—Tom Gerald Daly, The University of Melbourne
2020, which has been a friend to no one, has certainly not spared international courts. Most obviously, the Federal Constitutional Court of Germany’s Weiss judgment of 5 May, holding a judgment of the Court of Justice of the EU ultra vires due to poor reasoning, has shaken the primacy of EU law as the very foundation of the Union. The ultimate judicial showdown has launched (seemingly) a thousand blog posts, with commentators criticizing the German Court’s own reasoning, and issuing open letters insisting that national courts simply cannot override CJEU judgments. It has upturned a long-held view of broadly positive interaction in Europe achieved, not through formal design, but by courts engaging in ‘judicial diplomacy’ and strategy across the national/international divide to allow the overall system to function without excessive friction, despite key national courts’ longstanding refusal to acknowledge the absolute and unconditional supremacy of EU law.
Other international courts have also had a tough 2020. As global attention has been consumed by the COVID-19 pandemic, the African Court on Human and Peoples’ Rights in Arusha, Tanzania, has suffered a stealthy backlash, with both Benin and Côte d’Ivoire withdrawing their declarations allowing individuals and NGOs to petition the African Court. This forms part of a wider pattern of backlash that has included Rwanda and Tanzania withdrawing their declarations in 2016 and 2019, non-compliance with key judgments, and questionable plans to merge the Court with the AU’s (as yet not established) Court of Justice to create an African Court of Justice and Human Rights, which have left the Court in a position of institutional insecurity.
However, a recent positive – and potentially quite significant – development in the relationship between national and international judiciaries in the African Union (AU) has gone largely unnoticed. On 11 June, for the first ever time the Constitutional Court of South Africa cited the African Court. In the Court’s New Nation Movement ruling, holding the ban in Electoral Act 73 of 1998 on independent candidates unaffiliated to any political party standing in national and provincial elections is unconstitutional and lacking justification, Madlanga J directly cited the African Court’s first merits judgment of June 2013, Mtikila v. Tanzania, which unanimously held the Tanzanian Constitution’s bar on independent candidacies incompatible with the African Charter on Human and Peoples’ Rights (‘Banjul Charter’). To say this is a positive development does not necessarily require agreement with the substance of the judgment itself (indeed, on Twitter, Tarunabh Khaitan has already voiced a negative view of the decision).Read the rest of this entry…