Human Rights Systems Issues - Essay Example

Human Rights Systems Introduction Human rights realization and enjoyment is dependent on implementation structures. Human rights are universal1 (Donnelly, 1989, p. 140-141). This means that they are crosscutting and go beyond boundaries. For this reason, there have been several efforts to create cooperation in protection of such rights. It is against this backdrop that regional human rights systems have emerged. Regional human rights systems foster greater cooperation between nations. Regional human rights systems offer a legal framework for the implementation of the protection and the realization of human rights. They are the precursors of normative frameworks. They form the minimum standards that a member state has to adhere to while enacting their municipal law must conform to these standards. This means that in any case a country seeks to enact a municipal dealing with a matter that is covered under any human right system, then that country needs to use the standard set in that particular human right system as the benchmark. There are three main human rights systems in the world; the European Human Right System, the Americas Human Rights system and the African Human right system. For the purposes of this paper, the comparison shall be focused on the European and the African Human Rights system. The choice of the two is influenced by the fact that the European Human Right system was the first to develop while the African human right system is the last to develop. Another motivation for choosing these two systems is derived from the fact one is established in the developed region while the other is developed in a developing region. Despite the existence of the African Human rights system there is still a high level of human rights violation. It is important to note that each of these human rights systems developed out of influences and forces unique to the nations involved. These systems developed at different times and were triggered by different reasons. It is also imperative to note that each of these three systems has specific and tailor -made solutions and means to ensure that the specific rights of a certain group of people is catered for. The matters that led to the development of the European Human Right system were influenced by the World War II. On the other hand, the African Human Right system was triggered by other factors the main one being colonialism. Robertson (1982) propounds that the belief by the European nations that in order to secure democracy human rights had to be respected. The East Europe as well as the Western Europe needed to come up with a uniform set of codes that would protect human rights, facilitate democracy and eventually bring stability in the region.2 The African Human right system was developed out of the need of the African countries to find a means of dealing with the issues that were affecting them. These issues included safeguarding of their independence, territorial integrity and establishment of good governance (Moravcsik, 2000).3 Mutua (1993) also points out that it is imperative to note that the concept of protection of human rights in the African context covered both the individual as well as the community.4 There is also need to develop accountability transparency in the governance of African nations. Lack of these principles has opened doors for corruption and consequently a gross violation of human rights. The African human right system therefore seeks to fortify good governance from vices that allow corruption to infest the institution which are expected to be the custodians of human rights. The systems are nothing without instruments that aim to offer the framework for the functioning. The frameworks are often supported and supplemented by legal frameworks as well as institutional frameworks. As part of the essay, this paper shall delve into how these instruments actually form a formidable means of ensuring that the target, achieving human rights enjoyment is actualized. The instruments are the machinery through which the implementation of these frameworks is made possible. The instruments governing the European Human Rights system. The instruments in this refer to both the legal as well as the implementation instruments. The most important piece of legal instrument governing the European Human rights system is the European Convention on Human Rights. This instrument gives framework regarding the political and civil rights of the members. Another instrument which is important in the European system of human rights is the Social Charter. The Social Charter is mostly involved in dealing with the social aspects of human rights. In order to fully achieve the implementation of these instruments there are organs that exists and whose mandate is to ensure the implementation of these legal instruments is achieved. The main organ is the European Court of Human Rights. This is the court in charge of hearing and determining cases involving violation of human rights. Another organ is the European Committee on Social Rights. This is the organ that seeks to ensure that the social rights of the citizens are upheld. The European Human Rights system has specific instruments that seek to cater for the needs of the minority groups. By virtue of The Framework Convention which came into force in 1998 minorities interest have also been considered and catered for. The Convention for the Protection of the National Minorities is said to be the first international piece of legislation to cater specifically and expressly for the minority groups. The main reason for the development of the European human right system was to ensure that democracy is upheld and consequently stability and peace be achieved. While democracy is a noble idea, it needs to be having a window for the minority otherwise it would lead to the oppression of the same. This explains the need for the Convention to Protect the National Minority. The instruments governing the African Human Rights system. Among all the existing Human Rights system, African is the newest (although there are plans to have the Asian Human rights systems). The African Human right system is mainly governed by the African Charter on Human and People’s Rights. This instrument governs both the political as well as the socioeconomic rights. The main organ in charge with the enforcement of this is the African Commission on Human Rights. This is a court that apart from offering remedies to the aggrieved parties whose rights have been infringed, it also gives advisory opinion. Apart from the African Charter on Human and People’s Rights there are also other legal instruments that make up the African Human Rights system. These include the African Children’s Charter, African Decade of Disabled people. All these and other instruments aim at ensuring that the human rights of different categories of people. The whole regime of human rights system seeks to be comprehensive enough to cover every human being. The African Charter also incorporates the universality principle of human rights as well as the individual entitlement of the same rights. Similarities between the European and the African system of human right: The European and the African Human Rights system are similar in that they both intend to realize the enjoyment of human rights. Although they take different approaches in attaining this, the desired end product is similar to both systems. They both seek to ensure that the citizens as well as the member states get to enjoy human rights and have stability in terms of governance and interrelations. Below is a cursory analysis of how these two systems are similar in the manner in which they approach the issues of human rights. The most important aspect of these systems is that they are consensus based. Before they are drafted or come into existence, extensive deliberations have to be made by the member states. This stems from the fact that these systems were preceded by a shared interest between the countries involved. The conventions and treaties that form the legal instruments of the regional human rights system have to be thoroughly discussed. The members have to put their input in the frameworks that actually create the system. Another similarity between these two systems is cooperation with other entities that deal with human rights. Both the European and the African Human Rights systems cooperate hand in hand with the United Nations as well as other organizations. The European Human Rights system has even gone ahead to grant observer status to other nations that are not part of the European Nations. A good example is Mexico as well as the Holy See. They have been granted observer status. This fosters and increases regional cooperation and development. The two systems engage similar approaches in tackling their intended purpose. These approaches are broadly categorized in two; prevention and remedies in case the rights have already been infringed. In order to achieve this, both the European and the African systems of human rights have judicial mechanisms to enforce the legal framework. The courts also offer an avenue for seeking redress in a situation where all the available avenues in ones country have been exhausted. The courts have in many different instances been of help to restore justice in instances where it feels that there have violations of human rights. Creation of a judicial means for settling disputes is one similarity between the European and the African Human rights systems. The judicial system is comprehensive and even offers a chance for amicable settlement of disputes. By the dint of Rule 91 as well as Rule 98 of the Protocol of ACHPR African countries are encouraged to embrace amicable dispute resolution mechanisms. One of the main reasons why the amicable resolution of disputes is encouraged stems from the fact that it sustains relationships even after the resolution. This is important in creating a peaceful coexistence between nations. The African Charter for Human and Peoples Rights Court has intervened through their judgements instances where social human rights were violated. A good example is in the case of Union Interafricaine des Droits de l’Homme v. Zaire. In this case the Complaint was grounded, inter alia, for mismanagement of public finances as well as, the failure of Zaire as a state to provide the basic health services as well as shortage of medicines. In its findings the Commission found that indeed there had been a violation the ACHPR. Another important similarity between different types of human rights system is that they have more than one legal instrument. This is because human rights are of a very wide scope and therefore impossible and impractical to include all the rights to be protected in a single instrument. The European Human Rights system is mainly comprised of the European Convention on Human Rights as well as the Social Charter. The African system is made up of the African Charter on Human and People’s Rights. The incorporation of the universality of human rights is an important aspect similar in the two systems. This means that no one should get a special treatment whenever the human rights are involved. The human rights system legal instruments are normally inferior to the national human rights systems. This means that a municipal law can outweigh the provisions of an international convention. This is also means that where a remedy is provided for under the municipal law, the regional system won’t apply. It is imperative to note that the systems become applicable as the last resort after the complainant or the person seeking redress has exhausted all the domestic forms of remedies in vain. Differences between the European and the African Human Rights systems. The ideological perspectives normally play a very important part in shaping the human right system. While the European Human Rights system quite developed as compared to the African Human right system. For this reason, there seems to be a gross human rights violation in Africa as compared to Europe. Human rights systems in Africa are affected by corruption and high level poor governance. It is because of this reason that the African Human right system attempts to involve good governance and the development of adherence to rule of law. The European Convention of Human Rights together with its protocols has a focus which is inclined towards protecting and realizing the political as well as the civil rights of the citizens of the member states. Nowak also points out that the European system also has the Social Charter which aims at ensuring that social rights have been observed.5 On the other hand, the African Charter on Human and People’s Rights dwells much on protecting the social rights and also creating duties and obligation on the part of those who are in charge of ensuring that these rights are actually attained. A clear illustration on how ideological inclination shapes the human right system can be found in the Inter-American system. The inter-American system was developed as a counter-reaction to the threats that had earlier been posed by communist systems. While the European Human Right system was developed out of the desire to have democracy and stability, the African human rights system sought to a greater extent to preserve political freedom. In fact, some authors have criticized Africa for fighting for human rights while inclined on political freedom at the expense of other important freedoms such as economic and social freedoms. The manners in which these systems are enforced differ substantially between one human right systems to another. The main enforcement entities under the African Human Rights System are the African Commission as well as the African Court of Human and People’s Rights. On the other hand, the main machinery for enforcement of the European system of Human Rights is the European Court on Human Right. It is important to note that this court replaced the European Commission on Human Rights. This is vide Protocol No 1 of the European Convention on Human Rights. Prior to that, the Commission had the mandate to decide upon human rights issues as petitioned for it. Another difference relates to the scope of application of the systems and their enforcement. There are jurisdictional differences between the application of the European and the African systems of human rights. In the European Court of Human Rights, the jurisdiction ratione material is limited to the interpretative role. The court is supposed to interpret the provisions as well as the application of the Convention. In the African system, the court has been given a wider discretion and scope of application. There is no restriction as to which legal instrument the court shall have mandate to interpret (Odinkalu & Christensen, 1998, p. 237).6 This means that the Courts have the power to interpret and the Charter as well as any other law. The only requirement is that the parties involved in that dispute should have ratified that particular instrument. Furthermore on the same issue of jurisdiction, the two systems differ when it comes to ratione personae. In the European system only victims have the chance of presenting cases. On the other hand, the African Charter allows non-victims to forward cases on behalf of the victims. This is according to Article 34 of the ECHR and Article 55 of the ACHPR respectively. In the African context, a good illustration is given by the case of Annette Pagnoulle v. Cameroun. In this case Annette was suing on the behalf of Abdoulaye Mazou. The court went ahead to agree that Article 15 of the ACHPR had been violated. This shows how possible it is to move the court on another person’s behalf. In the European system there is the question of competence of the person who seeks to move the court. It is in this regard where there in the requirement that the person bringing forth the petition has to be the victim of the violation of human rights. Otherwise, the petition shall fail. The judicial composition of the European system differs from that of the African Court system. Article 11 of the ACHPR requires that the Court shall have eleven judges. The qualification here is that no two judges should come from the same country. This is in an attempt to curb the likelihood of bias and also increase participation of other countries too. Article 20 of the ECHR, requires that the number of the judges shall be the same as that of the High contracting parties. There is no limitation or qualification as to the number of nationalities who should form the number of judges. There is a time limitation in the African Human Right Court system. The court is required according to Article 28 of the Protocol of the ACHPR to deliver their judgements within ninety days upon completion of their deliberations. This aims at ensuring that justice is not delayed. On the other hand, the European court has no time restrictions. This allows room for flexibility and gives the court chance to be thorough in their judgement delivery. This time limit is merely a technical difference. It however goes to the root of how matters are to be handled in these courts. While the time restriction in the African system is important it has its flaws as it fails to give the involved judges ample time for them to be able to ensure that judgement is comprehensive. The absence of time limit give the European Court of Human Rights ample time to make sure all the deliberations have been taken into account before delivering the actual judgement. The African system has clawed back clauses while the European has derogation clauses. A claw back clause normally restricts a right that had been granted by the system. In this case, the nation using claw back clause does so by enacting a municipal law that deliberately refuses to recognize the right granted under the African system. A derogation clause means a leeway via which a state may escape performing its obligation. This normally aims at creating flexibility with the intention of safeguarding the nation’s interests. They allow for derogation from a certain right which would otherwise injure the nation’s interests. Both the claw back and the derogation have to be used in accordance with the law. The systems also differ in terms of the challenges that end up shaping the functioning of the system. The African judicial system on human rights has no interim measures. Apart from that it is faced by the lack of funding challenge which hinders its functionality (Makau, 1999, p. 355).7 The European system on the other hand is not a supranational court. It is in charge of different independent jurisdictions. This raises a jurisdictional challenge whenever a court is forwarded for its determination. This normally makes a court have to rule on the jurisdictional matter before delving into the main dispute and as a result a lot of time is a waste. This in itself impedes the access to justice. The European system, like the African system allows for the request of an advisory opinion from the courts. This is only done when an action of bringing for a petition for the determination of such an opinion is advanced to the court. The courts, both in the European and African systems do not act on their own motion to determine a matter. The European court of Human Rights can only give advisory opinion on matters limited to the interpretation of the Convention and not any other instrument. The African Court is not limited to any particular law. It can attend to a matter dealing with interpretation of the Charter and/or any other legal instrument related therein. They (both the European system and the African system) are also machinery for national reporting. In most cases, by delivering the advisory opinion the courts set standards as well as interpretation. These also form legal precedents which the domestic courts may later on employ to determine certain matters that are in dispute. Challenges faced by both the European and African System of Human Rights. There are similar challenges that both the European and African Human Rights system face in their quest to realize the rights of citizens. Different human rights systems are faced with different challenges since they were under different foundations. Whereas the main goal is to achieve the realization, protection and the enjoyment of human rights, the approaches involved differ. The approaches are shaped to a great extent by external influences such as the reasons why such systems came into place. According to Gittleman (1982, p 667), the other challenge being faced by the systems is a lack of independent enforcement machinery.8 The structures such as the courts depend heavily on the member states for the enforcement. On their own, they lack police methods to force the members to comply. Mutua (1999, p 355) refers to the African Human rights system as a two legged stool.9 What he means is that the system is still lacking in terms of means to ensure that enforcement is achievable. This means that before any human rights system structure can be of help, the dispute parties must voluntarily agree to submit themselves. For proper enforcement, there is need to have an independent and efficient mechanism that would seek to make sure that member states actually comply with the requirements of the structures. A different cultural and social background is also a major challenge especially in Africa is a source of challenges that are experienced in attaining the target result of the African Human Rights System. Basically, Africa is a territory where application of traditional and customs practices still take a center stage in the lives of many. Some traditional practices infringe upon the rights of the citizens. Despite this happening, there is no attempt to seek redress. As a result the Human Rights system is not fully utilized as it should be. Apart from that Africa is made of several countries which were under different colonialists. This means that different African countries inherited different philosophical ideologies from their colonial masters. There are countries which have the flair of communism while some inherited capitalism. Harmonizing this to come up with a system that accommodates all these and is acceptable to all is not easy at all. Conclusion The similarities of the human rights systems are greatly influenced by the universality of human rights. This is the belief that individual rights are to be enjoyed in the same capacity regardless of where the people are. The differences exhibited by the different systems are due to the different experiences which the regions underwent prior to the creation of such systems. The difference in ideological goals between Europe and Africa also contributes greatly to the difference in the human rights system. Regardless of the differences, both systems aim at ensuring laws that protect the human rights. Marcela (1998, p 27) suggests that human rights are universal and therefore this means that most human being require similar protection and it is only because of circumstances that’s why it appears that there are differences in the systems.10 The regional cooperation in safeguarding human rights is important and strengthens international existence. References Donnelly J, 1982, Universal Human Rights in Theory and Practice Cornell University Press, Ithaca, N.Y.: pp. 140–141. Gittleman, R, 1982, “The African Charter on Human and People’s Rights: A legal analysis.” Virginia Journal of International Law 22, no. 4: 667 Makau MW, 1999, African Human Rights Court: A Two-Legged Stool?” Human Rights Quarterly 21; 355. Marcela, R 1998, Limits of the Fundamental Rights and Liberties Stipulated by the European Convention of Human Rights. European Studies 1, no. 2: 21–28. Mutua, MW, 1993 “The African Human Rights System in a Comparative Perspective: the Need for Urgent Reformation,” The Nairobi Law Monthly, no. 44. p.28. Nowak, M. “Future Strategies for the International Protection and Realization of Human Rights,” in Eide, A. and Helgesen, J 1991, The Future of Human Rights Protection in a Changing World, eds., Norweigian University Press, Oslo. Odinkalu, AC & Christensen, C 1998, The African Commission on Human and People’s Rights: The Development of its Non-State Communication Procedures,” Human Rights Quarterly 20, no. 2235–280. Robertson, A 1982, Human Rights in the World: Manchester University Press, Manchester. Read More