Corps de l’article

On September 7th 2014, the Member States of the League of Arab States, or Arab League (LAS),[1] approved the Statute of the Arab Court of Human Rights (Statute), making provision for the establishment of a new regional human rights mechanism.[2] With the Arab human rights system in its infancy, the Statute addresses a significant lacuna in the indigenous protection of human rights and in theory could constitute an important step in securing such rights. However, it is true that its worth can only be measured if the Arab Court of Human Rights (ACtHR) is capable of making, or makes, a significant and real contribution to securing the rights of the citizens of the LAS Member States.

The parent body, the LAS, is a regional, intergovernmental organization founded in 1945, with its headquarters in Cairo (Egypt), membership of which is open to independent Arab states.[3] The LAS Charter is the organization’s constituent instrument, defining its structure and functions. To the modern eye the LAS Charter appears rather simplistic in form; its paramount objectives are centered on the strengthening of inter-state relations, upholding the sovereignty and independence of its Member States and enhancing co-operation in economic and financial affairs, and the communications, social, health and cultural fields.[4] The realization of self-determination also appears to have been a motivating force.[5] Nowhere in the LAS Charter is any explicit reference made to human rights. It may be unrealistic to have expected much in this regard at the time, given that Arab governments have traditionally maintained a marked reluctance to pay heed to these values but rather adhere to sovereignty-based conceptions of international law.[6] In fact, many of its Member States do not adhere to the values of liberal representative and pluralist democracy to this day.[7] However, the LAS subsequently adopted a human rights policy as one of the areas of co-operation among the membership[8] which led in 1968 to the establishment of the Permanent Arab Commission on Human Rights (Permanent Commission), a largely consultative body, rather than a monitoring one.[9] It was only in the 1990s that the LAS earnestly began to pursue a human rights-based path, culminating in the signing of the Arab Charter on Human Rights (1994 Charter).[10] The 1994 Charter never entered into force and was replaced ten years later by a revised Arab Charter on Human Rights (2004 Charter), which became operative in 2008.[11]

A notable feature of the 2004 Charter is the lack of a judicial supervisory organ taking the form of a regional human rights court. Instead, it makes provision for an Arab Human Rights Committee mandated to examine and comment upon state reports detailing the domestic measures taken to implement the rights and freedoms recognized in the 2004 Charter.

During 2012, the project for an Arab human rights court became a priority for the LAS, largely as the result of two developments. First, increased calls for better protection of fundamental freedoms and democratic norms advanced during the popular uprisings in the Arab world, collectively known as the “Arab Spring”.[12] Secondly, proposals for modernizing the LAS so that it was better equipped to address contemporary challenges. Moving relatively swiftly, a draft statute for an Arab court of human rights was prepared and approved in 2014. Despite attracting considerable criticism,[13] the existence of a judicial body, however imperfect, seems, at least in theory, preferable than none at all. At the same time, it should be noted that Arab states do not have much experience of regional courts: since the 1950s, the LAS has attempted unsuccessfully to establish an Arab court of justice as its judicial organ.[14]

The focus of this article is a critical assessment of the ACtHR, its structure, composition and competences, and the salient features and flaws of its Statute, deliberated in Section III. This article highlights the fact that a number of important jurisdictional and procedural issues are absent from the Statute. Arguably the most significant of these is the fact that no provision is made for a right of individual petition, the jurisdiction of the ACtHR being limited to interstate cases, an extraordinary state of affairs for a human rights court. The extent to which the ACtHR can act as an effective guarantor of human rights is a key consideration. Where pertinent, comparisons with other regional human rights treaties and courts will be made, thereby drawing attention to the Statute’s limitations. The fact that the ACtHR has the capacity to apply and interpret the 2004 Charter justifies a brief consideration of the 2004 Charter which is provided in Section I. However, the specific rights included in the 2004 Charter are similar to those contained in comparable documents, especially the African Charter on Human and Peoples’ Rights (African Charter);[15] these have been subjected to repeated and detailed analysis elsewhere and hence there is no need to rehearse those arguments here which in any case are beyond the scope of this article. As the sole supervisory body prior to the creation of the ACtHR, the Arab Human Rights Committee is examined in Section II. Its role is also a limited one. This article therefore reaches the conclusion that the Arab human rights system is feeble and ineffectual.

I. The Arab Charter on Human Rights - A Brief Overview

Given that the ACtHR’s formal role is to apply and interpret the 2004 Charter, it seems appropriate to give a brief account of the salient features of this instrument. The initial attempt by the LAS at a human rights treaty, the 1994 Charter, never attracted the support necessary to enter into force. It was considered fundamentally flawed as it contained provisions incompatible with basic standards of international human rights law, lacking safeguards or effective measures of implementation.[16] In particular, it contained a general limitation clause effectively allowing for the negation of the enjoyment of the Charter’s rights and freedoms.[17] The 1994 Charter was accordingly described as “a dead letter” and “meaningless”.[18]

The 1994 Charter was replaced by a revised treaty which was adopted by the 16th Ordinary LAS Summit at Tunis on 22 May 2004.[19] The 2004 Charter entered into force in 2008 once it had been ratified by seven LAS Member States.[20] Despite the fact that the 2004 Charter has its imperfections, it nevertheless constitutes a major improvement on the 1994 Charter and contains some novel provisions.[21]

The 2004 Charter joins the ranks of those regional instruments that contain in a single binding legal document all three categories of human rights, civil and political rights, economic, social and cultural rights and third generation or peoples’ rights.[22] It thus reflects in part the position adopted by the Universal Declaration on Human Rights (UDHR)[23] and the Vienna Declaration which call for parity between the different generations of rights.[24] But neither should it be overlooked that the 2004 Charter is also inspired by the Islamic philosophy of rights which is ‘theocentric’ and places greater emphasis on the nexus between the individual and the wider community. Thus, it focuses more on the collective, rather than the perceived unbridled individualism-cum-licence of the Western classical theory of human rights.[25] While the 2004 Charter situates international human rights within the established cultural, societal and religious context, responsive to Arab needs and values, it is encouraging to observe that it asserts in the Preamble the principles of, inter alia, the UDHR and other international human rights treaties and proclaims as an essential element of human rights “the principle that human rights are universal, indivisible, interdependent and interrelated” (article 1(4)).[26] Moreover, a safeguard clause can be found in article 43 of the 2004 Charter[27] to the effect that the Charter may not be manipulated so as to weaken national or international standards. Nowhere does the 2004 Charter assert explicitly the primacy of Islamic Sharia (religious law, divinely authoritative) if in conflict with contemporary human rights standards;[28] only in the context of positive discrimination in favour of women.[29] No doubt, the Islamic philosophies of law and religion will exert considerable influence in how the 2004 Charter is perceived and interpreted.[30]

The 2004 Charter allows for derogation in “exceptional cases of emergency” and must be strictly required by the necessity of the circumstances.[31] Measures of derogation must be consistent with the other obligations of States Parties under international law and must also be non-discriminatory.[32] Derogation from certain rights is prohibited and judicial guarantees for their protection cannot be suspended.[33] This provision, which seems to be more stringent than global standards,[34] is a considerable improvement upon the corresponding provision in the 1994 Charter which demonstrably failed to do so.[35]

Problematic is the fact that the 2004 Charter contains many instances where the rights and freedoms are expressed in general and opaque terms and the substantive content is unenumerated. Too many rights and freedoms are subject to limitations and the dictates of national law.[36] The denunciation of Zionism, initially expressed in the 1994 Charter, may seem unfortunate and outdated but can be explained as a political imperative while the Palestinian question remains unresolved.[37] In fact, for many years Arab states have used the human rights discourse not so much to advance the cause of fundamental freedoms in the region but to condemn Israel for its treatment of the Palestinians.[38]

Nevertheless, the 2004 Charter is to be commended for taking account of the evolution of international human rights law so that protection is extended to vulnerable groups such as migrant workers, minorities and persons with disabilities.[39] There is no mention as such of the aged[40] or indigenous peoples, but bringing the latter within its scope is not an insurmountable problem.[41] The 2004 Charter does not list in great detail the rights of women and children so it is constructive that the safeguard clause in its article 43[42] may not be used to undermine national or international standards, particularly in relation to women, children and minorities.

States that ratify the 2004 Charter are under a clear duty to give effect domestically to the rights therein by adopting legislative or other measures.[43] This obligation does not amount to a requirement to incorporate the treaty as such into national law but it should nevertheless result in its practical implementation.[44] Nevertheless, in order to meet their international obligations and better secure human rights, it would be preferable if the Charter in toto was incorporated into national law.

Viewed overall, the 2004 Charter may be regarded as an adequate human rights treaty notwithstanding the fact that some of its provisions fall short of current norms of international law and human rights.[45] The UN High Commissioner for Human Rights at the time, Louise Arbour, was particularly critical.[46] Safeguards or effective measures of implementation are still insubstantial. These are concerns which the ACtHR, if and when it becomes operative, will no doubt have to address. The ACtHR’s approach to the interpretation and application of the Charter’s rights and freedoms is awaited with interest; will it exercise restraint and show deference towards national decision-making, or will it seek to enhance the protection of human rights? Just how effective a guarantor of human rights will it turn out to be? These are speculative questions that can only be answered once the ACtHR commences its work. But the African experience suggests that pessimism may be misplaced and that weak institutions on paper may develop into robust guardians. Notwithstanding the early jaundiced view of many that the African Charter was fatally flawed and human rights inadequately protected by a feeble Commission[47] over the years, the African Commission has evolved into a solid and effective guarantor of human rights.[48]

II. The Arab Human Rights Committee

A significant omission from the 2004 Charter is that of a complaint mechanism for states and individuals. It provides for an Arab Human Rights Committee (Committee), but as will be seen, its role is extremely limited. The 2004 Charter does not address the Committee’s mandate in great detail but concerns itself mainly with procedural matters regarding the appointment of its members (articles 45 to 48). The reason is that, according to article 45(7) of the 2004 Charter,[49] the Committee is empowered to establish its own Rules of Procedure (Rules) finally adopted in 2014.[50]

The Committee, which became operative in March 2009, is seated in Cairo (Egypt) and is composed of seven members, nationals of State Parties, elected by secret ballot by contracting Parties.[51] Committee members are elected for a four-year term and may be re-elected for one further term.[52] They must be highly experienced and show competence in its field of work,[53] but it does not seem that prior legal experience is a requirement. Committee members serve in their personal capacity and must be independent and impartial.[54]

Article 48 of the 2004 Charter[55] lays down the Committee’s terms of reference and its role is very limited and does not even make provision for a quasi-judicial function. The Committee’s role is not that of a guardian or protector of human rights, but supervisory. Unlike other regional human rights supervisory organs which have a dual mandate, scrutinising, on the one hand, periodic state reports on the measures taken to implement the rights and freedoms envisaged in a relevant treaty and, on the other hand, considering individual petitions or interstate complaints on alleged violations,[56] the Committee has been entrusted only with the former function; under article 48 of the 2004 Charter,[57] contracting parties assume an obligation to submit such reports. However, under its Rules, the Committee has assumed the additional mission of interpreting the 2004 Charter which may provide states with guidance as to their obligations.[58] The Committee’s powers in this context could be important given that it has assumed a quasi-judicial function, similar to the advisory jurisdiction of international judicial bodies, in defining and declaring the extent of fundamental freedoms and duties.

Pursuant to article 48(6) of the 2004 Charter,[59] the Committee’s reports, observations and recommendations are public documents and it is under a duty to disseminate them widely. The Committee examines the reports, comments upon them and makes “the necessary recommendations in accordance with the aims of the 2004 Charter”.[60] The Committee submits annual reports on its activities to the Council, the premier organ of the LAS, with its comments and recommendations. This provides it with the opportunity to hold States Parties accountable. This is the most that the Committee can do under its present powers.

The fact that the Committee’s work is published in Arabic only limits its accessibility to a wider audience, a fact that has been criticized.[61] Nevertheless, the Committee carries out its principal mandate, namely, to review periodic reports relating to the domestic implementation of the 2004 Charter. Although not envisaged in the latter, the Committee also accepts reports from non-governmental organizations (NGOs) and other interested civil society organisations (CSOs) with the proviso that these bodies are located in the contacting party whose report is under examination and that the reports do not focus on individual cases.[62] While such supervision has its uses and can be effective if states accept the Committee’s recommendations in good faith, it does little to secure effective legal protection in individual cases.

Although the Committee has taken the opportunity offered by the drafting of its Rules[63] to expand its mandate by assuming an interpretative role, this has been but a modest step. At present, the Committee has no right to petition the ACtHR, nor can it consider individual complaints, significant weaknesses. It is disappointing to note that there is no mention whatsoever of the Committee in the Statute of the ACtHR; the two bodies appear to exist in a vacuum with no formal relationship. They will operate in parallel, in their different spheres, but never interact. By way of contrast, the African Commission has interpreted its mandate creatively, including through its Rules of Procedure, to expand its powers in significant ways.[64] It can thus appoint thematic rapporteurs and working groups and send ‘protection missions’ to conduct on site investigations.[65] The Committee could do worse than follow its example; the adoption of its Rules in 2014,[66] so unexceptional, must be considered a missed opportunity, but perhaps this reflected the limit of the achievable. Nevertheless, the fact remains that in the twenty-first century, its limited mandate is a matter of considerable regret.

III. The Arab Court of Human Rights

The 2004 Charter did not follow the model established by the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR) and create judicial or quasi-judicial bodies with the competence to adjudicate on complaints alleging violations of treaty obligations by the contracting parties. Such a development had to await the adoption of the Statute of the ACtHR in 2014.

The initiative for setting up an ACtHR was accepted on March 26th 2013 during the LAS Council Summit at Doha (Qatar) based on a proposal submitted by Bahrain the previous year.[67] In September 2013, the LAS Ministerial Council entrusted a group of experts (the High-Level Committee of Legal Experts of the Member States Concerned with the Preparation of the Draft Charter of the Arab Human Rights Court) with the task of drafting an appropriate text for the Statute of the ACtHR. At its fifth meeting, from March 15th to March 18th 2014, the group finalized the draft statute. The LAS Council Summit meeting in Kuwait approved it in principle but requested revisions from the group of experts.[68] The Statute of the ACtHR was finally endorsed on 7 September 2014.[69] Unfortunately, NGOs/CSOs were excluded from the whole process and their concerns about the Statute’s failings were ignored.[70]

The Statute of the ACtHR was not attached to the 2004 Charter; nor was it adopted as a protocol to the LAS Charter. Thus, the ACtHR is conceived as a separate judicial organ affiliated to the LAS, and certainly not as its main judicial body. This is manifested in article 2 of the Statute,[71] which stipulates that, within the LAS framework, the ACtHR is established as an independent Arab judicial body seeking to consolidate the contracting parties’ will to implement their obligations pertaining to human rights and fundamental freedoms, a commitment which arguably extends further than the 2004 Charter, as is evident from the reference in article 16 of the Statute[72] to other Arab human rights treaties. The ACtHR’s nature as an autonomous treaty body is confirmed in the Statute by article 16 setting out its jurisdiction and by article 4 creating a discrete body which exercises certain administrative powers,[73] the Assembly of States Parties as opposed to the LAS.

It should be observed from the outset that a number of important substantive and procedural matters regarding the work of the ACtHR have been omitted from the Statute. It may be that such details will be provided by the Rules of Procedure (ACtHR Rules) but a cynical interpretation may suggest that the LAS Member States are simply keen to exercise tight control over the activities of the ACtHR. The scepticism is reinforced by the fact, although the ACtHR drafts its Rules, it is the Assembly of States Parties that adopts them.[74] This is contrary to established international practice.[75]

A. The Assembly of States Parties

No human rights court exists in a vacuum. The establishment of an Assembly of States Parties (Assembly), composed of a representative of each State Party, is reminiscent of the institutional set up of the Council of Europe and the Organization of American States (OAS).[76] Under the European system, both the Committee of Ministers and the Parliamentary Assembly have roles to play in the election of judges, the carrying out of judgments and the setting of the budget.[77] Under the Inter-American system, the OAS General Assembly has similar functions.[78] Article 4 of the ACtHR Statute does not explicitly state all the competencies with which the Assembly will be endowed but leaves this matter to be determined in its bylaws, or rules, which will be adopted once the Statute has entered into force. The only competencies laid down in the third paragraph of article 4 of the Statute[79] are the election of judges; the acceptance of the ACtHR’s annual report; the drawing up of its budget;[80] and the adoption of a mechanism to ensure that judgments are executed.[81] However, the Statute affords to the Assembly other duties as well, which, as will later be argued, appropriates from the ACtHR important functions which are traditionally exercised by international courts. One of these, in relation to the Rules, has been mentioned above. It cannot be discounted that the Assembly is intended to keep a close watch on the ACtHR.

B. Composition of the Court

The ACtHR, seated in Manama (Bahrain),[82] is composed of seven judges, though this may be increased to eleven at the request of the ACtHR and if approved by the Assembly.[83] The ACtHR convenes in chambers of at least three judges to hear the subject matter of disputes.[84] Oddly, the Statute makes no mention of how many judges are required for the ACtHR or chambers to be quorate but it may be one of the issues to be determined by the Rules.[85] The Statute is also silent as to the ACtHR’s official and working languages, which presumably will be Arabic.[86] Also absent from the Statute is any requirement that the different regions and its principal juridical traditions be represented on the ACtHR.[87] The judges must be nationals of State Parties, as opposed to nationals of LAS Member States which may not necessarily have ratified the Statute, and no more than one judge may be of the same nationality.[88] Each member state may nominate two of its nationals as candidate.[89] Candidates must possess competence and experience in legal or judicial office and must have the qualifications for appointment to the highest legal or judicial offices in their states, and experience in human rights is preferred.[90] The reference to legal office may suggest persons who have held positions such as that of attorney-general. The preference for human rights expertise is sensible although this has been criticized by the International Commission of Jurists as inadequate.[91] As was mentioned, the judges are elected by the Assembly by secret ballot[92] and in an unusual move, it maintains a reserve list of judges from the candidates that were not elected.[93]

Judges serve a term of office of four years with the possibility of one further renewable period.[94] The Statute is silent as to whether the judges are hired on a full-time or part-time basis, only in relation to the president does the Statute stipulate that the position is full-time,[95] although they must be at the service of the ACtHR at any time.[96] Vacancies may result from death, resignation, permanent disability or dismissal.[97] In such circumstances, another judge shall be elected to complete the predecessor’s term of office unless the vacancy occurs six months prior to the expiration of the judge’s term of office, in which case the president may appoint a judge from the reserve list.[98] A judge’s removal from office is in the hands of the other judges who must decide that he or she no longer meets the requirements and demands of the office or meets the standards for which he or she was appointed.[99]

Although the Statute does not explicitly state that the judges serve in an individual capacity and not as representatives of their states,[100] this condition follows from the judges’ duty to perform their tasks with independence and impartiality.[101] However, in order to reinforce the commitment to judicial independence a provision should have been added to the effect that State Parties shall not seek to influence, induce, pressure or threaten the judges in the discharge of their functions.[102]

A judge who has had previous involvement with a case in any manner whatsoever may not hear that case.[103] In addition, a judge must declare any possible conflict of interest with any case he or she is hearing.[104] A judge who is a national of a state that is a party to a case must recuse himself or herself.[105] International practice is at variance and the only compelling reason to justify it is to avoid any semblance of partiality, but it is probably irreconcilable with the assertion of the judges’ independence.[106]

As has been seen, the Statute’s provisions on the selection of judges have its shortcomings but these problems are not, in theory, insurmountable. They may be addressed by the Rules, as has happened in other jurisdictions. A policy of openness and transparency would help bolster faith in the integrity of the ACtHR.

C. The Question of Locus Standi

A crucial consideration that is at the crux of whether any human rights mechanism can amount to an effective guarantor of human rights revolves around the standing made available to individuals. Regrettably, the Statute fails this test miserably. Article 19 of the Statute[107] envisages a restrictive right of access to the ACtHR in that individuals are completely excluded from approaching it, the right being confined to contracting parties whose citizens, or ‘subjects’,[108] claim to be victims of human rights violations by another state. Thus, the cases before the ACtHR will be in effect interstate disputes, as no right of individual petition is recognized. In essence, the ACtHR will be nothing more than a toned down version of the International Court of Justice.[109] Universal and regional human rights systems make provision for interstate cases, but their experience is that only rarely does a party institute proceedings against another party; this because political considerations prevail and states shy away from accusing other states of violating human rights.[110] Usually only in the context of grave or massive violations can states be prevailed upon to pursue legal action against another state.[111] But under the Statute, a state is limited to exercising its right of diplomatic protection,[112] it is not the case that the contracting parties are deemed to have a collective interest in upholding the provisions of the 2004 Charter.[113] The question of third-party intervention to uphold the common good does not arise.[114] Consequently, if State A is persecuting its own nationals, a religious or ethnic minority group for sake of argument, no matter how egregiously, State B would be unable to complain to the ACtHR. Furthermore, only a ‘victim’ can be the subject of a complaint. The possibility of a community interest, a kind of actio popularis or challenge in abstracto does not come up. The only positive feature in this sorry landscape is the fact that article 19(2) of the Statute[115] envisages a right of access for NGOs: contracting parties may, at any time, recognize that NGOs, which are accredited and working in the field of human rights in the contracting party whose subjects allege human rights violations, will have locus standi. The African experience demonstrates the invaluable role that NGOs can play in this regard and its worth should not be underrated.[116] Of course, this then begs the question whether states will be willing to accept this discretionary option and, if so, as to the degree to which NGOs will be free from harassment, hindrance and obstruction to perform this task.

If the LAS and its Member States were reluctant to grant individuals automatic or direct access to the ACtHR, it should have been possible to follow the example of the ACHR, Africa and the ECHR, and have the Committee act as a filter mechanism, endowing it with the sole right to process and refer individual complaints to the ACtHR.[117] This procedure could have been made contingent on a state’s prior acceptance of the ACtHR’s jurisdiction in accordance with a separate declaration.[118] Furthermore, following international practice, conditions of admissibility could have been put in place to ensure that cases without merit could have been dismissed at an early stage of the proceedings without having to encumber the ACtHR.[119] For the sake of credibility, at the very least the Committee should have been allowed to initiate proceedings before the ACtHR proprio motu.[120]

D. The Competence of the Court

According to article 16 of the Statute,[121] the ACtHR has jurisdiction over all cases and litigation arising from the application and interpretation of the 2004 Charter as well as from any other Arab treaty in the field of human rights to which the disputing state is a contracting party.[122] The implementation of the protected rights and freedoms is a matter for the national authorities and not for the ACtHR and this fact is acknowledged by article 18 of the Statute[123] which proclaims, inter alia, that the ACtHR’s jurisdiction is complementary to that of the national courts and does not supplant it.[124] Moreover, article 16(2) of the Statute[125] explicitly acknowledges the so-called principle of ‘Kompetenz-Kompetenz’, namely, that the ACtHR possesses the inherent power to decide itself any challenges to its jurisdiction.[126] Article 24(1) of the Statute[127] provides that challenges to the ACtHR’s jurisdiction will be examined by a single judge. It seems inappropriate that a single judge should have the responsibility of determining the important questions that may be at stake in preliminary objections. It is perhaps unfortunate that the Statute itself has nothing further to say on the subject of preliminary objections although the Rules may address it. This has been the case in other jurisdictions.[128]

In relation to the “Arab Treaties”, the 2004 Charter does not explain which these might be. A broad reading could extend to any relevant human rights instrument that a State Party has ratified but a safer interpretation is that the reference is to treaties adopted by the LAS; if so, the only such treaty in question is the 2004 Charter. However, it is submitted that it can extend to include multilateral instruments adopted under the auspices of the LAS. These include the Arab Convention against Corruption,[129] and the Arab Convention on the Suppression of Terrorism.[130]

The Statute is silent as to the applicable law to which the ACtHR must have regard in determining the cases before it. An ordinary reading of article 16 does not suggest that the ACtHR is limited to taking account of the 2004 Charter and the Arab treaties to the exclusion of other international law. It is an accepted practice in international law for a court to rely on norms of international law in order to interpret and apply particular provisions of the treaty under consideration. The phrase ‘application and “interpretation” could allow the ACtHR, if willing, to draw upon other sources of law, including international human rights law, in order to perform its role properly.[131] Thus, whereas the ECtHR is similarly limited in subject matter jurisdiction to the ECHR, it has frequently had to take into account other international law.[132] By way of contrast, the ACtHPR has expressly been granted a broad jurisdiction.[133] It is not conceivable that the ACtHR could be expected to play a credible and effective role unless it could invoke the relevant norms of general international and human rights law, and of universal and regional human rights treaties. It is important to bear in mind that many of the LAS Member States are parties to United Nations (UN) treaties such as the International Covenant on Civil and Political Rights[134] (ICCPR) and regional instruments such as the African Charter. In view of the Statute’s silence on the matter and given a court’s inherent jurisdiction, it is possible to assert with confidence that the ACtHR should be able to resort to this rich body of law.

Article 20 of the Statute contains the so-called “promissory clause”, whereby LAS Member States, which are not contracting parties to the Statute, may declare their acceptance of the ACtHR’s jurisdiction either for specific cases or in general. Such declarations of acceptance of jurisdiction may be based on reciprocity or be unconditional or be time limited.[135]

Article 17 of the Statute[136] limits the jurisdictional reach of the ACtHR by adopting the condition ratione temporis so that the ACtHR may only take account of facts that occurred after the Statute entered into force for the state in question. However, the concept of “continuing violations”, that is, that jurisdiction will not be declined even though the violation had taken place before the state had become a party to the Statute because its effects continued to impact after that time, is embedded in international human rights law, and should therefore guide the ACtHR.[137]

Article 18 of the Statute[138] enumerates three admissibility requirements, which appear to be exhaustive, which must be satisfied for the ACtHR to be able to proceed with a case. The first condition is the exhaustion of local remedies in the respondent state, as evidenced by a final and definitive judgment given according to the domestic legal system. This proviso is a generally recognised rule of international law[139] and exists in all major human rights instruments.[140] The wording of this provision suggests that the remedy should be a judicial one. Furthermore, international human rights law has established that remedies must be genuine and do not need to be exhausted if they are non-existent, ineffective or unreasonably prolonged.[141]

The second condition is that a case having the same subject matter has not been filed before another regional human rights court.[142] It would thus appear that the Statute does not provide for the ACtHR’s exclusive jurisdiction and that submitting complaints with the UN treaty bodies would not be disallowed. If this conclusion is correct, it should be possible to file, even simultaneously, complaints before the ACtHR and the UN Human Rights Committee or the UN Committee on the Elimination of Discrimination Against Women or even the African Commission,[143] but curiously not, say, the African Court of Human and Peoples’ Rights (ACtHPR). It is not readily apparent why recourse to the ACtHPR would be impermissible but not to the African Commission, except perhaps in relation to the nature of the final decision, whether or not it is deemed legally binding. Naturally, there is no guarantee that the other bodies will accept them.[144] If this was not the intention it might otherwise have been preferable to have used the language of the ACHR or the ECHR which exclude other international settlement procedure.[145]

The third condition is that the case must be lodged with the ACtHR at the latest six months after the applicant was notified of the final judgment given by the domestic court. The six-month rule might be in line with the European and Inter-American systems[146] but is arguably too short for a region with no prior experience of human rights litigation and should therefore be interpreted flexibly. It would nevertheless have been preferable to have adopted the rule applied by the African system that the case must be submitted within a reasonable period of time.[147]

The ACtHR would additionally need to ensure that the complaint impleads a state party,[148] or that the state accepts the ACtHR’s jurisdiction ad hoc under article 20 of the Statute,[149] and that it possesses jurisdiction ratione materiae. The substantive provisions of the 2004 Charter therefore assume added importance.

Under article 22 of the Statute,[150] the ACtHR is entitled at any stage of the proceedings to assist the litigant parties to reach an amicable settlement “on the basis of human rights principles and values and the rules of justice”.[151] This procedure will be confidential. However, should a settlement be reached, the ACtHR shall render a decision, which will not only record briefly the facts but also the solution reached. The case will then be struck off the docket. The Assembly is responsible for monitoring the execution of the decision.

E. Certain Procedural Issues

The ACtHR conducts its hearings in public unless it decides, in order to preserve the interests of the parties or to ensure the proper administration of justice, or upon application by the parties, they be held in closed session. The practice of the Inter-American and European systems, that this should happen only in “exceptional circumstances”, seems preferable.[152] The Statute’s provisions concerning judgments in contentious cases follow established international standards. Thus, judgments must be taken by a majority,[153] read in open court[154] and dissenting opinions may be attached.[155] A time limit of sixty days once deliberations have ended is imposed upon the bench to issue the judgment.[156] The Statute does not empower the ACtHR to order any remedy or reparation or compensatory damages.[157] This is an unfortunate omission which seriously weakens the effectiveness of the ACtHR.[158] The judgments are final and without appeal.[159] However, they may be reconsidered if one or more of the six grounds laid down in article 27(2) of the Statute[160] are accepted by the ACtHR. Parties to the original case must lodge an application for reconsideration within six months from the day the judgment was serviced to them. The grounds are both procedural, e.g. breach of an essential procedural rule or the emergence of previously unknown facts, and substantive, e.g. that the ACtHR flagrantly exceeded its jurisdiction or the judgment’s reasoning was not clarified. It is submitted that the latter grounds are tantamount to a right of appeal obliging the ACtHR either to confirm its previous judgment or to annul it. There is no doubt that this provision serves to protect the interests of contracting states, which could use it as a deterrent if, in their opinion, the ACtHR has acted in a proactive manner or simply if they are dissatisfied with its ruling. However, most of these grounds are capable of undermining the ACtHR’s mandate to act in a truly independent way and are therefore disturbing. A notorious example of blatant disregard for the international rule of law was the decision of the Southern African Development Community (SADC) to suspend the organization’s Tribunal in 2010 following findings of human rights violations by Zimbabwe, on the grounds that the Tribunal had exceeded its jurisdiction, and the adoption of a new Protocol on the Tribunal on August 18th 2014 which severely limits its jurisdiction to the point of impotence.[161] Although it remains to be seen how litigant parties will use the capacity under article 27 of the Statute[162] to have judgments effectively reviewed and how the ACtHR itself will tackle this matter, arguably these are provisions which are not in line with regional human rights standards which limit revision to the emergence of new facts or evidence.[163] The Statute is silent on the correction of errors but this may be addressed by the Rules.[164]

The question of the enforcement of judgments, always an issue of concern as regards to the effectiveness of human rights courts, is addressed in article 26 of the Statute.[165] In particular, judgments shall be enforced immediately after being served to litigant parties and in accordance with the domestic procedures concerning the execution of final judgments given by national courts.[166] To ensure execution as envisaged in article 26 of the Statute[167] contracting parties will have to introduce the necessary changes in their domestic legal orders. As matters now stand, it is not clear from the Statute whether supervision of the judgments’ execution will rest with the ACtHR itself or the Assembly. Under article 29 of the Statute[168] instances of non-compliance with the judgments have to be included in the ACtHR’s annual report which will be presented to the Assembly for its approval.[169] What actions the Assembly may take to ensure compliance and secure the execution of judgments is not set out in the Statute since the adoption of a mechanism to ensure this awaits the work of the Assembly. It is submitted that the Assembly should be able to refer the matter of a contracting party’s persistent refusal to comply to the LAS Council for further action, although it is true to say that there is no institutional link between the two organs. As far as the ECtHR is concerned, the situation is considerably different because its judgments are transmitted to the Committee of Ministers, the decision-making body of the Council of Europe, which is then responsible for supervising their execution.[170] Although it is evident from the language of article 26 of the Statute[171] that judgments are binding on the parties to a case, it might have been prudent to have added an explicit provision to that effect in the Statute.[172]

There are a number of disturbing omissions in the Statute. Foremost is the absence of authority for the ACtHR to indicate or order, either proprio motu or at the request of a party to the case, provisional, or interim, measures in cases of extreme seriousness and urgency which are necessary to avert irreparable damage to individuals, or to preserve the rights of the parties.[173] No provision is made should a party fail to appear before the ACtHR or does not defend the case against it.[174] Neither is any provision made for any contracting party or the LAS Council or any subordinate organization and agency that believes it has a legal interest in a case or could be affected by its decision to petition the ACtHR to intervene.[175] In addition, other procedural matters, relating to written and oral procedures, are not covered.[176] There is no mention of evidence and witnesses.[177] It may be that the Rules will address these issues.

F. Advisory Opinions

According to article 21 of the Statute,[178] the ACtHR is endowed with the capacity to issue advisory opinions but the applicants with standing to request an opinion are limited.[179] In particular, contracting parties are not permitted to seek advisory opinions, this right being available only to the LAS Council or to any organizations and agencies subordinate to the LAS and only in regards to legal issues relating to the 2004 Charter and other Arab conventions on human rights. It is submitted that the Committee as well as the Permanent Commission qualify as such subordinate bodies. Provided they possess the necessary political will to act proactively, this avenue could be exploited astutely to promote and consolidate human rights in the region. Separate opinions are allowed and, just like majority opinions, they must be reasoned.

G. Final Matters of Procedure

The procedure for the amendment of the Statute is laid down in its article 34.[180] The initiative could come either from the ACtHR itself or from any contracting party, and will be addressed to the Assembly. Amendments shall enter into force one month after being ratified by two-thirds of contracting parties. A problematic aspect is that the amendments will not come into force for all parties but only for those which have accepted them. It follows that until all parties have ratified them the ACtHR will be forced to apply both the revised and the original Statute depending on whether the applicant and/or the respondent state has or has not accepted the amendments. Peculiar as this might be, it is in line with the workings of the LAS where decisions reached by a majority (i.e. not by unanimous vote) are binding only upon those Member States which have accepted them.[181]

The Statute shall become operative one year after its entry into force.[182] Withdrawal from the Statute is envisaged in its article 35 and will be effective one year after written notice is given to the LAS Secretary-General.[183] Cases before the ACtHR which were pending before the withdrawal came into effect shall continue and the withdrawing state “shall not be exempted […]from its obligations arising from the Statute while it was a party to it”.[184] An interesting question is whether withdrawal from the LAS would lead to withdrawal from the ACtHR as well. This is the case under article 58(3) of the ECHR, stipulating that those contracting parties ceasing to be members of the Council of Europe shall cease to be parties to the ECHR under the same conditions.[185] However, it should be noted that the relationship between the ECHR and the Council of Europe is much more integrated compared to that between the 2004 Charter and LAS, while the Council of Europe’s Member States are required to ratify the ECHR.[186]


As has already been observed, the Statute of the Arab Court of Human Rights(Statute)[187] does not deal with a number of important issues. First and foremost, it does not provide for a right of individual petition. This is arguably its leading failing which undermines the whole project. But neither does it make provision for remedies for victims nor the adoption of provisional measures. The latter omission is especially worrisome and surely limits the capacity of the Arab Court of Human Rights (ACtHR) to intervene in cases where massive human rights violations may be occurring. Moreover, given that the League of Arab States (LAS) has no other juridical organ in place it does not seem unreasonable to expect that the Arab Court of Human Rights (ACtHR) should have been provided with such means. It remains possible that certain of the Statute’s defects could be remedied by the Rules. Certainly, it is the case that the jurisdiction of the African Court of Human and Peoples’ Rights (ACtHPR) has been suitably complemented by its Rules.[188] But there is only so much that the Rules can be expected to do and realistically they cannot create a right of individual petition where none exists in the parent instrument.[189] Given its present mandate it is certain that the ACtHR is unlikely to be burdened with work. The ACtHR’s membership will be crucial; an activist and courageous bench, drawing on a court’s inherent powers or a creative, teleological approach to interpretation, could enhance its protective mandate. But it would have been unrealistic to have expected more from many of the regimes in question. Of course, it is theoretically possible for the LAS to expand the ACtHR’s mandate in a future protocol.

Thus far the record of ratifications of the Statute is disappointing. Saudi Arabia became the first state to approve it on June 24th 2016.[190] Six more Member States must adopt it before the ACtHR can become operative. A NGO has called on LAS Member States not to ratify the Statute until and unless it undergoes thorough revision, e.g. giving individuals direct access to the ACtHR.[191] However, the prospect of a repetition of what happened with the Arab Charter of Human Rights of 1994 is not especially appealing, especially if this meant that the region would have to wait many years before the ACtHR were finally set up. To what degree suasion from outside the region could be a factor in strengthening the protective mechanism is difficult to judge when dealing with illiberal regimes. The fact that European governments are, with the adoption of Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms,[192] seeking to rein in the European Court of Human Rights (ECtHR), calls into question their moral standing, weakens their ability to lead by example and project soft power, and undermines diplomatic efforts to inculcate good practice in other regional bodies. However, it would not be proper to consider the LAS in isolation. While the LAS has the distinction of being one of the oldest regional organizations it is by no means the only such association in that part of the world and many of its Member States are also members of other important regional groupings, such as the African Union[193] and the Organization of Islamic Cooperation (OIC).[194] Undoubtedly, the African Union has developed a relatively complex human rights system that is reasonably capable of holding Member States to account.[195] Nor should it be overlooked that many of the LAS Member States are already bound to defend and promote human rights as contracting parties to United Nations treaties such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of Discrimination against Women[196] and the Convention against Torture.[197] The 2004 Charter and the Statute, as regional complements to the protection and promotion of fundamental rights and freedoms, do not therefore constitute the only options. Nevertheless, it must be acknowledged that the states in question tend to accept only minimal oversight.[198] Insofar as the Statute itself is concerned, its limited locus standi specifications arguably render it fundamentally flawed and unfit for purpose. It is unlikely to be able satisfy the clamour for justice in the region and as such could even act to undermine the faith and the trust of the people in international institutions.