HUMAN RIGHTS COMPLIANCE STRATEGIES AND THEIR EFFECTIVENESS
Discuss human rights compliance
strategies adopted in different human rights systems and their effectiveness.
By
Tatenda
Madamombe Mhofu
This
question is twofold; it requires the writer to discuss firstly, the human
rights compliance strategies that have been adopted in various distinct human
rights system and secondly, make an evaluation on the effectiveness of the
same. Accordingly, it becomes indisputably imperative to appreciate the
meanings of the phrases ‘human rights compliance strategies’ and
‘effectiveness’ for purposes of determining the scope of this write-up. The
former may be generally understood to mean mechanisms that have been put in
place to ensure or guarantee that there is observance of, obedience or
adherence to human rights obligations as outlined under a given human rights system.[1] The latter loosely refers
to the property of being able to produce the intended effect.[2] In short, the writer will
answer the following questions; what are the compliance strategies that have
been adopted in a particular human rights system and how effective are they?
Therefore, for purposes of this essay, the test for effectiveness shall be
whether or not a particular compliance strategy is capably producing the
initially desired effect. The writer will, in the following paragraph, give the
background of the question, after which, he will then cascade to deal with the
substantive discussion of the question and finishes off with a paragraph of
summation to this entire piece of paper i.e. a conclusion. Principal source of
reference shall be R. K. M. Smith International Human Rights Law 8th ed.
2018- the text represents a more recent position.
There
are broadly three human rights systems which are global,[3] regional[4] and sub-regional human
rights systems.[5]
There is United Nations under the global human rights regime and there are
numerous types under regional human rights systems[6] as well as sub-regional
human rights systems.[7] These systems offer
distinct protection of human rights[8] thus the compliance
strategies differ. The extent of effectiveness and human rights compliance
strategies that have been adopted in the regional and sub-regional human rights
systems vary with the regions thus a brief look at the major compliance
strategies adopted in each region and a brief evaluation of their effectiveness
is undoubtedly necessary. The writer
will deal with a particular human rights system addressing both angles of the
question that are (a) human rights compliance strategies under that particular
human rights system and (b) their effectiveness. The global human rights
systems shall be discussed first then regional and lastly sub-regional human
rights system.
Globally,
human rights compliance strategies may be generally, in two forms, “either
Charter based or treaty based.”[9] The former are the
strategies provided under the Charter of the United Nations[10] whereas the latter refers
to those established in terms of a certain treaty for enforcement of that
particular treaty.[11] The United Nations
Security Council (hereinafter referred to as the ‘Security Council’) is one of
the organs that are created in terms of the United Nations Charter[12] (hereinafter referred to
as the ‘Charter)’and serves as a mechanism for ensuring state compliance with
human rights obligations under the United Nations (hereinafter referred to as
the ‘UN’) Since the Security Council is primarily responsible for the
maintenance of international peace and security,[13] “many international
disputes are precipitated by violations of human rights…and thus non-observance
of human rights may constitute a threat to international peace…this is the most
obvious situation in which the Security Council will involve itself in human
rights.”[14]
The question of its effectiveness as already mentioned may be judged against
its intended effect. In this case, the Security Council’s mandate hence its
intended effect is clearly envisaged under the Charter, (Article
24)
There are certain cases where the Security Council intervened in human rights
violations so as to maintain international peace and security[15] but, “the most serious
complaint raised against the Security Council is that it is less likely to take
action against its permanent members.”[16] Be that as it may, the Smith 2018 still maintains that, the
Security Council has done its role of preserving peace, the writer holds a
different view and argues that by mere non-interference in the cases of human
rights violations by the permanent members, the Security Council has proved to
be an ineffective organ. This is so because its primary duty is to maintain
international peace and since human rights violations constitute a threat to
the same, taking no action implies that the permanent members are not part of
the international community within which the Security Council as to maintain
peace, which is indeed not true.
The
General Assembly is also another organ created under the Charter[17] and, “has considerable
competency to deal with human rights. Its responsibility inter alia is to, “discuss any questions or any matters within the
scope of the present Charter or relating to the powers and functions of any
organs provided for in the present Charter.”[18] This is the major organ
that reinforces state compliance.[19] “Certain serious human
rights situations have been the subject of debate with the General Assembly
deploring abuses of human rights and calling on the state or states involved to
conform to international standards.”[20] Moreover, when the
General Assembly receive and considers reports made by all treaty monitoring
bodies, in the event of a state failing to submit the periodic reports, it is
publicized as a means of drawing attention of the international community
members’ and to compel compliance. It also issues declarations which are though
not legally binding, are indicative of the global opinion [21] thus some of its
declarations have since attained the status of customary international law
hence binding.[22]
The General Assembly has been performing as per its mandate and has been seen,
“frequently delegating human rights issues to specialized bodies.”[23].
The
last organ created under the Charter is the International Court of Justice.[24] The composition of this
court[25] is inter alia a concern with regards to its effectiveness. Notably, it
has been seen adjudicating over a plethora of human rights cases. This is so
because the composition of a court may affect its independence and hence
effectiveness. History attests that usually, the court is constituted by
European judges and this might pose a threat to the effectiveness of the court
especially when dealing with human rights issues from other continents e.g.
Africa. Another issue with this court is that, it, “is not, however, competent
to adjudicate on disputes raised by individuals or on substantive issues raised
under any international human rights instrument”[26], all it can do is to sit,
“as a chamber or full court and can hear contentious cases and deliver advisory
opinions.”[27]
This then questions the effectiveness of the court and basing on its intended
purpose, it has not been fully achieving the intended effect.
Having
discussed the Charter based mechanisms; the writer will now cascade to looking
at the treaty based mechanisms. There are numerous treaties that have been
adopted under the auspices of the United Nations and they offer various ways of
compliance strategies.[28] “The most common is a
reports system whereby states submit a report on their implementation of the
rights in the instrument.”[29] Some authors are of the
view that treaty based mechanisms, “include Committees, treaty monitoring
bodies, supervisory committees or treaty bodies.”[30] Common examples under the
global systems include state reporting, inter-state complaints and individual
complaints[31]
and also inquiries. These are common in treaties such as the ‘ICCPR’[32], ‘ICESCR’[33], ‘ICERD’[34], ‘CRC’[35]and ‘CAT’[36] One major problem that
has affected the effectiveness of the mechanisms under the United Nations, “is
its ad hoc organization, a variety of Committees receive reports from the same
states, often at the same time.” Apart from this, the financial and personnel
constraints had also affected the effectiveness of the mechanisms adopted under
the global human rights systems.[37] This concludes a general
assessment of the effectiveness of the mechanisms under the United Nations
The
writer now moves on to dealing with regional systems. As mentioned above, there
are various regional systems but for purposes of this paper and following a
perusal of the literature around the subject, three arguably identified as the
major regional systems shall be discussed in great detail. Other regional
systems will be discussed also. The
writer will begin with a discussion on the African Union as an example of one
of the identifiably major regional human rights system. One notable way of
ensuring state compliance under the African organization is the reports system.[38] This is one example of a
treaty based mechanism.[39] Other examples of treaty
based mechanisms adopted under the African Union include inter-state complaints[40] and any other complaints
which could emanate from individuals or groups of individuals.[41] In light of complaints
strategy, though it is admitted that, “a young developed regional system is to
be found in Africa…the African system has succeeded in developing a coherent
regional system for the protection of human rights”[42], with the Commission
receiving, “a number of complaints, particularly in contrast to other regional
systems channeled through NGOs”[43] Commenting on the
effectiveness of the Commission in light of inter-state compliance, it has been
propounded that the Commission, “must ensure that all existing local remedies
have been exhausted…this is itself is problematic”[44] because, “it is less
likely that inter-state dispute will be settled (or even competent) in a
national court.”[45]
The Commission, in addition is only competent to issue advisory opinions which
are not binding anyway. This poses a serious threat to the effectiveness of
such a mechanism. However, through the reports system and complaints to which
the publicity strategy has been developed, the Commission had realized
successes in protecting and ensuring compliance. It has been maintained that,
“publicity seems to be a key weapon in the development of the African system-
publicity and promotion of rights and public condemnations of violations
thereof.”[46] Given these shortcomings of the Commission,
the African Union also adopted a judicial compliance strategy.[47] The African Court on
Human and Peoples’ Rights has power to hear cases of human rights violations
and issue binding verdicts thereof and so as to strengthen its effectiveness,
the 1988 Protocol provided expressly for the independence of the judiciary.[48] The problem with this
court inter alia is it has a limited
jurisdiction.[49]
Compliance
strategies under the Council of Europe are substantially similar to those
discussed under the African Union above. There is like under the African Union,
a court established by the European Convention.[50] This court receives,
“complaints from individuals or states alleging violations of those rights
protected under the Convention”[51] hence a wider
jurisdiction, “and today the European Court acts almost as a constitutional
tribunal. Its judgments are considered authoritatively and tend to have erga omnes effect as the court interprets
and develops the convention rather than merely applying it.”[52] Though there are also
other implementation mechanisms, the Council of Europe is known for developing,
“a system which ensures the protection of basic human rights through a judicial
mechanism.” Thus it has been said that, “European Convention includes a
comprehensive and very popular system for monitoring state compliance through a
court…”[53] Apart from the court,
complaints procedures (both inter-state and individual) commissions[54] and committees[55] are also part and parcel
of the implementation mechanisms. A closer look at the compliance strategies
under the Council of Europe generally, “few would argue that the human rights
aspects of the work of the Council of Europe have not been a success;”[56] “However, the Council of
Europe has its failings; not addressing economic, social and cultural rights is
a major one.”[57]
Another
example of a regional human rights system is the Inter-American systems. The
region, “has a very complex system of protecting rights through diplomatic,
quasi-judicial and judicial processes…”[58] In addition, compliance
strategies include reports, inter-State and individual complaints.[59] There is also a court
established under the Inter-American for dealing with human rights issues which
court has both advisory and adjudicatory jurisdiction.[60] The Inter-American
Commission on Human Rights also functions as a compliance strategy with the
primary role of, “keeping vigilance over the observance of human rights.”[61] “In carrying out its
mandate, the Commission receives, analyses and investigates individual
petitions alleging violations of human rights.”[62] Though notable
achievements have been witnessed in so far as implementation is concerned, the
scale of activities of the Organization remains barely comparable to the
successes of the Council of Europe and comparing to similar regional mechanism
can be another way of testing the effectiveness of the compliance mechanisms.
What appears settled is that, the Council of Europe as compared to the
Organization of American States.
As
mentioned earlier, sub-regional human rights systems also offer compliance
mechanisms.[63] Like regional human rights systems, there are
plenty of them and could logically not be practicable to discuss human rights
compliance mechanisms that have been adopted y each and every example of a
sub-regional human rights system hence only a few selected examples would form
part of this discussion. A good example is that of the Economic Community of
West African States (ECOWAS) which has a court for purposes of seeing to it
that human rights obligations are complied with hence a compliance strategy. A
number of cases have been brought before this court and, “the Community Court
is providing a rich seem of cases on human rights in West Africa.”[64] Another example is the
East African Community which too has a court, the East African Court of
Justice. This court however, “does not have jurisdiction to hear individual
complaints of alleged violations of human rights.”[65] This then questions the
effectiveness of the court. What it means would be that individuals do not have
remedies under such a human rights systems yet it is true that a state may
violate rights of individuals. If there is no solid judicial mechanism to
protect the individuals, how can it be safely concluded that such a system is
effective? Does that imply that there are no human rights violations that are
occurring everyday against individuals? Or does it mean that individuals do not
have rights at all? If they have human rights, why then are they not protected?
Surely one might not argue that these systems have been effective in ensuring
state compliance with human rights obligations under a sub-regional level. This
is so because, having known that individuals do not have automatic locus standi, states are then likely to
perpetrate human rights abuses against individuals and therefore rendering the
system ineffective.
In
conclusion, there are three human rights systems which are global, regional and
sub-regional human rights systems. Each of these systems adopted various
distinct and in some cases, similar mechanisms to ensure that states comply
with the human rights obligations imposed upon them under a particular human
rights system. Common compliance strategies that have been adopted include
state reporting, publicity, judicial mechanisms, quasi-judicial mechanism, etc.
The effectiveness of these mechanisms is dependent on the intended effect and
sometime can be assessed with comparison to other similar mechanisms with a
similar purpose but under a different human rights system. This paper shows
that the Council of Europe has been to a greater extent, effective in ensuring
protection of human rights hence ensuring state compliance with the obligations
imposed upon them under the system. No system however has provided absolutely
effective mechanisms. This is due to various reasons which are inclusive of
political, financial reasons, limited jurisdiction, lack
of adequate personnel, etc.
BIBLIOGRAPHY
Books
Brownlie I. (2003) Principles of Public International Law 6th
ed. Oxford University Press Inc.
Dugard J. (2005) International Law: A Sout African Perspective 3rd ed.
Juta & Company Limited.
Chiweshe D, Moyo L, Mupita H, Ncube K,
Ngulube P and Sibanda B. K. (2003) Human
Rights and the Media A Handbook Human Rights Trust of Southern Africa.
Viljoen F. (2012) International Human Rights Law in Africa 2nd ed. Oxford
University Press.
Books Chapters
H. Charlesworth A Regulatory Perspective on the International Human Rights System inP.
Drahos (ed.) (2017) Regulatory Theory: ANU
Press.
Dictionaries
Heinemann
Macmillan English Dictionary Macmillan
Publishers Limited 2006.
Oxford
Student’s Dictionary Oxford
University Press 2007.
International Instruments
Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment.
Convention
on the Rights of the Child.
African
Charter on Human and Peoples’ Rights.
Protocol to the African Charter on the
Establishment of the African Court on Human and Peoples’ Rights 1988.
International Convention on Civil and
Political Rights.
International
Convention on Economic, Social and Cultural Rights.
International
Convention on the Elimination of all forms of Racial Discrimination.
United Nations Charter.
[1] “To monitor compliance by states with
their obligations under the treaties, the international community as put in
place some mechanisms” D. Chiweshe et al. Human
Rights and the Media A Handbook (2003) 18.
[2] The Heinemann Macmillan English Dictionary defines effective as
“working well and producing the result that was intended” which definition is
substantially similar to the one given in the Oxford Student’s Dictionary which defines effect as, “successfully
producing the result that you want.”
[3] “The United Nations (UN) is home to
the global human rights system.” H. Charlesworth A Regulatory Perspective on the International Human Rights System inP.
DRAHOS (ed.) Regulatory Theory ANU
Press. (2017).
[4] “The regional systems are now part
and parcel of the universal system of protection of human rights and
fundamental freedoms.” R. K. M. Smith International
Human Rights Law 8th ed. (2018) 94. This is similar to what was
said by Chiweshe et al. (n1 above) 18, “some regional communities have also put
in place mechanisms for monitoring and implementing the provisions of human
rights treaties that have been adopted at the regional level by the respective
regional communities.”
[5] F. Viljoen International Human Rights Law in Africa 2nd ed. (2012)
149.
[6] “Europe, the Americas, and Africa
have adopted regional human rights conventions…” J. Dugard International Law: A South African Perspective 3rd ed.
(2005) 330. These are just the major ones as was also correctly put by Smith
(n4 above) 88, “there are three main regional systems that aim to protect and
promote human rights; the Organization of American States, the Council of
Europe and the African Union.” This speaks to the effect that other regional
systems do exist but like was acknowledged by the learned author R. K. M. Smith
in the recent quotation that the cited are only the major ones, the author also
maintains that, “however, other regional, transnational and non-aligned
groupings of states have chosen to demonstrate their commitment to universal
human rights by adopting instruments enshrining the rights they profess to
protect” Smith (n4 above) 90.
[7] Viljoen (n5 above) 471 gave examples
of the sub-regional groupings that are in existence and expressly commented on
the African region at 474 to say, “Africa currently has at least 14
sub-regional integration groupings with two or more in each region.” This
speaks to the point that they are so many and logically all could not be
discussed in this piece of paper.
[8] In light of regional and sub-regional
human rights systems, certain regions have put in place different compliance
strategies to ensure compliance with respective treaty obligations hence
protection of human rights. To this, it has been authoritatively said,
“machinery for protection of human rights may be created on a regional basis.”
I. Brownlie Principles of Public
International Law 6th ed. (2003) 542.
[9] “To monitor compliance by states with
their obligations under the treaties, the international community has put in
place some mechanisms. These are either Charter based or treaty based.”
(My emphasis) Chiweshe et al. (n1 above) 18.
[10] “The human rights record of members
of the UN is also monitored by mechanisms that were not necessarily created by
human rights treaties for that purpose but have been established within the
framework of the UN Charter.” Chiweshe et al. (n1 above) 20.
[11] “Many international instruments
relating to human rights include some kind of mechanism.” Smith (n3 above) 67.
And these, “treaty bodies are composed of independent experts of recognized
competence in the field of human rights” Chiweshe et al (n1 above) 18.
[12] Article 23 of the United Nations Charter.
[13] Article 24(1) of the United Nations Charter.
[14] Smith (n3 above) 55. The author
further argued that, “where human rights are contributing to friction between
states, the Security Council may take action to restore peace under the terms
of the Charter.”
[15] Examples are in Southern Rhodesia
during the time of Smith’s Unilateral Declaration of Independence government,
in Syria, Lybia, Iraq etc. There are also, “many United Nations Security
Council resolutions which call upon states to conform to international
standards of human rights” Smith (n4 above) 56.
[16] Smith (n4 above) 57. Examples given
by the author to substantiate this include the human rights abuses in the
People’s Republic of China particularly in Tibet and Xinjiang.
[17] Article 9 of the United Nations Charter.
[18] Article 10 of the United Nations Charter.
[19] Smith (n4 above) 59.
[20] Smith (n4 above) 59.
[21] Smith (n4 above) 58.
[22] A perfect example would be the Universal Declaration on Human Rights of
1948.
[23] Smith (n4 above) 59. And a good
example may be that of the Human Rights Council established by General Assembly
Resolution 60/251. Smith (n4 above) 62
and the Economic and Social Council (ECOSOC).
[24] Article 92 of the United Nations Charter.
[25] “Fifteen judges, drawn from different
states, are elected by a majority of both the general Assembly and Security
Council. Ad hoc judges may be selected by states involved in a dispute before
the court ….” Smith (n4 above) 59.
[26] Smith (n4 above) 60.
[27] Smith (n4 above) 59.
[28] Generally, “the legal basis for
establishment of these treaty bodies is found in the treaties themselves.”
Chiweshe et al. (n1 above)18. Since they vary with particular treaties, the
writer will concentrate on the common ones only.
[29] Smith (n4 above) 67.
[30] Chiweshe et al. (n1 above) 18.
[31] Chiweshe et al. (n1 above) 19.
[32] Article 40, 41 and 42 of the International Convention on Civil and
Political Rights.
[33] Article 16 of the International Convention on Economic, Social
and Cultural Rights.
[34] Article 9, 11, 12, 13 and 14 of International Convention on the Elimination
of all forms of Racial Discrimination.
[35] Article 43 of the Convention on the Rights of the Child.
[36] Article 19, 20, 21 and 22 of the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment.
[37] “What many fail to appreciate is the
financial and personnel constraints which curb the work of the United Nations.
Severe financial problems render much of the system almost ephemeral, dependent
on the goodwill of the Committee members and of Member States for continuation.
Personnel is another problem- the secretariat available to the various human
rights bodies is drastically smaller than an equivalent size of organization…”
Smith (n4 above) 82.
[38] “Like many human rights systems, the
African organization operates a system of reports to monitor state compliance.
“ Smith (n4 above) 149. Articles 62 of the African
Charter on Human and Peoples’ Rights.
[39] Chiweshe et al. (n1 above) 19.
[40] Article 47 of the African Charter on Human and Peoples’ Rights.
[41] Article 55 of the African Charter on Human and Peoples’
Rights.
[42] Smith (n4 above) 90.
[43] Smith (n4 above) 90.
[44] Smith (n4 above) 149.
[45] Smith (n4 above) 150.
[46] Smith (n4 above) 153.
[47] “The Protocol to the African Charter on the Establishment of the African
Court on Human and Peoples’ Rights 1988 sought to create a court which
complemented and reinforced the work of the Commission in furtherance of the
protection of human and peoples’ rights…” Smith (n4 above) 145.
[48] Article 15 of the Protocol to the African Charter on the
Establishment of the African Court on Human and Peoples’ Rights 1988.
[49] It can preside over all matters
submitted to it concerning human rights violations but individual complaints
are inadmissible, it is the African Commission and States that have automatic locus standi. Smith (n4 above) 147.
[50] Smith (n4 above) 105.
[51]Smith (n4 above) 105.
[52] Smith (n4 above) 117
[53] Smith (n4 above) 106.
[54] There is a European Commission
against Human Rights.
[55] An example which might fall under
this is the Committee on Legal Affairs and Human Rights.
[56] Smith (n4 above) 117.
[57] Smith (n4 above) 117.
[58] Smith (n4 above) 121.
[59] “Compliance by states with the
provisions of the American Convention is ensured through a combination of
approaches, reports, inter-state and individual.”Smith (n4 above) 130.
[60] Smith (n4 above) 128.
[61] Smith (n4 above) 126.
[62] Smith (n4 above) 127.
[63] Smith (n4 above) 151.
[64] Smith (n4 above) 152.
[65] Smith (n4 above) 153.
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