Subsidiarity, Exhaustion of Domestic Remedies, and the Margin of Appreciation in the Human Rights Jurisprudence of African Sub-Regional Courts
The International Journal of Human Rights 20:8 (2016): 1113-1131
Posted: 28 Mar 2018
Date Written: October 27, 2016
As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principle for the exercise of their human rights jurisdiction. Contrary to expectations, neither the exhaustion of domestic remedies rule nor margin-of-appreciation-type doctrines have so far played any meaningful role in the human rights jurisprudence of the three sub-regional courts.
Keywords: Africa, regional economic communities, courts, human rights, subsidiarity, margin of appreciation, exhaustion of domestic remedies, deference
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