2 Access to Justice in International Law

Kim Couto

1.  Introduction:

Legal rights ensured to individuals are meaningful only if the individual can effectively assert those rights. Where an individual suffers the violation of his right, access to justice is of great significance. Access to Justice refers to the ability of citizens to use justice institutions to obtain the redressal of their common justice problems. Access to justice is facilitated with the availability of effective remedies conferred by the domestic/municipal law. Individuals must be able to approach a court or other grievance-redressal mechanism to obtain vindication of the violation of his legal right. Access to justice is therefore an essential component of rule of law and is a means for every individual to claim the broad spectrum of rights provided under the law.

Access to justice may be understood at two levels: (i) Municipal/domestic level (ii) International level.

(i) Municipal level:

It is important that in order to be able to enjoy effective access to justice, municipal laws must recognize and address the right to access to justice. The existence of municipal laws and justice -systems provide a starting point for individuals to claim and demand their legal rights. Municipal laws must be such as to allow citizens to approach courts or other justice –dispensing mechanisms to avail the specified remedy, in case they suffer the violation of their rights. This is possible where access to justice is recognized as a legal right under the ambit of Constitution or national laws of States. By this, an aggrieved citizen can effectively translate his rights into action. Although recognition as a legal right at the municipal level is essential, it is international law that provides the basic principles and rules that facilitate access to justice measures.

However, there are many instances when individuals are unable to enforce their rights on account of inadequacies in the law and mechanisms provided by the State.

(ii) International level :

On account of the significance it possesses, access to justice has evolved from a moral imperative to a legal right under the ambit of international, Constitutional law and national law.1 In fact, access to justice has grown not merely to a legal right but has acquired the status of a human right which must be not only be recognized but must also be implemented and practiced in all States. International human rights law lay down binding standards with respect to access to justice. Ratification of such human rights instruments imposes on States the obligation for their implementation.

2. Objectives:

By going through this module, the reader will be able to:

(i) Possess an insight into the international human rights instruments on access to justice and appreciate the scope and extent of the right.

(ii) Understand the universal recognition and acceptance of access to justice as a human right.

(iii) Identify the key components that constitute the right of access to justice.

(iv) Recognize that the State has the obligation to ensure access to justice to its citizens.

(v) Appreciate the role and importance of the treaty bodies in promoting access to justice.

Access to justice under international human rights law:

Human beings everywhere consider justice as important. It is for this reason access to justice has secured a significant place in the realm of rights under international human rights law. Its recognition as crucial to the enjoyment of all other legal rights, has obtained for it universal acceptance and acknowledgment in various human rights instruments. Thus it may be said that the right of access to justice has its foundation in the various provisions of international human rights law which has developed binding standards in respect of it.

There a number of human rights instruments with provisions on access to justice some of which are binding and others not. These have been analyzed in this module.

3.1 Universal Declaration of Human Rights, 1948:

Access to justice received formal attention from 48 member States of the UN on 10th December 1948, with the proclamation of the Universal Declaration of Human Rights.

This document was recognized internationally as the yardstick for human rights and in particular, for laying down for the first time, the key components of access to justice. 2 Article 8 of the Declaration reads, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law”.

Article 8 of the UDHR makes it clear that rights without remedies would be meaningless. It also demonstrates that States should protect and promote the fundamental rights of their citizens by ensuring their accessibility to tribunals or courts which have the capacity to enforce their claims.

The Declaration requires States to put in place competent mechanisms that would ensure the enforcement of rights of individuals by providing them effective remedies3. Hence where a man has a right, he must, according to the Declaration, have the means to vindicate and maintain the right and must be able to avail an effective remedy, in case of its violation.

The other Articles of the UDHR, require States to ensure that no situation should arise or no circumstance should be used as a pretext for the violation of a person’s rights, outlined in the Declaration4.

In criminal cases, the UDHR in prescribes the right to a fair and public hearing by an independent and impartial trial, the presumption of innocence, and all the guarantees necessary for defence.

The UDHR being a mere declaration is per se not legally binding. However it is considered to be a ‘common standard of achievement for all peoples and all nations’. It is with the International Bill of Rights,6that the principles enshrined therein developed into binding ‘juridical commitment’.

The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

The International Bill of Human

The rights outlined in the Universal Declaration of Human Rights became binding with the adoption of two treaty instruments namely the International Covenant for Civil and Political Rights7 and the International Covenant for Economic, Social and Cultural Rights in 1966.

3 Article 8 of the Universal Declaration of Human Rights

4 See Articles 28 and 30 of the UDHR.

5 Articles 7 to 11 of the UDHR

6 The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

7 International Covenant on Civil and Political Rights is referred to by the abbreviated form as ICCPR in this work.

3.2 Access to Justice in International Covenant on Economic, Social and Cultural Rights 8 (ICESCR)

The International Covenant on Economic Social and Cultural Rights, 9 is one of the components of the International Bill of Rights. This Covenant is a legally binding document that protects a range of economic, social and cultural rights without discrimination on the basis of creed, political affiliation, gender of race.10 Article 2(1) of the Covenant indirectly addresses the right to access to justice by providing that, “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical to the maximum of its available resources with a view to achieving progressively the full realization in the present Covenant by all appropriate means including particularly the adoption of legislative measures. 11 It thus follows that States must have proper grievance redressal mechanism in place for their citizens.

.8The International Covenant on Economic Social and Cultural Rights was adopted by the United Nations General Assembly on 16th December 1966 , It entered into force on 3rd January 1976.See Brownlie,Ian(ed.) , Basic Documents on Human Rights, Third Edition ,Clarendon Press, Oxford, 1998, p. 114.

9 The Covenant is referred to by its abbreviated form as ICESCR in this module.

10 Dias Kadwani Ayesha & Welch Gita (eds.),Justice for the Poor, Perspectives on Accelerating Access, Oxford University Press, New Delhi, 2009,p. 23 11Id. at p. 24.

3.3 Access to Justice in the International Covenant for Civil and Political Rights (ICCPR) 12

The ICCPR was adopted by a resolution of the United Nations General Assembly on 16th December 1966.

Some of the components which form an integral part of the right to access to justice are to be found in the ICCPR. The Covenant does recognize the right to access to justice. However the recognition to the right is only in a limited sense and not to the extent it is understood in modern times. Article 2 para 3 of the ICCPR ensures protection to an individual’s rights by States in a three-fold manner. In case of violation of rights or freedoms, the States would have to ensure their enforcement through an effective remedy, the right to the remedy would have to be determined by competent judicial, administrative or legislative authorities13.

Access to Justice as per Art.2 paragraph 3 ICCPR

12 Adopted by GA Resolution A/RES/2200A(XXI)of 16th December 1966. 160 countries have signed and ratified the ICCPR, albeit with some reservations and derogations.

13 Article 2 paragraph 3 of the ICCPR stipulates (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.Art. 14 ICCPR

Article 14 of the ICCPR encompasses the spirit of access to justice in a comprehensive manner. Article 14 of the ICCPR14 mandates equality before the courts and tribunals to all 14 Article 14 ICCPR

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2.Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a)  To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b)  To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; persons and a fair and public hearing by a competent, independent and impartial tribunal, established by law.15 While Article 14 (3) (c) mandates “trial without undue delay”, Article 14(3)(d) of the ICCPR requires that an accused offender is entitled “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it.

In case of criminal offences, the ICCPR sets out specific obligations of States to ensure a speedy trial and provide state-funded counsel for persons who are unable to afford the costs of legal representation.

Article 14 of the ICCPR appears to incorporate directives for the trial of criminal offences. But its essence may also be applied to proceedings which are not criminal in nature. The right to access to justice is therefore recognized in two separate but complementary articles of the ICCPR.17

Thus the ICCPR includes guarantees with regard to a fair trial18 and also encompasses a stipulation19 with regard to access to court.

Both the ICCPR, the ICESCR have their own monitoring and compliance committees to ensure compliance with the norms laid down therein – a) the Human Rights Committee b) the Committee on Economic, Social and Cultural Rights. These Committees are access mechanisms monitor the fulfillment by State parties of all their obligations including the access to justice obligation.

These bodies also prepare General Comments on the Articles of the treaty, elaborating and elucidating their obligations.

In addition to the major UN instruments recognizing the right to access to justice as a fundamental human right, the International Convention on the Elimination of All Forms of Racial Discrimination,1965; Convention on the Elimination of All Forms of Discrimination against Women,1979; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,1984; Convention on the Rights of the Child,1989 and the International Convention on the Protection of the Rights of all Migrant workers and

(f)  To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g)  Not to be compelled to testify against himself or to confess guilt.

4.In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

15 Brownlie Ian (ed.), Basic Documents on Human Rights, 3rd Edition, Clarendon Press, Oxford, 1992, p.130.

16 Article 14 of the ICCPR

17Article 2 paragraphs 3 and Article 14of the ICCPR.

18 Article 14 of the ICCPR paragraph 1.

19 ibid

Members of their families,1990,are some of the other United Nations standards related to Access to Justice.20

There are a number of interesting aspects about the various human rights instruments mentioned above:

i) That the phrase ‘access to justice’ does not find express mention in the various human rights treaties and documents. But various components of the right such as the right to fair treatment, right to legal aid , absence of unreasonable delay, and such other components are given due recognition and importance in these instruments.

(ii) Is that they all affirm and promote the right to access to justice. Though they may differ in their specific provisions, they all condemn any practice that encroaches upon the individual’s right to fair and equal treatment.

(iii) They provide not only for the continuance of the traditional protection under the civil and criminal laws but they also stipulate protection in all spheres of human endeavor and interaction.

(iv) Some of these human rights instruments focus on protection to vulnerable people and communities.21

(v) There are also other UN instruments which specifically affirm the rights to access to justice and for treatment.22

4. Access to Justice in major regional human rights instruments

Various regional human rights instruments elaborated also provide political, economic, social and other rights including access to justice,protection to civil,

4.1 European Convention for the Protection of Human Rights and Fundamental Freedoms23

The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 gives specific legal content and practical form to the human rights set out in the Universal Declaration of Human Rights. Although binding on the member states in Europe, its elaboration on fair trial rights serves as a classical example for future human rights instruments.

The European Convention stipulates that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law24.The Article lays down that States must ensure a fair and public hearing for grievances, within a reasonable time. Such a hearing must be given by an independent and impartial tribunal instituted by law. Thus, in the European Convention, the human right of access to justice is seen as the right to a “fair hearing”.

4.2 American Convention on Human Rights,1969:

The American Convention on Human Rights, 1969, imposes a general legal obligation on State Parties to respect the rights and freedoms recognized in the Convention. It specifically recognizes the rights to a fair trial25 and to equal and judicial protection26. Article 8 of the American Convention on Human Rights 1969, incorporates the right to a fair trial. The Convention underscores a person’s right to a hearing with due guarantees and within a reasonable time by a competent tribunal. This right is further reinforced by Article 25 which stipulates the right to simple and prompt recourse or any other effective recourse, to a competent court or tribunal in case of violation of fundamental rights recognized by the Constitution or the Convention27

4.3 African Charter on Human and Peoples’ Rights,1981:

Like the American Convention, though not in identical terms, the African Charter on Human and Peoples’ Rights 1981, commonly known as the Banjul Charter, delineates every individual’ s right to have his cause heard.28 This right includes “the right to appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force”. 29 Thus the African Charter on Human and People’s Rights contains in unequivocal terms the guarantee of access to the courts.

The following observations can be drawn from the various regional human rights treaties:

a) The right of access to justice appears in different forms, as in access to courts or as the right to a fair trial or as the right to an effective remedy or as the right to judicial protection. Despite the differnces in the language used in the enactments, the contours of access to justice are clearly visible in the said treaties.

b) The right is subject to restriction and regulation, as is the case, with all other rights. Thus the imposition of time limits, the grant of immunities , the requirement of leave, or the mandatory compliance with a certain legal proecedure, are some of the valid restrictions on the right of access to courts, that have been acknowleged in the Conventions.

c) Although some of the essential dimensions of access to justice,30 have been touched, some of its other components have been overlooked in the core human rights instruments, discussed.

4.4 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,1985 3

This United Nations Declaration lays down principles standards and norms for securing justice and assistance to victims of crime and abuse of power. Thus the rights of crime victim are explicitly recognized and crime victims are defined in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration sets out categories of rights to which the victims of crimes are entitled. Access to justice and fair treatment which enables the victim to obtain redress for the harm suffered through judicial or administrative mechanism and the right to restitution, compensation and assistance are stipulated therein.32

4.5 The Aarhus Convention, 1998

The Convention on Access to Information, Public Participation in decision making and Access to Justice in environmental matters, was signed on 25th June 1998 in Article 9 establishes a right to information as well as access to a review procedure before a court or other independent an impartial body if a request for such environmental information has been ignored, or wrongfully refused .

4.6 World Trade Organisation (WTO) Dispute -Resolution Mechanism

The WTO Dispute Settlement Body (DSB) and Appellate Body provide a means for WTO Members to resolve disputes arising under WTO agreements. The DSB comprises panels of corporate and trade lawyers and officials who preside over hearings as judges or arbiters of disputes, in case of disputes among members. However the general public enjoys no right of access to the proceedings of the organization.

4.7 North American Free Trade Agreement (NAFTA)

The NAFTA provides a investor –state dispute mechanism which enables investors to arbitrate their claims under NAFTA directly against the host Government, without the intervention of the national government of the investor. By this a private actor has direct access to international remedial proceedings or access to justice.

4.8 UN Mechanism that promote access to justice

a) UN Human Rights Council:

The Human Rights Council was established by the General Assembly as the key United Nations inter-governmental body responsible for human rights. It has a comprehensive human rights mandate. The Council addresses human rights violations, promotes human rights assistance and education, reviews States’ human rights records, works to prevent human rights abuses, responds to emergencies, and serves as an international forum for human rights dialogue.

b) The Office of the High Commissioner for Human Rights (OHCHR):

The Office of the High Commissioner for Human Rights is another mechanism to ensure the protection and promotion of human rights. It is a part of the United Nations Secretariat, and is headed the High Commissioner for Human Rights.

4.9 Rome Statute of the International Criminal Court, 1998:

The International Criminal Court established under the Rome Statute of 1998, 34 ensures justice to victims who have suffered the violation of their rights in case of crimes of genocide35 , crimes against humanity36 and war crimes 37 . The victim-oriented provisions within the Rome Statute provide victims with the opportunity to be heard and to obtain where appropriate, some form of reparation for the harm suffered. Under the Rome Statue, it is the States that continue to have the primary responsibility to bring to justice those responsible for crimes under international law. The International Criminal Court is complementary to national criminal jurisdictions and acts only where national systems are unwilling or unable to do so.

Obligation of States:

The obligation of States in providing access to justice is noticeable since the beginning of the twentieth century. The dispensation of justice has been seen as one of the primary functions of a welfare State. The State has therefore not only to provide mechanisms to dispense justice but equally must provide for legal remedies for the violation of the legal right.

The human rights movement which gained momentum following the Second World War, further crystallized the obligation of the State to provide effective access to justice to its citizens. The various United Nations Declarations and more importantly, the provisions of the various Conventions which have been ratified by the parties have become legally binding on the latter. Accordingly, member States are obliged to take all measures to ensure that they provide effective access to justice to their citizens in accordance with the provisions of the human rights law.

As members, States have to comply with certain obligations stipulated under the various human rights treaties. On the one hand, States not only have a negative obligation not to obstruct access to the remedies laid down therein but they also have a positive duty to ensure that mechanisms are in place so that all individuals can access those remedies. In order to achieve that objective, States are required to remove any regulatory, social, or economic obstacles that prevent or hinder the possibility of access to justice.38

Case law on access to justice:

In Golder v. United Kingdom39, the European Court of Human Rights held that although Article 6(1) did not expressly state a right of access to the courts, the procedural guarantees it provided would be meaningless without such a right. The European Court observed that the fair conduct of a civil proceeding is meaningless, if one does not have the right to bring the proceeding in the first place, and explained that the Convention presupposes the right of access to the courts, just as it presupposes the existence of the courts themselves.

In Airey v. Ireland,40the European Court held that the fulfillment of a duty under the ECHR requires positive action by the State and thus it involves a positive duty to ensure effective access to the courts41. The Court made it clear in the same case that this right should be ‘practical and effective’ and not theoretical and illusory.

The Court in Ashingdane v. United Kingdom42 accepted that limitations may apply in respect of the right to access to justice, as this right “by its very nature, calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals”.

7. Concerns

a) Although some of the essential dimensions of access to justice43 have been touched upon, some of its other components have been overlooked in the core human rights instruments discussed.

b) Uncertainty and indecision exist as to the exact content and scope of the right of access to justice.

c) Emphasis is more eon access to courts as justice dispensation mechanism .There is need for an expansive interpretation to include other modes of dispute resolution also.

8. Summary

Access to justice is a human right under international human rights law.

Various international human rights documents lay down some of the dimensions of access to justice.

Components of Access to Justice have received an expansive meaning wherever possible by judicial interpretation.

References:-

1. Brownlie, Ian, Basic Documents on Human Rights, Third Edition, Clarendon Press, Oxford, 1998.

2. Dias Kadwani Ayesha & Welch Gita (eds.), Justice for the Poor, Perspectives on Accelerating Access, Oxford University Press, New Delhi, 2009