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

  • Amos O Enabulele


This 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.



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1 The list could be said to be open-ended.

2 Udombana, NJSo far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples' Rights” (2003) 97(1) American Journal of International Law 1 at 9.

3 Application no 53341/99, judgment of 10 July 2003 at para 56.

4 Application no 25803/94, judgment of 28 July 1999, ECHR 1999 at para 74.

5 Of 4 November 1950, as amended by protocol 11, ETS no 155 of 1998.

6 Cardot v France, judgment of 19 March 1991, series A no 200 at 18; Kenneth Lehtinen v Finland application no 39076/97, ECHR 1999-VII.

7 See the cases of Etim Moses Essien v The Republic of the Gambia and the University of Gambia (unreported) suit no ECW/CCJ/APP/05/05 delivered 14 March 2007, at para 27; and Hadijatou Mani Koraou v The Republic of Niger judgment no ECW/CCJ/JUD/06/08 of October 2008. In the former, the court stressed that the exhaustion of domestic remedies requirement of art 50 of the African Charter on Human and Peoples' Rights has no bearing with art 10(d) of the ECCJ protocol.

8 Adopted 27 June 1981, OAU doc CAB/LEG/63/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986.

9 McNair, LordInternational Law Opinions (vol 2, 1956, Cambridge University Press) at 12, cited in Meron, TThe incidence of the rule of exhaustion of local remedies” (1959) 35 The British Yearbook of International Law 83 at 83.

10 Lehtinen v Finland, above at note 6; Selmouni v France, above at note 4 at para 56.

11 Republic of Guinea v Democratic Republic of the Congo (preliminary objection) judgments of 24 May 2007 at 19, para 47.

12 Cardot v France, above at note 6 at 18.

13 Judgment of 1971-06-18, 12 Eur Ct HR (ser A), para 50.

14 See Mavrommatis Palestine Concession (Greece v United Kingdom) PCIJ, series A, no 2 (1924) at 12.

15 Ibid.

16 Panevezys-Saldutiskis Railway case, judgment of 28 February 1939, series A/B, no 76 at 17. This has been consistently followed by the ICJ as well. See Barcelona Traction, Light and Power Company Ltd (new application 1962) (Belgium v Spain) judgment of 5 February 1970, ICJ rep 1970, 3 at 44, para 78.

17 Barcelona Traction, ibid.

18 Ibid.

19 Ibid.

20 Reparation for Injuries Suffered in the Service of the United Nations advisory opinion of 11 April 1949, ICJ rep 1949, 174 at 181–82.

21 Barcelona Traction, above at note 16 at 42, para 70.

22 Panevezys-Saldutiskis Railway, above at note 16 at 16.

23 Barcelona Traction, above at note 16 at 46, para 86.

24 Mavrommatis Palestine Concession, above at note 14 at 12.

25 Barcelona Traction, above at note 16 at 32, para 34. The court drew attention (at 32, para 33) to certain rights which are “by their very nature … the concerns of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.”

26 United Kingdom v Albania (Corfu Channel) ICJ rep 1949, 4 at 22.

27 Switzerland v United States of America ICJ rep 1959, 6 at 27.

28 Meaning that no state has jurisdiction over another state. See Meron “The incidence of the rule”, above at note 9 at 85. Also, unless it is expressly required by treaty, states are under no obligation to exhaust all diplomatic negotiations as a precondition to referring a matter for international adjudication: Land and Maritime Boundary between Cameroon and Nigeria (preliminary objections) ICJ reps 1998, 275 at 303, para 56.

29 Israel v Bulgaria (preliminary objection) ICJ rep 1959, 127.

30 Meron “The incidence of the rule”, above at note 9 at 93.

31 Above at note 29.

32 On this score, it is again relevant to note Meron's assertion that: “It would be very strange indeed if a state which interfered illegally with an alien, who did not – except for that interference – have any connection with it, should be allowed to derive advantage from its illegal acts”: Meron “The incidence of the rule”, above at note 9 at 96.

33 United States of America v Italy ICJ rep 1989, 15.

34 Id at 43, para 51.

35 Id, para 52.

36 De Wilde, Ooms and Versyp v Belgium, above at note 13 at 55.

37 Above at note 20.

38 Above at note 16 at 38, para 53.

39 Above at note 20 at 175.

40 Id at 178.

41 Id at 183.

42 Above at note 16 at 17.

43 Above at note 16 at 44, para 78.

44 Art 34 of the statute of the ICJ proclaims that “only States may be parties in cases before the Court”. Before the Reparation case, above at note 20, where the ICJ established that United Nations organizations have the right to submit international claims to the court, the strict rule stated in art 34 applied. In Mavrommatis Palestine Concession, above at note 14, Judge de Bustamante, dissenting, reiterated that the League of Nations was prevented from appearing before the PCIJ due to a similar provision in the statute of that court. This view had also prevailed in respect to the United Nations. In the South West African Cases (second phase) judgment of 18 July 1966, ICJ rep 1966, 6 at 493, Judge Louis Mbanefo affirmed the view that “by article 34 of its Statute, the League, not being a State, could not itself be a party to an action in the International Court. Only States or members of the League could be parties in cases before the Court.”

45 Pecuniary Claims of Danzig Railway Officials Who Have Passed into the Polish Service, Against the Polish Railways Administration advisory opinion of 3 March 1928, series B no 15 at 17–18.

46 Paulsson, JDenial of Justice in International Law (2005, Cambridge University Press) at 108, cited in Vermeer-Kunzli, AAs if: The legal fiction in diplomatic protection” (2007) 18(1) European Journal of International Law 37 at 53, arguing that “if aliens are allowed to bypass those [internal] mechanisms and bring international claims … international law would find itself intruding intolerably into internal affairs”. The seriousness attached to the exhaustion rule by international courts was demonstrated by the ECHR in Ringeisen v Austria (Merits) judgment of 16 July 1971, series A no 13, para 89, where the court held that it would be going too far and contrary to the rule of exhaustion to allow an application to be lodged before domestic remedies had been exhausted. In other words, the mere lodging of an application breaches the exhaustion rule.

47 Mavrommatis Palestine Concession, above at note 14 at 12.

48 This provision has however been repealed by Protocol 11, which abolished the commission.

49 This provision is restated in art 56(5) and (6) of the charter. It may appear that art 50 of the charter attaches specifically to inter-state claims. This impression arises from the fact that art 50 appears under the heading “Communication from states”, which appears directly above art 47. However, a holistic view of the entire chap III in which art 50 appears would show that the general heading for that part of the charter is “Procedure of the commission” and not “Communication from states.” Art 50 attaches to the former and not the latter. An indication that art 50 attaches to the general heading can clearly been seen from the fact that there is no other heading separating the other provisions of the chap (specifically arts 55 and 56 which obviously contemplate non-state communications) from the part to which the heading “Communication from states”, applies. In this light, the main provision on exhaustion of domestic remedies is art 50. This is because art 50 generally attaches to the jurisdiction of the commission while art 56(5) and (6) merely reiterate the rule as a precondition for the validity of each communication. It is significant to recall the point made earlier in this article that the rule of exhaustion does not apply to inter-state claims. The framers of the African Charter could not have intended to exclude the fundamental rule of sovereign equality in inter-state claims. We can rely on ECHR case law for an understanding of the different approaches to the application of the exhaustion rule to inter-state cases. In a nutshell, the ECHR's approach is that the exhaustion of domestic remedies is a condition precedent to inter-state cases in which a state alleges the violation of the European Convention against individuals: Ireland v the United Kingdom judgment of 18 January 1978, series A no 25, 159; Cyprus v Turkey application no 25781/94, ECHR, 2001-IV at 82–102. On the contrary, the rule would not apply when the state complains of a practice with the aim of preventing its continuation or recurrence: Denmark v Turkey application no 34382/97, 34. Also, the rule would not apply when the complaint is against a piece of legislation which offends the convention. See Trindade, AA CancadoExhaustion of local remedies in relation to legislative measures and administrative practices: The European experience” (1976) 18 Malaya Law Review 257.

50 Of 22 November 1969.

51 The same requirement is obvious in many other human rights instruments. See generally Udombana “So far, so fair”, above at note 2 at 1.

52 In Elettronica Sicula SPA, above at note 33 at 42, para 50, the court referred to it as “an important principle of customary international law”. In Interhandel, above at note 27 at 27, the court called it “a well-established rule of customary international law”.

53 Udombana “So far, so fair”, above at note 2 at 3.

54 Amerasinghe, CJurisdiction of International Tribunals (2003, Martinus Nijhoff Publishers) at 284305.

55 Judgment of 13 November 1981, Inter-American Court of Human Rights 12, OEA/SER. L/V/111.7 doc 13, ser A and B no G 101/81 (1982) at paras 26–27.

56 Interhandel, above at note 27 at 46, para 59.

57 On this point, however, the language of art 41(c) of the Optional Protocol to the International Covenant on Civil and Political Rights is particularly interesting in that it requires the Human Rights Committee to “ascertain” that all domestic remedies have been invoked and exhausted. This places a duty on the court, on its own motion, to determine exhaustion, even when it is not raised by a defendant state.

58 Above at note 11.

59 Id at 18, para 44.

60 Ibid.

61 Above at note 4, para 76.

62 Above at note 3.

63 Separate opinion of Sir Hersch Lauterpacht in France v Norway ICJ rep 1957, 9 at 39.

64 Also see art 41(c) of the Optional Protocol to the International Covenant on Civil and Political Rights.

65 Above at note 4, para 76.

66 Above at note 3, para 58.

67 Separate opinion of Sir Hersch Lauterpacht, above at note 63 at 39.

68 Pressos Compania Naviera SA v Belgium judgment of 20 November 1995, 27.

69 Selmouni v France, above at note 4, para 75.

70 Ibid. See also Vernillo v France judgment of 20 February 1991, ser A no 198 at 11–12; Johnston and Others v Ireland judgment of 18 December 1986, ser A no 112, at 22.

71 Shelton, DThe jurisdiction of the Inter-American Court of Human Rights” (1994–95) 10 American University Journal of International Law and Policy 333 at 345. This point was also made by the ECHR, when it held in De Wilde, Ooms and Versyp v Belgium, above at note 13, para 60, that the rule demands the use only of such remedies which are available to the persons concerned and are sufficient.

72 Above at note 27 at 27.

73 By Protocol A/P 1/7/91 which entered into force on 5 November 1996.

74 Arts 6(e) and 15 of the revised ECOWAS treaty.

75 Id, art 76.

76 Id, art 76, para 4.

77 Id, arts 9 and 76.

78 Id, art 4.

79 Supplementary Protocol, arts 4(g) and 9(4). Art 4 of the Supplementary Protocol amends art 10 of the Community Court Protocol.

80 ECW/CCJ/APP/01/03.

81 No APP/01/04.

82 “Practice and procedure in ECOWAS Court” (paper presented by president of the ECCJ, Hon Justice Aminata Malle Sanogo, at the 2007 annual general conference of the Nigerian Bar Association at Ilorin, Kwara State, 26–31 August 2007). In the paper, it was noted that between 2001, when the court was established, and 2005, when the protocol was amended to accommodate individuals, only two cases were filed before the court. The cases having being filed by individuals, the court had to decline jurisdiction.

83 Supplementary Protocol, art 9(1)(a).

84 Id, art 9(1)(b).

85 Id, art 9(1)(d).

86 Id, art 9(1)(e).

87 Id, art 9(4).

88 Id, art 10(a).

89 Id, art 10(c).

90 Id, art 10(d).

91 Above at note 7.

92 Id at 2, para 16.

93 Id, para 39 (emphasis original).

94 Id, paras 40–42.

95 Id, para 45.

96 Above at note 13.

97 Id, para 55.

98 Haya De La Torre (Columbia v Peru) ICJ reports 1951, 71 at 80–81.

99 Above at note 33.

100 Id at 42, para 51.

101 All states parties to the African Charter undertook in its art 1 to adopt legislative or other measures to give effect to the rights, duties and freedoms enshrined in the charter. This provision may have been goaded by the fact that a majority of African states follow the dualist approach to international law. With regards to ECOWAS states, Cape Verde is the only monist state. The constitutions of 11 of the 15 states constituting ECOWAS adopt the dualist approach: the Republic of Benin, Burkina Faso, Côte d'Ivoire, Ghana, Guinea, Mali, Niger, Nigeria, Mauritania, Senegal and Togo. The constitutions of the remaining three (Gambia, Guinea Bissau and Liberia) are silent on this point. Notwithstanding the dualist nature of the majority of states, the African Charter has been integrated into the municipal sphere of some of the states either through a direct constitutional provision or by statute. For instance, Niger along with Senegal, Liberia, Guinea, Togo and the Republic of Benin, gave legal weight to the African Charter in their respective constitutions. In Nigeria, the charter is made applicable by statute. For a discussion on how the dualist nature of the constitution of most ECOWAS states affects the ECOWAS court, see Enabulele, AOReflections on the ECOWAS Community Court Protocol and the constitutions of member states” (2010) 12 International Community Law Journal 111.

102 One reason why the American courts refused to enforce the ICJ judgments in Avena and Other Mexican Nationals (Mexico v US) 2001 ICJ 466 and LaGrand (FRG v US) 2004 ICJ 12, is that the ICJ exceeded its jurisdiction. Whether this approach is right or wrong is outside the scope of this article.

103 Above at note 7.

104 See the decision of the ICJ in Interhandel, above at note 27.

105 Art 24 of the ECCJ protocol.

106 Enabulele “Reflections”, above at note 101.

* LLB, LLM, BL; barrister and solicitor; lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria. The author is currently a PhD student at Brunel University, London.

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

  • Amos O Enabulele


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