AJIL Symposium: Comment on “A new International Human Rights Court for West Africa”

[Dr. Solomon T. Ebobrah is a Senior Lecturer at Niger Delta University.]

To date, ‘A new International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ authored by Karen Alter, Larry Helfer and Jacqueline McAllister is arguably the most eloquent scholarly exposition on the human rights jurisdiction of the ECOWAS Court of Justice (ECCJ) by observers from outside the African continent. This brilliant piece of work is to my knowledge, also the only one yet in existence to have taken a multi-disciplinary approach to the study of the ECCJ. Based on their very thorough and painstaking empirical investigation, the authors have successfully (in my view) supplied answers to some of the nagging questions that political scientists and lawyers would have regarding the budding human rights mandate of the ECCJ. As they point out in their opening remarks, intrigued (as the rest of us are) by the sharp but successful redeployment of the ECCJ from its original objectives of providing support economic integration to a seemingly more popular but secondary role as an international human rights court, the authors apply this article for the purpose trying understand and explain the rationale and manner of this transformation.

The authors have made very compelling arguments in support of their theoretical claim that international institutions, including international courts adapt to changing norms and societal pressures such that rational functionalist goals do not exclusively determine how a given international institution ultimately turns after its creation. While I find myself in agreement with much of the article, it is in relation to this claim and the evidence supplied by the authors in proof thereof that I find my first challenge. Generally, it is true (as Mark Pollack observes also) that the functions of international institutions do not always reflect the original preferences and intentions of converging states. However, is this the case in ECOWAS where, as the authors themselves acknowledge, ECOWAS States closely monitor policy-making by the ECOWAS institutions? The question I ask myself is whether adaptation and redeployment of an institution will occur if the societal pressure contradicts the current interests of the states involved. This is very crucial in the African context in which it is the governed who must align their interests with the interests of the governors. In several pages, the authors assert that civil society played a significant role in ‘forcing’ ECOWAS Member States to expand the ECCJ’s mandate and in supporting the ECCJ in its struggle for survival against Gambian retaliatory onslaught. As we know,  rationalist choice theories hold that states only participate in international regimes that further state interests (read as the narrow interest of the administration in office). If my understanding of their argument is correct, the position of the authors appears to suggest that irrespective of the interest of the Member States (although it is not completely discarded), it is the combined pressure of civil society, the ECOWAS Secretariat (now ECOWAS Commission) and the judges of the ECCJ that has forced ECOWAS states to expand the jurisdiction of the court to cover allegations of human rights violation. A number of questions necessarily arise. First, is it possible that civil society campaign was successful only because it coincided with the goals and intentions that ECOWAS Member States already had? Related to this, is it also possible, contrary to popular wisdom,  that expanding the ECCJ’s mandate to cover human rights is actually in the interest of the States independent of the pressure from civil society? In this regard, one could also ask whether satisfying donor-expectations and creating favourable reputations in the eyes of donor bodies and states did not already mean that it was in their interest to endow the court with human rights jurisdiction. Apart from the foregoing, is it also possible that empowering an international tribunal with little potential for enforcement is a lesser evil than an effective domestic judiciary? If the answer is yes, then how can the actual impact of societal pressure be measured? This question is critical given that the same pressure does not appear to have worked in forcing some of the same states to comply with decisions of the ECCJ that those states consider to be against their interests. The question is also important for the purpose of understanding why similar societal pressure has not worked in Eastern and Southern Africa to endow subregional courts with human rights jurisdictions. Could the coincidence of interests also explain the refusal of ECOWAS States to sanction the ECCJ despite calls to that effect from certain quarters?

Another area that I find somewhat challenging is the explanation adduced for the preference of a robust human rights mandate over the original function of monitoring compliance with economic rules. One gets the impression that empowering the ECCJ in economic matters would amount to acting in bad faith and acting outside the scope of delegated authority.  Again a number of questions could be raised. First, can the court’s supervision of the explicit economic objective for integration be less legitimate than the peripheral (if implicit) human rights protection goals of ECOWAS? Second, is the impact of ECCJ decisions in relation to economic rules likely to be more injurious to ECOWAS states than decisions arising from allegations of human rights violations? As authors like Andrew Guzman and Mark Pollack argue, while international courts provide information identifying ‘transgressors’ (through the adversarial process) that allows states themselves ‘punish’ violations, the courts themselves do not enforce international law. Applying this argument, is it more likely that ECOWAS States will sanction economic violations than human rights violations based on information supplied by the ECCJ? Or, is the damage to the reputation of a state as a violator of economic rules more injurious than as a violator of human rights rules? Could it be possible that external donor interest in ensuring some compliance with economic rule is lower than interest in ensuring compliance with human rights?

The authors have also highlighted the fact that ECOWAS States have surprisingly refrained from applying sanctions against the ECCJ but have instead acted to increase its independence. Weingast and Moran suggest that where control by a principal is effective, overt sanctioning is rare as the agent rationally anticipates the preferences of the principal and incorporates those preferences into their behaviour. The question then is whether the act of ignoring certain decisions of the ECOWAS Court is not a tool by which ECOWAS States control the ECCJ by forcing it to self-censor in appropriate cases such that no overt sanctioning is necessary? This is another question that the authors could have addressed.

Despite the questions I have raised and notwithstanding how the authors respond to those questions, there is no gainsaying that the authors have laid a very important foundation for understanding the evolution of international institutions created by governments on the African continent. The work also charts a new course for the study of the role of civil society in shaping the direction of international law in Africa.