(2017) 1 African Human Rights Yearbook
169
Their powers usually include the right to interpret the regional
integration rules and solve disputes arising therefrom. In addition,
some courts are entrusted with quasi-constitutional competences, for
instance, upholding principles of democracy and rule of law and
resolving conflicts between the various branches of State power.
Contrary to Europe, where there has been a relatively clear distinction
between regional integration courts and regional human rights
protection courts, in other continents although there are specialised
regional human rights courts, other courts also deal with human rights
or more widely with the protection of the rights of individuals, either as
explicitly included in the court’s competence or derived from
interpretation of general principles. Nevertheless, one common feature
in all these schemes is how decisions of the courts can be and are
enforced against member states. This question is less well developed
than substantive rights although it is a major one and there is a danger
that failure to enforce decisions leads to an erosion of the respect for the
regional courts.
The objective of this analysis is to highlight how regional systems of
political and judicial oversight, especially in weak or fragile democratic
systems, can be a useful addition to national judicial or other
mechanisms of protection of human rights and rule of law and control
of the executive. The article analyses if and how decisions of regional
courts can have a real impact, even in the absence of effective regional
enforcement systems. We examine the various courts in Africa and in
the Americas to draw conclusions through a comparative analysis as to
the validity of the article’s hypothesis: Is it possible to use
regionalisation of human rights to enhance their protection and
promote rule of law at national level? And if yes, how can enforcement
of decisions of courts of regional integration organisations be ensured
and enhanced? 1
2
2.1
REGIONAL INTEGRATION AND COURTS OF
JUSTICE
Europe
This article will not go into any detail on the European regional courts.
However, as both the Court of Justice of the European Union and the
European Court on Human Rights have served as models for many
regional courts, some salient European issues will be briefly touched
upon as a background. The matter of enforcement is interesting in this
context, as even these far-reaching regional integration systems with
powerful courts lack designated enforcement mechanisms.
Responsibility for enforcing decisions by both the Court of Justice of
1
Reflections in this article are based on interviews by the authors at the mentioned
courts in Africa and the Americas, during study visits in February 2015 (the Americas)
and February - April 2016 (Africa), supported by a travel grant from the Folke
Bernadotte Academy as part of the latter’s Rule of Law programme.
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