Regional Human Rights Mechanisms

Analyse the extent to which regional mechanisms are more effective than universal systems in protecting human rights

Both international and regional law protects human rights. The United Nations (UN) International Human Rights law is enforced at different levels, from global, to regional, as well as national [1]. If human rights are not being protected at a national level, then international law comes into force in the form of the universal or regional systems. The three main regional systems of human rights systems include the African Charter of Human and Peoples’ Rights[2] and the European Convention on Human Rights[3] as well as the inter-American system of human rights, there are other regional human rights systems however, none of them are as developed as those that have already been mentioned. There were initial doubts about the effectiveness of regional human rights systems and a feeling that they would almost certainly fail, but these systems have proven quite successful today. It is in the shared interests of countries within a region to protect human rights in their part of the world. Due to their closeness, they are capable of influencing each other’s behaviour and ensuring compliance with human rights[4]. This essay will explain the functioning and effectiveness of regional systems and analyse whether they are more effective than universal systems.

The Treaties and conventions that have formed regional human rights systems are based on set standard criteria. They outline certain elements, mainly individual rights, but also impose and declare certain duties on the states that are part of the system[5]. These regional systems will also tend to have a monitoring mechanism to ensure that there is cooperation with the set criteria by the other member states of their regional system.

The European Convention of Human Rights established a format for regional human rights monitoring mechanisms in 1950[6]. The system became a first in the world and provided an external mechanism for people to pursue their rights or endorse a case if they felt that the legal system of their country was not upholding or was infringing upon their human rights. These cases sometimes proceed to the European Court of Human Rights if the case is worthy enough for such a high level court, whose decisions are legally binding to member states, it should be noted however that the European Court of Human rights, was such a success that it is now suffering from a huge backlog of cases as more member states bring cases to the court.

Development of regional human rights systems are done independently of other regional systems, despite this however they all recognise the key and fundamental points of the United Nations system, with the Universal Declaration of Human Rights. (UDHR) being the centre of this recognition. These regional systems have been able to provide mechanisms of protection, which have become far better than the universal systems for many different reasons[7].  The First reason is, member states of a regional human rights system are more likely to have similar factors which affect their countries, these including, political, cultural and economic factors that make it easier for them to agree on the enforcement and implementation of a system that will suit their region. As well as this, member states are far more inclined to conform and adapt to laws and decisions that come form a regional body then compared to international ones. This makes it easier to enforce the decisions of regional mechanisms than it is to enforce to international decisions.[8]

Another reason the economic, political and cultural factors in regions allow regional systems to provide a better platform for implementation when compared to international laws[9], is due to a shared background and geography. Sanctions have been proven to be more effective than international methods because countries do not want to be surrounded by unfriendly neighbours. Citizens of countries within a common region share experiences and history as well as any number of other links that impact on how their politicians’ will act and how their governments will view laws, a good example of nations that share cultural similarities is Austria and Germany, who share a common ancestry and speak a similar language. This shared background has lead to these two nations being very close allies; an unfriendly neighbour makes the region filled with tension.

This is therefore the reason why states that are interested in the protection of human rights are willing to make complaints against other states before regional and international bodies. Treaties on human rights have created an obligation, in the form of inter-state complaints on member states towards third-party states[10]. This essentially means that they can complain if they feel one of the member states in their region is violating human rights. This consideration can come with no political or economic backlash on the state filing the complaint. An example, would be when, the Scandinavian nations entered a complaint in the European Human Rights Court against Greece for the violations of human rights of Greek citizens under the Communist regime that took power in the country[11].

Member states may however pursue their own interests when they make complaints against other members before regional and international organisations. This usually happens when their native citizens are being oppressed in a foreign country where they have settled. For example, Austria lodged a complaint against Italy for violation of the European Convention of Human Rights. This was after people of Austrian origin living in Italy were wrongly persecuted during a criminal investigation into the murder of an Italian immigration officer. Austria felt that their expat citizens had their human rights violated just because they were not native Italians[12]. These examples can therefore distinguish the different types of complaints that can be used between nations, with the ability to file a complaint on behalf of citizens from a third party nation, and a complaint filed for the protection of states native citizens.

The European Convention on Human Rights clearly recognises the use of inter-state complaints as one of its enforcement mechanisms. This mechanism is mandatory for all member states. This is outlined in Article 33, which allows for a state to bring a complaint against another if it believes there is a violation of human rights. The state making the inter-state complaint does not necessarily need to have an interest in the case. This is because the inter-state complaints mechanism is seen as a means for maintaining public order in Europe rather than self-interests of member states. The inter-state complaint can be used to force unwilling states to implement decisions of the European Court of Human Rights. The European inter-states complaints system is the most used mechanism, having seen more than twenty-one complaints filed so far. Examples include complaints filed by Greece against the United Kingdom in relation to the UK’s rule in Cyprus. Specifically, the UK asked Cyprus to enact laws that allow for corporal punishment of males aged below 18 years, which Greece stated is a violation of European Convention on Human Rights. Another example would be when Austria also filed an inter-state complaint against Italy for mistreatment of the local German-speaking community living in Italy[13]. However, the Committee ruled that there was no violation of the European Convention in this case.

The inter-American system of human rights provides for states to file complaints against another for human rights violations. However, this is only possible if both states acknowledge the competence of the Inter-American Commission. Since this acknowledgement is only voluntary and not mandatory, only a few states have accepted the competence of the Inter-American Commission to handle inter-state complaints. Furthermore, there are certain steps of procedure to be followed before making an inter-state complaint. For example, domestic solutions must first be tried. Second, the case should not be pending before any other international body, and third, the case must be filed within six months after notification of the complaint. So far, no inter-state complaints have been filed under the American system making it the least used inter-state system of the three that have been mentioned.

The African regional system for the protection of human rights has two different routes through which members’ states can lodge inter-state complaints. Firstly, a state can communicate directly with the state accused of violating human rights before taking the complaint to the African Commission. The notified state will then have three months to seek a diplomatic solution before further action is taken. The second option involves a state bringing a case directly to the African Commission without informing with the accused State. This is outlined in Article 49[14]. Once a State has brought an inter-State complaint against another member State, they are subjected to certain rules and are required to meet certain criteria; for example, they are required to seek domestic solutions to the very end unless there are extensive violations that cannot be addressed through such a solution.

Due to the widespread and blatant violations of human rights in Africa, it should be expected that there would be plenty of inter-State complaints but this has not been the case. There are only a few cases in which one State has reported another for violation of human rights. The most notable is the complaint filed by Sudan against Ethiopia in 1997, where Sudan accused the Ethiopian Army of oppressing its citizens living near their shared border. However, the case failed because Ethiopia was not a member of Africa’s human rights mechanism at the time of the complaint therefore rendering an inter state complaint useless .The same reason led to failure of the complaint Libya filed against the United States following the U.S. bombing of Libya. The only complaint properly filed under the African chapter was by Democratic Republic of Congo against Uganda, Rwanda, and Burundi[15]. The African inter state a complaint systems has been used to either further a political cause or has been used incorrectly. It therefore appears that of all the developed regional human rights systems, the ECHR is the only system with an effective inter-state complaint system.

Regional human rights systems also have enforcement mechanisms with provisions for member states to provide regularly reports on their compliance with treaty obligations. This is a requirement for most UN treaties and other organisations[16]. Once the report is submitted, it is scrutinised and questions may be asked to the reporting state to determine the accuracy and legitimacy of the report. State reporting relies heavily on the assumption and principle that no state wants to be singled out for failing to live up to the standards of international law. Such states risk bad publicity in the international community, which can effect many economic factors of the state and cause it much harm if it does not comply, i.e tourism would fall for a state with faulty human rights standards. State reporting also offers member states a chance to reflect on their internal human rights situation during the preparation of the report. This might prompt them to make improvements so that the report does not look so bad. A minor point can be made that the report helps incoming governments understand the nations situation on human rights.

State reporting enables member states to engage in a constructive dialogue with the examining body in a non-confrontational way. This way, states are able to find issues in their policies and consider possible future improvements[17]. The examining body can also identify problems with a member state and propose potential solutions. State reporting can also increase the involvement of other segments of the society since most reporting administrations recognise the input of non-political bodies. It should be pointed out that Africa has emerged as a leader on this issue of state reporting systems compared to other regional mechanisms[18].

In terms of content, national reports begin by providing a description of the overall political situation and legal system of the country; they then give comparisons between their domestic legal systems with other international counterparts[19]. These reports mostly focus on civil and political rights; there is an increasing push for the reports to include social and economic rights as well. However, this reporting is not standardised and it is difficult to determine whether social and economic rights would be adequately covered in these reports. The regional human rights mechanisms usually add their recommendations to country reports submitted by member states at this point. The recommendations are highly varied. The variation in range may include requests for states to investigate certain incidents or could in fact be nothing more then a few minor implementations that aren’t really important. The reports are forwarded to the political bodies of these regional mechanisms so that they can exert pressure on states to comply with the recommendations an example of this would be the European Court of human rights. The efficiency of state reports demands on the consequences that follow such reports. Sometimes the debate that ensues following the submission of a country report can put pressure on a guilty state to improve its human rights protection mechanisms. Generally, no state wants to be the subject of public discussion on human rights violations.

The universal system of human rights seems to therefore be less effective when compared to the regional systems of the Americas, Africa and Europe. This may be due to the fact that the UDHR is not legally enforceable but instead is viewed as a guide to which nations must conform against to be member state of the United Nations. It is well known that member states of the united nations often quarrel and veto motions put to each other and it might be this image presented of the UN that causes many nations and its citizens to turn to their local regional and possibly national systems of human rights to ensure their rights are protected. It took two covenants the International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR) to finally make the UDHR legally enforceable.

An issue that has passed through the United Nations recently is the issue of supposed Indivisibility of human rights[20]. It is an issue that seems to affect the universal system of human rights. The theory of “indivisible” human rights is essentially that when documents such as the UDHR have been drafted they created a set of rights that must be followed, and they are written to depend upon each other but instead, in recent days are represented individually allowing governments to ignore some rights whilst championing others. The most common examples of this theory in the modern day and age is of Asian nations complaining that western nations are forcing western values on their citizens and on the international community through a western interpretation of human rights, which clash against eastern values and so the two viewpoints become incompatible. This issue can therefore further the previous point that an image has been created of the Universal system failing to be above the agendas of nations and can relate to the increase of regional systems of human rights being far more effective.

Following on from this, there are views that societies in poorer nations are not in fact equal in the international stage and that it is due to this unbalanced standing that leads to economic differences between groups of peoples, as well as various structural inequalities, for example in education, employment, healthcare and housing, every society requires the mentioned qualities to stand a chance at a decent way of life. And often if societies or minorities are denied these factors conflicts can occur between other ethnic groups or the government of the nation. Such conflicts do not always take a violent form, but can be through various forms like restrictive laws, biased policies and unfair budgeting this therefore forming the basis for the denial of human rights to certain groups through oppressive and even violent actions from the state and other players in the political scene of the nation. Regional systems can help prevent human rights oppression since countries in one region are likely to share people with the same race, ethnicity, religion or cultural background. However regional systems can fail to protect ethnic groups in member states. Minorities do tend suffer in situations like this and it is one of the few times universal human rights systems are more effective. This seems to be due to an international setting. The UN does not suffer from cultural and regional rivalries and so antagonism for certain communities does not occur, the UN has in fact gone to war to protect local minorities from genocide such as the UN sanctioned NATO intervention into the Bosnian War to end the genocide against the Bosnian Muslims and Croat minorities[21]

Regional human rights mechanisms have become a far more useful and effective tool for the protection of human rights. This is because states find it easier to interact and comply with regional enforcement, compared to international mechanisms. There are several reasons for the success of these regional mechanisms over their international counterparts. The location of regional mechanisms makes them more accessible than international bodies. Regions also consist of countries with shared cultural, economic and political characteristics, which make them more likely to listen to each other and agree compared to the highly diverse international bodies. Countries are more inclined to comply with the demands of their neighbours compared to enforcement from international bodies, however it should be noted that universal systems of human rights have been the only successful system in ending genocide or situations of ethnic cleansing where it should remembered regional systems have failed.

Bibliography

Legislation

• ‘European Convention Of Human Rights’ (2017) accessed 21 June 2017

Books

• Baehr P and Castermans-Holleman M, The Role Of Human Rights In Foreign Policy (Palgrave Macmillan 2004)
• Bates E, The Evolution Of The European Convention On Human Rights (Oxford University Press 2010)
• Goodman R and Pegram T, Human Rights, State Compliance, And Social Change (Cambridge : Cambridge University Press 2012)
• Nowak M and Kamminga M, ‘Inter-State Accountability For Violations Of Human Rights’ (1994) 16 Human Rights Quarterly
• Smith R, Textbook On International Human Rights (7th edn, Oxford University Press 2016)

Journals and Articles

• Shaw C, ‘The Evolution Of Regional Human Rights Mechanisms: A Focus On Africa’ (2007) 6 Journal of Human Rights

Website

• ‘A Guide To African Human Rights’ (African Commission on Human and Peoples’ Rights, 2017) accessed 20 June 2017
• ‘African Commission On Human And Peoples’ Rights’ (Crin.org, 2017) accessed 22 June 2017
• ‘African Human Rights Law Journal (AHRLJ) – Heyns C, Padilla D & Zwaak, L’ (Ahrlj.up.ac.za, 2017) accessed 21 June 2017
• ‘Bosnian Genocide – Facts & Summary – HISTORY.Com’ (HISTORY.com, 2017) accessed 24 June 2017
• ‘Indivisibility And Interdependence Of Human Rights’ (Boston University, 2017) accessed 22 June 2017
• KIDANEMARIAM F, ‘Cite A Website – Cite This For Me’ (Digitalcommons.law.uga.edu, 2017) accessed 21 June 2017
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[1] FEKADESELASSIE KIDANEMARIA  (Digitalcommons.law.uga.edu, 2017) accessed 21 June 2017.

[2] ‘African Human Rights Law Journal (AHRLJ) – Heyns C, Padilla D & Zwaak, L’ (Ahrlj.up.ac.za, 2017) accessed 21 June 2017.

[3] ‘European Convention Of Human Rights’ (2017) accessed 21 June 2017.

[4]Carolyn M. Shaw, ‘The Evolution Of Regional Human Rights Mechanisms: A Focus On Africa’ (2007) 6 Journal of Human Rights.

[5] Ibid Heyns C, Padilla D & Zwaak, L, line 9

[6] Ed Bates, The Evolution Of The European Convention On Human Rights (Oxford University Press 2010).

[7] ibid Heyns C, Padilla D & Zwaak, L, line 11

[8] ibid, Kidanemariam, chapter 2

[9] Ryan Goodman and Thomas Innes Pegram, Human Rights, State Compliance, And Social Change(Cambridge : Cambridge University Press 2012).

[10] Manfred Nowak and Menno T. Kamminga, ‘Inter-State Accountability For Violations Of Human Rights’ (1994) 16 Human Rights Quarterly.

[11] P. R Baehr and Monique C Castermans-Holleman, The Role Of Human Rights In Foreign Policy(Palgrave Macmillan 2004).

[12] Rhona K. M Smith, Textbook On International Human Rights (7th edn, Oxford University Press 2016).

[13] ‘ECHR Inter-State Complaints’ (European Court of Human Rights, 2017) accessed 21 June 2017.

[14] ‘A Guide To African Human Rights’ (African Commission on Human and Peoples’ Rights, 2017) accessed 20 June 2017.

[15] ‘African Commission On Human And Peoples' Rights’ (Crin.org, 2017) accessed 22 June 2017.

[16] Rhona K. M Smith pg 84

[17] Shaw pg 8

[18] Kidanemariam pg 34

[19] Shaw pg 9

[20] ‘Indivisibility And Interdependence Of Human Rights’ (Boston University, 2017) accessed 22 June 2017.

[21] ‘Bosnian Genocide – Facts & Summary – HISTORY.Com’ (HISTORY.com, 2017) accessed 24 June 2017.