Effective remedy in international law

Wed 29 June 2022, Philippe Ropenga

The right to an effective remedy does not attract enough attention. Everyone has heard of the right to a fair trial but not many people who have not been educated in law think of their right to an effective remedy. People usually concentrate on results and may feel embarrassed by thorny administrative issues that hinder them in their efforts to achieve their goals. Let us imagine that someone wishes to come to France. This person needs a visa and discovers that certain official documents have to be legalised, i.e. that the signature of the person who issued the foreign document has to be authenticated. Immigration procedures in any country are designed to achieve a safe and predictable result. Sometimes however, a foreign document may grind the process up to a halt. What can one to do when a consulate refuses to legalise the signature of a document?

An effective remedy has to be available to allow someone to raise objections. Objections have to be taken into account notwithstanding the fact that they may be dismissed. Each jurisdiction looks at this simple principle from its own perspective.

Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms commonly known as the European Convention on Human Rights provides that:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

The European Court of Human Rights has decided that the national authority does not have to be a court.¹ The French Constitutional Council that is the supreme court that deals with constitutional matters has recently quoted Article 16 of the Declaration of Human and Civic Rights of 26 August 1789. It reads as follows:

Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.² The guarantee of rights implies an effective remedy. The Constitutional Council has applied this provision to decide that a statutory provision that imposed legalisation of documents and did not provide a path for appeal regarding legalisation refusal was unconstitutional.³ It thus is interesting to take a look at immigration issues from a different perspective. When one sees that one's project may be undermined by administrative intricacies, one may try to find the reason behind them in order to negotiate an alternative solution. This is really important since one's goals are background issues that tend to attract attention to the detriment of front issues⁴ that are the main concern of any immigration officer. Focusing on an effective remedy may help to get ready to negotiate. If negotiating is impossible, the search of an effective remedy is still useful in any litigation since the administrative entity will have to reconsider a given request from a different and hopefully more fruitful perspective. Remember that the right to an effective remedy may be more efficient than provisions regarding substantive law that may be more restrictive in matters involving discretionary powers.

In brief, pay a great attention to the right to an effective remedy that can be used to achieve different purposes in international law.

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