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Approaches to Advisory Procedure in the Right to Vote Advisory Opinion of the African Court on Human and Peoples’ Rights

MASSIMO LANDO
Assistant Professor, School of Law, City University of Hong Kong
Global Fellow, Centre for International Law, National University of Singapore

A Little Noticed Pandemic-related Case

We may have become accustomed to living in the times of a global pandemic. International judicial decisions have started to reflect the spirit of our times too. On 16 July 2021, the African Court on Human and Peoples’ Rights (Court) gave an advisory opinion concerning the “right to participate in the Government of one’s country in the context of an election held during a public health emergency, such as the COVID-19 crisis”. The Court’s advisory opinion appeared to remain nearly unnoticed by international observers, but the Court’s approach to matters of advisory procedure makes the opinion well worth a read.

This short comment gives an overview of the advisory request and the Court’s opinion, offering some remarks on certain points of procedure raised by the Court’s reasoning.

The Advisory Request

The request for an advisory opinion seemed motivated by concerns arising from the decision, by certain African governments, to postpone elections scheduled to take place after the start of the COVID-19 pandemic on public health grounds. Concerns underlying the advisory request also stemmed from measures, implemented by certain African governments, to introduce limits on certain fundamental freedoms, such as freedom of movement, assembly and association, also on public health grounds, which could indirectly affect one’s right to vote.

The advisory request came from the Pan African Lawyers Union (PALU), which made it pursuant to Article 4(1) of the Protocol to the African Charter on Human and Peoples’ Rights (Protocol and Charter, respectively). Under that provision, “[a]t the request of a Member State of the OAU [i.e., Organisation of African Unity], the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission”. Besides asking for the Court to decide whether it had jurisdiction to render the opinion requested, PALU asked the Court to elaborate on:

  • “the applicable obligations of State Parties for ensuring effective protection of the citizen’s right to participate in the government in the context of an election held during the pendency of a declaration of a public health disaster or emergency, such as the COVID-19 crisis”;
  • “the legal standards founded in treaty law applicable to the State Parties that choose to conduct elections vis-à-vis Member States that choose not to conduct elections during the pendency of the COVID-19 disaster or emergency measures”; and
  • “the legal standards applicable to States precluded by reason of a public health emergency, such as the one caused by the COVID-19 pandemic, from organising elections as the basis of the democratic mandate of government”.

The advisory request concerned human rights and fundamental freedoms guaranteed under the Charter, but also under the African Charter on Democracy, Elections and Governance (ACDEG).

The Court’s Opinion – Jurisdiction

Before addressing the substance of the advisory request, the Court considered its jurisdiction to render the opinion requested.

Following its jurisprudence, the Court read Article 4(1) of the Protocol to entail that advisory jurisdiction has a personal aspect, as well as a material one. While personal jurisdiction concerns whether the author of the advisory request, in this case PALU, is one of the possible authors listed under Article 4(1), the existence of material jurisdiction depends on whether the advisory request concerns “any legal matter relating to the Charter or any other relevant human rights instruments” (paras. 22 and 28). On personal jurisdiction, the Court found that PALU is an organisation registered in an African country, has branches at the regional level and carries out activities beyond the country where it is registered (paras. 24–26). As to material jurisdiction, the Court noted that the advisory request concerned a number of provisions of the Charter and the ACDEG, which was sufficient to find that it had material jurisdiction (para. 29).

The Court’s decision on jurisdiction does not seem problematic. It is the Court’s overall approach to jurisdictional matters in the advisory context that may raise some questions. It is common for the contentious jurisdiction of international tribunals to be distinguished between various aspects, such as jurisdiction ratione personae and ratione materiae. Yet, it is uncommon for such distinctions expressly to extend to advisory jurisdiction, as shown by the advisory opinions of the International Court of Justice (ICJ, see here and here), International Tribunal for the Law of the Sea (ITLOS, see here and here) and the European Court of Human Rights (see here and here). The Inter-American Court of Human Rights seems to be the only international judicial organ expressly to examine the personal aspect of its advisory jurisdiction (see here), although it does not always dedicate separate sections of its advisory opinions to establishing whether it has personal jurisdiction over an advisory request (see here).

If one saw jurisdiction ratione personae as a matter essentially concerning access to an international judicial organ, one could also accept that advisory jurisdiction has a ratione personae aspect. The reason why certain judicial organs, such as the ICJ, do not separately examine personal jurisdiction seems linked to the limited number of potential requesting organs (see Article 96 of the United Nations Charter). Even the infrequent scenario where an organ requests an advisory opinion not falling within the scope of its activities does not seem to raise issues of personal jurisdiction (here). However, things should be different for ITLOS acting as a full Tribunal, since under Article 138 of its Rules there can be a potentially limitless number of requesting organs (for criticism of ITLOS’ advisory jurisdiction, see here and here). Following the Court, ITLOS should dedicate parts of its advisory opinions to establishing whether requesting organs may request such opinions, especially if, as some scholars have suggested, ITLOS were finally to frame more stringent criteria to access the advisory jurisdiction of the full Tribunal.

The Court’s Opinion – Admissibility

According to the Court, an advisory request is admissible if, inter alia, “the subject matter of the opinion is not related to a matter being examined by the Commission” (para. 34). Having received a notification by the Commission that there was no matter pending before it on the same subject matter as the advisory request, the Court found the request to be admissible (paras. 36–39).

It is unpersuasive to consider that the pendency of the same subject-matter before the Commission is a bar to the admissibility of an advisory request. The Inter-American Court has been faced with similar arguments concerning petitions pending before the Inter-American Commission. However, the Inter-American Court has not treated such arguments as points of admissibility by considering that they concerned the power to use advisory opinions to decide contentious cases (see here). Article 4(1) of the Protocol makes it a condition that no matter before the Commission concern the same subject-matter of an advisory request for the Court even to have the power to render an advisory opinion. If such a matter were to be pending before the Commission, the Court would have no power to render the opinion requested. This condition appears to be framed as a matter of jurisdiction, not admissibility.

The Court did not examine its discretion to render the opinion requested, different from the usual practice of the ICJ. At the ICJ, the discretion analysis is grounded in the permissive “may” in relation to its jurisdiction to give advisory opinions under Article 96 of the United Nations Charter. Article 4(1) of the Protocol also uses the permissive “may”, based on which one could expect the Court to take an approach to discretion similar to that of the ICJ. Nevertheless, the Court did not even mention discretion, in line with its approach in previous cases. This approach could be welcomed, given the vagueness of discretion analyses in the ICJ’s jurisprudence, as well as the problem, raised by Robert Kolb, that there is no legal basis for the ICJ even to formulate a doctrine of discretion to render advisory opinions (see here).

The Court’s Opinion – Substance

In the part of the advisory opinion dedicated to the merits of the request, the Court commented on the number of States parties to the instruments which PALU asked it to interpret. The Court observed that, while the African Union (AU) has 55 member States, the Charter has 54 States parties, while the ACDEG only 34 (para. 43). The Court stated that, despite this lack of overlap in treaty membership, all Members States of the AU have undertaken to:

“promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.” By making this commitment, they assumed the obligation to uphold human rights in all circumstances. (para. 44)

The Court added that, since it has jurisdiction to render advisory opinions at the request of any member State of the AU irrespective of whether it has ratified the Protocol, “its advisory opinions are designed to provide guidance to all Member States of the AU in fulfilling their international human rights commitments” (para. 46).

The Court’s treatment of this issue as a point of substance appears problematic. The fact that the Court is being requested to interpret legal instruments by which only some of the States parties to its founding Protocol are bound does not raise questions of jurisdiction, as it does not concern the existence of the Court’s power to render an advisory opinion. This request appears to be a matter which goes to the propriety of exercising advisory jurisdiction, and therefore raises an issue of admissibility of the advisory request. The reason why the Court treated this aspect as a matter of substance is unclear. Equally unclear is the reasoning in paragraph 44 of the opinion. Merely because AU member States have undertaken to “promote and protect human rights” under the Charter and other human rights treaties appears insufficient to justify rendering an advisory opinion whose legal effects can extend to States that are not parties to the Protocol or the ACDEG. Although the Court’s approach should be welcome from the perspective of promoting human rights, it conflicts with the established view that States are, in principle, bound only by the commitments that they voluntarily undertake.

This matter could alternatively be considered as a matter of discretion to render advisory opinions. However, this approach would seem to be inconsistent with the Court’s approach not to elaborate on its discretion to render advisory opinions.

Conclusion

The Right to Vote advisory opinion raises some questions concerning the Court’s approach to issues of advisory procedure. The similarity, although limited, to the jurisprudence of the Inter-American Court could suggest that there is a process of gradual development of a “human rights approach” to advisory procedure. Even if this were the case, some questions remain open which may find answers in future advisory opinions.