Is it also likely that we are reluctant to entertain the scenario that a regional international court may monitor UN or other global treaties because of the specific topos of the ACtHPR? The fixity of cities and spaces of delivering international justice, and developing international law, is well entrenched in the limited number and geography of the cities in which these processes take place. The ‘law of Geneva’ and the ‘law of Strasbourg’ assign international law a location, and narrate a specific story of progress. This arguably inhibits us from giving due regard to the seemingly unlikely places in which international law may be found. The ACtHPR can be seen as part of a different plausible map of international law articulating a design which is variant from the mainstream “model(s) of success” of regional human rights courts and, in general, the “templates” of international adjudication mechanisms.
Introducing propriety considerations in exercising the ACtHPR’s jurisdiction?
That being said, and depending on the cases brought before the ACtHPR in the future, there may be merit in finding ways to manage its broad material jurisdiction. The ACtHPR may be in the process of developing a policy of judicial restraint when exercising its jurisdiction over human rights treaties other than the ACHPR. It proclaimed that it is not necessary to consider alleged violations of the ICCPR, if it has already ruled on similar alleged violations under the relevant provisions of the Charter. However, no criteria are articulated on when this is unnecessary and, overall, the ACtHPR’s practice is inconsistent. Recently it found violations of other treaties on human rights without bringing the ACHPR into play at all.
Different legal justifications may be furnished to justify such skype database a judicial practice. First, international courts have the power to decide the scope of a claim, by determining how the legal grounds establishing their jurisdiction and the nature of the claims shape the subject of a dispute. Second, international courts may not address all submissions by the applicants or all possible legal bases regarding the complaint(s) due to reasons of procedural economy as long such an approach is not unduly reductive. Third, it is also possible to make a choice of applicable law when many rules are applicable. This is not necessarily an issue of lex specialis, but rather an issue of ‘locating the corpus of law at the heart of a difficult issue’, as Higgins has stated (see, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons).
To conclude, the ACtHPR is an international court with novel features. The question, therefore, is whether we are to discuss and assess novel institutions against only the criteria and experience of existing bodies, or shall we also account for and appreciate the foregoing bodies in new light. Conversely, the ACtHPR is also an invitation to rethink how we approach both old and new international courts and to pave new ways forward in international judicial settlement.