The Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice

31 Pages Posted: 1 Nov 2014 Last revised: 25 Feb 2015

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Date Written: October 30, 2014

Abstract

This paper juxtaposes how human rights advocates and business actors resort to the East African Court of Justice (EACJ). In doing so, this paper considers how Alter, Helfer and Madsen’s concept of the authority of an international court (IC), fits this case study of the EACJ. I argue that the EACJ has intermediate authority at a thin-elite level in human rights cases because urban-based human rights NGOs, pro-democracy activists and some governmental officials, in some but not all cases, recognize the legally binding nature of the court’s human rights cases and they take steps to give effect to the rulings of the EACJ. Most importantly, I find that the EACJ has intermediate authority over human rights cases not only because of compliance with its human rights cases by governments as the Alter et al authority framework would argue, but because of the way in which these cases have been mobilized to “name and shame” EAC governments for human rights violations.

By contrast, the EACJ has no authority at all with respect to business actors. Unlike human rights advocates, business actors in general and the East African Business Council (EABC) in particular, have eschewed litigating before the EACJ. Yet, non-tariff barriers (NTBs), impose very high costs for business in the East African Community (EAC). Rather than pursue litigation, the EABC has for the last ten years pursued an administrative strategy embodied in the NTB Monitoring Mechanism for monitoring, reporting and removing NTBs. This mechanism gives the EABC access to the EAC’s Council of Ministers and Secretariat as well as EAC member states. This preference for a non-litigation strategy to promote their interests therefore demonstrates that the EACJ has no authority over business cases.

Keywords: International Law, Human Rights, Africa, East Africa, Regional Integration, Civil Society Mobilization, International Courts, East African Court of Justice, Authority, Business Actors and Courts, Judicial Lawmaking, African Regional Integration

Suggested Citation

Gathii, James Thuo, The Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice (October 30, 2014). Law and Contemporary Problems, Vol. 78, No. 4, 2015, Loyola University Chicago School of Law Research Paper No. 2015-007, Available at SSRN: https://ssrn.com/abstract=2517040

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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