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In Defence of Regional Human Rights Bodies

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About The Author

Ben McGuckin (Former EU and International Law Editor)

Ben is set to begin his LPC in September, having previously graduated with an LLM in International Law and Governance from Durham University and a First Class LLB from Northumbria University. nd securing an award for best performing student in final year in the process. He hopes to work in the areas of mental health and family law, with a view to eventually joining the Army Legal Services. Outside of law, Ben enjoys playing darts with his local pub team. He also has a keen interest in video games and rock music.

To deny people their human rights is to challenge their very humanity.

Nelson Mandela

In 1977, the UN General Assembly passed Resolution 32/127, highlighting the importance of encouraging regional co-operation for the promotion and protection of human rights. Since then, several regional human rights systems have developed and contributed to international human rights discourse and jurisprudence.

Though these regional systems are not without critics, they have facilitated welcome developments in regional human rights protection: notable examples include the League of Arab States revising its Charter on Human Rights and the Asian region developing its own regional machinery too. Crucially too, as this article argues, these regional systems are an invaluable addition to the universal protection human rights.

Defending the Impact of Regional Systems on Universality

The Universalist/Relativist Debate

Since the development of the universal human rights system – via instruments like the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)  academics have debated whether human rights are universal or culturally relative in nature.

The universalist position asserts that human rights attach to the human being by virtue of their being human, and for no other reason. This means that human rights do not recognise borders, creed, gender, culture or religion; they apply universally because of a shared humanity which every human being possesses.

In contrast, cultural relativists argue that human rights derive their meaning as values entirely from the historical contexts and specific cultures in which they operate. They contend that no universal principles can exist because every belief or moral principle will be defined by reference to the culture in which it was developed and so human rights cannot be universal.

Some suggest that the existence of regional systems, and the fact that some international human rights mechanisms allow for culturally influenced forms of implementation, undermines the universalist position. For example, Article 2(3)(a) of the ICCPR does not require states to adopt identical mechanisms in order to ensure an effective remedy is granted.

Nonetheless, the ratification rates of these international human rights mechanisms – the ICCPR and ICESCR are ratified by 169 and 165 states respectively, while the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) is ratified by 189 – shows that, despite the existence of regional systems residing in different areas with different cultures, the majority of States agree that human rights are universal.

Do Regional Human Rights Systems Protect or Undermine Universal Rights?

With the universalist/relativist dichotomy in mind, some have quested whether regional human rights systems can actually protect universal human rights. Melissa Robbins, for example, argues that if rights are protected at the regional level, then the concept of universal human rights is eroded as rights become determined according to regional values and 'exclusive rights' are developed.

The African Women’s Protocol offers an example of these ‘exclusive rights.’ This supplements the CEDAW and gives local ownership to African women by protecting rights of concern to them. For example, it guarantees the right for women to be protected against HIV infection, know the HIV status of their sexual partners and protects women’s rights in polygamous marriages.

Melissa Robbins criticises this because it means that individuals in other regions are not granted these 'exclusive rights'. However, this fails to recognise that this is exactly what regional systems are designed to do. Protecting culturally specific norms or rights which are of paramount concern in that region does not jeopardise the universality of human rights. Instead, it enhances human rights protection in that region by filling the lacunae left by the universal instruments.

Mellissa Robbins also contends that regional systems result in the dilution of universal human rights as regional systems create differing interpretations of rights. While this may be true, it is not as problematic as she asserts. Indeed, two cases, heard by the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) respectively, demonstrate that different interpretations of universal human rights by regional systems do not call into question its universality.

In Otto-Preminger-Institut v Austria [1994], the ECtHR heard a case concerning a film which mocked God, Jesus Christ, and the Virgin Mary, the showing of which constituted an offence under Austrian law. After the film was seized by the authorities and its screening cancelled, its makers protested that their right to freedom of expression protected by Article 10 of the European Convention of Human Rights (ECHR) had been infringed. The ECtHR agreed that there had been an interference with Article 10 of the ECHR. However, crucially, it held that such an interference was justified under Article 10(2) of the ECHR because States are obliged to:

[A]void as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which… do not contribute to any form of public debate capable of furthering progress in human affairs.

The ECtHR therefore concluded that Austria was able to restrict the freedom of expression because they were protecting the rights of others to not have their religious sensibilities unjustifiably offended.

Meanwhile, the IACtHR heard Olmedo-Bustos v Chile [2001] which concerned a film depicting Christ being tempted to engage in sexual activity in a way that was considered offensive to Christians. The IACtHR, in contrast to its European counterpart, held that the censorship of the film by Chile was an unjustified interference of the freedom of expression and ordered the film to be shown.

There is a crucial difference between freedom of expression rights set out in the ECHR and the American Convention of Human Rights (ACHR) which led to the different decisions. While Article 10(2) of the ECHR allows for prior censorship of material for various reasons, Article 13 of the ACHR expressly prohibits prior censorship in favour of the 'subsequent imposition of liability'.

This shows that, while there is a universal right of the freedom of expression, it has been modified depending on where the right is invoked such that the conception in Europe is clearly more restricted conception of the right. Importantly, the fact there is variation in the freedom of expression at the regional level does not call into question the universality of freedom of expression. After all, although human rights are universal, this does not necessarily mean, or require, that they will be uniform across a world of seven billion people.

To suggest that different interpretations are problematic is to overlook that rights exist on a spectrum: they are not static, nor do they exist in a vacuum. The existence of differing jurisprudence on particular rights enhances discourse and facilitates the evolution of human rights. Rights will evolve as society progresses. Only through debate and discourse can human rights be protected for all; regional systems are an invaluable contribution to this discourse.

Using the African Regime to Expand the Protection of ESCRs

Regional systems have the advantage of being able to protect different rights depending on the political environments in which they are situated, which is enhanced by their greater awareness of the local social and political conditions of the region. This is preferable to the international system, which tends to have a superficial regard to issues of global concern. 

For example, the ACHR has focused on the right to life, the prohibition from torture, and rights relating to enforced disappearances. Meanwhile, the European system has gravitated towards the freedom of expression, the right to a fair trial, and issues relating to privacy. However, the advantage of a regional system is best demonstrated by the African regional system.

An Introduction to ESCRs

Human rights traditionally fall into one of two categories: civil and political rights, and economic, social and cultural rights (ESCRs). ESCRs are ideologically and politically controversial: some scholars, such as Maurice Cranston, have asserted that they do not even amount to human rights.

As such, civil and political rights enjoy greater international protection than ESCRs. This means that violations of ESCRs are difficult for the individual to address at the UN level, such that Professor B.S. Chimni has suggested that international human rights organisations:

[F]ocus more on civil and political rights, as they lack the mandate, resources and political backing to seriously influence outcomes in the realms of economic and social rights [and that] they have only had a minimal impact on the welfare of ordinary peoples in the third world.

Thus, the role of regional human rights systems (particularly the African system) in promoting and protecting ESCRs is vital. Indeed, because poverty is widespread across Africa, it is unsurprising that the African Charter on Human and Peoples’ Rights (the African Charter) has a special focus on protecting ESCRs. This stems from the belief that fulfilling them is a step towards reducing poverty and the realisation of civil and political rights. ESCRs are therefore on the same footing as civil and political rights, if not above them. It is this unique approach of the African system to ESCRs which shows that it is an invaluable addition to international human rights.

The African System's Unique Methods for Protecting ESCRs 

The Timescale for Protection ESCRs

The ICESCR, the ACHR, and the European Social Charter (ESC) all use the same language for the protection of ESCRs, stating that they are subject to 'progressive realisation'. In contrast, the African Charter adopts a unique approach whereby it is silent on the timeframe in which these rights are to be implemented. This has left open the possibility that ESCRs under the African Charter are realisable immediately, a claim supported by the African Commission’s statement that:

[The] Charter requires that all these rights and more should be implemented now…It is a task that must be carried out by every ratifying State.

Though the African Commission seems to have subsequently changed its stance on this issue, its position is still firmer than the notion of  progressive realisation: in SERAC v Nigeria [2001], it held that Article 24 of the African Charter obligated States to ‘take reasonable and other measures to prevent pollution and ecological degradation’. This position was strengthened in Purohit v The Gambia [2003], in which the Commission asserted that Article 16 of the African Charter requires states to:

[T]ake concrete and targeted steps, while taking full advantage of its available resources to ensure the right to health is fully realised in all its aspects.

The Justiciability of ESCRs

The African system has taken a very different approach to the other regional systems concerning the justiciability of ESCRs. The Commission’s conclusion in SERAC v Nigeria [2001] that ‘there is no right in the African Charter that cannot be made effective’ reinforces the indivisibility of rights and offers redress to some of the most pressing issues facing the African region.

Crucially, this approach is one the other regional systems are hesitant to take. For example, while the ESC protects ESCRs across Europe, the rights contained within it are not justiciable before the ECtHR. Instead, it is the European Committee of Social Rights that is tasked with monitoring compliance with the ESC.

Clearly, having a committee offering recommendations is not as effective as having the African Court use its jurisdiction to provide legal redress for violations of ESCRs by issuing of binding decisions which must be followed by the state they are ordered against.

Ultimately, Africa’s strong focus on ESCRs, refusal to adopt the ‘progressive realisation’ approach, and electing to make these rights justiciable is a great contribution to international human rights law. It represents a valuable exploration of how to resolve ESCRs violations through the law, thus enabling international jurisprudence on these rights to develop in the future using the context of concrete cases.

How Regional Systems Create Legal Change

Enforcement is widely considered a major limitation of the international human rights system. At the UN level, protection consists of mechanisms – such as state reports and recommendations delivered by bodies like the Human Rights Committee – that are ineffective. State reports are often submitted late and are, generally, self-congratulatory while, as J.S. Davison notes, many doubt whether the final views of the Human Rights Committee are legally binding.

The enforcement of decisions is easier at the regional level, because recommendations of  regional organisations are typically met with less resistance than those of a global body. After all, they tend to involve fewer compromises and decisions based on considerations of a political nature. Indeed, states are more likely to be receptive to the decisions of a regional body that is closer to them, because they typically consider it to be more legitimate, and appreciate that takes into account local factors that matter to them.

Success Stories in Regional System

There is much evidence to show the effective impact of regional systems at the domestic and international level. For example, Chile complied with the IACtHR's order included in its decision in Olmedo-Bustos v Chile [2001] by amending its constitution to eliminate prior censorship and strengthen the freedom of expression.

Meanwhile, the ECtHR has been so effective at creating legal change that it might be considered something akin to Western Europe’s constitutional court. Indeed, the ECtHR's confirmation in Karner v Austria [2003] that it has the jurisdiction to determine issues on public-policy grounds in the common interest of all ECHR signatory states means that its case law impacts across every state bound by the ECHR, and not just upon those involved with the case at hand.

Some critics of regional systems point to the difficulties experienced by the African system, where states have resisted the decisions of the Commission and the Court. Here, it is argued, the lack of sufficient political will to make changes undermining the impact of its decisions. Nonetheless, the extent to which real concern should be attached to these difficulties is limited. After all, human rights changes are tectonic and do not happen with the blink of an eye; the African system is still in its infancy compared to the ECHR and ACHR.

Furthermore, the decision in Tanganyika Law Society v Tanzania [2011] demonstrates that the African Court is heading in the right direction. Here, it found that Tanzania had violated the African Charter by prohibiting independent candidates from contesting in elections. Importantly, as Reuters has reported, Tanzania complied with the African Court's order to amend its constitution in line with its ruling: an updated constitution that permits independent candidates is due to be voted on by referendum.

Regional Systems Working Together

Regional human rights systems do not just have the power to create legal change in their own regions. The oxymoronic beauty of having a fragmented system is that regional institutions can draw on each other’s jurisprudence to create legal change and demonstrates the immense contribution to international human rights that these systems are.

For example, the African Charter mandates the African Commission to 'draw inspiration from international law on human and peoples’ rights'. A wide interpretation of this has allowed the African Commission to draw upon the jurisprudence of other regional systems: in Endorois v Kenya [2009], it drew upon the IACtHR's decisions in Moiwana v Suriname [2005] and  Saramaka v Suriname [2007]. Crucially, the decisions in Endorois v Kenya [2009] and Saramaka v Suriname [2007] were subsequently applied by the Court of Appeals of Botswana, the Supreme Court of Belize, and the Constitutional Court of Paraguay.

Further, the ECtHR has routinely drawn on the work of the other regional systems when deciding cases: it recently published a report outlining the influence of the IACtHR’s jurisprudence on its own case law. This shows how regional systems have created a global dialogue that has reinforced global standards through transmission of norms and judgments across regional bodies and have ultimately enhanced international human rights law.

Conclusion

Regional bodies have significantly contributed to international human rights and continue to shape and refine international standards. They are all capable of creating legal change in their regions to better protect human rights. Indeed, while no regional system is better at this than the ECtHR, recent cases have shown that the African Court heading in the right direction too. Coupled with a slowly changing political will, its increasing influence can only bring about positive change.

Regional systems facilitate a culture of discourse and debate, and different interpretations are not problematic as they foster different understandings of rights, which is necessary when rights exist on a spectrum and are continuously changing. Those who view the existence of regional systems as threatening the universality of international human rights and as potentially inculcating an ‘us versus them’ dichotomy are therefore wrongly pessimistic.

Ultimately, the vocabulary with which regional systems are discussed is vital. If they are approached with anxiety, then this creates a self-fulfilling prophecy in which regional systems are met with unease and cease to live up to their full potential. However, if discussed with positivity, they can only strengthen international human rights. The international human rights system is still young and regional systems should not be seen as a retrogressive step; rather, they are  sorely needed reinforcements to this adolescent system.

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Tagged: Discrimination, Equality, Human Rights, International Law, Law and Development, Legal Development, Religion

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