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A schematic comparison of regional human rights systems11. First published in the African Human Rights Law Journal, vol. 5, pp. 308-320, 2005.

Christof Heyns, David Padilla and Leo Zwaak

An update

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ABSTRACT

There are three regional systems for the protection of human rights, namely: the African, the Inter-American and the European systems. This contribution provides a comparative overview of their salient features and focuses on key procedural and institutional aspects of these systems.

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As is well known, human rights can be protected by law on the domestic or the international level. International human rights law, for its part, has different layers, including the global system, in which the United Nations (UN) is the main player, and which is potentially applicable in one form or another to every person in the world; and the regional systems which cover three parts of the world – Africa, the Americas and Europe. If one’s rights are not protected on the domestic level, the international system comes into play, and protection can be provided by the global or the regional system (in those parts of the world where there are such systems).

All three regional human rights systems mentioned above form part of regional integration systems with a much broader mandate than just human rights – in the case of Africa, the parent organization is the African Union (AU); in the Americas it is the Organization of American States (OAS); and in Europe it is the Council of Europe (CoE). Other parts of the world also have regional integration bodies, but without a similar human rights mandate.

Although there were initially questions, especially from the UN perspective with its emphasis on universality, about the wisdom of some regions having their own human rights systems, the benefits of having such systems are widely accepted today. Countries from a particular region often have a shared interest in the protection of human rights in that part of the world, and the advantage of proximity in terms of influencing each other’s behavior and ensuring compliance with common standards which the global system does not have.

Regional systems also allow for the possibility of regional values to be taken into account when human rights norms are defined – obviously at the risk, if this goes too far, of compromising the idea of the universality of human rights. The existence of regional human rights systems allows for enforcement mechanisms which can resonate better with local conditions than a global, universal system of enforcement. A more judicial approach to enforcement may be appropriate in one region, as in Europe, for example, while an approach which also allows room for non-judicial mechanisms such as commissions and peer review may be more appropriate in a region such as Africa. The global system does not have such flexibility.

The treaties that create the regional human rights systems follow the same format. They set out certain norms – individual rights, mostly, but in some cases also duties and peoples’ rights – as binding on states that have joined the system, and then create a monitoring system to ensure compliance with these norms also by states that have joined the system. The classical format of such a monitoring system was set by the European Convention on Human Rights of 1950. In terms of this system once someone has pursued all avenues to have their rights vindicated by the legal system of the country where they find themselves, they can approach a human rights commission created by the regional system. The commission will give the state an opportunity to respond, and then decide whether there has been a violation. This decision does not, however, by itself carry the force of law. To obtain such a result, the case has to proceed to the regional human rights court, where legally binding decisions are issued on whether a state party has violated the treaty.

Since this pattern was set, the Europeans have, by means of a 1998 Protocol, abolished their Commission and left supervision in the hands of the European Court of Human Rights. The Inter-American system continues to function on the basis of a Commission as well as a Court. The African system initially had only a Commission, but the decision to supplement the Commission with an African Human Rights Court was taken by means of a Protocol in 1998.

The three regional human rights systems in operation today share many characteristics, but there are also differences. The schematic exposition provided here gives an overview of how some of the most important aspects of these systems may be compared to one another, focusing on the way in which the enforcement mechanisms are constituted and operate, and the procedures followed.1 Except where otherwise indicated, it sets out the situation in respect of the African, the Inter-American and the European systems as it was at the end of 2005. The usual order in which these systems are presented is reversed, to emphasize that none of these systems necessarily sets the norm.

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Notes

1. This is an updated version of C. Heyns, W. Strasser & D. Padilla, ”A schematic comparison of regional human rights systems”, African Human Rights Law Journal, v. 3, 2003, p.76.. We would like to pay tribute to Wolfgang Strasser who recently passed away.

Christof Heyns

Director and Professor of Human Rights Law, Centre for Human Rights, University of Pretoria. Responsible for the framework, compiling the information and for the part on the African system. The assistance of Magnus Killander and Yonas Gebreselassie is gratefully acknowledged.

David Padilla

Former Assistant Executive Secretary of the Inter-American Commission on Human Rights and Fulbright Professor, Centre for Human Rights, University of Pretoria. Responsible for the information on the Inter-American system. The assistance of Lilly Ching is gratefully acknowledged.

Leo Zwaak

Senior researcher and senior lecturer at Utrecht University and the Netherlands Institute of Human Rights (SIM). Responsible for the information on the European system. The assistance of Desislava Stoitchkova is gratefully acknowledged.