The hearing at the African Court on Human and Peoples’ Rights in the case of Victoire Ingabire this morning unexpectedly led to the disclosure of Rwanda’s withdrawal of the instrument allowing individuals and NGOs to directly file cases against it with the Court.
Individuals and NGOs can directly file cases against countries who have made the declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Benin deposited its 34(6) declaration only last month, on 8 February, which brought the total number of States allowing for direct access to eight. However, with Rwanda’s withdrawal of the declaration, the number might now be back down to seven.
Rwanda has not yet made a formal statement as to the motives of the withdrawal, nor is it known at this stage by which means it withdrew its declaration. The situation raises a myriad of legal questions, as the African Charter nor the Protocol contain a provision on denunciation. Both the European and Inter-American human rights system provide clear guidelines on the duration of jurisdiction when a State Party withdraws from the relevant human rights instrument: the European Convention on Human Rights allows States to withdraw after six months’ notice under Article 58 and the American Convention on Human Rights requires one year’s notice under Article 78.
It appears that the Court is now faced with two critical questions: first, can Rwanda’s withdrawal of the 34(6) declaration be considered valid, and second, if so, what impact will the withdrawal have on the Court’s jurisdiction over the country? In the absence of explicit provisions on either issue in the African Charter and the Protocol, it appears the Court will need to resort to the Vienna Convention on the Law of Treaties to answer these questions.
Article 56 of the Vienna Convention prescribes that treaties that do not contain a denunciation clause are not subject to denunciation or withdrawal unless it is established that the parties intended to admit this possibility or the nature of the treaty implies a right of denunciation of withdrawal. Given that a declaration to allow for direct access needs to be actively made by States in the first place, and that Rwanda is not withdrawing from the entire treaty system as such but only limiting direct access of individuals to the Court, it would appear that withdrawal should be possible, though it will be interesting to see what requirements for its validity will be determined.
It would seem that, at the very least, Rwanda cannot remove itself from the jurisdiction of the Court regarding cases that have been filed against it while the declaration was in force (the Court’s website currently lists seven cases), and possibly for cases that have been filed up to a year after the date a withdrawal has been validly made (also in analogy with Article 56 of the Vienna Convention). It is important to note that this only concerns cases filed against Rwanda at the Court directly by individuals. As Rwanda has not withdrawn from the Protocol itself, cases against it can still be referred to the Court by the African Commission under Article 5 of the Protocol.
Whatever the outcome of these questions may be, Rwanda’s withdrawal is a disappointing development for the Court, which in the few substantive decisions it has handed down so far, has demonstrated itself as a solid human rights court, capable of handing down decisions in a relatively short timespan, especially when comparing timelines with its regional counterparts. It can only be hoped that few African Union Member States will follow Rwanda’s lead and rather take Benin as an example.