W6: Regional systems- American and African HR system
America (continent)
Instruments in the Americas
- OAS Charter
- American Declaration on the Rights and Duties of Man (1948, even before the UN
declaration was adopted)
- American Convention on Human Rights + later Protocol of San Salvador and Protocol
to Abolish Death Penalty
- Specialized Treaties (eg on Torture, in violence against women)
Substantive Rights
- Declaration: contains all rights (and you are obliged as a party whether you ratified it
as state or not)
- Convention: contains civil and political rights (only obliged when ratified it)
- Protocol: contains economic, social and cultural rights
- Jurisdiction: laws applying on territory, but also effective control (outside the
territory or on a person with nationality)
- Limitations:
General article 30
Specific provisions
- Non-derogation clause: article 27
Institutions
- Inter-American Commission on Human Rights
- Inter-American Court on Human Rights
Inter-American Commission on Human Rights
- Charter organ and treaty body
Relation between Declaration and Convention
- All OAS Member States (35)
Commission monitors compliance with Declaration
- States that ratified ACHR (24)
=> Commission monitors compliance with ACHR
- States that ratified ACHR and recognized competence of Court (22)
Commission and Court
Inter-American Court
- Established by Inter-American Convention
Supervision only on state parties
- Functions:
Advisory jurisdiction
(State parties, OAS MS, OAS organs
Contentious jurisdiction
, Individual Complaint Procedure
- Step 1: Inter-American Commission
Who? Individuals, groups and NGO’s, State parties (you don’t necessarily have to
be a victim yourself)
About what? All previsions of HR Convention, several provisions of San Salvador
Protocol, Conventions...
Criteria: exhaustion of domestic remedies+ no duplication of international
procedures
Hearings and on-site visits
Final decision; recommendation (state not obligated to accept this (no force of
domestic law. If the state party does not comply with recommendation of the
Commission, the Commission can submit the case within 3 months to the Court)
- Step 2: Inter- American Court
Who? States and Inter-American Commission (not the individuals directly)
Criteria: state is party to Convention, State acceptance of jurisdiction, Procedure
of Commission has ended
Written and oral procedure
Judgements are binding and directly enforceable
Reparations (this can be damages/compensations/more symbolic reparation’s,..)
Critique: no follow-up (no control on the reparations, eg by Ministers or
something like that)
Case law Inter-American System
- Indigenous peoples (inheemse bevolking; people as group)
- Awas Tingni v Nicaragua (2001)
- Violation of the right of property because of the eviction?
- Collective rights here: for the whole group of people (Indians)
- Court obliged to the state to repair this (mark a territory for the group with respect
for the culture and territories)
Africa (continent)
African Human Rights Instruments
- Charter OAU (1963) and Constitutive Act African Union (2000)
- African Charter on Human and Peoples’ Rights (1981)
- African Charter on Human and Peoples’ Rights
- Protocol on the Establishment of the African Court on Human Rights
- Specialized treaties on Children, Women and Corruption
Substantive Rights- Charter
- All categories of rights (no difference in nature etc- they put it in 1 document)
- No non-derogation- clause!
- Individual and collective rights (art 22,23)
- It contains rights, as well as duties (art 27)
America (continent)
Instruments in the Americas
- OAS Charter
- American Declaration on the Rights and Duties of Man (1948, even before the UN
declaration was adopted)
- American Convention on Human Rights + later Protocol of San Salvador and Protocol
to Abolish Death Penalty
- Specialized Treaties (eg on Torture, in violence against women)
Substantive Rights
- Declaration: contains all rights (and you are obliged as a party whether you ratified it
as state or not)
- Convention: contains civil and political rights (only obliged when ratified it)
- Protocol: contains economic, social and cultural rights
- Jurisdiction: laws applying on territory, but also effective control (outside the
territory or on a person with nationality)
- Limitations:
General article 30
Specific provisions
- Non-derogation clause: article 27
Institutions
- Inter-American Commission on Human Rights
- Inter-American Court on Human Rights
Inter-American Commission on Human Rights
- Charter organ and treaty body
Relation between Declaration and Convention
- All OAS Member States (35)
Commission monitors compliance with Declaration
- States that ratified ACHR (24)
=> Commission monitors compliance with ACHR
- States that ratified ACHR and recognized competence of Court (22)
Commission and Court
Inter-American Court
- Established by Inter-American Convention
Supervision only on state parties
- Functions:
Advisory jurisdiction
(State parties, OAS MS, OAS organs
Contentious jurisdiction
, Individual Complaint Procedure
- Step 1: Inter-American Commission
Who? Individuals, groups and NGO’s, State parties (you don’t necessarily have to
be a victim yourself)
About what? All previsions of HR Convention, several provisions of San Salvador
Protocol, Conventions...
Criteria: exhaustion of domestic remedies+ no duplication of international
procedures
Hearings and on-site visits
Final decision; recommendation (state not obligated to accept this (no force of
domestic law. If the state party does not comply with recommendation of the
Commission, the Commission can submit the case within 3 months to the Court)
- Step 2: Inter- American Court
Who? States and Inter-American Commission (not the individuals directly)
Criteria: state is party to Convention, State acceptance of jurisdiction, Procedure
of Commission has ended
Written and oral procedure
Judgements are binding and directly enforceable
Reparations (this can be damages/compensations/more symbolic reparation’s,..)
Critique: no follow-up (no control on the reparations, eg by Ministers or
something like that)
Case law Inter-American System
- Indigenous peoples (inheemse bevolking; people as group)
- Awas Tingni v Nicaragua (2001)
- Violation of the right of property because of the eviction?
- Collective rights here: for the whole group of people (Indians)
- Court obliged to the state to repair this (mark a territory for the group with respect
for the culture and territories)
Africa (continent)
African Human Rights Instruments
- Charter OAU (1963) and Constitutive Act African Union (2000)
- African Charter on Human and Peoples’ Rights (1981)
- African Charter on Human and Peoples’ Rights
- Protocol on the Establishment of the African Court on Human Rights
- Specialized treaties on Children, Women and Corruption
Substantive Rights- Charter
- All categories of rights (no difference in nature etc- they put it in 1 document)
- No non-derogation- clause!
- Individual and collective rights (art 22,23)
- It contains rights, as well as duties (art 27)
