Regional Protection of HR Flashcards
What does the UN say about regional systems for protection of HR?
According to article 52, Chapter 8 of the Charter of UN, it is encouraged to develop regional systems with the purpose to secure and maintain peace and security. And in 1977, the UN General Assembly with the General Assembly Resolution 32/127 acknowledged the benefit of regional protection of HR.
What are the benefits of regional protection of HR?
- Territorial dimension/Geographical factor: makes the mediation process easier, sharing of political, cultural and linguistic tradition make the process of drawing treaties or provisions easier, therefore also more easily respected + proximity as help to influence each others behaviours and ensuring compliance. But can also be a problem, if regional values taken too far on the cost of HR.
- Accessibility and openness: language aspect, transparency, geographical proximity esp. before internet. Many regional system produce legal provisions and receive communicational documents in all the major languages present in the area.
- Knowledge and knowability: knowledge of specific situation for members, better understanding of political situation, perception of what is going on.
- Monitoring and enforcement mechanism. Possibility to enforce HR based on mechanisms which resonates better with local conditions. E.g. judicial approach in EU - peer review and commissions in the AU. Diplomatic efforts, political pressure more successful due to interconnections.
What are the main regional systems for HR protection?
Three main systems.
Europe: The council of Europe.
Africa: The African Union.
America: The Organisation of American States.
(Asia: Association of South East Asian Nations.
Arab-Islamic Context: Organisation of the Islamic Conference
Commonwealth of independent states)
What can be said about Asia and regional systems for HR protection?
There is the Association of South East Asian Nations. In 2009, it created an inter-governate Commission on HR. We can find political and programmatic documents. But not normative predictions or binding legal instruments. Some states are non-democratic. So, despite a step towards regional HR protection, it does not have treaties or conventions that can be compared to the EU, AU or Inter-American.
What can be said about the Arab-Islamic context and regional protection of HR?
In the Organisation of the Islamic Conference 1990, a document called Declaration of HR of Islam was set up. Programmatic manifesto aimed at a number of principles, but not binding for states.
In 1994, the Arab Permanent Commission on HR drafted the Arab Charter on HR, but it did not come into force. The Arab League adopted a revised charted which came into force 2008. It recognizes many important rights consistent with international HR law, but in regards to some issues such as death penalty, women’s rights, freedom of expression and religion it is deeply connected to Sharia law. So, it encompasses the fundamental safeguards common to main international documents on HR, but it has a strong ideological or religious connection with permeates the substance and contents. Art. 45 of the charter established the Arab HR Committee. An Arab Court of HR is on the agenda.
Morroco: the king, also head of the believers, started several reforms trying to strengthen equality between genders.
What is the history of the Council of Europe?
It was established 1949, with the Treaty of London, after WW2, with the purpose of cooperation and dialogue to avoid another war. It was set up in Strasbourg, to promote democracy, protect HR and the rule of law in Europe.
Connected to the European Coal and Steel Community, set up 1950; coal and steel matter because every war starts for political reasons, but at the end, the reasons are of economic nature. Then, 1957, ECC.
Where is the aim of the Council of Europe stated?
Art 1 of the Statute of the Council of Europe. The Council shall pursue its aims promoting signature of agreements and common action in various fields among its members. Since 1949 until now, more than 200 conventions and treaties have been approved. The majority on HR.
The main goals of CoE?
Protect freedom of expression and of the media, freedom of assembly, equality, non-discrimination, protection of minorities. But the Council has also launched campaigns on child protection, online hate speech, rights of Roma people etc. Another important line of action is to help members fight corruption, terrorism and to undertake necessary judicial reforms.
What is the Venice commission?
It is a group of constitutional experts which act as the CoE’s advisory board on constitutional matters, and since HR is a constitutional matter , one of the main fields of intervention of the Venice Commission is about HR protection. They offer legal advice to the Council and its members states.
What is the structure of the Council of Europe?
The Secretary General is elected by the Parliamentary Assembly for a 5 year term and is responsible for strategic planning and direction of the Council’s work and budget. The Secretary General leads and represents the org. and is assisted by a Deputy Secretary General.
The Committee of Ministers is the Council’s statutory decision making body. Decides CoE’s policy, approves its budget and programme of activities. It represents the national executive powers.
The Parliamentary Assembly Consists of 324 members, from the 47 member states. It selects the Secretary General, the HR commissioner and the judges of ECtHR. It also provides a democratic debate forum and monitors elections.
The HR commissioner was created 1999 and is an organ that addresses and brings attention to HR violation. But only power of a political nature.
Then we have the Congress of Local and Regional Authorities, responsible for strengthening local and regional democracy in member states.
Finally, the ECtHR.
What is important to know about the ECHR?
It was open to signature 1950 and entered into force 3 years later. It established and developed the most advanced system of international HR protection and has influenced other systems, e.g. the inter-American one.
In its preamble, it recalls the UN Universal Declaration stressing the shared main purposes: foundation of justice, peace, as elements to be protected thanks to democratic political regimes and a common understanding and observance of HR.
It contains only negative freedoms, at least expressly.
It established the ECtHR. Within the CoE system there are also other documents with their own monitoring bodies, but ECtHR is of special importance since it decides on the proper application of ECHR but also due to its broad and extensive way of interpretation of it, which includes new rights in the rights. E.g. the safe environment.
What is the European Social Charter?
While ECHR gave priority to civil and political rights, the ESC integrates the protection of economic and social rights into the CoE-system. Counterpart to ECHR. Signed 1961. Deeply revised in the 90s.
What does CoE say about minorities?
There is the Framework Convention on National Minorities, signed 1995. First international treaty devoted exclusively to protection of minorities. Focus on individual rights, instead of the collective dimension. Strong stress on principles of equality and non-discrimination. But also promoting conditions necessary for preserving cultural identity. Promoted intercultural dialogue. Recognises the freedom of self-identification. Provides wide protection. Monitored by CoE Committee of Ministers + the Advisory Committee of FCNM, which as a system of country visits, consultations with NGOs and ind. institutions..
Talk about the ECtHR
Open to states and individuals regardless of nationality, including migrants or stateless people within the territory of one of the signatory states. Domestic constitutional courts, tribunals and supreme courts take ECtHR case law into account, even though they are formally binding only for the parties of the trial.
The ECtHR is not bound by national definitions of certain concepts.
The Court can elaborate positive obligations, that goes further than the ECHR. Controversial, since the states accepted the ECHR - limits - but with case law the states cannot just be passive.
Weakness of Court:
- decision comes too late, due to overburdened Court.
- it can only give judgement in last instance, when the applicant has exhausted all domestic remedies.
Weaknesses of the ECHR
The catalogue of HR is not exhaustive.
Court decision comes too late, due to overburdened Court. Can take years for applicants to get there.
