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Overcoming the lis alibi pendens problem in International Human Rights

Litigation
Stefan Kirchner

If you want to bring a case to an international court or tribunal and you have
the choice between several institutions, you will have to be careful about the
order in which you bring your case to which place. In this short text, readers
will be given a quick overview over the interrelation between different regional
and international legal regimes with regard to whether a court or tribunal will
hear a case which is or has been pending elsewhere on the international
level.

- Article 35 para. 2 lit. (b) European Convention on Human Rights (ECHR):


the same matter must not be pending nor have been dealt with by an other
international dispute resolution institution;

- Article 5 para. 2 lit. (a) of the Optional Protocol (ICCPR-OP) to the


International Covenant on Civil and Political (ICCPR): the case must not be
not pending at an other international institution when it is brought under the
ICCPR-OP;

- the same applies under Article 31 para. 2 lit. (c) of the International
Convention for the Protection of All Persons from Enforced Disappearance
(ICCPED) and Article 14 of the International Convention on the Elimination
of All Forms of Racial Discrimination (CERD);

- regarding the Universal Declaration of Human Rights, Human Rights


Council Resolution 5/1 allows cases which have been heard elsewhere,
excluding cases concerning systematic human rights violations;

- Article 46 para. 1 lit. (c) of the American Convention on Human Rights


excludes cases pending elsewhere at the time of submission;

- Article 56 no. 7 African Charter of Human and Peoples Rights: only cases
which have not been settled by the state in the context of the UN, AU or
the African Charter;

- having been pending elsewhere before submission is a complete barrier


under Article 3 para. 2 lit. (c) of the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights (ICESCR), Article 4
para. 2 of the Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), Article 7 lit. (d) of the
Optional Protocol to the Convention on the Rights of the Child (CRC),
Article 22 para. 4 lit. (a) of the Convention against Torture (CAT), Article 2 lit.
(c) of the Optional Protocol to the Convention on the Rights of Persons with
Disabilities, and Article 77 of the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families