In March of this year, Rwanda announced that it was withdrawing from the mechanism allowing individuals and NGOs direct access to the African Court on Human and Peoples’ Rights. This raised a number of legal questions concerning the validity and effect of the intended withdrawal, especially since the African Charter and Protocol do not provide for the issue of denunciation.
The Court recently posted its ruling, confirming that Rwanda can indeed withdraw its 34(6) declaration and that a notice period of 1 year applies. While the Court’s conclusion appears sound from an international law perspective, the Court did not take the opportunity to clearly define how it determined the starting point of the notice period. In addition, the late publication of the notice period raises questions of transparency and access to justice.
The Court found that the Vienna Convention on the Law of Treaties was not applicable as the 34(6) declaration that allows for direct access to the Court is a unilateral act that can be separated from the Protocol, but also said that even if the Convention is not directly applicable, it “can be used by analogy, and the court can draw inspiration from it when it deems appropriate.” The Court further emphasised that the optional nature of the declaration and its unilateral character “stems from the international law principle of state sovereignty”, concluding that Rwanda was entitled to validly withdraw.
However, while withdrawal may be discretionary, the right to do so is not absolute, the Court continued. As Rwanda’s withdrawal affected peoples’ ability to file cases with the Court, the principle of legal certainty required that Rwanda give prior notice:
“The requirement of notice is necessary in the instant case especially as the declaration pursuant to Article 34(6) once made constitutes not only an international commitment on the part of the State, but more importantly, creates subjective rights to the benefit of individuals and groups.”
The Protocol makes it possible to realise the rights contained in the African Charter, so “the suddenness of a withdrawal without prior notice … has the potential to weaken the protection regime provided by the Charter.”
The Court established that a one-year notice applied, drawing analogy with practice at the Inter-American Court of Human Rights and the notice period provided in Article 56(2) of the Vienna Convention on the Law of Treaties. The withdrawal therefore only has effect after that period has expired, which the Court established is on 1 March 2017. Importantly, the Court also held that the withdrawal had no effect on cases that were already pending: “the Respondent’s notification of intention of withdrawal has no legal effect on cases pending before the Court.”
The Court’s reasoning and end conclusions seem fair enough. As I indicated in a previous post, the other regional courts require a notice period of 6 months (European Court of Human Rights) and a year (Inter-American Court) respectively, and the principle of non-retroactivity should mean that the withdrawal has no effect on cases pending or filed before that time.
The Court’s ruling leaves unclear, however, what it has taken as the starting point for the 1-year notice period. A couple of dates are mentioned in the procedural history described in the ruling: the letter from Rwanda informing the Court of its intention to withdraw was dated 1 March 2016, the letter from the Office of Legal Counsel and Directorate of Legal Affairs of the African Union Commission informing the Court that it had received Rwanda’s withdrawal was dated 3 March 2016, while that same letter indicated 29 February 2016 as the date on which the withdrawal notice had been received by the Office of Legal Counsel. It would have been helpful if the Court had clarified these points in its first ruling on the matter, especially given the absence of guidance in the Protocol itself. When does the clock start ticking: when the Court has been informed or when the Office of Legal Counsel has been informed? Which is the date to go by: the date of the letter itself or the date of receipt? Basic questions that could make the difference between admissibility and inadmissibility of a human rights complaint.
Another issue is the Court’s rather peculiar procedure for publishing its findings. The original ruling was dated 3 June 2016, the corrigendum dated 5 September 2016, yet the ruling itself was published only in mid-October. Applicants from Rwanda now have just over 4 months left to file an application instead of the 9 months they would have had if the ruling been published when it was originally adopted. One wonders why the Court would allow for any delay in informing the public of this closing window of opportunity to bring alleged human rights violations committed by Rwanda to the Court’s attention. On 18 October 2016, The ACtHPR Monitor helpfully posted a “Rwexit Countdown” with the hashtag “#useitb4uloseit”. The Court itself would of course not be required to do something that explicit, but the timely publication of its ruling absolutely falls within its remit as not only a matter of proper procedure, but especially so in light of the principles of transparency and access to justice.