Regional Human Rights Systems

Volume V

Christina M. Cerna

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138384026
• eBook ISBN: 9781351905534
• Topic: Law
• Subtopic: International Law
• Index: Law

Over the past sixty years the regional human rights systems have surpassed the UN human rights bodies in affording protection to the victims of human rights violations. Most of these systems have courts that are empowered to issue legally binding judgments and reparations for violations of human rights, which states have been unwilling to accord the UN system. The essays selected for this volume examine the structure and functioning of the principal regional human rights systems in the world today: 1) the Inter-American Commission and Court of Human Rights, 2) the European Court of Human Rights, 3) the African Commission and Court of Human and Peoples' Rights and 4) the ASEAN Intergovernmental Human Rights Commission. These systems guarantee primarily civil and political rights. Central to all four systems is the necessity of a democratic form of government to guarantee these rights, although not all governments, parties to these regional treaties, are democracies. These articles trace the history of these systems, in particular, the expansion of their membership to include almost all independent countries in the region, and their evolution towards recognition of a 'right to democracy'.

Part I

Overview

[1]

Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?

Peter Leuprecht^*

I.	The European System of Human Rights Protection
II.	Innovations in the European Human Rights System
III.	The Council of Europe’s Enlargement: Opportunities and Threats
IV.	Conclusion

I. THE EUROPEAN SYSTEM OF HUMAN RIGHTS PROTECTION

Although various organizations and institutions including the European Community (or European Union) and the Organization for Security and Cooperation in Europe (OSCE) nowadays deal with human rights at the European level, what is commonly referred to as the European system of human rights protection is still the system created within, and operated by, the Council of Europe.

The Council, founded in 1949, was the first European organization to be established after World War II. Its philosophical and political roots go back to the fight and resistance against Nazism and Fascism; the horrors and crimes they had brought about should not be allowed to recur. “Never again” was the motto of the pioneers of post-war European unification and of the founding fathers of the Council of Europe. They were determined to build a new, united Europe on solid foundations, on a set of strong shared values and principles, those of pluralist democracy, the rule of law, and human rights, and the Council of Europe was to be the incarnation and the guardian of these fundamental and interconnected values and principles. Under its founding treaty, signed in London on May 5, 1949, respect for, and compliance with, these values and principles was to be both the chief condition for admission of a country to the Council and the main and lasting obligation of all its members.¹

Over the years, the Council of Europe has set up a system of human rights protection which, in spite of certain weaknesses and shortcomings, can be regarded as the most advanced international human rights structure in the world today. Post-war Europe has gone particularly far in the internationalization of human rights. This worldwide phenomenon, inaugurated by the 1948 Universal Declaration of Human Rights², owes a great deal to Europe—not to Europe’s virtue, but to its past failure and responsibility, to the monstrous crimes of which it was the theater under totalitarian, Nazi and Fascist regimes, to this explosion of barbarism at the very heart of the European continent, which believed itself so civilized. Bitter experience impressed upon Europeans that the state can fail in its role as the custodian of human rights and become an instrument of oppression, that it can be not only the protector, but also the gravedigger of human rights. In the interest of the defense of these rights, it was felt necessary to give independent international bodies a watching brief over state behavior.

A. The European Convention on Human Rights

The first expression of the new Europe’s commitment to the international protection of human rights was the European Convention on Human Rights (ECHR)³, signed in Rome on November 4, 1950. For the then twelve signatory governments⁴, it represented “the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.”⁵ The ECHR was indeed the first international treaty to translate principles proclaimed in the Universal Declaration into legally binding obligations.

The ECHR, though a regional treaty, is firmly based on the principle of the universality of human rights; it does not guarantee the rights of Europeans, but sets up a European regional system for the protection of universal human rights. In accordance with Article 1, “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” enshrined in the Convention. It is significant that a considerable number of individual complaints emanate from persons who are not nationals of the contracting states and who seek, often successfully, the protection of the ECHR and its control machinery.⁶

The wording of the Preamble to the ECHR shows, however, that the ECHR was not seen by its authors to be the last word in the field of human rights protection; a kind of final codification of those rights. The ECHR’s catalogue of rights is an open one which, over the years, has been enriched by several additional protocols.⁷ In this area, the Council of Europe’s approach has been, and must remain, dynamic, in line with Article 1 of its Statute, which refers to the “maintenance and further realization of human rights and fundamental freedoms.”⁸

The ECHR guarantees mainly, but not exclusively, civil and political rights. In its famous Airey judgment, the European Court of Human Rights stated that there is no “watertight division” separating Convention rights from economic and social rights.⁹

The importance of the ECHR lies not only in the breadth of the rights it covers, but also, and particularly, in the supranational control machinery it has set up to investigate and remedy alleged violations and ensure compliance with the obligations it imposes. It has been kept under constant review, with the aim of enhancing the protection it affords, by improving the existing procedures.

The Convention and its machinery are, of course, not designed to take the place of national systems for the protection of human rights. Their purpose is, rather, to provide a subsidiary international guarantee, supplementing the right of redress in individual states. Since the ECHR has been incorporated in the domestic law of nearly all of its contracting states, any person can, in principle, invoke its provisions directly in applying or appealing to a national court or authority in any of those states.

In the over forty years since 1953 when it came into force, the ECHR has, in spite of certain weaknesses, matured into probably the strongest and most effective human rights treaty there is today. For many years, much of its effectiveness stemmed from the political determination of its states parties, their relative homogeneity and their common system of values.

The main criterion for measuring the success of a human rights system is whether it effectively helps the people. The ECHR system has certainly done so. It has made it possible not only to put a great number of individual situations straight, but to remedy general situations, laws, and practices which were not in line with the requirements of the Convention. It prevents and remedies human rights violations. It is also revealing to see who turns to the Strasbourg institutions; many of the applicants are poor, destitute, exposed, and vulnerable, and therefore in greatest need of protection of their fundamental rights. The ECHR system is not a luxury for rich people. There are no economic or financial obstacles to access to the Strasbourg bodies; a system of legal aid is provided by the budget of the Council of Europe.

As the European Commission and Court of Human Rights have stated in no uncertain terms, the ECHR has become a constitutional instrument of European public order.¹⁰ In the words of its late President, Rolv Ryssdall, the Court has become “a quasi-constitutional court for the whole of Europe.”¹¹ The Strasbourg case law has had far-reaching and highly positive effects on the legal systems and the social reality in the contracting states. Both the Court and the Commission command a high degree of authority. Although it is in the first place the duty of domestic courts and authorities to apply the ECHR, the Commission and Court have become “‘masters’ of their treaty”¹² and are recognized as such. A fruitful dialogue has developed between the Strasbourg institutions and domestic courts whose respective case law mutually support and enrich each other.

Still, though the ECHR “has developed into a regional human rights protection system of unparalleled effectiveness,”¹³ there is no room for self-satisfaction or self-congratulation which, together with incantation, hamper rather than advance the cause of human rights. The weaknesses of the ECHR system must not be overlooked. The coming into force of Protocol No. 11 will eliminate two of the most glaring weaknesses—the present length and complexity of proceedings and the insufficiently independent and judicial character of the system.¹⁴ Other weaknesses will not only remain, but may be aggravated, and have an increasingly debilitating effect in the new political environment in which the system will have to operate in the years to come. Four of these may be mentioned:

1) The Convention system seems relatively powerless to address and remedy serious and systematic violations of human rights, a defect which is in striking contrast to the, at times, almost minute attention the Convention bodies devote to comparatively minor matters or “legal niceties.” This may be seen as part of a wider phenomenon: the inability of international human rights bodies to react speedily and effectively to urgent situations and to gross, systematic human rights violations, including torture, disappearances, summary executions, and arbitrary arrests on a large scale.

2) The Convention bodies do not, unfortunately, have the power to order binding interim measures to the states parties.¹⁵

3) It is comparatively easy for the state parties to derogate from the Convention under Article 15 (in time of war or other public emergency) and to maintain these derogations for lengthy periods, until the Convention bodies may have a chance to decide whether they are compatible with the Convention’s requirements.

4) The scope of the rights protected is not the same in all the state parties. This is due, first, to the fact that the protocols guaranteeing additional rights are far from having been ratified by all parties to the Convention and, second, to the large number of reservations made by the contracting states.

These shortcomings weaken the “collective enforcement” of human rights called for in the Preamble to the Convention.

B. The European Social Charter

The founders of the Council of Europe had a comprehensive vision of human rights, including both civil and political, and economic, social, and cultural rights. The Council and its member states profess the indivisibility of human rights together with the principle of universality, both of which were strongly reaffirmed by the Vienna Summit Meeting of the Heads of State and Government of Council of Europe member states in October 1993.¹⁶ The truth is, however, that economic, social and cultural rights do not enjoy a similar degree of protection at the European level as civil and political rights. The European Social Charter¹⁷ was not concluded and signed until 1961. It was intended as the ECHR’s counterpart; in many respects, however, it actually has been, and still is, its poor relation. In spite of some positive developments in recent years, it must still be said that, to borrow the words of one of the fathers of the ECHR, Pierre-Henri Teitgen, Europe has made far less progress towards “social democracy” than towards “political democracy.”¹⁸

II. INNOVATIONS IN THE EUROPEAN HUMAN RIGHTS SYSTEM

In the last fifteen years, a considerable number of innovations have been introduced into the European human rights system. Some of these predate the enlargement of the Council of Europe towards the East, made possible by the collapse of the communist regimes in Central and Eastern Europe. Some have been made even more necessary and urgent or have been provoked or stimulated by this enlargement.

A. The European Convention on Human Rights

Quite spectacular developments have taken place with regard to the ECHR. There has been a considerable effort to extend the scope of rights protected. Protocol No. 6 concerning the abolition of the death penalty¹⁹ was adopted and signed in 1983; this treaty of fundamental importance reflects the evolution of European thinking away from capital punishment.²⁰ Protocol No. 7,²¹ adopted and signed in 1984, guarantees some additional rights; the basic idea was to catch up with...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Bibliography
• PART I OVERVIEW
• PART II THE INTER-AMERICAN SYSTEM
• PART III THE EUROPEAN SYSTEM
• PART IV THE AFRICAN SYSTEM
• Name Index