Is harmonisation of procedural admissibility criteria
of regional human rights systems desirable?
A comparative study between the European, Inter-American, and African human rights system
Name: Dajana Madžura
E-mail: dajanamadzura@gmail.com Student number: 12428841
Master: International and European Law Mastertrack: Public International Law Supervisor: Mr. Dr. M. den Heijer Second reader: Mw. Prof. Dr. L. Zegveld Date of submission: 24 July 2020
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Abstract
The article compares the procedural admissibility criteria of the European, Inter-American, and African human rights system, and assesses how the effectiveness of regional human rights systems relates to the universal nature of human rights. The article determines the scope of individual access, exhaustion of domestic remedies and time limit by comparing the case law of these regional systems. From jurisprudence it follows that the regional systems use different margin of discretion to determine procedural admissibility criteria. The wider the margin of discretion, the better effectiveness of the regional system can be ensured. At the same time, the higher the caseload, the narrower the margin of discretion is approached by regional mechanisms. As a result, this reduces the effectiveness of the regional systems. Where a wide margin can in turn undermine the universality of human rights, simultaneously it is precisely a wide margin of discretion that ensures effectiveness of regional systems. We believe that the effectiveness of regional systems is more important than maintaining the universal nature of human rights. Therefore, the article concludes that harmonisation of procedural admissibility is not a silver bullet. What directly hinders the effectiveness of regional systems is the number of individual applications, but this cannot be reduced by harmonising procedural admissibility criteria. Occasionally the best way to effectively address human rights violations is to apply slightly different procedural admissibility criteria at international level. Diversity in the world should not be punished – on the contrary, we should embrace diversity as much as possible.
Key words
Regional Human Rights Systems – Procedural Admissibility – Individual Access – Exhaustion of Domestic Remedies – Time Limit – Effectiveness – Universality
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Table of contents
ABSTRACT ... 2 TABLE OF CONTENTS ... 3 ABBREVIATIONS ... 4 INTRODUCTION ... 5CHAPTER 1: REGIONAL HUMAN RIGHTS SYSTEMS ... 7
1.1. EUROPE ... 7
1.2. AMERICA ... 8
1.3. AFRICA ... 9
CHAPTER 2: PROCEDURAL ADMISSIBILITY CRITERIA FOR INDIVIDUAL APPLICATIONS ... 11
2.1. INDIVIDUAL ACCESS TO REGIONAL SYSTEMS ... 11
2.2. EXHAUSTION OF DOMESTIC REMEDIES ... 14
2.3. TIME LIMIT ... 17
CHAPTER 3: EFFECTIVENESS VERSUS UNIVERSALITY ... 20
3.1. UNIVERSAL HUMAN RIGHTS ... 20
3.2. (IN)DIRECT INDIVIDUAL ACCESS TO JUSTICE ... 22
3.3. MARGIN OF DISCRETION ... 24
3.4. HINDER TO EFFECTIVENESS ... 28
3.5. IS A PROPER BALANCE BEING STRUCK? ... 31
CONCLUSION ... 34
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Abbreviations
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
ACommHPR African Commission on Human and Peoples’ Rights ACtHPR African Court of Human and Peoples’ Rights
ASEAN Association of Southeast Asian Nations
AU African Union
ECHR European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms)
ECommHR European Commission of Human Rights
ECtHR European Court of Human Rights
EU European Union
CoE Council of Europe
IACtHR Inter-American Court of Human Rights
IACommHR Inter-American Commission on Human Rights
LAS League of Arab States
OAS Organization of American States
OAU Organisation of African Unity
OSCE Organization for Security and Co-operation in Europe
RoP IACommHR Rules of Procedure of the Inter-American Commission on Human Rights
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Introduction
Prior to the development of international law as we know it today, the treatment of citizens was considered part of the domestic jurisdiction of a state and was not subjected to external scrutiny; however, the Second World War created the ideal that human rights should become a matter of international concern. In response, the United Nations General Assembly endorsed the UDHR in 1948. This endorsement marks the beginning of an era that places human rights under the scope of international law.1 Currently, there are three well-establish regional human rights
systems: the European, Inter-American, and African system. All three regional systems used the UDHR to draft their founding treaties and each treaty specifically refers to the UDHR.2
While there is a great deal of overlap between regional and international human rights systems, there are also differences. Ultimately, it is precisely these differences that highlight the importance of these regional systems, as these systems represent the diversity in the world.
Therefore, to ensure effectiveness of these human rights systems, the regional systems have a margin of discretion when interpreting universal procedural admissibility criteria. In practice, this means that the procedural accessibility criteria regional systems apply for individual applications can be different. While at the same time, the regional systems together are the driving force behind universal human rights and allowing a wide margin of discretion can undermine the legitimacy of these regional systems. This interaction is rather controversial and creates tension between effectiveness and universality. Universality of human rights seems to imply that procedural admissibility criteria for individual applications, and thus access to justice, should be the same in the European, Inter-American, and African human rights system. In any case, universality implies that these criteria should be interpreted strictly, as this would ultimately also contribute to the legitimacy of regional systems. But is this assumption correct? In order to assess this, my research question is as follows:
‘How do effectiveness of regional human rights systems and the universal nature of human rights, specifically considering the procedural admissibility criteria for individual applications, relate to each other and should the procedural admissibility criteria these systems apply be harmonised?’
1 Başak Çalı, ‘Regional Protection’ in Daniel Moekli and others (eds), International Human Rights Law (3rd edn,
Oxford University Press 2018) 413.
2 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (Cambridge University Press 2013)
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In order to answer this research question, the first chapter briefly analyses the historical overview of the European, Inter-American, and African human rights system, the emergence of individual complaints within them and their main similarities and differences.3
The second chapter deals specifically with procedural admissibility criteria for individual applications, namely individual access, exhaustion of domestic remedies and the time limit for lodging such an application. Both the scope and importance of the procedural admissibility criteria are outlined. These criteria are important as they are later used to assess the effectiveness of regional systems and whether these procedural admissibility criteria should be harmonized considering the universal nature of human rights.
The third chapter assesses how effectiveness of regional systems relates to the universal nature of human rights. Firstly, the scope of universal human rights is determined. Secondly, the scope of (in)direct individual access to justice is outlined and the difference in caseload is analysed. Thirdly, the chapter determines the scope of margin of discretion used by regional systems when applying these procedural admissibility criteria and assesses how these relate to universal human rights. Fourthly, the extent to which the margin of discretion hinders effectiveness of regional systems is compared, also considering the introduced priority policy. Lastly, it is assessed whether a proper balance is struck between the effectiveness of regional systems and the universality of human rights.
To demarcate the scope of this work, both LAS and ASEAN regional human rights systems are not dealt with. Both regions do not have an individual complaint mechanism with a right of individual petition, which would make a proper comparison between the regional systems impossible.4 Also, although there are more regional human rights systems in Europe,
including the EU and OSCE, the focus is specifically on the ECtHR which allows for direct individual applications.5
3 Bossman E. Asare and Peter Sekyere, ‘An Appraisal of Institutions of Global Governance: The Case of the
African Human Rights System’ (2016) 9:1 Africology: The Journal of Pan African Studies 233.
4 Çalı (n 1) 417-20.
5 Jeremy Sarkin, ‘The African Commission on Human and Peoples’ Rights and the future African Court of Justice
and Human Rights: Comparative lessons from the European Court of Human Rights’ (2011) 18:3 South African Journal of International Affairs 282.
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Chapter 1: Regional Human Rights Systems
The main purpose of the European, Inter-American, and African regional system is to ensure and strengthen protection of international human rights. By providing individual access to their system, each of these regional systems contributes significantly to the development of international human rights standards.6 Thereby, the systems bring inconsistencies between
regional common values and international human rights closer together. The regional systems have a dual function, both to develop international human rights standards by ensuring a global awareness of regional human rights issues and to interpret universal human rights considering regional differences.7
This chapter briefly analyses the historical overview of the three regional systems, with an emphasis on the emergence of the individual complaints (i.e. complaints against states by individuals) procedure in the European, Inter-American, and African human right system.
1.1. Europe
Historically, Europe occupies a distinctive place regarding international human rights. The Second World War brought closer cooperation between Western allies in Europe.8 The CoE
was established in Strasbourg in 1949, and one of its main achievements is the entry into force of the ECHR in 1953. The primary purpose of the ECHR is to provide for independent judicial procedures and therefore the ECHR established the ECtHR.9 Ratification of the ECHR is one
of the mandatory conditions for membership of the CoE, which means that all 47 current member states have accepted the jurisdiction of the ECtHR.10 The European system was
initially an opt-in system, similar to the other two regional systems now.11 Today, human rights
scientists regard the ECtHR as the ‘world’s most successful international human rights tribunal.’12
6 Antonio Augusto and Cançado Trindade, The Access of Individuals to International Justice (Oxford University
Press 2011), 27; Bantekas (n 2) 227, 231; Alexandra Huneeus and Mikael Rask Madsen, ‘Between universalism and regional law and politics: A comparative history of the American, European, and African human rights systems’ (2018) 16:1 ICON 137.
7 Çalı (n 1) 411-12.
8 Steven Greer, ‘Europe’ in Daniel Moekli and others (eds), International Human Rights Law (3rd edn, Oxford
University Press 2018) 443.
9 Greer (n 8) 441-42.
10 Bantekas (n 2) 221; Çalı (n 1) 417; Greer (n 8) 447.
11 Gino J Naldi, ‘Observations on the Rules of the African Court on Human and Peoples’ Rights’ (2014) 14
AfrHumRtsLJ 377.
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When the ECHR was drafted in 1950, member states agreed that the main modus operandi would be the inter-state process. According to Article 34 ECHR, the inter-state process means that states can file complaints against each other. Individual petitions were also possible since 1955, but only if the state accepted this explicitly.13 Initially, the ECommHR was the
mechanism that determined whether the applicant met the admissibility criteria and, if so, also the one to refer the case to the ECtHR for a legally binding decision. The respondent state or the state of which the applicant was a national could also refer a case to the ECtHR, but individuals could not refer their case themselves.14
This resulted in a situation where the ECHR did not perform as the member states intended, mainly because it did not significantly improve human rights. The number of individual applications started to increase. This was primarily due to three reasons: member states did not consider inter-state complaints as a robust mechanism to ensure international interdependence, the number of member states of the CoE was expanding and the knowledge about the value of the ECHR was increasing.15 As a direct result of the increasing number of
individual applications, Protocol No 11 was adopted in 1998 and individual applications, now Article 35 ECHR, became an imperative part of the ECHR.16 This protocol also abolished the
ECommHR and the ECtHR of that time, and established a new permanent full-time ECtHR, today known as the Strasbourg Court.17 The protocol reflected customary law, since almost all
states already permitted these individual applications before 1998 and the jurisdiction of the Court was previously upheld as well. Just like when the ECHR was founded, inter-state procedures are still possible, but they are not frequently used.18
1.2. America
Unlike the European system, the Inter-American system is a dual supervisory system and consists of both the IACommHR and the IACtHR.19 In 1948, one year before the CoE was
founded, the OAS was established and the American Declaration was endorsed.20 Nonetheless,
it was not until 1967 that the OAS adopted the Protocol of Buenos Aires, giving the 13 Huneeus and Madsen (n 6) 146.
14 Greer (n 8) 447-48.
15 Bantekas (n 2) 224, 238; Huneeus and Madsen (n 6) 154.
16 Augusto (n 6) 23; Bantekas (n 2) 225; Greer (n 8) 448-49; Huneeus and Madsen (n 6) 155.
17 Sebastian Raduletu, ‘Regional Human Rights Systems and the Principle of Universality’ (2013) 37-38 Revista
de Stiinte Politice. Revue des Sciences Politiques 284; Malcolm N Shaw, International Law (8th edn, Cambridge University Press 2017) 259; Huneeus and Madsen (n 6) 155.
18 Bantekas (n 2) 225. 19 Raduletu (n 17) 285. 20 Çalı (n 1) 414.
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IACommHR the status of principal organ of the OAS.21 Subsequently, the ACHR was adopted
in 1969.22 The ACHR established the Inter-American human rights system as we know it today:
the IACommHR and the IACtHR. The part-time IACtHR was founded in 1979 and remains the sole judicial organ of the OAS, while the part-time IACommHR acquired a dual character: it was the principal organ of the OAS to monitor the American Declaration and it was at the same time a human rights protection organ to monitor ACHR compliance.23
Unlike in Europe, ratification of the ACHR is not directly linked to OAS membership. As of April 2020, only 23 of the 35 OAS member states have ratified the ACHR. Some remarkable countries that have not ratified (yet) are Canada and the USA.24 The result of this
opt-in system is that the applicability of human rights obligations slightly differs between OAS member states. The American Declaration is customary law and will apply to all complaints filed, while the applicability of the ACHR depends on ratification by member states; however, this does not mean that the American Declaration ceases to apply when the ACHR is ratified, in which case both may be invoked simultaneously. Article 44 ACHR states that any person or group of persons, or any nongovernmental entity may lodge petitions. Important to note here is that there is no direct petition to the IACtHR, only to the IACommHR.25 Article 45(1) ACHR
indicates that inter-state complaints are permitted, but similarly to the European practice, these complaints are quite rare.26
1.3. Africa
Due to colonialism and apartheid on the African continent, the African human rights system arose relatively later than the human rights systems in Europe and America.27 Initially, the
African system only had the ACommHPR, but it now has a dual protection system with two treaty bodies: the ACommHPR and the ACtHPR.
The OAU was founded in 1963 and changed its name to AU in 2002 by its Constitutive Act of 2000.28 When founded, the OAU Charter was adopted, but it hardly focused on human
21 Thomas M Antkowiak, ‘The Americas’ in Daniel Moekli and others (eds), International Human Rights Law
(3rd edn, Oxford University Press 2018) 426-27.
22 Bantekas (n 2) 244. 23 Antkowiak (n 21) 428-31.
24http://www.oas.org/en/iachr/multimedia/statistics/statistics.html; Ibid 427. 25 Huneeus and Madsen (n 6) 146.
26 Bantekas (n 2) 248; Antkowiak (n 21) 429-433.
27 Christof Heyns and Magnus Killander, ‘Africa’ in Daniel Moekli and others (eds), International Human Rights
Law (3rd edn, Oxford University Press 2018) 466.
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rights.29 Later, in 1981, the ACHPR was adopted and entered into force in 1986.30 The ACHPR
established a part-time quasi-judicial Commission in 1987, the ACommHPR, to protect and promote human and peoples’ rights on the African continent.31 Similar to the Inter-American
system, ratification of the ACHPR is not required to become a party to the AU. Morocco, for example, is a party to the AU, but it has not (yet) ratified the ACHPR.32
At the same time, however, the 54 other AU member states have ratified the ACHPR.33
Thus, even if ratification is not mandatory in the African system, there is a great willingness of states to do so.34 For a long time, the ACommHPR was the only regional protection mechanism
in Africa, which because of its quasi-judicial capacity could only make recommendations to individuals and not give any legally binding judgments.35 For historical reasons, it took the
African region longer to accept a judicial binding supervision. In 1998, Protocol 1998 was adopted which would establish the ACtHPR.36 In 2004, the ACtHPR was established, but the
first session did not take place until 2006. Today, 30 out of 55 member states have accepted the jurisdiction of the ACtHPR.37 Like the ACommHPR, but also the IACommHR and the
IACtHR, the ACtHPR is a part-time mechanism. The only difference is that the president has a full-time appointment. In contrast, in the ECtHR all 47 judges have a full-time appointment. Furthermore, an inter-state complaint procedure is possible under Article 47 ACHPR, but, as in the European and Inter-American practice, the procedure is not often used in the Africa system either.38
Conclusion
Although the three regional systems have different backgrounds, both in terms of origin and development, all three focus on the protection of international human rights. All systems provide for individual access and inter-state complaints are rare in any regional system. Some differences, however, are the difference between single or dual protection systems, partial and full-time mechanisms and the (non-)compulsory ratification of the founding treaty. There are also differences in procedural admissibility criteria, which will be discussed in the next chapter.
29 Bantekas (n 2) 255-56.
30 Ibid 255; Çalı (n 1) 414; Heyns and Killander (n 27) 466.
31 Article 30 ACHPR; Article 45 ACHPR; Article 3(h) Constitutive Act of the African Union. 32 Heyns and Killander (n 27) 468.
33 https://www.achpr.org/legalinstruments/detail?id=49 34 Antkowiak (n 21) 427; Heyns and Killander (n 27) 468. 35 Asare (n 3) 226.
36 Protocol on the Establishment of an African Court on Human and Peoples’ Rights; Bantekas (n 2) 257. 37https://www.african-court.org/en/.
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Chapter 2: Procedural admissibility criteria for individual
applications
All three regional human rights systems allow for individual applications and refer to procedural admissibility criteria in their founding treaties.39 These criteria must be met in order
for a (quasi-)judicial body to be able to assess the merits of the case and are therefore of great importance.40 Procedural admissibility rules are also essential to regulate the caseload and
contribute to the enforcement of the subsidiarity principle.41 However, these admissibility
criteria differ slightly in wording and regional mechanisms may interpret their treaty as a living instrument or with a wide margin of discretion. This results in exceptions to the set criteria.42
This chapter specifically addresses three procedural admissibility criteria, namely individual access, exhaustion of domestic remedies and the time limit for submitting individual applications. Although these procedural admissibility criteria appear to be less open to interpretation, they nevertheless enable regional mechanisms to approach decision-making creatively.43 The differences between the scope of these criteria will be discussed below,
starting with the European system for each criterion, followed by the Inter-American and African system.
2.1. Individual access to regional systems
In Europe, individual applications have been an indispensable part of the ECHR since 1998. As the ECtHR is nowadays the sole protection mechanism, applicants file their claim directly with the ECtHR. Article 34 ECHR states that an applicant can file an individual application only if the applicant is a victim of an ECHR violation.44 Therefore, there is no actio popularis
in the European system. An applicant may not complain against a provision of domestic law, domestic practice or public act simply because it seems to contravene the ECHR.45 The
Lambert and Others v. France case confirms that a victim must be directly affected.46
39 Article 34 and 35 ECHR; Article 44 and 46 ACHR; Article 55 and 56 ACHPR.
40 Bantekas (n 2) 274; Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention
on Human Rights (Palgrave Macmillan 2018) 49.
41 Londras (n 40) 50.
42 ECtHR, Loizidou v. Turkey (Appl. 15318/89) 23 March 1995, para. 71. 43 Londras (n 40) 51.
44 ECtHR, Vallianatos and Others v. Greece (Appl. 29381/09 and 32684/09) 7 November 2013, para. 47. 45 ECtHR, Roman Zakharov v. Russia (Appl. 47143/06) 4 December 2015, para. 153; Londras (n 40) 54; Martin
Scheinin, ‘Access to Justice before International Human Rights Bodies: Reflections on the Practice of the UN Human Rights Committee and the European Court of Human Rights’ in Francesco Francioni (ed.), Access to
Justice as a Human Right (Oxford University Press 2007) 142.
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However, sometimes victims may also be indirect victims. For example, in the event of the applicant’s death or disappearance, family members are eligible as indirect victims to file a case with the ECtHR.47 An NGO is also, but only, eligible to bring a case to the Court if the
victim grants power of attorney, because complaints in abstracto are not allowed.48 Moreover,
an applicant can also be a potential victim.49 The Roman Zakharov v. Russia case clarifies the
ECtHR’s position regarding a potential victim by stating that where the applicant is a potential victim and the responding state has no effective remedy at its disposal, or where a violation is reasonably foreseeable or imminent, so that the applicant is ‘potentially at risk of being subjected to such measures’, the applicant will be considered a victim.50
In America, ‘the right of individual petition constitutes, in sum, the cornerstone of the access of the individuals to the whole mechanisms of protection of the American Convention.’51 In the dual protection system of the Inter-American system, individuals always
start their procedure with the IACommHR. The procedure may later be referred to the IACtHR. The admissibility rules applicable depend on the applicant’s nationality and are either based on the ACHR or the RoP IACommHR, depending on the ratification of the ACHR by the applicant’s state. Unlike the ECHR, the ACHR does not have a victim requirement.52 As Article
44 ACHR states, access to justice is widely open to ‘any person or group of persons, or any governmental entity legally recognized in one or more member states.’53 However, it is not
possible to file petitions in abstracto – and there is also no actio popularis in the Inter-American system.
In a situation where a state has not ratified the ACHR, the American Declaration is used as the legal basis during the proceedings. If a violation is found, referral to the IACtHR is not possible. On the other hand, when a state has ratified the ACHR, the IACommHR applies the ACHR throughout the procedure. If a violation is found, the case may be referred to the IACtHR, but only if the state has explicitly accepted the jurisdiction of the IACtHR. This is not necessarily the case when a state is a party to the ACHR. This underlines once again the
47 ECtHR, Varnava and Others v. Turkey (Appl. 16064/90 and others) 18 September 2009, para. 112.
48 ECtHR, Centre for legal resources on behalf of Valentin Câmpeanu v. Romania (Appl. 47848/08), 17 July
2014, para. 101. The Court exceptionally accepted the NGO taking the case without the power of attorney, because of the vulnerability of the particular victim and the fact that he did not have any close family members.
49 Scheinin (n 45) 145. 50 Zakharov (n 45) para. 171.
51 Héctor Faúndez Ledesma, The Inter-American System for the Protection of Human Rights: Institutional and
Procedural aspects (3rd edn, Instituto Interamericano de Derechos Humanos 2008) 220.
52 Augusto (n 6), 22.
53 Dinah Shelton, ‘The Rules and the Reality of Petition Procedures in the Inter-American Human Rights System’
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opt-in system of the Inter-American human rights system.54 In addition, only the IACommHR
or a state party can refer a case to the IACtHR. Individual applicants cannot do this themselves.55 As a result, in contrast to the European system, individuals cannot initiate
proceedings leading to a legally binding decision or a directly enforceable judgment, as the IACommHR only makes recommendations.56
Like the Inter-American system, the African system is a dual protection system in which applications in first instance go to the ACommHPR.57 Initially, individual complaints were not
explicitly mentioned in the ACHPR. Although this possibility can be read implicitly in Article 55 and 58 ACHPR, it is now also widely recognized that the ACommHPR allows individual complaints. In the African system there is even an actio popularis. This means that applications can be submitted by both individuals and groups who are victims of a violation, as well as by those who are not.58 Compared to the European and Inter-American system, the African system
occupies a uniquely broad position in this respect.59 The rationale behind the African position
is that violations that cannot be brought by victims themselves can be brought by other persons or NGOs not directly linked to them.60 Once an application is submitted, the ACommHPR
decides on admissibility, strives for an amicable settlement, presents its report on the matter and can ultimately transmit a case to the ACtHPR; however, this referral hardly ever happens.61
Unlike in the Inter-American system, individuals can exceptionally bring their case directly to the ACtHPR under Article 5(3) of Protocol 1998.62 This is possible if states have
explicitly authorised this possibility.63 Ratification of the ACHPR does not necessarily mean
that the jurisdiction of the ACtHPR has been accepted and, according to Article 34(6) of Protocol 1998, jurisdiction can be accepted even if a member state has not accepted the ACHPR at all.64 As a result, Morocco, the only state that has not ratified the ACHPR, could in theory
accept the jurisdiction of the ACtHPR. However, this is unlikely to happen.
54 Çalı (n 1) 417. 55 Augusto (n 6) 37. 56 Bantekas (n 2) 247-48.
57 Heyns and Killander (n 27) 472.
58 Françoise Hampson, Claudia Martin and Frans Viljoen, ‘Inaccessible apexes: Comparing access to regional
human rights courts and commissions in Europe, the Americas, and Africa’ (2018) 16:1 ICON 180.
59 Naldi (n 11) 374. 60 Bantekas (n 2) 277.
61 Heyns and Killander (n 27) 473; Frans Viljoen, ‘Understanding and Overcoming Challenges in Accessing the
African Court on Human and Peoples’ Rights’ (2018) 67 ICLQ 75.
62 Heyns and Killander (n 27) 477. 63 Naldi (n 11) 376; Ibid.
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Concluding, in order to enhance the effectiveness of regional systems, the notion of victim has broadened considerably since its inception, as it allows not only direct victims, but also indirect and potential victims. In comparison, the European system has the strictest approach in this respect, as it is the only regional system that imposes a victim requirement.65 This is in tension
with the universal nature of human rights, as universality would imply equal access to justice for all victims. Moreover, both the European and Inter-American system do not allow for an actio popularis, while the African system does.
2.2. Exhaustion of domestic remedies
In the European system, Article 35(1) ECHR provides that an application can only be brought to the ECtHR if an applicant exhausted all domestic remedies. The principle of subsidiarity lies at the core of this procedural admissibility criterion and means that action by the ECtHR should only be taken when the desired objective cannot be effectively achieved by means of action taken at national level.66 The primary responsibility for safeguarding the ECHR lies within the
member states, as the ECtHR has a supervisory role and acts as an ultimate safety net.67
Therefore, it only comes into play when there has been a failure at the domestic level.68 This
requirement is also there to protect the European system being overwhelmed by cases that have not gone first to the national system.69 Considering this rationale, the ECtHR applies this
admissibility criteria strictly. In the Ahmet Sadik v. Greece case, the ECtHR confirmed that the complaints intended to be made subsequently at the Strasbourg Court, should have been, at least in substance, also made during the proceedings at national level, in domestic courts.70
However, the main purpose of the ECtHR is to ensure effectiveness of the regional system by upholding the ECHR rights. Therefore, in certain circumstances, some margin of discretion regarding the universal exhaustion of domestic remedies rule is necessary to ensure compliance with the ECHR. In Salah Sheekh v. The Netherlands, the ECtHR explained that the obligation to exhaust domestic remedies is limited to making use of those remedies which are likely to be effective and available. The applicant cannot be regarded as having failed to exhaust domestic remedies if the applicant can show, by providing relevant domestic case law or any
65 Augusto (n 6), 22-23.
66 Cristina Florina Popescu, ‘Admissibility Criteria for Applications lodged with the European Court of Human
Rights’ (2010) 3:8 European Journal of Social Law 72; Bantekas (n 2) 227-28, 286.
67 Augusto (n 6) 98. 68 Londras (n 40) 51. 69 Bantekas (n 2) 287.
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other suitable evidence, that an available remedy which he has not used was bound to fail - in other words, when further appeal would have had virtually no prospect of success.71 Another
exception to the exhaustion of domestic remedies rule is explained in Aksoy v. Turkey. It follows that the ECtHR must not take only realistic account of the existence of formal remedies in the legal system of the state concerned, but also of the general legal and political context in which these remedies operate, as well as the personal circumstances of the applicant. Also, it must be examined whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.72
In America, both Article 46(1)(a) ACHR and Article 31(1) RoP IACommHR state that domestic remedies must be exhausted in accordance with generally recognized principles of international law. Like the European system, the Inter-American system has a subsidiary function.73 The state should first be given a chance to act before an applicant takes a case to
the IACommHR. In a recent case the IACommHR underlined this rationale by saying that ‘the purpose of the requirement of the exhaustion of domestic remedies is to provide the state with an opportunity to remedy the alleged violation.’74
Though, the exhaustion of domestic remedies does not mean that an applicant must exhaust all possible remedies.75 Domestic remedies that would per se not be suitable, do not
have to be exhausted. The remedies that must be exhausted are adequate and effective remedies.76 The IACommHR interprets ‘adequate’ as remedies appropriate in the specific case
to address the violation. The fact that the remedy is generally suitable to address such violations is not sufficient to meet this adequacy requirement. ‘Effective’ means that there must be a reasonable prospect of success. Having exhausted numerous remedies does not mean that the domestic remedy is effective. The remedy must be suitable to achieve the result intended by the rule.77
However, if there is a violation of a right, it would in certain circumstances be wrong to declare a case inadmissible. Therefore, to ensure effectiveness of the regional system, Article 46(2) ACHR and Article 31(2) RoP IACommHR provide for three exceptions to the universal
71 ECtHR, Salah Sheekh v. The Netherlands (Appl. 1948/04), 11 January 2007, paras. 121 and 123. 72 ECtHR, Aksoy v. Turkey (Appl. 21987/93), 18 December 1996, paras. 53, 54 and 57.
73 Alexandra Huneeus, ‘Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce
Human Rights’ (2011) 44 CornellIntlLJ 531.
74 IACommHR, Anant Kumar Tripati v. United States of America (No. 219/19), 24 October 2019, para. 11. 75 IACommHR, Mumia Abu-Jamal v. United States of America (No. 201/19), 6 December 2019, para. 10. 76 IACommHR, Siddharta Fisher and Cynthia Lou ‘Cindi’ Fisher v. United States (No. 225/19), 11 September
2019, para. 8.
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exhaustion of domestic remedies rule. In the absence of a fair trial, lack of access to remedies or an unreasonable delay in the domestic sphere, the exhaustion of domestic remedies rule will lapse. For example, in 2019, the IACommHR has decided in nine cases that the authorities have not carried out prompt criminal investigations to protect the interests of the victims and to preserve evidence, and therefore declared these cases all admissible under Article 46(2) ACHR.78
In the African system, Article 56(5) ACHPR sets out that local remedies must be exhausted. Again, the rationale is that a regional system is only subsidiary and that the exhaustion of domestic remedies is a prerequisite for access to justice at a supranational system.79 However, ‘the applicant’s duty to exhaust local remedies has as its necessary
counterpart the state’s duty to provide local remedies.’80 Therefore, the exhaustion of local
remedies criterion is limited to available, effective and sufficient remedies.81 At the same time,
the substance of the case must already be raised at the domestic level, otherwise states would not be given a fair opportunity to address the violation.82 The available remedies in the African
system depend on whether the victim himself or an applicant acts on behalf of the victim. The fear of persecution will exempt the victim from exhaustion of local remedies, while this is unlikely for someone representing the victim, for example an NGO.83 This implies that the
applicant should be able to pursue the remedy without any impediment.84 Effective remedies
include a fair trial, which refers to an impartial and independent procedure. Lastly, a sufficient remedy does not mean that a case should be successful as such, but it should at least have the ability to remedy violations. From jurisprudence follows that only ordinary judicial remedies must be exhausted.85
Like the other regional systems, to ensure effectiveness of the regional system, the African system allows for exceptions to the universal exhaustion of domestic remedies rule.86
There is one exception explicitly stated in Article 56(5) of the ACHPR: an unduly prolonged
78 IACommHR, Natividad Ávila Rivera and Family v. Peru (No. 206/19), 6 December 2019, para. 10; also one
case against Suriname, one against Mexico and six cases against Colombia.
79 Francesco Francioni, ‘The right of Access to Justice under Customary International Law’ in Francesco Francioni
(ed.), Access to Justice as a Human Right (Oxford University Press 2007) 7; Lilian Chenwi, ‘Exhaustion of Local Remedies Rule in the Jurisprudence of the African Court on Human and Peoples’ Rights’ (2019) 41:2 HumRtsQ, 375-77.
80 Augusto (n 6) 99.
81 ACommHPR, Sir Dawda K. Jawara v. Gambia (147/95 and 149/96), 11 May 2000, para. 31.
82 ACtHPR, Abubakari v. United republic of Tanzania (007/2013), 3 June 2016, para. 74-76; Chenwi (n 79) 396. 83 ACommHPR, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v. Sudan
(379/09), 10 May 2015, paras. 54-55.
84 Chenwi (n 79) 388. 85 Ibid 381-83. 86 Ibid 378.
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procedure will cease the exhaustion of local remedies criterion. Unduly prolonged means that the procedure must take place within reasonable time, and this can be assessed by the ‘reasonable man’s test.’87 The other exceptions follow from jurisprudence and are based on the
‘available, effective and sufficient remedies’ principle. When domestic remedies are available in theory but there is no prospect of success for the applicant or when domestic remedies are unavailable in practice, the requirement to exhaust them is also no longer mandatory to fulfil. In the case of systematic violations, the requirement also ceases, similar to the European and Inter-American system.
Concluding, although individuals in all regions must exhaust domestic remedies, not all states have the same procedure available.88 However, considering the universality of human
rights, a certain uniformity can be expected.89 All systems recognise that the principle of
subsidiarity is at the heart of the exhaustion of domestic remedies. At the same time, this criterion is strictly interpreted in the European system, while in the Inter-American system it is eagerly decided that there is an exception to the criterion, at least more easily than in Europe. In Africa, this criterion is probably the most problematic. Since regional mechanisms are subsidiary to domestic mechanisms, insufficient domestic procedures have a major impact on the ability to bring cases to the regional mechanisms. For this reason, both the ACommHPR and ACtHPR take a flexible approach in most cases when considering the exhaustion of local remedies criterion.90
2.3. Time limit
In the European system, Article 35(1) ECHR provides, in addition to the exhaustion of domestic remedies criterion, for a six months’ time limit within which the application must be lodged after the final domestic decision.91 The rationale behind this criterion is set out in the
Mocanu and Others v. Romania case, where the Court says that the six months rule ensures legal certainty and stability once a decision has been taken.92 This six months rule is also in the
states’ interest, as it ensures that domestic decisions are not called into question indefinitely.93
87 ACommHPR, Zimbabwe Lawyers for Human Rights in Zimbabwe (293/2004), 22 May 2008, para. 60. 88 Lord Hoffmann, ‘The Universality of Human Rights’ (2009) Judicial Studies Board Annual Lecture, para. 24. 89 Augusto (n 6) 101.
90 Chenwi (n 79) 374.
91 ECtHR, Lekić v. Slovenia (Appl. 36480/07), 11 December 2018, para. 65.
92 ECtHR, Mocanu and Others v. Romania (App. 10865/09 and others), 17 September 2014, para. 258. 93 Londras (n 40) 51.
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In the European system, this six months rule is applied very strictly. The rule cannot be waived by either the applicant or the ECtHR. However, there is one exception to this strict rule, namely when there is a continuing situation of infringement of ECHR rights.94 This ‘within a period of
six months’ time limit will, in accordance to Article 4 of Protocol 15, be replaced by ‘within a period of four months’ when Protocol 15 enters into force.95 We believe that the hidden agenda
behind this reduced time limit is the hope that the number of applications to the ECtHR and thus the workload of the Strasbourg Court will be reduced.96
In the Inter-American system, Article 46(1)(b) ACHR and Article 32(1) RoP IACommHR provide that an application must be lodged within a period of six months as well. The rationale behind this time limit is again legal certainty. The fact that the time limit criterion cannot be seen in isolation from the exhaustion of domestic remedies criterion, is explicitly underlined by the Inter-American system. Whereas the six months period is applied very strictly in the European system, the IACommHR uses a wider margin of discretion. When one of the exceptions stated in Article 46(2) ACHR applies, the IACommHR uses Article 32(2) RoP IACommHR instead of Article 46(1)(b) ACHR when deciding on the time limit. This means that the six months period shifts to ‘a reasonable period of time,’ and this period depends on the circumstances and is determined by the IACommHR.97 Additionally, like in Europe, the
Inter-American system allows for a time limit exception to ‘continuing situations’.98
In the African system, Article 56(6) ACHPR stipulates that communications must be ‘submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter’. Like the other regional systems, the rationale of this criterion is based on the interest of legal stability and certainty. However, whereas the European and Inter-American system have set a six months requirement, the African system has more flexibility in this regard.99 The ACommHPR argues that the reason for this implicit
time limit is the fact that ‘the Commission treats each case on its own merit to ascertain the reasonableness of the time.’100 Moreover, the ACommHPR argues that a six months’ time limit
94 ECtHR, Oliari and Others v. Italy (Appl. 18766/11 and 36030/11), 21 October 2015, para. 96-97; Robin CA
White and Clare Ovey, The European Convention on Human Rights (5th edn, Oxford University Press 2010) 38.
95 Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms. 96 Naldi (11) 371.
97 IACommHR, Jose Padilla and Estela Lebron v. United States (No. 118/19), 10 June 2019, para. 29. 98 IACommHR, Douglas Morin v. United States of America (No. 231/19), 31 December 2019, para. 6. 99 ACommHPR, Gabriel Shumba v. Zimbabwe (288/04), 2 May 2012, para. 44; Bantekas (n 2) 290.
100 ACommHPR, Article 19, the Media Institute of Southern Africa (MISA) of Zimbabwe, the Institute for Human
Rights and Development in Africa, Gerry Jackson and Michael Auret Jr. v. Republic of Zimbabwe (305/05), 24
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in case of exceptions to the exhaustion of domestic remedies would be unreasonable.101
Thereby the ACommHPR refers to the Inter-American system, where in case of exceptions to the exhaustion of domestic remedies rule, the time limit, in accordance with Article 32(2) RoP IACommHR, shifts to ‘within a reasonable period of time’. The Court confirms that Article 56(6) ACHPR will not apply when there is an exception to the exhaustion of local remedies rule of Article 56(5) ACHPR.102 In situations not covered by the exceptions, the African system
interprets the requirement of a ‘reasonable period of time’ increasingly strictly, in line with the six months’ time limit used in the European and Inter-American system.103 This development
towards a stricter approach is favourable as it increases the legal stability and certainty of the system.
Summarising, the need for a time limit to ensure legal certainty is universally recognized in the regional systems. But while in Europe the six months’ time limit is interpreted very strictly, the Inter-American system uses its discretionary power to defer it to a ‘reasonable period of time’ when one of the exceptions to the exhaustion of domestic remedies is at stake. The African system refers from the outset to a reasonable period, instead of the six months’ time limit. A wider time limit in the Inter-American and especially the African system seem necessary to ensure effectiveness, but divergent interpretations of the time limit threaten the universal nature of human rights.
Conclusion
The procedural admissibility criteria are very important because they determine whether an applicant can obtain a decision on the merits at all. Although at first sight the procedural admissibility criteria appear to be universal, there are considerable differences in the interpretation by the regional systems. In comparison, the scope of the procedural admissibility criteria is interpreted most strictly in Europe, followed by a less strict interpretation in Inter-American system. The African system, on the other hand, makes use of a wide margin of discretion, which, given the regional situation, seems necessary to ensure effectiveness of the system. The next chapter will assess how these procedural admissibility criteria and the margin of discretion used by the systems therein relate to the concepts of effectiveness and universality. 101 ACommHPR, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v. Sudan (386/10), 18 October 2013,
para. 71.
102 ACtHPR, Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise
Ilboudo & the Bukinabè Movement on Human and Peoples’ Rights v. Burkina Faso (Appl. 013/2011), 28 March
2014, para. 56.
103 ACommHPR, Lawyers for Human Rights (Swaziland) v. The Kingdom of Swaziland (414/12), 16 February
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Chapter 3: Effectiveness versus universality
Universality is the cornerstone of the international human rights system.104 The UDHR has
been proclaimed as a ‘common standard of achievement for all peoples and all nations.’ However, whether in a domestic, regional or international legal system, in all systems the protection of human rights can only be guaranteed if human rights violations can be addressed. Effectiveness of regional systems is therefore crucial for effective redress.105 The first question
in assessing the effectiveness of regional systems is who can bring a complaint to the mechanisms.106 Moreover, other rules on procedural admissibility, such as the exhaustion of
domestic remedies and the time limit, are directly linked to the subsidiarity principle, but also to the effectiveness of regional systems. At first glance, the universal procedural admissibility criteria seem straightforward. In the previous chapter, however, we have seen different approaches to these criteria in the regional systems.107 These different approaches challenge
the universality of human rights. While the main features of regional systems are both ensuring global awareness of regional human rights issues and adapting universal human rights to regional needs, there is a risk that by using a wide margin of discretion the universality of human rights is threatened.
All three regional systems allow for individual applications, but how do effectiveness and universality relate to each other and should one prevail over the other? Firstly, the scope of the notion of universal human rights is determined. Secondly, the scope of (in)direct individual access to justice is outlined and the difference in caseload is analysed. Thirdly, the margin of discretion is assessed considering the universal nature of human rights. Fourthly, the extent of hinder on the effectiveness of the three regional systems is compared, also considering the priority policy, and lastly, it is critically analysed whether a proper balance is struck between effectiveness of regional systems and the universal nature of human rights.
3.1. Universal human rights
The universality of human rights can be viewed from two perspectives. Primarily, the universality of human rights, as follows from Article 1 UDHR, means that all human beings have equal rights based on human dignity. Because human rights apply to everyone, they are
104 Bantekas (n 2) 37-38. 105 Francioni (n 79) 1. 106 Scheinin (n 45) 142. 107 Londras (n 40) 50.
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universal. But there is also a relatively uncontroversial agreement of all states on the universality of human rights.108 The regional systems also endorse this universality of human
rights.109 It could therefore also be argued that human rights are universal because all states
have accepted them.110 The rationale behind this idea is that consent is the basis for legitimacy.
The universal nature of human rights will therefore be assessed from the point of view that all states have accepted the universality of human rights, because we believe that it is questionable to what extent all states have adhered to this universality, almost 75 years ago.111 We also
believe that it is debatable to what extent states still hold on to this universality because of the developments of this concept in recent decades.
The regional systems were created with the same aim, namely the promotion and protection of international human rights. As already mentioned, regional systems used the UDHR as a basis for their founding treaties and all three founding treaties also refer to the UDHR.112 Therefore, regional systems reflect universal common values. Moreover, although
the regional systems themselves are always evolving, at the same time they contribute significantly to the development of international human rights, as the supervisory mechanisms in each region address region-specific issues.113 To illustrate, the Inter-American system has
dealt extensively with enforced disappearances.114 This jurisprudence is now also used in the
other regional systems.115 This is just one example of how regional systems contribute to
reconciling differences in approach to universal human rights.116 Subsequently, cooperation
with each other and frequent reference to each other’s jurisprudence has led to a strengthening of the universality of human rights.117 However, if this development can only be achieved by
interpreting universal human rights with a wide margin of discretion, then we should embrace this.118
108 Flávia Saldanha Kroetz, ‘Between Global Consensus and Local Deviation: A Critical Approach on the
Universality of Human Rights, Regional Human Rights Systems and Cultural Diversity’ (2016) 3 Revista de Investigacoes Constitucionais 43.
109 Çalı (n 1) 415. 110 Raduletu (n 17) 283. 111 Londras (n 40) 3. 112 Kroetz (n 108) 49.
113 Başak Çalı, Mikael Rask Madsen, and Frans Viljoen, ‘Comparative regional human rights regimes: Defining
a research agenda’ (2018) 16:1 ICON 133.
114 Cecilia Medina Quiroga, ‘The Inter-American Court of Human Rights: 35 Years’ (2015) 33 NQHR 121;
Shelton (n 53) 119.
115 Bantekas (n 2) 250; Huneeus and Madsen (n 6) 137. 116 Çalı (n 1) 424.
117 Raduletu (n 17) 285; Çalı (n 1) 423.
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3.2. (In)direct individual access to justice
To acquire protection of universal human rights, individuals should have access to justice. The scope of the notion of individual access to justice in this regard means that an individual should have access to a decision on the merits, either by a quasi-judicial (respectively the IACommHR or ACommHPR) or a judicial (ECtHR, IACtHR, ACtHPR) mechanism. Individual access to justice should entail access to the regional protection system as well as an independent and impartial assessment by the regional mechanism – capable of both making an effective decision and proposing remedies.119 While all three regional systems provide for a theoretical right for
individuals to lodge a complaint, the practical individual access to justice differs both through differences in (in)direct access to (quasi-)judicial remedies and the remarkable difference in caseload.120
In Europe, each individual has direct access to the ECtHR.121 The rationale behind
direct access is that everyone should have the possibility to ‘assert the rights and freedoms they are directly entitled to under the Convention’.122 In the same case, the ECtHR reiterated its
position that ‘individual application is one of the fundamental guarantees of the effectiveness of the Convention system of human rights protection.’123 In general, every year a great number
of applications are submitted to the ECtHR. In 2019, 44.500 cases were allocated to a judicial formation.124 Protocol 14 already introduced the single judge formation in 2004 in order to
reduce the number of individual applications. Since Protocol 14 entered into force in 2010, a single judge at the ECtHR can deal with admissibility cases.125 The main obstacle to an
effective remedy in Europe is therefore not the impossibility to submit an individual application, but rather the strict interpretation at the admissibility phase because of the great number of applications. Only 1 out of 10 of those applications is considered admissible.126
Eventually, in 2019 only 2178 of the 44.500 applications were decided by a judgment on the merits.127
In the Inter-American system, the applicant has only access to the IACtHR when the IACommHR or the state refer a case to the IACtHR. There is no direct access to judicial
119 Francioni (n 79) 3; Çalı (n 1) 423. 120 Londras (n 40) 61.
121 Francioni (n 79) 42.
122 ECtHR, Mamatkulov and Askarov v. Turkey (Appl. 46827/99 and 46951/99), 4 February 2005, para. 122. 123 Ibid, para. 100.
124 https://www.echr.coe.int/Documents/Stats_annual_2019_ENG.pdf
125 Article 27(1) Protocol 14 ECHR; Bantekas (n 2) 225; Dinah Shelton, ‘Significantly Disadvantaged? Shrinking
Access to the European Court of Human Rights’ (2016) 16 HRLRev 307.
126 https://www.echr.coe.int/Documents/Stats_analysis_2019_ENG.pdf 127 Ibid.
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justice.128 Moreover, the number of applications is significantly lower than in Europe. In 2019,
the IACommHR received 3034 petitions.129 In first instance the applicant submits the
application at the IACommHR. However, the majority of cases do not reach the IACommHR, as these cases are considered inadmissible at the pre-admissibility phase by the OAS Secretariat.130 In 2019, the IACommHR itself only decided on the admissibility of 151 cases,
which means that 95% of the cases had already been declared inadmissible by the Secretariat.131
The Secretariat has a major influence on which cases are decided by the IACommHR.132
Ultimately, if the IACommHR gives its recommendations and a state fails to comply with them, the IACommHR can refer a case to the IACtHR if the state has both ratified the ACHR and accepted the IACtHR jurisdiction. As we have seen in the first chapter, 12 of the 35 states, amongst which Canada and the USA, have still not ratified the ACHR. Moreover, 15 of the 35 OAS member states have not accepted the IACtHR jurisdiction.133 For a long time, the
IACommHR has shown restraint in referring cases to the IACtHR. However, in 2019, the IACommHR referred 32 cases to the IACtHR, which is an increasing number in comparison with previous years.134
Surprisingly, the African system has by far the lowest number of individual applications. In 2019, only 83 communications were received.135 Initially, as in the
Inter-American system, applicants only had indirect access to the ACtHPR.136 But, as indicated
previously, direct access is exceptionally allowed if the state has accepted the jurisdiction of the ACtHPR. However, at the time of writing, May 2020, only nine states have accepted the jurisdiction of the ACtHPR.137 This shows that states are not yet willing to broaden individual
access to the regional system to direct individual access to the ACtHPR.138 It can be argued
that direct individual access was one of the aimed functions when the ACtHPR was established, as it was established to ‘completement the protective mandate of the ACommHPR’.139 Due to
this reluctance to extend individual access to direct access to the ACtHPR, the Court does not
128 Francioni (n 79) 42; Huneeus (n 73) 499; Hampson (n 58) 179. 129 http://www.oas.org/en/iachr/multimedia/statistics/statistics.html 130 Shelton (n 53) 8; Hampson (n 58) 161. 131 http://www.oas.org/en/iachr/multimedia/statistics/statistics.html 132 Shelton (n 53) 9. 133 Huneeus (n 73) 498; Bantekas (n 2) 251. 134http://www.oas.org/en/iachr/multimedia/statistics/statistics.html; Hampson (n 58) 163.
135 ACommHPR, cumulation of considered communications in 2019 (25th Extraordinary Session, 64th Ordinary
Session, 26th Extraordinary Session, 65th Ordinary Session) https://www.achpr.org/sessions. 136 Francioni (n 79) 42.
137 https://www.african-court.org/en/ 138 Bantekas (n 2) 263; Viljoen (n 61) 65, 67. 139 Viljoen (61) 64.
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yet have significant impact on the continent.140 What needs to be stressed is that the low number
of applications in the African system is not due to a lack of violations on the continent.141 The
problem in the African system lies mainly in the insufficient domestic practice.142 Domestic
decisions are only taken in a handful of cases, due to a lack of individual access to redress at the domestic level. There are several reasons for this, including the lack of a legal culture in most African states, the inaccessibility of domestic remedies due to distances and costs, and structural deficiencies in procedures.143 Therefore, only a few cases reach the regional system
in the first place.144 However, compared to the other regional systems, the number of cases
declared admissible when they reach the regional system is considerably higher, around 70%.145
Concluding, individuals in Europe have direct access to the ECtHR. In the Inter-American system, individuals only have indirect access to the ACtHPR, possibly through referral by the IACommHR or the state. In Africa, direct access to the ACtHPR is exceptional, and only possible if a state has explicitly recognized the jurisdiction of the ACtHPR. Moreover, while in the European and Inter-American system most cases are rejected at the (pre-) admissibility stage, in the African system cases do not even reach the regional system to begin with.
3.3. Margin of discretion
Individual access to justice can also differ through interpretation of the admissibility criteria. As we have seen in the previous chapter, regional mechanisms have a margin of discretion in the assessment of the procedural admissibility criteria. In fact, all admissibility criteria have a certain margin of discretion.146 This margin recognises that different, but at the same time
powerful, approaches to human rights issues can exist in different regions.147 It will therefore
now be assessed to what extent this margin plays a crucial role in the regional systems.
The importance of this margin of discretion in Europe is demonstrated by the fact that this concept, together with the principle of subsidiarity, will be included in the preamble of the ECHR when Protocol 15 enters into force. Like the exhaustion of remedies rule, the margin of
140 Huneeus and Madsen (n 6) 151. 141 Asare (n 3) 230. 142 Hampson (n 58) 163; Viljoen (n 61) 74-75, 96. 143 Viljoen (n 61) 74. 144 Hampson (n 58) 164. 145 Ibid 171. 146 Londras (n 40) 61, 66. 147 Ibid 93.
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discretion is also based on the principle of subsidiarity.148 By assessing whether domestic
remedies have been exhausted, the ECtHR decides directly whether domestic remedies are effective in principle. In these cases, the Court must balance individual interest against the interest of states.149 Moreover, this margin of discretion also shows that even the strict six
months’ time limit rule can be interpreted broadly, since the ECtHR can determine exactly what the applicant must submit in order to meet this threshold. A decade ago, the six months period would be paused when the applicant submitted a letter explaining the facts of the case. Nowadays, the applicant must submit a fully completed application form.150 As far as
individual access is concerned, the victim requirement allows for several exceptions, although it is interpreted quite strictly compared to the other regional systems. The ECtHR must ensure that the admissibility criteria are not applied too strictly, as this would limit the effectiveness of the regional system.
The margin of discretion in the Inter-American system stems from the fact that there are many exceptions to the exhaustion of domestic remedies rule. Also, the strict six months’ time limit shifts relatively easily to ‘a reasonable period of time’ and is seldom strictly adhered to. Without this margin, cases would be considered inadmissible in even more cases and this would genuinely affect the effectiveness of the regional system. The narrowest margin of discretion in the Inter-American system is used to assess the individual access criterion, as the ACHR has already formulated this criterion relatively broadly.
Due to the lack of domestic access in the African system, the margin of discretion may be even more important than in the other regional systems. Where there is such a lack, the applicant does not have to comply with the exhaustion of local remedies rule, because this would directly infringe the effectiveness of the regional system.151 To ensure effectiveness of
the system, the time limit in the African system is also broader than in the European and Inter-American system. This can be explained by several factors, including the fact that the African system is relatively new. As we have seen both in the European and Inter-American system, it took a certain period before awareness of the regional system and thereby the number of individual applications increased.152 We see an emerging trend towards a stricter approach in
the African system. It is to be expected that, as awareness of the regional system increases at
148 Bantekas (n 2) 229. 149 Londras (n 40) 52. 150 Ibid 51-52.
151 Augusto (n 6) 102; Chenwi (n 79) 394. 152 Shelton (n 53) 3.
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the domestic level, the time limit will be formally approached stricter.153 At this moment, a too
strict interpretation would undoubtedly reduce the effectiveness of the system and therefore the margin of discretion is of great value. Also, for the time being, the victim requirement is interpreted quite broadly. Even if an individual is not considered a victim, he can still file an individual complaint because of the unique possibility of an actio popularis in the system.
The margin of discretion used in the regional systems thus rather differs, depending on the regional context and thereby the required margin to ensure effectiveness of the system. According to Lord Hoffmann ‘human rights are universal in abstraction but national in application’, which makes the use of the margin of discretion doctrine unavoidable.154 Regional
systems interpret universal human rights with respect for regional cultures and traditions, as culture ‘ought to be recognized and reaffirmed as an inherent part of human rights.’155 When
using the margin of discretion to address these regional differences, it may be ambiguous to really uphold the universality of human rights, as these concepts are very controversial. There is only a thin line to draw between respecting regional differences and at the same time respecting the universality of human rights.156
One of these different approaches to the universality of human rights follows in the first place from the establishment of both judicial and non-judicial mechanisms in the regional systems.157 In the European system, there is only a judicial body, the ECtHR, which grants
direct access for individual applications and takes legally binding decisions. It can therefore be said that in the European system, the universality of human rights can be maintained rather easily if the regional system wants to. In the Inter-American system, individuals have no direct access to the ACtHPR and legally binding decisions. The IACommHR issues recommendations, in which states have some discretion to interpret the recommendations considering the regional culture. These recommendations of the IACommHR have a significant impact in the region.158 In this sense, universality of human rights may be undermined.
However, the IACommHR may refer a case to the IACtHR if the state does not comply with the recommendations. The IACtHR also has, although not binding, advisory power at the request of any OAS member state.159 These practices contribute to developing the scope of the
153 Sarkin (n 5) 289.
154 Hoffmann (n 88) para. 23, 27. 155 Kroetz (n 108) 49.
156 Ibid 48, 56.
157 Christof Heyns, David Padilla, and Leo Zwaak, ‘A Schematic Comparison of Regional Human Rights Systems:
An Update’ (2006) 4 IJHR 164.
158 Huneeus (n 73) 498. 159 Shelton (n 53) 2.
