Inter-American and African Human Rights Systems

Regional Human Rights Systems (RSs) play an essential role in the promotion and protection of human rights in the region. They include regional instruments, such as treaties, conventions and declarations, and mechanisms, such as commissions, special rapporteurs, and courts. The RSs assist national governments in enforcing international human rights obligations and provide mechanisms for the victims to plead remedies for human rights violations once the national remedies have been exhausted. RSs also assist in raising awareness of human rights to the people in a localized context. They additionally provide regional inputs to the development of standards of international human rights and aid national governments to achieve them by providing assistance and technical help. Although there is a number of specific RSs around the world, the three main RSs in human rights are in Africa, Europe and America. This essay compares and contrasts the Inter American and African Human Rights System in implementing, as well as the challenges encountered. It does so by addressing each of their efficiency and capacity by comparing, weighting the advantage of each and by identifying the weakness.

The Inter American System, by a constitutive act, proclaims the fundamental rights of the individuals without discrimination. The American states are bound to abide by these rights and the principle of universal ethics. The Organization of American States created the Inter American System by the American Convention on Human Rights. On the other hand, the African Charter on Human and Peoples’ Right is the fundamental instrument created the African Unity Organisation, currently known as the African Union. African Union was created by affirming the adherence to the treaties and convention of the United Nations. The objective of the Union is to protect human rights, the abolishment of colonialism and for the cooperation for the political, economic social development in the African continent.

Unlike the Inter American system, which refers the civil and political rights only, the African Charter contains provisions for economic, social and cultural rights, rights to solidarity and the rights of refugees. African Charter also addresses the right of existence, self-determination, right to use natural resources and elimination of any form of economic exploitation. Charter, in implementing these rights requires the state party to assure to observe human rights through education by guaranteeing the independence of the judiciary and creating national institutions. However, both systems have their own supra-national mechanism of human rights protection. The American system has the American Commission, and the African system has the Court and the African Commission of the Human Rights and Peoples’ and African Court.

This essay takes the comparison between both systems in having the advisory and contentious competence, and on the conciliatory jurisdiction. The contentious competence includes the right to resolve individual complains, and interstate complains. Comparing both African and American systems, in the American system, the cases that have been filed by the individual complains are much higher than the inter-state complains. Contrastingly, in the African system, only few complaints were made against in total for the first ten years of the Commission. Further, the advisory competence of the American Court is significant, which means the court can formulate an advisory opinion on the request of the Committee of Ministers on legal issues regarding the interpretation of the conventions and other protocols. However, the conciliatory jurisdiction of the African Court is limited in a way to act only to settle any dispute that is pending. 

Both the African and American conventions provided jurisdictions for individuals to bring cases at the regional courts. According to the American Convention, “any person or group of persons or any nongovernmental entity legally recognized in one or more member states of the Organization may lodge petitions … of violation of the Convention.” Hence, to plead for a remedy, the plaintiff must prove in prima facie of the contentious jurisdiction either on the grounds of recognition or declaration. Contrastingly, no such rule is set out in the African Commission. According to the convention, any person in his or her interest or others, individually or collectively, through a state party or on their own entitled to notice to the African Commission. The commission then notifies to the African Court.

The admissibility criteria also differ between American and African systems. In general, the conditions for the admissibility system are the following. One, the national remedies must have been exhausted. Two, the petition must have been introduced within six months period since the date of the last internal decision. Three, the case must not have been addressed to any other international courts or tribunals.

Along with these general conditions, the American court can declare inadmissibility when the petition does not refer to any of the violations of the rights provided in the American convention. African court enjoys the same conditions. However, it differs in the period for lodging the complaint. According to the African charter, the charges must be lodged within a reasonable time, which is in substantial flexibility in assessment, compared to the American Courts.

Further, the article 58 (1) of the African Charter requires the Assembly of Heads of State and the governments to put a request regarding any series of severe and massive violence for the Commission to investigate. Although in prima facie, it seems ordinary, the fact that the governments have the power to put forward the request allows the judicial process politicized. The African Charter Protocol reaffirms the same admissibility criteria for any cases to be lodged in the African Court. However, the protocol provides for the exception only when a person or an NGO file a claim with observatory status to the Commission, then the court may ask for the Commission’s opinion.

The procedures of regional mechanisms in investigating human rights violations are common, usually. It includes the admissibility verification, the contradictory examination, and early settlements. However, there are slight differences between both African and American mechanisms. In the American system, the American Commission has the authority to create laws retrospectively of the violence and present it to the Court. Nevertheless, the African Commission has no such power. However, it can reduce or limit the intervention of the Assembly of Head of States and governments on notified facts. This aspect makes the jurisdiction of the African Court optional and subject to the ratification of the protocols.

On comparing the court decisions of both systems, the African system has the legal authority to deliver final verdicts that would bind state authorities under the African Charter of Human Rights. The African Charter Protocol further gives the power to the court to respond appropriately to grant remedies to the violations, including compensation or reparation. In severe circumstances, the court could adopt provisional measures.

Upon the decision is reached, the court shall notify all parties of the decision, and send copies to the member states. Enforcement would follow through the publicity of procedure, where the Council of Ministers of the African Union will supervise the compliance of the decisions. In the American system, the court has jurisdiction to rule against the perpetrator by granting relief to the victim through compensation and other provisional measures. However, the American system does not create any specific mechanism to supervise compliance with the judgment.

Although both systems have different mechanisms regarding it deals with the human rights violations, they are unique in their way to protect, implement and safeguard the human rights of individuals against the state. As stated in the introduction, the regional mechanisms not only provide input to the development of the human rights standards and mechanisms, but also help the national governments to effectively address regional human rights concerns that cross national borders. Irrespective of their differences, it is also worthy to note the common factors of these systems, that they are no way lower than the international standards, have a plurality of membership, and serve in an individual capacity.

Janakan Muthukumar
Janakan Muthukumar
Janakan Muthukumar is a young academic, currently undertakes a research project at the University of Toronto on G7 commitments on International Security. He holds an LLM in International Law from the University of London, UK and a Master in Human Rights and Democratisation at the University of Sydney, Australia. His research focuses on armed conflicts, counterterrorism and counterproliferation.