Exhaustion of Domestic Remedies under the European Human Rights System

Abstract

Article 35(1) of the European Convention on Human Rights (ECHR) codifies the idea of  exhaustion of home remedies as a fundamental admissibility criteria..¹ One essential  admissibility condition under the European Convention on Human Rights (ECHR), as stated  in Article 35(1), is the idea of exhaustion of home remedies..²In addition to enabling applicants  to hone their legal arguments, the notion is supported by respect for state sovereignty, judicial  economy, and the advancement of domestic accountability..³ However, its strict  implementation runs the risk of being unjust to victims, especially in cases where remedies are  inaccessible, inefficient, or excessively delayed..⁴ The Court has created adaptable exceptions  to reduce these dangers by striking a balance between the procedural purpose of the rule and  the requirement to maintain access to justice.⁵ Using pertinent international agreements, case  law, and scholarly opinion, this study critically assesses the doctrine’s justification,  implementation, and exceptions.

Introduction

One of the most essential prerequisites for admission under the European Convention on  Human Rights (ECHR) is the principle of exhaustion of home remedies.⁶ The European Court  of Human Rights (ECtHR) may only consider an issue “after all domestic remedies have been  exhausted, according to the generally recognised rules of international law,” as stated in Article  35(1) of the Convention..”⁷ This principle’s justification stems from the ECtHR’s subsidiary  status, which maintains national courts as the principal venues for human rights protection  while the Strasbourg mechanism serves as a supervisory body..⁸

This norm is a broad concept of international law that is reflected in several international  treaties, including the International Covenant on Civil and Political Rights (ICCPR). It is not  exclusive to the ECHR.⁹and the Convention Against Torture (CAT).¹⁰ However, exhaustion of  domestic remedies takes on special importance within the European human rights framework  since it mediates the connection between individual applicants and sovereign States, striking a  balance between respect for national legal regimes and access to justice..¹¹

In addition to ensuring judicial economy by avoiding the ECtHR being overloaded with cases  that could have been settled at the national level, this principle is important because it protects  State sovereignty by acknowledging that domestic institutions should handle alleged  violations.¹² The Court has often underlined that before an international tribunal steps in,  domestic judicial institutions must be given the “opportunity to put matters right.”.¹³

As such, the theory is supported not only as a procedural filter but also as a demonstration of  respect for home adjudicatory systems and subsidiarity. However, as the next sections will  show, its strictness is moderated by significant exceptions and a growing corpus of case law  that aims to strike a balance between effectiveness and applicant fairness.¹⁴

Flexibility and Exceptions to the Rule

The European Court of Human Rights (ECtHR) has repeatedly stressed that, despite being a  general concept under Article 35(1) ECHR, the exhaustion of home remedies is not an absolute  rule.¹⁵ Because strict enforcement could unfairly deny victims of human rights abuses access  to international protection, the Court interprets the clause with some wiggle room..¹⁶

Based on the “generally recognised rules of international law” referenced in Article 35(1), the  Court has acknowledged a number of exceptions to the exhaustion criterion.¹⁷ The principle  will not become a procedural barrier to justice thanks to these exceptions. The primary  exclusions are as follows:

(a) Non-existence of effective remedies

In cases when there is no viable domestic remedy, petitioners are exempt from having to  conduct pointless or deceptive procedures.¹⁸ For instance, the court determined in Akdivar v.  Türkiye that people cannot be forced to use remedies that are ineffectual.¹⁹

(b) Undue delay in proceedings

The right to an effective remedy may be undermined even if a remedy is theoretically available  if pursuing it would cause undue delay.²⁰ The Court emphasised in Kudla v. Poland that  petitioners should not have to put up with unjustified delays in local proceedings before they  can reach Strasbourg.²¹

(c) Unfair or biased procedures

When bias or procedural injustice contaminate domestic remedies, the exhaustion requirement  does not apply.²² The Court emphasised in Selmouni v. France that remedies must be available,  sufficient, and unbiased; otherwise, applicants may go straight to Strasbourg.²³

(d) Inadequate redress

In cases when a remedy is available but does not offer sufficient relief, the Court excludes  applicants from seeking it.²⁴ The Court acknowledged in D v. United Kingdom that a remedy  does not meet Article 35(1) if it does not offer effective protection.).²⁵

(e) Futility of remedies

Lastly, applicants are exempted from seeking remedies in cases were doing so would be  obviously pointless. The Court concluded in Van Oosterwijck v. Belgium that remedies must be  “sufficiently certain in practice as well as in theory” in order to activate the exhaustion rule,  confirming this.²⁶

As a result, even while the exhaustion of domestic remedies is still a fundamental component  of admissibility, the Court strikes a balance between the concept and practical justice to prevent  it from impeding the protection of human rights.²⁷

Critical Evaluation

The European Court of Human Rights (ECtHR) continues to examine one of the most  contentious admittance requirements: the theory of exhaustion of domestic remedies under  Article 35(1) ECHR.²⁸ On the one hand, it upholds state sovereignty and embodies the  subsidiarity principle, which holds that defending human rights is primarily the responsibility  of domestic courts.²⁹ This supports the notion that national legal systems should not be replaced  by international adjudication, but rather used as a last resort..³⁰

Critics counter that the approach frequently places an excessive responsibility on those who  have been harmed by human rights abuses.³¹ For instance, before applicants may access  Strasbourg, they must undertake drawn out domestic procedures that could result in further  suffering, delays, and financial burden.³² This is especially troublesome in jurisdictions where  remedies, even while they exist in law, are ineffective in practice..³³

Through its case law on exceptions to the exhaustion rule, the ECtHR has made an effort to  allay these worries.³⁴ In the case of Akdivar v. Turkey, the Court recognised that rigorous  adherence could occasionally prevent justice, particularly in cases where remedies were opaque  or unattainable.³⁵ The Court further emphasised in Kudla v. Poland that extended delays in domestic procedures could be used as an excuse to avoid exhaustion..³⁶ These decisions show  the Court’s practical approach, striking a balance between the interests of justice and procedural  procedures.³⁷

Nether less, there are structural issues with the system. According to some academics, the  flexibility of exceptions makes admissibility determinations inconsistent and unpredictable.³⁸ For applicants and solicitors, the lack of precise, consistent rules about what qualifies as a  “effective remedy” sometimes causes uncertainty.³⁹ This ambiguity has been called a  “procedural trap” that could deter valid claims according to others.⁴⁰

Another criticism is that the theory occasionally serves as a buffer between governments and  foreign scrutiny.⁴¹ States may use procedural technicalities to delay or obstruct the ECtHR’s  review by insisting on exhaustion, which would compromise the system’s ability to effectively  oversee serious human rights abuses.⁴²

The principle is nonetheless seen as essential in spite of these objections. It keeps Strasbourg  from becoming overloaded with cases, guarantees respect for subsidiarity, and motivates  national courts to take human rights commitments seriously.⁴³ Therefore, the difficulty lies in  striking a balance between maintaining exhaustion as a general rule and making sure that  exceptions are implemented consistently and equitably to avoid injustice..⁴⁴

Relevant International Instruments

Numerous international human rights instruments that place a strong focus on subsidiarity and  respect for state sovereignty also incorporate the principle of exhaustion of domestic remedies,  which is not exclusive to the European Convention on Human Rights (ECHR).⁴⁵ This condition is incorporated into Article 5(2)(b) of the Optional Protocol of the International  Covenant on Civil and Political Rights (ICCPR), which states that communications cannot be  considered by the Human Rights Committee until “all available domestic remedies have been exhausted.”⁴⁶ This is consistent with the reasoning behind Article 35(1) ECHR, which states  that domestic courts need to have the first chance to address infractions..⁴⁷

Similar requirements are included in Article 22(5)(b) of the Convention against Torture and  Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).⁴⁸ This clause ensures  subsidiarity and avoids duplication of actions by prohibiting the Committee against Torture  from accepting complaints until local remedies have been sought.⁴⁹

Under Article 14(7) of the International Convention on the Elimination of All Forms of Racial  Discrimination (ICERD), the Committee is prohibited from considering petitions before all  local remedies have been used and exhausted.⁵⁰

Similar to this, Article 4(1) of the Convention on the Elimination of All Forms of  Discrimination Against Women (CEDAW) and its Optional Protocol states that  communications will only be taken into consideration after domestic remedies have been  exhausted, unless doing so would make proceedings unnecessarily drawn out or ineffectual.⁵¹ This indicates that the exhaustion principle is a general rule of international law that has been  included in a number of treaties to strike a balance between state sovereignty and individual  rights..⁵²

Researchers point out that the rule’s recurrence in various instruments illustrates how  conventional it is in international human rights law, which goes beyond the ECHR  framework.⁵³ To prevent unfairness, the principle must be applied pragmatically, as  demonstrated by the inclusion of exceptions for things like futility, excessive delay, or  ineffectiveness..⁵⁴

Procedure in Case of Alleged Violations

The complaint process usually necessitates that local remedies be exhausted before accessing  international procedures when a person claims that their rights under international treaties have  been violated.⁵⁵ This procedural requirement ensures that states continue to bear the primary  duty for correcting infractions, reflecting the subsidiarity concept.⁵⁶

If all viable domestic remedies have been used, a victim may submit a communication to the  Human Rights Committee under the Optional Protocol of the ICCPR.⁵⁷ The Committee will  only investigate the admissibility and merits of the complaint if this requirement has been  satisfied.⁵⁸

Similar to this, individual complaints are submitted to the Committee against Torture (CAT)  under Article 22 of the Convention Against Torture, once more once local remedies have been  exhausted.⁵⁹ The plaintiff must show that there is either no viable remedy or that there are  remedies that are inaccessible, ineffectual, or excessively drawn out..⁶⁰

According to Article 4 of the Optional Protocol to CEDAW, the CEDAW Committee further  mandates that domestic remedies be exhausted prior to the admissibility of communications.⁶¹ However, the Committee has emphasised repeatedly that when remedies are illusory or unduly  delayed, this approach should not be enforced strictly.⁶²

Additionally, Article 14(7), which stipulates that the exhaustion of local remedies is a  prerequisite for the acceptance of complaints pertaining to racial discrimination, is applied by  the ICERD Committee.⁶³

Therefore, the exhaustion rule is used as a procedural filter by international monitoring  agencies to protect state sovereignty and the judicial economy while guaranteeing that people  can obtain domestic remedies before taking their problems to a global level.⁶⁴

Application of the Principles

The application of the exhaustion of domestic remedies rule by the European Court of Human  Rights (ECtHR) is grounded in Article 35(1) of the European Convention on Human Rights  (ECHR).⁶⁵ According to this rule, before filing a claim with the Strasbourg Court, applicants  must first exhaust all feasible and successful remedies at the national level..⁶⁶

The Court has often maintained that exhaustion must be evaluated in the context of each case  and is not a strict or formalistic condition.⁶⁷ The Court explained in Akdivar v. Turkey that  remedies must be available under the law, effective in practice, and able to provide redress..⁶⁸ If remedies are inaccessible, unduly delayed, or ineffective, the requirement may be waived.⁶⁹ For example, in Kudla v. Poland, the Court determined that since justice postponed is justice  denied, an applicant may be exempt from exhausting remedies if domestic proceedings are  excessively delayed. In a similar vein, the Court stressed in Selmouni v. France that remedies  tainted by unfair procedures or a lack of impartiality cannot be judged successful, exempting  the applicant from pursuing them.⁷⁰

The ECtHR also considers the futility principle, which states that petitioners are not required  to use all remedies that are obviously ineffective. The Court in Van Oosterwijck v. Belgium rejected admissibility in cases where the petitioner had not exhausted all available remedies,  emphasising the need to read exceptions strictly in order to uphold the subsidiarity principle.⁷¹

In actuality, the Court recognises exceptions where requiring exhaustion would place an  unreasonable or unfair burden on the applicant, but it also uses the rule as a procedural filter to  guarantee that national authorities have the first chance to address alleged violations.⁷²

Support from Sources

The significance of the European human rights system’s exhaustion of domestic remedies rule  is emphasised both scholarly research and global practice.⁷³ According to Van Dijk and his co authors, this concept represents the European Convention system’s subsidiarity, which states  that local courts have the main responsibility of protection until the European Court of Human  Rights (ECtHR) steps in.⁷⁴

Similarly, Harris, O’Boyle, and Warbrick contend that the exhaustion rule guarantees that the  Convention system operates as a supervisory tool to monitor states’ adherence to their duties  under the Convention rather than as a court of “first instance.”⁷⁵ This ensures that states are not  deprived of their margin of appreciation in handling human rights issues at the national level.⁷⁶

According to the International Justice Resource Centre (IJRC), in order to maintain procedural  discipline and respect for domestic legal order, people must often seek remedies through the  highest national courts before contacting international organisations.⁷⁷

However, academics like Greer point out that rigorous adherence to the norm needs to be  balanced with an understanding of real-world issues like chronic delays, inadequate remedies, Because it guarantees both respect for state sovereignty and the efficacy of supranational  protection mechanisms, the principle of exhaustion of domestic remedies is therefore  universally accepted as a cornerstone of international human rights law.⁸⁰

Conclusion: A Complex and Evolving Landscape 

“Whether the UDHR has definitively acquired customary international law status remains  debated. While numerous factors suggest its significant influence, proving consistent state  practice and opinio juris based solely on the sources provided remains challenging. The  UDHR’s role in customary international law continues to evolve, requiring further research  into specific state practices and opinio juris.⁸¹

Bibliography

Books

• Pieter van Dijk and others, Theory and Practice of the European Convention on Human Rights (5th edn, Intersentia 2018).
• Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge University Press 1958).

Journal Articles

• Antonio Bultrini, ‘The Principle of Subsidiarity and the European Convention on Human Rights’ (2019) 19 Human Rights Law Review 1.

Cases

• Akdivar and Others v Türkiye (1996) 23 EHRR 143.
• Kudla v Poland App no 30210/96 (ECtHR, 26 October 2000).
• Selmouni v France (1999) 29 EHRR 403.
• D v United Kingdom (1997) 24 EHRR 423.
• Van Oosterwijck v Belgium (1980) 3 EHRR 557.

Legislation / Treaties

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended).
• International Covenant on Civil and Political Rights (ICCPR).
• Convention Against Torture (CAT).
• International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Other Sources
• International Justice Resource Centre, ‘Exhaustion of Domestic Remedies in Human Rights Cases’ (IJRC, 2023).

Section2: Case Summary

1. An Analysis of Edward Nathan Sonnenbergs Inc v Hawarden 1. Introduction

The decision in Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden provides an  important contribution to South African delictual law, specifically on the issue of liability for  pure economic loss caused by omissions.⁸² The Supreme Court of Appeal (SCA) was required  to determine whether, absent a contractual relationship, an attorney’s firm could owe a duty in delict to a purchaser in a property transaction.⁸³ This case demonstrates the restrictive approach  of South African courts to extending liability for pure economic loss, reflecting broader policy  concerns regarding indeterminate liability and fairness.

2. Facts of the Case

The dispute arose from a property transaction in which Ms Judith Mary Hawarden purchased  a property from the Davidge Pitts Family Trust.⁸⁴ During the process, she transferred R5.5  million as part of the purchase price.⁸⁵ Later, she alleged that Edward Nathan Sonnenbergs Inc  (ENS), the conveyancing attorneys managing the transaction, should have advised her that  securing the balance of the purchase price through a bank guarantee was the safer option.⁸⁶

Hawarden was not a client of ENS at the relevant time, yet she argued that ENS had a duty to  her, as a participant in the transaction, to exercise reasonable skill and care typical of a prudent  conveyancer.⁸⁷ The alleged wrongful omission was ENS’s failure to warn her of the risks of  making direct payment rather than using a bank guarantee.⁸⁸

3. The Legal Question

The principal legal issue before the SCA was whether the element of wrongfulness had been  established for a delictual claim of pure economic loss caused by omission.⁸⁹ Under South  African law, liability for pure economic loss is not automatically recognised; rather,  wrongfulness is determined by considerations of public and legal policy in line with  constitutional norms.⁹⁰

The absence of a contractual relationship between Hawarden and ENS was critical. The court  had to consider whether, despite this absence, ENS owed a legal duty in delict to advise her,  and whether its failure constituted a wrongful omission warranting compensation.⁹¹

This question reflects the general position in South African law that negligent omissions  causing pure economic loss are prima facie not wrongful unless policy considerations justify  liability.⁹² The Constitutional Court in Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng confirmed that such liability is exceptional and must be  carefully circumscribed to avoid indeterminate liability.⁹³

4. The Court’s Decision

The SCA upheld ENS’s appeal, overturning the High Court’s decision that had initially  favoured Hawarden.⁹⁴ It found that Hawarden failed to establish the element of wrongfulness,  as policy considerations did not justify extending liability in this instance. ⁹⁵

The court emphasised that Hawarden was not ENS’s client, and imposing a duty would expand  liability beyond acceptable bounds.⁹⁶ The risk of exposing attorneys to indeterminate liability  in property transactions weighed heavily against recognising such a duty.⁹⁷ As such, ENS’s  omission was not wrongful in law, and Hawarden’s delictual claim was dismissed with costs.⁹⁸

This reasoning is consistent with prior jurisprudence, including *Country Cloud Trading CC*,  which reiterated that liability for omissions in cases of pure economic loss should remain  exceptional.⁹⁹ The SCA’s approach also aligns with general principles in South African  delictual law, which distinguish between wrongfulness (a policy-based inquiry) and negligence  (a fault-based inquiry).¹⁰⁰

6. Conclusion

The judgment in Edward Nathan Sonnenbergs Inc v Hawarden reinforces the cautious approach  of South African courts in extending liability for pure economic loss caused by omissions.¹⁰¹ The SCA ruled that, although Hawarden suffered a financial loss, ENS’s failure to warn her did  not amount to wrongfulness in law, given the absence of a contractual relationship and broader  policy concerns.¹⁰² The case confirms that wrongfulness in claims of pure economic loss is not  established merely by showing negligence but requires a strong justification in legal and public  policy.¹⁰³

Bibliography

Books

• D Kleyn and F Viljoen, ‘Beginner’s Guide for Law Students’ (Juta 2010). •

Case Law

• Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1) SA 1 (CC).
• Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden \ [2024] ZASCA 90; 2024 (5) SA 9 (SCA).

Journal Articles

• J Mokgoro, ‘Ubuntu and the Law in South Africa’ (1998) 1 ‘Potchefstroom Electronic Law Journal’ 15.

Legislation

• Constitution of the Republic of South Africa, 1996.

¹ Convention for the Protection of Human Rights and Fundamental Freedoms (European  Convention on Human Rights, as amended) art 35(1).

² Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects,’ (Cambridge University Press 2006) 151.

³ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights,’ (4th  edn, Intersentia 2006) 309–311.

⁴ Akdivar v Türkiye (1996) 23 EHRR 143, para 67.

⁵ Kudla v Poland App no 30210/96 (ECtHR, 26 October 2000) para 152.

⁶ van Dijk et al (n 3) 309.

⁷ ECHR (n 1) art 35(1).

⁸ Greer (n 2) 151.

⁹International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into  force 23 March 1976) 999 UNTS 171, art 5(2)(b).

¹⁰ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 22(5)(b).

¹¹ Clare Ovey and Robin White, ‘The European Convention on Human Rights’ (6th edn, Oxford  University Press 2014) 44.

¹² David Harris, Michael O’Boyle and Colin Warbrick, ‘Law of the European Convention on Human  Rights’ (3rd edn, Oxford University Press 2014) 642.

¹³ Akdivar v Türkiye (n 4) para 65.

¹⁴ Janneke Gerards, ‘General Principles of the European Convention on Human Rights’(Cambridge  University Press 2019) 87.

¹⁵ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 309.

¹⁶ Janneke Gerards, ‘General Principles of the European Convention on Human Rights’(Cambridge  University Press 2019) 87.

¹⁷ Convention for the Protection of Human Rights and Fundamental Freedoms (European  Convention on Human Rights, as amended) art 35(1).

¹⁸ Harris, O’Boyle and Warbrick, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP  2014) 644.

¹⁹ Akdivar v Türkiye (1996) 23 EHRR 143, para 67.

²⁰ Gerards (n 16) 89.

²¹ Kudla v Poland App no 30210/96 (ECtHR, 26 October 2000) para 152.

²² Harris, O’Boyle, and Warbrick (n 18) 646.

²³ Selmouni v France (1999) 29 EHRR 403, para 74.

²⁴ Ovey and White, The European Convention on Human Rights (6th edn, OUP 2014) 46.

²⁵ D v United Kingdom (1997) 24 EHRR 423, para 70.

²⁶ Van Oosterwijck v Belgium (1980) 3 EHRR 557, para 33.

²⁷ Gerards (n 16) 90.

²⁸ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 455.

²⁹ Janneke Gerards, ‘General Principles of the European Convention on Human Rights’(Cambridge  University Press 2019) 91.

³⁰ Harris, O’Boyle and Warbrick, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP  2014) 642.

³¹ Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects’ (CUP 2006) 154.

³² Gerards (n 30) 93.

³³ Ovey and White, ‘The European Convention on Human Rights’ (6th edn, OUP 2014) 48.

³⁴ Harris, O’Boyle, and Warbrick (n 31) 648.

³⁵ Akdivar v Türkiye (1996) 23 EHRR 143, para 67.

³⁶ Kudla v Poland App no 30210/96 (ECtHR, 26 October 2000) para 152.

³⁷ Gerards (n 30) 94.

³⁸ Greer (n 32) 156.

³⁹ Harris, O’Boyle, and Warbrick (n 31) 649.

⁴⁰ Ovey and White (n 34) 50.

⁴¹ Greer (n 32) 157.

⁴² Gerards (n 30) 96.

⁴³ Harris, O’Boyle, and Warbrick (n 31) 651.

⁴⁴ van Dijk et al (n 29) 456.

⁴⁵ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 451.

⁴⁶ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into  force 23 March 1976) 999 UNTS 171, Optional Protocol, art 5(2)(b).

⁴⁷ Henry J Steiner, Philip Alston, and Ryan Goodman, ‘International Human Rights in Context’ (3rd  edn, OUP 2008) 938.

⁴⁸ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 22(5)(b).

⁴⁹ Malcolm D Evans and Rod Morgan, ‘Preventing Torture: A Study of the European Convention for  the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’ (OUP 1998) 112.

⁵⁰ International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21  December 1965, entered into force 4 January 1969) 660 UNTS 195, art 14(7).

⁵¹ Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against  Women (adopted 6 October 1999, entered into force 22 December 2000) 2131 UNTS 83, art  4(1).

⁵² Harris, O’Boyle and Warbrick, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP  2014) 648.

⁵³ Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects’ (CUP 2006) 154.

⁵⁴ Janneke Gerards, ‘General Principles of the European Convention on Human Rights’(Cambridge  University Press 2019) 95.

⁵⁵ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 451.

⁵⁶ Harris, O’Boyle and Warbrick, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP  2014) 648.

⁵⁷ Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16  December 1966, entered into force 23 March 1976) 999 UNTS 171, art 5(2)(b). ⁵⁸ Manfred Nowak, ‘UN Covenant on Civil and Political Rights: CCPR Commentary’ (2nd edn, NP  Engel 2005) 92.

⁵⁹ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 22.

⁶⁰ Malcolm D Evans and Rod Morgan, ‘Preventing Torture: A Study of the European Convention for  the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’ (OUP 1998) 113.

⁶¹ Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against  Women (adopted 6 October 1999, entered into force 22 December 2000) 2131 UNTS 83, art  4(1).

⁶² Rebecca Cook, ‘Human Rights of Women: National and International Perspectives’ (University  of Pennsylvania Press 1994) 311.

⁶³ International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21  December 1965, entered into force 4 January 1969) 660 UNTS 195, art 14(7).

⁶⁴ Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects’ (CUP 2006) 156.

⁶⁵ European Convention on Human Rights (adopted 4 November 1950, entered into force 3  September 1953) 213 UNTS 221, art 35(1).

⁶⁶ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 453.

⁶⁷ Harris, O’Boyle and Warbrick, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP  2014) 650.

⁶⁸ Akdivar v Türkiye (1996) 23 EHRR 143, para 67.

⁶⁹ Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects’ (CUP 2006) 158.

⁷⁰ Selmouni v France (1999) 29 EHRR 403, para 74.

⁷¹ Van Oosterwijck v Belgium (1980) 3 EHRR 557, para 33.

⁷² Alastair Mowbray, ‘Cases and Materials on the European Convention on Human Rights’ (OUP  2012) 123.

⁷³ Pieter van Dijk et al, ‘Theory and Practice of the European Convention on Human Rights’ (4th  edn, Intersentia 2006) 451.

⁷⁴ Ibid 453.

⁷⁵ David Harris, Michael O’Boyle and Ed Bates, ‘Law of the European Convention on Human Rights’ (3rd edn, OUP 2014) 651.

⁷⁶ George Letsas, ‘A Theory of Interpretation of the European Convention on Human Rights’ (OUP  2009) 80.

⁷⁷ International Justice Resource Centre (IJRC), ‘Exhaustion of Domestic Remedies in International  Human Rights Law’ (IJRC, 2020) <[https://ijrcenter.org/other-key-human-rights topics/exhaustion-of-domestic-remedies/] (https://ijrcenter.org/other-key-human-rights topics/exhaustion-of-domestic-remedies/) accessed 24 August 2025. >or the lack of unbiased courts.

⁷⁸ The legitimacy and accessibility of the Convention system  depend heavily on this equilibrium between subsidiarity and fairness..⁷⁹

⁷⁸ Steven Greer, ‘The European Convention on Human Rights: Achievements, Problems and  Prospects’ (CUP 2006) 159.

⁷⁹ Alastair Mowbray, ‘Cases and Materials on the European Convention on Human Rights’ (OUP  2012) 125.

⁸⁰ Dinah Shelton, ‘Remedies in International Human Rights Law’ (3rd edn, OUP 2015) 112.

⁸¹ Hannum, The UDHR in National and International Law, p. 149, para. 4; Deplano, Is the  Universal Declaration of Human Rights Customary International Law? p. 113, para. 7

⁸² Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden \ [2024] ZASCA 90, para 1.

⁸³ ibid para 5.

⁸⁴ ibid para 8.

⁸⁵ ibid para 9.

⁸⁶ ibid para 12.

⁸⁷ ibid para 14.

⁸⁸ ibid para 15.

⁸⁹ ibid para 20.

⁹⁰ Constitution of the Republic of South Africa, 1996, s 39(2).

⁹¹ Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden \ [2024] ZASCA 90, para 23.

⁹² Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1) SA  1 (CC) para 25.

⁹³ ibid para 26.

⁹⁴ Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden \ [2024] ZASCA 90, para 30.

⁹⁵ ibid para 32.

⁹⁶ ibid para 33.

⁹⁷ ibid para 34.

⁹⁸ ibid para 35.

⁹⁹ Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1) SA  1 (CC) para 28.

¹⁰⁰ Kleyn and Viljoen, Beginner’s Guide for Law Students (Juta 2010) 95.

¹⁰¹ Edward Nathan Sonnenbergs Inc v Judith Mary Hawarden \ [2024] ZASCA 90, para 36.

¹⁰² ibid para 38.

¹⁰³ Mokgoro, ‘Ubuntu and the Law in South Africa’ (1998) 1 [PER] 20.