Is the African Court on Human and Peoples’ Rights in an Existential Crisis?

2022 ◽  
pp. 092405192110724
Author(s):  
Martin Faix ◽  
Ayyoub Jamali
Keyword(s):  
Human Rights ◽  
Sociological Perspective ◽  
Early Stages ◽  
Existential Crisis ◽  
International Court ◽  
The Law ◽  
Extraordinary Form ◽  
Legal Character

Employing a sociological perspective on the law, this study explores instances of resistance against the African Court on Human and Peoples’ Rights, the African Union’s continental human rights judicial body. This approach allows us to examine different forms of resistance that might not necessarily be of a legal character, but which may still have profound implications for the Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resistance against the African Court: ‘pushback’ and ‘backlash’. The former refers to an ordinary form of critique directed against the overall development of an international court, while the latter is understood as an extraordinary form of critique that puts the fundamental authority of a court at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash started to emerge following its ground-breaking judgments that caused heated debates on controversial topics. This article concludes that based on the identified and analysed forms of resistance, it is doubtful that the African Court can maintain and fulfil the purpose for which it was established: the protection and promotion of human rights in Africa.

scholarly journals Proof in international court proceedings: articulation of the problem

2020 ◽  
pp. 60-71
Author(s):  
Galina Georgievna Shinkaretskaya
Keyword(s):  
Human Rights ◽  
Special Importance ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Courts ◽  
The Law ◽  
Court Proceedings ◽  
Information Materials

One of the important elements of international court proceedings is the acquisition of information materials upon which the court makes its decisions. Such information, same as in the context of domestic courts, is called judicial evidence. The constituent documents of international courts contain very meager regulation of acquisition and evaluation of the evidence. The parties to international legal proceeding are the sovereign states, which makes it primarily adversarial. This implies that the parties represent the facts that confirm their positions. However, international courts rely on the principle of jura novit curia (“the court knows the law”), i.e. the parties to legal dispute do not need to plead or prove the law that applies to their case. This problem gains special importance due to the growing number and variety of international courts, as well as the emergence of a number of quasi-judicial institutions; in this sphere, all of them rely on the jurisprudence of the International Court of Justice. Certain new trends are traced in the practice of courts and even categories of cases that pertain to human rights.

scholarly journals Serious Human Rights Violations – Eclipse or Mere Twilight of State Immunity?

2011 ◽  
Vol 11 (2) ◽  
pp. 63-78
Author(s):  
Ondřej Svaček
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
Human Rights Violations ◽  
Mutual Relationship ◽  
Extensive Discussion ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
The Law

Abstract Presented article contributes to the extensive discussion over the mutual relationship between serious human rights violations (violation of ius cogens) and the law of state immunity. Th e structure of article derives from the argumentation presented by Germany and Italy in current dispute before the International Court of Justice. Author focuses his attention on delimitation of existing international legal framework and particularly on assessment of friction areas in German and Italian submissions. Three separate issues are analyzed: temporal, territorial and material.

scholarly journals Normy ius cogens w orzeczeniach i opiniach doradczych Międzyamerykańskiego Trybunału Praw Człowieka

2017 ◽  
pp. 31-66
Author(s):  
Edyta Lis
Keyword(s):  
Human Rights ◽  
International Law ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Judicial Decisions ◽  
International Court ◽  
The Status ◽  
The Law ◽  
International Law Commission ◽  
Advisory Opinions

The concept of ius cogens norms is one of the most controversial issue in the international law. These norms were definied in the art. 53 of Vienna Convention on the law of treaties of 1969, according to which ius cogens norm it is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of the international law having the same character. This definition indicates that these norms limit the ability of States of creation or change the norms of the international law. However, the indicated definition does not include examples, scope and substance of ius cogens norms. In the commentary to the art. 50 of the draft articles on the law of treaties the International Law Commission stated that substance of these norms will be worked out in the States’ practice and in the judicial decisions of international courts . Contrary to International Court of Justice Inter-American Court of Human Rights (IACtHR), in its judicial decisions in great measure widened the scope and the substance of ius cogens norms. Consequently, IACtHR has developed a progressive case law in this realm. In separate opinion, in the case Caesar v. Trinidad and Tobago from 2005, judge A.A. Conçado Trindade concluded that the IACtHR, in identification of ius cogens norms, have done more than any other international court. In its judgements and advisory opinions IACtHR recognized that e.g. forced going missing, tortures, discriminations, extrajudicial executions are the infringements of ius cogens norms. Taking into consideration jurisprudence of the IACtHR it is hard to say on what grounds it was prescribed that a given norm is forming a part of ius cogens. This article analyses the way the IACtHR identified ius cogens norms. Therefore it was indispensable to define its competence ratione materiae. Next, taking into consideration the gravity and the nature of infringement and the fact that all infringements of human rights which have been described simultaneously constitute violation of other human rights, this paper is limited only to three of them. It also outlines what functions, in the jurisprudence of IACtHR, fulfil the attribution to the norms the status of ius cogens norms.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

Human Rights Activities as a Function of the Prosecutor’s Office

2020 ◽  
Vol 3 ◽  
pp. 88-93
Author(s):  
K.N. Golikov ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
The State ◽  
Main Function ◽  
Federal Law ◽  
The Subject ◽  
The Russian Federation ◽  
The Law

The subject of this article is the problems of the nature, essence and purpose of prosecutorial activity. The purpose of the article is to study and justify the role of the human rights function in prosecutorial activities in the concept of a modern legal state. At the heart of prosecutorial activity is the implementation of the main function of the Prosecutor’s office – its rights and freedoms, their protection. This means that any type (branch) of Prosecutor's supervision is permeated with human rights content in relation to a citizen, society, or the state. This is confirmed by the fact that the Federal law “On the Prosecutor's office of the Russian Federation” establishes an independent type of Prosecutor's supervision-supervision over the observance of human and civil rights and freedoms. It is argued that the legislation enshrines the human rights activities of the Prosecutor's office as its most important function. It is proposed to add this to the Law “On the Prosecutor's office of the Russian Federation”.

International Court Authority

2018 ◽  
Author(s):  
Mikael Rask Madsen
Keyword(s):  
Human Rights ◽  
Political Science ◽  
International Criminal ◽  
Contextual Factors ◽  
Academic Disciplines ◽  
International Courts ◽  
International Court ◽  
Context Shapes ◽  
Criminal Matters ◽  
Over Time

Identifying the “varied authority” of international adjudicators as a common object of inquiry, this book develops a framework to conceptualize and analyze international court authority with the goal of assessing how contextual factors affect international courts’ authority, and therby their political and legal influence. Scholars drawn from a range of academic disciplines—namely law, political science, and sociology—have contributed to this book and examine the varied authority of thirteen international courts with jurisdictions that range from economic to human rights, to international criminal matters. Interdisciplinary commentaries reflect on what the framework and findings imply for the study of international court authority and legitimacy. Focusing on both global and regional adjudicatory systems, the chapters explore different ways in which contextual factors contribute to the fragility of each court’s authority over time and across the breadth of their jurisdiction. A conclusion pulls together the collective insights of how context shapes the authority of international courts.

Introduction

2018 ◽  
Author(s):  
Ronnie Mackay ◽  
Warren Brookbanks
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Essential Elements ◽  
Mental Capacity ◽  
Fundamental Parameters ◽  
The Law

Fitness to plead is an area of growing importance in most Western jurisdictions. It challenges the justification for criminalisation wherever a person’s mental capacity calls into question their ability to participate meaningfully in a trial. However, the doctrine has proven difficult to apply in practice, with many legislative models represented across the jurisdictions. How best to formulate rules for the fair trial of those with mental or physical incapacity and how to manage the issue of disposition following a finding of unfitness is a challenge in most countries. These and other issues are explored in this book through the insights of domestic and international scholars who are familiar with the law around unfitness to stand trial. This chapter broadly describes the fundamental parameters and human rights aspects of the fitness-to-plead doctrine, and concludes with a brief account of the essential elements of each chapter.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

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