January 21
2021

It took a good dose of courage, almost audacity, to dare to embark, alone, on the comparative study of the three Regional Human Rights Courts, an undertaking never before undertaken. But Laurence Burgorgue-Larsen’s passion for international human rights law enabled her to take up this challenge with panache. Thanks to her numerous publications in this field, written in French as well as in English and Spanish, languages that she masters perfectly, the author is today one of the best specialists in this field. In addition to numerous articles and columns, we will limit ourselves here to mentioning her book on ‘La Convention européenne des droits de l’homme’ (Paris, 3rd edition) and a book she co-authored entitled ‘The Interamerican Court of Human Rights. Case Law and Commentary’ (Oxford 2011). Who better than her to engage in a study of this magnitude?

After a preliminary chapter devoted to the circumstances surrounding the birth of the three Courts, and entitled ‘Creation’, the work is divided into three parts. The first (‘Evolution’), relates the first years of their life up to the present day. The last two titles are, for their part, devoted, as they should be, to the analysis of the two main functions incumbent on the judge: the interpretation and application of the conventional texts of which he is the guardian.

The need for regional protection of human rights first emerged in Europe, following the shock of the Second World War and the unspeakable horrors that accompanied it. In the aftermath of the conflict, it was also necessary to curb the spread of communism, which represented just as great a danger to democracies as Nazism and Fascism. This required one imperative: the strengthening of the ties uniting free Europe, which was achieved with the creation of the Council of Europe and then with the adoption of the European Convention. A similar movement occurred later in the Americas and, later still, in Africa.

In the first case, as in Europe, it was a question of reflecting on the post-war period. The idea of Pan-Americanism soon gave rise to the adoption of the Charter of the Organization of American States and the American Declaration of Human Rights, which were followed by the American Convention on Human Rights. As for the African continent, it was not until a good 20 years after the independence of most of the former colonies that the idea of supranational protection of human rights emerged. This relative delay must be sought in the very recent acquisition of their sovereignty, which the newly created states were anxious, in the words of the author, to ‘magnify’. Beyond these ‘geopolitical’ factors, the author rightly insists on the decisive role played at the time by outstanding personalities, such as Pierre-Henri Teitgen or Kéba Mbaye, as well as certain NGOs.

The first title, entitled ‘Evolution’, retraces the life of the three Regional Courts and the conventions that instituted them, their similarities but also their differences. While the eldest – the European Convention – contains only a relatively small catalogue of so-called first-generation rights (supplemented, it is true, over the years by additional protocols), its sister, born in America almost 20 years later, has important additions, while the younger, African one, for the first time, enshrines economic, social and cultural rights and accompanies the fundamental rights of the human person with duties of citizens. As for the control mechanisms established, the European Convention has served as a model. If it has been imitated by the other two treaties, the latter have for the time being stuck to the initial version of the first, adopted in Rome in 1950 (Commission and Court) and have not yet taken the step that Europe dared to take in 1998: a single, permanent Court whose jurisdiction has become compulsory, that is, a complete judicialisation of the control mechanism.

In the second title – ‘Interpretation’ –, the author makes a thorough analysis of what appears to be the main task of the judge, whether internal or international, and which is consubstantial to his function: to interpret the text of which he is the guardian, before applying it.

Here, a first question arises. How can the obligations resulting from Article 31 of the Vienna Convention on the Law of Treaties of May 23, 1969, which sets the general framework in this matter, be harmonised with the special interpretative rules specific to conventions for the protection of human rights, such as those resulting, for example, from Article 53 of the European Convention or Article 29 of the American Convention, which enshrine the so-called principle of favour? And what constraint weighs on the judge when the text simply requires him or her to ‘draw inspiration from’ or ‘take into consideration’ other international conventions on human rights, such as Articles 60 and 61 of the African Charter?

For the author, what characterises the interpretative function of the three Courts – its common features – is what she graphically calls ‘decompartmentalisation’ (‘décloisonnement’ in French), that is, beyond the texts in their custody, the opening to external sources, whether internal or international.  According to her beautiful formula, ‘the 3 Courts find their inspiration by going through all the Elsewhere’ (p. 248), in order to finally retain only the most protective interpretative method for the litigant. The main consequence of this approach has been the appearance of methods of interpretation called contemporary, evolutionary, seeking useful effect, or ‘Human Rights friendly’; this is so as not to limit the interpretative task of the judge to ‘safeguarding’ the rights, but also to develop them, to make them evolve, in the light of today’s circumstances.

The third title of the book is devoted to the ‘Application’ of the three conventions. According to the author, this expression should be understood in a broad sense, as including both the actual execution of the judgments, but also their consideration and implementation, thus covering all aspects arising for States from their commitments. This is why it focuses on the need for effective compliance with the case law, which implies both measures designed to encourage States to comply with their treaty obligations (pp. 367ff.) and those consisting in monitoring the concrete measures they have adopted to this end (pp. 435ff.).

To conclude this admirable work, the author gives us some very relevant personal reflections on the past, present and future of international human rights law. Coming from an academic who is a renowned specialist in this branch of law, they deserve to be quickly repeated here. For her, the history of human rights is marked by the omnipresence of State sovereignty.

From their inception, and during their operation, it is indeed with it that the three Courts have had to deal with, willy-nilly: the governments have voluntarily accepted to ratify the treaties that instituted them, and their competence is most often optional. It is therefore deliberately that the governments have decided to submit to their control. And if, after their creation, favourable movements have certainly emerged, contrary tendencies have also emerged, as recent denunciations attest, particularly in the Americas and Africa. Second, unlike Europe, which has managed to impose the jurisdiction of its Court – from Lisbon to Vladivostok and from the North Cape to Cyprus and Malta – the American system is still today a predominantly Latin American system. As for the African system, the Charter took quite a long time to be adopted and its implementation by the African Commission was not always up to par, probably for fear of offending states. This probably also explains their delay in adopting the protocol creating the African Court, the jurisdiction of which is also optional and has only been accepted to date by a very limited number of states. It is therefore with good reason that the author added the following subtitle to her work: ‘the justice that was not self-evident’ (La justice qui n’allait pas de soi in French). What the States once accepted, they can get rid of at any time. Nevertheless, despite the recent emergence of populism and authoritarianism, and the threats they pose to human rights, some of the progress made in this area thanks to the tireless work of the three Courts represents definitive achievements; advances that it seems difficult to reverse. Rereading some of the major judgments, such as the Marckx, Golder or Velásquez Rodríguez judgments, to name but a few, a step backwards seems unthinkable.

On the documentary level, the bibliography is presented in a very judicious manner. It follows the structure of the work and focuses on the three protection systems and their organisation. Then, within each of the four titles that make up the book, the presentation of each system follows 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 subject. The book also includes a jurisprudential index in which one finds, not only the judgments rendered by the three Courts studied, listed separately and chronologically, but also, insofar as they concern human rights, judgments of other international courts, such as those of the International Court of Justice, or of international criminal courts, such as those of the International Criminal Tribunal for the former Yugoslavia, and even of courts of economic integration systems, such as the ECOWAS Court of Justice, as well as those of certain national constitutional courts. This shows the author’s concern for completeness. The thematic index is very rich and detailed, and makes it easy to find the desired information.

When reaching the last page of the book, the reader cannot fail to be impressed, not only by Laurence Burgorgue Larsen’s legal knowledge, but also by her vast general knowledge and her great erudition, which is evident in the countless footnotes throughout the text. To allow us to benefit from all this information, she has provided titanic work and research.

What is particularly striking is her encyclopaedic knowledge of recent political history, which one does not necessarily expect from a jurist, however brilliant she may be. It is not the least of the author’s merits that she has always wanted to historically ‘contextualize’ the birth and development of the three Courts. Laurence Burgorgue Larsen has thus fully succeeded in her undertaking to write this beautiful book ‘in context’, as she herself indicates in the title. She is to be congratulated and thanked for the service she has rendered to all those interested in this fascinating subject.

 

Giorgio Malinverni is a former judge at the European Court of Human Rights and Ordinary Professor of the Faculty of Law of the University of Geneva

 

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