1.0 INTRODUCTION
With the adoption of the
Universal Declaration of Human Rights in 1948, regional organisations have
taken the cue to adopt human rights instruments applicable within the
respective regions of the globe. This has been encouraged by the provisions of
article 52 of the United Nations Charter that allows regional initiatives to
facilitate the objects of the Charter. Except for the Asian region, the rest of
the regions of the globe; Africa, Europe and the Americas have designed their
special human rights instruments with elaborate enforcement mechanisms parallel
to the United Nation’s mechanisms. Notable however is the fact that although
regional human rights instruments generally adopted the rights and freedoms
akin to those enumerated in the Universal Declaration of Human Rights, they
devised innovative inclusions (or omissions) that distinguishes each region’s
instrument to the others. The present works seeks to identify these distinctive
features in the three regional instruments; the African Charter on Human and
Peoples’ Rights, The American Convention on Human Rights and the Convention for
the Protection of Human Rights and Fundamental Freedoms.
2.0 The African Charter on Human and
Peoples’ Rights (The African Charter.)
2.1 The African Charter is the primary human rights document
through which human rights is to be protected and promoted in Africa. As
compared to other regional instruments, the African charter is in many respects
unique[1].
The normative structure of the Charter is innovative and substantively departs
from other regional and universal instruments.[2]
2.2 First, the African Charter contains all the three ‘generations’
of human rights: civil and political rights, economic, social and cultural
rights and group and peoples’s right. Articles 3-14 enumerate civil and
political rights, articles 15-18 deal with economic, social and cultural rights
while articles 19-24 enact solidarity rights. The Convention for the Protection
of Human Rights and Fundamental Freedoms (The European Convention on Human
Rights) contains only civil and political rights. Economic, social and cultural
rights are enacted in the European Social Charter (Revised) of 1996 with
different enforcement mechanisms and which by articles A and B thereto, are not
wholly binding to states. The American Convention On Human Rights (The American
Convention) concentrates on civil and political rights but provides a very
general mention of economic, social and cultural rights under article 26 asking
states to effect, through appropriate means, the full realisation of the rights
implicit in the Economic, Social, Educational, Scientific And Cultural Standard
set forth in the Charter of the Organisation Of American States (O.A.S.), but
without mentioning them specifically.
2.3 Second, the African Charter contains detailed provisions of the
duties and responsibilities of individuals under articles 27-29. Every
individual is said to have duties towards his family, society and the state.
These provisions lack in the European Convention on Human Rights. The American
Convention has article 32 saying that every person has responsibilities to his
country, family and mankind and that an individual’s rights are limited by the
rights of others, by security of all and by just demands of the general welfare
in a democratic society. It however does not enumerate these obligations. Thus
it is submitted that the intention of article 32 is to show the correlation
between rights and duties and not to provide specific duties owed by
individuals as does the African Charter.
2.4 Third, the African charter does not have a general derogation
clause which is contained in all other regional and universal human rights
conventions. Article 15 of the European Convention on Human Rights provides for
derogation from human rights in times of public emergencies threatening the
life of the nation but excludes from derogation such rights like right to life
and prohibition of torture and slavery. A similar provision is found in article
27 of the American Convention styled ‘suspension of guarantees’.
2.5 Fourth, the African Charter does not establish a court within
the folds of the document as the rest of other regional instruments do,
instead; a proposed court has been established vide the Protocol To The African
Charter Establishing An African Court On Human And People’s Rights.[3]
The European Convention establishes a European Court on Human Rights under
section II of the convention while the Inter-American Court on Human Rights is
established under section 33.b of the American Convention. In addition the
commission and the court established under the African charter and the protocol
thereto have are empowered to use as sources of law, any other human rights
instruments and decisions of other jurisdictions in addition to the African
charter.[4]
The other documents do not explicitly provide for such wide sources of law
although in practice other laws may be quoted with persuasive effect.
2.6 Fifth, whereas other regional instruments are individual
centred, the African Charter is group based. It seeks to reconcile the rights
of the individual with that of larger community and the state. It venerates the
African culture.[5] The
charter suggests that human rights are to be enforced in Africa within a
defined context shaped by ‘historical tradition and the values of African
civilisation.’ Other documents do not have similar provision exulting culture
and generally refer to universal tenets of human rights as enunciated in the
United Nations Universal Declaration of Human Rights.
Finally, the African charter has
‘claw back’ clauses that permit states to restrict basic human rights to the
maximum extent allowed by municipal law. For instance, article 6 provides that
every individual shall have right to liberty and no one may be deprived of his
freedom ‘except for reasons and conditions previously laid down by law’.
Article 10 provides for right to free association ‘provided that he abides by
the law’. Similarly, article 12 provides that everyone has freedom of movement
and residence ‘provided he abides by law.’ the European Convention On Human Rights
and the American Convention enumerate specific instances where certain
violations of recognised rights may be deemed justifiable but qualified by such
phrases like ‘…as are necessary in a democratic society.’ For example, article
10.2 of the European Convention on Human Rights provides that;
‘…the exercise of these freedom, since it carries with
it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as prescribed by law and are necessary in a democratic
society in the interest of national security, territorial integrity and public
safety…’
3.0 The Convention for the Protection of
Human Rights and Fundamental Freedoms (The European Convention on Human Rights)
It is implemented under the
umbrella of the Council of Europe, a political organisation of European states
that seeks inter alia to promote
respect for human rights.[6]
The European Convention on Human Rights has distinct features as follows:
3.1 First, the Convention as amended by Protocol Number 11[7]
Establishes a European Court of Human Rights as the only principal enforcement
body of human rights under the convention. Unlike other regional instruments,
it does away with a Commission, which is merged into the European Court The
African Charter creates the Commission On Human and Peoples’ Rights while the
American convention creates an equivalent Inter-American Commission on Human
Rights, which are the key monitoring and enforcing organs under the respective
instruments.
3.2 Second, the European convention on human rights establishes a
court whose members hold office at a full time basis. Article 15 of the
Protocol to the African Charter Establishing the African Court on Human and
Peoples’ Rights provides that all judges, save for the president, is to hold
office on part time basis only. The Inter-American Court on Human Rights
likewise operates on a part time basis.[8]
3.3. Third, whereas the European Court on Human rights can
automatically receive individual applications directly under article 34 of the
European Convention, the same is not true of other regional courts. The
Protocol to African Charter Establishing the African Court, under article 3
provides that only the Commission On Human And Peoples’ Rights, state parties
and African Inter-Governmental Organisations have a right to access the court
directly. Individuals and Non-Governmental Organisations with observer status
to before the Commission can submit their applications directly to the court
only if a state has under article 34(4) acceded to the competence of the court
to receive such applications. Under the American Convention, only the
Inter-American Commission has power to refer matters to the Inter-American
court under article 51.
3.4 Fourth, unlike other regional and universal human rights
instruments, the European Convention on Human Rights creates a three level
court comprising of Committees of three judges, Chambers of seven judges and a
Grand Chamber of seventeen. The most unique feature is that the Grand Chamber
acts as an appellate court where matters raising exceptional and serious
questions affecting the interpretation or application of the Convention may be
referred to it (article 43) and its decision is final. This is an innovative
development absent in other instruments.
3.5 Fifth, the European
Convention is the only human rights instrument providing for reservations and
denunciation of the Convention by virtue of articles 57 and 58 respectively.
Other instruments lack suck provisions, ostensibly implying that once a state is
a party, it remains so.
4.0 The American Convention on Human
Rights (The American Convention)
4.1 The American Convention was created under the aegis of the
Organisation of American States (O.A.S.). The first distinctive feature of the
American Convention is that it creates under articles 34 and 35, an
Inter-American Commission on Human Rights which has jurisdiction in respect of
all members of the O.A.S. and not just those that have ratified the Convention.[9]
Similar commissions established under other instruments have jurisdiction only
on state parties to the human rights instrument establishing them and which is
not dependant on membership of the forum in which it was negotiated.
4.2 Secondly, and related to the first distinction, even though the
American convention is made under the umbrella of the O.A.S., members of the
O.A.S. are not necessarily bound by the Convention until they ratify or accede
to it. Conversely, other regional human rights instruments bind all members of
the grouping under which the document was negotiated. Paragraph 2 of the
preamble to the Africa Charter states that all members of the then Organisation
of African Unity are all parties to the charter. Similarly, paragraph 1 of he
preamble to the European Convention on Human Rights states that the signatory
Governments to the Convention are members of the Council of Europe. Membership
to the either the Organisation of Africa Unity or the Council of Europe is
automatic acceptance of obligations under the respective human rights instruments.
4.3 Third, unlike other regional instrument, the American
Convention has no counter part to the supervisory role of the Committee of
Ministers of the Council of Europe under the European Convention or the Council
of Ministers referred to in article 27 of the Protocol to the African Charter
Establishing the African Court.
4.4 Fourth, the American convention is neither the sole nor the
primary human rights instrument in the American system. The rights and freedoms
protected under the system and which are enforceable by the inter-american
commission include those enumerated in the American declaration of the rights
an duties of man. O.a.s. handbook of existing rules pertaining to human rights
1980. the declaration applies indirectly
by virtue of obligations under the oas charter which incorporates the
declaration. (harris david pg 4. thus the declaration and not the convention,
is the primary human rights instrument and supplements the convention by
protecting rights not found in the convention especially economic social and cultural rights. Follwing the
advisory opinion no. 10, A/A court H.R. series, A No. 10 paragraph 85 (1989) 11
H.R.I.J 118, where the interamerican court ruled that ‘the declaration is the
text that defines the human rights referred in the (O.A.S.) charter.
Fifth, the American convention
does not provide for the right of individual access to the inter-american court
or access by such bodies like non-governmental organisations. Only the
commission is empowered to refer matters to the court. Other regional
instruments give individual access to the courts established either
automatically (as in the case of the European convention pursuant to article
34) or following a specific declaration by a states recognising the competence
of the court to receive and consider direct individual applications (as is the
case under the African system following provisions of article 34(4) of the
protocol the African charter establishing the African court.)
[1] Malcolm D Evans and Murray Rachel (eds); The African Charter On Human And
Poeples’ Rights; The System In Practice 1986-2000, Cambridge University
Press, Oxford, Introduction.
[2] Makau Mutua; the
African Human Rights System; a Critical Evaluation at
<http://www//hdr.undp.org/docs/publications/background_papers/MUTUA.P.D.F.> accessed on 19th June 2006.
[3] Of 9th June 1998, O.A.U. DOC, OAU/LEG/EXP/AFCHPR/PROT
(III).
[5] Paragraphs 5-8 of the preamble to the African Charter and article
29.7.
[6] Shaw M.N. (1997); International
Law; Grotious Publications Ltd. Cambridge 4th Ed. Pg 253.
[7] (ETS NO. 155 entered into
force on 1st November, 1998).
[8] See Harris David; Regional
Protection of Human Rights; the Inter-American Achievement, In David Harris
and Livingstone Stephen (Eds) the
Inter-American System of Human Rights (1998) Clarendon Press, Oxford, Pg 3.
[9] Shaw M.N (1986) International
Law, Grotious Publications Ltd, 2nd Ed. Cambridge pg 202.
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