Variation in the Use of Subregional Integration Courts between Business and Human Rights Actors: the Case of the East African Court of Justice

This article analyzes the resort to the East African Court of Justice (EACJ) by human rights advocates and business actors. In doing so, this article considers how the EACJ fits Alter, Helfer, and Madsen’s concept of the authority of an international court (IC). According to Alter and her co-authors, an IC has authority when two conditions are met. First, when a legally binding ruling issued by an IC exists, and second, when key audiences, such as governments and private actors, engage in meaningful practices designed to give full effect to those rulings. This article demonstrates that the EACJ has intermediate authority at a thin-elite level in human rights cases because urbanbased, human rights nongovernmental organizations (NGOs), pro-democracy activists, and some governmental officials recognize in some, but not all, cases the legally binding nature of the EACJ’s human rights cases and take steps to give effect to the rulings of the EACJ. Most importantly, the EACJ has intermediate authority not only because there are efforts by governments to comply with some human rights cases, as the Alter, Helfer, and Madsen authority framework suggests, but also because of the mobilization of these cases to “name and shame” East African Community (EAC) governments for human rights violations, which that framework does not take into account. Human rights advocates have actively and repeatedly litigated their cases in the EACJ, even though the EACJ does not have explicit jurisdiction to decide human rights cases. In fact, in every case raising a human rights issue that has come before the EACJ, the defending government has challenged the Court’s jurisdiction, but it has continued to litigate before the Court when its jurisdictional challenge has failed. Further, the judges of the EACJ have been proactive in encouraging human rights cases to come before the Court. Unlike human rights advocates, business actors in general and the East African Business Council (EABC) in particular have eschewed litigating before