Regional Systems of

Human Rights
What is the meaning of a regional system
of human rights?

What are the main issues that international

human rights systems face?
Individual in the international arena

Individual has Multilayered

access to protection of
justice peoples rights

International
courts and
binding
decisions
 International Courts

Stablish
standards of
Influence in protection of
national human rights
Exert (public) politics (PRECEDENTS)
Authority
POST COLD WAR (EXPANSION)

RULE OF LAW DEMOCRATIZATION

HOW DO YOU ACCESS THE DISCOURSE
RELATED TO THE EXPANSION OF THE
COMPETENCES FO INTERNATINAL HUMAN
RIGHT BODIES?
Consent of Evolution of
states (NOT the content
ENOUGH) of rights

International
public
goods
What is the limit of the
expansive role of international
tribunals?
Top down Bottom up
approach approach
Beyond monism and dualism.
LEGAL APPROACHES THAT IMPLIE TO
SEE HOW LAW WORK IN REAL TERMS.
TO SE MOBILIZATION OF ACTORS:
PRIVATE AND PUBLIC. INFORMAL
TOOLS OR MEANS.
Do local actors need regional
systems of protection of human
rights?
 European System of Human rights

The Council of Europe is an intergovernmental

organization with 47 Member States.

Candidates for EU membership are required to ratify

the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
 The European System of Human Rights

The
European
European Committee of
Court of Social Rights
Human Rights
The principal
judicial and quasi-
judicial organs
responsible for
defining and
overseeing States
compliance with
their regional
human rights
obligations.
European Court of Human Rights

The Court has jurisdiction to decide complaints (applications)

submitted by individuals and States concerning violations of
the European Convention on Human Rights, which principally
concerns civil and political rights.

It cannot take up a case on its own initiative. The person, group or

non-governmental organization submitting the complaint does
not have to be a citizen of a State Party.

Complaints submitted to the Court must concern violations of the

Convention allegedly committed by a State Party to the
Convention and that directly and significantly affected the
applicant.
Admissibility rules
Complaint against a State
party to the European
Convention on Human Rights

Six-month application
Exhaustion of domestic deadline (from the final
remedies domestic judicial
decision)

Applicant suffered a
significant disadvantage
 https://www.youtube.com/watch?v=mcbDDhs5ZVA&list=TLJOTKYPB5lecNB
ocYG5HFefUzKqe-X4F6
Guiding principles: Protocol 15th

Affirming that the High Contracting Parties, in

accordance with the principle of subsidiarity,
have the primary responsibility to secure the
rights and freedoms defined in this
Convention and the Protocols

States enjoy a margin of appreciation,

subject to the supervisory jurisdiction of
the European Court of Human Rights
established by this Convention
 Margin of apprecciation or deference

Leeway that States enjoy in implementing their international

human rights obligations according to local needs and
concerns.
Tribunals have the role to unify human rights standards and
to police violations.
Likewise, the role of tribunals is to allow the diverse protectio
of human rights, but to ensure the diversity allowed does
not lead to violations of human rights.
Uniformity vs. Deference?
 How reasons for deference operate?

Consensus Expertise Democracy

 Consensus
What is a consensus?
Who defines what is a consensus? Are the judges who know best?
Case Lautsi vs. Italy. Grand Chamber.
There is no evidence before the Court that the display of a religious
symbol on classroom walls may have an influence on pupils and so it
cannot reasonably be asserted that it does or does not have an effect
on young persons whose convictions are still in the process of being
formed.
The Court takes the view that the decision whether or not to
perpetuate a tradition falls in principle within the margin of
appreciation of the respondent State. The Court must moreover take
into account the fact that Europe is marked by a great diversity
between the States of which it is composed, particularly in the sphere
of cultural and historical development.
Consensus

Moreover, the fact that there is no European consensus on the

question of the presence of religious symbols in State schools (see
paragraphs 26-28 above) speaks in favour of that approach.
it is true that by prescribing the presence of crucifixes in State-school
classrooms a sign which, whether or not it is accorded in addition
a secular symbolic value, undoubtedly refers to Christianity the
regulations confer on the country's majority religion preponderant
visibility in the school environment.
That is not in itself sufficient, however, to denote a process of
indoctrination on the respondent State's part and establish a
breach of the requirements of Article 2 of Protocol No. 1.
Who is the victim?

Natural individuals
Legal persons:
Protocol 1: Every natural or legal person is entitled to the peaceful
enjoyment of his possessions ()
Pine Valley and Healy Holdings were no more than vehicles through
which Mr Healy proposed to implement the development for which
outline planning permission had been granted. On this ground
alone it would be artificial to draw distinctions between the three
applicants as regards their entitlement to claim to be "victims" of a
violation.
Protected rigths

CIVIL

POLITICAL
 What about social rights?

What do you think of the protection of

social rights by an international court?
Structure of the European Court of
Human Rights
1. Single Judge: only rules on the
admissibility of applications that
are clearly inadmissible based
on the material submitted by
the applicant.
2. Committee: composed of 3
judges, committees rule on the
admissibility of cases as well as
the merits when the case
concerns an issue covered by
well-developed case law (the
decision must be unanimous).

3. Chamber: composed of 7
4. Grand Chamber: composed
judges, chambers primarily rule
of 17 judges, the Grand
on admissibility and merits for
Chamber hears select number
cases that raise issues that have
of cases usually when the case
not been ruled on repeatedly (a
involves an important or novel
decision may be made by a
question.
majority).
GRAND CHAMBER

Grand Chamber shall (a) determine applications submitted

either under Article 33 or Article 34 when a Chamber has
relinquished jurisdiction under Article 30 or when the case has
been referred to it under Article 43.
Where a case pending before a Chamber raises a serious
question affecting the interpretation of the Convention or the
Protocols thereto, or where the resolution of a question before
the Chamber might have a result inconsistent with a
judgment previously delivered by the Court, the Chamber
may, at any time before it has rendered its judgment,
relinquish jurisdiction in favour of the Grand Chamber
 GRAND CHAMBER

ARTICLE 43 Referral to the Grand Chamber 1. Within a

period of three months from the date of the judgment of
the Chamber, any party to the case may, in exceptional
cases, request that the case be referred to the Grand
Chamber. 2. A panel of five judges of the Grand
Chamber shall accept the request if the case raises a
serious question affecting the interpretation or
application of the Convention or the Protocols thereto,
or a serious issue of general importance. 3. If the panel
accepts the request, the Grand Chamber shall decide
the case by means of a judgment.
- Scoppola (no. 3) v. Italy (no. 126/05)

Case related to the loss of right to vote (disenfranchisement)

The Chamber of the Second Section, delivered a judgment in
which it found, unanimously, that there had been a violation of
Article 3 of Protocol No. 1 to the Convention. It applied the
standards in the case Hirst v. United Kingdom.
The italian Government challenged, inter alia, the consistency of
the Chambers approach with the principles on prisoners voting
rights set forth in Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, ECHR 2005-IX).
- Scoppola (no. 3) v. Italy (no. 126/05)

The restrictions imposed on the applicants right to vote

did not thwart the free expression of the people in the
choice of the legislature, and maintained the integrity
and effectiveness of an electoral procedure aimed at
identifying the will of the people through universal
suffrage (see Hirst (no. 2) [GC], cited above, 62). The
margin of appreciation afforded to the respondent
Government in this sphere has therefore not been
overstepped. Accordingly, there has been no violation
of Article 3 of Protocol No. 1.
INTERIM MEASURES

RULE 39:
The Chamber or, where appropriate, the President of
the Section or a duty judge appointed pursuant to
paragraph 4 of this Rule may, at the request of a party or
of any other person concerned, or of their own motion,
indicate to the parties any interim measure which they
consider should be adopted in the interests of the parties
or of the proper conduct of the proceedings.
 Pilot judgments

The central idea behind the

pilot judgment procedure is The court selects a
that where there are a large particular case that
number of applications appears to be reasonably
concerning the same
problem, applicants will
representative of the
obtain redress more speedily entire group. The ECtHR
if an effective remedy is used the pilot judgment
established at national level procedure for the first
than if their cases are time in 2004.
processed on an individual
basis in Strasbourg.
Pilot Judgments (Rule procedures, art.
61)
1. The Court may initiate a pilot-judgment procedure and adopt a pilot
judgment where the facts of an application reveal in the Contracting Party
concerned the existence of a structural or systemic problem or other similar
dysfunction which has given rise or may give rise to similar applications.
2. (a) Before initiating a pilot-judgment procedure, the Court shall first seek the
views of the parties on whether the application under examination results from
the existence of such a problem or dysfunction in the Contracting Party
concerned and on the suitability of processing the application in accordance
with that procedure.
(b) A pilot-judgment procedure may be initiated by the Court of its own motion
or at the request of one or both parties.
(c) Any application selected for pilot-judgment treatment shall be processed as
a matter of priority in accordance with Rule 41 of the Rules of Court.
Pilot Judgments (Rule procedures, art.
61)
3. The Court shall in its pilot judgment identify both the nature of the structural or
systemic problem or other dysfunction as established as well as the type of
remedial measures which the Contracting Party concerned is required to take
at the domestic level by virtue of the operative provisions of the judgment.
4. The Court may direct in the operative provisions of the pilot judgment that the
remedial measures referred to in paragraph 3 above be adopted within a
specified time, bearing in mind the nature of the measures required and the
speed with which the problem which it has identified can be remedied at the
domestic level.
5. When adopting a pilot judgment, the Court may reserve the question of just
satisfaction either in whole or in part pending the adoption by the respondent
Contracting Party of the individual and general measures specified in the pilot
judgment.
 Merits and reparations

If the Court finds that

If the Court ultimately decides
a case in favour of the
require the State to
applicant, it may award just
satisfaction (monetary
compensation for the
damages suffered.
The Court might there has been no
violation, then the
applicant is not liable for
cover the cost of
the States legal
bringing the case.
expenses.
Why is it important to include the
ideas of margin of appreciation and
subsidiarity within the protocol 15th?
Is there any relation between the
protocol 15th and the protocol 16th?
Execution and compliance

As regards the nature and the scope of other execution measures,

whether individual or general, the judgments are generally silent.
As stressed by the Court on numerous occasions, it belongs in principle to
the respondent State to identify these measures under the Committee of
Ministers supervision.
In this respect, national authorities may, in particular, find inspiration in the
important practice developed over the years by other States, and in
relevant Committee of Ministers Recommendations.
In an increasing number of cases, the judgment of the Court will also seek
to provide assistance so called judgments with indication of interest for
execution (under Article 46).
Execution and compliance: European
System
1) Speeding-up or conclusion of pending proceedings.
2) Reinstatement of the applicants rights.
3) Official statement by the government on the applicants innocence.
4) Modification of a sentence by administrative measure such as
pardon/clemency/non-execution of judgment.
5) Measures concerning restitution of/access to property or use thereof.
6) Measures concerning the adaptation of proceedings.
7) Modification in criminal records or in other official registers.
8) Special refunds.
9) Reopening of domestic proceedings.
10) Measures concerning the right to residence (right granted/reinstated, non execution of
expulsion measure.)
11) Special measures (pictures destroyed, meetings organised between parents and children.)
Execution

https://www.youtube.com/watch?v=4UybuIA5rSo
Advisory jurisdiction
 Protocol 16th
Highest courts and tribunals
of a High Contracting Party
may request the Court to
give advisory opinions on
questions of principle relating
to the interpretation or
application of the rights and
freedoms defined in the
Convention or the protocols
Advisory opinions shall not be
binding. They take place in
the context of the judicial
dialogue between the Court
and domestic courts and
tribunals. The requesting
court decides on the effects
of the advisory opinion in the
domestic proceedings.
African System of Human Rights
African Union (formerly Organization of African Unity - OAU
has played an important role in developing african
jurisprudence)

OAU was created in 1963 in the wake of descolonization. Stablished

to facilitate the relations between the newly african states and to
provide a frum for african policy vis a vis third states.

The OAU chrter stipulates that freedom, equality, justice and

dignity are essential objectives for the achivement of the
legitimate aspirations of the African peoples.
 African System of Human Rights

African In 2000, was adopted the Constitutive Act of the

African Union.
Union In 2001, the OAU ceased to exist.

The primary function of the African Union is to

promote the accelerated integration of the
continent,promoting greater unity and solidarity.

Peace,security and stability are prerequisites for the

realization of the Unions vision.
 African Charter and other instruments
African Charter

Convention governing the specific African Charter on the rights

aspects of refugee problems in
Africa and wlefare of the child.

African Union Convention for

the protection and assistance Protocol of Womens rights
of internally displaced persons
Look at the African Charter: How are rights
categorized?

Civil & Political Rights, Social & Economic

Rights.
Second and Third generation rights are
legally enforceable.
The African Charter
Civil and political rights can
not be dissociated from
social rights.

Includes the right to

development.

Right to freely dispose of

wealth and natural resources
Concept of People

Entire People of one country.

Group of People within a State who see
themselves as distinct.
Indigenous People.
Clawback Clauses in the African Charter on
Human Rights

Article 10 Every individual shall have the right to

free association provided that he abides by the
law (right is subject to the dictates of municipal
law)
African Commission states that international
human rights standards must always prevail over
contradictory national law
No derogation clause
African Charter on Human Rights

Assigns duties to individuals vis-a-vis

the state, other groups, and
individuals
Is it a statist instrument which
sacrifices the interest of individuals?
 African Commission on Human and
peoples Rights

The African Commission on The Commission is tasked with

Human Rights, a body of 11 the promotion and protection
independent experts, was of human rights of people
created in 1987. within the african region.
 African Commission on Human and
peoples Rights

Disseminate information, to formulae and lay down,

to collect documents,
encourage national and principles and rules aimed at
undertake studies and solving legal problems relating to
researches on African local institutions, give its views
or make recommendations human and peoples rights and
problems in the field of fundamental freedoms.
to Governments.
human rights.

cooperate with other African Interpret all the provisions of

and international institutions the present Charter at the
request of a State Party, an
concerned with the
institution of the OAU or an
promotion and protection of African Organisation
human and peoples rights. recognised by the OAU.
 The African Commission
155/96 Social and Economic Rights Action Center (SERAC) and
Center for Economic and Social Rights (CESR) / Nigeria
- The communication alleges that the military government of
Nigeria has been directly involved in oil production through the
State oil company, the Nigerian National Petroleum Company
(NNPC), the majority shareholder in a consortium with Shell
Petroleum Development Corporation (SPDC).
- The consortium neglected and/or failed to maintain its facilities
causing numerous avoidable spills in the proximity of villages. The
resulting contamination of water, soil and air has had serious short
and long-term health impacts, including skin infections,
gastrointestinal and respiratory ailments, and increased risk of
cancers, and neurological and reproductive problems.
155/96 Social and Economic Rights Action
Center (SERAC) and Center for Economic
and Social Rights (CESR) / Nigeria
PROTECTION OF THE PEOPLES ENVIROMENTAL
RIGHTS AND RIGHTS TO NATURAL RESOURCES.
PROTECTION OF RIGHT TO HEALTH.
PROTECTION OF RIGHT TO HOUSE.
PROTECTION OF RIGHT TO FOOD.
 African Court of Human Rights

The Court consists of 11

judges elected by the AU
Assembly from African The Assembly considers They are elected by secret
jurists nominated by State equitable geographical, ballot for six-year terms,
Parties to the Protocol. legal tradition and gender renewable once. No two
(with the exception of representation. judges may be of the same
some of those elected at nationality.
the first election).
 Jurisdiction of the African Court on
Human Rights
Advisory
A Member State of the OAU,
the OAU, any of its organs, or
any African organization
recognized by the OAU, the
Court may provide an opinion
on any legal matter relating
to the Charter or any other
relevant human rights
instruments.
Contentious
The jurisdiction of the Court
shall extend to all cases and
disputes submitted to it
concerning the interpretation
and application of the
Charter and any other
relevant Human Rights
instrument ratified by the
States concerned.
ACCESS TO THE COURT

Article 5 ACCESS TO THE COURT

1. The following are entitled to submit cases to the Court:
a) The Commission
b) The State Party which had lodged a complaint to the Commission
c) The State Party against which the complaint has been lodged at the Commission
d) The State Party whose citizen is a victim of human rights violation
e) African Intergovernmental Organizations
2. When a State Party has an interest in a case, it may submit a request to the Court to be
permitted to join.
3. The Court may entitle relevant Non Governmental organizations (NGOs) with observer
status before the Commission, and individuals to institute cases directly before it, in
accordance with article 34 (6) of this Protocol.
Compliance
Judgments are binding.
The Council of Ministers shall also be notified of
the judgment and shall monitor its execution on
behalf of the Assembly.
The Court shall submit to each regular session of
the Assembly, a report on its work during the
previous year. The report shall specify, in
particular, the cases in which a State has not
complied with the Courts judgment.
 African Committee of Experts on the
Rights and Welfare of the Child

Interpret the
provisions of the
Charter at the
Monitor the request of a State
Promote and implementation
protect the rights Party, an AU/OAU Perform other
and ensure
enshrined in the institution or any tasks as entrusted
protection of the
Charter other person or by the Assembly.
rights enshrined in
the Charter institution
recognised by the
AU/OAU
 Proposed African Court of Justice and
Human Rights
The new merged African Court of Justice and
Human Rights will enjoy wide base of jurisdiction
in terms of article 28 of its Statute: general
international law, all human rights instruments
ratified by the parties, acts and decisions of the
organs of the Union, interpretation of all Union
constitutive documents and treaties.
 Inter American System of Human Rights

- The Inter-American System is responsible for monitoring

and ensuring implementation of human rights guarantees
in the 35 independent countries of the Americas that are
members of the Organization of American States (OAS).
- The inter-American human rights system was born with the
adoption of the American Declaration of the Rights and
Duties of Man in Bogot, Colombia in April of 1948
- In 1969, the American Convention on Human Rights was
adopted. The Convention entered into force in 1978.
 Structure
The Inter-American System is composed of two entities: a
Commission and a Court.
Both bodies can decide individual complaints concerning
alleged human rights violations and may issue emergency
protective measures when the rights of an individual are
in risk.
The Inter American Commission on Human Rights was
created in 1959 by the Charter of American States. In
1965, the IACHR was expressly authorized to examine
complaints or petitions regarding specific cases of human
rights violations.
 Inter American Commission on Human
Rights
to develop an awareness of
human rights among the
peoples of America;
To make recommendations to
the governments of the
To prepare such studies or
member states, when it
reports as it considers
considers such action
advisable in the performance
advisable, for the adoption of
of its duties
progressive measures in favor
of human rights

To take action on petitions

To request the governments of
the member states to supply it
with information on the
measures adopted by them in
matters of human rights
and other communications
pursuant to its authority under
the provisions of Articles 44
through 51 of this Convention;
and
Who is the victim?

Individuals
Not moral persons.
Case Uson Ramirez:
() it must be clarified that Article 1(2) of the Convention sets forth that the right
recognized in such instrument correspond to persons, i.e. to human beings and
not to institutions such as the Armed Forces. Therefore, when analyzing the
alleged conflict of rights in this case, it is not the intention of this Tribunal to
determine the scope of the rights that the institution of the Armed Forces could
have, since this would be beyond the scope of its competence ()
Rights protected

Civil Political

Social
Article 26 (American Convention)

Article 26. Progressive Development

The States Parties undertake to adopt measures, both
internally and through international cooperation,
especially those of an economic and technical
nature, with a view to achieving progressively, by
legislation or other appropriate means, the full
realization of the rights implicit in the economic,
social, educational, scientific, and cultural standards
set forth in the Charter of the Organization of
American States as amended by the Protocol of
Buenos Aires.
Competence of the Inter American
Commission
Rationae Materia:

American Declaration (USA)

American Convention (all States that ratified the
treaty)
Other treaties (the ones the indicates or make
reference to the system of petitions)
Inter American Commission on Human
Rights
Precautionary measures:
The mechanism for precautionary measures is established in
Article 25 of the Rules of Procedure of the IACHR.
The Rules of Procedure establish that, in serious and urgent
situations, the Commission may, on its own initiative or at the
request of a party, request that a State adopt precautionary
measures to prevent irreparable harm to persons or to the
subject matter of the proceedings in connection with a pending
petition or case, as well as to persons under the jurisdiction of the
State concerned, independently of any pending petition or
case.
Crisis of the Inter American
Commission on Human R ights
Brasil. Case Belo Monte
What is your opinion about the decision of the
Inter American Commission on Human Rigths?
Is the precautionary measure binding? What
might be some of the reasons for which they
could be binding?
 Inter American Court of Human Rights

Advisory
Provisional
Competence
measures
(art. 64.2)

Jurisdiction
(art. 63.3)
ADVISORY COMPETENCE

The member states of the Organization may

consult the Court regarding the interpretation of
1. this Convention or of other treaties concerning
the protection of human rights in the American
states.

Within their spheres of competence, the organs

listed in Chapter X of the Charter of the
2. Organization of American States, as amended by
the Protocol of Buenos Aires, may in like manner
consult the Court.
ADVISORY COMPETENCE

The Court, at the request of a

member state of the
Organization, may provide that
state with opinions regarding
3.
the compatibility of any of its
domestic laws with the
aforesaid international
instruments.
 Advisory competence

Court always makes references to

the standards which come from
advisory opinions.
Some governments (judges)
apply the standards of the
advisory jurisdicction.
Provisional Measures

In cases of extreme gravity and

urgency, and when necessary With respect to a case not yet
to avoid irreparable damage
submitted to the Court, it may
to persons, the Court shall
adopt such provisional act at the request of the
measures as it deems pertinent Commission.
in matters it has under
consideration.
Example.

Beatriz, a 22-year-old Salvadoran woman, who suffers from Systemic Lupus

Erythematosus aggravated with lupus nephritis and rheumatoid arthritis, is
the mother of a 14-month-old boy and is currently 26 weeks pregnant with
an anencephalic fetusa fetus without a brainwhich is a major anomaly
incompatible with life outside the womb.
The Court required the Salvadoran State to take all the medical measures
necessary to ensure, in an urgent manner, the due protection of the right to
life and personal integrity of Beatriz, which means interrupting her
pregnancy in accordance with the recommendations of her doctors.
CASE OF THE PEACE COMMUNITY OF
SAN JOS DE APARTAD
That this Court has previously protected, in the instant case, a plurality of
persons who have not been previously named and who are at grave risk in
light of the fact that they are members of the Community.2 Under the
current circumstances of the instant case, there are individuals in the
Peace Community of San Jos de Apartad who are in the same situation
in terms of risk, and who have not been determined, but who may be
identified and individualized through their link to the community as service
providers. Therefore, the Court deems it necessary (...) to expand those
measures to all persons linked as service providers to that Peace
Community.
 Jurisdiction: individual complaints

Any person or group

of persons, or any
nongovernmental
The Inter American The Court might
entity legally
Commision claims analyze the case:
recognized in one or
before the Court (art. preliminary
more member states
51.3 American objections, the
of the OEA can
Convention) merits, and
complain before the
reparations
Commision (art. 41
American
Convention)
The procedure before the Court

Any person or institution seeking to act as

amicus curiae may submit a brief to the
Tribunal, together with its annexes.

In cases where alleged victims are

acting without duly accredited legal
representation, the Tribunal may, on its
own motion, appoint an Inter-American
defender to represent them during the
processing of the case.
 Type of cases

First type of cases Second type of

cases

Violation of Violation of
human rights tied human rights
Gross violations to the defence of (minorities, social
of human rights democratic rights, among
order others)
Protected rights

Social
Amnesty laws dimension of
right to property

Social
dimension of
right to integrity
 Reparations

Modification of Legislation Modification of Constitutions

Tribunal Constitucional vs. - -
Peru
Barrios Altos vs. Peru - -
Last temptation of Christ vs. X
Chile
Yatama vs. Nicaragua X X
Gelman vs. Uruguay X
Artavia Murillo vs. Costa X
Rica
Quintana Coello vs. X
Ecuador
Is the Inter American Court a sort of
supra constitutional court?
The subsidiarity principle and the
margin of appreciation?