Regional Human Rights Systems
Regional arrangements supplement the UN system
by promoting and protecting human rights in particular parts of the world. Three regions—Europe, the Americas, and Africa—have formulated their own declarations and conventions for the protection and enforcement of human rights. Because of their locations, regional agencies and courts have better chances of effectively investigating alleged violations promptly and securing relief for victims. Regional agencies are also likely to be more attuned to the culture and identity of the region and may accordingly have a deeper understanding of problems, circumstances, and possible reforms.
The European System
Beginning in the mid-1950s, the European Court of Human Rights, established under the European Convention for the Protection of Human Rights (1950) showed the world that it was possible to adjudicate and enforce human rights at the international level. Article 3 of the Statute of the Council of Europe requires member states to accept the principles of human rights and fundamental freedoms within their jurisdictions. The Council even defines its post-1989 role as that of a “human rights watchdog” for post-communist European countries (see About the Council of Europe). Since its inception membership in the Council of Europe has more than doubled—currently the Council has nearly 50 member states, about 20 of which are Central or Eastern European countries.
The European Convention establishes human rights norms, legally binds member states to respect these norms, and creates a system of adjudication and enforcement. The European Convention's commitment clause requires all member states to secure these fundamental rights to every person within their jurisdictions. The first section of the European Convention then sets forth the fundamental rights covered in the convention, while the second section establishes the European Court of Human Rights.
The rights set forth in the European Convention are similar to the first twenty-one articles of the Universal Declaration, covering standard civil and political rights. Social rights were treated in a separate document, the European Social Charter. The European Convention defines its rights in greater detail than the Universal Declaration. A good example of this is seen in the right to life. While the Universal Declaration simply sets forth, “[e]veryone has the right to life…,” the European Convention's formulation is far more specific, requiring a mens rea as a necessary condition for violation and defining specific exceptions to this right (see Article 2).
The European system originally had both a Commission and a Human Rights Court to ensure that member states fulfilled their human rights obligations. In 1998, the European Convention was amended to abolish the Commission, expand and reorganize the Court, and make the Court a full-time operation. Countries that ratify the European Convention agree both to respect and implement a list of rights and to accept the investigation, mediation, and adjudication of human rights complaints. The European Court of Human Rights, based in Strasbourg, France, is composed of one judge from each participating state in the Council of Europe. The judges, however, are appointed as independent jurists rather than as state representatives.
Citizens from the participating countries with human rights complaints who have been unable to find a remedy in their national courts may petition the European Court of Human Rights. Complaints by governments about human rights violations in another participating country are also permitted, but are rarely made. If the Court agrees to hear a complaint, it investigates and adjudicates it. Before issuing a judgment, the Court attempts to mediate the dispute. If conciliation fails, the Court will issue a judgment with supporting judicial opinions and impose a remedy. Through this process a large body of international human rights jurisprudence has developed (Jacobs and White 1996; Janis, Kay and Bradley 1995). The Court currently has a very large backlog of cases. In 2004 reforms were implemented to address this problem (see the 2004 amendment, Protocol 14). Before the end of 2019 the Committee of Ministers will evaluate whether the reforms adopted ensure sustainable functioning of the Court or whether additional measures need to be taken.
The Inter-American System
The Organization of American States (OAS) is the oldest regional organization of states. In 1948, 21 states signed the OAS Charter, establishing the regional organization and affirming their commitment to democracy, liberty, and equality before the law. Article 3 of the OAS Charter recognizes the “fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” The Inter-American system has two main documents, the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights; and two main treaty bodies, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
Even before the UN adopted the Universal Declaration, the Organization of American States approved the American Declaration (1948). Like the Universal Declaration, the American Declaration encompasses the entire range of human rights. Additionally, the declaration includes an explicit list of duties, ranging from general duties toward society and one's children, to an individual's duty to vote, work, and pay taxes (Articles 29–38).
Despite its early beginnings, the Inter-American system of human rights progressed more slowly than its counterparts. Not until 1969 did the OAS adopt the American Convention on Human Rights, which entered into force in June of 1978. The Convention gave legal force to most of the rights established in the American Declaration with a commitment clause requiring states to adopt legislative or other measures necessary for full implementation of these rights. The Convention does not cover social rights. Those were subsequently added by the Protocol of San Salvador (1988).
The Inter-American Commission on Human Rights was established in 1959 and conducted its first investigation in 1961. The Commission is the first of two permanent bodies for promoting and protecting human rights in the Americas and consists of seven members elected by the OAS General Assembly who serve in their personal capacities.
The Commission's main functions include investigating individual complaints and preparing reports on countries with severe human rights problems. To this end the Commission is authorized to:
Receive and investigate individual petitions regarding human rights violationsPublish reports regarding human rights situations in member statesVisit member states and investigate general human rights conditions or particular problem areasPublish studies on specific subject areas, such as indigenous rights and women's rightsMake human rights recommendations to member statesSubmit cases to, or request advisory opinions from the Inter-American Court of Human Rights.
In 1979 the OAS adopted the Statute of the Inter-American Court of Human Rights, officially creating the Inter-American Court and defining its jurisdiction. The Court is authorized to interpret and enforce the Convention (Davidson 1997). The Court is composed of seven judges who serve a six year term as individuals rather than as government representatives. The Court's jurisdiction is limited to cases submitted to it by the Inter-American Commission on Human Rights or by the member states. The Court generally holds public hearings and delivers decisions in public sessions.
Historically, the Commission was a more important actor than the Court in the implementation of the American Convention (Farer 1997). This seems to be changing, however, as the Court plays an increasingly active and central role.
The African System
The African Charter of Human and Peoples' Rights was created within the Organization of African Unity in 1981, entering into force in 1986. In 2000 the Organization of African Unity transformed itself into the African Union. The Constitutive Act, whereby this was accomplished, reaffirmed Africa's determination “to promote and protect human and peoples' rights.” As of 2014 the African Union has 51 members in good standing.
The African Charter obligates ratifying countries to recognize the rights and duties listed and to adopt legislation or measures to bring them into effect (Article 2). The Charter is divided into two parts. The first part sets forth rights and duties and the second part establishes safeguards for them. Like the American Convention on Human Rights, the African Charter sets out not only rights but also duties of individuals (Articles 27–29). These individual duties, possibly added to counter claims that human rights promote excessive individualism, are owed to family, society, country, and the international community.
The African Charter explicitly posits group rights—the rights of peoples. Examples of such rights include the right of a group to freely dispose of its natural resources in the exclusive interest of its members (Article 21), and the right of a colonized or oppressed group to free themselves from domination (Article 20).
The Charter created an African Commission on Human and Peoples' Rights to promote and ensure the protection of human and peoples' rights in Africa (Article 30). The Commission meets twice a year and consists of eleven members of the African community who serve six year terms in their personal capacities. The functions of the Commission are the promotion of human rights, the protection of these rights, interpretation of the African Charter, and the performance of “any other tasks” requested by the AU (Article 45). The Commission is also authorized to perform studies regarding problems in the area of human rights; formulate rules addressing human rights problems; investigate alleged human rights violations; prepare reports discussing human rights abuses; and make recommendations to the AU Assembly (Articles 45–54). Furthermore, states are required to submit regular reports to the Commission on their human rights problems and efforts to address them (Article 62).
The African Court of Human and Peoples' Rights is now in operation in Arusha, Tanzania. The first election of its eleven judges occurred in 2006. The judges serve six-year terms and are permitted to serve two terms. The Court issued its first judgment concerning admissibility in 2009. It issued its first judgment on the merits in 2013, holding that the government of Tanzania had violated its citizens' right to participate freely in government. In 2014 the African Court issued another ruling, this time against the state of Burkina Faso, for failing to investigate properly the murder of a journalist.
The African system has enormous human rights problems to address, frequently faces non-cooperation by governments, and has inadequate resources (Evans and Murray 2002). But despite these problems the African Union seems to be slowly constructing international mechanisms to promote and protect human rights in Africa.
Other regions
Large areas of the world lack functioning regional human rights systems (although they are, of course, covered by the worldwide UN system). No regional system exists in Asia, although the members of Association of Southeast Asian Nations (ASEAN) created in 2009 anIntergovernmental Commission on Human Rights. The Arab League has an Arab Charter of Human Rights. As of 2013, Algeria, Bahrain, Iraq, Jordan, Kuwait Lebanon, Syria, Palestine, Qatar, Saudi Arabia, Libya, the UAE, and Yemen have ratified the Charter.
