Is it possible to compare the incomparable? The heterogeneity of the three Regional Courts of Human Rights, the diversity of normative instruments, the relativity of continental issues and the singularity of each of the reasons of state, make any attempt to systematize this very singular ‘human rights justice’ risky. Nevertheless, I took up this momentous challenge. Although at first sight the possibility of comparison may seem impossible, it appears that the 3 Courts have a number of remarkable similarities. They include the references in each of the relevant human rights instruments to the Universal Declaration of Human Rights as a shared model for many of their provisions, specific common challenges that all three courts have had to face, and the judicial dialogue that has taken place between them. In such a context, I decided to tackle this scientific research crossing disciplines using law (of course), but also history, sociology and political science. By analyzing the mechanisms for the protection of human rights in Europe, America and Africa, I have tried to provide an exciting reflection on the international justice of human rights being constructed in Strasbourg, San José and Arusha.
Presentation of the structure of the book
After an introductory chapter on the creation of the 3 Courts, which combines geopolitics and legal diplomacy – and in which I have highlighted the great personalities involved in the creation process as well as the prominent role of iconic institutions as the Inter-American Juridical Committee and the International Commission of Jurists – the book is divided into three Parts.
The first, entitled Evolution, allows me to examine the main dynamics that have sometimes delayed and sometimes consolidated the fragile and complex structures that make up the judicial mechanisms of the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights. But development is not just about construction and necessarily requires a process of legitimation, which is also addressed through the choice of rights and then the choice of judges: Norms and People.
The second Part is entirely devoted to Interpretation, which for these 3 Courts is a matter of ‘decompartmentalization’ or what I called in French “décloisonnement”, rigorously presented as ‘rebellious’ or ‘faithful’, depending of the precise legal basis of each system (Article 53 ECHR; Article 29 ACHR and 60 and 61 plus Article 3 and 7 of the Protocol establishing the African Court). This Part combines an in-depth analysis of the techniques of interpretation adopted by the Courts (the pro persona principle, the empowerment of concepts, normative combination, etc.) with a focus on the protection of rights in practice (mass violations, women, disabled people, indigenous peoples, etc.).
The third and final Part deals with Application. Here, the dialogue between judges (through an analysis of the internationalization of constitutional law) rubs shoulders with the political dialogue at the heart of the synergies of encouragement and control launched by each continental organization (the Council of Europe, the Organization of American States and the African Union).
Presentation of the methodology approach
The material I have used is extensive, both linguistically (I have used sources in the three languages I know well, French, English and Spanish) and disciplinarily. It fits logically with the objective, which is not only to compare the three regional mechanisms in terms of what they have to say to jurisprudence, but also to analyze them from a historical and sociological point of view. Beyond the law and within the people, the book demonstrates the role of diplomacy and international relations in the construction and dissemination of a legal system that, although founded by States, seeks to escape its creators. The role of the great pioneers – from Pierre-Henri Teitgen, a French lawyer and one of the negotiators of the ECHR and Keba Mbaye, drafter of the Banjul Charter – should undoubtedly be highlighted in order to shed light on the historical context of the emergence of these regional human rights courts. However, I have tried to never lose sight of this human perspective in my analysis, and this is undoubtedly one of the main original features of this study, as well as its richness, when lawyers sometimes tend to see law as nothing more than norms and jurisdictions. While the reader will discover what the 3 Courts are doing, s/he will also be greatly enlightened by the dynamism of the research and will discover who is composing these 3 Courts. The readers will discover, for example, the life and professional background of some outstanding judges and also some of their dissents. In general, the dissenters are the subject of a particularly enlightening sociological analysis to which chroniclers of the Supreme Court of the United States have certainly accustomed us, but rarely specialists in the case law of the Regional Human Rights Courts.
On the documentary level, I wanted the bibliography to be multilingual (in English, French and Spanish) and presented in a very specific way. Indeed, it follows the structure of the work and focuses on the three protection systems and their organization. Then, within each of the four titles that make up the book, the presentation of each system follow the chronology of their creation. Such an approach is likely to greatly facilitate the search for works that will allow one to delve more deeply into a particular topic. The book also includes a table of case in which one finds, not only the judgement rendered but the 3 Courts studied, but also insofar as they concern human rights, judgements of international courts, such as those of the ICJ, or of international criminal courts (such as the ICTY) and even of courts of economic integration systems (such as the ECOWAS Court of justice) as well as those of domestic constitutional and supreme courts.
The main conclusions of the research
The protection system of human rights, when they are judicialized, does exist; it is based, in particular, on the dialogue between judges, which, on the three continents, brings together the supranational and national sovereignties that have been carefully preserved, and is also nourished by the decompartmentalization of interpretation, which leads to an increase in the standards of protection and their legal potential. But the same mechanism also operates more broadly, within each regional system, in a less well-known dialogue between the commissions and courts that share international responsibility for the protection of rights of individuals and groups.
The 3 Courts are therefore not only analyzed in context, but also revealed in reflex, through a play of mirrors that reveals the reflection of a justice of human rights. The “raison d’État” is thus challenged by the emergence of a ‘reason of Rights’, whose logic is not limited to working towards emancipation; the reason of human rights also seeks to adapt itself in order to be more effective and to bring about real transformations. In the 1960s and 1970s, in the face of civil wars and the installation of military dictatorships, the Inter-American Commission took on the role of ‘good offices’ through in situ visits, somewhat abandoning the mechanism of individual petitions, which was ill-suited to the circumstances; the European Commission interpreted the Convention as a mechanism for the ‘collective guarantee’ of rights, before turning to case law in the 1970s and then completely overhauling the institutional system of protection in 1998 ; the African Court, through bold interpretations, is now becoming an electoral judge and even a judge of democracy. Such a dynamic makes it possible to look beyond the parties and the trials to the justice of human rights and to think about the protection of these rights from a perspective that is not limited to the confrontation between the individual and the power of the state. In particular, the management of mass human rights violations invites us to question this justice in terms of what it can achieve with regard to political regimes, and not only in terms of what it can achieve with regard to subjective rights. Could a regional and collective system of human rights protection have saved Europe from the rise of fascist and Nazi regimes? What happens to plural individual claims in a dictatorial and exterminatory context?
Far from being angelic, I have tried to offer a resolutely realistic reflection on this “Justice that cannot be taken for granted” (the subtitle of the book). It is true that the undertaking is precarious and fragile, as the book’s concluding remarks underline in two sections (Between the past and the future and Back to the future, indispensable vigilance, essential resistance). In itself, I consider comparison an appropriate remedy for those suffering from xenophobic blinkers. Reading this book will also enlighten the thinking of comparativists, internationalists, Europeanists and constitutionalists alike. More generally, it will be of interest to anyone concerned with human rights.
Posted by Laurence Burgorgue-Larsen, Professor at the Sorbonne Law School (University Paris 1)
British Association of Comparative Law 