A NIVEL DE RECOMENDACIONES

Art. 4 I specifies that at the request of an OAU member state, the OAU itself, one of its bodies or another African organisation recognised by the OAU can prepare an opinion on any legal matter in reference to the Banjul Charter or any other relevant human rights instrument. And

in: RACHPR 7 (1998), pp. 132-150, 137 et seq. 390

Compare also: August Reinisch, Richterrecht im Völkerrecht?, in: JRP 9 (2001), pp. 294-303, 302; he argues that central elements of legal certainty such as stability and predictability – and even a “stare decisis” on the part of the judiciary would necessitate an international adjudicatory body.

391

Although in international law there is no “stare decisis” as in Anglo-American law, the judiciary (with its authority) has the same effect on subsequent decisions or a different decision-making body; comp. Malcom Shaw, International Law, 4th Edition, Cambridge 1997, p. 86. Shabtai Rosenne also expounds on the decisions of the ICJ concerning this matter: “While there is no formal hierarchy of international courts and tribunals, the pre-eminence of the Permanent Court and the present International Court is today generally accepted. Any other international adjudicatory body which ignored relevant dicta and decisions of the International Court would jeopardize its credibility”; compare ibid. The Law and Practice of the International Court 1920-1996, The Hague 1997, p. 1609 et seq. However, the ICJ is very cautious with regard to the legal qualification of its judiciary. For instance, it hardly proceeded any further in the Teheran hostage case, in which it described its preliminary decision as “settled jurisprudence”. Compare the only monographic work concerning the question of precedence through ICJ rulings: Mohamed Shabuddeen, Precedent in the World Court, Cambridge 1996, p. 154 et seq.

392

See also: Karin Oellers-Frahm, Multiplication of International Courts and Tribunals and Conflicting Jurisdiction – Problems and Solutions, in: Max Planck UNYB 5 (2001), pp. 67-104, 102.

so it is left up to the Court as to whether it complies with the request for preparation of an opinion or rejects this request. The opinions are to be substantiated in accordance with Art. 4 II. While doing so, every judge is empowered to render a dissenting opinion.

In contrast to the competence concerning contentious jurisdiction, the protocol no longer makes any reference to this jurisdiction on the part of the Court. For this reason the procedure, insofar as it is governed in Art. 4, has already been discussed at this point.

a) Roots and divulgence of advisory opinions in international jurisdiction

The approach to provide an international judicial organ not only with the competence for contentious jurisdiction but also to clarify abstract legal questions, originates from the continental-European legal realm whereas it was uncommon for the anglo-American.393

The PCIJ was the first international court to be granted the competence to issue advisory opinions beyond pending legal disputes.394

Its successor, the ICJ, again was entrusted with this function.395

Apart from the ICJ, only three international judicial organs have been consigned to issue advisory opinions. Among those are the ITLOS396

and both of the regional human rights Courts ECtHR397

and IACtHR398

. However, amongst those organs the procedural configuration concerning the petition authority (ratione personae) and the competence ratione materiae differs significantly. While especially the advisory opinion procedure before the ICJ holds manifolds complications, the admissibility of a petition to issue an opinion before one of the regional Courts is less complicated. This is due to the fact that the jurisdiction of the ICJ as the “World Court” is nearly overarching whereas the other Courts only consider a small field of international law (Regional Human Rights Law and, respectively, Law of the Sea). Therefore, the ICJ is much more sensitive towards the decision of whether or not to issue an opinion upon request. The ICJ sees the danger, that “the Court […] could intervene in any question related to the constitutional rights and the act6ivities of any of the main bodies of he United Nations or specialised agencies, or on any problem of the interrelations between

393

Felix Amerasinghe, Jurisdicion of International Tribunals; The Hague 2003, p. 503; Michla Pomerance in: Muller, Raic (eds), The international Court, p 272; Comp. for the different views on advisory opinions Manley Hudson, in: HarvLRev 37 (1924), pp. 971 et seqq.

394

Art 14 Charta of the League of Nations. Comp. concerning the drafting history in this connection Michla Pomerance, The Advisory Function of the International Court in the League and the UN Eras, Baltimore 1973, pp. 25et seqq.

395

Art. 96 UNC, Art. 65 et seqq. ICJ Statute. 396

Art. 191 ITLOS Statute. 397

Art. 47 ECHR. 398

States under the pretext of receiving a request for advisory opinions”399

Here, the Courts refers to the danger of political malpractice of the applicant.400

b) Discretionary power

To counteract this danger some Courts have the procedural power to dismiss an application. Apart from the ICJ, whose broad scope of jurisdiction makes this absolutely necessary, only the European Court of Human Rights has this kind of discretionary power. The Inter- American Court of Human Rights as well as the ITLOS pursuant to the respective conventional provision are obliged to comply with a request to render an advisory opinion.401

The African Court, however, has been given the discretionary power wheter or not to render an opinion by the protocol, as follows from the wording of Art. 4 I: “The Court may provide an opinion”. In light of the international advisory practice it is doubtful hat the Court will ever make use of this power. While there was no application for an advisory opinion before the European Court until now whatsoever, the ICJ has never refused an application on account of its discretion but always rendered the requested advisory opinion.402

c) Petition authority

The enumeration of those authorised to petition already indicates peculiarities. Not only all bodies of the OAU,403

but also all OAU members as well as the protocol’s non-ratifying

399

Application for review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion ICJ Reports, 1987, para 439.

400

ICJ Judge Winiarski holds that „the formal addressee of the opinion may be the organ which requested it, but the real addressees were the Parties […], the Organisation and public opinion”. Peace Treaties Case, ICJ Reports 1950, p 57 (Dissenting opinion).

401

Although Art. 64 ACHR clearly does not envisage discretionary power by its wording, the IACtHR has denied to issue an opinion which referred to a question pending before the IACHR. The IACtHR gave systematical reasons for its competence to dismiss the application: “The Court believes that a reply to the questions presented by Costa Rica, could produce, under the guise of an advisory opinion, a determination of contentious matters not yet referred to the Court, without providing the victims with the opportunity to participate in the proceedings. Such a result would distort the Convention system. Contentious proceedings provide, by definition, a venue where matters can be discussed and confronted in a much more direct way than in advisory proceedings. This is an opportunity which cannot be denied to individuals in contentious proceedings who do not participate in the later proceedings. Whereas the interest of individuals in contentious proceedings are represented by the Commission the latter may have different interests to uphold in advisory proceedings.” Advisory Opinion No. 12, OC-12/91, Series A No. 12, para 28. Comp. Scott Davidson, The Inter-American Human Rights System, Dartmouth 1997, p. 237, 241 et seq.

402

Felix Amerasinghe, Jurisdiction of International Tribunals; The Hague 2003, p. 538; Comp. Georges Abi- Saab, On discretion: Reflections on the Nature of the Consultive Function of the International Court, in: Boissons, Sands (eds.) International Law, The International Court and Nuclear Weapons, Camebrindge 1999, pp. 36-50, who at p 49 remarks with regard to the nuclear weapons opinion that the ICJ has given up its discretion: “One thus can reasonable conclude that in spite of its formal tribute to tradition the 1996 advisory opinion has hammered yet another, if not the last coffin of the theory of discretion.”.

403

The wording, “the OAU or one of its bodies”, is misleading, since international organisations are only capable of acting through one of their bodies. Comp. Knut Ipsen, Völkerrecht, 4th Edition, Munich 1999, §

parties – and for another thing all African organisations recognised by the OAU – are authorised to file a petition.404

In comparison with the other regional courts for human rights, in particular with the European Court for Human Rights, this is a very wide range of entities authorised to file a petition.405

In particular, those authorised – from “any African organisation recognised by the OAU” – to file a petition pose questions in this connection. It cannot be gathered from the wording whether IGOs or NGOs are meant by this. It is merely conspicuous that the protocol clearly differentiates at other points between NGOs and IGOs.406

The travaux préparatoires are also not capable of eliminating this uncertainty. If this uncertainty is referred to in the jurisprudence, NGOs are perceived as included under reference to the identical passage in Art. 45 III AfrCHPR, which the Commission cites for interpretation of the Charter.407

As a result, this interpretation would increase the probability that the Court is presented with legal questions from which it can develop a fruitful human rights jurisdiction.

d) Subject matter of advisory opinions

Commensurate with Art. 4 I, all matters pertaining to the Banjul Charter and any other relevant human rights instrument are the subject matter of advisory opinions. Insofar as the subject matter of advisory opinions is concerned, it differs from that of contentious jurisdiction due to the fact that the requirement for ratification of the human rights instrument has been refrained from. But moreover, since it concerns mere advisory opinions, of which no binding effect is due, hardly any problems ensue. States that file petitions for advisory opinions in all probability merely refer to human rights instruments which they have ratified

6 No. 14. A distinction between the bodies created through the OAU’s foundation charter (Art. VII: Conference of Heads of State and Government, Council of Ministers, General Secretariat, Mediation and Arbitration Commission) and bodies created through further agreements (for instance, the Commission for Human Rights) should possibly be elucidated here.

404

Only African IGOs, but not NGOs are meant in this case. This ensues in connection with Art. 5 III, which explicitly speaks of non-Governmental organisations. For instance, the aforementioned ECOWAS, the East African Community (EAC), the Southern African Development Community (SADC) and the Economic Community of Central African States (CEEAC) come into question as organisations authorised to file a petition. On the other hand, entities not authorised to file a petition (due to lack of continental affiliation) are organisations such as the League of Arab States ― _{even if a majority of the members are African states.}

405

Commensurate with Art. 47 I ECHR, only the Committee of Ministers is authorised to file a petition before the European Court. All OAS members and the bodies of the OAS are also authorised to file a petition before the Inter-American Court, but not other organisations (Art. 64 I ACHR).

406

Comp. Art. 5 I lit. e and Art. 5 III. 407

Comp. Nico Krisch, The Establishment of an African Court on Human and Peoples’ Rights, in: ZaÖRV 58 (1998), pp. 713-726, 718; Martin Ölz, Die NGOs Im Recht des internationalen Menschenrechtsschutzes, Vienna 2002, p. 376 et seqq.; as both are under reference to Evelyn Ankumah who explains that the Commission has already interpreted Charter provisions at the request of NGOs. Compare ibid: The African Commission on Human and Peoples’ Rights, The Hague et al, 1996, p. 26.

or according to which they intend to comply with.

With regard to the jurisdiction of the Court in matters of opinion, the ACHR has incorporated an interesting aspect, which is unfortunately not found again in the African protocol: “At the request of a member state of the organisation [the OAS], the Court can prepare an opinion for this state in relation to the compatibility of the provisions of its internal law with the aforementioned international law convention.”408

The wording of Art. 4 I does not preclude the request for such an opinion, but the explicit reference to this useful possibility would be advantageous.409

But on account of the OAU-sacrosanct principle of non-intervention, the need of African states for such an assessment of the national legal system through an international committee is probably not especially pronounced.410

It might also not be awakened through an explicit reference to this possibility. This is why the lack of this reference will hardly have any negative practical repercussions.

aa) Jurisdictional restriction with regard to Commission investigation

Commensurate with Art. 4 I 2, matters411

which are associated412

with an object of investigation through the Commission are excluded from the jurisdiction of the Court for opinions. On the one hand, an investigation through the Commission takes place if questions regarding the interpretation of the Banjul Charter are submitted or if it performs interpretation work of its own initiative; but on the other hand, also as soon as a communication is at hand. This means that a blocking effect for the opinion-related jurisdiction of the Court also

408

Art. 64 II ACHR; comp. Scott Davidson, The Inter-American Human Rights System, Dartmouth 1997, p. 249 et seqq. The Inter-American Court has been granted discretionary power by the Convention in this conjunction.

409

For instance, the clause has led to many adaptations of national legal systems in the Inter-American region. Not only Costa Rica – which can be ascribed the pioneering role in matters of human rights protection in America – has adapted its press laws after review through the IACtHR. Comp. Jo Pasqualucci, Advisory Practice of the Inter-American Court of Human Rights, in: StJIL 38 (2002), pp. 241-288, 285. Even Guatemala, at that time still under the military regime of General Rios Montt, discontinued (after an opinion) the implementation of executions, which had been ordered by military courts beyond any rule of law. Comp. Charles Moyer, David Padilla, Executions in Guatemala as Decreed by the Courts of Special Jurisdictions in 1982-83: A Case Study, in: HRQ 6 (1984), pp. 507-518, 509.

410

For instance, also: Gino Naldi, Konstantin Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples’ Rights, in: NQHR 16 (1998) 4, pp. 431-456, 440.

411

This restriction was not included in the Cape Town Draft, but was only added at the Third Conference of Experts. Comp. Report of the Third Government Legal Experts Meeting (Enlarged to include Diplomats) on the Establishment of the African Court on Human and Peoples’ Rights (OAU/LEG/EXP/AFCHPR/RPT. (III), para. 16.

412

The European Court is much more restricted in its opinion competence. For instance, it may neither prepare opinions on matters, which relate to the content or the extent of rights in the ECHR and the appurtenant protocols, or on such matters which the Court or the Committee of Ministers could decide due to proceedings introduced in accordance with the ECHR. Comp. Art. 47 II ECHR (new version).

emerges as soon as a communication – the content of which tallies with that of the opinion to be prepared through the Court – is available to the Commission. This is an attempt by the protocol to establish the intended coordination of the Court and the Commission and also to avoid duplicities. This attempt has not been completely successful for several reasons: A coordination of both bodies was reached to the extent that the petitioner can optionally request the compilation of an opinion before the Commission as well as the Court.413

However, the restriction of the Court’s jurisdiction does not achieve the desired effect. For one thing, only the Court’s jurisdiction for opinions is restricted, but not that of the Commission in the event that the Court is concerned with a question. For another thing, only such matters which are currently being handled by the Commission are excluded from the Court’s jurisdiction with regard to opinions.414

As soon as this treatment found its conclusion, the Court’s jurisdiction with regard to the same matter of opinion is revived. This can lead to duplicity as well conflicting results. Therefore this provision for the realm of opinions does not lead to any unequivocal jurisdictional separation between the Court and the Commission, and only insufficiently prevents possible conflicts or duplicities. But since the Court itself can decide on the acceptance of an opinion petition, it is left with the possibility to take these omissions into consideration. Nevertheless, the relationship between the Commission’s interpretation task and the Court’s opinion competence remains open.

bb) Relationship to the Commission’s interpretation task

The commission’s interpretation task is bipartite. Art. 45 AfrCHPR assigns the Commission [in No. 1 b)] the task of formulating written principles and provisions for solving legal problems in connection with human rights and the rights of peoples’, in which the African governments can build on during their legislative activity. In Art. 45 No. 3, the Commission is instructed – at the request of a contracting parts, a body of the OAU or another organisation recognised by the OAU – to interpret all provisions of the Banjul Charter.

With regard to the initial development of the Commission’s interpretation task commensurate with Art. 45 No. 1 b) AfrCHPR, there is a technical-procedural difference to the Court’s opinion competence: In contrast to the Commission, the Court cannot interpret or put in concrete terms provisions of the Banjul charter of its own accord, but is thus restricted to the

413

Nevertheless, only the Court is entitled to a right of rejection, but not the Commission. Comp. Art. 45 No. 3 AfrCHPR.

414

Art. 4 I: “[...], provided that the subject matter is not related to a matter being examined by the Commission”.

cases submitted. However, in terms of content this results in a considerable (only theoretical up to now, due to lack of demand) intersection ― as soon as the Court must interpret a

provision in connection with a complaint at hand, and which has already been handled by the Commission. Art. 45 No. 3 AfrCHPR assigns the Commission to interpret all provisions of the Banjul Charter on request. Even though no authorised entity has made use of this possibility, the same contextual intersection as in Art. 45 No. 1 b) AfrCHPR ensues.

However, the Court’s interpretation competence encompasses – commensurate with Art. 4 I and in contrast with that of the Commission – not just the provisions of the Banjul Charter, but also that of the protocol and “any other relevant human rights instrument(s)”. And so this precludes an overlapping of competence, at least with regard to all provisions which are not