AJIL Symposium: Introduction to “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice”

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

The ECOWAS Community Court of Justice is an increasingly active and surprisingly bold adjudicator of human rights cases.  Since acquiring a human rights jurisdiction in 2005, the ECOWAS Court has issued more than 50 decisions relating to alleged rights violations by 15 West African states. The Court’s path-breaking cases include judgments against Niger for condoning modern forms of slavery, against Nigeria for impeding the right to free basic education for children, and against the Gambia for the torture of dissident journalists.

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, recently published in AJIL, explains how a sub-regional tribunal first established to help build a common market was later redeployed as a human rights court.  We investigate why West African governments—which set up the Court in a way that has allowed persistent flouting of ECOWAS economic rules—later delegated to ECOWAS judges a remarkably expansive human rights jurisdiction over suits filed by individuals and NGOs. Our theoretical contribution explains how international institutions, including courts, evolve over time in response to political contestation and societal pressures.  We show how humanitarian interventions in West Africa in the 1990s created a demand to expand ECOWAS’s security and human rights mandates.  These events, in turn, triggered a cascade of smaller reforms in the Community that, in the mid-2000s, created an opening for an alliance of civil society groups and supranational actors to mobilize in favor of court reform.

The creation of a human rights court in West Africa may surprise many readers of this blog. Readers mostly familiar with global bodies like the ICJ, the WTO and the ICC, or regional bodies in Europe and the Americas, may be unaware that Africa also has active international courts that litigate important cases.  Given that ECOWAS’ primary mandate is to promote economic integration, we wanted to understand why its court exercises such far-reaching human rights jurisdiction.  Given that several ECOWAS member states have yet to accept the jurisdiction of the African Court of Human and Peoples’ Rights, the ECOWAS Court’s ability to entertain private litigant complaints—without first requiring the exhaustion of domestic remedies—is especially surprising.  We also expected that even if ECOWAS member states decided to create such a tribunal, they would have included robust political checks to control the judges and their rulings.

What we found—based on a review of ECOWAS Court decisions and more than two dozen interviews with judges, Community officers, government officials, attorneys, and NGOs—was quite different.  The member states not only gave Court a capacious human rights jurisdiction, they also rejected opportunities to narrow the Court’s authority.

Our AJIL article emphasizes several interesting dimensions of the ECOWAS Court’s repurposing and subsequent survival as an international human rights tribunal.

First, the Court did not claim new legal competence for itself via judicial lawmaking; in fact, it dismissed its first complaint, which included a human rights claim.  Instead, the Court acquired its expansive human rights jurisdiction using a coordinated campaign in which bar associations, NGOs, Community officials—and ECOWAS judges themselves—publicly mobilized to secure the member states’ consent to the transformation.

Second, we discuss the Court’s strikingly capacious jurisdiction and access rules, with no specified catalogue of human rights, with direct access for private litigants, and—unlike almost every other international human rights tribunal—no requirement to exhaust domestic remedies.

Third, we explain how the ECOWAS Court has survived significant opposition from governments reacting to adverse rulings.  The Court not only endured these challenges, it may have become stronger.  We discuss institutional reforms adopted to address concerns—including the creation of a Judicial Council as well as transparent and professional selection procedures for ECOWAS judges—that arguably strengthen the Court’s independence and authority.

Finally, we consider the implications of the ECOWAS Court’s repurposing and survival for sub-regional tribunals in Eastern and Southern Africa, and for ongoing debates about the fragmentation of international human rights law.  Although still preliminary, the article’s conclusion draws on interviews that we conducted in the summer of 2013 to explore state backlashes against the courts of the East African Community and the Southern African Development Community.  Our research into three African sub-regional courts venturing into the potential minefield of adjudicating human rights violations suggests that the manner in which an international court acquires a human rights jurisdiction is legally and politically consequential.

We are careful to avoid overstating the ECOWAS Court’s influence.  Our article focuses on how the ECOWAS Court acquired its human rights jurisdiction.  We discuss the ongoing challenge of securing compliance with many of its judgments, and explain how the judges are attempting to meet this challenge by carefully tailoring the remedies that they award to successful complainants and by publicly pressuring governments to implement the Court’s rulings.  We also put the issue of noncompliance in perspective by noting that it took decades for human rights courts in Europe and the Americas to establish their authority, whereas the ECOWAS Court is still in its infancy.

A New International Human Rights Court for West Africa is one of several ongoing research projects in which we examine the growing legal and political salience of international courts and tribunals in Africa and elsewhere.  Karen Alter includes the ECOWAS Court and its modern slavery ruling in her recently published book, The New Terrain of International Law: Courts, Politics, Rights.  Jacqueline McAllister is examining whether international criminal courts influence the trajectory of violence in a study that focuses on the ICTY.  And Larry Helfer and Karen Alter have joined James Gathii to extend our interest in ECOWAS to the tribunals in Southern and Eastern Africa.

We are grateful to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun—distinguished and influential scholars of ECOWAS law and politics—for commenting on our article and sharing their insights on the ECOWAS Court.  Studying African law and politics is a new endeavor for us.  We welcome the insights of scholars who are longtime observers of ECOWAS and whose important writings have influenced our own analysis.