Exhaustion Of Domestic Remedies Research Articles

Litigating Climate Change before the Committee on the Rights of the Child in Sacchi v Argentina et al.: Breaking New Ground?

ABSTRACT In September 2019, 16 children petitioned against Argentina, Brazil, France, Germany and Turkey before the United Nations Committee on the Rights of the Child (UNCRC) in what has come to be known as the Sacchi case. The children requested that the UNCRC find that those States had caused and perpetuated climate change by knowingly disregarding scientific evidence, and that, in so doing, they had violated the children's human rights. In October 2021, the UNCRC dismissed the petition upon the grounds that it was inadmissible, as the petitioners had failed to exhaust domestic remedies. The Sacchi case gave rise to new challenges with regards to the admissibility of the decision: beyond the exhaustion of domestic remedies, the UNCRC had to grapple with the issue of victimhood in the context of climate change and extraterritorial climate obligations conferred to States in the Convention on the Rights of the Child. The Office of the High Commissioner for Human Rights declared the Sacchi decision a 'historic ruling'. But did the UNCRC's conclusions in Sacchi truly break new ground? This article explores that question by examining the three admissibility criteria in turn: extraterritorial jurisdiction, victimhood, and the exhaustion of domestic remedies.

Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases

Abstract Climate change and its consequences will likely be the defining human rights challenge of the 21st Century. The European Court of Human Rights is well-placed to help shape the response to this looming crisis. Indeed, the first four applications concerning climate change have recently been filed before the Court. However, the applicants in these pending cases, as well as potential applicants in any future climate cases, will have to overcome significant procedural hurdles to ensure that the Court will hear their arguments on the merits. This article discusses some of the most significant issues that applicants seeking to bring climate cases will face, which include proving exhaustion of domestic remedies, establishing that the applicants have victim status, and demonstrating that the applicants face a significant disadvantage. This article considers how the Court can ensure that these admissibility hurdles do not preclude climate cases from receiving full consideration on the merits.

ON and DP v. Russian Federation

463Human rights — Women’s rights — Elimination of discrimination against women — Sexual orientation — Exhaustion of domestic remedies — Due diligence obligations — Obligation to investigate — Requirement of prompt and impartial investigation — Protection of lesbian women from violence — Gender stereotypes — Committee case law and general recommendations — Remedies — Whether Russian Federation violating Articles 1, 2 and 5 of United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979International tribunals — Jurisdiction and admissibility — United Nations Committee on the Elimination of Discrimination against Women — Local remedies rule — Application in light of time bar under national law

ИСЧЕРПАНИЕ ВНУТРЕННИХ СРЕДСТВ ПРАВОВОЙ ЗАЩИТЫ В ЕВРОПЕЙСКОМ СУДЕ ПО ПРАВАМ ЧЕЛОВЕКА И СУДЕ ЭКОНОМИЧЕСКОГО СООБЩЕСТВА СТРАН ЗАПАДНОЙ АФРИКИ

The article examines the criterion of the exhaustion of domestic remedies of legal protection in the context of the European Court of Human Rights and the Court of the Economic Community of West African States in cases related to the protection of human rights. The article analyzes the norms of the European Convention for the Protection of Rights and Fundamental Freedoms and the norms of the Agreement establishing the Court of the Economic Community of West African States and the Additional Protocol. The question is raised about the need to include a criterion for the exhaustion of local remedies of legal protection in the Court of the Economic Community of West African States in cases related to the protection of human rights. The article also analyzes the position of the Court of the Economic Community of West African States on the issue of the absence of the criterion of exhaustion of domestic remedies of legal protection, examines the jurisprudence. The author concludes that the position of the ECOWAS Court on the acceptability of the exhaustion of the local remedies criterion is positive for the region, while at the same time calls for the court to establish a department staffed with experts to focus on human rights cases.

Proteção do direito à propriedade privada das pessoas naturais acionistas e sócios de empresas na jurisprudência da Corte Interamericana de Direitos Humanos

The article reviews the jurisprudence of the Inter-American Court of Human Rights on the protection of the right to property of natural person shareholders of companies. The objective is to evidence the manner in which this Court has protected the right, despite the provision of Article 1.2 of the American Convention that excludes the recognition of rights of legal persons. The present work argues that the Inter-American Court has managed to protect the right to private property of natural person shareholders in two ways. First, through the distinction it has made between the rights of the natural person as a partner or shareholder of a company and the rights of the company itself as a legal person. Secondly, through the interpretation it has made regarding the exhaustion of domestic remedies, as an admissibility requirement set forth in Article 46.1.a) of the American Convention, when such remedies can only be exhausted by the legal person and not by shareholders, when distinguishing between the analysis of the exhaustion of resources and the analysis of the ownership of the rights of legal persons. In this manner, the Court has eliminated access barriers to the organs of the Inter-American Human Rights System and has reaffirmed the object and purpose of the Convention as an instrument that recognizes and protects the human rights of all natural persons.

Responding to Human Rights Violations in Africa

This article examines the main achievements and challenges of Africa’s two regional bodies established to ensure the implementation of human rights in Africa. It makes an assessment of the role of Africa’s oldest regional human rights body, the African Commission on Human and Peoples’ Rights (African Commission) in the last 31 years of its operation (from 1987–March 2018). It also considers the judicial role of the African Court on Human and Peoples’ Rights (African Court) in the last 12 years of its operation (from 2006–March 2018). The increasing contribution of both the Commission and the Court to the protection of human rights under the African Charter on Human and Peoples’ Rights is rarely subjected to scrutiny in mainstream human rights literature. The article is limited to the consideration of the Commission’s contribution with respect to: (i) decisions on admissibility of communications concerning mainly exhaustion of domestic remedies; (ii) decisions on merits of communications; (iii) adoption of resolutions, principles/guidelines, general comments, model laws and advisory opinions; (iv) special rapporteurs and working groups to deal with thematic human rights issues; (v) consideration of State reports and conducting on-site visits; and (vi) referral of communications to the African Court involving unimplemented interim measures, serious or massive human rights violations, or the Commission’s findings on admissibility and merits.

Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle.

Subsidiarity, exhaustion of domestic remedies, and the margin of appreciation in the human rights jurisprudence of African sub-regional courts

As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principle for the exercise of their human rights jurisdiction. Contrary to expectations, neither the exhaustion of domestic remedies rule nor margin-of-appreciation-type doctrines have so far played any meaningful role in the human rights jurisprudence of the three sub-regional courts.

Fedotova v. Russian Federation

193Human rights — Freedom of expression — Freedom of opinion — Freedom from discrimination — Discrimination based on sexual orientation — International Covenant on Civil and Political Rights, 1966, Articles 19 and 26 — Effective remedy — Exhaustion of domestic remedies — No duty to pursue remedy when there is no prospect of success — United Nations Human Rights Committee

An argument for South Africa's accession to the optional protocol to the international covenant on economic, social and cultural rights in the light of its importance and implications

The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and political rights (CPRs) have for a long time been treated as being enforceable judicially at the national, regional and international levels, while socio-economic rights (SERs) have not. With the elaboration and adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which mandates the Committee on Economic, Social and Cultural Rights (CESCR) to consider individual communications detailing the violations of SERs, the justiciability of SERs was also fully recognised at the international level.This paper undertakes an analysis of the importance and implications of the individual communications procedure under the OP-ICESCR and details some of the reasons why it would be beneficial for South Africa to accede thereto. The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa's ratification of the ICESCR is imminent. Having signed the ICESCR on 3 October 1994, the South African Cabinet on 10 October 2012 decided that South Africa should ratify the Covenant. The authors argue that acceding to the OP-ICESCR will complement domestic protection and will confirm South Africa's global leadership in the field of justiciable SERs. Logic dictates that South Africa should confirm at the international level its position as a world leader on the national justiciability and legal enforcement of SERs, as indeed it has done during the drafting process of the OP-ICESCR. Accession to OP-ICESCR, the argument continues, will not detract from the country's sovereignty, especially in the light of the requirement of the exhaustion of domestic remedies, including the condition that applicants must show that they have suffered a "clear disadvantage". In any event, South Africa already has undertaken obligations as to SERs under regional human rights treaties that are equal to and in some respect more arduous than the obligations emanating from the ICESCR.
 

Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity

Over the past few years, the European Court of Human Rights has been criticised in several extrajudicial speeches in the United Kingdom. In this article the author, a judge of the Strasbourg Court, analyses some of this criticism, focussing especially on Lord Hoffmann’s views in his 2009 farewell lecture, The Universality of Human Rights, as well as discussing some more recent speeches by senior British judges. The author argues that, contrary to some of this criticism, the Strasbourg Court has gradually developed its approach in relation to the principle of subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights. In this way, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities of their Convention obligations. In this connection, the article then discusses briefly the case law of the Strasbourg Court on the exhaustion of domestic remedies in relation to declarations of incompatibility under the Human Rights Act 1998 (UK).

T.I.D.M., Affaire du « Virginia G » (Panama/Guinée-Bissau) arrêt du 14 avril 2014

The judgment of April 14 2014 in the Virginia G case gave the opportunity to ITLOS to rule for the first time that the bunkering activity is part of the sovereign rights that the coastal State may exercise in the EEZ. In addition to this expected clarification, the Hamburg court offers a fragmented conception of certain rules of the Law of the Sea on issues which are covered by general international law. This is notably the case of inadmissibility objections relating to the nationality of ships and exhaustion of domestic remedies. By retaining the theory of “ ship constituting a unit”, the court prevents the exercise of diplomatic protection, even though its disappearance is not provided by the rules in force. On the merits, the court recognizes, in particular, the coastal State is responsible under Article 73 of the Convention by exercising large control over domestic law and provides extensive reparations to the flag State, while there is reasonable doubt as to the fault of the owner and the causal link. Ultimately, the judgment reveals an intense imperium from the law of the sea judge that stretches out to all stages of the trial.

Investment Treaties between Developed States: The Dilemma of Dispute Resolution

This paper examines three basic models for resolving investment disputes between developed countries: (1) allowing investors to bring direct claims against host governments without exhausting their remedies in domestic courts as in NAFTA Chapter 11; (2) prohibiting direct investor claims and allowing only state-to-state dispute resolution as in the Australia-U.S. Free Trade Agreement; and (3) allowing arbitration of direct investor claims only after exhaustion of domestic remedies as in the Hong Kong-U.K. Bilateral Investment Treaty. The paper argues that the third option is worth serious consideration.

Sailing Against the Tide: Exhaustion of Domestic Remedies and the ECOWAS Community Court of Justice

AbstractThis article examines the practice of the ECOWAS Community Court of Justice relating to the exhaustion of domestic remedies. It argues that the court is wrong to maintain the view that it is not bound by the doctrine, simply because the court's protocol is silent on the point. The author urges the court to reconsider its view in order to align its practice with prevailing customary international law and treaty trends on the exhaustion of domestic remedies in international suits espoused before international courts by or on behalf of individuals.

Accesso ai rimedi costituzionali, previo esaurimento e gestione "sussidiaria" delle violazioni strutturali della CEDU derivanti da difetti legislativi

The increasing number of judgments delivered by the Strasbourg Court in cases of human rights violations stemming from a systemic problem in the domestic legal system of a contracting State (so called "structural violations") and the development of the caselaw on the obligation of States to adopt general measures under Article 46 ECHR to remove the causes of such violations (including by amending the relevant legislation) are reinforcing the idea of Court as a sort of pan-European constitutional jurisdiction entrusted with the mandate to safeguard the European public order. At the same time, the "collective" dimension of the protection mandate must always be balanced against the need to afford individual justice to the "victims, calling for a better coordination of the two concurring interests. The article focuses on how to ensure that structural violations of ECHR rights caused by defects of domestic legislation are dealt with in accordance to the principle of subsidiarity, which is at the core of the entire protection mechanism established by the Convention. After highlighting the role of subsidiarity in respect of this particular kind of violations, the author explores two possible alternative developments of the Strasbourg case-law which would contribute to strengthening the cooperation between domestic constitutional jurisdictions and the ECHR system in those States (like Italy) where individuals do not enjoy direct access to constitutional justice. Notably, the author suggests a reinterpretation of the rule of previous exhaustion of domestic remedies in order to allow national judges to assess in the first place whether a law is compatible with the ECHR; in the alternative, the Court should conclude for a violation of the right to an effective remedy under Article 13, imposing on the contracting State the obligation to provide forms of individual constitutional justice at the domestic level that would ensure the "subsidiary management" of structural violations and of the mass litigation arising thereout

American Convention on Human Rights Articles 46(1)(A) and 46(2)(C): Achilles Heel or Trojan Horse?

American Convention on Human Rights (Convention) Articles 46(1) and 46(2) seek compromise yet appear to create ambiguity. In fact, Article 46(1) requires a complainant to exhaust domestic remedies and file their petition to the Inter-American Commission on Human Rights (IACHR or Commission) within six months of a final domestic judgment. Conversely, Article 46(2) provides three exceptions to 46(1) when the exhaustion of domestic remedies is not viable. A superficial comparison of these provisions may find them unworkable, arbitrary, and creating legal uncertainty in practice. However, recent implementation of these provisions within the Inter-American system is remarkably consistent. This paper describes (I) Articles 46(1) and 46(2); (II) highlights the implementation of these provisions within Inter-American jurisprudence through both a quantitative and qualitative analysis; and finally (III) attempts to identify best practices. This paper seeks to establish that, while many States attempt to utilize the exhaustion of domestic remedies as an Achilles Heel to the Inter-American human rights regime, recent jurisprudence within the system illustrates that this potentially fatal flaw is mitigated through the exemption found within Article 46(2).

The Present and Future of The Investor-State Dispute Settlement Paradigm

While the World Trade Organization (WTO) system remains faithful to the long-standing traditional paradigm of state-to-state dispute resolution, dispute resolution mechanisms in the area of international investment are undergoing a radical change. Traditionally, the paradigm of ‘diplomatic protection’ has served as a basis for the settlement of investment disputes among states. In earlier commercial agreements, including the Friendship, Commerce, and Navigation Treaties (FCNs) concluded from 1940s to 1960s, the resolution of international investment disputes took the form of state-to-state dispute resolution. This paradigm shifted in the 1970s when direct investor claims, modelled on treaties that European countries had been putting forward since 1959, were allowed under a series of bilateral investment treaties initiated by the United States. This shift has been reflected in subsequent efforts to reach a multilateral agreement on investment (MAI) and in many free trade agreements (FTAs). Also, in the area of international human rights law, it is an increasing trend to allow an individual to have direct recourse to international human rights protection bodies, such as the Human Rights Committee established under the International Covenant on Civil and Political Rights, after the exhaustion of domestic remedies. The allowance of direct claims has helped to make up for the typical shortcomings of the diplomatic protection mechanism where, the espousing state has frequently exercised excessive discretion in deciding whether to advance claims due to considerations of a political nature, unrelated to the particular case, so that this mechanism can increase international friction. On the other hand, the strong point of diplomatic protection has been its capacity to screen out frivolous or dishonest claims by individuals. The question whether various international dispute settlement mechanisms may eventually converge into an effective system based on a direct claim procedure is a vexing one. It is uncertain whether the model of investor-state dispute settlement (ISDS) can play a pioneering role in this ongoing process. Any pertinent answers to such questions require a thorough comparison of the benefits and drawbacks of such a development. Lessons from the experiences under the ISDS system and its modification efforts should be fully taken into account so the newly emerging dispute resolution system will not lead to tension between nations in an area where precedent is scant, but the need is great.

Exhaustion of Domestic Remedies under the European Convention on Human Rights

(1998). Exhaustion of Domestic Remedies under the European Convention on Human Rights. Judicial Review: Vol. 3, No. 4, pp. 220-226.

Baboeram-Adhin and Others v. Suriname

Human rights — Arrest and detention — Right to life — Torture and ill-treatment — Arbitrary execution — Political opposition — International Covenant on Civil and Political Rights, 1966International tribunals — Procedure — United Nations Human Rights Committee — Optional Protocol to the International Covenant on Civil and Political Rights, 1966 — Communication alleging violations of Covenant — Joinder of similar communications — Admissibility criteria — Parallel examination by another international quasi-judicial tribunal — Exhaustion of domestic remedies — Reparation by State party — Obligation to investigate violations and prosecute those found responsible — Compensation to victims' families

Kitok v. Sweden

Human rights — Minority rights — Economic activity — Self-determination — Rights of indigenous populations - Concept of “people” — State responsibility — International Covenant on Civil and Political Rights, 1966International Tribunals — United Nations Human Rights Committee — Competence — Procedure — Optional Protocol to the International Covenant on Civil and Political Rights, 1966 — Communication alleging violations of Covenant — Exhaustion of domestic remedies — Standing — Concept of “victim”