Welcome to the discussion! We thought we'd start this conversation by explaining what regional human rights mechanisms are and why (and when) it's a good idea to engage them. Consider these questions below when sharing your comments in this discussion topic:
- What are the regional human rights mechanisms available to advocates? What are their mandates? Why were they created? Are they accessible to individuals as well as organizations?
- When is it best to engage these courts and commissions?
- What outcomes are possible when working within these systems? What kind of reparations are available to victims and survivors?
- What are alternatives to regional human rights mechanisms that complement these institutions?
Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
For help on how to participate in this conversation, please visit these online instructions.
Regional human rights bodies monitor, promote and protect human rights in several areas of the world. In Africa, the Americas, and Europe, these systems play a significant role in protecting human rights, including by deciding States’ responsibility for alleged human rights violations. Additionally, two newer bodies play an evolving role in monitoring human rights conditions in the countries of the Middle East and Southeast Asia.
The main regional human rights bodies are the:
In Africa, the Americas, and Europe, the regional human rights systems have all or most of the following functions:
For a brief introduction to the Inter-American human rights system, for example, see the short video below.
Thanks for sharing this overview, Lisa! And I love the video. Very informative.
Regarding the main functions of the mechanisms in Africa, Europe and the Americas, which ones can you bring an individual complaint to? All of them? And can you explain the different ways to approach these institutions? I see that one member State can bring a complaint about another member State - can NGOs and invidiauls can also bring complaints? Can only certain NGOs utilize the these mechanisms (for example, you need special observer status to attend meetings at the UN)?
These questions are for everyone participating in this discussion so please share your knowledge, experiences and resources by replying to this comment (click the REPLY button). Thanks!
- Kristin Antin, New Tactics Online Community Builder
Any organization, or individual can bring a petition to the Inter-American System. There is no requirement that the petitioner be a lawyer.
See Art. 23, IACHR Rules of Procedure ("Any person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS may submit petitions to the Commission, on their behalf or on behalf of third parties...") - http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp
See also Art. 25 Rules of Procedure of the Inter-American Court (participation of the alleged victims or their representatives) - http://www.corteidh.or.cr/sitios/reglamento/nov_2009_ing.pdf
There is also a Legal Assistance Fund, and the figure of an Inter-American Public Defender, since the procedural reforms enacted in 2009.
South Asian Association for Regional Cooperation (SAARC) has been unable to push forward its agenda of social development, economic cooperation/integration and building trust among the South Asian nations. Similarly, SAARC has been ineffective to meet the emerging challenges such as terrorism, climate change and environmental degradation. Regional connectivity with strong mechanism for consolidating democracy and human rights through the wider participation of civil society still remains a dream and cooperation in energy sector and harnessing of water resources continues to be marred by regional security issues.
The existing regional human rights mechanisms in Europe, Latin-America and Africa have contributed inthe protection and promotion of human rights in these respective regions. The Association of South East Asian Nations (ASEAN) countries have been successful to establish ASEAN Inter-Governmental Commission on Human Rights (AICHR) through the ASEAN Charter3 followed by long efforts of the human rights defenders. However, there is no regional human rights mechanism in South Asia except the emerging National Human Rights Institutions4 (NHRIs).However, they have capacity gap to work for the human rights issues beyond national level. Therefore, concerted and consistent efforts are necessary from the civil society organizations and key stakeholders for the establishment of regional and sub-regional institutions and mechanisms for the promotion and protection of human rights in South Asia.
Thank you, Surya, for sharing your perspective on the mechanisms available (and unavailable) in South Asia. I would be very interested to learn more from you and others about the process of creating a regional human rights mechanism, which is sounds civil society organizations are advocating for in South Asia. How were other regional mechanisms formed? Were they all formed via treaties? If so, how can civil society organizations push forward these treaties?
You mention that SAARC has been ineffective in meeting emerging challenges, and it doesn't sound like human rights is a main focus on that mechanism (please correct me if I'm wrong!). Is that why you feel a new mechanism must be created as opposed to strengthening the current SAARC that already exists? It would be great to hear your thoughts on this, and from others!
- Kristin Antin, New Tactics Online Community Builder
Hi Kristin and Surya, The history of the creation African human rights system is very impressive.
The idea of a draft document establishing a human rights protection mechanism in Africa was conceived in 1960 at the first Congress of African Jurists, held in Lagos, Nigeria after a declaration adopted and referred to asthe ‘Law of Lagos’ calling on African governments to adopt an African convention on human rights with a court and a commission. No serious effort was made by African governments to promote the concept. No obligation on members states for the protection of human rights was imposed. The Organisation of Africa Unity (OAU) charter at that time required states parties to have due regard for human rights as set out in the Universal Declaration of Human Rights in their international relations.
In spite of the absence of a clear human rights mandate, the OAU took bold steps to address a number of human rights issues such as decolonisation, racial discrimination, environmental protection and refugee problems, ignoring grave and massive human rights abuses and violations. The preference of the OAU was socio-economic development, territorial integrity and state sovereignty over human rights protection, as well as firm reliance on the principle of non-interference in the internal affairs of member states.
Tthe first Conference of Francophone African Jurists held in Dakar, Senegal, in 1967, resuscitate the idea of the Law of Lagos on the need for a regional protection of human rights in Africa, and then adopted the Dakar Declaration requesting the participants asked the International Commission of Jurists to consider in consultation with other relevant African organisations the possibility of creating a regional human rights mechanism in Africa. Facilitation from the United Nations also facilitated the process through series of capacity building and debates. An ad hoc working group was set up by the UN Commission and adopted a resolution calling on the UN Secretary General to provide necessary assistance for the creation of a regional human rights system in Africa.
Theseinitiatives of the United Nations with a view to getting African states to consent to the adoption of a regional human rights convention failed. Civil society decided to set up a follow-up committee mandated to carry out visits to African heads of state and other relevant authorities on the need for an African regional human rights system. Subsequent to the committee’s visit to Senegal, the then president of Senegal, promised to table the proposition before the OAU after effort of advocacy and lobbying the Assembly of Heads of States and Government of the OAU meeting in Monrovia, Liberia, unanimously requested the Secretary General of OAU to convene a committee of experts to draft a regional human rights instrument for Africa, similar to the European and Inter-American human rights conventions. Under threat by some hostile African governments, the draft charter was adopted finally in 1981 in Addis Ababa, Ethiopia.
I think in any case the initiative should come from civil society and the civil society should be involved in any step of the formatiom
Thank you for appreciative comment.I have briefly mentioned about civil society initiatives towards establishment of the regional mechamism in South Asia .
Given the development of the ASEAN Inter-government Commission on Human Rights (AICHR), some attention amongst civil society in South Asia has now been placed on initiating similar developments in South Asia.
Civil Society Organizations from South Asia have been carrying out number of initiatives to promote idea of regionalism and solidarity among the peoples of South Asia. The Asian Forum for Human Rights and Development (FORUM-ASIA) and INSEC had conducted “First Sub-Regional Workshop on South Asian Human Rights Mechanism” in Kathmandu, Nepal on 24-25 March, 2010 and the representatives of the Civil Society Organizations from South Asia has urged the Governments of the SAARC to set up the regional human rights mechanism in South Asia through Kathmandu Declaration 2010. Similarly, “Second Sub-Regional Workshop on South Asian Human Rights Mechanism” was also held in Kathmandu which came up with outcome document Kathmandu Resolution 2011 formation of an Informal Working group consisting human rights NGOs, National Human Rights Institutions (NHRIs0 and eminent personalities from South Asia. In addition to this the ‘People’s SAARC’ is one of the initiatives which has been taking place during couple of years.
On 4 December 2012 a programme was held in Dhaka Bangladesh organized by the Regional Initiative for a South Asian Human Rights Mechanism on ‘Regional Initiative for South Asian Human Rights Mechanism’ is a network of organizations and individuals which aims to create an environment conducive to the establishment of a South Asian Human Rights Mechanism.
On 28 January 2014 National Consultation Conference on Establishing South Asian Human Rights Mechanism came up with Kabul Declaration 2014. Kabul Conference is held in relation and building up earlier steps namely as Kathmandu 2010 and 2011; New Delhi 2012; and Dhaka 2012 following the same track about the need for establishing regional human rights mechanism in the South Asia.
Towards a Regional Human Rights Mechanism for South AsiaThursday, 28 July 2011 Thematics: SAARC,South Asia Human Rights Mechanism Tweet
FORUM-ASIA and civil society organizations in South Asia have been carrying out number of activities on the advocacy for the regional mechanism in South Asia. The following are some documents from activities carried out on this advocacy:
(Kathmandu, 27 July 2011) The Second Sub-Regional Workshop on Human Rights Mechanism in South Asia concluded with calls for the South Asia Association for Regional Cooperation (SAARC) to establish an effective regional human rights mechanism, enhance civil society participation in the SAARC processes, and address regional challenges from the human rights based approach.
The two-day regional workshop discussed regional human rights challenges, and the prospects and opportunities for the creation of a South Asian Human Rights Mechanism within the framework of South Asian Association for Regional Cooperation (SAARC).
At the end of the workshop, participants established an informal working group of eminent human rights experts from South Asia to initiate dialogue and engagement with SAARC on the promotion and protection of human rights in the sub-region.
Speaking at the workshop, FORUM-ASIA and INSEC chairperson, Mr. Subodh Raj Pyakurel said that South Asia needs a strong human rights body to address the situation of gross human rights violations and abuses attributed to the culture of impunity. Pyakurel reiterated the need for continuous efforts to develop suitable human rights mechanisms and institutions in South Asian countries.
In her keynote address, Hina Jilani, former UN Special Representative of the Secretary-General on human rights defenders, and chair of the South Asians for Human Rights (SAHR), expressed grave concern on the deteriorating human rights situation brought about by anti-terrorism measures adopted in South Asian countries. She further pointed out the lack of rule of law in different countries of South Asian region.
Dr. Mizanur Rahman, chairperson of the National Human Rights Commission (NHRC) of Bangladesh said that civil society organizations should collaborate and cooperate for the establishment of a regional human rights mechanism which can complement the role of the national human rights institutions. Similarly, Mr. Gauri Pradhan, Commissioner of the NHRC of Nepal shared the country’s experiences in protecting and promoting human rights, and expressed the commitment of Nepal NHRC to work with civil society organizations in pushing for a regional human rights mechanism.
Justice J.S. Verma, former Chief Justice and Chairperson of the National Human Rights Commission of India stressed that judiciary in the SAARC should play vital role for the protection of human rights in adhering to justice and human dignity.
Mr. Miloon Kothari, former UN Special Rapporteur on the right to housing stressed that a regional human rights mechanism could be a useful platform for South Asian countries to utilize the opportunities under the United Nations’s Universal Periodic Review (UPR) system which monitors the human rights performance of all UN members.
Meanwhile, former Assistant Secretary-General of the UN Mr. Kul Chandra Gautam pointed out that although national human rights mechanisms are more important and effective in addressing local issues, a regional mechanism can play a complementary role, especially with regards to cross border issues.
Mr. Rafendi Djamin, Indonesia Representative and current chair of the ASEAN Inter-Governmental Commission for Human Rights (AICHR) said the vibrant civil society organizations of South Asia can constructively engage with the SAARC process in this process, in the same way that Southeast Asian civil society played significant role in the establishment of AICHR.
In addition, Ms. Jyoti Sanghera, of the UN Office of the High Commissioner for Human Rights (OHCHR) in Nepal expressed that OHCHR will cooperate with the initiatives towards setting up a South Asian human rights body.
The workshop was inaugurated by Nepal Constituent Assembly Chairman Mr. Subas Chandra Nemwang. The two-day workshop was attended by the prominent civil society leaders , human rights defenders, national human rights institutions and academicians from Bangladesh, India, the Maldives, Nepal, Pakistan, and Sri Lanka.
The two day workshop was organized by the Asian Forum for Human Rights and Development (FORUM-ASIA) and Informal Sector Service Centre (INSEC) on 25-26 July 2011.
For inquiries, please contact at: Mr. Surya Deuja, Manager, South Asia Department Tel: +9841506185 (Kathmandu), +66 834419070, email: email@example.com
Important bodies of the Africa Union contribute to the advancement of human rights and peoples’ rights in Africa. These organs are:
The African Union has also adopted a number of treaties relevant to the promotion and protection of human rights in Africa. These instruments include:
The African Charter established the African Commission on human and Peoples’ Rights and Article 45 of the African Charter sets out the mandate of the Commission.
Promotion of human and peoples’ rights - The African Commission carries out sensitisation, public mobilisation andinformation dissemination through seminars, symposia, conferencesand missions.
Protection of human and peoples’ rights - The African Commission ensures protection of human and peoples’ rights through its communication procedure, friendly settlement of disputes, state reporting (including consideration of NGOs’ shadow reports), urgent appeals and other activities of special rapporteurs and working groups and missions.
Interpretation of the African Charter - The African Commission interprets the provisions of the African Charter upon a request by a state party, organs of the AU or individuals. So far, no organ of the AU has referred any case of interpretation of the African Charter to the African Commission. However, a handful of NGOs have approached the Commission for interpretation of the various articles of the Charter. The African Commission has also adopted many resolutions expounding upon the provisions of the African Charter.
The African Commission submits to every Ordinary Session of the AU Assembly a report of its activities during sessions and inter-sessions.The Executive Council considers the report on behalf of the Assembly. The Executive Council could withheld autorisation for the publication of the African Commission .
Complaint to the African Commission - Any individual or NGO may bring a communication before the African Commission. The African Charter is silent on the issue of standing and the Rules of Procedure of the African Commission does not provide for a victim requirement. A communication may be submitted by the victim(s) or anyone on their behalf. An individual or NGO submitting a communication on behalf of another need not obtain the express consent of the victim. Observer status with the African Commission is not a requirement to submit a complaint, nor need to be a citizen or be registered in the state against which the communication is made. It is also possible (if convinced that the author has no sufficient funding to support his/her case) for the African Commission on its motion or after a request by the author of a communication facilitate access to free legal aid to the author of a communication.
Against whom can a communication be brought? - A communication can only be brought against a state that has ratified the African Charter. So far all African States have ratified the African Charter except the newest state of South Sudan
Findings/recommendations - In Case the African Commission finds a violation, the African Commission may simply declare that the state is in violation. In some cases, the African Commission has included in its findings far reaching recommendations. For instance, it may recommend that the state should take necessary measures to comply with the Charter including payment of compensation to the victim(s).
Follow-up on Commission’s recommendations - The 2010 Rules of Procedures of the Commission sets out the following follow-up procedures:
Once the Activity Report containing the Commission’s decision has been adopted by the AU Assembly, the Secretary of the African Commission notifies parties within 30 days that they may disseminate the decision. State parties are obliged to notify the Commission in writing within 180 days of the Commission’s decision of all measures taken or being taken to implement the decision.
Within 90 days of receiving the response of the state party concerned, the Commission may invite the state to submit further information on other measures it has taken.Where no response is received in the case of the first 180 days or the subsequent 90 days, the Commission shall send a reminder to the state giving it additional 90 days within which to respond. The rapporteur for the communication has a duty to monitor the measures taken by the state in relation to the Commission’s decision. The rapporteur is required to present a report of its findings to the Commission. The Commission may also notify the Executive Council or the Sub-Committee of the Permanent Representatives Committee of situations of non-compliance.
Some landmark rulings of the African Commission
Supplement to the African Charter:
All member states of the AU except Eritrea and Cape Verde have signed the Protocol, so far only 26 states have ratified it. Under article 34(6) of the Protocol, states may also make an optional declaration, accepting the competence of individuals and NGOs with observer status before the Commission to submit cases directly to the Court. To date only five states have made such a declaration: Burkina Faso, Ghana, Mali, Malawi and Tanzania. The African Commission on Human and Peoples' Rights and the African Court have harmonized their rules of procedure and hold regular meetings.
Relationship between the African Court and the African Commission
Special Mechanisms of the African Commission on Human and Peoples’ Rights are accessible for complaints, urgent actions and advocacy. These special mechanisms are:
Opportunity for NGOs
The African Commission has a very robust relationship with NGOs. Article 45(1) of the African Charter requires the African Commission to cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights. And Since 1988, the Commission has been granting observer status to NGOs and adopted a resolution on the criteria for granting observer status to NGOs. . NGOs play a key role in the activities of the Commission. Primarily, they draw the attention of the African Commission to violations of the African Charter, bring communications on behalf of individuals, monitor states’ compliance with the African Charter, and help to increase awareness about the African Commission’s activities by organizing conferences and other activities. NGOs participate in the African Commission’s public sessions and engage with the reporting procedure by submitting shadow reports and popularising concluding observations. NGOs having observer status with the African Commission are required to submit a report of their activities every two years. NGOs’ engagement with the African Commission is coordinated and spearheaded by the NGO Forum, which is held before every session of the Commission to deliberate and produce reports on thematic and regional situations in Africa. The NGO Forum, organised by the Banjul-based African Centre for Democracy and Human Rights Studies, serves as a medium through which NGOs acquaint themselves with the Commission’s activities. The NGO pre-session report is usually considered by the Commissioners during the opening ceremony of the session.
I'd like to offer a minor addition to Joseph's comprehensive survey of the African regional mechanisms. He writes:
"Against whom can a communication be brought? - A communication can only be brought against a state that has ratified the African Charter. So far all African States have ratified the African Charter except the newest state of South Sudan"
For many years, The Advocates for Human Rights has partnered with the Morocco-based Mobilising for Rights Associates and its predecessor organization. Morocco withdrew from the Organization of African Union (predecessor to the African Union) in the mid-1980s. So it would seem that the Commission lacks jurisdiction over a communication alleging that the Government of Morocco violated the African Charter.
Advocates in Morocco and some other countries don't have access to regional mechanisms, either because their government does not recognize the mechanism or because an effective mechanism for the region does not exist. In some cases, however, a country may join another region's mechanism. For example, Italy has signed the Organization of American States' Convention of Belém do Pará on the Prevention, Punishment, and Eradication of Violence Against Women, and the Council of Europe's Istanbul Convention on preventing and combatting domestic violence and violence against women is open for accession to any country in the world, subject to unanimous approval from the State parties to the Convention. (See Article 76.) Advocates outside of the Americas and Europe may want to consider whether they should lobby their government to ratify these conventions.
"In some cases, however, a country may join another region's mechanism."
Thanks for sharing this, Amy! I am so curious about this - why would a country want to join another region's mechanism?? I'd love to learn more about how this benefits the signatory country, and how advocates can utilize this for their work. Thanks!
- Kristin Antin, New Tactics Online Community Builder
If you take Morocco as an example, you can see why this cross-regional polination might make sense. Because of the Western Sahara issue, it's not likely that Morocco would rejoin the African Union any time soon. But in recent years, the Government of Morocco has expressed some interest in being out front on human rights issues, campaigning actively to be elected to the UN Human Rights Council, for example. Also, the Moroccan Government may have some interest in aligning itself with Europe. So women's rights activists in Morocco might campaign to have Morocco ratify the Istanbul Convention. And there might be good motivation for the countries that have already ratified the Istanbul Convention to agree to Morocco's participation; the convention has 9 ratifications and it needs 10 to go into effect.
Cross-regional cooperation may be another motivation. When Italy signed the Inter-American instrument on violence against women, it was viewed "as the beginning of a collaboration between Europe and the Americas in putting an end to violence against women in both regions."
Hi Bikjo, as an advocate have you had any experiences in pursuing Joint Declarations or joint statements between the African Commissions Special Mechanisms and their cross-regional and/or UN counterparts?
For example, from my time at the Inter-American Commission I recall this one on internet freedom: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=848&lID=1.
Good morning to all, and thank you for inviting me to participate in this week's discussion.
I'll begin by giving a short background on the role of the Center for Justice and International Law (CEJIL), my organization. CEJIL was founded in 1991 in Caracas, Venezuela by a group of prominent human rightrs defenders from throughout the Americas, as the Inter-American System began to emerge as an important forum for rights protection in the region. Our organizational objectives include:
To this end, our main intervention strategies include impact litigation before the Inter-American System, capacity-building and empowering human rights defenders, and strengthening the Inter-American System itself through advocacy.
The Inter-American Human Rights System
I highly recommend the IJRC video that Lisa posted as a basic primer on the mandate of the Inter-American Commission and Court of Human Rights. In this first comment, I hope to explain what the Inter-American Human Rights System is and what it does, when and why it was created.
The Inter-American Human Rights System consists of two bodies: (1) the Inter-American Commission on Human Rights (IACHR, Commission) and the Inter-American Court of Human Rights (Court, Inter-American Court).
The Inter-American Commission is a principal and autonomous body of the Organization of American States (OAS) whose mission is to promote and protect human rights in the Americas. It is composed of seven independent and autonomous experts (Commissioners) elected by the General Assembly of the OAS, who served 4-year terms plus one reelection. Created by the OAS in 1959, the Commission's headquarters is in Washington, DC. (Link: http://www.oas.org/en/iachr/mandate/what.asp). The Commission has numerous political and quasi-judicial faculties including:
Since the Commission's jurisdiction is derived from the OAS Charter and the American Declaration, it has jurisdiction to hear petitions and monitor situations from all 35 States of the region, including those States (like the United States, Canada, Cuba, etc.) that have not ratified the American Convention. The Commission, like the UN, also assigns rapporteurs to monitor the situation of countries, and in response to its specific interest in certain populations, vulnerable groups, or human rights issues.
The Inter-American Court is a judicial body that was created by the Member States of the OAS when they adopted the American Convention on Human Rights in November 1969. The Convention entered into force on July 18, 1978, and the Court became operational in 1979. The Inter-American Court is in San José, Costa Rica, and is composed of seven independent jurists (Judges) elected to 6-year terms plus one reelection. The Court's mandate includes:
The Court has contentious jurisdiction over those countries that have ratified the American Convention and accepted its jurisdiction (e.g., Mexico, Colombia, Brazil, Argentina, et al).
The international instruments created through the Inter-American System include:
The first two instruments listed above apply to all 35 countries in the region. The latter instruments' state of ratification will determine their applicability in a given State.
To further illustrate these points, attached is a short presentation providing an introduction to the Inter-American System. Also, here are some useful links for your reference:
In my next comment, I'll address some practical concerns for petitioners looking to access the Inter-American Human Rights System to remedy violations of their human rights.
I'll attach a few visuals to accompany this discussion.
As Joseph and Charles indicated, the African and Inter-American commissions each manage a complaints procedure and also engage in other types of human rights monitoring and promotion.
Sometimes these different tools are used as part of one overarching advocacy campaign, to supplement one another. For example, an organization might raise awareness of a systemic problem by requesting a thematic hearing before the Inter-American Commission and submitting information to a rapporteur, before filing a petition on behalf of specific individuals who have been affected by that problem.
Further, for advocates in Europe, the Americas and Africa, other human rights complaints mechanisms or international dispute settlement procedures may be available - such as at the United Nations human rights treaty bodies or regional economic communities' tribunals (like the ECOWAS Court of Justice). Advocates in some (7) African countries may also have the option of proceeding before the African Commission or the African Court.
Joseph, Charles, Rachel, Yves and others, what are your thoughts on these questions?
We've spoken quite a lot about the complaints procedures that exist at the different regional human rights mechanisms, but they also have a mandate to promote respect for human rights. From our experience at the African Commission, I would say that it is important to engage with both the protection and promotion sides of its mandate.
To get an idea of the full range of activities carried out by the special mechanisms, you can refer to their individual inter-session activity reports that are published at each session. For example, here is a report of the Special Rapporteur on Human Rights Defenders in Africa, who is also a member of the HIV/AIDS Committee: http://www.achpr.org/sessions/54th/intersession-activity-reports/human-rights-defenders/. There are details of the different conferences and missions she has taken part in, which could help to give an idea of the types of activities your NGO could organise or get involved with.
My organisation, the East and Horn of Africa Human Rights Defenders Project, has recently participated in two study groups mandated by the Commission - on the situation of women human rights defenders in Africa and on freedom of association and of assembly in Africa. This is an opportunity for us to share the experience of human rights defenders from our region in a report of the Commission and to contribute to the formulation of recommendations and guidelines that respond to their real needs. Another recent useful document to come out of the Commission, through the engagement of civil society, is the Model Law on Access to Information in Africa.
One of the key considerations in deciding how to engage with the Commission is the question of timing. While the complaints mechanisms does allow individuals or organisations to ask the Commission to request a State to adopt provisional measures to prevent irreparable harm, in general bringing a case to the Commission can be a long and slow process. Sometimes in an urgent situation, a quicker response would be to request Commissioners to issue a press release (of course it helps if you have existing contacts with the Commissioners).
Another key consideration is effectiveness. Which mechanism will be most likely to lead to change? Decisions of the African Commission, unlike the Court, are not binding. It would be worth investigating previous cases brought against the State in question and whether the decision was respected and implemented - not just from the Commission, but from other bodies also - perhaps the State in question tends to respond more positively to African than international mechanisms, or vice versa?
Even if the State tends not to respect decisions of the Commission, they can still be used as part of a wider advocacy strategy - for example, when EHAHRDP and partners were advocating for the establishment of a UN Special Rapporteur on Eritrea, we could point out that two decisions from the Commission had been completely ignored by the Eritrean government.
The African Court on Human and Peoples' Rights is a very good option, in cases where it has jurisdiction (ie over States that have signed the protocol) as its decisions are final and binding. However, only a small number of States have so far ratified the Protocol giving the Court jurisdiction, and even fewer have made a declaration under article 34 (6) of the Protocol allowing individuals and NGOs to bring cases.
I'd be interested to hear about experiences in other regions - what is the balance between promotional and protection activities at other regional mechanisms?
Thank you, Rachel, for these very useful insights.
As with the African Commission, other regional human rights bodies can take years to resolve individual complaints and, in the meantime, it can be beneficial to use other advocacy tools, where available. You mention press releases, and this is something that the Inter-American Commission and advocates in the Americas can use to draw attention to human rights violations in a timely fashion, too. The Council of Europe Commissioner for Human Rights similarly uses statements and letters to highlight issues of concern.
Echoing your thoughts on compliance, or the effectiveness of a complaints mechanism, advocates can find some information online concerning a particular State's level of cooperation or implementation of decisions. For example:
Rachel, or others, do you know of other sources on compliance with the African Commission's recommendations? For example, does the Commission list or publish the letters it sends to States, reminding them to fulfill its recommendations?
One can get a sense of the average length of proceedings by looking at when the most recently-decided complaints were initially presented. IJRC's manual on the Inter-American System, for example, includes the graphic below on the Inter-American Commission's average timeline for deciding petitions.
Greetings, everyone! My colleague, Jennifer Prestholdt, and I are excited to be participating in this week’s conversation and learning from human rights advocates around the world. Thank you for all of today’s informative posts!
The Advocates for Human Rights collaborates with human rights defenders in countries around the world and in diaspora, and those collaborations sometimes include advocacy before regional human rights mechanisms. We recently published a 400-page resource called Paving Pathways for Justice & Accountability: Human Rights Tools for Diaspora Communities. The toolkit targets members of diaspora communities who want to be effective advocates for human rights in their country of origin or ancestry, but the tools are equally relevant to human rights defenders around the world. Chapter 10 of the toolkit addresses advocacy with regional human rights mechanisms. It includes several case studies describing how groups have used the regional systems to promote human rights. Chapter 11, which covers capacity-building, includes a section on whether and how to apply for observer status with the African Commission and the African Committee of Experts on the Rights and Welfare of the Child (beginning on page 312) and a section (beginning on page 331) about regional emergency response mechanisms for human rights defenders and others who may be in danger.
The Advocates has had observer status with the African Commission on Human and Peoples’ Rights since 1991. Based on our work with the Liberian diaspora and what we learned when taking statements from Liberians living in Ghana, the United States, and Europe for the Liberian Truth and Reconciliation Commission, we submitted a report about the situation of Liberian refugees in Ghana in conjunction with the African Commission’s 2008 promotion mission to that country. We also recently partnered with organizations in Cameroon to submit shadow reports on women’s rights, rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and the death penalty and detention conditions.
For people who are familiar with the periodic reporting process for the UN treaty body mechanisms, in our experience the African Commission’s system is quite similar. For more information about how to write a shadow report, see Paving Pathways’ Appendix M: 10 Steps to Writing a Shadow Report; Appendix P: African Commission Shadow Report Template; and Appendix L: Checklist for Reporting to UN and Regional Human Rights Mechanisms. In a session starting next week, the African Commission will consider the state reports from Mozambique, the Sahrawi Arab Democratic Republic, and Liberia. For advocates working on human rights issues in Uganda or Senegal, there may be a shadow reporting opportunity coming up in preparation for the Commission’s next session, which will probably take place in October.
The Advocates for Human Rights recently submitted an amicus brief in a CEJIL case before the Inter-American Commission challenging the United States’ mandatory deportation laws. The amicus brief focuses on the right to family unity.
In 2010, the Inter-American Commission’s Rapporteurship on Persons Deprived of Liberty in the Americas circulated a questionnaire on the rights of persons deprived of liberty in preparation for a thematic report. The Advocates was part of a coalition of NGOs that submitted a joint response to the questionnaire as it pertains to the detention of immigrants in the United States.
Here’s a link to all of the Inter-American Commission’s questionnaires. The most recent questionnaire is on the situation of boys, girls, and adolescents in the context of organized armed violence. The deadline is April 30.
Some questions about the African and American regional systems
I have some practical questions for Joseph, Rachel, Yves, Lisa, and others who have experience with the African Commission, the African Court, and their websites. It seems difficult to get information about opportunities for engagement with the Commission. For example, Liberia submitted its periodic report in November 2012, but the report didn’t appear on the Commission’s website until nearly one year later. And although the Commission’s website says that concluding observations are available from the 54th Ordinary Session last October, I can’t find those concluding observations on the Commission’s website. And emails to the Commission have gone unanswered. What are the best ways to stay up-to-date with the African Commission’s work and opportunities to engage with the mechanism? What are the best ways to communicate with the Commission and the Court? And how can NGOs learn about cases before the African Court in advance of argument so they can consider whether to submit amicus briefs?
And for Lisa, Charles, and others with expertise on the Inter-American system, what is the best way to learn of upcoming opportunities to interact with the Commission, such as on-site visits and reports on human rights conditions in OAS member states? Also, what are the best ways to learn more about pending cases so that NGOs can consider whether to submit amicus briefs?
Thanks, Amy. We at the International Justice Resource Center have also experienced the kinds of delays or barriers to accessing some kinds of information from the regional human rights bodies that you describe. In Africa, the Americas, and Europe, language can also be a very significant obstacle for advocates (for example, if you consider that some materials from the Inter-American Court of Human Rights may be published only in Spanish, or the judgments of the European Court of Human Rights are most often available only in English or French).
In our experience, there are three general ways to get information as soon as it is available:
Pending cases are an area where it is even trickier to obtain information, including for reasons of confidentiality. Prior to an admissibility decision, it will only be possible to get information from the individuals or organizations who submitted the complaint (for example, if they publish a press release announcing the submission of a complaint). Otherwise, the regional human rights bodies would not publish information about cases pending in the admissibility phase. However, it's important to note that as many as 90% of complaints will not make it through the admissibility phase. The most effective way to keep abreast of admissibility decisions, in my experience, is by regularly checking the websites of the regional human rights bodies, both on their homepages and on the page dedicated to decisions.
I am very interested to hear what others' experiences have been in obtaining information.
Hi all, great to be part of this discussion!
Thanks Lisa for the advice on obtaining information, which definitely mirrors our experience with the African Commission on Human and Peoples' Rights.
As Lisa said, it is difficult to find information on pending cases at the Commission. The activity reports (for example, the 35th Activity Report) contain headline information on cases - which ones the Commission has been seized off, which have been considered admissible/inadmissible, which have been decided on the merits, if there have been oral hearings, etc. One challenge is that the activity reports of the Commission are generally only published once a year after they have been submitted and considered by the Assembly of the African Union. Probably the best way to get information on ongoing cases is to contact the complainants directly.
Once the Commission makes a decision on a case, the decision will be published on the website here: http://www.achpr.org/communications/ A fantastic resource for analysing and navigating decisions by the Commission is the African Human Rights Case Law Analyser: http://caselaw.ihrda.org/. It contains information on decisions by the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights, as well as some relevant cases from the ECOWAS Community Court of Justice, the SADC Tribunal and the East African Court of Justice.
Then, finally, for those who want to engage seriously with the African Commission, you really need to attend sessions in person, at least once, but ideally more often to make contact with the relevant staff members as well as the network of NGOs with experience working with the Commission. Human rights defenders tend to be very generous with information, advice and contacts. The NGO Forum that takes place just before each ordinary session is good space in which to start and strengthen your networks. Other informal networks have also emerged around particular issues. For example, a group of "Litigants for Strengthening the Protective Mandate of the African Commission" came together in 2012 to share information and advocate more effectively. Drawing on their collective knowledge and experience, the group of NGOs has published a manual on how to file a communication before the Commission.
I hope that helps! I'd be interested to know what civil society resources and information-sharing tools exist in other regions? And any thoughts on how/if these can be adopted or adapted as official tools of the regional mechanisms?
Great resources - thanks for sharing these Amy! Another useful document is the Road map for civil society engagement: State reporting procedure of the African Commission on Human and Peoples' Rights produced by the International Service for Human Rights, Conectas Human Rights and Association Justice, Peace and Democracy.
Keeping up-to-date with information from the Commission is tough. Although the current website www.achpr.org is a vast improvement, it is often missing information, as Amy noted, that would be useful for activists to identify opportunities and plan their engagement. It's a good idea to check first that there's not a legitimate reason for the non-publication (as Lisa mentioned, delaying publication to allow more information to be submitted). The rules on concluding observations are that they need to be sent to the State Party within 30 days of the session where they were made. They then form part of the Commission activity report and will be posted on the website after the activity report is adopted (and often this only happens once a year). If documents are missing, I would definitely encourage activists to follow up with the Commission secretariat about it - sometimes it is just an oversight and the document can be uploaded (we had this experience).
As has been mentioned elsewhere, nothing beats personal contacts - direct contact with individuals at the Commission secretariat rather than just the generic email address, as well as with NGOs working in closer proximity with the institution - NGOs that attend every session or those based in Banjul, where the Commission has its HQ. Many of the Commissioners also share contact information on the website: http://www.achpr.org/about/ Attending the Commission sessions and the NGO Forum, though expensive, really helps.
Following up on the theme of personal contacts and direct interaction with the regional human rights bodies, the Inter-American Commission on Human Rights' sessions and, to a lesser extent, the sessions of the Inter-American Court, are great opportunities to: see these bodies in action, meet with their staff or members, and - most of all - to connect with other advocates from throughout the Americas. The dates and other details of Commission's and Court's sessions are published on their respective websites.
Thank you, Lisa, for your questions and comments. And thanks, Amy, for the shout-out on our recent thematic hearing.
Since a good part of today's discussion is focusing on the case and petition system, I'll focus this first comment on some general notes on how organizations and individuals can bring cases before the Inter-American System. Later, I'll talk about some examples of other advocacy tools' interface with the Inter-American System.
Bringing Cases to the Inter-American System
Organizations, individual representatives (whether lawyers or not), or direct victims may bring petitions before the Inter-American Commission on HUman Rights alleging their rights. I could (and probably will) elaborate on this is much greater detail, but for now I'll mention that the procedural aspects of petitions are governed by the IACHR Rules of Procedure (http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp).
Attached, you'll find a flow chart providing a visual of how proceedings before the IACHR work. The Commission generally divides their consideration of a petition into two major phases: (1) Admissibility and (2) Merits. This is similar to other regional human rights mechanisms.
When a petition is first received it goes to Registry, where the IACHR Secretariat will assign the petition a number and assure that it contains the requisite information to require the State's response and open the Admissibility phase. In the admissibility phase, the Commission ensures that the petition satisfies (i) the six month rule (filed within six months or a reasonable time within last domestic decision/action), (ii) prior exhaustion of domestic remedies, and (iii) litis pendence (i.e. that the same matter is not pending before another international body of jurisdiction). Just as in the African and European systems, there are important exceptions to the rule of exhaustion of domestic remedies, including that exhaustion of remediesshould not lead to a halt or delay that would render international action in support of the defenseless victim ineffective, and that any remedy to be exhausted must be available and effective (effet utile). Generally a domestic remedy to be exhausted should be judicial, ordinary, adequate, and effective. (See also exceptions to exhaustion in Art. 46.2 of the American Convention / Art. 31.2 of IACHR RUles of Procedure).
This stage of proceedings concludes with the issuance of an Admissibility Report (or Inadmissibility Report, as the case may be).
In the merits phase, the parties once again exchange briefs, arguing substantive law. When this phase finishes, the IACHR will publish a Merits Report, making findings of law, considering the facts and arguments alleged by the parties, and issuing -- in the case it finds a violation of international responsibility -- a series of numbered Recommendations in order for the State to remedy the consequences of the violation.(See Art. 43, IACHR RUles of Procedure -- http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp).
For States that have not ratified the ACHR and accepted the IA Court's jurisdiction (See: http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights...), this is the last declarative judgment, and the Commission will continue to supervise implementation in its annual reports until the recommendations have been fully complied with.
For those States that are party to the ACHR and under the IA Court's jurisdiction, the Commission will set a deadline for compliance and -- if that deadline is not met -- it will go to the Court. (See Arts. 44 - 46 of IACHR RUles of Procedure - http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp).
Side-note: The IACHR's current Rules of Procedure went into effect in August 2013 after a political "reflection process" about the Inter-American System advanced by certain States. I'll mention this in later posts.
Inter-American Court Proceedings
The Inter-American Court's proceedings are governed by their respective Rules of Procedure. Generally, the IA Court considers Preliminary Objections, Merits, Reparations and Costs in a single judgment. (http://www.corteidh.or.cr/sitios/reglamento/nov_2009_ing.pdf) and the American Convention (http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights...).
Here, the petitioners and the State are parties to litigation, and (since 2009) the IACHR acts as a party in good faith to the proceedings (similar to the figure of a "Ministerio Público" in many Latin American or civil law systems).
IA Court proceedings generally proceed as follows (See the attached visual):
--IACHR files an initial brief (See Art. 50, ACHR)
--The Secretariat notifies the parties
--The victims' representatives submit a primary brief (commonly referred to as an "ESAP")
--The State submits a reply brief
--The victims submit an additional submission any preliminary objections, if applicable
--The Court convenes a public hearing, which includes arguments by the parties, as well as any witnesses or experts it decides to convene.
--The parties later submit Final Written Arguments
In a judgment, the Court orders a State to adopt measures of reparation. In addition to monetary measures of reparations, these cases have included important measures of just satisfaction, restitution and non-repetition, like:
--Investigation and prosecution
--Public ceremonies apologizing to the victims
--Naming streets or monuments
--Publication of the judgment
--Releasing victims from prisons
--Returning lands or goods
--Reforms to domestic laws
The Inter-American Court supervises compliance through a post-judgment proceeding that remains open until all measures have been fully implemented. (See Art. 68, ACHR -- http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights... Article 69, I/A Court Rules of Procedure -- http://www.corteidh.or.cr/sitios/reglamento/nov_2009_ing.pdf)
As Lisa's graphic illustrates, timing is key in order to continue to bring attention to a situation or specific matter over the time it takes to receive a declaratory report or judgment.
Other tools available in the Inter-American System, in addition to the petition and case system, include:
--Reports: Annual reports, country, thematic, follow-up
--Press Releases (http://www.oas.org/en/iachr/media_center/press_releases.asp)
--Statements and Declarations
--Hearings: case-related or thematic (http://www.oas.org/en/iachr/activities/sessions.asp)
--Advisory Opinions (http://www.corteidh.or.cr/index.php/en/advisory-opinions)
Each one of the aforementioned tools available in the Inter-American System can complement a case. It is up to the petitioner to make strategic decisions based on the function of each of these mechanisms to ensure that the puzzle pieces fit together on a given issue. To provide a practical example of how different political and quasi-judicial faculties of the Commission can converge on a single issue, take a look at this page regarding the United States detention center in Guantanamo Bay:
As you can see, here CEJIL and CCR have coordinated a strategy that involves collective precautionary measures on behalf of all detainees since 2002, the leading case in the petition system, and the following other international actions we were able to achieve all in support of the same goal:
--Repeated requests for an on-site visit to the detention center
--Joint Declarations together with United Nations mandate-holders (https://www.oas.org/en/iachr/media_center/PReleases/2013/029.asp)
--Numerous press releases (see, e.g., https://www.oas.org/en/iachr/media_center/PReleases/2012/003.asp)
--Numerous public hearings, both case-related (see Art. 64, IACHR RUles of Procedure) and thematic (see Art. 66, IACHR Rules of Procedure).
--Thematic and country-specific reports through rapporteurships and in the IACHR's Annual Report
The last two such public hearings (both of which were thematic) are available here and here.
Charles and others - is it possible for advocates and victims to interact with the Inter-American system or other regional human rights mechanisms virtually - by using new technology? I wonder if this is being used in the petition process or another processes. Last year, New Tactics hosted a conversation on engaging the UN Human Rights Council and we learned that it's possible for some NGOs to submit video messages to the Council. Is this an option for any of the regional HR mechanisms? Would it be a useful tool for advocates? If it's already available, do you have any examples of how it has been used?
Or, other examples of how new technology is being used to improve and/or expand access to these institutions? Or, has technology been shown to be a barrier?
- Kristin Antin, New Tactics Online Community Builder
The Inter-American Commission and Court have allowed victims and expert witnesses call in via video conferencing technology or to submit statements via video or audio. For example, in the attached video, the petitioners were able to use an audio statement from a death row prisoner who was unable to travel to the IACHR.
As a practical matter, petitioners who need to use this technology should try to give the Commission/Court advanced written notice to ensure it's compatible with their video systems, etc.
Since August of 2013, the IACHR has instituted a centralized online request system for hearing requests.
In response to an earlier question about whether to send documents via courier: whenever possible you should send documents to the IACHR digitally. If you send them a physical copy of your initial petition, it will take extra time for the Commission to scan and digitalize them.
Sometimes the IA Court may require original documents (ex. notarized affidavits), but it's recommendable to digitalize all the documents you can. It makes things easier, and you can save a few trees.
I am going to use the case of the African Court on Human and People’s Rights to give my comments on why we engage regional human rights bodies. One of the main differences between the African Union (AU) and its predecessor, the Organisation of African Unity is that the AU recognises the importance of involving African people in the affairs of the union. In other words, the AU ought to be a people-centred organisation. As such, most of the legal instruments of the AU were drafted by different key stakeholders including representatives civil society organisations, academics and other African players who provided their valuable inputs in developing documents such as the Protocol to the African Charter on Human and People’s Rights (hereafter referred to as the Protocol) on the establishment of an African Court on Human and People’s Rights (hereafter referred to as the Court).
I would, thus say that the first reason why we (individuals, members of the civil society organisations) engage regional human rights bodies such as the African Court on Human and People’s Rights is that we are stakeholders of the protocol establishing that court. Every stakeholder has a role to play as mentioned in the protocol. Non-governmental organisations, the broader civil society and individuals have a responsibility to engage the Court.
The second reason, in my view, is that many regional bodies entirely rely on state members in terms of funding and political support. State members in their general assemblies elect judges of the Court, approve its budget and give it powers to carry out its mandate. By engaging the Court, civil society organisations can learn how to influence some of the processes such as the determination of the budget allocated to the Court or influenced member countries’ political when it comes to sensitive cases of human rights violations.
Thirdly, as it is often the case for many legal instruments that need to be implemented, member states are quick to sign and ratify them, but very slow in their implementation. The preamble of the Protocol says, among other things, that “the African Charter on Human and People’s Rights reaffirms adherence to the principles of human and people’s rights, freedoms and duties contained in the declarations, conventions and other instruments adopted by the Organisation of African Unity, and other international organisations”. Unfortunately, bodies such as the Court take many years (if at all) before giving justice to the victims of human rights violations. Engaging the Court and AU member states that have it mandate is a strong way of reminding everyone country that is party to the Protocol that it has duties and responsibilities towards it people. The work of the civil society becomes very important in regularly sending out those reminders.
My final reason, but not the least one, is that civil society organisations and other activists play a key role in representing to the Court people who may not have the legal capabilities to do so. By engaging the Court, the civil society is able to understand its (the Court) ways of working thus in a positive to represent victims and the most vulnerable in the society.
Do we know of any similar cases in Latin America or Asia? http://www.ogiekpeoples.org/index.php?option=com_content&view=article&id...
Thank you for sharing the link to the Ogiek case. I'm sure many are looking forward to the African Court's judgment.
There are a few examples of similar sorts of issues being raised in the Inter-American system, including the Inter-American Court's decision in the Case of the Saramaka People v. Suriname, where the community alleged that the State had failed to protect its right to use and enjoy the land in accordance with its traditions and that the State did not seek the community members' free, prior and informed consent before authorizing the construction of a hydroelectric dam. The Forest Peoples Programme may be able to provide insights on the case, their strategy, and the impact of the decision, etc.
Other cases involving indigenous peoples' land rights include Xakmok Kasek Indigenous Community v. Paraguay, Sawhoyamaxa Indigenous Community v. Paraguay, and Case of the Indigenous Community Yakye Axa v. Paraguay
Former IACHR Commissioner Dinah Shelton refers to the Inter-American cases concerning indigenous communities' land rights in Paraguay, in the video below. The webpage of the IACHR Rapporteurship on the Rights of Indigenous Peoples lists other decisions and judgments that involved indigenous communities' human rights.
Hello everyone! Thanks for all of the great information. As my colleague Amy Bergquist noted, The Advocates for Human Rights has participated with partners in bringing human rights issues before a couple of the regional mechanisms. We know that information from our submission to the ACHPR on LGBTI rights in Cameroon was also useful for the United Nations Human Rights Council during Cameroon's Universal Periodic Review last year. Can others share some good examples of how they have used cases/processes/outcomes from the regional human rights mechanisms in their larger advocacy strategy (whether national or international)?
Excellent question, Jennifer! I've shared your question in our second discussion topic, in which we are encouraging participants to share examples.
- Kristin Antin, New Tactics Online Community Builder
Hello everyone, thank you for asking me to participate in this week’s conversation. I am looking forward to sharing experiences and learning from human rights defenders around the world.
The American Bar Association, Center for Human Rights - Justice Defenders Program provides and coordinates pro bono legal assistance for human rights defenders around the world who are working in difficult and vulnerable environments. The program is able to advise on and raise public awareness of sensitive trials; connect pro bono lawyers with local lawyers to provide advice on international or comparative law standards and share best practices; and observe trials that have garnered local, regional or international attention. We have worked in coalitions, and coordinate with pro bono counsel to engage and defend human rights defenders in local court. If that is not successful, we have helped some of them engage with regional and international human rights mechanisms.
In our work, we strategically decide to engage with regional mechanisms. Our philosophy is to first help support local lawyers and human rights activists in local courts to defend and protect their rights and freedoms. This strategy helps ensure that advocates have exhausted local remedies, as required before appealing to most international and regional bodies. In addition, we have found that helping local advocates articulate the arguments under international law can lead to better local court decisions or at least a victory in the court of public opinion, which often translates long-term into victories at the local level. We have also worked with partners to request thematic hearings or letters of inquiry from the regional commissions to reinforce the State’s legal obligations while the matter is still pending in local courts.
Efforts to encourage the internalization of international standards in domestic court rulings can be one way to respond to the disturbing trend of States ignoring the decisions, precautionary measures, or recommendations of regional mechanisms. For example, in one Latin American country, we filed an amicus brief with the Supreme Court that examined a fair trial issue under international standards. The Court agreed with our reasoning, notwithstanding the fact that the government of the country was simultaneously resisting implementation of Inter-American Court decisions in unrelated cases. This internalization of international standards in some domestic courts throughout Latin America has been a positive development, especially in light of growing resistance in the region to the broad role of the Inter-American Commission.