RICERCA ITALIANA     

The Individual Right of Access to Justice in International Law

Università degli Studi di Siena

Abstract

The present research project will concentrate on individual access to justice in international law. This topic is characterized by a number of aspects, whose effects play a relevant role both in the context of customary law and conventional law. As to the former, this research has the purpose of assessing whether a general rule of international law exists on the subject, which binds States to ensure to individuals effective access to justice for the protection of their fundamental rights. From the perspective of treaty law access to justice is provided for by virtually any existing international legal instrument dealing with human rights, both of "universal" and regional character, including a number of conventions relating to the protection of specific human rights. Some of them are characterized by the existence of specific judicial or quasi-judicial institutions, whose activity has significantly widened the chances available to individuals for granting their concrete and effective access to justice. In this context the main purpose of the research will consist in analyzing the potentialities and limits of such institutions for giving effectiveness to the right of access to justice. Among the legal regimes which have been instituted by human rights treaties, those relating to the International Covenant on Civil and Political Rights and, at the regional level, the European, Inter-American and African systems are of particular relevance with regard to the topic of the present research. The research will also focus on alternative means of access to justice (especially the Latin-American and South African Truth and Reconciliation commissions) developed in recent times which, despite their institutional softness, are generally capable to provide concrete outcomes in favour of individuals.
The means of recourse pertaining to the protection of human rights are also one of the few existing ways for claiming reparation by individuals affected by armed conflicts, considering the scarcity of specific means available in the framework of international humanitarian law. In this context the research will be concentrated on the chance of instituting specific mechanisms in such field of law. The research will also deal with access to justice in international environmental law, on the twofold aspects of the individual right to a safe environment and the existence of procedural rights having the purpose of guaranteeing the participation of interested individuals and groups to State environmental decisions.
Finally, special attention will be devoted to the topic of access to justice in the context of European Union, in which judicial protection of legal rights stemming from EU law is guaranteed on two different levels: on EU level, individuals have indeed the right to bring direct actions before European judicial institutions (especially in the context of the I pillar); on State level, a crucial role in ensuring judicial protection of rights descending from EU law is entrusted to national judges. On both levels judicial institutions must take in account the principle of effective judicial review which is laid down in the ECHR (Johnston, 1986).
With reference to the topics outlined above it will be also necessary to examine their interaction with some principles of international law capable of greatly impairing the concrete opportunities of individual access to justice, with particular regard for the provisions concerning State or diplomatic immunities.
The outcomes of the present research will be disseminated through the organization of one or more interim workshops and of a final conference, as well as through the publication of a volume of scientific character investigating the different aspects of the right of access to justice. For both cases it is our intention to involve young researcher and the major international experts in the matter. <<<

Principal Investigator

Francesco FRANCIONI Università degli Studi di SIENA

Research Objectives

The realization of fundamental human rights is necessarily linked to their judicial enforceability. As it was stated during the negotiations of the International Covenant on civil and political rights, "if the States undertook to abide by the Covenant, they would have to provide for effective remedies against infringements". It follows that States are bound to provide the necessary conditions that may allow individuals to enjoy internationally recognized fundamental rights. This outcome may be pursued only respecting two kinds of requirements: existence of a socio-economic context where the appropriate conditions for the enjoyment of such rights are met; availability of effective jurisdictional remedies if those rights are infringed. The present research project is inspired by such reality. Keeping in mind the essential character of the right of access to justice for the enjoyment of fundamental rights, it has the purpose of assessing the effectiveness of such right in the framework of the international legal regime.
To this end, it is necessary to carefully evaluate the suitability of the relevant international law provisions to be applied in domestic legal regimes.
It will thus be indispensable to consider a preliminary aspect of the present subject matter, analysing the significance of the right of access to justice in the context of general international law. This evaluation will require a subsequent assessment concerning whether this right falls within the area of domestic jurisdiction, as it still results from State practice or, on the contrary, whether the progressive erosion of such area has led to the creation of a customary norm. the attention will be then concentrated on the regime of the right of access to justice in the framework of treaty law. The aim of this research is that of ascertaining the scope of such right according to international practice, as developed by monitoring mechanisms provided for by the relevant treaties, both at the universal and regional level. As to the former, special attention will be placed on the practice relating to the implementation of the International Covenant on civil and political rights by the Human Rights Committee, while at the regional level the systems of the European Convention on Human Rights, the American Convention of Human Rights and the African Charter on Human and Peoples' Rights will be focused, examining the practice of the European and Inter-American courts and of the African Commission.
Among these institutions, the practice of the European Court of Human Rights emerges for its evolutive approach and the complexity of the judgements pronounced on the subject of access to justice. One of the main aims of this research will consist in the careful assessment of the relevant aspects developed by the Court, focusing on the identification of the boundaries defining the area of the applicability by States of restrictions to access to justice, both in terms of legitimacy and proportionality between the aim of the restriction and the value of the restricted right. Having in mind the contemporary evolution of international law, our research will then converge on alternative means of access to justice existing in the context of the international legal regime, especially the committees established by treaty (e.g., the Committee against Racial Discrimination and the Committee against Torture), as well as numerous truth and reconciliation commissions. The purpose of such commissions is to investigate and shed light on systematic human rights violations perpetrated in various States; the research units involved in the present research will dedicate particular attention to the degree of respect by States of the reports enacted by the said commissions, as well as to the reparation made available for individuals affected by human rights violations.
The final aim of this first part of the present research, relating to access to justice in the context of the protection of human rights, is to provide a systematic picture of the existing opportunities for accessing justice both at the national and international level, thus giving a contribution to awareness raising judges, practitioners and individuals on such opportunities. A similar approach will be followed with regard to the possibility for individuals to enjoy of effective remedies when affected by violations of international humanitarian law. At the present stage, this possibility is subject to several limits, arising from the lack of specific mechanisms suitable to grant the right of access to justice, as well as from the difficulty to obtain compensation for damages caused by such violations using the existing mechanisms for the protection of human rights. It is thus necessary to identify the possible alternatives in order to overtake the above limits and, at the same time, to evaluate the perspectives for the institution of ad hoc mechanisms which may allow direct access of individuals to the instruments of international humanitarian law in force.
As for international environmental law, this research will have the purpose of analysing the existing opportunities of access to justice, both in the context of an extensive interpretation of applicable treaty provisions on human rights and with regard to procedural environmental rights developed by recently adopted conventions.
Finally, with regard to the topic of access to justice in the legal system of the European Union, we will examine the peculiarities of such system, concentrating on the reasons that make it probably the most advanced in the context of international law. It is in fact characterized by two different levels of access to justice: on EU level, individuals have indeed the right to bring direct actions before European judicial institutions (especially in the context of the I pillar); on State level, a crucial role in ensuring judicial protection of rights descending from EU law is entrusted to national judges. On both levels judicial institutions must take in account the principle of effective judicial review which is laid down in the ECHR (Johnston, 1986). The points of contact of the EU system of access to justice with other international law systems (in particular, those of the UN, of the International Criminal Court, and of the Council of Europe), especially with regard to the II and III pillars, will also be investigated. In this sector we will devote special attention to the innovations introduced by the Constitutional Treaty adopted in 2004.
In order to adopt a constructive approach, it will be important to take fully into account the obstacles which may prevent the individuals having in principle the right of access to justice to concretely enjoy such right on account of the contextual applicability of certain rules of international law, such as the self-executing character of international norms or State immunities. As to the latter, the main purpose of the research will consist in assessing the existing opportunities for the enforceability of fundamental rights by individuals even when these opportunities are limited by jurisdictional immunities recognized in favour of foreign States or diplomatic agents.
The outcomes of the present research will be disseminated through the organization of one or more interim workshops, as well as of a final conference which will involve the world's most important experts in the field. At the same time, it is our intention to publish a volume of scientific character investigating the different aspects of the right of access to justice, also with the involvement of the major international experts in the matter and of young researcher. It is our expectation that such volume may be useful to increase knowledge on the matter and, at the same time, to improve compliance with the existing standards on access to justice at the national and international level. <<<

Timescale

24 months

National and international background

The individual right to access to effective jurisdictional remedies for the protection of fundamental rights is contemplated by most domestic legal regimes since the XIX Century, when, for instance, the amparo was regularly applied in the Latin American countries, as a simple and fast procedure used for the protection of constitutional rights against the abuse of law or public authorities. The right in point is at present included in most national constitutions and in the near totality of international general instruments on human rights, both of "universal" and regional character (see, e.g., the Universal Declaration of Human Rights, the European Convention on human rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), the American Convention on human rights (ACHR), the African Charter on human and peoples' rights and the Charter of Fundamental Rights of the EU), as well as in a number of treaties dealing with the protection of specific rights (as freedom from torture or from racial discrimination).
Despite the reiterative character of international provisions recognizing the right of access to justice, the problem of the status of such right in the context of customary law has not, to date, been satisfactorily resolved by scholars. They are in fact divided by the apparent inconsistency between the theoretical recognition of such right in favour of all human beings and the pragmatic aspect of State practice, which seems to be still linked to the idea of access to justice as an element of the area of domestic jurisdiction. Nevertheless, the progressive erosion of such area and the contextual replacement (even if still "in progress") of the "rights of aliens" with the modern concept of human rights, may be seen as evidence of the fact that also the right of access to justice has now been removed from the area of domestic jurisdiction and thus has reached its own place in the framework of general international law. Besides, also the idea that the individual right of access to justice constitutes the implicit and inevitable consequence of the State obligation to ensure the protection of individuals against grave violations of their so-called "primary" rights is widely followed in the practice, implying the individual right to have access to domestic remedies for claiming reparation in the event such rights are infringed (see, e.g., the famous ruling of the U.S. Court of Appeal in Filartiga v. Peña Irala (1980).
As regards treaty law, the applicative scope of the pertinent provisions proclaiming the right of access to justice has been progressively widened by the interpretative activity of the judicial or quasi-judicial institutions established by the relevant treaties. At the "universal" level the activity of the Human Rights Committee regarding the interpretation of article 2(3) ICCPR is of particular relevance, since the Committee's vision of such article extends its applicative area so as to embrace specific obligations that are not expressly included in the text of the article, such as, e.g., the granting of restitution in integrum and/or an adequate pecuniary reparation and the assurance of non repetition (see Mpandanjila v. Zaire; Hermoza v. Perù). In addition, although it is not included among the norms indicated by article 4, the Committee considers the provision of article 2(3) as non-derogable also in cases of emergency, to the extent that it may be indispensable for the jurisdictional enforceability of the rights expressly contemplated by article 4 itself (see General Comment n. 29). In the context of ICCPR the provision of article 2(3) is integrated by the principle of equality before national courts proclaimed by article 14, whose scope is not limited to granting the equal treatment before courts with regard to the rights provided for by the Covenant, since it has the significance of a general provision relating to the judicial enforceability of any kind of individual right and/or interest (see Report on Iceland, 1981).
At the regional level, it is important to underline the evolutionary approach adopted by the European Court of Human Rights in interpreting the ECHR provisions pertaining to access to justice, i.e. articles 6 and 13. The latter one, differently from article 8 of the Universal Declaration of Human Rights (whose text constituted the main inspiration of article 13 itself), has not a general scope, but is only limited to judicial claims relating to the "rights and freedoms as set forth in this Convention". Finally, the European regulation of the right of access to justice has been recently reinforced by the Protocol n. 12 to the ECHR, which proclaims such right with a scope analogous to article 14 ICCPR, eliminating any kind of discrimination. The Strasbourg Court has affirmed in several occasions the centrality of the right to equality before the law and of access to justice, stressing their primary role in a democratic society (see Golder v. the United Kingdom e Airey v. Ireland) and that the recognition of some procedural guarantees, such as the rights to a fair and public hearing and to the reasonable length of the trial (see Z and other v. the United Kingdom). Nevertheless, the Court also stated that such right may be subjected to some restrictions, both of formal and material character, due to the margin of appreciation that States retain in determining the national legal measures necessary to render the right in point effectively enjoyable at the domestic level. However, the application of such restrictions is only allowed to the extent that they pursue a legitimate aim and that this aim be proportionate to the means used for achieving it (see Tinnelly & Sons Ltd and others v. the United Kingdom). The same restrictions are also applicable when access to justice is restricted for the purpose of granting foreign States the enjoyment of immunities recognized by international law (see Al-Adsani v. the United Kingdom).
A similar vision of the right of access to justice is also followed by the Inter-American Court of Human Rights, which has stated in several occasions that article 25 ACHR incorporates the principle of effectiveness of procedural means for the judicial enforcement of fundamental rights. This principle implies the existence of an obligation binding States to make available effective judicial remedies in favour of those individuals who are victims of violations of such rights. These remedies must conform to the principles of fair trial provided for by article 8 of the Convention, as a necessary condition that member States must comply with for ensuring to all persons subject to their jurisdiction the free and full exercise of the rights and freedoms provided for by the Convention, as stated by article 1 (see Velásquez Rodríguez and Fairen Garbi). The nature of article 25 as essential condition for the effective enjoyment of "primary" rights proclaimed by the Convention also implies that it must be considered as applicable also in cases of emergency, in the event that the recognition of one of the rights expressly considered as non-derogable by article 27(2) is claimed before a Court (see the advisory opinions of 1987 on Habeas Corpus in Emergency Situations and Judicial Guarantees in States of Emergency).
In line with the idea underlying the interpretation of the right of access to justice by the Human Rights Committee and the European and Inter-American courts, the African Commission of human and peoples' rights recently stated that the expulsion of an individual from a State which is party to the African Charter constitutes a violation of article 7(1)(a) in the case that the involved person may not contest the expulsive measure before a national judge (see Communication n. 159/96).
The contemporary evolution of international law has brought to the increase of the means available to individuals for enjoying the right of access to justice, since in the last decades a number of alternative forms of access to justice has come into existence. Despite the fact that most of these mechanisms have not binding force, their effective relevance in the context of the international legal regime has progressively increased so that, in some cases, they have obtained enough persuasive power to induce States to respect their decisions. Among these mechanisms a particularly relevant role is played by the opportunities of making recourse to international non-judicial organisms like the Committee against racial discrimination, the Committee against torture and other similar institutions created by treaties, as well as the national commissions of Truth and Reconciliation, which have the mandate to investigate on cases of gross-violations of human rights and, when possible, to create the conditions for granting adequate reparation in favour of the victims of such violations.
With regard to access to justice in international humanitarian law, there is no doubt that it is severely limited, due to the lack of a direct access to judicial remedies on the part of individuals and to the fact that humanitarian norms are generally not considered as self-executing in the national legal orders. The fact that the right of access to justice is generally not enforceable in the framework of humanitarian law is confirmed by the recent failure of a number of pertinent claims presented before national and international courts (see, e.g., the Bankovic case). For this reason, attempts are something made to find alternative remedies, like the resort to procedural remedies afforded by human rights law to claim compensation for damage caused by violations of humanitarian law. The situation is different in respect of international criminal justice, in the context of which the most important step has been made with the adoption of the Rome Statute of the International Criminal Court, whose article 75 allows the Court to grant compensation to victims.
The system which, in the context of international law, the judicial protection of individuals has achieved the most advanced results is probably represented by the European Union. It is in fact characterized by a double level of access to justice, based on the special interaction between domestic law and EU law: on EU level, individuals have indeed the right to bring direct actions before European judicial institutions (especially in the context of the I pillar); on State level, a crucial role in ensuring judicial protection of rights descending from EU law is entrusted to national judges. On both levels judicial institutions must take in account the principle of effective judicial review which is laid down in the ECHR (Johnston, 1986). This determines an important point of contact between the EU system and the judicial practice that has been elaborated by the European Court of Human Rights. However, this relationship has also shown elements of conflict or friction, especially by virtue of the severe limitations that are provided within the EU system in respect of the right of individuals to bring proceeding before the EU courts (see for instance the judgments Unión de Pequeños Agricultores and Jégo-Quéré, 2002). The topic of the points of contact with other international law systems (in particular, those of the UN, of the International Criminal Court, and of the Council of Europe) also emerges with regard to the II and III pillars of the EU. In this context the innovations introduced by the Constitutional Treaty of the EU (adopted in 2004) are of particular importance.
Access to justice in international environmental law is strictly linked to the subject of so-called "environmental Rights" of individuals. This topic has mainly developed in the context of soft law (it is noteworthy, in this sense, Principle 1 of the 1972 Stockholm Declaration) considering the right to a safe and clean environment as a human right. Nevertheless, the extension and effective enforceability of such right are still unclear. For this reason, the attention of the scholars has moved toward the recognition of some procedural instruments, like access to environmental information, participation in decisional processes and access to justice in environmental matters, which may play a better role in favouring the effectiveness of individual rights and interests linked to environmental protection. This development has eventually led to the adoption of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, in force from 2001. However, at the same time, a jurisprudential or quasi-jurisprudential practice has evolved with the purpose of achieving environmental aims by the extensive interpretation of conventional norms on the protection of human rights, like those included in the ICCPR (see Port Hope c. Canada, 1990; Bordes c. Francia, 1995) and the ECHR (see Lopez Ostra v. Spain and Guerra v. Italy).
Being a principle developed in the context of international law, the right of access to justice necessarily interacts with the general rules which characterize such law, that may act as obstacles to the effective enjoyment of such right. Firstly, the exercise of the latter at the national level may not be unconnected with the incorporation into the domestic legal regime of the international norm which proclaims the individual right whose violation is claimed, because the application of an international provision at the national level may usually be claimed only by making recourse before a domestic court. If the relevant international provision has not been translated into a domestic regulation, this course of action is possible only when such provision is by its nature self-executing, that is to say that imposes obligations of conduct, has non-programmatic character and does not necessitate the adoption of ad hoc internal norms or mechanisms for its implementation. When these characteristic are not satisfied, the international nature of the claimed provision will preclude the exercise of the right of access to justice. Similar problems exist in the context of the interaction between such right and other international law principles, such as those relating to the doctrine of Act of State or to the immunities. As for this latter aspect, the main problem relates to the possibility that a State may be brought before the courts of another State, possibility that in principle is only recognized with regard to the acts jure gestionis in the context of civil jurisdiction and in cases involving contracts of employment where nationals of the forum State are employed by foreign States. This topic is regulated, inter alia, by the 1972 European Convention on State Immunity and the recent UN Convention on Jurisdictional Immunities of States and Their Property, adopted by the General Assembly with Res. no. 59/38 of 2 December 2004 and opened to signature on 17 January 2005. Contemporary international law also recognizes the immunity of foreign States from measures of constraint consequent upon the exercise of jurisdiction, either for the purpose of enforcing judgements or for the purpose of pre-judgement attachment. It is self-evident that the jurisdictional immunities of States and diplomatic agents seriously affect the individual right of access to justice (see, for example, Italian Constitutional Court, judgement n. 48/1979). <<<