Hossou and Adelakoun v Republic of Benin

• Jurisdiction: Derecho Internacional
• Judge: Kioko,Ben Achour,Matusse,Mengue,Mukamulisa,Chizumila,Bensaoula,Tchikaya,Anukam,Aboud,Ntsebeza,Sacko
• Judgment Date: 02 December 2021
• Court: African Court on Human and Peoples' Rights
• Year: 2021
• Docket Number: (Application No 16/2020)

Hossou and Adelakoun

and

Republic of Benin 1

(Kioko, Vice-President; Ben Achour, Matusse, Mengue, Mukamulisa, Chizumila, Bensaoula, Tchikaya, Anukam and Aboud, Judges)

(Aboud, President; Tchikaya, Vice-President; Kioko, Ben Achour, Mengue, Mukamulisa, Chizumila, Bensaoula, Anukam, Ntsebeza and Sacko, Judges)

(Application No 16/2020)

African Court on Human and Peoples' Rights

Provisional Measures.

Jurisdiction.

States — Sovereignty — States' withdrawal of declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court, 1998 — Right of a State with respect to treaties — Right to enter and right to withdraw

International tribunals — African Court on Human and Peoples' Rights — Direct connection of case's merits to provisional measures request — Whether an application to institute proceedings before the Court void if unsigned

International tribunals — Jurisdiction — Whether the African court having jurisdiction to decide on/revoke State's decision to withdraw its declaration under Article 34(6) of the Protocol — Whether State declarations accepting the jurisdiction of the African Court optional

Treaties — Interpretation — Withdrawal — Whether State's withdrawal an act of sovereignty and a unilateral act — Whether State's withdrawal matter of treaty law — Consent — Rights of States

Human rights — Whether State's withdrawal of its declaration under Article 34(6) of the Protocol constituting a regression of rights — Whether depriving State's citizens of a regional judicial redress mechanism through its withdrawal a human rights violation — Whether State declarations under Article 34(6) of the Protocol conferring subjective rights on individuals and nongovernmental organizations

Summary:2The facts:—Mr Hossou and Mr Adelakoun (“the applicants”) were lawyers and nationals of the Republic of Benin (“the respondent State” or “the respondent”). They brought a suit challenging the respondent State's withdrawal of its declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court, 1998 (“the Protocol”), through which it had accepted the jurisdiction of the African Court on Human and Peoples' Rights (“the Court”) to receive applications from individuals and nongovernmental organizations (“NGOs”).

The applicants alleged that the respondent State's withdrawal violated the African Charter on Human and Peoples' Rights, 1981 (“the Charter”) and international human rights standards. They also contended that the withdrawal declaration constituted a regression of rights, as it deprived the State's citizens of direct access to the regional judicial system through which they could seek redress for prejudice suffered within their domestic system. The applicants requested that the Court revoke the respondent State's decision to withdraw, as a matter of urgency, pending a ruling on the principal application.

The respondent State contended that the applicants' request was inadmissible, as it was unsigned, contrary to the provision of the Rules of the Court. The respondent State argued that the applicants were contesting the right of a sovereign State to enter into or withdraw from any convention as it deemed fit, and stressed that in international law, and particularly in accepting the jurisdiction of an international court, sovereignty was manifested through consent. The respondent maintained that it was clear from the Court's instruments and its jurisprudence that States were free to decide whether or not to accept its jurisdiction.

The respondent maintained that the applicants had not established how its withdrawal constituted a violation of human rights. The respondent State asserted that the subject matter of the application fell outside the jurisdiction of the Court, as the court only had jurisdiction regarding the legal effect of its withdrawal. The respondent emphasized that admitting the application would have been equivalent to the rejection of its sovereign right to withdraw its declaration. The respondent requested that the Court dismiss the application as it lacked material jurisdiction.

Ruling on Provisional Measures (25 September 2020)

Held:—The Court had prima facie jurisdiction to hear the application. The applicants' request for provisional measures was dismissed.

(1) For a request on provisional measures, the Court only needed to ensure that it had prima facie jurisdiction. The respondent State was a Party to the Charter and the Protocol, and had accepted the Court's jurisdiction to receive applications from individuals and non-governmental organizations. The applicants' allegations concerned instruments over which the Court had jurisdiction under Article 3(1) of the Protocol,3 and the alleged violations also related to rights protected by instruments to which the respondent State was a Party. A State's withdrawal of its declaration regarding Article 34(6) of the Protocol had no retroactive effect on cases under consideration at the time of the deposit of the instrument, as was the situation in this case. The respondent State's withdrawal did not affect the Court's personal jurisdiction in any way (paras. 10–16).

(2) Although Rule 34(1) of the Rules of Court4 provided that the application be signed, the Court adopted a flexible approach with regard to the form and modality of how it is seised, taking into account the circumstances of each application to determine its validity. The applicants filed their application via email, and although no signature was included, they duly endorsed their names and fully disclosed their particulars. The applicants' identities were also well established, notwithstanding the absence of signatures within their application. The respondent State's preliminary objection on this basis was dismissed (paras. 17–21).

(3) The applicants did not present evidence of extreme gravity or urgency which necessitated their request for provisional measures. Neither did the circumstances reveal a situation of urgency or extreme gravity which risked causing irreparable harm to the applicants. Notably, the applicants' request also touched on the merits of the application, and if ordered, would grant the very reliefs they sought in their main application. The applicant's request for provisional measures was therefore dismissed. The Court's ruling was provisional and in no way prejudged its decision regarding its jurisdiction, admissibility or the merits of the case (paras. 22–32).

Ruling on Jurisdiction (2 December 2021)

Held:—The Court did not have material jurisdiction over the application.

(1) Article 3 of the Protocol provided that the Court had jurisdiction over cases and disputes concerning the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the States concerned; as well as any dispute regarding whether the Court had jurisdiction. If the rights alleged to have been violated were protected by

the Charter or any other human rights instrument ratified by a State party, it would suffice to establish the Court's material jurisdiction. (paras. 14–27).

(2) Although the declaration made under Article 34(6) of the Protocol was provided for in the Protocol which was governed by the law of treaties, the declaration itself was a unilateral act of a State which was not supported by the law of treaties. Consequently, the Vienna Convention on the Law of Treaties, 1969 did not apply to the declaration made under Article 34(6) of the Protocol (paras. 28 and 29–30).

(3) State declarations accepting the jurisdiction of international courts were optional. This was true for similar declarations by States recognising the jurisdiction of the International Court of Justice, the European Court of Human Rights (before Protocol No 116) and the Inter-American Court of Human Rights. The declaration provided under Article 34(6) of the Protocol was similar to them, and though contained within the Protocol, it was optional. The declaration was a unilateral act separable from the Protocol, which could be withdrawn from solely, without leading to a withdrawal from or denunciation of the Protocol itself. The optional nature of the declaration and its unilateral characteristic was derived from the principle of sovereignty through which States were free to make commitments and withdraw their commitments in accordance with the relevant rules of the applicable treaty (paras. 31–3).

(4) The matter before the Court pertained to a right accorded to States, the very right through which States ensured the establishment of mechanisms to complement their domestic human rights implementation mechanisms. The respondent State was therefore entitled to withdraw its declaration under Article 34(6) of the Protocol. The respondent State's objection based on the Court's lack of material jurisdiction was upheld (paras. 34–6 and 40).

Dissenting Opinion of Judge Bensaoula: (1) The decision completely differed from the Court's previously established jurisprudence, specifically in Umuhoza v. Republic of Rwanda.5 The Court's retention of prima facie jurisdiction in its ruling on provisional measures indicated that it had jurisdiction to consider the application, as it found presumptions that the case was within its jurisdiction until proven otherwise (paras. 1–12).

(2) The Court should have declared the withdrawal invalid, as it was not preceded by a notice period. The Protocol did not only create a system, but rights. The declaration, apart from being an international commitment of the State, created subjective rights for individuals and groups, the enjoyment of which required legal security. The Court should have declared the withdrawal a human rights violation (paras. 13–19).

(3) The Court's reasoning excluded the African context. Articles 1 and 2 of the Charter reflected a twofold commitment by African States...