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 >>>

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 >>>

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 >>>