Non-Justiciability and the Right of Access to a Court: Some Closing Remarks
Over the last few months, I have grappled with some American rules of justiciability, and considered whether these are in violation of human rights law, specifically the International Covenant on Civil and Political Rights (ICCPR). Now seems to be the time to draw some conclusions, and add some final remarks.
I have argued in the first post on this subject that Article 14(1)(2) ICCPR, on its face a right to a fair trial, includes an obligation of granting litigants access to a court’s process if the litigation relates to their ‘rights and obligations’. On this basis, I argued that, if a case on its individual facts raises a litigant’s civil ‘rights and obligations’, dismissal of that case on the grounds of non-justiciability is an infringement of the right of access to a court, and as such requires justification (which is essentially a proportionality test, with a consequent prohibition on wholesale negations of the right). It is, in particular, of no immediate relevance that political cases might be said in US constitutional law not to present a ‘case or controversy’ (see Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)), and that political cases are therefore outside the ‘institutional competence’ of the courts (Bancoult v. McNamara, D.C. Cir. 2006, at p. 16 of the PDF file). The right of access to a court does not depend on the domestic view of the separation of powers, but itself requires that the courts be, as a general matter, competent to deal with all cases raising legal ‘rights and obligations’, as defined autonomously under the Covenant, not under the domestic constitution. Where the courts are not so competent, and a case raising such ‘rights and obligations’ is dismissed, the permissibility of the dismissal will therefore be unaffected by the existence of constitutional limits to the courts’ competence, but depend only on whether such limits can be defended as proportionate for the achievement of a legitimate aim (see my post on the political question doctrine).
I have further argued that the political question doctrine presents very grave problems in this respect, and that it may, in its broad form, well be said to violate international law. The state secrets doctrine, while still problematic, may be defended if it is applied with due regard to a fair balance between the protection of genuine state secrets and the right of access to a court. Similarly, the act of state doctrine seems to leave the courts sufficient leeway to warrant dismissal only in cases where it truly appears meritorious.
So, I have concluded that the American rules on justiciability are somewhat problematic. To be sure, the American courts will not care very much, as they accept the Senate’s interpretative declaration appended to the ICCPR that the Covenant is not self-executing (see Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)). However, this clearly does not affect the question of whether the US is in violation of international law if a case is dismissed in violation of the Covenant. The problem I have sought to set out still exists at the international level, regardless of its (lack of) adoption in domestic law.
Assuming I am right in all this, is there a way out of the problem?
Yes, there is. As I pointed out in my post on the act of state doctrine, the right of access to a court can only rule out procedural limitations on what the courts can be called upon to do. If the limitation on the ability of a court to accede to a request follows from the substantive law pleaded by the plaintiffs before it, then the plaintiffs just do not have the right they seek to have judicially protected, and no ‘rights and obligations’ are at issue. The right of access therefore does not apply (see Powell and Rayner v. United Kingdom (ECtHR), at para. 36; Z and Others v. United Kingdom (ECtHR), at paras. 87, 100).
The answer to any problem that justiciability issues might create under the right of access is therefore quite straightforward: the state can simply remove the procedural limitations, and replace them with changes to the substantive law. States might, for instance, accept that highly political questions will be litigated, but at the same time make sure that, in substantive law, the government retains considerable freedom in dealing with such questions. This is, in fact, the general approach taken by German law.
Of course, this approach might raise its own problems under the substantive human rights of the Covenant. For example, if one person makes defamatory statements about another, and the injured person has no substantive right of redress against the defamer, the state may by not providing that right have violated a positive obligation of protection under Article 17 ICCPR (the right to respect for one’s private life, as in Art. 8 ECHR) (see Fayed v. United Kingdom (ECtHR), at paras. 66-67). But where serious issues of policy are concerned, and the government may not wish to be ‘disturbed’ by the law and by the courts, the stringency of human rights law is likely also to be somewhat reduced. Thus, it may be recognized that the state enjoys a broad margin of appreciation e.g. in matters of national security (see Leander v. Sweden (ECtHR), at para. 59; Smith and Grady v. United Kingdom (ECtHR), at paras. 77, 89), or it may be accepted that the state is under no positive obligations in this respect to begin with (see e.g. Jordan v. United Kingdom (ECtHR), at para. 128, and the other European cases reviewed in R (Gentle) v. The Prime Minister [2006] EWCA Civ 1690, at paras. 52-55).
So, the state can turn procedural bars into substantive ones, and be free from the constraints imposed by the right of access to a court (although another human right, like for instance Art. 17 ICCPR, might impose much the same constraints; see Fayed, supra, at para. 67). This means that ‘[i]t may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy’ (ibid.; emphasis added).
If that is so, it may reasonably be asked if the right of access to a court makes any sense. After all, its limitation to procedural issues means that it governs not so much what states can do, but how they must go about doing it. It might be argued that, if such a technical right is not ‘theoretical and illusory’, in exactly the way human rights should not be (see e.g. Airey v. Ireland (ECtHR), at para. 24), nothing is.
But this is to sell short the merits of the right of access to a court. It may be dependent on the content of the substantive law, i.e. the civil ‘rights and obligations’ of a person, at any one time, but it is capable on that basis of strengthening the effectiveness of such law. The right ensures that the courts will be ready to apply and defend the law (or, if they are not, that any grounds for not hearing or deciding a case are reasonable). It therefore protects the role of the courts as the defenders of the rule of law, and requires the courts to faithfully execute this role. The right of access to a court therefore reinforces the rule of law itself, as indeed it was intended to do (see Golder v. United Kingdom, at para. 34); this function is, in addition, strengthened and put into actual practice by the further obligation deriving from this right to ensure that any judgment given as a result of a person’s access to the court’s remedial processes is then complied with and executed (see Hornsby v. Greece, at para. 40).
The fact that the right is dependent on the (arguable) existence of ‘rights and obligations’ under substantive law would seem to entail that the courts are allowed to blindly apply that law without concerning themselves with objections as to its material content. This means that the concept of the rule of law employed is a somewhat technical one, requiring the courts (and other organs of the State) to always apply the law as they find it, but experience (inter alia, that of the Strasbourg Court itself) shows that even this somewhat less than ambitious guarantee is not self-evidently observed, and has been violated. It is therefore right that a guarantee should exist against refusals by the courts to uphold the rule of law.
This is not necessarily to say that overly cautious doctrines on justiciability represent a monstrous abdication by the courts of their function as the ultimate guarantors of the rule of law, but it can be argued that the judges should and must be wary of any step in that direction, on the basis of current international human rights law, as supported by reasons of high principle.
I have argued in the first post on this subject that Article 14(1)(2) ICCPR, on its face a right to a fair trial, includes an obligation of granting litigants access to a court’s process if the litigation relates to their ‘rights and obligations’. On this basis, I argued that, if a case on its individual facts raises a litigant’s civil ‘rights and obligations’, dismissal of that case on the grounds of non-justiciability is an infringement of the right of access to a court, and as such requires justification (which is essentially a proportionality test, with a consequent prohibition on wholesale negations of the right). It is, in particular, of no immediate relevance that political cases might be said in US constitutional law not to present a ‘case or controversy’ (see Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)), and that political cases are therefore outside the ‘institutional competence’ of the courts (Bancoult v. McNamara, D.C. Cir. 2006, at p. 16 of the PDF file). The right of access to a court does not depend on the domestic view of the separation of powers, but itself requires that the courts be, as a general matter, competent to deal with all cases raising legal ‘rights and obligations’, as defined autonomously under the Covenant, not under the domestic constitution. Where the courts are not so competent, and a case raising such ‘rights and obligations’ is dismissed, the permissibility of the dismissal will therefore be unaffected by the existence of constitutional limits to the courts’ competence, but depend only on whether such limits can be defended as proportionate for the achievement of a legitimate aim (see my post on the political question doctrine).
I have further argued that the political question doctrine presents very grave problems in this respect, and that it may, in its broad form, well be said to violate international law. The state secrets doctrine, while still problematic, may be defended if it is applied with due regard to a fair balance between the protection of genuine state secrets and the right of access to a court. Similarly, the act of state doctrine seems to leave the courts sufficient leeway to warrant dismissal only in cases where it truly appears meritorious.
So, I have concluded that the American rules on justiciability are somewhat problematic. To be sure, the American courts will not care very much, as they accept the Senate’s interpretative declaration appended to the ICCPR that the Covenant is not self-executing (see Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)). However, this clearly does not affect the question of whether the US is in violation of international law if a case is dismissed in violation of the Covenant. The problem I have sought to set out still exists at the international level, regardless of its (lack of) adoption in domestic law.
Assuming I am right in all this, is there a way out of the problem?
Yes, there is. As I pointed out in my post on the act of state doctrine, the right of access to a court can only rule out procedural limitations on what the courts can be called upon to do. If the limitation on the ability of a court to accede to a request follows from the substantive law pleaded by the plaintiffs before it, then the plaintiffs just do not have the right they seek to have judicially protected, and no ‘rights and obligations’ are at issue. The right of access therefore does not apply (see Powell and Rayner v. United Kingdom (ECtHR), at para. 36; Z and Others v. United Kingdom (ECtHR), at paras. 87, 100).
The answer to any problem that justiciability issues might create under the right of access is therefore quite straightforward: the state can simply remove the procedural limitations, and replace them with changes to the substantive law. States might, for instance, accept that highly political questions will be litigated, but at the same time make sure that, in substantive law, the government retains considerable freedom in dealing with such questions. This is, in fact, the general approach taken by German law.
Of course, this approach might raise its own problems under the substantive human rights of the Covenant. For example, if one person makes defamatory statements about another, and the injured person has no substantive right of redress against the defamer, the state may by not providing that right have violated a positive obligation of protection under Article 17 ICCPR (the right to respect for one’s private life, as in Art. 8 ECHR) (see Fayed v. United Kingdom (ECtHR), at paras. 66-67). But where serious issues of policy are concerned, and the government may not wish to be ‘disturbed’ by the law and by the courts, the stringency of human rights law is likely also to be somewhat reduced. Thus, it may be recognized that the state enjoys a broad margin of appreciation e.g. in matters of national security (see Leander v. Sweden (ECtHR), at para. 59; Smith and Grady v. United Kingdom (ECtHR), at paras. 77, 89), or it may be accepted that the state is under no positive obligations in this respect to begin with (see e.g. Jordan v. United Kingdom (ECtHR), at para. 128, and the other European cases reviewed in R (Gentle) v. The Prime Minister [2006] EWCA Civ 1690, at paras. 52-55).
So, the state can turn procedural bars into substantive ones, and be free from the constraints imposed by the right of access to a court (although another human right, like for instance Art. 17 ICCPR, might impose much the same constraints; see Fayed, supra, at para. 67). This means that ‘[i]t may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy’ (ibid.; emphasis added).
If that is so, it may reasonably be asked if the right of access to a court makes any sense. After all, its limitation to procedural issues means that it governs not so much what states can do, but how they must go about doing it. It might be argued that, if such a technical right is not ‘theoretical and illusory’, in exactly the way human rights should not be (see e.g. Airey v. Ireland (ECtHR), at para. 24), nothing is.
But this is to sell short the merits of the right of access to a court. It may be dependent on the content of the substantive law, i.e. the civil ‘rights and obligations’ of a person, at any one time, but it is capable on that basis of strengthening the effectiveness of such law. The right ensures that the courts will be ready to apply and defend the law (or, if they are not, that any grounds for not hearing or deciding a case are reasonable). It therefore protects the role of the courts as the defenders of the rule of law, and requires the courts to faithfully execute this role. The right of access to a court therefore reinforces the rule of law itself, as indeed it was intended to do (see Golder v. United Kingdom, at para. 34); this function is, in addition, strengthened and put into actual practice by the further obligation deriving from this right to ensure that any judgment given as a result of a person’s access to the court’s remedial processes is then complied with and executed (see Hornsby v. Greece, at para. 40).
The fact that the right is dependent on the (arguable) existence of ‘rights and obligations’ under substantive law would seem to entail that the courts are allowed to blindly apply that law without concerning themselves with objections as to its material content. This means that the concept of the rule of law employed is a somewhat technical one, requiring the courts (and other organs of the State) to always apply the law as they find it, but experience (inter alia, that of the Strasbourg Court itself) shows that even this somewhat less than ambitious guarantee is not self-evidently observed, and has been violated. It is therefore right that a guarantee should exist against refusals by the courts to uphold the rule of law.
This is not necessarily to say that overly cautious doctrines on justiciability represent a monstrous abdication by the courts of their function as the ultimate guarantors of the rule of law, but it can be argued that the judges should and must be wary of any step in that direction, on the basis of current international human rights law, as supported by reasons of high principle.
posted by Tobias Thienel at 00:34
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