Regional Human Rights Systems

Regional Human Rights Systems

• Human rights are considered universal and inherent to every person

Universal Declaration of Human Rights (UDHR)

• UDHR principles include universality, indivisibility, inter-relatedness, and interdependence

Regional Systems Recognized by the UN

• Recognized in the Vienna Declaration and Programme of Action (1993)
• Europe: European Court of Human Rights
• Americas: Inter-American Commission and Court of Human Rights
• Africa: African Commission and Court on Human and Peoples’ Rights
• Asia (South-East Asia): ASEAN Declaration and Intergovernmental Commission on Human Rights
• Middle East: Arab Charter and Arab Human Rights Committee
• Middle East and Asia do not currently allow for caselaw

The Inter-American System

• 1948 American Declaration of the Rights and Duties of Man created by the Organization of American States (OAS), which has 35 members
• 1969 American Convention on Human Rights took effect in 1978
• Inter-American Commission on Human Rights (IACHR) is located in Washington D.C., USA
  • The IACHR's protection functions involve receiving, analyzing, and investigating "petitions" or “communications"
  • Petitions come from NGOs and individuals, concerning human rights violations by States Parties
• Inter-American Court of Human Rights (IACtHR) is in San Jose, Costa Rica
  • It has advisory and contentious jurisdiction
  • Jurisdiction is only binding on States that have expressly accepted it
  • Less "accessible" compared to the European system

Taking a Case to the IACtHR

• The IACtHR is officially part of the American Convention, but not the OAS
• Members can be nationals of any OAS member state, regardless of being parties
• An individual petition is only possible if specific steps are followed
  • Individuals believing their rights were violated must first file a complaint with the IACHR
  • The IACHR must then rule on the admissibility of the claim
  • If admissible and the State is at fault, the Commission provides a list of recommendations for resolution
  • Only if the State doesn't comply or the Commission deems it important can it be referred to the Court
• Presenting a case before the Court is a measure of last resort
• Only happens after the Commission is unable to resolve the matter without contention

Awas Tingni v Nicaragua (2003)

• The Mayagna Awas (Sumo) Tingni Community lived on Nicaragua's Atlantic coast, consisting of approximately 142 families
• Jaime Castillo Felipe petitioned, denouncing Nicaragua for not demarcating the Awas Tingni Community's communal land and protecting property rights over ancestral lands and natural resources.
• There was a denouncement for the failure to guarantee access to remedies for claims regarding imminent concession of 62,000 hectares of tropical forest for commercial development
• The IACHR submitted the case to the Inter-American Court of Human Rights

Awas Tingni v Nicaragua (IACtHR)

• The IACtHR concluded Nicaragua violated right to judicial protection and property, affirming the indigenous community's right to collective ownership of lands and natural resources.
• The Court noted that the right to property protected indigenous people's property rights based in tradition. Therefore, the State had no right to grant concessions to third parties
• The State needed to create a mechanism for demarcation and titling of lands per customary law, values, customs, and mores
• The State had to refrain from any actions that might affect the existence, value, use, or enjoyment of property in the geographic area of the community

Maya of Toledo v Belize (2004)

• The petition went to the IACHR against Belize by the Toledo Maya Cultural Council
• IACHR recognized collective rights to land traditionally used and occupied in Toledo
• The State violated the right to property and equality failing to take measures to delimit, demarcate, and officially recognize their communal property right to the lands
• Violations occurred as logging and oil concessions to third parties utilized property without proper consultations

Implementation of Maya of Toledo v Belize

• IACHR recommended the State provide the Maya people with remedy
• The remedy recognizes communal property right to lands traditionally occupied and used
• Maya communities brought an action in domestic courts for non-implementation in 2007
• The Supreme Court of Belize ordered the Government to recognize Maya land rights, demarcate, and cease interfering
• Little progress was achieved with enforcing the recognized customary land rights
• The UN Human Rights Council and UN Committee on the Elimination of Racial Discrimination condemned non-compliance

Haitians Expelled from Dominican Republic

• IACHR heard Benito Tide Méndez et al. v. the Dominican Republic (2012)
• IACtHR also heard the Case of Dominican and Haitian People Expelled v. the Dominican Republic (2014)
• The Constitutional Court declared people born in the Dominican Republic to foreign parents as non-citizens
  • Rendered tens of thousands stateless
• Dominican Republic officials used racial profiling to expel individuals of Haitian descent in <24 hours
  • No due process was provided
• State officials used physical characteristics to determine who they detain and expel
• IACtHR found State discrimination, detention, and mass expulsion violated the rights to juridical personality, nationality, liberty, privacy, fair trial, equal protection, freedom of movement, family, child rights, and non-discrimination
• Re-registration efforts are slow

Miskito Divers (2021)

• IACHR heard Lemoth Morris et al. v. Honduras
• An indigenous community on Honduras’ Atlantic coast makes a living from shellfish and lobster
• Self-sustenance "breath-hold" fishing transitioned to a tank diving extractive industry separate from any State control
• Divers work 8-16 times a day to 100+ feet for up to 12 days
  • Injured workers wait 4 days for a doctor
  • They live on deplorable industrial dive boats with no sanitation for 3 weeks
• 97% of the 9,000 Miskito divers have health issues
  • >4,000 have some form of disability
• The State must guarantee transnational corporations are held accountable for human rights violations in their territory
  • First Inter-American Court judgement to include business and human rights standards
• Remedies include housing, scholarships for children of divers with disabilities and damages
• The UN is working on a treaty on business and human rights

African Charter on Human and Peoples Rights 1981

• African states had little involvement in drafting the UDHR, except Ethiopia, Liberia, Egypt
• The African Charter on Human and Peoples’ Rights (ACHPR) was created in 1981
• Inspired by anti-colonial and human rights struggles
• Inspired by minority and white-ruled states (Angola, Mozambique, Namibia, Rhodesia, South Africa)
• Inspired by atrocities of dictators (Idi Amin)
• The African Commission on Human and Peoples’ Rights was created 1986/7 in Banjul, The Gambia
• The African Court for Human and Peoples’ Rights was created In 1998 in Arusha, Tanzania. It took force in 2004

Peoples’ Rights

• The African Charter is the only international instrument that recognizes the rights of peoples
  • Recognizes equality, self-determination, dispose freely of resources, economic/social/cultural development, peace, and environment
• Defines no definition of ‘peoples’
• In the Katangese Peoples’ Congress v. Zaire case (1995), it was found that the Katangese Peoples’ Congress could be recognized as a liberation movement
• Concrete evidence of human rights violations calling into question the territorial integrity of Zaire did not exist
• It was held that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire

SERAC v Nigeria

• Ken Saro-Wiwa led a nonviolent campaign against environmental degradation of Ogoniland by Shell, but he was then hanged in 1995
• The military government violated rights to health, resources, environment, and family by facilitating oil corporation operations in Ogoniland
• Ensuring socio-economic rights requires action from the state
• The State failed to monitor oil activities and local communities, therefore violating the right of the Ogoni people to dispose of their resources
• Created an Implied right to housing and food

Significance of SERAC v Nigeria ruling

• Governments have a duty to protect citizens from damaging acts by private parties
• This requires positive action on the part of governments
• The understanding that oil extraction affects many human rights has advanced
• Damages includes life, housing, health, food, and water
• Indigenous peoples had increased recognition

Endorois v Kenya (2010)

• In the 1970s, the Kenyan government evicted Endorois families from their lands to create a game reserve for tourism
• The Endorois Welfare Council took the case to the African Commission on Human and Peoples Rights (ACHPR)
• The ACHPR found the government violated the African Charter on Human and Peoples’ Rights
  • Violated rights to religious practice, property, culture, resources, development
• It was the first legal recognition of African indigenous peoples’ rights over traditionally owned land

Outcome of Endorois v Kenya

• The Government stated it supported the ruling
• However, it mostly didn't comply with recommendations
• The government rushed through a Kenya Wildlife Bill without their input
• A law requires entrance fees and criminalizes activity, leaving no exception for religious and cultural practices
• UNESCO included Lake Bogoria on a World Heritage List without consulting the Endorois

African Court for Human and Peoples’ Rights (ACtHPR)

• The African Commission struggled reasoning, so a legally enforceable African Court was called for
• The Addis Protocol established the Court 1998 in Arusha, Tanzania
• The African system is now two-tiered
• The African Court should complement the African Commission
• The Court has contentious, conciliatory and advisory jurisdiction for member States and the African Commission
  • If a State recognizes the Court under Protocol Article 34(6), individuals and NGOs have access
  • Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Rwanda, Tanzania, The Gambia, and Tunisia participate
• Judgments are small in number (~130)

Ogiek v Kenya (2017)

• 35,000 Ogiek live in Kenya's Rift Valley, and they face marginalization -They are one of the last remaining forest-dwelling communities
• They are Routinely subjected to forced evictions under conservation
• The case was referred to the African Court showing grave, mass human rights violations
  • It was the first indigenous rights case before the African Court
• Violations included their rights to life, property, resources, development, religion and culture
• In 2017, The Court ruled in favor of the Ogiek
• Kenya has yet to implement the judgment

Problems for the African Court

• For direct filing of cases, Article 34(6) declaration is required.
  • Rwanda, Tanzania, Benin and Côte d’Ivoire withdrew declarations (2016-2020)
  • Rwanda reacted to Ingabire Victoire Umuhoza v Republic of Rwanda, where the accused was convicted for saying crimes against humanity were committed against both the Hutus and the Tutsis
  • The African Court did not deny the crimes committed against the Tutsis
  • Court acknowledges the suffering by both groups
  • Rwanda states: "the Court was providing a platform for ‘convicted genocide fugitives’"
  • With the case Tanzania –Ally Rajabu and Others v United Republic of Tanzania
  • The Court overturned mandatory death penalty in murder
  • Violates Article 7
• Benin called for a merger with the African Court of Justice and Human Rights
• Unless individuals and NGOs have direct access, a case is required from the African Commission
• This has only happened three times.
• No State has submitted a case.

Future African Caselaw

• Minority Rights Group International et Environnement Ressources Naturelles et Developpement (au nom des Batwa du Parc National de Kahuzi Biega, RDC) v Republique Democratique du Congo (RDC)
• Batwa from the Kahuzi-Biega National Park evicted from their lands without consultation due to decision extend the park
  • Has resided for centuries
  • The decision has led to forced extreme poverty camps
  • Forces groups to abandon traditional ways of life
• The African Commission declared communication admissible
  • There is a potential "This decision has the potential to bring real change in the way the DRC addresses the issue of indigenous peoples’ right to land and the reparations they are due"

Regional Mechanisms in Asia

• No regional system until recently
• Asia has 5 subregions with 60% world population
• Has China and India (2 billion) -More than EU,Africa,Americas combined
• Central Asia,South Asia,East Asia. -South-East Asia, and Pacific

Association of South-East Asian Nations (ASEAN)

• ASEAN has 2009 Intergovernmental Commission on Human Rights (AICHR) to human rights
• Promoted the 2012 ASEAN Human Rights Declaration (AHRD)
• Unanimously adopted
• The HRW says it AHRD is not worthy of its name by "The declaration now unquestionably fails to meet existing international human rights standards."
• A “declaration of powers disguised as a declaration of rights”

Future of ASEAN

• Formalization of ASEAN Declaration on HR into ASEAN Convention on HR can happen
• ASEAN Intergovernmental Commission on Human Rights into ASEAN Commission on Human Rights for court establishment can happen
• With a Wishful AICHR the following occurs:
  • AICHR issuing statements of concern (1)
  • Country visits occur with the IC (2) -AICHR explore workable modalities for grievance and remedies (3)
• New mandate for the AI- Special Rapporteur such as indigenous peoples

Arab Charter on Human Rights

• Arab League as 22 Members in M.E and N. Africa
• With a 1994 league on Anniversary HR was Created
• Heavily Critized still with no Enforcemnt
• Only 7 receives -There is no petitions
• No Inidviual violoations

Pacific

• Australian NZ,Pacific Island Contries
• 1980 HR for the Pacific
• with 1 text in the 86 model
• Collecive rights with low rates in pacific

South Asia

• South Asia has an agreement for regional cooperation
• With (1.5 billion)
• With development of are 7
• But theiris No Mention of HR (4)

Conclusions

• It has an at Very high for HR forAsia
• Europe has far with direct ecTHR
• Is is bigest is it in English america and caribbean
• Is it in evolution but needs engagmenty
• Access with difficulties is a HR volations in Asia or middle east in a reamote land