Generalising the Principle of Complementarity: Framing International Judicial Authority

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

To better understand the dynamics between states and international human rights courts, international relations scholars must incorporate a systematic understanding of how nongovernmental rights activists influence the decisions of international human rights courts—for instance, the European Court of Human Rights and the Inter-American Court of Human Rights—and the impacts of those decisions on the ground, despite growing state backlash against international human rights courts. To date, several bodies of literature have considered these questions, but none have placed nongovernmental activists’ roles in full focus. The international relations and international law scholarship on judicialization of international politics and state compliance often acknowledges but does not thoroughly examine the role of activists in international law. In contrast, a second body of scholarship, on transnational advocacy networks and legal mobilization, often does theorize the role of activists in international and domestic politics but rarely focuses on activism in international human rights courts. While both bodies of literature acknowledge that nonstate actors influence the practice of international human rights courts, they have not proposed an analytical framework that encapsulates the dynamic relationships among nonstate actors, states, and international human rights courts. By proposing a framework on these relationships, we argue that, beyond simply influencing the outcome of a case in an international court, rights activists—whether NGOs or individual cause lawyers—have multiple reverberating effects upon all stages of case development and political impact. We identify and illustrate three fields in which the strategic efforts of activists play out, with significant consequences for courts’ authority over time. These fields are: (1) strategic litigation activity, (2) advocacy to improve states’ implementation of international human rights courts’ jurisprudence, and (3) responses to state backlash. Taken together, these fields can point us to an analytical path to study the practices of rights activists at international courts.

In this conclusive chapter, the authors discuss how in certain areas of interactions between domestic courts and international investment tribunals, the “division of labor” between the two types of dispute settlement bodies is not always optimal, with the result that inefficiencies burden the system. In these areas, there is a need for improvement by providing for a more fruitful allocation of tasks among domestic and international courts and tribunals, whatever form the latter may take.

Because of their unique position heads of state always enjoyed special position within international law. For decades every act by heads of state were protected by rule of international law which guaranteed them full immunity from foreign civil and criminal proceedings. This rule also comprised immunity from foreign proceedings for international crimes. The reason for the existence of this absolute immunity for heads of state was found in the fact that they were always considered as a part of the state which they represent. In this way, the rule of state equality was satisfied. Nevertheless, the immunity rule enables immunity for heads of state even they were, in most of the cases, the most responsible for international crimes. Rising human rights protection within international community after World War II influenced limitations of the heads of state immunity in respect of international crimes. This practice was firstly introduced before international courts, and then also before domestic court. However, the boundaries of the heads of state immunity rule were not definitely defined within international law. For that reason domestic courts enacted different decisions about heads of state immunity than international courts. This practice enabled possibility for dictators to avoid charges for committed international crimes. This article is dealing with contemporary solutions for dictators' punishment. Author explains which courts today have jurisdiction to prosecute former and incumbent presidents for committed international crimes. Also author points on different position of the heads of state before domestic and international courts, which is not covered by immunity rule any more.

One of the main purposes of investment arbitration is to avoid the use of domestic courts. From the investor's perspective, domestic courts are not an attractive forum for the settlement of their disputes with the host State. This chapter offers a broad overview of the interplay between international tribunals and domestic courts. It is possible to identify a number of typical forms of interaction between domestic courts and international investment tribunals. Some of these interactions are regulated by treaty or customary international law others have been developed through the practice of courts and tribunals. These interactions are broken down into the following categories: I. Prior use of domestic courts, II. Competition between investment tribunals and domestic courts, III. Support by domestic courts in investment arbitration, IV. Interference by domestic courts in investment arbitration, and V. Mutual scrutiny of investment tribunals and domestic courts. Keywords: customary international law; domestic courts; international investment; international tribunals; investment arbitration

International Courts' de facto Authority: Between Legitimacy and Pre-emption

The use of amnesties in transitional justice remains a contentious issue. The fight against impunity at the international level has left little room for the application of amnesties for international crimes and human rights abuses. Nevertheless, amnesty measures continue to be applied in many jurisdictions and the permissibility of conditional amnesties enacted as part of wider processes of reconciliation remains under debate. This paper argues that the judicial discussion of amnesties under international law has followed dynamics of path dependence, where initial decisions adopted in very specific contexts have strongly determined the subsequent treatment of amnesties in completely different situations. The influence of early decisions rejecting blanket amnesties in the aftermath of autocratic regimes in Latin America pulled domestic and international courts towards a general rejection of amnesties. However, in more recent years, transitional justice ideas have influenced the trajectory of the discussion on amnesties, opening courts to the permissibility of conditional and negotiated amnesties accompanied by alternative mechanisms of accountability. Mapping the judicial dialogue on amnesties, this paper shows a cautious shift in the approach to conditional amnesties. This is significant because international courts have mostly engaged with the most problematic amnesties, leaving some uncertainty around the way conditional amnesties enacted as part of complex transitional frameworks will be evaluated. Reading a significant number of decisions from different jurisdictions, this essay aims to shed some light on the way domestic courts have addressed the discussion of amnesties when they are part of wider efforts to bring peace, reconciliation, and democracy.

International courts and tribunals, through their advisory jurisdiction, have been increasingly addressing community interests. On the one hand, States can participate in these proceedings by submitting written statements and engaging in public hearings. On the other hand, while advisory opinions are non-binding, their impact at the national level remains a significant question. This vertical relationship between domestic and international courts manifests as a form of 'judicial dialogue', in which domestic courts may assess international opinions in their own case law, revealing a rich area of exploration regarding this form of engagement. This study employs quantitative and qualitative methods to address two key questions: the first relates to Brazil's participation in advisory proceedings before the ICJ, ITLOS, and IACtHR, while the second concerns the domestic application of ICTs’ advisory opinions by the STF. Despite this application being restricted only to the IACtHR pronouncements thus far, the use of these arguments and definitions has expanded the scope of human rights protection, leading to a transformative response in Brazil's jurisprudence. This indicates that a growing and promising form of judicial dialogue is evident. Similarly, Brazil's relatively limited involvement in advisory proceedings urges consideration of its potential for engagement in further explorations.

International actors and observers have afforded greater attention in recent years to the role of national courts in bringing to justice perpetrators of international crimes. Not only are national courts typically less expensive to operate than international courts, they also enjoy at times more legitimacy in the eyes of local constituencies than their international counterparts. They can also reach deeper into society and cast a wider net than international criminal courts. Indeed, there is an increased tendency to view international criminal courts as mechanisms primarily designed to support and complement the work of national criminal procedures, and to pay closer attention to the interaction between the two sets of judicial institutions. It is against this background that the Project on Studying the Impact of International Courts in Domestic Criminal Procedures in Mass Atrocity Cases (the DOMAC project) has sought to draw lessons from the experience accumulated by the interactions that took place between national and international courts in the two decades that have passed since the establishment of the International Criminal Tribunal for the former Yugoslavia. This was done in the hope that such lessons may guide such interactions in the future. Indeed, DOMAC reports have looked into interactions relating to specific legal aspects (applicable laws, prosecution rates, sentencing policies and capacity development) and/or at specific geographical regions (for example, the Balkans, Africa, Latin America, East Timor) and provide many interesting stories of success and failure, from which valuable lessons can be learned. The purpose of this article is to offer, on the basis of the said DOMAC reports, some general observations on the impact of international courts on domestic criminal processes (in the aftermath of mass atrocity situations), and to discuss the structural deficiencies that may have led until now to sub-optimal levels of cooperation and division of labour between international and national criminal procedures. On the basis of these critical observations, a number of general recommendations for future policy planners will be considered. The article first describes some of the main impacts of international courts on domestic courts handling mass atrocity cases. It then discusses four overarching problems, which may have hampered such interactions: the lack of a comprehensive legal response to mass atrocities, inadequate allocation of resources, the absence of ultimate responsibility over the international response, and legitimacy deficits. The concluding section sketches a number of proposals based on the discussion in the two immediately preceding sections.

In recent years, both domestic and international courts have become increasingly deferential to the executive in cases that concern matters of national security. This trend has resulted in rule of law backsliding and the inadequate and ineffective protection of the human rights of individuals. With the steady rise of populism and politics of fear and division, the threat of insecurity has been hyperinflated and exploited to justify national security measures. The normalisation of this ‘securitisation populism’ has had a profound impact on human right values, tolerance, and the rule of law. Through an analysis of illustrative case law of the European Court of Human Rights as well as domestic courts in the United Kingdom, this article focuses on the role which supranational human rights courts such as the ECtHR should play in putting (early) breaks on rule of law backsliding at the domestic level. The article concludes that it is in the long-term public interest to establish strong rule of law and human rights safeguards which are capable of holding states accountable for insufficient human rights protections through robust judicial review even, and perhaps especially, in highly charged cases that concern national security.

When nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the overlapping phenomena of shrinking civic space within authoritarian, hybrid, and democratically backsliding regimes, and state backlash against international courts, NGOs navigate two potential levels of state backlash against human rights accountability. Building on the interdisciplinary scholarship on legal mobilization, we develop an integrated framework for explaining how states' two-level (domestic and international) backlash tactics can both promote and deter NGOs' strategic litigation at international human rights courts (IHRCs). States' backlash tactics can influence NGOs' opportunities, capacities, and goals for their human rights advocacy, and thus affect whether and how they pursue strategic litigation at IHRCs. We elucidate the value of this framework through case studies of NGOs' litigation against Tanzania at the African Court on Human and Peoples' Rights, an understudied IHRC. Drawing on an original data set, interviews, and documentation, we process-trace how Tanzania's various backlash tactics influenced whether and how NGOs litigated at the Court. Our framework and analysis show how state backlash against human rights accountability affects NGOs' mobilization at IHRCs and, relatedly, IHRCs' opportunities for influence.

This article examines the tension between the admission of evidence, the quest for the truth, and the creation of a historical record in international criminal courts. There appears to be no consensus regarding the precise extent either of the ‘truth’ or of the ‘historical record’ that international trials are expected to produce. Yet such trials, in particular major leadership trials, nevertheless have huge potential to help victims and others in the affected region to know the facts of massive crimes, and to contribute to mankind’s collective memory of mass atrocity. Unlike most domestic courts, international criminal courts bear a special responsibility to ensure that their contribution to the collective memory is objective, clear and accessible. Both historians and lawyers can assist. Historians should clarify their understanding of the legal concepts which restrict the scope of material collected and admitted in evidence by international courts, and the application of the ‘beyond reasonable doubt’ test. Some of these concepts, which aim to ensure the fairness of the trial but impede the creation of a full and accurate historical record, are examined in brief. Judges and lawyers, for their part, should ensure that legal documents explaining historically significant events, in particular trial judgments, are accessible to the lay reader.

On account of the immunities which foreign State officials enjoy under international law, universal jurisdiction trials fail to offer justice to victims of crimes orchestrated by State authorities. The ICC Appeals Chamber has affirmed that immunities are inapplicable before international courts as no customary rule providing immunities before international courts has taken shape. While plausible, a critical assessment should still be made of which features an international court should have to be genuinely distinguishable from domestic courts, and thereby not be concerned with immunities. In this paper, it is argued that, unlike domestic courts, certain international criminal courts may be expressly endorsed by the international community as organs which may restore peaceful relations between and among states – the very rationale underlying personal immunity – and, as such, provide victims with access to justice.

International law governing the settlement of disputes through law-based forums, such as courts, tribunals and arbitral tribunals, is fraught with limitations that are becoming especially apparent with respect to disputes that involve the protection of the environment. However, despite the deficiencies of the law, international courts and tribunals have issued judgements in disputes involving the protection of the environment. At the global level, the International Court of Justice (ICJ), the Appellate Body of the World Trade Organization (WTO) and the Tribunal for the Law of the Sea (ITLOS) have handed down decisions in relevant cases. In addition, other legal forums can also be called upon to decide cases involving international environmental law. Such forums include the Environmental Chamber of the ICJ and the Permanent Court of Arbitration (PCA) under its general facilities and under the Environmental Facility that it is planning to establish. Similarly, special bodies, such as the United Nations Compensation Commission (UNCC), may decide on cases. Moreover, regional forums such as the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights and the Court of Justice of the European Community (ECJ) have ruled on cases involving international environmental law. Despite the these developments, calls for the establishment of an international environmental court at the global level persist. Several arguments have been advanced to justify the establishment of an international environmental court, for example the very many pressing environmental problems that exist today and the need for a bench consisting of experts in international environmental law to consider these problems, the need for individuals and groups to have access to environmental justice at the international level, the need to enable international organizations to be parties to disputes related to the protection of the environment and the need for dispute settlement procedures that enable the common interest in the environment to be addressed. Arguments against the establishment of an international environmental court have been advanced as well. This publication explores the arguments for and against the establishment of an international environmental court, examining topics such as the definition of an international environmental dispute and the concomitant expertise required on the bench, fragmentation and its root causes, access to justice and the representation of community interests. The author argues that the establishment of an international environmental court is not the most desirable option and she suggests that it might be more fruitful if we consider developments in environmental law, as well as in other relevant areas of international law, from a different perspective, namely, that of administrative law, and reassess the relationship between international and national law. Such an approach, she argues, is warranted if, inter alia, viable means for resolving environmental disputes that may arise are to be identified.

Immunities for Ex-Foreign Officials Accused of International Crimes