Regional Conventions on Human Rights

By | June 17, 2018
Regional Conventions on Human Rights -

Each region has its own systems of human rights conventions. The Americas, Europe, Asia, and Africa have all established regional conventions.

INTRODUCTION

Human rights are the most basic rights that are awarded to all humans, regardless of their sex, race, ethnicity, nationality, or religion. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination. International Human Rights lays down the obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

The basis for International Human Rights is the Universal Declaration of Human Rights, which was adopted by the United Nations in 1948. Post this, the UN has significantly expanded upon its purview of Human Rights by including specific standards for women, children, ethnic minorities, and other groups that have a tendency to be discriminated by society.

The Universal Declaration of Human Rights (UDHR) was adopted in December 1948 at the United Nations General Assembly. It is a document that states an individual’s basic rights such as a right to liberty. It is a common standard of human rights in International law and lays down the fundamental human rights of a person that is to be protected universally.

REGIONAL ARRANGEMENTS ON HUMAN RIGHTS

Each region has its own systems of human rights conventions. The Americas, Europe, Asia, and Africa have all established regional conventions. These conventions are the localised versions of international human rights so that they cater towards the needs of the territory as required.

The Vienna Conference on Human Rights in 1993 stated “that regional arrangements play a fundamental role in promoting and protecting human rights and should reinforce universal human rights standards, as contained in international human rights instruments, and their protection, Recalling that the World Conference on Human Rights reiterated the need to consider the possibility of establishing regional and subregional arrangements for the promotion and protection of human rights where they do not already exist..

Unfortunately, the establishment of agencies to implement human rights has been very slow. Only three main regional agencies exists for the protection of human rights and they are, European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human Rights and People’s Rights. Adding to this, there is an Arab Commission on Human Rights that has been set up to promote (and not protect) Human Rights in the Arab States.

The mechanisms that have been implemented in Europe, America, Africa and Asia have been explained below.

EUROPEAN CONVENTION ON HUMAN RIGHTS

The structure that has been implemented for Europe’s human rights system is extremely comprehensive. The Council of Europe created the Congress of Europe which had members who were like-minded and had a common heritage of political tradition, ideas and freedom and the rule of law. They argued that to achieve European unity, maintenance and promotion was an important means of doing so. This began with the introduction of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) followed by the European Social Charter and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The ECHR came into force on September 3, 1953. It is the regional counterpart of the International Covenant on Civil and Political Rights and is comparable to the American Convention on Human Rights and the African Charter on Human and Peoples Rights. The ECHR consists of 15 protocols. These protocols either help to amend the articles or to expand or add rights to the Convention. They are –

  1. Protocol No. 1 added 4 new articles that provide rights and freedoms such as the right to free elections, and right to education and the right to peaceful enjoyment of one’s possessions.
  2. Protocol No. 2 provided that the Court of Human Rights may give the advisory opinion on legal matters at the request of Council of Ministers in questions related to the interpretation of the Convention and the protocols.
  3. Protocol No. 3 amended Articles 29, 30 and 34 and abolished the system of Sub-Commission.
  4. Protocol No. 4 secures the freedom from imprisonment of debts, from expulsion and the right to enter own country and the prohibition of collective expulsion of aliens and the choice of residence and liberty of movement.
  5. Protocol No. 5 mad certain procedural changes regarding the election of members of the Commission and the Court.
  6. Protocol No. 6 restricts the usage of death penalty to only times of war or if there is an imminent threat of war. All European Council members have signed and ratified this, with the exception of Russia that has only signed and not ratified.
  7. Protocol No. 7 provides a right to review convictions given by higher tribunals. Germany and Netherlands have signed but not ratified it. Turkey signed but ratified only in 2016, and the United Kingdom has neither signed nor ratified it.
  8. Protocol No. 8 states the Commission may setup Chambers or Committees.
  9. Protocol No. 9 allows individual applications to refer cases to Court in certain circumstances.
  10. Protocol No. 10 removed the word ‘two-thirds’ from the first paragraph of Article 32
  11. Protocol No. 11 revamped the control machinery that was established by the Convention to maintain and improve the efficiency of its protection of human rights. It overrules 2, 3, 5, 8, 9 and 10 as it abolished the Commission and gives access to individuals to directly approach the court.
  12. Protocol No. 12 allows the exercise of any legal right against authorities on the grounds of discrimination. It has not been signed or ratified by several members of the European Council
  13. Protocol No. 13 provides for the complete and entire abolition of the death penalty. Only Russia and Azerbaijan have not signed and ratified it while Armenia has signed but not ratified it.
  14. Protocol No. 14 is a continuation to Protocol 11 and aims at filtering out cases that have less chances of succeeding.
  15. Protocol No. 15 introduces a reference to the principle of subsidiarity and the doctrine of the margin of appreciation. It also reduces from six to four months the time-limit within which an application may be made to the Court following the date of a final domestic decision.

A Protocol 16 is slated to be introduced in the August of 2018 and introduces a reference to the principle of subsidiarity and the doctrine of the margin of appreciation. It also reduces from six to four months the time-limit within which an application may be made to the Court following the date of a final domestic decision.

Some Rights and Freedoms that are contained within Section 1 of the Convention are the Right to Life, Right to Liberty, Freedom from torture or inhuman or degrading treatment or punishment, freedom from slavery or servitude, right to fair and public hearing and so on.

National Law should not violate the rights that are protected in the Conventions as it may lead to international liability. Hence, many European countries have incorporated the Convention into their national law or Constitution. For example, the United Kingdom has enacted the Human Rights Act of 1998.

Protocol No. 11 “restructured the control machinery” and thereby created a new European Court. It took a full year for this protool to be implemented and in that period judges were appointed and meetings were held to take the necessary organisational and procedural measures for the establishment of this court. This new court was known as the European Court of Human Rights and came into the establishment on November 1, 1998. The European Court of Human Rights, which is located in Strasbourg, has jurisdiction over Council of Europe member States that have opted to accept the Court’s optional jurisdiction. The Court had the jurisdiction to decide cases brought in by individuals or high contracting parties. The Court may also receive applications from individuals for any violation of Human Rights. It is also in the power of the court to reject any application that it deems inadmissible under the Convention. It should be noted that the judgment of the court is final. Once a state has done so, all Court decisions regarding it are binding. The judgments should contain reasons as to why it was the judgment pronounced in that manner. The final judgment is given to the Committee of Ministers which supervises its execution.

EUROPEAN SOCIAL CHARTER

The European Social Charter is a multilateral treaty that was signed in Turin on October 18, 1961. It was adopted by the European Council to develop and protect the social and economic right and achieve European unity. All but six of the 46 member states are parties to Charter. In 1996, a revised a Social Charter was introduced ad that brought the charter upto date and added some new rights and has progressively replaced the original Charter.

It consists of a number of social and political rights such as –

  1. All workers have right to just conditions of work
  2. Right of workers to equal treatment and non-discrimination on the grounds of sex.
  3. All workers have the right to safe and healthy working conditions
  4. Everyone has the right to appropriate facilities for vocational training
  5. Everyone has the right to benefit from social welfare service
  6. Anyone without adequate resources has the right to social and medical assistance,

These rights are not binding upon the Contracting Parties, but they have accepted that these rights only as the aim of their policy, to be pursued by all appropriate means, both national and international in character. These rights are ‘target’ duties of states.

AMERICAN CONVENTION ON HUMAN RIGHTS

The Organisation of American States (OAS) Charter gives a basic list of rights and duties as they apply to all 35 members States. This is one of the two sources of the Inter-American Human Rights System. The other is based on the American Convention of Human Rights. Although the OAS Charter mentions human rights, it does not define nor provide a list of those rights.

The Ninth International Conference of American States proclaimed the American Declaration of the Rights and Duties of Man on May 2, 1948. The Preamble asserts that the “international protection of the rights of man should be the principal guide of an evolving American law.” This Declaration proclaims civil and political as well as economic, social and cultural rights and contains a list of duties. The American Convention was adopted in the Inter-American Specialized Conference was held in Costa Rica in November 1969.

This Convention has given a list of several Civil as well as Political Rights to all people residing in the States, subject to jurisdiction. Some rights are –

  1. Right to fair trial
  2. Right to Judicial personality
  3. Right to privacy
  4. Right to human treatment
  5. Freedom from Slavery and involuntary servitude.
  6. Right to personal freedom
  7. Freedom from Ex post facto laws
  8. Freedom of movement and residence

The States parties to the Convention undertake to respect the above rights and freedoms and ensure that all persons subject to their jurisdiction have full access to them without any discrimination on the grounds of sex, religion, race, ethnicity and so on. These rights may be suspended during periods of war or at any time where war is imminent. States may deviate from their obligations to uphold these rights, provided that the measures undertaken by them are not discriminatory in nature. Despite this, there are several rights that cannot be suspended no matter the situation such as the right to judicial personality, Freedom from Ex post facto laws, Freedom from Slavery and involuntary servitude.

In 1988, the American Convention was expanded to include Social, Economic and Cultural Rights. This was an Additional Protocol and is also popularly known as the Protocol of San Salvador. Some rights are –

  1. Right to Food
  2. Right to Health
  3. Right to Work
  4. Right to Education
  5. Trade Union Rights
  6. Right to Social Security

Inter American Commission on Human Rights – This Commission was created in 1959 with seven members who are required to be members with high moral character and possess experience in the field of human rights. They are elected by the members of the OAS from list of candidates recommended by the member states. The main aim of the commission is to promote respect for Human Rights. It tries to develop awareness of human rights among the people of America The Commission is authorised to receive petitions on the violation of human rights by any parties or States.

Inter American Court of Human Rights – This Court consists of seven judges. They are nationals of the member States of the OAS. These judges are elected through their individual capacity, for highest moral authority and for exercising competence in the human rights field. Judges are elected for a term period of 6 years, and they may be re elected for one more term. The judgement given by the court is final and it cannot be appealed.

AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS

The African Conference on the Rule of Law in 1961 sparked the basis to form a regional agency for the protection and promotion of Human Rights in Africa. The African Charter or the Banjul Charter is the main human rights instrument and was introduced in 1981. It came into force in 1986. All 53 member states of the Organisation Of African Unity (OAU) ratified this Charter. The Constitutive Act of the African Union (AU) replaced the OAU in July 2002. The African Charter is rather unique in comparison to to the others as it provides for ‘people’s rights’. These reflect the African social traditions of collective and group life. The individual is not considered as independent to society, but subordinate to the group. These groups have rights and the individuals have duties. Some human and people rights are –

  1. Equality before law
  2. Right to liberty and security
  3. Right to respect for life and integrity of person
  4. Right to Equality
  5. Right to Existence
  6. Right to Property
  7. Right to Free Existence
  8. Right to Education

The above rights signifies that the African Charter gives social, economical and cultural rights along with civil and political rights. It does give the s social, economical and cultural rights in a separate convention like the Europe and American counterparts. Some duties that have been provided for individuals to follow as mentioned in the African Charter are –

  1. Duty towards family and society
  2. Duty to preserve and protect national and social security
  3. Duty to serve his national community
  4. Duty not to compromise the Security of the State

AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS

The African Charter creates a commission that promote human and people’s right and ensure their protection in Africa. The Commission consists of 11 members amongst African personalities known for their high morality, integrity and competence. They should have also extensive experience in the human rights field. The functions of this Commission are mentioned under Article 45. Some of them are –

  1. The Commission shall ensure the protection of human and people rights.
  2. The Commission shall interpret any and all provisions of the Charter at the request of a State Party.

An implementation machinery is mentioned under Article 67 which states that if a State Party has reasons to believe that another State has violated any provision of the Charter, they may draw attention to this matter by communicated to the Chairman of AU. All measures taken by the Commission shall remain strictly confidential until the time the Government or Assembly of States decides so. The report on activities done by the Commission shall be published by the Chairman after it has been considered by the Government or Assembly of States. The Commission draws inspiration from various international laws on human rights especially from the African Instruments on Human and Peoples Rights, the UDHR, and other instruments adopted by the UN.

AFRICAN COURT OF HUMAN AND PEOPLES RIGHTS

The process for creation of this Court was started with the OAU. The Court consists of 11 judges who get a six-year term. These judges are elected through their high moral capacity and their expertise in the field of human rights. They should also have good judicial and academic experience. They are considered as representatives of States. The Court possesses the jurisdiction to act in both advisory and judicatory capacity. Judicatory capacity is fundamental. The African Commission for Human Rights, as well as State Parties, may file cases with this court. It may act in an advisory manner as per Article 4 in any legal matter that requires the interpretation of the Charter or any other Human Rights document. The judgment given by the Court is final and binding and is not subject to appeal. The Court may, however, review and interpret its own decisions.

ARAB COMMISSION ON HUMAN RIGHTS

The League of Arab States was founded in March 1945 and they decided to establish a Regional human rights agency after a conference in Tehran in 1968. The Arab Commission on Human Rights consisted of all members of the League of Arab States. Each member is represented in the Commission. A Chairman is appointed for a period of 2 years and he may be reappointed. The permanent seat of the Commission is located in Cairo. Some functions include submitting draft agreements on Human Rights. It established a National Commission for Human Rights in member states to receive reports on their activities for the protection of human rights. The Commission makes an annual report of its activities and communicates them to the United Nations Human Rights Commission. As of now, there has been no establishment of an Arab Convention on Human Rights. Even though an effort was made to create such convention on the basis of Islam, no such result has yet emerged.

Nirupama V Shankar

(The Tamilnadu Dr. Ambedkar Law University)

REFERENCES

Webliography

  1. http://www.un.org/en/sections/issues-depth/human-rights/
  2. https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c

Bibliography

  1. Haas, Michael., International Human Rights: A Comprehensive Introduction, 2008
  2. Sanajaoba, Prof. N., International Human Rights, 2005
  3. de Schutter, Olivier., International Human Rights Law, 2014
  4. Warbrick, Harris, O’Boyle., Law of the European Convention of Human Rights, 2009
  5. Shelton, Dinah L., Regional Protection of Human Rights, 2008
  6. Agarwal, Dr. H.O., International Law & Human Rights, 2009

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