Which system of human rights is more effective in the protection and promotion of human rights? A Comparative Analysis of the European and African regional human rights systems
Despite being a universal notion, human rights are conceived in varying theoretical terms and implemented in different ways. In fact, mainstream comparative law that observes how laws are always bound to ground realities. Context determines the content and practice of human rights laws and is itself shaped by historical and socio-political factors thus impacting the practice of human rights[1].
Human rights refer to human rights standards as well as regional institutions created to protect them. It is impossible to realise universal human rights in the absence of a regional system enforcing them. Thus, regional systems work as a conduit and help make human rights a global concern[2]. However, the same researchers have also observed how regional human rights can vary significantly from UN norms, and declarations like the Cairo declaration or Bangkok declaration might impede the implementation of UN resolutions[3].
Moreover, the role of state institutions in promoting and preserving human rights largely determines the degree of efficiency with which such laws are finally implemented. It is this final aspect that largely determines the success or failure of a regional system of human rights law.
European and African Human Rights systems are often regarded at two opposite ends of the spectrum[4]. The main research question that the paper seeks to answer is: Which of the two systems (European and African) is more effective in the safeguard and protection of human rights. The essay aims to shed some additional light on the matter, by comparing and contrasting the two mentioned systems and providing a structured perspective on the two human right systems.
The purpose of this essay is to offer a comparative overview of European and African Human Rights frameworks and practices and to analyse both systems critically. On the one hand, the essay highlights how one system is more effective than the other and on the other hand, argues how this is dictated by historical as well as socio-political factors. The essay will firstly address the European human rights system, including historical development, the aftermath of world wards, origin and development of EctHR, current legal practices and legal instruments in Europe. In the second part, it discusses African human right system, followed by a comparative analysis of how effectively human rights law operates in Europe and Africa and discussion of legal instruments and institutional support for human rights.
The European legal framework of human rights is regarded as one of the most sophisticated[5]. For a further discussion, it is necessary to understand the historical development of the European system of human rights.
Naturally, the main sources of European human rights law and most notable cases related to human rights need to be briefly analysed. That way the actual practice of human rights law and how effective it is can be determined.
Historical Development
Human rights law has evolved tremendously across the ages in Europe. From medieval to the modern period, Europe has witnessed very progressive developments in the field of human rights legislation. In fact, some have argued that the European venture of formulating an effective and efficient human rights system seems to be rooted in a desire to exert cultural and civilizational superiority[6].
According to Greer, the most fundamental shift in European human rights was the replacement of the Feudal establishment, based on obligations and fixed class hierarchies, to a system of human rights and liberties guaranteed by a constitution[7]. This shift from a system centred around obligations to one based on undeniable fundamental rights has been the most significant transition in European law.
Historically, the Second World War and the Universal Declaration of Human Rights have greatly influenced European Human Rights law. This formative period of European Human Rights law existed in a period where geopolitics was dominated by a politics of ideology. Communism itself is seen as a factor that promoted the willingness to establish a robust system of human rights based on democratic principles[8].
European Social Charter and the European Convention on Human Rights
The 1950 European Convention on Human Rights[9] has been instrumental in the development of Human Rights in Europe. In its preamble itself, we find the essential link between regional and universal notions of human rights. It seems that the European human rights system since the early days was geared towards the global protection of human rights and wished to remain in sync with human rights in the international context[10].
The European Social Charter of 1961, which was later revised in 1996, is another essential document for European Human Rights Law. It displays a high degree of flexibility in the sense that it allows for members to choose an unlimited number of social rights provisions while ratifying the charter[11].
Origin and development of ECtHR
Comparative research carried out on the European Court of Human Rights (ECtHR), the ECJ, ICJ, and ICC have revealed the most formative historical processes that have shaped European human rights law[12]. The European Court of Human Rights began as a supranational court after the ICC. While the ICC had come into existence after WW2 and was instrumental in the Nuremberg trials[13] in the aftermath of the Holocaust wherein Nazi Germany was charged with crimes against humanity, yet, individual claims of human rights violations could not be addressed at the ICC. Thus, the ECtHR arose explicitly to enable individuals to present their cases of rights violations within Europe.
It could be argued that historically, the biggest challenges that the ECtHR has had to face include the need to enforce laws uniformly while also respecting cultural and national customs of member states. Much criticism is still levelled on account of its lack of ability to enforce its decisions upon member states. However, much progress has been made. After the enactment of Protocol No. 11, the ECHR has higher authority in inter-state conflicts and has successfully streamlined the process of appealing before the ECtHR in Strasbourg.
Further, ECHR has been more active during certain historical periods. While 1950 to 1980s was relatively dormant, between mid-1980 and late 1990s the volume of cases related to human rights abuses was enormous. This influx of cases reached an overload from the late1990s to mid-2000s with more than 30,000 applications lodged by 2001[14]. Due to this backlog, Protocol No. 14 was adapted to ensure efficient delivery of justice at the ECHR coming into force during 2006-2007.
A more recent development in the evolution of human rights in Europe is the realisation that individual rights must be protected in equal measure to the protection accorded to states and that without protecting rights of individuals it is meaningless to offer special rights to the states where they are citizens. An interesting statistic in this regard is that while ECHR has never dismissed an inter-state plea, almost 98 per-cent of individual complaints are declared inadmissible. However, according to Greer, this owes more to the volume of such cases than any intended bias as only a handful of inter-state cases have been brought up in comparison to the multitude of cases brought to the court by individuals[15].
Other historical milestones include the Funke V. France case[16], wherein the right to a fair trial and the right against self-incrimination were discussed. Prior to this case, there was a lack of clarity and consensus on what the right to a fair trial entailed. A distinction was made between the fair and unfair means employed by authorities in procuring evidence. This case has since become the foundation of the right against self-incrimination.
Even in recent history several political conflicts and the abuse of human rights during the war have been dealt with at ECtHR. After the Chechen war, Russia was found guilty of a massacre during its invasion in 1999. This instance of genocide was brought to the ECHR through 31 cases filed, Zura Bitiyeva being instrumental[17].
In addition to being a unique forum for individuals to make states accountable for their actions, the hearing of such cases in the ECHR has served one more purpose: sensitising global actors towards the need to widen the scope and jurisdiction of the ECtHR. Due to this, rights activists have been calling for greater power and authority being granted to the ECHR.
Dealing with the most recent historical developments, De Búrca studies the evolution of the Court of Justice of the European Union (CJEU) in the aftermath of the Lisbon treaty (2009) after which the EU Charter of Fundamental Rights was made formally binding. He examines the role of the CJEU as an adjudicator of human rights[18]. Among the areas that are now covered by the charter are the laws related to immigration, asylum, security, and privacy. Again, historical factors which seem to have encouraged such developments can be pinpointed; namely: the mass migration of refugees from Arab countries in the aftermath of the Syrian and Yemeni crises.
Legal Instruments / Framework
The most fundamental legal documents and instruments that form the bedrock of European Human Rights Laws include: the decisions of the European Court of Human Rights, the European Convention of Human Rights as well as cases such as: Ozturk V Germany[19], Conka V Belgium[20], Winterverp V The Netherlands[21], Sahin V Turkey, Griggs V Duke Power Co.[22] and others[23]. The reason these cases need to be the highlight is that they directly impact the future of human rights law viz-a-viz right to property, free speech, education, liberty, the security of person, fair public hearing and the right to freedom from discrimination[24].
Greer in his seminal work on the European Human Rights Convention critically analyses the contents of the convention under the central theme of constitutionalisation[25]. While the convention was officially created in 1950 by 10 Council of Europe member states, it has come a long way in ensuring political liberties and the rule of law in Europe.
Institutions Protecting Human Rights
The most important contributions to European Human Rights Law have been made by the European Social Charter 1961 1996 and the European Committee on Social Rights[26] as well as the ECJ[27]. Recent research has even analysed the role of ECJ specifically as a human rights adjudicator[28] and with the emergence of entities like Court of Justice of the European Union (CJEU) post 2009, more and more internationally reputed organisations and legal institutions are teaming up to create a continent-wide network of judicial systems that will help solve issues related to human rights.
In fact, the effective institutionalisation of human rights law and the centralisation of the ECHR in Strasbourg are indicators of success. In addition to withstanding the challenges of the post-cold-war period and the clash of ideologies that divided Europe, the existence of an efficient and robust system of justice that sincerely seeks to address cases of rights violations in a multi-state entity is commendable.
Current Practice in Europe
The efficiency of the human rights laws in Europe is in line with the willingness of states to honour the decisions of the ECtHR even if it goes against state interests. This has created a culture of flexibility and openness in the entire practice of human rights. Research has specifically been studying features of the European Human Rights framework, particularly features like Embeddedness[29] and Subsidiarity[30] and how they impact the practical implementation of human rights law.
African Human Rights System
The African system of human rights provides several contrasts to European Human rights law. On the one hand, it has developed from different historical processes and is operational in a totally different socio-political context. Moreover, the issues of poverty, corruption, and state-sponsored human rights violations compound the challenge.
The second part of the essay will develop an argument that unlike Europe, human rights laws have been more heterogeneous across Africa, and the local government chose to express varying degrees of concern over human rights abuses. This has been a problem, and the absence or an apex body that can match the credibility and power of the European Human Rights Court created obstacles in the effective implementation and efficient practice of human rights law in Africa.
Historical Development
The demand for an indigenous African Human Rights System is often traced to the Banjul Charter[31]. Also, Nnamdi Aziwike is considered the first to advocate an African HR charter in response to the 1941 Atlantic Charter in protest to which Aziwike presented a memorandum to the British government[32]. The 1961 Law of Laos also voiced a need for an African HR court and an African charter. This led to a series of meetings that in turn lead to the creation of the African Charter on Human and Peoples’ Rights.
Several theories have been put forth to account for the demand for human rights law in Africa. On the one hand, realists claim that hegemony and anarchy serve the main impetus and Africa had plenty of that in the 1970s. On the other hand, Moravcsik identifies ideational causes such as a government’s aim to secure self-interests abroad[33]. In this connection, many have cited the 1975 Jimmy Carter declaration which stated that US Foreign Aid given to a country would be based on its HR record. The Ugandan-Tanzanian war is yet another probable reason cited by theorists. However, Kufuor rejects all these speculations and instead cites the role of NGOs as the main reason for the shift towards an apex legal system of human rights. This observation has been discussed at length by other researchers, and the crucial role that NGOs continue to play in the African human Rights context has been widely recognised[34].
Legal Instruments / Framework
The African Charter of Human and People’s Rights is the main body of human rights laws and procedures for the resolution of conflicts in Africa. Starting from the 1970s, the earliest version of the African Charter was experimented with in the midst of dictatorial regimes and one-party systems given to HR violations. Thus, initially, the charter was restricted by state influence and little could be enforced in terms of compliance with Human Rights Laws[35].
However, gradually over the past decades, the African Charter has grown in power, with all member states upholding its decisions. One turning point has been the 16th Summit of the OAC which urged member states to sign international treaties on Human Rights.
From a legal point of view, it is important to understand the developments that the charter underwent. The 1988 version of the Charter, especially its Rules of Procedure suffered several drawbacks, and this is why the Charter was rewritten in 1995 with necessary changes put in place. Clawback issues were a severe problem and member states could simply go back on the charter when there was a clash with domestic law. This easy breach of obligations made a mockery of the system.
During the 18th Session in 1995, the African Charter witnessed major changes to its rules of procedure and communication (Article 55) all in line with a rights-maximising agenda. The intent here from a legal perspective was two-fold: decentralisation of human rights administration and making states communicate more transparently with the Human Rights Commission. The direct impact of this change was the Commission transitioned from a state-centric HR institution to one like the ECtHR where individuals put forth their grievances and take states to task for HR abuse[36].
In its current state, the African Charter on Human and Peoples’ Rights, has been the subject of various studies. Evans and Murray have discussed at length the contents and implication of Articles of the Charter which deal with various aspects of civil and political rights such as: obligations of the state, non-discrimination and equal protection, right to life and dignity, right to fair trial, right to information, right to property, right to peace and security and others[37]. In conclusion of their study of the Articles of the African Charter, they have observed that this is the only international human rights instrument that recognises the rights of “peoples” at length. In no less than 6 Articles these rights are discussed with explicit reference to rights of peace and security, environment and natural resources. Based on this observation it can be concluded that the main problem lies with the implementation of the charter while as the legal contents of the charter are remarkably progressive, even when compared with the European charter.
Institutions Protecting Human Rights
When it comes to institutions in charge of protection of human rights, according to Kufuor, the African Human Rights system is an interlocking system of three main subsystems. The first tier of this system is formed by the Organisation of African Unity (OAU), the African Union (AU) and related charters, declarations, protocols, decisions, and tribunals; while the second is the sub-regional economic integration treaties and courts; and the third consists of developments within domestic legal systems of member states[38].
Kufuor argues, like other sociological institutionalists, that institutions are not just for efficiency but must also reflect socio-political realities. Building on the given argument we can conclude that in Africa, the main concern should not only be the efficiency of Human Rights courts in terms of output but also how well they fit into a changing legal landscape[39].
Current Practice in Africa
Africa has witnessed tremendous changes from the socio-political challenges that the region witnessed in the 1970s. Two main changes that have occurred are the fall of dictatorial powers and greater awareness in society regarding human rights and the need to protect them. As a result, the latest form of human rights law and its practice in Africa as well its future course will be augmented based on the new socio-political realities on the ground.
Crucial to the current practices related to the protection of Human Rights in Africa is the level of cooperation and compliance accorded to it by member states. Therefore Articles 25 and 26 of the African Charter[40] encourage regional human rights organisations to play a constructive role. Moreover, although the 1970s witnessed blatant disregard and non-compliance with HR regulations, presently non-compliance seems to be a rare occurrence[41].
The impact of the African Charter and its acceptance by member states[42] can be seen in the case of states like Nigeria, Botswana and Benin[43]. As a result of the ruling on Inspector General of police V. All Nigeria People’s Party, Nigeria incorporated the African Charter into its domestic law. Similarly, Benin ended the one-party system and re-wrote the constitution in line with the charter In Botswana also the pre-eminence of the Charter was upheld in the Dow V. Attorney General.
A number of cases such as Mohamed El-Nekheily v. OAU[44], International Lawyers Committee for Family Reunification v. Ethiopia[45], Henry Kalenga v. Zambia[46], Frederick Korvah v. Liberia[47] Dr Kodji Kofi v. Ghana[48] also shed light on the practical functioning of the African Human Rights system.
Thus, we can see that as geopolitics in Africa changes, there is an inclination towards a more honest and efficient system of human rights and this change is evident in shaping domestic laws of member countries. Now there are fewer inter-state conflicts, most states are complying with decisions of the HR commission, and individuals now have a say; all this is indicative of a progressive legal system.
Evans and Murray have studied the African Human Rights system in practice between 1986 and 2006 and concluded that while there are seemingly positive aspects of the current situation of human rights law in Africa, these changes must not be mistaken as ultimate[49]. Given the rise in mortality rates and diseases, imprisonments of political activists, the internal problems of the AU and failure to meet several objectives of HR reforms, there is still a lot that needs to be done in terms of the legal framework and judicial procedure.
A Critical Analysis of how effectively human rights law operates in Europe and Africa
The need to study the African system of human rights in comparison with Europe is not new. As early as 1984, researchers like Okere pointed out the differences between the two systems as well as the divergent historical forces and geopolitical scenarios that helped shape each system[50]. Based on our discussion of what constitutes the peculiar human rights systems of Europe and Africa and how historical developments have played a significant role, a critical analysis is required to fully appreciate where these systems stand in terms of efficiency and effectiveness. This analysis can be carried out both in terms of the body of law governing human rights in both contexts as well as the role of human rights institutions and the authority they enjoy in the region.
Critical Analysis of Legal instruments and Institutional Support for Human Rights
Institutional and state support is crucial for implementing human rights and the performance of how well a region performs largely depends on such support and how efficient the legal framework is. While both African and European systems of Human Rights have their peculiarities and uniqueness, when studied comparatively, we find several differences, lacunae and even procedural aspects that need to be reformed.
Anja and Villiger, editors of a crucial document on the judgments of the ECtHR, have brought forth a collection of papers that highlights both effects and implementations of the court’s rulings[51]. The work documents the procedure in place for legal remedy at the court, its binding nature, the process for award of damages, principle of subsidiarity, the implementations of its judgments by national courts as well as the future role of the ECtHR. A thorough discussion is carried out to point out how the court is following an evolutionary progressive trajectory showing that its authority and power are growing by the day and so is its seriousness in having its judgments executed by member states of the EU. What this essentially shows is that human rights law and the guarantee of justice through the ECtHR is headed in the right direction and steady progress is being made in that direction.
As far as Africa is concerned, some of the criticism levelled against its human rights framework likens it to being a two-legged stool[52]. When compared to other international human Rights bodies like the UN, several flaws are encountered in the functioning of the African Commission. For instance, whereas in the UN it is clear as to who receives the reports submitted by member states, in the Article 62 of the African Charter no details are provided as to who is tasked with reviewing the reports submitted by member states. Thus, the reporting procedure highlighted in Guidelines for National Periodic Reports in itself needs to be overhauled[53].
Critical Analysis of Current Practices in Human Rights
In the European context, two remarkable achievements are the quality of human rights protection accorded and the insistence that individuals rights must be protected no lesser than the rights of states. While the former aspect ensures that justice is served in a uniform and time-bound manner in cases related to human rights, the latter ensures that states do not get away with anything due to their power and authority.
However, there is still room for improvement, and several researchers in the field of European Human Rights law have sought to make suggestions in that direction. De Búrca believes that one routine practice that impedes the efficiency of the CJEU is the over-reliance on the opinion of an Advocate General[54]. According to the author, this is practised too frequently and is unnecessary. Similarly, the same researcher makes another suggestion by stating that with the multi-fold increase in the cases of human rights violations that are being brought to the court, the CJEU must adopt a more open approach by incorporating international and comparative law.
On the other hand, in Africa, human rights law has been very heterogeneous historically, and states often by virtue of their power and influence escaped accountability for violations. This subjected individuals to powerlessness in front of the mighty African Nations. However, the situation seems to be improving with more and more cases of individuals standing up against states like Liberia, Nigeria and Kenya at the highest pedestal of human rights law in Africa. The legal changes that have been made post-1995 to legal instruments like the African Charter have been instrumental in helping develop a more robust and efficient legal system.
Conclusion
One could argue that the inherently divergent features of the European and African Human Rights Systems greatly owe their origin to historical as well as contemporary socio-political factors that influence law, its instruments as well as institutions and practices. While European law has passed through several stages of development and is now at the peak of its maturity, there is a general notion that African human rights laws and institutions have not yet come of age. However, it can also be said that the African human rights system particularly when it comes to the contents of the African Charter, is better than the European system in a number of ways. On the one hand, the African Charter being a newer text is more in line with contemporary realities and challenges of Human Rights and is the culmination of much greater collective human experience. On the other hand, the European Charter is a victim of traditionalism as well as functionalism and issues such as state reporting and procedural complicacies further hinder the realisation of human rights ideals.
Also, while the European System is more homogenously implemented across member states whereas human rights in the African context are very heterogeneous. Additionally, the hegemony of African states, the existence of ruthless dictators in many developing states, such as Ethiopia, Mozambique, Uganda, and Rwanda, that are ruled by one-party regimes and do not allow for democratic participation and prosecute political opposition, and the lack of avenues similar to the ECtHR where individuals may appeal to bring states to account for human rights violations are major impediments in the progress of human rights law in Africa that are necessary to be addressed.
If considerable progress is to be made, African states need to revise the African Charter of Human Rights and bring it at par with the EU Charter of Fundamental Rights as well as help local judicial courts and institutions rise to a status comparable to the ECtHR and CJEU. Finally, without the full cooperation and willingness of African states to uphold the decisions made by such an apex Human Rights Court, little progress can be made. Therefore, their cooperation is instrumental to the progress of human rights law in Africa.
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