MIDLANDS STATE UNIVERSITY

FACULTY OF LAW
DEPARTMENT OF PRIVATE LAW

REG NUMBER: R179311B

NAME: TATENDA

SURNAME: MADAMOMBE

LEVEL: 3:1

MODULE CODE: 306

MODULE: HUMAN RIGHTS

LECTURER: MR V. MUTATU

ASS QUESTION: Discuss human rights compliance strategies adopted in

different human rights systems and their effectiveness.
(30 marks)
This question is twofold; it requires the writer to discuss firstly, the human rights
compliance strategies that have been adopted in various distinct human rights system
and secondly, make an evaluation on the effectiveness of the same. Accordingly, it
becomes indisputably imperative to appreciate the meanings of the phrases ‘human
rights compliance strategies’ and ‘effectiveness’ for purposes of determining the scope
of this write-up. The former may be generally understood to mean mechanisms that
have been put in place to ensure or guarantee that there is observance of, obedience or
adherence to human rights obligations as outlined under a given human rights system.1
The latter loosely refers to the property of being able to produce the intended effect.2 In
short, the writer will answer the following questions; what are the compliance strategies
that have been adopted in a particular human rights system and how effective are they?
Therefore, for purposes of this essay, the test for effectiveness shall be whether or not a
particular compliance strategy is capably producing the initially desired effect. The writer
will, in the following paragraph, give the background of the question, after which, he will
then cascade to deal with the substantive discussion of the question and finishes off
with a paragraph of summation to this entire piece of paper i.e. a conclusion. Principal
source of reference shall be R. K. M. Smith International Human Rights Law 8th ed. 2018-
the text represents a more recent position.

There are broadly three human rights systems which are global,3 regional4 and sub-
regional human rights systems.5 There is United Nations under the global human rights

1
“To monitor compliance by states with their obligations under the treaties, the international community
as put in place some mechanisms” D. Chiweshe et al. Human Rights and the Media A Handbook (2003)
18.
2
The Heinemann Macmillan English Dictionary defines effective as “working well and producing the result
that was intended” which definition is substantially similar to the one given in the Oxford Student’s
Dictionary which defines effect as, “successfully producing the result that you want.”
3
“The United Nations (UN) is home to the global human rights system.” H. Charlesworth A Regulatory
Perspective on the International Human Rights System in P. DRAHOS (ed.) Regulatory Theory ANU
Press. (2017).
4
“The regional systems are now part and parcel of the universal system of protection of human rights and
fundamental freedoms.” R. K. M. Smith International Human Rights Law 8th ed. (2018) 94. This is similar
to what was said by Chiweshe et al. (n1 above) 18, “some regional communities have also put in place
mechanisms for monitoring and implementing the provisions of human rights treaties that have been
adopted at the regional level by the respective regional communities.”
5
F. Viljoen International Human Rights Law in Africa 2nd ed. (2012) 149.
regime and there are numerous types under regional human rights systems6 as well as
sub-regional human rights systems.7 These systems offer distinct protection of human
rights8 thus the compliance strategies differ. The extent of effectiveness and human
rights compliance strategies that have been adopted in the regional and sub-regional
human rights systems vary with the regions thus a brief look at the major compliance
strategies adopted in each region and a brief evaluation of their effectiveness is
undoubtedly necessary. The writer will deal with a particular human rights system
addressing both angles of the question that are (a) human rights compliance strategies
under that particular human rights system and (b) their effectiveness. The global human
rights systems shall be discussed first then regional and lastly sub-regional human
rights system.

Globally, human rights compliance strategies may be generally, in two forms, “either
Charter based or treaty based.”9 The former are the strategies provided under the
Charter of the United Nations10 whereas the latter refers to those established in terms of
a certain treaty for enforcement of that particular treaty.11 The United Nations Security
Council (hereinafter referred to as the ‘Security Council’) is one of the organs that are

6
“Europe, the Americas, and Africa have adopted regional human rights conventions…” J. Dugard
International Law: A South African Perspective 3rd ed. (2005) 330. These are just the major ones as was
also correctly put by Smith (n4 above) 88, “there are three main regional systems that aim to protect and
promote human rights; the Organization of American States, the Council of Europe and the African
Union.” This speaks to the effect that other regional systems do exist but like was acknowledged by the
learned author R. K. M. Smith in the recent quotation that the cited are only the major ones, the author
also maintains that, “however, other regional, transnational and non-aligned groupings of states have
chosen to demonstrate their commitment to universal human rights by adopting instruments enshrining
the rights they profess to protect” Smith (n4 above) 90.
7
Viljoen (n5 above) 471 gave examples of the sub-regional groupings that are in existence and expressly
commented on the African region at 474 to say, “Africa currently has at least 14 sub-regional integration
groupings with two or more in each region.” This speaks to the point that they are so many and logically
all could not be discussed in this piece of paper.
8
In light of regional and sub-regional human rights systems, certain regions have put in place different
compliance strategies to ensure compliance with respective treaty obligations hence protection of human
rights. To this, it has been authoritatively said, “machinery for protection of human rights may be created
on a regional basis.” I. Brownlie Principles of Public International Law 6th ed. (2003) 542.
9
“To monitor compliance by states with their obligations under the treaties, the international community
has put in place some mechanisms. These are either Charter based or treaty based.” (My emphasis)
Chiweshe et al. (n1 above) 18.
10
“The human rights record of members of the UN is also monitored by mechanisms that were not
necessarily created by human rights treaties for that purpose but have been established within the
framework of the UN Charter.” Chiweshe et al. (n1 above) 20.
11
“Many international instruments relating to human rights include some kind of mechanism.” Smith (n3
above) 67. And these, “treaty bodies are composed of independent experts of recognized competence in
the field of human rights” Chiweshe et al (n1 above) 18.
created in terms of the United Nations Charter12 (hereinafter referred to as the
‘Charter)’and serves as a mechanism for ensuring state compliance with human rights
obligations under the United Nations (hereinafter referred to as the ‘UN’) Since the
Security Council is primarily responsible for the maintenance of international peace and
security,13 “many international disputes are precipitated by violations of human
rights…and thus non-observance of human rights may constitute a threat to
international peace…this is the most obvious situation in which the Security Council will
involve itself in human rights.”14 The question of its effectiveness as already mentioned
may be judged against its intended effect. In this case, the Security Council’s mandate
hence its intended effect is clearly envisaged under the Charter, (Article 24) There are
certain cases where the Security Council intervened in human rights violations so as to
maintain international peace and security15 but, “the most serious complaint raised
against the Security Council is that it is less likely to take action against its permanent
members.”16 Be that as it may, the Smith 2018 still maintains that, the Security Council
has done its role of preserving peace, the writer holds a different view and argues that
by mere non-interference in the cases of human rights violations by the permanent
members, the Security Council has proved to be an ineffective organ. This is so
because its primary duty is to maintain international peace and since human rights
violations constitute a threat to the same, taking no action implies that the permanent
members are not part of the international community within which the Security Council
as to maintain peace, which is indeed not true.

The General Assembly is also another organ created under the Charter17 and, “has
considerable competency to deal with human rights. Its responsibility inter alia is to,
“discuss any questions or any matters within the scope of the present Charter or relating

12
Article 23 of the United Nations Charter.
13
Article 24(1) of the United Nations Charter.
14
Smith (n3 above) 55. The author further argued that, “where human rights are contributing to friction
between states, the Security Council may take action to restore peace under the terms of the Charter.”
15
Examples are in Southern Rhodesia during the time of Smith’s Unilateral Declaration of Independence
government, in Syria, Lybia, Iraq etc. There are also, “many United Nations Security Council resolutions
which call upon states to conform to international standards of human rights” Smith (n4 above) 56.
16
Smith (n4 above) 57. Examples given by the author to substantiate this include the human rights
abuses in the People’s Republic of China particularly in Tibet and Xinjiang.
17
Article 9 of the United Nations Charter.
to the powers and functions of any organs provided for in the present Charter.”18 This is
the major organ that reinforces state compliance.19 “Certain serious human rights
situations have been the subject of debate with the General Assembly deploring abuses
of human rights and calling on the state or states involved to conform to international
standards.”20 Moreover, when the General Assembly receive and considers reports
made by all treaty monitoring bodies, in the event of a state failing to submit the periodic
reports, it is publicized as a means of drawing attention of the international community
members’ and to compel compliance. It also issues declarations which are though not
legally binding, are indicative of the global opinion 21
thus some of its declarations have
since attained the status of customary international law hence binding.22 The General
Assembly has been performing as per its mandate and has been seen, “frequently
delegating human rights issues to specialized bodies.”23.

The last organ created under the Charter is the International Court of Justice.24 The
composition of this court25 is inter alia a concern with regards to its effectiveness.
Notably, it has been seen adjudicating over a plethora of human rights cases. This is so
because the composition of a court may affect its independence and hence
effectiveness. History attests that usually, the court is constituted by European judges
and this might pose a threat to the effectiveness of the court especially when dealing
with human rights issues from other continents e.g. Africa. Another issue with this court
is that, it, “is not, however, competent to adjudicate on disputes raised by individuals or
on substantive issues raised under any international human rights instrument”26, all it
can do is to sit, “as a chamber or full court and can hear contentious cases and deliver

18
Article 10 of the United Nations Charter.
19
Smith (n4 above) 59.
20
Smith (n4 above) 59.
21
Smith (n4 above) 58.
22
A perfect example would be the Universal Declaration on Human Rights of 1948.
23
Smith (n4 above) 59. And a good example may be that of the Human Rights Council established by
General Assembly Resolution 60/251. Smith (n4 above) 62 and the Economic and Social Council
(ECOSOC).
24
Article 92 of the United Nations Charter.
25
“Fifteen judges, drawn from different states, are elected by a majority of both the general Assembly and
Security Council. Ad hoc judges may be selected by states involved in a dispute before the court ….”
Smith (n4 above) 59.
26
Smith (n4 above) 60.
advisory opinions.”27 This then questions the effectiveness of the court and basing on its
intended purpose, it has not been fully achieving the intended effect.

Having discussed the Charter based mechanisms; the writer will now cascade to
looking at the treaty based mechanisms. There are numerous treaties that have been
adopted under the auspices of the United Nations and they offer various ways of
compliance strategies.28 “The most common is a reports system whereby states submit
a report on their implementation of the rights in the instrument.”29 Some authors are of
the view that treaty based mechanisms, “include Committees, treaty monitoring bodies,
supervisory committees or treaty bodies.”30 Common examples under the global
systems include state reporting, inter-state complaints and individual complaints31 and
also inquiries. These are common in treaties such as the ‘ICCPR’32, ‘ICESCR’33,
‘ICERD’34, ‘CRC’35and ‘CAT’36 One major problem that has affected the effectiveness of
the mechanisms under the United Nations, “is its ad hoc organization, a variety of
Committees receive reports from the same states, often at the same time.” Apart from
this, the financial and personnel constraints had also affected the effectiveness of the
mechanisms adopted under the global human rights systems.37 This concludes a
general assessment of the effectiveness of the mechanisms under the United Nations

The writer now moves on to dealing with regional systems. As mentioned above, there
are various regional systems but for purposes of this paper and following a perusal of

27
Smith (n4 above) 59.
28
Generally, “the legal basis for establishment of these treaty bodies is found in the treaties themselves.”
Chiweshe et al. (n1 above)18. Since they vary with particular treaties, the writer will concentrate on the
common ones only.
29
Smith (n4 above) 67.
30
Chiweshe et al. (n1 above) 18.
31
Chiweshe et al. (n1 above) 19.
32
Article 40, 41 and 42 of the International Convention on Civil and Political Rights.
33
Article 16 of the International Convention on Economic, Social and Cultural Rights.
34
Article 9, 11, 12, 13 and 14 of International Convention on the Elimination of all forms of Racial
Discrimination.
35
Article 43 of the Convention on the Rights of the Child.
36
Article 19, 20, 21 and 22 of the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment.
37
“What many fail to appreciate is the financial and personnel constraints which curb the work of the
United Nations. Severe financial problems render much of the system almost ephemeral, dependent on
the goodwill of the Committee members and of Member States for continuation. Personnel is another
problem- the secretariat available to the various human rights bodies is drastically smaller than an
equivalent size of organization…” Smith (n4 above) 82.
the literature around the subject, three arguably identified as the major regional systems
shall be discussed in great detail. Other regional systems will be discussed also. The
writer will begin with a discussion on the African Union as an example of one of the
identifiably major regional human rights system. One notable way of ensuring state
compliance under the African organization is the reports system.38 This is one example
of a treaty based mechanism.39 Other examples of treaty based mechanisms adopted
under the African Union include inter-state complaints40 and any other complaints which
could emanate from individuals or groups of individuals.41 In light of complaints strategy,
though it is admitted that, “a young developed regional system is to be found in
Africa…the African system has succeeded in developing a coherent regional system for
the protection of human rights”42, with the Commission receiving, “a number of
complaints, particularly in contrast to other regional systems channeled through
NGOs”43 Commenting on the effectiveness of the Commission in light of inter-state
compliance, it has been propounded that the Commission, “must ensure that all existing
local remedies have been exhausted…this is itself is problematic”44 because, “it is less
likely that inter-state dispute will be settled (or even competent) in a national court.”45
The Commission, in addition is only competent to issue advisory opinions which are not
binding anyway. This poses a serious threat to the effectiveness of such a mechanism.
However, through the reports system and complaints to which the publicity strategy has
been developed, the Commission had realized successes in protecting and ensuring
compliance. It has been maintained that, “publicity seems to be a key weapon in the
development of the African system- publicity and promotion of rights and public
condemnations of violations thereof.”46 Given these shortcomings of the Commission,

38
“Like many human rights systems, the African organization operates a system of reports to monitor
state compliance. “ Smith (n4 above) 149. Articles 62 of the African Charter on Human and Peoples’
Rights.
39
Chiweshe et al. (n1 above) 19.
40
Article 47 of the African Charter on Human and Peoples’ Rights.
41
Article 55 of the African Charter on Human and Peoples’ Rights.
42
Smith (n4 above) 90.
43
Smith (n4 above) 90.
44
Smith (n4 above) 149.
45
Smith (n4 above) 150.
46
Smith (n4 above) 153.
the African Union also adopted a judicial compliance strategy.47 The African Court on
Human and Peoples’ Rights has power to hear cases of human rights violations and
issue binding verdicts thereof and so as to strengthen its effectiveness, the 1988
Protocol provided expressly for the independence of the judiciary.48 The problem with
this court inter alia is it has a limited jurisdiction.49

Compliance strategies under the Council of Europe are substantially similar to those
discussed under the African Union above. There is like under the African Union, a court
established by the European Convention.50 This court receives, “complaints from
individuals or states alleging violations of those rights protected under the Convention”51
hence a wider jurisdiction, “and today the European Court acts almost as a
constitutional tribunal. Its judgments are considered authoritatively and tend to have
erga omnes effect as the court interprets and develops the convention rather than
merely applying it.”52 Though there are also other implementation mechanisms, the
Council of Europe is known for developing, “a system which ensures the protection of
basic human rights through a judicial mechanism.” Thus it has been said that,
“European Convention includes a comprehensive and very popular system for
monitoring state compliance through a court…”53 Apart from the court, complaints
procedures (both inter-state and individual) commissions54 and committees55 are also
part and parcel of the implementation mechanisms. A closer look at the compliance
strategies under the Council of Europe generally, “few would argue that the human
rights aspects of the work of the Council of Europe have not been a success;”56

47
“The Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’
Rights 1988 sought to create a court which complemented and reinforced the work of the Commission in
furtherance of the protection of human and peoples’ rights…” Smith (n4 above) 145.
48
Article 15 of the Protocol to the African Charter on the Establishment of the African Court on Human
and Peoples’ Rights 1988.
49
It can preside over all matters submitted to it concerning human rights violations but individual
complaints are inadmissible, it is the African Commission and States that have automatic locus standi.
Smith (n4 above) 147.
50
Smith (n4 above) 105.
51
Smith (n4 above) 105.
52
Smith (n4 above) 117
53
Smith (n4 above) 106.
54
There is a European Commission against Human Rights.
55
An example which might fall under this is the Committee on Legal Affairs and Human Rights.
56
Smith (n4 above) 117.
“However, the Council of Europe has its failings; not addressing economic, social and
cultural rights is a major one.”57

Another example of a regional human rights system is the Inter-American systems. The
region, “has a very complex system of protecting rights through diplomatic, quasi-
judicial and judicial processes…”58 In addition, compliance strategies include reports,
inter-State and individual complaints.59 There is also a court established under the Inter-
American for dealing with human rights issues which court has both advisory and
adjudicatory jurisdiction.60 The Inter-American Commission on Human Rights also
functions as a compliance strategy with the primary role of, “keeping vigilance over the
observance of human rights.”61 “In carrying out its mandate, the Commission receives,
analyses and investigates individual petitions alleging violations of human rights.”62
Though notable achievements have been witnessed in so far as implementation is
concerned, the scale of activities of the Organization remains barely comparable to the
successes of the Council of Europe and comparing to similar regional mechanism can
be another way of testing the effectiveness of the compliance mechanisms. What
appears settled is that, the Council of Europe as compared to the Organization of
American States.

As mentioned earlier, sub-regional human rights systems also offer compliance

mechanisms.63 Like regional human rights systems, there are plenty of them and could
logically not be practicable to discuss human rights compliance mechanisms that have
been adopted y each and every example of a sub-regional human rights system hence
only a few selected examples would form part of this discussion. A good example is that
of the Economic Community of West African States (ECOWAS) which has a court for
purposes of seeing to it that human rights obligations are complied with hence a
compliance strategy. A number of cases have been brought before this court and, “the

57
Smith (n4 above) 117.
58
Smith (n4 above) 121.
59
“Compliance by states with the provisions of the American Convention is ensured through a
combination of approaches, reports, inter-state and individual.”Smith (n4 above) 130.
60
Smith (n4 above) 128.
61
Smith (n4 above) 126.
62
Smith (n4 above) 127.
63
Smith (n4 above) 151.
Community Court is providing a rich seem of cases on human rights in West Africa.”64
Another example is the East African Community which too has a court, the East African
Court of Justice. This court however, “does not have jurisdiction to hear individual
complaints of alleged violations of human rights.”65 This then questions the
effectiveness of the court. What it means would be that individuals do not have
remedies under such a human rights systems yet it is true that a state may violate rights
of individuals. If there is no solid judicial mechanism to protect the individuals, how can
it be safely concluded that such a system is effective? Does that imply that there are no
human rights violations that are occurring everyday against individuals? Or does it
mean that individuals do not have rights at all? If they have human rights, why then are
they not protected? Surely one might not argue that these systems have been effective
in ensuring state compliance with human rights obligations under a sub-regional level.
This is so because, having known that individuals do not have automatic locus standi,
states are then likely to perpetrate human rights abuses against individuals and
therefore rendering the system ineffective.

In conclusion, there are three human rights systems which are global, regional and sub-
regional human rights systems. Each of these systems adopted various distinct and in
some cases, similar mechanisms to ensure that states comply with the human rights
obligations imposed upon them under a particular human rights system. Common
compliance strategies that have been adopted include state reporting, publicity, judicial
mechanisms, quasi-judicial mechanism, etc. The effectiveness of these mechanisms is
dependent on the intended effect and sometime can be assessed with comparison to
other similar mechanisms with a similar purpose but under a different human rights
system. This paper shows that the Council of Europe has been to a greater extent,
effective in ensuring protection of human rights hence ensuring state compliance with
the obligations imposed upon them under the system. No system however has provided
absolutely effective mechanisms. This is due to various reasons which are inclusive of
political, financial reasons, limited jurisdiction, lack of adequate personnel, etc.

64
Smith (n4 above) 152.
65
Smith (n4 above) 153.
BIBLIOGRAPHY

Books

Brownlie I. (2003) Principles of Public International Law 6th ed. Oxford University Press Inc.

Dugard J. (2005) International Law: A Sout African Perspective 3rd ed. Juta & Company Limited.

Chiweshe D, Moyo L, Mupita H, Ncube K, Ngulube P and Sibanda B. K. (2003) Human Rights
and the Media A Handbook Human Rights Trust of Southern Africa.

Viljoen F. (2012) International Human Rights Law in Africa 2nd ed. Oxford University Press.

Books Chapters

H. Charlesworth A Regulatory Perspective on the International Human Rights System in P.

Drahos (ed.) (2017) Regulatory Theory: ANU Press.

Dictionaries

Heinemann Macmillan English Dictionary Macmillan Publishers Limited 2006.

Oxford Student’s Dictionary Oxford University Press 2007.

International Instruments

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Convention on the Rights of the Child.

African Charter on Human and Peoples’ Rights.

Protocol to the African Charter on the Establishment of the African Court on Human and
Peoples’ Rights 1988.
International Convention on Civil and Political Rights.
International Convention on Economic, Social and Cultural Rights.

International Convention on the Elimination of all forms of Racial Discrimination.

United Nations Charter.