This is a follow up on the post ‘Conceptions of Access to Justice’. It seeks to outline the international human rights framework on ‘the right to access to justice’ and briefly set out a monitoring framework capable of measuring the extent to which the right has been realized in a given national jurisdiction. Hopefully, this would lay the basis for consideration of the state of access to justice in the Ethiopian context in upcoming posts.
Access to justice is a right recognized under the major international and regional human rights instruments including: the Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). The core instruments on the issue, the UDHR and the ICCPR, state that everyone has ‘the right to effective remedy against violations of fundamental rights’.
2 Recognition of the Right
The UDHR states that:
“everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.
The ICCPR provides for the same right in more detail by requiring each State Party to the Covenant to undertake:
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.
The ICESCR does not contain similar provision, which obliges the State Party to, inter alia, ‘develop the possibilities of judicial remedy’. Nevertheless, a State Party seeking to justify its failure to provide any domestic legal remedies for violation of economic, social and cultural rights would need to show either that such remedies are not ‘appropriate means’ within the terms of article 2/1 of the ICESCR or that, in view of the other means used, they are unnecessary.
3 The Substance of the Right
Access to justice is a fundamental right that generally guarantees every person access to an independent and impartial process and the opportunity to receive a fair and just trial when that individual’s liberty or property is at stake. However, access to justice does not always involve judicial recourse but the availability of accessible, affordable, timely and effective means of redress or remedies.
Access to justice, from a rights-based perspective, refers to
the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through formal and informal justice systems, for grievances in accordance with human rights principles and standards.
4 Relevance and Linkages
The relevance of access to justice within the human rights framework has to be considered at least at three levels: as a fundamental human right recognized for all persons; in terms of its linkages with a range of human rights issues, especially in relation to human rights in the administration of justice; and, the role of access to justice in the enforcement of human rights in general.
Most obviously, the right to ‘access to justice’ is a right widely recognized under the international human rights framework. Thus, the implementation and realization of the right is important in and by itself.
Moreover, the substance of ‘access to justice’ as a right makes it of particular importance in relation to its linkages with ‘equality before the law’ and ‘fair trial’.
Finally, the relevance of access to justice within the human rights framework is seen in the ‘justicibility’ of all human rights and access to remedies in cases of violation. The recognition of a right would be meaningless without access to the means of enforcing claims arising from the right.
5 Monitoring Indicators for Access to Justice
The obligations of States under the core international and regional human rights agreements generally relate to: constitutional recognition of the substance of the rights; adopting appropriate legislation and policies to give effect to the rights; establishing institutions frameworks for implementation of the rights as well as coordination and monitoring; and, taking appropriate program measures to realize the rights.
Generally, three kinds of rights-based indicators have been identified for monitoring the status of human rights (and situation of rights-holders) in relation to the obligations of States. These are: structural, process and result indicators measuring commitment, efforts and results, measuring commitment, efforts and results, respectively. (See: ‘Identifying and Benchmarking Indicators’ under the concept paper: Conceptual and Methodological Framework for Human Rights Monitoring)
- The Structural indicators are more obvious since they refer to the existence or absence of normative standards and rules consistent with the international human rights framework. This could be ascertained from ratification of the relevant human rights instruments (and adoption of non-binding instruments) on access to justice; and, harmonization of the domestic legal framework on access to justice with the applicable international standards (through constitutional recognition and legislative reform).
- The ‘Process’ indicators could similarly be referred from the existence or absence of policy and programme measures towards the implementation of international and domestic standards on access to justice. However, the determination also involves assessing the appropriateness of policies and programs in place as well as the level of success in implementing them.
- Finally, the ‘Outcome’ indicators refer to the results or outcomes achieved in terms of the status of enjoyment of the right (or situation of the rights holders) as a measure of success in implementing the appropriate measures. These are most difficult to measure, especially where comprehensive national indicators and benchmarks have not been incorporated within the relevant policy framework.
This monitoring framework provides a comprehensive system within which we can measure the extent to which States have undertaken their obligations under the international human rights system. Applied to a specific right or set of rights within a national jurisdiction, it would give us a clear picture of the measures taken towards the realization of a right harmonization of laws and policies, practical measures of implementation and the results achieved within a specified time-frame. This makes the system ideal for periodic monitoring/reporting.
However, the system merely describes the status of a right or situation of a specific social group without inherently enabling normative assessments. Moreover, it does not give us the whole picture in terms of the role of the ‘rights-holders’, i.e. persons for whom the rights are recognized (or subjects of rights), the nature of ‘rights’ as legal claims on an identified someone else, and the relationship of accountability between the claimants and those obliged to respond to the claims. Ultimately, the state of any ‘right’ is a function of three elements: empowerment of the rights holders to claim their rights; capacity of the duty bearers to fulfill their duties; and, the structural environment within which this relationship between the two sides takes place. More specific to ‘access to justice’, we are referring to:
- Protection of rights in the normative framework: Normative protection pertains to the existence of remedies that address the justice demands and needs by claimholders as manifested through international or constitutional laws, legal regulatory frameworks and customary norms.
- Empowerment of the poor to claim their rights (legal empowerment): The capacity of marginalized groups is influenced by their legal awareness (basic knowledge of the justice system), legal counsel (access to legal services availed by government and non-government institutions, availability of formal and informal mechanisms) and capacity to access justice services (judicial and quasi-judicial services).
- Capacity to provide effective remedies: The provision of effective remedies warrants the capacity of formal and informal justice systems to address the issue of access to justice by the disadvantaged and marginalized. Capacity to provide an effective adjudication and due process as well as capacity to provide effective remedy through enforcement are essential components of capacity to provide effective remedies.
These standards, used in conjunction with the descriptive monitoring framework noted above, would give us a comprehensive picture of the state of access to justice in a country. The added values of such a dual approach include:
- Clarifying the relationships among rights, i.e. placing access to justice within the context of recognized substantive rights and remedies;
- Focusing on the social sections facing significant barriers in accessing available normative protections and remedies;
- Enabling a more detailed analysis of stakeholders including state and non-state actors as well as claimants; and,
- Providing assessment standards based firmly on the human rights framework while at the same time taking into account the specific legal, policy and institutional context within which access to justice is exercised.
In addition, this approach is more likely to inform effective remedial measures through the identification of the immediate, as well as underlying causes of the problem—the factors impeding access; the “claim holders” or beneficiaries — the most vulnerable; and, the “duty bearers”—the ones accountable for addressing the issues/problems. It would enable a process of assessing and analyzing the capacity gaps of claim-holders to be able to claim their rights and of duty-bearers to be able to meet their obligations and use analysis to focus capacity development strategies.