interno) a la Comercialización de
Cigarrillos (Paraguay v. Uruguay), Decision VIII of 21 May 2002——209
– Controversia sobre Comunicados Nº 37 del 17 de diciembre de 1997 y Nº 7 del
20 de febrero de 1998 del Departamento de Operaciones de Comercio Exterior
(DECEX) de la Secretaría de Comercio Exterior (SECEX): Aplicación de
Medidas Restrictivas al Comercio Recíproco (Argentina v. Brasil), Decision I
of 28 Apr 1999——209
– Controversia sobre Medidas Discriminatorias y Restrictivas al Comercio de
Tabáco y Productos Derivados del Tabáco (Uruguay v. Brasil), Decision X of
05 Aug 2005——209
622 Table of Cases
– Incompatibilidad del Régimen de Estímulo a la Industrialización de Lana

Otorgado por Uruguay y Establecido por la Ley No 13.695/68 y Decretos
Complementarios con la Normativa MERCOSUR que Regula la Aplicación y
Utilización de Incentivos en el Comercio Intrazona (Argentina v. Uruguay),
Decision IX of 4 Apr 2003——209
– Obstáculos al Ingreso de Productos Fitosanitarios Argentinos en el Mercado
Brasileño (Argentina v. Brasil), Decision VII of 19 Apr 2002——209
– Omisión del Estado Argentino en adoptar medidas apropiadas para prevenir y/o
hacer cesar los impedimentos a la libre circulación derivados de los cortes en
territorio argentino de vías de acceso a los puentes internacionales Gral. San
Martín y Gral. Artigas que unen la República Argentina con la República
Oriental del Uruguay (Uruguay v. Argentina), Decision XII of 6 Sept
2006——210–217
– Prohibición de Importación de Neumáticos Remoldeados (Remolded)
Procedentes de Uruguay (Uruguay v. Brasil), Decision VI, of 9 Jan 2002——
209
– Prohibición de Importación de Neumáticos Remoldeados (Uruguay v. Argentina),
Decision XI of 25 Oct 2005——210, 212
– Reclamación de la República Argentina al Brasil, sobre Subsidios a la
Producción y Exportación de Carne de Cerdo (Argentina v. Brasil), Decision
II of 27 Sept 1999——209
– Restricciones de Acceso al Mercado Argentino de Bicicletas de Origen Uruguayo
(Uruguay v. Argentina), Decision V of 29 Sept 2001——209
MERCOSUR Permanent Revision Tribunal
– Divergencia sobre el Cumplimiento del Laudo Nº 1/05 Iniciado por la República

Oriental del Uruguay (Art.30 Protocolo de Olivos) (Uruguay v. Argentina),
Decision No 1/2008, of 25 Apr 2008——210
– Frigorífico Centenário S.A. c/ Ministério de Economia e Finanças e outros.
Cobrança de pesos. IUE: 2-43923/2007, advisory opinion No. 01/2009——210
– Impedimentos a la Libre Circulación derivado de los Cortes en Territorio
Argentino de Vías de Acceso a los Puentes Internacionales Gral. San Martín y
Gral. Artigas (Argentina v. Uruguay), Decision No 2/2006, of 06 July 2006——
210, 213, 215
– Norte S.A. Imp. Exp. c/ Laboratórios Northia Sociedade Anônima, Comercial,
Industrial, Financeira, Imobiliária e Agropecuária s/ Indenização de Danos e
Prejuízos e Lucro Cessante, advisory opinion No. 1/2007——210, 215
– Procedimiento Excepcional de Urgencia solicitado por la República del Paraguay
en relación con la suspensión de su participación en los Órganos del
Mercado Común del Sur (MERCOSUR) y la incorporación de Venezuela como
Miembro Pleno (Paraguay v. Argentina and others), Decision No 01/2012, of 21
July 2012——210
Table of Cases 623
– Prohibición de Importación de Neumáticos Remoldeados Procedentes del Uruguay

(Uruguay v. Argentina), Decision No 01/2006, Declaratory Appeal (Laudo
Complementario)——210
– Sucesión Carlos Schnek y otros c/Ministerio de Economía y Finanzas y otros.
Cobro de pesos, advisory opinion No. 01/2008——210
Europe
European Commission on Human Rights
– Austria v. Italy, App No 788/60, decision of 11 Jan 1961——122

– Confédération Française Démocratique du Travail v. EC, App No 8030/77,
decision of 10 July 1978——185
– Lupsa v. Romania, App No 10337/04, decision of 8 June 2006——29
– Melchers & Co v. Germany, App No 13258/87, decision of 9 Feb 1990——185
– Procola et al. v. Luxembourg, App No 14570/89, decision of 1 July 1993——
185
– Tauira et al. v. France, App No 28204/95, decision of 4 Dec 1995——130
European Court of Human Rights
– A.D.T. v. United Kingdom, App No 35765/97, judgment of 31 July 2000——284

– Aćimović v. Croatia, App No 61237/00, judgment of 9 Oct 2003——567
– Airey v. Ireland, App No 6289/73, judgment of 9 Oct 1979——567
– Akgöl and Göl v. Turkey, App Nos 28495/06 and 28516/06, judgment of 17 May
2011——284
– Al-Adsani v. United Kingdom, App No 35763/97, judgment of 21 Nov 2001——
25, 461, 568, 584
– Al-Dulimi v. Switzerland, App No 5809/08, judgment of 21 June 2016——186
– Alenka Pečnik v. Slovenia, App No 44901/05, judgment of 27 Sept 2012——
569, 584
– Al-Jedda v. United Kingdom, App No 27021/08, judgment of 7 July 2011——28,
40, 186
– Al-Khawaja and Tahery v. United Kingdom, App No 26766/05, judgment of
15 Dec 2011——365
– Al-Skeini et al. v. United Kingdom, App No 55721/07, judgment of 7 July
2011——40
– Altuğ Taner Akçam v. Turkey, App No 27520/07, judgment of 25 Oct 2011——
284
– Ananyev et al. v. Russia, App No 42525/07, judgment of 10 Jan 2012——61
624 Table of Cases
– Assanidze v. Georgia, App No 71503/01, judgment of 8 Apr 2004——59, 348,

458
– Assenov and Others v. Bulgaria, App No 24760/94, judgment of 28 Oct
1998——324
– Association Ekin v. France, App No 39288/98, judgment of 17 July 2001——
577
– Avşar v. Turkey, App No 25657/94, judgment of 10 July 2001——580
– Axel Springer AG v. Germany, App No 39954/08, judgment of 7 Feb 2012——
183
– Baäcklund v. Finland, App No 36498/05, judgment of 6 July 2010——442
– Banković et al. v. Belgium et al., App No 52207/99, judgment of 12 Dec
2001——40
– Behrami and Behrami v. France; Behrami and Saramati v. France, Germany and
Norway, App Nos 71412/01 and 78166/01, judgment of 2 May 2007——40, 187
– Boivin v. 34 member States of the Council of Europe, App No 73250/01,
judgment of 9 Sept 2008——186
– Bosphorus v. Ireland, App No 45036/98, judgment of 30 June 2005——68, 186,
190, 283
– Branko Tomašić and Others v. Croatia, App No 46598/06, judgment of 15 Jan
2009——284
– Broniowski v. Poland, App No 31443/96, judgment of 22 June 2004——60
– Burdov v. Russia (No. 2), App No 33509/04, judgment of 15 Jan 2009——56
– Butolen v. Slovenia, App No 41356/08, judgment of 26 Apr 2012——581
– C.A.S. and C.S. v. Romania, App No 26692/05, judgment of 20 Mar 2012——
285
– C.N. and V. v. France, App No 67724/09, judgment of 11 Oct 2012——284
– C.N. v. United Kingdom, App No 4239/08, judgment of 13 Nov 2012——321
– Calvelli and Ciglio v. Italy, App No 32967/96, judgment of 17 Jan 2002——284
– Cantoni v. France, App No 17862/91, judgment of 11 Nov 1996——185
– Catan and Others v. Moldova and Russia, App Nos 43370/04, 8252/05 and
18454/06, judgment of 19 Oct 2012——121
– Cestaro v. Italy, App No 6884/11, judgment of 7 Apr 2015——500
– Ciliz v. The Netherlands, App No 29192/95, judgment of 11 July 2000——446
– Ciulla v. Italy, App No 11152/84, judgment of 22 Feb 1989——498
– Colas Est v. France, App No 37971/97, judgment of 16 Apr 2002——175
– Connolly v. 15 Member States of the EU Application, App No 73274/01, judg-
ment of 9 Dec 2008——186
– Cooper v. United Kingdom, App No 48843/99, judgment of 16 Dec 2003——
365
– Cruz Varas and others v. Sweden, App No 15576/89, judgment of 20 Mar
1991——39
– Cudak v. Lithuania, App No 15869/02, judgment of 23 Mar 2010——461
– Cyprus v. Turkey (just satisfaction), App No 25781/94, judgment of 12 May
2014——119, 123, 124
– Dahlab v. Switzerland, App No 42393/98, judgment of 15 Feb 2001——83
Table of Cases 625
– Darraj v. France, App No 34588/07, judgment of 4 Nov 2010——285

– De Haes and Gijsels v. Belgium, App No 19983/92, judgment of 24 Feb
1997——577, 578
– Deweer v. Belgium, App No 6903/75, judgment of 27 Feb 1980——435
– Dodov v. Bulgaria, App No 59548/00, judgment of 17 Jan 2008——284
– Dogru v. France, App No 27058/05, judgment of 4 Dec 2008——81, 469
– Dorigo v. Italy, App No 33286/96, judgment of 30 Jan 2007——502
– Drassich v. Italy, App No 25575/04, judgment of 11 Dec 2007——502
– Driza v. Albania, App No 33771/02, judgment of 13 Nov 2007——61
– Duclos v. France, App Nos 20940/92, 20941/92 and 20942/92, judgment of 17
Dec 1996——583
– Dudgeon v. United Kingdom, App No 7525/76, judgment of 22 Oct 1981——
284
– Dyundin v. Russia, App No 37406/03, judgment of 14 Oct 2008——579
– Éditions Plon v. France, App No 58148/00, judgment of 18 May 2004——577
– Emre v. Switzerland (No. 1), App No 42034/04, judgment of 22 May 2008——
289
– Emre v. Switzerland (No. 2), App No 5056/10, judgment of 11 Oct 2011——59,
288
– Fabris v. France, App No 16574/08, judgment of 7 Feb 2013——60
– Feldek v. Slovakia, App No 2903/95, judgment of 12 July 2001——578
– Fogarty v. United Kingdom, App No 37112/97, judgment of 21 Nov 2001——
461, 568, 584
– Foulon and Bouvet v. France, App No 9063/14 an 10410/14, judgment of 21 July
2016——458
– Gaglione et al. v. Italy, App No 45867/07, judgment of 21 Dec 2010——498
– Gatt v. Malta, App No 28221/08, judgment of 27 July 2010——575
– Giancarlo Lombardo v. Italy, App No 12490/86, judgment of 26 Nov 1992——
583
– Gillberg v. Sweden, App No 41723/06, judgment of 3 Apr 2012——284
– Görgülü v. Germany, App No 74969/01, judgment of 26 Feb 2004——183, 485,
490
– Grande Stevens v. Italy, App Nos 18640/10, 18647/10 and 18663/10, judgment
of 4 Mar 2014——468
– Greens and M.T. v. United Kingdom, App Nos 60041/08 and 60054/08, judg-
ment of 23 Nov 2010——61
– Guerra et al. v. Italy, App No 14967/89, judgment of 19 Feb 1998——185
– Guzzardi v. Italy, App No 7367/76, judgment of 6 Nov 1980——498
– Handyside v. United Kingdom, App No 5493/72, judgement of 7 Dec 1976——
484
– Hirsi Jamaa and Others v. Italy, App No 27765/09, judgment of 23 Feb
2012——499
– Hirst v. United Kingdom (No. 2), App No 74025/01, judgment of 6 Oct 2005——
92, 365
626 Table of Cases
– Hit d.d. Nova Gorica v. Slovenia, App No 50996/08, judgment of 5 June

2014——571, 584
– İbrahim Demirtaş v. Turkey, App No 25018/10, judgment of 28 Oct 2014——56
– Ilașcu et al. v. Moldova and Russia, App No 48787/99, judgment of 8 July
2004——59, 121
– Immobiliare Saffi v. Italy, App No 22774/93, judgment of 28 July 1999——569
– Ireland v. United Kingdom, App No 5310/71, judgment of 18 Jan 1978——68,
281
– J.A. Pye (Oxford) Ltd. and J.A. Pye (Oxford) Land Ltd. v. United Kingdom, App
No 44302/02, judgment of 30 Aug 2007——560
– Jelševar and Others v. Slovenia, App No 47318/07, judgment of 11 Mar
2014——577
– Jerusalem v. Austria, App No 26958/95, judgment of 27 Feb 2001——578
– Jones et al. v. United Kingdom, App Nos 34356/06 and 40528/06, judgment of 14
Jan 2014——26, 70
– K.U. v. Finland, App No 2872/02, judgment of 2 Dec 2008——285
– Kalogeropoulou and others v. Greece and Germany, App No 59021/00, judg-
ment of 12 Dec 2002——26, 461, 568
– Karman v. Russia, App No 29372/02, judgment of 14 Dec 2006——578
– Karner v. Austria, App No 40016/98, judgment of 24 July 2003——68, 281, 282
– Khlaifia and Others v. Italy, App No 16483/12, judgment of 15 Dec 2016——
499
– Kobenter and Standard Verlags Gmbh v. Austria, App No 60899/00, judgment of
2 Nov 2006——577, 578
– Kokkelvisserij v. The Netherlands, App No 13645/05, judgment of 20 Jan
2009——186, 191
– Konstantin Markin v. Russia, App No 30078/06, judgment of 22 Mar 2012——
89, 367
– Konttinen v. Finland, App No 24949/94, judgment of 3 Dec 1996——560
– Kress v. France, App No 39594/98, judgment of 7 June 2001——464
– Kronfeldner v. Germany, App No 21906/09, judgment of 19 Jan 2012——492
– Kudła v. Poland, App No 30210/96, judgment of 26 Oct 2000——565, 582
– Kurić and Others v. Slovenia, App No 26828/06, judgment of 26 June 2012——
584, 585
– Kutić v. Croatia, App No 48778/99, judgment of 1 Mar 2002——567
– Labassee v. France, App No 65941/11, judgment of 26 June 2014——465
– Labita v. Italy, App No 26772/95, judgment of 6 Apr 2000——324
– Lehideux and Isorni v. France, App No 24662/94, judgment of 23 Sept 1998——
576
– Leyla Şahin v. Turkey, App No 44774/98, judgment of 29 June 2004——461
– Lingens v. Austria, App No 9815/82, judgment of 8 July 1986——578
– Loizidou v. Turkey, App No 15318/89, judgment of 23 Mar 1995——68, 283
– Lombardo and Others v. Malta, App No 7333/06, judgment of 24 Apr 2007——
578
– Lüdi v. Switzerland, App No 12433/86, judgment of 15 June 1992——572
Table of Cases 627
– Lukenda v. Slovenia, App No 23032/02, judgment of 6 Oct 2005——582

– M. v. Germany, App No 19359/04, judgment of 17 Dec 2009——183
– M.C. v. Bulgaria, App No 39272/98, judgment of 4 Dec 2003——284
– M.S.S. v. Belgium, App No 30696/09, judgment of 21 Jan 2011——190
– Maestri v. Italy, App No 39748/98, judgment of 17 Feb 2004——280
– Maiorano et al. v. Italy, App No 28634/06, judgment of 15 Dec 2009——284
– Mallah v. France, App No 29681/08, judgment of 10 Nov 2011——284
– Mamatkulov and Abdurasulovic v. Turkey, App Nos 46827/99 and 46951/99,
judgment of 6 Feb 2003——348
– Mamatkulov and Askarov v. Turkey, App Nos 46827/99 and 46951/99, judgment
of 4 Feb 2005——39, 42, 85, 139, 167
– Marc-Antoine v. France, App No 54984/09, judgment of 4 June 2013——464
– Marckx v. Belgium, App No 6833/74, judgment of 13 June 1979——59, 281
– Maria Atanasiu et al. v Romania, App Nos 30767/05 and 33800/06, judgment of
12 Oct 2010——61
– Martinie v. France, App No 58675/00, judgment of 12 Apr 2006——464
– Matko v. Slovenia, App No 43393/98, judgment of 2 Nov 2006——581
– Matthews v. United Kingdom, App No 24833/94, judgment of 18 Feb 1999——
185
– McElhinney v. Ireland, App No 31253/96, judgment of 21 Nov 2001——461,
568
– McFarlane v. Ireland, App No 31333/06, judgment of 10 Sept 2010——435
– Mennesson v. France, App No 65192/11, judgment of 26 June 2014——465
– Michaud v. France, App No 12323/11, judgment of 6 Dec 2012——186
– Mladina d.d. Ljubljana v. Slovenia, App No 20981/10, judgment of 17 Apr
2014——578
– Mocanu and others v. Romania, App Nos 10865/09, 45886/07 and 32431/08,
judgment of 17 Sept 2014——14, 58, 284
– Modinos v. Cyprus, App No 15070/89, judgment of 22 Apr 1993——284
– Morris v. United Kingdom, App No 38784/97, judgment of 26 Feb 2002——365
– Mosley v. United Kingdom, App No 48009/08, judgment of 10 May 2011——
284
– Nasr and Ghali v. Italy, App No 44883/09, judgment of 23 Feb 2016——500
– Neumeister v. Austria, App No 1936/63, judgment of 27 June 1968——435
– Nideröst-Huber v. Switzerland, App No 18990/91, judgment of 18 Feb 1997——
567
– Niemietz v. Germany, App No 13710/88, judgment of 16 Dec 1992——175
– Nikula v. Finland, App No 31611/96, judgment of 21 Mar 2002——574
– Nilsen and Johnsen v. Norway, App No 23118/93, judgment of 25 Nov
1999——578
– Norris v. Ireland, App No 10581/83, judgment of 26 Oct 1988——284
– Öcalan v. Turkey, App No 46221/99, judgment of 12 May 2005——435
– Okkalı v. Turkey, App No 52067/99, judgment of 17 Oct 2006——285
– Olivieri et al. v. Italy, App No 17708/12, judgment of 25 Feb 2016——501
628 Table of Cases
– Olsson v. Sweden (No. 2), App No 13441/87, judgment of 27 Nov 1992——59,

285
– Osman v. United Kingdom, App No 23452/94, judgment of 28 Oct 1998——56
– Othman (Abu Qatada) v. United Kingdom, App No 8139/09, judgment of 17 Jan
2012——92
– Pammel v. Germany, App No 17820/91, judgment of 1 July 1997——583
– Papamichalopoulos and Others v. Greece, App No 14556/89, judgment of
31 Oct 1995——59, 111
– Peruš v. Slovenia, App No 35016/05, judgment of 27 Sept 2012——570, 584,
585
– Prager and Oberschlick v. Austria, App No 15974/90, judgment of 26 Apr
1995——574
– Putz v. Austria, App No 18892/91, judgment of 22 Feb 1996——570, 574
– Ramirez Sanchez v. France, App No 59450/00, judgment of 4 July 2006——56
– Rantsev v. Cyprus and Russia, App No 25965/04, judgment of 7 Jan 2010——
284, 348
– Ravnsborg v. Sweden, App No 14220/88, judgment of 23 Mar 1994——570, 574
– Rehbock v. Slovenia, App No 29462/95, judgment of 28 Nov 2000——580, 581
– Ribitsch v. Austria, App No 18896/91, judgment of 4 Dec 1995——580
– Rodrigues Da Silva and Hoogkamer v. The Netherlands, App No 50435/99,
judgment of 31 Jan 2006——60
– Roux v. France, App No 16022/02, judgment of 25 Apr 2006——465
– Rumpf v. Germany, App No 46344/06, judgment of 2 Sept 2010——349
– S. and Marper v. United Kingdom, App Nos 30562/04 and 30566/04, judgment
of 4 Dec 2008——576
– S.L. v. Austria, App No 45330/99, judgment of 9 Jan 2003——284
– Saadi v. Italy, App No 37201/06, judgment of 28 Feb 2008——85
– Sabeh El Leil v. France, App No 34869/05, judgment of 29 June 2011——461
– Salman v. Turkey, App No 21986/93, judgment of 27 June 2000——324, 580
– Sandra Janković v. Croatia, App No 38478/05, judgment of 5 Mar 2009——284
– Saraiva de Carvalho v. Portugal, App No 15651/89, judgment of 22 Apr
1994——569
– Scharsach and News Verlagsgesellschaft mbH v. Austria, App No 39394/98,
judgment of 13 Nov 2003——578
– Schmidt v. Germany, App No 13580/88, judgment of 18 July 1994——184
– Schneider v. Germany, App No 17080/07, judgment of 15 Sept 2011——183
– Schöpfer v. Switzerland, App No 25405/94, judgment of 20 May 1998——574
– Scordino v. Italy (No. 1), App No 36813/97, judgment of 29 Mar 2006——498,
501, 505
– Scozzari and Giunta v. Italy, App Nos 39221/98 and 41963/98, judgment of
13 July 2000——59
– Sejdovic v. Italy, App No 56581/00, judgment of 1 Mar 2006——60
– Selmouni v. France, App No 25803/94, judgment of 28 July 1999——62, 580
– Sergey Zolotukhin v. Russia, App No 14939/03, judgment of 10 Feb 2009——
468
Table of Cases 629
– Sharifi and others v. Italy and Greece, App No 16643/09, judgment of 21 Oct
2014——499
– Siliadin v. France, App No 73316/01, judgment of 26 July 2005——284, 321
– Šoć v. Croatia, App No 47863/99, judgment of 9 May 2003——582
– Sommerfeld v. Germany, App No 31871/96, judgment of 8 July 2003——183
– Sørensen and Rasmussen v. Denmark, App Nos 52562/99 and 52620/99,
– Stoll v. Switzerland, App No 69698/01, judgment of 10 Dec 2007——284
– Stübing v. Germany, App No 43547/08, judgment of 12 Apr 2012——284
– Sud Fondi and Others v. Italy, App No 75909/01, judgment of 20 Jan 2009——
505
– Şükran Aydın and Others v. Turkey, App Nos 49197/06, 23196/07, 50242/08,
60912/08 and 14871/09, judgment of 22 Jan 2013——284
– Sunday Times v. United Kingdom (No. 1), App No 6538/74, judgment of 26 Apr
1979——574
– Sürek v. Turkey (No. 1), App No 26682/95, judgment of 8 July 1999——578
– Sürmeli v. Germany, App No 75529/01, judgment of 8 June 2006——183
– Süssmann v. Germany, App No 20024/92, judgment of 16 Sept 1996——583
– Švarc and Kavnik v. Slovenia, App No 75617/01, judgment of 8 Feb 2007——
571, 584
– T. v. Austria, App No 27783/95, judgment of 14 Nov 2000——574
– Talpis v. Italy, App No 41237/14, judgment of 2 Mar 2017——500
– Tarakhel v. Switzerland, App No 29217/12, judgment of 4 Nov 2014——187
– Taxquet v. Belgium, App No 926/05, judgment of 16 Nov 2010——464
– Thorgeir Thorgeirson v. Iceland, App No 13778/88, judgment of 25 June
1992——577
– Torreggiani and Others v. Italy, App Nos 43517/09, 35315/10, 37818/10, 46882/
09, 55400/09, 57875/09 and 61535/09, judgment of 8 Jan 2013——499
– Tyrer v. United Kingdom, App No 5856/72, judgment of 25 Apr 1978——55,
352, 565
– Tyrrell v. United Kingdom, App No 28188/95, judgment of 4 Sept 1996——575
– Union fédérale des consommateurs Que choisir de Côte d’Or v. France, App No
39699/03, judgment of 30 June 2009——464
– Vajnai v. Hungary, App No 33629/06, judgment 8 July 2008——246, 284
– Varnava and others v. Turkey, App Nos 16064/90, 16065/90, 16066/90, 16068/
90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, judgment of 18 Sept
2002——39
– Vereinigung Bildender Künstler v. Austria, App No 68354/01, judgment of
25 Jan 2007——577
– Vergauwen and others v. Belgium, App No 4832/04, judgment of 10 Apr
2012——186
– Vermeire v. Belgium, App No 12849/87, judgment of 29 Nov 1991——59, 280,
285
– VgT Verein gegen Tierfabriken v. Switzerland (No. 1), App No 24699/94,
judgment of 28 June 2001——288
630 Table of Cases
– VgT Verein gegen Tierfabriken v. Switzerland (No. 2), App No 32772/02,

judgment of 30 June 2009——58, 69, 288
– Vo v. France, App No 53924/00, judgment of 8 July 2004——284, 348
– Volkov (Oleksandr) v. Ukraine, App No 21722/11, judgment of 9 Jan 2013——
59
– von Hannover v. Germany, App No 59320/00, judgment of 24 June 2004——
183, 484, 487
– von Hannover v. Germany (No. 2), App Nos 40660/08 and 60641/08, judgment
of 7 Feb 2012——492
– Waite and Kennedy v. Germany, App No 26083/94, judgment of 18 Feb
1999——465, 568
– Weber v. Switzerland, App No 11034/84, judgment of 22 May 1990——574
– Wemhoff v. Germany, App No 2122/64, judgment of 27 June 1968——286
– Wille v. Liechtenstein, App No 28396/95, judgment of 28 Oct 1999——60
– Winterwerp v. The Netherlands, App No 6301/73, judgment of 24 Oct 1979——
573
– Wizerkaniuk v. Poland, App No 18990/05, judgment of 5 July 2011——284
– Worm v. Austria, App No 22714/93, judgment of 29 Aug 1997——574
– X and Y v. The Netherlands, App No 8978/80, judgment 26 Mar 1985——284
– Yukos Shareholders v. Russia, App No 14902/04, judgment of 31 July 2014——
89
– Yvon v. France, App No 44962/98, judgment of 24 Apr 2003——465
European Court of Justice
– Abdida, Case No C-562/13, judgment of 18 Dec 2014, ECLI:EU:

C:2014:2453——178
– Abdullahi, Case No C-394/12, judgment of 10 Dec 2013, ECLI:EU:
C:2013:813——187
– Accord EEE – I, Opinion No 1/91, opinion of 14 Dec 1991, [1991] ECR
I-6079——192
– Accord sur la création d’un espace aérien européen commun, Opinion No 1/00,
opinion of 18 Apr 2002, [2002] ECR I-3493——192
– Accord sur la création d’un système unifié de règlement des litiges en matière de
brevets, Opinion No 1/09, opinion of 8 Mar 2011, [2011] ECR I-1137——192
– Adhésion de l’Union à la CEDH, Opinion No 2/13, opinion of 18 Dec 2014,
ECLI:EU:C:2014:2454——191, 192, 361
– Adhésion de la Communauté à la CEDH, Opinion No 2/94, opinion of 28 Mar
1996, [1996] ECR I-1759——192
– Advocaten voor de Wereld, Case No C-303/05, judgment of 3 May 2007, [2007]
ECR I-3633——176
– Agrokonsulting-04, Case No C-93/12, judgment of 27 June 2013, ECLI:EU:
C:2013:432——177
Table of Cases 631
– Air Transport Association of America and Others, Case No C-366/10, judgment

of 21 Dec 2011, [2011] ECR I-13755——189
– Åkerberg Fransson, Case No C-617/10, judgment of 7 May 2013, ECLI:EU:
C:2013:105——180
– Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio,
Case No C-309/96, judgment of 18 Dec 1997, [1997] ECR I-7493——179, 180
– Aranyosi and Căldăraru, Case No C-404/15 and C-659/15 PPU, judgment of
5 Apr 2016 ECLI:EU:C:2016:198——181
– Association Belge des Consommateurs Test-Achats and Others, Case No C-236/
09, judgment of 1 Mar 2011, [2011] ECR I-773——178
– Bressol and Others, Case No C-73/08, judgment of 13 Apr 2010, [2010] ECR
I-2735——194
– Bruno and Others, Cases No C-395/08 and C-396/08, judgment of 10 June 2010,
[2010] ECR I-5119——194
– C.K. and Others, Case No C-578/16 PPU, judgment of 16 Feb 2017, ECLI:EU:
C:2017:127——181
– CHEZ Razpredelenie Bulgaria, Case No C-83/14, judgment of 16 July 2015,
ECLI:EU:C:2015:480——179
– Commission and Others v Kadi, Cases No C-584/10 P, C-593/10 P and C-595/10
P, judgment of 18 July 2013, ECLI:EU:C:2013:518——178, 187, 489
– Commission v Austria, Case No C-203/03, judgment of 1 Feb 2005, [2005] ECR
I-935——194
– Commission v France, Case No C-265/95, judgment of 9 Dec 1997, [1997] ECR
I-6959——212
– Commission v Germany, Case No C-271/08, judgment of 15 July 2010, [2010]
ECR I-7091——193
– Commission v Ireland, Case No C-459/03, judgment of 30 May 2006, [2006]
ECR I-4635——192
– Commission v Italy, Case No C-207/96, judgment of 4 Dec 1997, [1997] ECR
I-6869——194
– Commission v SGL Carbon AG, Case No C-301/04 P, judgment of 29 June 2006,
[2006] ECR I-5915——175
– Connolly v Commission, Case No C-274/99 P, judgment of 6 Mar 2001, [2001]
ECR I-1611——175
– Costa v E.N.E.L., Case No 6/64, judgment of 15 July 1964, [1964] ECR
1141——173, 204
– Da Costa en Schaake NV and Others v Administratie der Belastingen, Cases No
28/62, 29/62 and 30/62, judgment of 27 Mar 1963, [1963] ECR 61——457
– Demirel v Stadt Schwäbisch Gmünd, Case No 12/86, judgment of 30 Sept 1987,
[1987] ECR 3719——190
– Deutsche Bahn and Others v Commission, Case No C-583/13 P, judgment of 18
June 2015, ECLI:EU:C:2015:404——178
– Digital Rights Ireland and Seitlinger and Others, Cases No C-293/12 and 594/12,
judgment of 8 Apr 2014, ECLI:EU:C:2014:238——178
632 Table of Cases
– Dior and Others, Cases No C-300/98 and C-392/98, judgment of 14 Dec 2000,
[2000] ECR I-11307——190
– Dow Chemical Ibérica and Others v Commission, Cases No 97/87, 98/87 and 99/
87, judgment of 17 Oct 1989, [1989] ECR 3165——462
– Dynamic Medien, Case No C-244/06, judgment of 14 Feb 2008, [2008] ECR
I-505——194
– Dzodzi v Belgian State, Cases No C-297/88 and C-197/89, judgment of 18 Oct
1990, [1990] ECR I-3763——193
– ERT v DEP, Case No C-260/89, judgment of 18 June 1991, [1991] ECR
I-2925——176
– FOA, Case No C-354/13, judgment of 18 Dec 2014, ECLI:EU:C:2014:2463——
194
– Francovich and Bonifaci v Italy, Cases No C-6/90 and C-9/90, judgment of 19
Nov 1991, [1991] ECR I-5357——204
– Genc, Case No C-561/14, judgment of 12 Apr 2016, ECLI:EU:C:2016:247——
442
– Google Spain and Google, Case No C-131/12, judgment of 13 May 2014, ECLI:
EU:C:2014:317——178
– Grant v South-West Trains, Case No C-249/96, judgment of 17 Feb 1998, [1998]
ECR I-621——193
– Grzelczyk, Case No C-184/99, judgment of 20 Sept 2001, [2001] ECR
I-6193——196
– Hassan and Ayadi v Council and Commission, Cases No C-399/06 P and C-403/
06 P, judgment of 3 Dec 2009, [2009] ECR I-11393——178
– Hauer v Land Rheinland-Pfalz, Case No 44/79, judgment of 13 Dec 1979, [1979]
ECR 3727——175
– Hauptzollamt Mainz v Kupferberg & Cie., Case No 104/81, judgment of 26 Oct
1982, [1982] ECR 3641——190
– HK Danmark, Cases No C-335/11 and C-337/11, judgment of 11 Apr 2013,
ECLI:EU:C:2013:222——194
– Hoechst v Commission, Cases No 46/87 and 227/88, judgment of 21 Sept 1989,
[1989] ECR 2859——175
– Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel, Case No 11/70, judgment of 17 Dec 1970, [1970]
ECR 1125——173, 203
– Inuit Tapiriit Kanatami and Others v Parliament and Council, Case No C-583/11
P, judgment of 3 Oct 2013, ECLI:EU:C:2013:625——187
– Kadi and Al Barakaat International Foundation v Council and Commission,
Case No C-402/05 P and C-415/05 P, judgment of 3 Sept 2008, [2008] ECR
I-6351——178
– Kamberaj, Case No C-571/10, judgment of 24 Apr 2012, ECLI:EU:
C:2012:233——177
– Konstantinidis v Stadt Altensteig and Landratsamt Calw, Case No C-168/91,
judgment of 30 Mar 1993, [1993] ECR I-1191——196
Table of Cases 633
– Križan and Others, Case No C-416/10, judgment of 15 Jan 2013, ECLI:EU:

C:2013:8——173
– Laval un Partneri, Case No C-341/05, judgment of 18 Dec 2007, [2007] ECR
I-11767——193
– max.mobil v Commission, Case No T-54/99, judgment of 30 Jan 2002, [2002]
ECR II-313——176
– Melki and Abdeli, Cases No C-188/10 and C-189/10, judgment of 22 June 2010,
[2010] ECR I-5667——173
– Melloni, Case No C-399/11, judgment of 26 Feb 2013, ECLI:EU:
C:2013:107——180
– N. S. and Others, Cases No C-411/10 and C-493/10, judgment of 21 Dec 2011,
[2011] ECR I-13905——181
– Nimz v Freie und Hansestadt Hamburg, Case No C-184/89, judgment of 7 Feb
1991, [1991] ECR I-297——173
– Nold KG v Commission, Case No 4/73, judgment of 14 May 1974, [1974] ECR
491——175, 203
– Omega, Case No C-36/02, judgment of 14 Oct 2004, [2004] ECR I-9609——179
– Ordre des barreaux francophones and germanophone and Others, Case No
C-305/05, judgment of 26 June 2007, [2007] ECR I-5305——462
– Orkem v Commission, Case No 374/87, judgment of 18 Oct 1989, [1989] ECR
3283——175, 193
– Palacios de la Villa, Case No C-411/05, judgment of 16 Oct 2007, [2007] ECR
I-8531——462
– Parliament v Council, Case No C-540/03, judgment of 27 June 2006, [2006]
ECR I-5769——193, 194
– PPU - F., Case No C-168/13 PPU, judgment of 30 May 2013, ECLI:EU:
C:2013:358——180
– Prigge and Others, Case No C-447/09, judgment of 13 Sept 2011, [2011] ECR
I-8003——462
– Réexamen Commission v Strack, Case No C-579/12 RX-II, judgment of 19 Sept
2013, ECLI:EU:C:2013:570——194
– Rodríguez Caballero, Case No C-442/00, judgment of 12 Dec 2002, [2002] ECR
I-11915——179
– Roquette Frères, Case No C-94/00, judgment of 22 Oct 2002, [2002] ECR
I-9011——175
– Ruiz Zambrano, Case No C-34/09, judgment of 8 Mar 2011, [2011] ECR
I-1177——196
– Rutili v Ministre de l’intérieur, Case No 36/75, judgment of 28 Oct 1975, [1975]
ECR 1219——175
– Schmidberger, Case No C-112/00, judgment of 12 June 2003, [2003] ECR
I-5659——179, 213, 215
– Schrems, Case No C-362/14, judgment of 6 Oct 2015, ECLI:EU:
C:2015:650——178
634 Table of Cases
– Shepherd, Case No C-472/13, judgment of 26 Feb 2015, ECLI:EU:

C:2015:117——179
– Siragusa, Case No C-206/13, judgment of 6 Mar 2014, ECLI:EU:
C:2014:126——180
– Society for the Protection of Unborn Children Ireland v Grogan and Others,
Case C-159/90, judgment of 4 Oct 1991, [1991] ECR I-4685——179
– Stauder v Stadt Ulm, Case No 29/69, judgment of 12 Nov 1969, [1969] ECR
419——175
– Taricco and Others, Case No C-105/14, judgment of 8 Sept 2015, ECLI:EU:
C:2015:555——508
– The International Transport Workers’ Federation and The Finnish Seamen’s
Union, Case No C-438/05, judgment of 11 Dec 2007, [2007] ECR I-10779——193
– The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis
Clifford Bostock, Case No C-2/92, judgment of 24 Mar 1994, [1994] ECR
I-955——179
– Unectef v Heylens, Case No 222/86, judgment of 15 Oct 1987, [1987] ECR
4097——205
– Van Gend en Loos v Administratie der Belastingen, Case No 26/62, judgment of
5 Feb 1963, [1963] ECR 3——204
– Volker und Markus Schecke and Eifert, Cases No C-92/09 and C-93/09, judg-
ment of 9 Nov 2010, [2010] ECR I-11063——178
– Wachauf v Bundesamt für Ernährung und Forstwirtschaft, Case No 5/88, judg-
ment of 13 July 1989, [1989] ECR 2609——179
– Ymeraga and Ymeraga-Tafarshiku, Case No C-87/12, judgment of 8 May 2013,
ECLI:EU:C:2013:291——180
– Z., Case No C-363/12, judgment of 18 Mar 2014, ECLI:EU:C:2014:159——194
National Jurisdictions
Argentina
Corte Suprema de Justicia (Supreme Court)
– Acosta, Claudia Beatriz y otros, judgment of 22 Dec 1998, fallos 321:3555——

75
– Camps, Ramon Juan Alberto y otros, judgment of 22 June 1987, fallos
310:1162——397
– Cancela, judgment of 29 Sept 1998, fallos 321:2637——74
– Chocobar v Caja Nacional, judgment of 27 Dec 1996, fallos 319:3241——74
– Ekmekdjian, Miguel Ángel v Sofovich, Gerardo, judgment of 7 July 1992, fallos
315:1492——394
– Mazzeo, Julio Lilo y otros, judgment of 13 July 2007, Jur Arg 2007-III-573——74
Table of Cases 635
– Ministerio de Relaciones Exteriores y Culto v informe sentencia dictada en el

caso ‘Fontevecchia y D’Amico v Argentina’ por la Corte Interamericana de
Derechos Humanos, judgment of 14 Feb 2017, 368/1998 (34-M) /CS1——409
– Simón, Julio Héctor, Privación de la libertad y otros, judgment of 14 June 2005,
fallos 328:2056——74, 397, 398
Australia
High Court of Australia
– Commonwealth v Tasmania, judgment of 1 July 1983, (1983) 158 CLR 1——75

– Kioa v West, judgment of 18 Dec 1985, (1985) 550 CLR——75
– Mabo v Queensland (No 2), judgment of 3 June 1992, [1992] 175 CLR 1——75
Federal Court of Australia
– Toben v Jones, judgment of 27 June 2003, [2003] FCAFC 137——75
New South Wales Court of Appeals
– Zhang v Zemin, judgment of 5 Oct 2010, NSWCA 255——70
New South Wales Superannuation Complaints Tribunal
– Zhang v Zemin, judgment of 14 Nov 2008, 251 ALR 707——70
Austria
Verfassungsgerichtshof (Constitutional Court)
– Judgment of 14 Mar 2012, Case No U 466/11——174

– Judgment of 14 Oct 1987, Case No B 267/86——366
636 Table of Cases
Bangladesh
Supreme Court of Bangladesh
– Abdul Quader Molla vs Government of Bangladesh, judgment of 17 Sept 2013,

Crl. A. No 25——76
– Government of Bangladesh vs Sheikh Hasina et al, judgment of 5–6 Feb 2008,
V ADC (2008) 541——76
Belize
Supreme Court of Belize
– Aurelio Cal et al v Attorney General of Belize, judgment of 18 Oct 2007, ILM

2007, 1022–1049——354
Benin
Constitutional Court of Benin
– Taïrou v Tribunal de Kandi, Case No DCC 05-114, judgment of 20 Sept

2005——372
Botswana
Court of Appeal
– Attorney-General v Dow, Case No 4/91, judgment of 3 July 1992, AHRLR 2001,

99–137——373
Brazil
Supremo Tribunal Federal (Federal Supreme Court)
– ADPF 153, judgment of 28 Apr 2010——77

– RE 466343, judgment of 3 Dec 2008——76
– RE 511961, judgment of 13 Nov 2009——420
– RHC 79785 RJ, judgment of 15 Aug 2000——417
Table of Cases 637
Canada
Supreme Court of Canada
– Adler v. Ontario, judgment of 21 Nov 1996, 3 SCR 609——78

– Baker v. Canada (Minister of Citizenship and Immigration), judgment of 9 July
1999, 2 SCR 817——77
– Canadian Foundation for Children v. Canada (AG), judgment of 30 Jan 2004,
1 SCR 76——78
– Gosselin v. Quebec (AG), judgment of 19 Dec 2002, 4 SCR 429——483
– Ontario (Attorney General) v. Fraser, judgment of 29 Apr 2011, 2 SCR 3——77
– R v. Oakes, judgment of 28 Feb 1986, 1 SCR 103——483
Ontario Court of Appeals
– Bouzari v. Iran, judgment of 30 June 2004, 71 OR (3rd) 675——70

– Bouzari v. Iran, judgment of 1 May 2002, 124 ILR 427——70
Canadian Human Rights Tribunal
– Cruden v. Canadian International Development Agency and Health Canada,

decision of 23 Sept 2011, 2011 CHRT 13——380
– Smith v. Western Guard Party, decision of 20 July 1979, Case No T.D. 1/79——
380
Cambodia
Extraordinary Chambers in the Courts of Cambodia
– Case No 002/01 judgment of 7 Aug 2014, Doc No 002/19-09-2007-ECCC/

TC——435
– Consolidated Decision on the Requests for Investigative Action Concerning the
Crime of Forced Pregnancy and Forced Impregnation, judgment of 13 June 2016,
Doc No 004/07-09-2009-ECCC-OCIJ——435
– Second Decision on Nuon Chea’s and Ieng Sary’s Appeal Against OCIJ order on
Request to Summon Witnesses, judgment of 9 Sept 2010, Doc No 002/19-09-
2007-EEEC-OPIJ——434
Kratie Provincial Court, Prosecution Department
– Criminal Case No 206, judgment of 18 May 2012——431

638 Table of Cases
Phnom Penh Municipal Court, Prosecution Department
– Criminal Case No 2207, judgment of 16 July 2012——431
Colombia
Corte Constitucional de Colombia (Constitutional Court of Colombia)
– Case No C-010-00, judgment of 19 Jan 2000——80

– Case No C-200-02, judgment of 19 Mar 2002——80
– Case No C-067-03, judgment of 4 Feb 2003——80
– Case No C-038-04, judgment of 27 Jan 2004——80
– Case No C-590-05, judgment of 8 June 2005——372
Costa Rica
Supreme Court of Justice of Costa Rica, Constitutional Chamber
– Case No 0421-S-90, judgment of 9 May 1995, Opinion 2313-95——371
Czech Republic
Ústavni Soud (Constitutional Court)
– Lisbon Treaty, Case No Pl. ÚS 19/08, judgment of 26 Nov 2008——174

– Slovak Pensions, Case No Pl. ÚS 5/12, judgment of 31 Jan 2012——174
Denmark
Højesteret (Supreme Court)
– UfR 1990.13 H——443

– UfR 1994.536 H——444
– UfR 1994.954 H——444
– UfR 1996.234 H——80, 444–446
– UfR 1998.800 H——174
– UfR 2000.1201 H——444
– UfR 2000.1326 H——444
Table of Cases 639
– UfR 2004.1765 H——446

– UfR 2005.1265 H——446
– UfR 2006.770 H——80, 444
– UfR 2014.3667 H——80, 444
Dominican Republic
Tribunal Constitucional de República Dominicana (Constitutional Court)
– Case No TC-01-2005-0013, judgment No TC/0256/14 of 4 Nov 2014——16
El Salvador
Corte Suprema de Justicia (Supreme Court)
– Case No 44-2013AC, judgment of 13 July 2016——399
France
Conseil constitutionnel (Constitutional Council)
– Daniel W et autres, Case No 2010-14/22 QPC, judgment of 30 July 2010——69

– Interruption volontaire de grossesse, Case No 74-54 DC, judgment of 15 Jan
1975——81, 455
– Loi de finances rectificative, Case No 2005-531 DC, judgment of 29 Dec
2005——461
– Loi relative à la maîtrise de l’immigration et aux conditions d’entrée, d’accueil et
de séjour des étrangers en France, Case No 93-325 DC, judgment of 13 Aug
1993——464
– Loi relative au droit d’auteur et aux droits voisins dans la société de
l’information, Case No. 2006-540 DC, judgment of 27 July 2006——174
– M. John L. et autres, Cases No 2014-453/454 QPC and 2015-462 QPC, judgment
of 18 Mar 2015——81, 468
– M. Xavier et autres, Case No 2011-113/115 QPC, judgment of 1 Apr 2011——
463, 464
– Traité établissant une Constitution pour l’Europe, Case No 2004-505 DC,
judgment of 19 Apr 2004——457, 461
640 Table of Cases
Conseil d’État (Council of State)
– No 07103, judgment of 27 Oct 1978——457

– No 148683, judgment of 6 June 1997——454
– No 226514, judgment of 3 Dec 2001——457
– No 239559, judgment of 3 Nov 2003——81, 459
– No 257682, judgment of 11 Feb 2004——458
– No 288460, judgment of 24 Mar 2006——463
– No 296327, judgment of 25 May 2007——457, 466
– No 296845, judgment of 10 Apr 2008——462
– No 317747, judgment of 9 July 2010——464
– No 328502, judgment of 4 Oct 2012——458, 461
– No 339387, judgment of 1 Feb 2012——461
– No 358564, judgment of 30 July 2014——81, 459
– No 358992, judgment of 10 Feb 2014——81, 466
– No 377487, judgment of 6 May 2015——81, 457
– Nos 367324, 366989, 366710, 365779, 367317, 368861 judgment of 12 Dec
2014——465
Cour de cassation (Court of Cassation)
– No 02-70.047, judgment of 2 July 2003——466, 467

– No 04-47.130, judgment of 30 Sept 2005——458
– No 04-47.532, judgment of 21 Mar 2012——456
– No 05-43.225, judgment of 13 June 2007——461
– No 07-44.240, judgment of 11 Feb 2009——465
– No 08-86.295, judgment of 16 Dec 2016——461
– Nos 09-60.426 and 09-60.429, judgment of 14 Apr 2010——466
– No 09-71.107, judgment of 29 June 2011——467
– No 10-17.049, judgment of 15 Apr 2011——81, 456, 457, 465
– No 10-30.242, judgment of 15 Apr 2011——465
– No 10-30.313, judgment of 15 Apr 2011——460, 465
– No 10-30.316, judgment of 15 Apr 2011——465
Table of Cases 641
– No 12-86.424, judgment of 27 Nov 2013——462

– No 13-23.107, judgment of 23 Oct 2014——460
– No 13-85.076, judgment of 7 Aug 2013——466
– No 14-21.323, judgment of 3 July 2015——465
– No 14-83.138, judgment of 20 May 2014——466
– No 15-21.946, judgment of 30 Nov 2016——460
– No 16-25.146, judgment of 17 Jan 2018——460
– No 16-81.857, judgment of 6 Dec 2017——461
– No 82-16.968, judgment of 11 Jan 1984——460
Cour d’Appel de Nouméa (Court of Appeal of Nouméa)
– Case No 13/00068, judgment of 20 Mar 2014——462
Cour de révision et de réexamen (Court of re-examination)
– No 17 RDH 001 and 002, judgments of 17 Feb 2018——458
Germany
Bundesverfassungsgericht (Federal Constitutional Court)
– Case No 1 BvF 1/05, order of 13 Mar 2007, BVerfGE 118, 79——181

– Case No 1 BvL 3/08, order of 4 Oct 2011, BVerfGE 129, 186——181, 182
– Case No 1 BvL 5/61, order of 17 Oct 1961, BVerfGE 13, 167——173, 174, 180,
184
– Case No 1 BvR 1025/82, 1 BvL 16/83 and 10/91, judgment of 28 Jan 1992,
BVerfGE 85, 191——182
– Case No 1 BvR 1170/90, 1174/90 and 1175/90, judgment of 23 Apr 1991,
BVerfGE 84, 90——472, 476
– Case No 1 BvR 1174/01, judgment of 31 July 2001——485
642 Table of Cases
– Case No 1 BvR 1215/07, judgment of 24 Apr 2013, BVerfGE 133, 277——174,

180
– Case No 1 BvR 1602/07, 1606/07 and 1626/07, order of 26 Feb 2008, BVerfGE
120, 180——492
– Case No 1 BvR 1916/09, judgment of 19 July 2011, BVerfGE 129, 87——182
– Case No 1 BvR 2084/05, order of 13 Dec 2006, BVerfGK 10, 66——184
– Case No 1 BvR 2378/98 and 1084/99, judgment of 3 Mar 2004, BVerfGE 109,
279——472, 486
– Case No 1 BvR 256/08, 263/08 and 586/08, judgment of 2 Mar 2010, BVerfGE
125, 260——173, 181
– Case No 1 BvR 357/05, judgment of 15 Feb 2006, BVerfGE 115, 118——472
– Case No 1 BvR 400/51, judgment of 15 Jan 1958, BVerfGE 7, 198——477, 478,
479, 480–484
– Case No 1 BvR 403 and 569/94, order of 24 Jan 1995, BVerfGE 92, 91——184
– Case No 1 BvR 596/56, judgment of 11 June 1958, BVerfGE 7, 377——482
– Case No 1 BvR 653/96, judgment of 15 Dec 1999, BVerfGE 101, 361——184,
484
– Case No 1 BvR 8/15, order of 26 July 2016, BVerfGE 142, 313——493
– Case No 1 BvR 856/13, judgment of 10 Oct 2014, NJW 2014, 3567——82
– Case No 2 BvE 2/08, 5/08, 2 BvR 1010/08, 1022/08, 1259/08 and 182/09,
judgment of 30 June 2009, BVerfGE 123, 267——174, 472, 486, 488, 489
– Case No 2 BvF 3/02, judgment of 19 Sept 2007, BVerfGE 119, 247——473
– Case No 1 BvL 1/12, order of 15 Dec 2015, BverfGE 141, 1–56——489
– Case No 2 BvL 1/97, order of 7 June 2000, BVerfGE 102, 147——173
– Case No 2 BvL 52/71, order of 29 May 1974, BVerfGE 37, 271——173
– Case No 2 BvR 1390/12, judgment of 12 Sept 2012, BVerfGE 132, 195——174
– Case No 2 BvR 1390/12, judgment of 18 Mar 2014, BVerfGE 135, 317——174
– Case No 2 BvR 148/11, judgment of 15 Dec 2011, NJW 2012, 1202——83
– Case No 2 BvR 1481/04, order of 14 Oct 2004, BVerfGE 111, 307——82, 183,
184, 362, 363, 446, 485–493
– Case No 2 BvR 1579/11, order of 5 Nov 2013, NJW 2014, 532——356, 493
– Case No 2 BvR 1938/93 and 2315/93, judgment of 14 May 1996, BVerfGE 94,
49——472, 486
– Case No 2 BvR 197/83, order of 22 Oct 1986, BVerfGE 73, 339——173
– Case No 2 BvR 2115/01, 2132/01 and 348/03, order of 19 Sept 2006, BVerfGK
9, 174——83, 356, 357, 489, 493
– Case No 2 BvR 2134/92 and 2159/92, judgment of 12 Oct 1993, BVerfGE 89,
155——173, 181
– Case No 2 BvR 2169/13, judgment of 4 May 2015——82
– Case No 2 BvR 2236/04, judgment of 18 July 2005, BVerfGE 113, 273——181
– Case No 2 BvR 2365/09, 740/10, 2333/08, 1152/10 and 571/10, judgment of
4 May 2011, BVerfGE 128, 326——82, 184, 472, 486, 487, 489, 490, 492, 493,
– Case No 2 BvR 2485/07, 2513/07 and 2548/07, order of 8 July 2010, BVerfGK
17, 390——83, 357, 493
Table of Cases 643
– Case No 2 BvR 254/88 and 1343/88, judgment of 29 May 1990, BVerfGE 82,
106——183
– Case No 2 BvR 2661/06, order of 6 July 2010, BVerfGE 126, 286——173
– Case No 2 BvR 2728, 2729, 2730, 2731/13 and 2 BvE 13/13, judgment of 21
June 2016, BVerfGE 142, 123——472, 486
– Case No 2 BvR 2728, 2729, 2730, 2731/13 and 2 BvE 13/13, order of 14 Jan
2014, BVerfGE 134, 366——173
– Case No 2 BvR 2735/14, order of 15 Dec 2015, BVerfGE 140, 317——174, 472,
486, 489
– Case No 2 BvR 327/02, order of 5 Feb 2003, NJW 2003, 2225——184
– Case No 2 BvR 424/17, judgment of 18 Aug 2017——489
– Case No 2 BvR 516/09 and 535/09, order of 21 Nov 2011, NJW 2012, 598——
182
– Case No 2 BvR 589/79, order of 26 Mar 1987, BVerfGE 74, 358——82, 183,
362
– Case No 2 BvR 687/85, order of 8 Apr 1987, BVerfGE 75, 223——182
– Case No 2 BvR 955/00 and 2 BvR 1038/01, judgment of 26 Oct 2004, BVerfGE
112, 1——488
– Case No 2 BvR 987, 1485 and 1099/10, judgment of 7 Sept 2011, BVerfGE 129,
124——174
– Case Nos 2 BvR 2115/01, 2132/01 and 348/93, order of 19 Sept 2006, NJW
2007, 499——356
Bundesgerichtshof (Federal Court of Justice)
– Case No VI ZR 51/06, judgment of 06 Mar 2007, BGHZ 171, 275——492
Bundesverwaltungsgericht (Federal Administrative Court)
– Case No 9 C 40/96, judgment of 2 Sept 1997, BVerwGE 105, 187——362

– Case No 4 CN 9/98, judgment of 16 Dec 1999, BVerwGE 110, 203——362
– Case No 6 C 16/08, judgment of 29 Apr 2009, BVerwGE 134, 1——360
– Case No 1 C 2/09, judgment of 2 Sept 2009, NVwZ 2010, 389——360
– Case No 2 C 1/13, judgment of 27 Feb 2014, BVerwGE 149, 117——82, 362
Landgericht (Regional Court) Hamburg
– Case No 15 O 87/51, judgment of 22 Nov 1951——478

644 Table of Cases
Ghana
Supreme Court of Ghana
– New Patriotic Party v Inspector-General of Police, judgment of 30 Nov 1993,

African Human Rights Law Reports 2001, 138–157——373
Greece
Symvoulio Epikrateias (Council of State)
– Vagias et al. v D.I.K.A.T.S.A., Case No. 2878/97, judgment of 8 July 1998——

174
India
Supreme Court of India
– Anuj Garg v. Hotel Association of India, judgment of 6 Dec 2007, 3 S.C.C.

1——83
– Gupta v. State of Gujarat, judgment of 14 Dec 1994, 2 S.C.C. 182——83
– Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, judgment of
30 Jan 1996, 8 S.C.C. 525——84
– P.T. Munichikkanna Reddy v. Revamma, judgment of 24 Apr 2007, 6 S.C.C
59——83, 370
Ireland
Supreme Court of Ireland
– Society for the Protection of Unborn Children Ltd. v Grogan, 19 Dec 1989, 4 I.R.
760——174
Italy
Corte costituzionale (Constitutional Court)
– Case No. 183/73, judgment of 27 Dec 1973——174, 509

Table of Cases 645
– Case No. 232/75, judgment of 10 Oct 1975——503

– Case No. 170/84, judgment of 5 June 1984——503
– Case No. 232/89, judgment of 10 Jan 1989——509
– Case No. 232/89, judgment of 13 Apr 1989——174
– Case No. 380/01, judgment of 6 June 2001——505
– Case Nos. 348, 349/07, judgment of 24 Oct 2007——84, 502–504
– Case No. 129/08, judgment of 16 Apr 2008——85, 507
– Case No. 239/09, judgment of 15 July 2009——506
– Case No. 317/09, judgment of 30 Nov 2009——506
– Case No. 187/10, judgment of 28 May 2010——505
– Case No. 80/11, judgment of 7 Mar 2011——503
– Case No. 245/11, judgment of 25 Jul 2011——505
– Case No. 238/14, judgment of 22 Oct 2014——508
– Case No. 49/15, judgment of 26 Mar 2015——84, 279, 507
– Case No. 36/16, judgment of 19 Feb 2016——85, 507
– Case No. 269/17, judgment of 14 Dec 2017——509
Corte Suprema di Cassazione (Supreme Court of Cassation)

– Case No. 23761, judgment of 22 Oct 2010——506
Japan
Supreme Court
– Judgment of 12 Dec 1973, 27 Minshū 1536——530

– Judgment of 5 July 1995, 1540 Hanrei Jihō 3——526
– Judgment of 4 June 2008, 2002 Hanrei Jihō 3——525, 526
– Judgment of 4 Sept 2013, 67 Saikō Saibansho Minji Hanreishū (Minshū)
1320——527
Osaka High Court
– Judgment of 28 Oct 1994, 1513 Hanrei Jihō 71——85

– Judgment of 8 July 2014, 2232 Hanrei Jihō 34——533–536
646 Table of Cases
Takamatsu High Court
– Judgment of 25 Nov 1997, 1653 Hanrei Jihō 120——520
Tokyo High Court
– Judgment of 5 Mar 1993, 1466 Hanrei Jihō 40——520, 521
Kyoto District Court
Sapporo District Court
– Judgment of 27 Mar 1997, 1598 Hanrei Tokuhō 33——86, 524

– Judgment of 11 Dec 2002, 1806 Hanrei Jihō 84——86, 532
Shizuoka District Court
Tokyo District Court
– Judgment of 23 June 1993, 823 Hanrei Times 122——526
Kenya
Court of Appeal at Eldoret
– Mary Rono vs Jane Rono and Another, judgment of 29 Apr 2005——373, 546,
547, 553
Court of Appeal at Malindi
– Mtana Lewa vs Kahindi Ngala Mwagandi, judgment of 17 July 2015——560,

562
Table of Cases 647
Court of Appeal at Nairobi
– David Njoroge Macharia vs Republic, judgment of 18 Mar 2011——548, 556

– New Vision Kenya (Nvk Mageuzi) & 3 others vs Independent Electoral and
Boundaries Commission & 5 others, judgment of 6 June 2014——555
– Patrick Njuru Mwangi vs Republic, judgment of 20 Dec 2013——556
– Royal Media Services Limited & 2 others vs Attorney General & 8 others,
judgment of 28 Mar 2014——555
– R.M.M. vs B.A.M., judgment of 20 Feb 2015——554, 555
High Court at Embu
– Ibrahim Sangor Osman vs Minister of State for Provincial Administration &

Internal Security & 3 others, judgment of 3 Nov 2011——557
High Court of Kakamega
– Mary Mwaki Masinde vs County Government of Vihiga & 2 others, judgment of

9 July 2015——554
High Court at Kisumu
– Timothy Karuibu Ngugi vs Republic, judgment of 28 Sept 2015——545
High Court at Kitale
– JAO vs NA, judgment of 27 June 2013——553
High Court at Meru
– C.K. (a Child) through Ripples International as her guardian & next friend & 11
others vs Commissioner of Police / Inspector General of the National Police
Service & 3 others, judgment of 27 May 2013——553
High Court at Mombasa
– Kasira Charo Dunda & 2 others vs Francis Wanjohi Wang’ang’a & 4 others,
judgment of 29 July 2015——557
648 Table of Cases
– Morris Jarha Maro & another vs Registrar of Societies & another, judgment of
18 Mar 2015——549
– Randu Nzai Ruwa & 2 others vs Internal Security Minister & another, judgment
of 25 July 2012——549
High Court at Nakuru
– KAPI Ltd. and another vs Pyrethrum Board of Kenya, judgment of 26 Apr

2013——554
– Lucy Waihiga Wanjohi vs Johnstone Gikandi Theuri, judgment of 25 Nov
2011——553
– Re Estate of Kamonjo Njiinu Alias Kamonjo Gachinu (Deceased), judgment of
20 May 2011——554
High Court at Nairobi
– Baby A. (Suing through the Mother E.A.) & another vs Attorney General & 6
others, judgment of 5 Dec 2014——553
– Beatrice Wanjiku & another vs Attorney General & another, judgment of 23 July
2012——556
– Chirau Alimwakwere vs Robert M. Mabera & 4 Others, judgment of 27 July
2012——556
– David Gitau Njau & 9 others vs Attorney General, judgment of 1 Nov 2013——
554
– Eric Gitari vs Non-Governmental Organisations Co-ordination Board & 4
others, judgment of 24 Apr 2015——552, 555, 559
– Fredrick Gitau Kimani vs Attorney General & 2 others, judgment of 2 Aug
2012——554
– Gabriel Nyabola vs Attorney General & 2 others, judgment of 10 Oct 2014——
550, 557
– Githunguri Residents Association vs Cabinet Secretary - Ministry of Education,
Attorney General & 5 others, judgment of 29 May 2015——557
– In Re Estate of Grace Nguhi Michobo (Decesead), judgment of 28 May
2004——553
– Jackson Maina Wangui & another vs Republic, judgment of 24 Sept 2014——
549, 550
– Jaoko Noo Ooro & 5 others vs Attorney General, judgment of 6 Sept 2013——
552
– Jayne Wangui Gachoka vs Kenya Commercial Bank Limited, judgment of 5 July
2013——556
– Jeffer Isaak Kanu vs Ministry of Justice, National Cohesion and Constitutional
Affairs & 3 others, judgment of 11 Jan 2013——557
Table of Cases 649
– John Kabui Mwai & 3 others vs Kenya National Examination Council & 2
others, judgment of 16 Sept 2011——557
– John Swaka vs Director of Public Prosecutions, Attorney General & 2 others,
– Johnson Muthama vs Minister for Justice & Constitutional Affairs & another,
judgment of 29 June 2012——554
– JWI vs Standard Group Limited & another, judgment of 6 June 2013——555
– Kenya Small Scale Farmers Forum & 6 others vs Republic of Kenya & 2 others,
judgment of 31 Oct 2013——555, 556, 558
– Kituo Cha Sheria & 8 others vs Attorney General, judgment of 26 July 2013——
555
– Margaret Wanjiru Ndirangu & 4 others vs Attorney General, judgment of
11 Sept 2015——554
– Martha Karua vs Radio Africa Ltd T/A Kiss F.M. Station & 2 Others, judgment of
21 July 2006——547
– Mary Wanjuhi Muigai vs Attorney General & another, judgment of 28 Oct
2015——553
– Mathew Okwanda vs Minister of Health and Medical Services & 3 others,
judgment of 17 May 2013——550, 557
– Mitu-Bell Welfare Society vs Attorney General & 2 others, judgment of 11 Apr
2013——550, 557
– Mohammed Ibrahim Naz vs Cabinet Secretary Responsible for Matters Relating
to Citizenship and the Management of Foreign Nationals & another, judgment of
3 July 2013——555
– Nairobi Law Monthly Company Limited vs Kenya Electricity Generating Com-
pany & 2 Others, judgment of 13 May 2013——554, 556
– Nyakamba Gekara vs Attorney General & 2 others, judgment of 1 Nov 2013——
560
– Patrick Chege Kinuthia & 2 others vs Attorney General, judgment of 18 Aug
2015——555
– Rachael Mwikali Mwandia vs Ken Maweu Kasinga, ruling of 28 Jan 2013——
556
– Refugee Consortium of Kenya & another vs Attorney General and another,
judgment of 18 Dec 2015——554
– Republic vs Minister for Home Affairs & 2 others Ex Parte Leonard Sitamze,
judgment of 18 Apr 2008——557
– Republic vs National Assembly, Speaker Of National Assembly & 6 Others
Exparte George Wang’ang’a, judgment of 17 Jan 2018——481
– Republic vs Permanent Secretary Office of The President Ministry Of Internal
Security & another Ex-Parte Nassir Mwandihi, judgment of 3 Apr 2014——556
– Republic vs Surbodinate Court Of The 1st Class Magistrate At City Hall, Nairobi
& another Ex-parte Yougindar Pall Sennik & another, judgment of 28 Apr
2006——556
– Re: Zipporah Wambui Mathara, ruling of 24 Sept 2010——561
650 Table of Cases
– Rose Wangui Mambo & 2 others vs Limuru Country Club & 17 others, judgment
of 12 Mar 2014——553
– Royal Media Services Limited & 2 Others vs Attorney General & 8 Others,
judgment of 28 Mar 2014——555
– Satrose Ayuma & 11 others vs Registered Trustees of the Kenya Railways Staff
Retirement Benefits Scheme & 3 others, judgment of 30 Aug 2013——554, 558
– Seventh Day Adventist Church (East Africa) Limited vs Minister for Education &
3 others, judgment of 18 Dec 2013——556, 557, 560
– Sheila Amalemba & another vs Attorney General & 4 others, judgment of 25 Nov
2015——556
– W.J. & another vs Astarikoh Henry Amkoah & 9 others, judgment of 19 May
2015——552, 559
Employment and Labour Relations Court at Nairobi
– Koki Muia vs Samsung Electronics East Africa Limited, ruling of 21 Aug

2015——553
Environment and Land Court at Nakuru
– Clement Kipchirchir & 38 others vs Principal Secretary Ministry of Lands

Housing and Urban Development & 3 others, judgment of 21 Apr 2015——
556, 557
Industrial Court at Nairobi
– Gladys Boss Shollei vs Judicial Service Commission, judgment of 22 Nov

2013——559
– GMV vs Bank of Africa Kenya Limited, judgment of 31 July 2013——553, 555
– Peris Nyambura Kimani vs Dalbit Petrolium Limited, judgment of 9 July
2015——553
– P O vs Board of Trustees, A F & 2 others, judgment of 28 Feb 2014——553
Lesotho
Court of Appeal
– Ts’epe v The Independent Electoral Commission and Others, Case No 11/05,

judgment of 30 June 2005, AHRLR 2005, 136–150——375
Table of Cases 651
Lithuania
Konstitucinio Teismo (Constitutional Court)
– Case No. 13/2000, judgment of 14 Mar 2006——175
Mexico
Suprema Corte de Justicia de la Nación (Supreme Court of Justice)
– Contradicción de tesis 293/2011, judgment of 25 Apr 2014——407, 408

– Contradicción de tesis 73/2014, judgment of 25 Apr 2014——87
– Expediente varios 912/2010, judgment of 4 Oct 2011——86, 403
Netherlands
Hoge Raad (Supreme Court)
– NS v Vervoersbonden, judgment of 30 May 1986, NJ 1986, 688——87

– Nuhanović/Mustafic, judgment of 6 Sept 2013, NJB 2013, 1974——88
New Zealand
High Court New Zealand
– Fang v Jiang, judgment 21 Dec 2006, 141 ILR 702——70
Peru
Tribunal Constitucional (Constitutional Tribunal)
– Case No 976-2001-AA, judgment of 13 May 2003——481

– Case No 2730-2006-PA/TC, judgment of 21 Jul 2006, Ground 12——371
652 Table of Cases
Poland
Trybunal Konstytucyjny (Constitutional Tribunal)
– Constitutionality of the Treaty of Accession, Decision No 18/04 of 11 May

2005——174
Russian Federation
Constitutional Court of the Russian Federation
– Judgment No 21- P/ of 14 July 2015——279, 368, 488

– Judgment No 4-P of 26 Feb 2010——89
– Resolution No 21-P of 14 July 2015——89
– Resolution No 2-P of 5 Feb 2007——89
– Judgment No 1-P of 19 Jan 2017——488
– Ruling No 187-O-O of 15 Jan 2009——88
– Judgment No 12-P, judgment of 19 Apr 2016——368, 488
Slovenia
Ustavno Sodišče Republike Slovenije (Constitutional Court)
– Case No U-I-12/12, judgment of 11 Dec 2014——575

– Case No U-I-145/03, judgment of 23 June 2005——570, 574
– Case No U-I-18/93, judgment of 11 Apr 1996——573
– Case No U-I-226/95, judgment of 8 July 1999——576
– Case No U-I-246/02, judgment of 3 Apr 2003——584
– Case No U-I-284/94, judgment of 4 Feb 1999——584
– Case No U-I-312/11, judgment of 13 Feb 2014——575
– Case No U-I-344/06, judgment of 20 Nov 2008——574
– Case No U-I-65/05, judgment of 22 Sept 2005——582
– Case No Up-1004/11, judgment of 8 Nov 2012——569
– Case No Up-103/97, judgment of 26 Feb 1998——567
– Case No Up-1293/10, judgments of 21 June 2012——572
– Case No Up-13/99, judgment of 8 Mar 2001——568, 584
– Case No Up-1391/07, judgment of 10 Sept 2009——577
– Case No Up-1544/10, judgments of 21 June 2012——572
Table of Cases 653
– Case No Up-181/99, judgment of 18 Dec 2002——569

– Case No Up-207/99, judgment of 4 June 2002——572
– Case No Up-332/03, judgment of 27 Oct 2005——570
– Case No Up-365/05, judgment of 6 July 2006——569
– Case No Up-39/95, judgment of 16 Jan 1997——566
– Case No Up-406/05, judgment of 12 Apr 2007——577
– Case No Up-422/02, judgment of 10 Mar 2005——577
– Case No Up-444/09, judgment of 12 Apr 2012——579
– Case No Up-50/99, judgment of 14 Dec 2000——577
– Case No Up-584/12, judgment of 22 May 2014——578
– Case No Up-679/12, judgment of 16 Oct 2014——581
– Case No Up-695/11, judgment of 10 Jan 2013——582
– Cases No Up-1857/07 and U-I-161/07, judgment of 3 Dec 2009——567
– Cases No Up-555/03 and Up-827/04, judgment of 6 July 2006——580
– Cases No Up-76/03 and U-I-288/04, judgment of 17 Mar 2005——567
– Decision U-I-6/93 of 1 Apr 1994——563
– Opinion Rm-1/97 of 5 June 1997——563
South Africa
Constitutional Court
– S v Makwanyane and Mchunu, Case CCT 3/94, [1995] ZACC 3, judgment of

6 June 1995——91
– Carmichele v Minister of Safety and Security, Case CCT 48/00, [2001] ZACC 22,
judgment of 16 Aug 2001——91, 481
– Kaunda and Others v President of the Republic of South Africa, Case CCT 23/04,
[2004] ZACC 5, judgment of 4 Aug 2004——374
– Ferreira v Levin NO, Case CCT 5/95, [1995] ZACC 13, judgment of 6 Dec
1995——374
– Volks NO v Robinson and others, Case CCT 12/04, [2005] ZACC 2, judgment of
21 Feb 2005——374
Supreme Court of Appeal
– S v Mathembu, Case 379/07, [2008] ZASCA 51——91

654 Table of Cases
Spain
Tribunal Constitucional de España (Constitutional Court)
– Melloni, Sent. No 26/2014 of 13 Feb 2014, BOE núm. 60——174

– Tratado Constiticional, Decl. No 1/2004 of 13 Dec 2004, BOE núm. 3——174
– Tratado de Maastricht, Decl. No 1/1992 of 1 July 1992, BOE núm. 177——174
Sweden
Högsta Domstolen (Supreme Court)
– Billerud Korsnäs v Naturskyddsverket, Ö 461-11, judgment of 25 Feb 2014, NJA

79——174
– PMP v Riksåklagaren, B 4946-12, judgment of 11 June 2013, NJA 502——180
Switzerland
Bundesgericht (Federal Tribunal)
– A und B gegen Regierungsrat des Kantons Zürich, judgment of 22 Sept 2000,

BGE 126 I 240——360
United Kingdom
Supreme Court
– Cadder v Advocate, judgment of 26 Oct 2010, UKSC 43——365

– R (HS2 Action Alliance Ltd) v Secretary of State for Transport, judgment of
22 Jan 2014, UKSC 3——174
– R v Horncastle, judgment of 9 Dec 2009, UKSC 14——68, 92, 365
– R (Chester) v Secretary of State for Justice and McGeoch (AP) v The Lord
President of the Council and another, judgment of 16 Oct 2013, UKSC 63——
92, 365
Table of Cases 655
House of Lords
– Jones v Ministry of Interior, Al-Mamlaka Al-Arabiya as Saudiya and others,

judgment of 14 June 2006, UKHL 26——70
– R v Lyons, judgment of 14 Nov 2002, UKHL 44——365
– R v Secretary of State for the Environment, Transportation & the Regions,
judgment of 9 May 2001, UKHL 23——364
– R v Special Adjudicator, judgment of 17 June 2004, UKHL 26——364
United States
United States Supreme Court
– Asakura v. City of Seattle, 1924, 205 US 332——600

– Banco Nacional de Cuba v. Sabbatino, 1964, 376 US 398——599
– Breard v. Greene, 1998, 523 US 371——93, 357, 592
– Foster & Elam v. Neilson, 1829, 27 US 253——600, 601
– Hamdan v. Rumsfeld, 2006, 548 US 557——93
– Jackson v. City of Joliet, 1983, 465 US 1049——476
– Kiobel v. Royal Dutch Petroleum Co., 2013, 569 US 1——93, 591
– Lawrence v. Texas, 2003, 539 US 558——591, 602
– Medellín v. Texas, 2008, 522 US 491——93, 164, 359, 390, 391, 520, 589,
592–598
– Murray v. Schooner Charming Betsy, 1804, 6 US (2 Cranch) 64, 118——601
– Palko v. Connecticut, 1937, 302 US 319——484
– Reid v. Covert, 1957, 354 US 1——600
– Respublica v. De Longchamps, 1784, 1 US (1 Dallas) 111——599
– Roper v. Simmons, 2005, 543 US 551——93, 602
– Sanchez-Llamas v. Oregon, 2006, 548 US 1——358
– Sosa v. Alvarez-Machain, 2004, 542 US 692——93, 589, 591, 592
– The Paquete Habana, 1900, 175 US 677——599
– United States v. Alvarez-Machain, 1992, 504 US 655——590
– United States v. Palestine Liberation Organization, 1988, F. Supp. 1456——602
– Ware v. Hylton, 1796, 3 US (3 Dallas) 199——599
– Whitney v. Robertson, 1998, 124 US 190——602
United States Court of Appeals, 7th Circuit
– Jackson v. City of Joliet, 1983, 715 F.2d 1200——476

656 Table of Cases
Supreme Court of California
– Fujii v. State of California, 1952, 242 P.2d 617——601
Supreme Court of Massachusetts
– Commonwealth v. Gautreaux, 2010, 458 Mass 741——93, 359
Supreme Court of Nevada
– Gutierrez v. State of Nevada, 2012, 52 ILM 348——93, 359
Venezuela
Tribunal Supremo de Justicia (Supreme Court)
– Expediente varios 08-1572, judgment of 18 Dec 2008——16

Index
A impunity, 300–310
Access to justice, 5–7, 247, 301, 351, 419 obligation to comply with judgments of
African Charter on Human and Peoples’ the Inter-American Court of Human
Rights, 31, 227–230, 240, 248, Rights, 298–300
314–340, 350–374 obligation to prevent, prosecute, investigate
obligation to investigate, prosecute and and repair, 294–298
punish, 62, 320–334 obligation to respect and ensure, 294–298
state obligations, 316–334 American Declaration of the Rights and
African Commission on Human and Peoples’ Duties of Man, 54, 66, 67, 74, 92,
Rights, 14, 67, 314, 319–329, 349, 208, 395
372, 558, 559 Andean Community of Nations, 11, 70, 209
admissibility of communications, 327–329 Court of Justice, 209
Commission recommendations, 332, 333 Arab Charter on Human Rights, 55, 350, 376
obligation to investigate, prosecute and Arab Court of Human Rights, 55, 350
punish, 320–327 Arbitral tribunals, 9, 22, 147, 206
state obligations, 316–318 Argentina, 10, 16, 26, 36, 38, 55, 74, 75, 128,
violation of treaties other than the African 132, 133, 208–219, 292, 293, 300–303,
Charter, 334–336 309, 310, 370, 391–398, 409, 410
African Court on Human and Peoples’ amnesty laws, 300–303, 307, 394–398
Rights, 14, 67, 228, 314, 349 Constitution, 74, 75
admissibility of communications, 331–332 Constitutional reform, 74, 75, 303, 309,
Court orders, 333–334 394, 395
obligation to investigate, prosecute and status of human rights treaties, 208–219,
punish, 329–331 291–293, 300–303, 309, 370,
state obligations, 318–320 393–395
violation of treaties other than the African Supreme Court, 74, 307, 370, 394, 396–398
Charter, 336–340 Simón case, 396–398
African Union, 67, 232, 240, 292, 315, 338, Association of Southeast Asian Nations
349, 546 (ASEAN), 135, 292, 425
American Convention on Human Rights, 13, Intergovernmental Commission on Human
14, 25, 29, 54–63, 66, 67, 74–79, 86, Rights, 55
110, 111, 123, 207, 291–310, 349, Australia, 70, 75, 95, 97, 130, 145, 146, 149,
351, 370, 391–394, 398, 400, 401, 158, 354, 355, 381, 383
418, 420, 512 Austria, 68, 122, 174, 194, 213, 281, 284, 361,
amnesty laws, 300–305 366, 570, 574, 577–580

https://doi.org/10.1007/978-3-319-94848-5
658 Index
B China, 40, 78, 79, 94, 595, 601

Bangladesh, 76, 96 Colombia, 22, 28, 54, 55, 57, 79, 80, 96, 219,
Botswana, 25, 372–374 263, 292, 293, 298, 300, 301, 308,
Brazil, 38, 57, 76, 77, 208–211, 219, 269, 292, 309, 370–372, 395, 396
293, 306–310, 398, 399, 411–422 Compliance with judgements/decisions of
Constitutional Amendment 45/2004, 76, 77, human rights bodies, 52–97
309, 310 best practices, 69, 72, 409, 512
dialogue with the Inter-American System, due diligence, 56, 71
418–421 good faith, 69
advisory opinions of the Inter-American good practices, 16, 17, 52, 56, 68, 71–73,
Court of Human Rights, 306–308 96, 97, 391, 512, 513
control of conventionality, 419 obligations of result, 13, 58, 142, 185, 285,
Escher case, 419 490
Gomes Lund case, 306–308, 398, 419 Convention Against Torture and Other
Maria da Penha Maia Fernandes case, Cruel, Inhuman or Degrading
418 Treatment, 26, 70, 130, 153, 251,
Ximenes Lopes case, 418, 419 324, 336, 381, 395, 414, 424, 448
internal application of international human Convention for the Protection of All Persons
rights, 411–417 from Enforced Disappearance, 54,
executive branch, 413, 414 112, 414, 440
judicial branch, 416, 417 Convention on the Elimination of all Forms of
legislative branch, 415, 416 Discrimination Against Women, 53,
Special Secretary for Human Rights, 413 54, 63, 64, 75, 76, 84, 88, 111, 251,
status of human rights treaties, 76, 77, 262, 267, 270, 276, 335, 424, 521,
208–211, 219, 269 525, 526, 546, 547, 553, 554, 564
Supreme Court, 76, 77, 308, 416, 417 Convention on the Elimination of All Forms of
Racial Discrimination, 37, 39, 53,
111, 136, 141, 144, 152, 154, 155,
C 163, 395, 414, 424, 426, 534, 535, 564
Cambodia, 43, 45, 135, 136, 140, 142, 148, Convention on the Protection of the Rights of
423–436 All Migrant Workers and Members
constitutional law, 425–428 of Their Families, 53, 414, 440
court system, 429, 430 Convention on the Rights of Persons with
Extraordinary Chambers in the Courts of Disabilities, 53, 63, 64, 74–76, 82,
Cambodia, 432–436 172, 194, 380, 381, 416, 493
human rights bodies, 428, 429 Convention on the Rights of the Child, 53, 63,
Cambodian Human Rights Committee, 159, 193, 261, 395, 414, 424, 426,
428, 429 526, 527, 564
National Assembly Committee for the Costa Rica, 43, 133, 134, 148–150, 153–155,
Protection of Human Rights and 158–160, 166, 292, 352, 370, 371
Reception of Complaints, 425, 428, Council of Europe, 54, 58–60, 72, 89, 96, 188,
429 195, 292, 361, 369, 440, 498, 507, 568
Senate Committee for the Protection of Committee of Ministers, 56, 58, 59, 72, 119,
Human Rights and Reception of 188, 287–289, 351, 507, 564
Complaints, 428, 429 Courts of General Jurisdiction, Definition of,
Khmer Rouge Tribunal (see Extraordinary 3, 4, 6, 16, 17, 29, 253, 430
Chambers in the Courts of Cambodia) Cross-fertilization, 11, 23, 24, 39
status of human rights treaties, 424
Canada, 70, 77, 78, 95, 260, 265, 292, 293,
354, 380 D
Canadian Human Rights Act, 380 Denmark, 17, 80, 97, 174, 378, 439–451
Canadian Human Rights Commission, 380 institutional protection of human rights,
Canadian Human Rights Tribunal, 380 447–449
Index 659
Equality Appeals Board, 449 Economic Community of West African

Immigration Appeals Board, 449 States (ECOWAS), 12, 224–227,
National Human Rights Institution, 448 230–236, 241–243, 246, 247,
Parliamentary Ombudsman, 80, 439, 249–253, 330, 337–339
447 Court of Justice (ECOWAS Court), 12,
Refugee Appeals Board, 448, 449 224–227, 230–236, 241–253
judicial implementation of human rights, European Commission on Human Rights,
443–446 122, 130, 497
application of international law by way European Convention on Human Rights,
of interpretation, 441, 443, 444 106, 188, 213, 280, 347–349, 351,
interpretation of the European 352, 361–370, 383, 435, 440–450,
Convention on Human Rights, 455–457, 459–468, 483–487,
444–446 490–493, 560
judicial self-restraint, 444, 445 accession by the European Union, 74, 172,
presumption of compliance with 181, 187–193, 361, 508
international obligations, 443 living instrument, 55, 69, 348, 352, 565
legislative implementation of human rights, obligation to implement judgments of the
441, 442 European Court of Human Rights,
incorporation of the European 348, 351, 368, 485
Convention on Human Rights, 441, obligation to investigate, prosecute and
442, 444, 450 punish, 14, 15, 62
legislation based on human rights, 442 Protocol No. 14, 59, 188, 286–288
Domestication of international human rights, European Court of Human Rights, 8, 13–15,
see Internalisation of international 23–29, 39, 40, 42, 44, 53–62, 70, 72,
human rights 74, 80–94, 97, 103, 110, 111, 113,
Domestic courts 117–125, 139, 143, 167, 171–195,
control of conventionality, 14, 60, 61, 81, 202, 250, 279–289, 292, 295, 321,
87, 94, 300, 305–310, 350, 351, 383, 324, 342, 345, 348–352, 361–370,
384, 391–394, 403, 404, 408, 419, 381–384, 435, 442–453, 456–469,
455 483–494, 497–509, 512, 543, 551,
dialogue with human rights courts, 263, 560–585, 591, 602
266, 365, 412–414, 418, 420, 422, Cyprus v. Turkey, 8, 103, 117–125
487–489, 492–494, 539 implied powers, 66, 286–288
implementation/consideration of jurisdiction over EU matters, 74, 191, 361
International Court of Justice obligation to implement judgments of, 95,
judgments/decisions, 13, 17, 51–63 280–289, 348, 351
implementation/consideration of treaty pilot judgment procedure, 60, 61, 67, 285
body decisions, 13, 51–67 power to supervise execution of judgments,
implementation of human rights, 12, 13, 16, 286, 480
17, 274, 275, 291–310, 366, 383, European Court of Justice, 11, 12, 20, 74,
384, 416, 440, 447, 448, 511–539 171–196, 202–205, 212–217, 223,
as international human rights courts, 11, 480 231, 235, 261, 361, 442, 457,
obligations imposed by human rights 461–463, 481, 489, 501, 503, 508
treaties, 51, 52, 67–97 European Convention on Human Rights in
Dominican Republic, 292, 309, 372, 396 case law, 175–181, 361
relation to national constitutional courts, 91,
172–174, 178, 181–185, 187, 191,
E 195, 203, 280, 480, 585
East African Community, 12, 224–229, universal human rights treaties in case law,
232–240, 243–245, 248, 249, 251–253 176, 193, 257, 359–370
East African Community Court of Justice, European Union, 11, 171–175, 180, 181,
223–245, 248–253, 559, 560 187–194, 196, 508
660 Index
European Union (cont.) constitutional identity, 472, 481, 488

accession to European Convention on Human incorporation of the Universal
Rights, 172, 181, 187–194, 508 Declaration of Human Rights,
fundamental rights, 11, 172–175 472–476, 479–481, 483, 494
supremacy of European Union law, 173, openness to international law, 486, 489,
180, 196 493
status of European Convention on
Human Rights, 486
F status of treaties, 489, 493
France, 81, 94, 96, 174, 175, 183–187, 212, constitution (see Basic Law)
348, 366, 453–469, 595, 600 domestic courts, 473, 486, 490, 491, 494
Conseil constitutionnel, 69, 81, 174, 455, duty to deal in good faith with treaty
457, 461 body decisions, 493
Conseil d’État, 81, 455, 457–459, 462–463, duty to take into account case law of the
465–467 International Court of Justice, 493,
Cour de cassation, 456–458, 460, 462, 494
466–467 duty to take into account decisions of the
express references to international decisions European Court of Human Rights,
on human rights, 456 492, 494
implementation of international human international human rights courts, 480
rights decisions, 81, 366, 453–469 Federal Constitutional Court, 473, 480–483,
implicit references to international decisions 485
on human rights, 462–469 dialogue with the European Court of
European Committee on Social Rights, Human Rights, 487
466 Görgülü case, 485
European Court of Human Rights, 81, international human rights court,
366, 456–469 480–483
Human Rights Committee, 459, 466 Lüth case, 477
individual decisions Preventive Detention case, 486, 492, 493
European Court of Human Rights, 458, Princess Caroline case, 491, 492
465, 469 fundamental rights, 472, 474, 476–488, 491,
European Court of Justice, 457, 462 494
international decisions as res interpretata, duty to protect and to promote, 481
456–457 horizontal effect (Drittwirkung), 478
European Court of Human Rights, 456 order of values, 478–480
European Court of Justice, 456 proportionality, 481–483
international decisions as res judicata, radiating effect, 480, 481, 487, 494
457–459 value system of international human
European Court of Human Rights, rights, 472, 475, 478–481
456–461, 463–466, 468 internalisation of international human
Human Rights Committee, 459, 466–468 rights, 473
quasi-judicial bodies, 63–67, 466–468 Ghana, 373
status of international law in domestic law, Good faith, 52, 55, 64, 65, 69–71, 205, 210,
468 214, 229, 240, 263, 272, 274, 280,
customary international law, 468 282, 289, 298, 308, 347, 355, 359,
treaties, 468 392, 409, 493, 505, 516, 532, 535
Good practices, 16, 17, 52, 56, 68, 71–73,
96–97, 391, 512, 513
G
Germany, 82, 83, 89, 93–96, 181–184, 356,
357, 360–363, 383, 417, 471–494, H
513, 528–531, 568 Human rights bodies
Basic Law, 472–483, 486–493 definition of, 558
Index 661
domestic human rights bodies (see Subcommittee on Prevention of Torture

Cambodia, human rights bodies; and other Cruel, Inhuman or
National human rights institutions) Degrading Treatment or Punishment,
judgments/decisions of, 558 53, 324
erga omnes effect, 69, 71, 82, 123, 125,
130, 131, 271, 279–281
inter partes effect, 279, 348 I
interpretative guidance, 347, 362 India, 8, 76, 83, 84, 95, 147, 150, 158, 370
obligation to comply with (see Inter-American Commission on Human
Compliance with judgments/ Rights, 90, 292, 399, 414, 420
decisions of human rights bodies) Inter-American Court of Human Rights,
supervision of compliance with, 12, 308, 13–15, 28, 29, 32, 34, 53–58, 61–63,
351 67, 69, 74, 76, 77, 80, 86, 87, 91–94,
judicial bodies (see Human rights courts) 97, 107, 113, 114, 118, 119, 149, 167,
quasi-judicial bodies (see Human rights 260, 292–310, 321, 334, 349–352,
treaty bodies) 370–372, 383, 384, 391–422
Human rights courts Barrios Altos case, 74, 302–305, 393
definition of, 57 control of conventionality, 14, 60, 61, 77,
domestic implementation of judgments/ 81, 87, 94, 300, 305–310, 350, 370,
decisions, 4, 12–17, 51–97, 267, 456 372, 383, 384, 391–394
judicial activism, 176, 352, 384, 462, 526 non-pecuniary remedies, 13, 15, 28
obligation to comply with judgments/ obligation to comply with judgments of,
decisions of, 53, 55, 67, 70, 162, 53–57, 67, 70, 162, 285, 298, 595
298, 595 Velasquez Rodriguez v. Honduras, 14, 56,
Human rights treaties 260, 293–300, 307, 321, 322, 334,
dynamic interpretation, 348, 352 393, 435
extraterritorial application, 21, 23, 37 Internalisation of international human
interpretation, 348–352, 359 rights, see Domestication of
living instruments, 55, 352 international human rights
object and purpose, 55, 69, 72, 138, 203, International Court of Justice, 4, 19–50,
271, 377 103–170, 211, 216, 232, 265, 268,
Human rights treaty bodies 272, 339, 353–359, 383, 593, 594, 602
monitoring compliance by state parties, armed conflict, 21, 25, 37–46, 132, 262
347 Avena case, 32, 33, 45, 104, 108, 109,
universal 114–116, 131, 142, 147, 151, 162,
Committee against Torture, 265, 435, 164, 353, 390, 402, 592
436 contribution to human rights law, 19–50
Committee on Economic, Social and development of human rights standards,
Cultural Rights, 550 196, 275
Committee on Enforced Diallo case, 6, 8, 15, 24–35, 64, 104,
Disappearances, 307 116–119, 353, 459, 493
Committee on the Elimination of diplomatic protection, 5–9, 21, 22, 31, 33,
Discrimination against Women, 335, 46, 103–126, 131, 147
525 extraterritorial application of human rights
Committee on the Elimination of Racial treaties, 21, 37, 39
Discrimination, 360, 427 follow-up, 158–165
Committee on the Rights of Persons general interest obligations, 129–137
with Disabilities, 262 implementation/consideration by domestic
Committee on the Rights of the Child, courts, 51–100
260, 527 individual rights, 32, 46, 105–109,
Human Rights Committee, 13, 14, 22, 114–120, 125, 144, 353
24, 45, 53, 112, 140, 250, 258, 276, irreparable harm, 41, 43, 47, 134–147, 157,
295, 347, 350 163
662 Index
International Court of Justice (cont.) recourse to the Constitutional Court

LaGrand case, 32, 33, 39, 42, 44, 104–109, according to Article 117 (1) of the
114–116, 128, 131, 137, 138, 147 constitution, 84
link requirement, 146, 149, 150, 168 impact of judgments of the European Court
non-aggravation, 44, 128–132, 149, 150, 168 of Human Rights, 498–509
plausibility, 151–158 impact of the European Convention of
position of the individual, 30–46 Human Rights, 498–509
prejudgment, 152, 155 legislative responses to the case law of the
proposed human rights chamber, 57 European Court of Human Rights,
provisional measures, 5, 6, 20, 21, 27–47, 500, 501
114, 127–170, 218, 358 2006 law on the execution of judgments
Pulp Mills case, 128, 132, 149, 199, 211, of the European Court of Human
212, 218 Rights, 501
reference to decisions of human rights treaty Pinto law, 500, 501
bodies, 71, 264, 272 Supreme Court of Cassation, 502
International Covenant on Civil and Political Ius cogens, 25, 31
Rights, 38, 53, 57, 108, 113, 250,
295, 335, 338, 398, 414, 424, 549,
550, 556, 564 J
International Covenant on Economic, Social Japan, 85, 86, 95, 96, 511–542, 600
and Cultural Rights, 53, 251, 257, Cabinet Legislation Bureau, 85, 517, 518,
277, 414, 557 538
International Criminal Law, 10, 415 domestic courts, 522, 523, 539
International Law Association implementation of international human
International Human Rights Law rights, 85, 86
Committee, 512, 540 practice in the use of international
Final Report (Part 1), 19–50 human rights, 522–528
Final Report (Part 2), 17, 51–100 human rights-friendly interpretation,
Johannesburg Guidelines, 605–607 522–538
International Law Commission, 17, 52 Nationality Act case, 525, 526
diplomatic protection, 31–36, 47 Nibutani Dam case, 524, 525
responsibility of international organizations, Statutory Share in Inheritance of
88 Children Born Out of Wedlock case,
responsibility of states for internationally 526–528
wrongful acts, 58, 104, 516 human rights in the private sphere, 529
International Tribunal on the Law of the Kyoto Hate Speech case, 531,
Sea, 353 533–537
Investor-State Arbitration, 18 obligation to protect, 531
Italy, 17, 25, 84, 85, 93, 174, 180, 212, 412, Otaru Public Bath case, 532, 533, 536
497–509, 584 relationship between international and
constitution, 498, 502–508 domestic law, 513–521
constitutional core values, 508 dualism, 516, 517
status of general international law, hierarchical position of international
502–504, 508 law, 516–519
satus of treaty law, 502–506 incorporation, transformation or
transfer of sovereignty, 503 acceptance of international law,
Constitutional Court, 84 517–521
counter-limits doctrine, 508 monism, 516, 517
twin judgments No. 348 and 349 (2007), third-party effect (Drittwirkung), 528
502, 505 treaties
domestic courts, 84, 85 direct applicability, 520–522
duty of consistent interpretation, 84, self-executing, 520–522
505, 507 Judicial dialogue, 539
Index 663
K Paris Principles (see United Nations,

Kenya, 234, 238–240, 373, 543–562 Principles Relating to the Status of
constitution of 2010, 544, 545, 547–562 National Institutions for the
Bill of Rights, 546–551 Promotion and Protection of Human
general rules of international law, 551, 561 Rights)
treaties, 546, 548 Netherlands, 9, 36, 52, 87, 94, 96, 182, 276,
domestic courts, 548 367, 368, 384–386, 595
Employment and Labour Relations Nigeria, 224, 230, 235, 241, 242, 253, 373
Court, 545, 553
Environment and Land Court, 545, 556,
557 O
High Court, 545, 549–551 OECD Guidelines for Multinational
references to decisions of international Enterprises, 347, 377, 378
human rights bodies, 558–560 National Contact Points, 345, 377, 384
references to international human rights Organization of American States, 52, 66, 67,
instruments, 543, 547, 553 208, 292, 299, 310, 349, 418, 421
institutional protection of international
human rights, 544, 558–560
Judicature Act, 544, 545, 561 R
Regional Economic Communities, Courts of
Africa, 223–254
M Europe (see European Court of Justice)
MERCOSUR, 11, 201, 202, 206–221, 418 Latin America, 201–220
dispute settlement, 11, 201, 208 Rule of law, 11, 71, 171, 183, 184, 223, 227,
Mexico, 16, 33, 34, 55, 86, 87, 96–98, 108, 228, 236–239, 244, 362, 370, 374,
114, 115, 142, 143, 151, 163–165, 375, 392, 412, 429, 451, 476, 487,
292, 300, 309, 359, 370, 389–410, 488, 490
590, 592–594 Russia, 9, 37, 52, 88, 89, 93, 94, 136, 155, 156,
constitution, 86, 389, 399–409 279, 280, 363, 367, 368, 384–386,
constitutional reform, 86, 401, 402 488, 494, 532, 595
control of conventionality, 87, 389,
391–394, 403, 404, 408
Law on Military Jurisdiction, 389, 401 S
Mexican Human Rights Commission, 400 Slovenia, 90, 96, 563–586
Military Reform Decree, 405 Constitution, 90, 563–586
Radilla Pacheco case, 389, 399, 401, 403, status of international human rights,
404 563–586
Supreme Court, 389, 402–409 status of the European Convention on
binding effect of the Inter-American Human Rights, 586
Court of Human Rights judgments, Constitutional Court, 563–586
86, 87, 308–310, 399–410 influence on the case law of regular
ex officio control of conventionality, 87, courts, 583
389 implementation of international human
judgments of the Inter-American Court rights decisions, 583–586
of Human Rights as res judicata, 404 references to the case law of the European
transfer from military to civil Court of Human Rights:
jurisdiction, 405–407 basic procedural safeguards in criminal
proceedings, 571–573
freedom of expression and artistic
N endeavour, 576–580
National Courts, see Domestic Courts right to an impartial tribunal, 569–571
National human rights institutions, 345, 378, right to effective protection of human
379, 382–384, 451 rights, 580–583
664 Index
Slovenia (cont.) Declaration on the Rights of Indigenous

right to judicial protection, 566–569 Peoples, 354, 355
right to personal liberty, 573–575 internal complaint mechanisms, 6, 7,
right to the equal protection of rights in 264–266
civil proceedings, 566–569 International Coordinating Committee of
right to the protection of personal data, National Institutions for the
575, 576 Promotion and Protection of Human
South Africa, 90, 91, 95–98, 373–375, Rights (Paris Principles), 378
383–384, 481 International Law Commission (see
Constitution, 96, 373, 374, 382, 481 International Law Commission)
South African Human Rights Commission, Office of the High Commissioner for
382–384 Human Rights, 60, 355, 378, 379,
Southern African Development Community, 551
374–376 Principles Relating to the Status of National
State responsibility, 12, 41, 42, 104, 106, Institutions for the Promotion and
109–124, 147, 156, 158, 166, 204, Protection of Human Rights, 96,
296, 299, 320–327 378–381
cessation, 42, 112, 115, 123, 125, 145–147 “protect, respect and remedy” framework
diplomatic protection, 5–9, 21, 31–37, 46, and guiding principles, 377
104–125, 131, 147, 374 United States of America, 17, 41, 42, 92, 93,
general interest obligations, 129–136 161–165, 268, 272, 273, 292, 293,
guarantees of non-repetition, 33, 34, 42, 354, 357–359, 369, 390, 391, 395,
123, 147, 167, 327 568, 589–603
ILC Draft Articles (see International Law American exceptionalism, 590
Commission) domestic status of international judgments/
obligations of result, 71, 261, 262 decisions, 92, 93, 357–359
remedies, 14, 15, 32–35, 56–64, 73, 78, 95, Avena case, 104, 116, 143, 162–165,
112–120, 183, 196, 205, 251–253, 358, 390, 391
261–273, 276, 328–333, 347, 416–419, definition of customary international
485, 499–501, 507, 536, 582, 585, 591 law, 93, 591, 592
restitutio in integrum (restitution in kind), International Court of Justice, 592–598
58, 111, 147, 564 LaGrand case, 104, 161, 162, 358
Switzerland, 368, 369 limitation of jurisdiction under the Alien
Tort Statute, 93, 599, 603
Medellin v. Texas, 93, 164, 359, 390,
U 391, 520, 589, 592–598
Union of South American Nations respectful consideration, 93
(UNASUR), 202, 206, 218–220 Sosa v. Alvarez-Machain, 93, 589, 591,
United Kingdom, 68, 91, 92, 177, 364–365, 592
560, 568 incorporation of international human rights,
United Nations, 40, 186, 187, 334, 379, 381, 92, 589–603
409, 425, 432, 440, 473, 493, 503, Charming Betsy doctrine, 601, 603
558, 593, 595, 601 common law, 591, 598, 599, 601, 603
Charter, 22, 41, 93, 138, 178, 282, 334, 392, constitutional interpretation of human
425, 514, 515, 549, 593–598, 601 rights, 603
Convention on the Law of the Sea, 36, 146, statutory reference, 599
353 supremacy clause, 164, 390, 391, 595,
Declaration on Principles of International 599, 600, 603
Law concerning Friendly Relations United States Constitution, 273, 390,
and Co-operation among States in 592–603
accordance with the Charter of the supremacy clause, 164, 390, 391, 595,
United Nations, 515 599, 600, 603
Index 665
United States Supreme Court, 93, 162–164, Convention on the Rights of the
357–359, 390, 391, 589–594, 598–603 Child; European Convention on
Universal Declaration of Human Rights, 22, Human Rights; Human rights
41, 208, 338, 339, 360, 380, 381, treaties; Human rights treaty bodies;
395, 425, 472, 546 International Covenant on Civil and
Universal human rights treaties Political Rights; International
implementation by domestic courts, 12–17, Covenant on Economic, Social and
191, 257–277, 352, 359, 423–429, Cultural Rights; Universal human
440, 441, 512–519, 522–539, rights treaties; Vienna Convention
543–562 on the Law of Treaties
state obligations, 4, 14, 15, 33, 56, 78, 131, Uruguay, 23, 38, 128, 132, 133, 208–219, 292,
185, 227, 257–277, 279–289, 301, 308, 372, 393, 398
291–310, 313–340, 348–351, 392,
422, 485, 550
See also American Convention on Human V
Rights; Convention against Torture Venezuela, 16, 54, 66, 111, 208, 210, 219, 292,
and Other Cruel, Inhuman or 309, 310, 351, 372, 396, 421
Degrading Treatment; Convention Vienna Convention on Consular Relations,
for the Protection of All Persons 32, 33, 83, 104–109, 111, 114, 115,
from Enforced Disappearance; 118, 131, 137, 142, 147, 162, 309,
Convention on the Elimination of All 356–359, 383, 402, 489, 493, 592
Forms of Discrimination against Vienna Convention on the Law of Treaties,
Women; Convention on the 10, 55, 69, 70, 97, 215, 249, 260,
Elimination of All Forms of Racial 265, 267, 270, 271, 280, 286, 299,
Discrimination; Convention on the 346, 359, 392, 395, 409, 516
Protection of the Rights of All
Migrant Workers and Members of
Their Families; Convention on the W
Rights of Persons with Disabilities; World Trade Organization, 9, 10, 208, 218

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Stefan Kadelbach · Thilo Rensmann

ISBN 978-3-319-94847-8 ISBN 978-3-319-94848-5 (eBook)

Library of Congress Control Number: 2018961463

© Springer International Publishing AG, part of Springer Nature 2019

The present volume brings together a group of distinguished international experts to

Frankfurt am Main, Germany Stefan Kadelbach

Part I General Introduction

Part II International and Regional Courts of General Jurisdiction as

Courts of Regional Economic Communities in Africa and Human

Part III Obligations Imposed by Human Rights Treaties with Regard

Part IV The Role of Courts in the Domestic Implementation

ILA Johannesburg Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

Christina Cerna is adjunct professor of law at the Georgetown University Law

Jonas Christoffersen is executive director of the Danish Institute for Human

Gesa Dannenberg is assistant professor of law at the Université de Cergy-Pontoise,

Solomon T. Ebobrah is professor of law at the Niger Delta University, Nigeria. He

Saïda El Boudouhi is professor of public international law at the Université de

Daniel Heilmann is country director of the Hanns Seidel Foundation in Indonesia.

Mark Weston Janis is William F. Starr Professor of Law at the University of

Yakaré-Oulé (Nani) Jansen Reventlow is the founding director of the Digital

Liliana Lyra Jubilut is professor of the Postgraduate Program in Law of the

Stefan Kadelbach is professor of public, international, and European law at the

Lucas Lixinski is an associate professor at the University of New South Wales,

Duncan Okubasu is an advocate at the High Court of Kenya and lecturer in

Belén Olmos Giupponi is a senior lecturer in EU and international law at the

Paulo Pinto de Albuquerque is a judge at the European Court of Human Rights

Thilo Rensmann is a professor of public, international, and European law at the

Johannes van Aggelen is professor of international law, Brasilia, Brazil, and

Dragica Wedam Lukić is professor emeritus of the University of Ljubljana,

Kimio Yakushiji is professor of law at the Ritsumeikan University, Kyoto, Japan.

Stefan Kadelbach, Thilo Rensmann, and Eva Rieter

© Springer International Publishing AG, part of Springer Nature 2019 3

advisory opinion under similar conditions.7 As Judge Greenwood stressed in his

In addition, an effective internal mechanism would be necessary to allow com-

intergovernmental character of the organization.33 As a consequence, human rights

be argued that an adapted version of this doctrine of “control of conventionality” has

not claim to be representative.49 Most of the authors provided background material

judiciary of a state with a generally satisfactory human rights record assumes a

Finalized by Eva Rieter

© Springer International Publishing AG, part of Springer Nature 2019 19

2 References by the ICJ to Decisions of Human Rights

29. To achieve more coherence, international treaties should cross-reference, where

2.2 An Evolving Approach to Case Law by Others

30. The membership of Rosalyn Higgins, Peter Kooijmans, Thomas Buergenthal,

3 The Attitude of a General Court Toward the Position

3.1 General Contribution by the ICJ

3.2 Diplomatic Protection or Human Rights Protection?

individual defendant concerned.”65 Moreover, it pointed out that there could be no

conﬁrmed that states are to provide guarantees of non-repetition. This provides

3.3 Extraterritorial Application of Human Rights Treaties

70. In Al-Skeini et al v. UK (2011),108 the Grand Chamber, following earlier

3.4 Provisional Measures Involving Human Beings

Finalized by Stefan Kadelbach

© Springer International Publishing AG, part of Springer Nature 2019 51

2 Work of the Committee

3 The Obligations of States Parties to Comply

3. A state, in the exercise of its sovereignty, voluntarily consents to becoming a

3.2 Jurisprudence on the State Party’s Obligation to Comply

3.2.1 Human Rights Courts

administrative procedures must be considered.46 Even though a conventional duty to

a wide range of non-pecuniary remedies.75 Such measures may be public acts or

3.2.2 Quasi-Judicial Bodies

procedures, i.e. 15 by CERD, 15 by CEDAW and 5 by CRPD, numbers found http://www.ohchr.