European Human Rights System
The European human rights system is the oldest and most effective in existence. Buergenthal, Shelton & Stewart, International Human Rights in a Nutshell at 168 K3240.4 .B84 2009. The framework for human rights protection in Europe stems from the Council of Europe (COE), a regional IGO (not to be confused with the European Union). The Council of Europe was created in 1949 by 10 Western European nations under the Treaty of London. To date, it has 47 members (whereas the EU has 27). Although it has more members than the EU, the COE has narrower goals. A key goal is protection of human rights in Europe.
The COE adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221. The Convention entered into force in 1953. The decision to draft the European Convention was made after the U.N. General Assembly adopted the Universal Declaration of Human Rights and it became clear that it would take the U.N. a long time to agree on instruments to transform the Declaration into binding treaty obligations. The historical relationship between the Declaration and the European Convention is illustrated by the Convention's reference to the Declaration in its preamble. Id at 167.
Only states which are members of the COE may become parties to the European Convention. Ratification of the European Convention is also a condition of membership in the COE. Id at 164.
Key institutions of the COE include the Committee of Ministers (decision making body) and the Parliamentary Assembly (debate forum). Under the European Convention, both of these bodies have important roles in enforcing and verifying compliance with the European Convention treaty obligations.
European Court of Human Rights
To ensure observance of the European Convention treaty provisions, the Convention also established the European Commission of Human Rights (now defunct) and the European Court of Human Rights (ECHR). The Court did not come into being until 1959, as it took that long to obtain the requisite acceptances under Article 56 of the Convention. In 1998, Protocol 11 to the European Convention came into force. It replaced the European Commission of Human Rights and the original ECHR with a new permanent, full time court with sole compulsory jurisdiction over determinations of admissibility, fact-finding and issues of law. Id at 168-174.
The ECHR has contentious and very limited advisory jurisdiction. The Court's advisory jurisdiction is limited to requests from Committee of Ministers on legal questions concerning interpretation of Convention. It does not include the scope of rights or freedoms under the Convention or any question within the Court’s contentious jurisdiction. The Court's contentious jurisdiction includes both inter-state complaints and private petitions. By ratifying the European Convention, the member State accepts the Court's jurisdiction to receive complaints from other State parties. The right of individual petition to the Court has existed since 1955. A declaration by the State parties accepting the right of private petition was once required, but Protocol 11 made this right automatically available. Individual petitions are subject to the requirement of exhaustion of domestic remedies and the six month rule which requires filing of the petition within six months of the date of the final decision of the domestic court and other admissibility requirements described under Article 35 of the European Convention. Id at 176-195. The case processing flow chart at the ECHR website is of great help in understanding the petition process.
In a number of States, the Convention has the status of domestic law. It can be invoked as law in the national courts and create rights directly enforceable by individuals. In other States, implementing legislation may be required unless national law already protects comparable rights.
The ECHR is essentially the constitutional court for civil and political rights of Europe. Per its website, the Court has delivered more than 10,000 judgments over the past 50 years and it receives over 30,000 applications every year. It has interpreted most of the rights guaranteed by the Convention. See International Human Rights in a Nutshell at 204-5.
Reforms have been made to help the Court deal with its ever increasing case load, specifically Protocols 14 and 14bis. With the ratification of Russia, Protocol 14 has just come into force this year. Protocol 14 provides for the creation of a judicial filtering body separate from the Court to hear all admissibility issues and repetitious cases and the extension of the Court's advisory jurisdiction over requests submitted by national courts.
ECHR opinions are important to U.S. lawyers for at least three reasons. First, the ECHR has referred to U.S. Supreme Court decisions in its opinions. Also, the decisions of the ECHR interpret the European Convention and are often important when interpreting a similar U.N. treaty, the ICCPR. The U.S. became a party to the ICCPR in 1992. Lastly, the ECHR is the most important and effective international human rights court.
ECHR decisions are available at the Court's website in its HUDOC database.
In addition, Westlaw provides access to the case law of the European Court of Human Rights as published in a UK publication entitled European Human Rights Reports (EHRR). One can find this source via International Materials > United Kingdom > All UK Cases > European Human Rights Reports. Lexis also provides ECHR coverage via its European Court of Human Rights Cases database, which one can find by slow typing the title in the general search box at the Lexis home page.
Inter-American Human Rights System
The Organization of American States (OAS) is a regional inter-governmental organization and includes all sovereign nations of the Americas. The branch of the OAS which deals with human rights is commonly referred to as the Inter-American Human Rights System. The Inter-American system is based on the following primary legal sources:
Unlike the European system, ratification of the American Convention is not required of all OAS member States. See International Human Rights in a Nutshell at 279.The Inter-American Commission of Human Rights (IACHR) and the Inter-American Court of Human Rights are the mechanisms for enforcing compliance with the above instruments.
The Commission was initially established in 1959 as an autonomous entity of the OAS. It became a formal organ of the OAS in 1970. It is both a Charter and Convention body. As such, it has roles under both instruments. Under the Charter, it has a promotional and consultative role. It conducts on site investigations and produces country studies.
In addition, it is empowered under the Convention to handle individual petitions and interstate communications. By ratifying the Convention, a State accepts the jurisdiction of the Commission to examine individual petitions brought against it. The Commission may only review interstate communications if both states have recognized the jurisdiction of the Commission, in addition to ratifying the Convention (the opposite from the European system with its mandatory inter-state communications procedure and optional individual petition system). The American Convention also does not limit the right to file private petitions to victims only. Any person, groups or NGO may file individual petitions. See International Human Rights in a Nutshell at 264, 270 & 286-7. IACHR cases can be found at the Commission's website.
The Statute of the Commission defines human rights as those set forth in both the American Convention and the American Declaration, thus giving the Commission authority to impose human rights obligations on States which are not parties to the American Convention. Id. at 268
The Inter-American Court has jurisdiction to handle contentious cases and to render advisory opinions. Ratification of the Convention alone does not give the Court jurisdiction unless a State has made a special declaration or agreement pursuant to Article 62 of the Convention. A case can be referred to the Court only after applicable Commission proceedings have been completed. Individuals do not have the right to refer a case to the Court but can participate once a case has been referred to the Court. Id at 295-7. Decisions of the Inter-American Court can be found at its website and also at the University of Minnesota's Human Rights Library in Spanish.
In addition, members of the Loyola Law of Los Angeles International & Comparative Law Review have created the Inter-American Court of Human Rights Project. The IACHRP database makes case law from the Inter-American human rights system searchable by topic and keyword. In many instances, this website is easier to use than the official Inter-American Court of Human Rights website.
SUMMA Inter-American Case Law Database is an online database that offers access to cases heard by the Inter-American Commission and Court of Human Rights. Case law is accessible by treaty article and descriptor.
African Human Rights System
As compared to the European and Inter-American systems, the African system is relatively new and less developed. The African human rights system starts with the adoption of the African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217, 245; 21 I.L.M. 58,59 (1982) (also known as the Banjul Charter). The Banjul Charter was designed to function within the existing framework of the Organization of African Unity (OAU), a regional IGO established in 1963 and since replaced by the African Union (AU) in 2002.
An interesting distinction between the Banjul Charter and its European and Inter-American counterparts is the inclusion of duties as well as human rights. In addition, the Charter is unique in its inclusion of peoples' rights as distinguished from individual rights. Examples of peoples' rights include the rights to self determination and sovereignty and the rights to development, peace and security. Id. at 330 & 335.
The African Commission of Human and Peoples' Rights, created under the Charter and inaugerated in 1987, is the principal mechanism for protection of human rights in the region. A series of Protocols to the Charter established the African Court of Justice and Human Rights in 2008. The Court is still under development and does not yet have a website. Further information about the Court can be found at the website of NGO Coalition for an Effective African Court on Human and Peoples Rights (CEAC).
The African Human Rights Law Reports (AHRLR) is one of the best sources for finding the jurisprudence of the African Commission of Human Rights and UN treaty bodies relating to African countries. The AHRLR is available online via the Centre for Human Rights at the University of Pretoria website.
The African Human Rights Caselaw Analyser is an excellent tool for finding human rights cases from courts throughout Africa.
