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The Court of Justice of the Economic Community of West African States as a Constitutional Court / Bibliography
The Court of Justice of the Economic Community of West African States as a Constitutional Court / Bibliography
Contents
Chapter
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Page
1–20
Titelei/Inhaltsverzeichnis
1–20
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21–23
Introduction
21–23
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24–55
Chapter 1 Research Question and Structure of the Study
24–55
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A. The ECOWAS Court of Justice as an International Court
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B. The Jurisdiction of the Court of Justice
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C. In particular: the Jurisdiction of the Court with regards to Human Rights since the Inception of the Additional Protocol of 2005
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D. Reason for the Study: The Case of Ameganvi et al vs. Togo
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I. Decision by the Togolese Constitutional Court
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II. Declaratory Judgment by the ECOWAS Court of Justice
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III. Interpretation of the Declaratory Judgment by the ECOWAS Court of Justice
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E. Binding Force of the Decision by the ECOWAS Court of Justice
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I. Contractual Foundations
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II. Teleological Interpretation
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III. The Problem of National Implementation
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F. Limitation of Question and Structure
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56–96
Chapter 2 The Legal Effect of Rulings by National Constitutional Courts
56–96
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A. The Initial Case under Municipal Law
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B. The Legal Force of Decisions by National Constitutional Courts
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I. Formal Legal Force
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1. The Binding Force of Internal Proceedings of the Constitutional Court
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a. Irrevocability of the Decision in Principle
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b. Interdiction of deviation
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c. Possibility of a Rectification of Material Errors
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d. Resumption due to gross miscarriage of justice
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e. Delimitation with regard to future disputes
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2. The Non-appealability of the Decision
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a. The principle of non-appealability
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b. Justification of non-appealability
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c. Need for legal protection as an exception
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II. Substantive Res Judicata
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1. Object of Substantive res judicata
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2. Elements of Substantive res judicata
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a. Extent of legal force
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b. Limits of legal force
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3. Consequences of Substantive res judicata
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a. Substantive res judicata as an obstacle to proceedings
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b. Admissibility in the presence of new causes of action
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C. The Binding Effect of the Decision
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I. Erga-omnes-Effect
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II. Inter-omnes-Effect
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1. The impact of the decision on the facts of the case
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2. The material impact of the decision
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D. Appreciation and Criticism of the Decision in the Initial Case
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I. Preliminary Question regarding the Object of the Dispute
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II. The prohibition of the imperative mandate and declaration of renunciation
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97–226
Chapter 3 Supranational Derogation of the Legal Force in Municipal Law
97–226
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A. The Initial Case before the ECOWAS Court of Justice
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B. Role of the ECOWAS Court of Justice as a Constitutional Court
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I. Articulations of the Constitutional Role of the ECOWAS Court of Justice
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1. Status of the ECOWAS Court of Justice, in particular, its independence
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2. Exclusive and ultimate power of decision-making competence
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II. Objections with regard to sovereignty
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C. Individual Complaints Procedure before the ECOWAS Court of Justice
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I. Admissibility of the Individual Complaint before the ECOWAS Court of Justice
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II. Object of the complaint and those entitled to complain
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1. Those entitled to complain
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2. Object of the complaint (breach of primary duty, compare Art. 1 ECHR)
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D. Types of Judgments by the ECOWAS Court of Justice
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I. Declaratory Judgment
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II. Judgment granting Reparation (Compensation)
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1. Standards of a Judgment granting Reparation
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2. Enforcement Procedure
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III. Interpretative Judgments
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IV. Not a Court of Cassation
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V. Appeal proceedings (de lege ferenda)
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E. Legal Force According to Art. 15 of the Amendment Agreement
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I. Rule of Interpretation of Art. 31 VCLT
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1. Literal Interpretation
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2. Systematic Interpretation
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3. Historical Interpretation
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4. Teleological Interpretation
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5. Principle of effectiveness and evolutive/dynamic interpretation
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II. Effects of Legal Force of other Regional Human Rights Courts
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1. East African Court of Justice
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2. SADC Tribunal
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3. ECtHR
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4. The Inter-American Court
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F. Manifestations of Legal Force of the Judgements of the ECOWAS Court of Justice
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I. Formal Legal Force
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II. Substantive res judicata
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1. Extent of the Legal Force
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2. Objective limit of the legal force
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3. Subjective limit of the legal force
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a. Inter-partes-legal force
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b. Erga-omnes impact of the legal force in practice
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4. Time-boundary of the legal force
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III. Legal consequences of the legal force for the convicted signatory state
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1. The obligation to cease and desist
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2. The obligation of compensation
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a. Order to reinstate the initial proceedings in the operative part of the judgement
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b. Justification of the order to reinstate
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3. Obligation to take preventative measures
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G. Justification for Breaching the Legal Force: Function to Close Loopholes
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I. Entry Barriers for individual complaints according to national law
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1. Inadmissibility of a national human rights complaint
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2. Strict prerequisites for admissibility for the human rights complaint
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3. The ECOWAS Court of Justice as guarantor of the effective protection of human rights
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II. Possible Conflict of Interest of the Constitutional Court of a Member State
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1. Elements of the complaint of a conflicted court
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2. Conflicted judges as a violation of the positive obligation of the Member State
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III. Foreseeable problems of the ECOWAS jurisdiction
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1. Challenge to legal certainty
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2. Overburdening of the Court of Justice and proposed solutions
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a. Landmark and pilot judgments as a possible solution
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b. The solution from the perspective of the national legal system
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3. Dialogue between both levels
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227–286
Chapter 4 The Reception of the Legal Force in theNational Legal System
227–286
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A. Preliminary Question: Binding Force of International Law and the ECOWAS Judgments
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I. Binding Force of the International Law in francophone Member States
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1. Question of rank
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2. Principle of reciprocity
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II. Binding Force in Anglophone Member States
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III. Principle of the convergence of constitutions
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B. National Articulation of Legal Force
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I. National procedural binding force
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1. Resumption of the initial proceedings
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a. Prerequisites for a resumption
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b. Justification of the obligation to resume
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2. Declaratory judgment by the ECOWAS Court of Justice as a prohibition of enforcement
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3. Effects Transcending the Individual Case
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4. ECOWAS Court of Justice Decisions as the basis for QPC
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II. Effect on all state powers
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1. Indirect legal force for all state organs
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2. Special binding effect of the Constitutional Court
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a. The Constitutional Court as a state organ
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b. Role Model Function of the National Constitutional Court
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c. The possibility of a judgment in violation of human rights
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C. Consequences of Contempt of Judgments of the ECOWAS Court of Justice
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I. State liability due to a breach of the obligation to implement
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1. Introduction of a new complaint procedure due to a breach of the obligation to implement
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2. Enforcement of general state liability law
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a. Applicability of the general rules of customary International law
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b. Sanction mechanisms in the ECOWAS legal order
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II. Monitoring and Implementation of the Decisions by the ECOWAS Court of Justice
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1. Monitoring of the implementation
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2. Status of the implementation according to previous practice by the ECOWAS Court of Justice
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287–334
Chapter 5 Result and Concluding Comment
287–334
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A. Criticism of the Self-Restraint of the ECOWAS Court of Justice in the Ameganvi et al vs. Togo Case
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I. Criticism of the Self-Restraint
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1. Legal basis of the self-restraint
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2. Implied authority
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3. Development of the law by International Courts
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II. Criticism from a Constitutional Perspective
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1. Object of dispute and party to the dispute before National and the ECOWAS Courts of Justice
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2. Confusion in the Excercise of Jurisdiction
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3. Confusion regarding the applicable law
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III. Marge Nationale d’appréciation as a possible Limit to the Empowerment Authority?
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1. The term marge Nationale d’appréciation
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2. Appreciation of reverting to the discretion of the state
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a. Procedural guarantees as a basis for other human rights
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b. Non-existence of a collision with National interests
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c. Procedural Guarantees as the resulting obligation
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B. Concluding Comment
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335–357
Bibliography
335–357
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The Court of Justice of the Economic Community of West African States as a Constitutional Court , page 335 - 357
Bibliography
Autoren
Kangnikoé Bado
DOI
doi.org/10.5771/9783748901808-335
ISBN print: 978-3-8487-6051-0
ISBN online: 978-3-7489-0180-8
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doi.org/10.5771/9783748901808-335
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