UGANDA MARTYRS UNIVERSITY NKOZI

NAME: NYINOMUNTU ANNET

REG No: 2019-B411-12400

YEAR/SEM: 3RD /2ND

COURSE UNIT: REGIONAL HUMAN RIGHTS

LECTURER: MADAM KEKIMURI JULIET

QUESTION

Critically examine the salient differences between the African, European and
Inter American Human Rights Systems.
Human rights are those rights which are inherent in the mere fact of being human. And
so are based on the principle of respect for the individual. Their fundamental
assumption is that each person is a moral and rational being who deserves to be treated
with dignity1.

However, according to the United Nations, Human rights are rights inherent to all
human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any
other status. According to Black’s law dictionary 2 , human rights are the freedoms,
immunities, and benefits that according to modern values especially at an international
level all human beings should be able to claim as a matter of right in the society in
which they live in.

Since the aftermath of the Second World War, the concept of human rights, as universal
and equal rights, based on human dignity, recognized to every individual simply
because he or she is a human being, has known a wide acceptance at global level. This
success is reflected not only by universal instruments created by United Nations
Organization in order to promote and protect human rights but also by the development
of some regional systems with the same goals. In this framework, the relationship
between the universality of human rights and these human rights systems has generated
a debate among scholars, practitioners, human rights activists and politicians.

The main topic of this debate is whether regional systems, adapted to specific local
conditions, could threaten the universality of human rights or, on the contrary, they
contribute to a wider and deeper implementation of universal human rights. Some
authors have warned about the alleged danger that regional systems could represent for
this concept, mainly because they may weaken the universal human rights system by
setting lower standards or creating "shields" for authoritarian regimes against global
scrutiny, while others have argued for the positive effects of these systems which should
be seen rather as complements of the United Nations' system, useful for the application
of universal human rights in local contexts.

In so doing, The UDHR recognizes all sets of right. The position of the ICCPR and the
ICESCR is that the two covenants are "universal, interdependent and interrelated3

1
Glen Johnson and Janusz Symon ides, 1998. Universal Declaration of Human Rights, history of its
creation and implementation 1948- 1998 UNESCO
2
11th edition
3
The 1993, 2nd World Conference of Human Rights.
The universality of human rights because they belong to every human being, they are
universally accepted at global level. The universality principle is reflected in the global
system set up by United Nations for the protection and promotion of human rights.
Several UN treaties and bodies contribute to the implementation of human rights
standards all over the world but sometimes they encounter various forms of resistance
yet the same goals of protection and promotion of human rights belong not only to this
global system but also to different regional systems.

The regional and universal human rights systems should be complementary. Even if
this relationship is complex and sometimes complicated, each of them presents some
advantages for an effective protection of human rights. From this perspective, regional
institutions can foster cooperation between states whereas universal organizations are
better situated to settle disputes between them. In addition, some regional organizations
can remove the idea that human rights are creations of western culture,

This regional system adopted two main human rights instruments; that is, the

American Declaration of the Rights and Duties of Man 4and the American Convention
on Human Rights 5 . It also established two supervisory bodies: The Inter-American
Commission on Human Rights and the Inter-American Court on Human Rights. In
Africa, the Organization of African Unity 6was created as a result of the process of
decolonization. It adopted the African Charter on Human and Peoples' Rights in 1981.
In 2002, the Organization of African Unity was replaced by the African Union.

The regional human rights systems have evolved in different conditions and have dealt
with specific issues for example freedom of expression, right to a fair trial or democracy
and political participation in Europe, disappearances, amnesty laws or the rights of
indigenous peoples in Americas, cruel penalties or the rights to a fair trial and hearing
especially in African court system,

The African Human Rights System. This is the youngest of the three judicial human
rights systems and it was formed with the help and support of the African Union (AU).
The African Human rights system, just like the Inter-American and the European
systems, includes a commission and a court with complementary mandates. The

4
(April 1948)
5
(1969)
6
(1963)
African commission on Human and People’s Rights (ACHPR), the African Court on
Human and people’s Rights (AFCHPR), and the African committee of Experts on the
Rights and Welfare of the child (ACEWC). All these assess States’ compliance with
human rights standards, including by deciding individual complaints of human rights
violations. However, the jurisdiction and activities of each body are distinct. For
example, the African Court on Human and Peoples Rights (AFCHPR) is a regional
human rights tribunal with advisory and contentious jurisdiction concerning the
interpretation and application of the African Charter on Human and Peoples’ Rights and
other instruments. Its jurisdiction extends to those states that have ratified the Protocol
to the African Charter on Human and Peoples’ rights. In addition to deciding cases, the
court may issue advisory opinions and adopt thematic reports. Additionally, the States
of the African Union have adopted two protocols that would replace the (ACHPR) with
a new African Court of Justice and Human Rights, intended to hear disputes arising
under all African Union instruments, and give that new court jurisdiction to prosecute
individuals for serious international crimes. However, neither of the two protocols has
been ratified by the required 15 States. The African Commission on Human and
Peoples’ Rights (ACHPR) promotes and protects human rights in the 54 member states
of African Union that have ratified the African Charter on Human and Peoples’ Rights.
The African Committee of Experts on the Rights and welfare of the child (ACERWC)
is charged with protecting human rights in Africa and interpreting the African charter
on the Rights and welfare of a child.

The inter-American human rights system.

The Inter-American system for the protection of human rights is a regional human rights
system, responsible for monitoring, promoting and protecting human rights in the 35
independent countries of America that are members of the organization of American
states (OAS)7. The Inter-American system is composed of two principal entities and
that is, the Inter-American Commission on Human Rights (IACHR) and Inter-
American court of Human Rights (IACHR). These bodies can decide individual
complaints concerning alleged human rights violations and may issues emergency
protective measures when an individual or the subject of a complaint is in the immediate

7
American Convention on Human Rights, Nov. 21, 1969, O.A.S. T.S. No. 36; 1144 U.N.T.S. 143; S.
Treaty Doc. No. 95-21, 9 I.L.M. 99 (1969)
risk of irreparable harm. The commission engages in a range of human rights
monitoring and promotion activities, while the court may issue advisory opinions on
issues concerning the interpretation of the Inter-American instruments at the request of
an OAS organ or member state. Federal Court: Blowing the whistle to the media is not
a freestanding workplace right , as in the case of Quirk v Construction, Forestry,
Maritime, Mining and Energy Union 8

A recent decision from Perram J of the Federal Court has confirmed that, in the absence
of specific protections under whistleblowing laws, blowing the whistle to the media
about wrongdoing at work is not a workplace right for the purpose of general
protections in the Fair Work Act 2009 (Cth)

The European Human Rights System

The European Human Rights System is comprised of the European Court of Human
Rights which has jurisdiction to decide complaint against all 47 council of Europe
member states, individuals, groups of individuals, non-governmental organizations and
states may submit applications concerning alleged violations of the European
convention on Human Rights. The European Court may issue emergency protective
measures when the applicant faces a real risk of serious, irreparable harm. The
European committee of social rights monitors compliance with the European social
charter among the 43 council of Europe member states that are party to the original
1961 social charter or the 1996 revised charter. States submit periodic reports on their
implementation of the charter’s provisions. The committee may also decide complaints
against those states that have chosen to accept the collective complaints procedures and
complaints maybe submitted only by approved employers’ organizations, trade unions
and certain non-governmental organizations. European Court of Human Rights finds
that authorities systemically failed to prevent gender-based violence. in the case of
Tkhelidze v Georgia. The European Court of Human Rights (the Court) unanimously
held that the Government of the country of Georgia (the Respondent) violated Articles
2 and 14 of the Convention of the European Convention on Human
Rights (the Convention). The Applicant, a resident of Georgia, complained under

8
[2021] FCA 1587
Articles 2 and 14 of the Convention that the Georgian authorities’ failed to protect her
daughter from domestic violence and to conduct an effective criminal investigation.

The three regional human rights systems in operation today share many
characteristics, but there are also differences as discussed below.

The African Charter on human and peoples’ rights is different from the charters that
established the institutions in the European and inter-American systems of human
rights, because it is not restricted to such narrow foundations as its predecessors. The
charter incorporates the three generations of human rights and creates a link between
the concepts of human rights, individual rights, and peoples’ and peoples’ rights. It
should therefore be observed that the difference between the African system, the
European and inter-American systems is that the African charter provides for the
diplomatic settlement of disputes and places less emphasis on the use of judicial
arbitration unlike its European and American human rights systems. However, the
African system has also achieved the use of judicial arbitration in the settlement of
disputes through the African court of human and peoples’ rights, due to the fact that
many states and individuals or groups involved in cases of human rights violations
rarely prefer the diplomatic settlement of such disputes. This therefore, maybe
considered as both a similarity and a difference since it is not provided for in the
normative instrument of the African system.

The European court of human rights is made up of 47 judges which is the same number
of members of the council of Europe and no two judges may be nationals of the same
state. Judges are elected for nine years and may be re-elected. Nonetheless, the terms
of four members elected at the first election expires after three years, and the terms of
four members expires at the end of six years. The composition of the
African court on human and peoples’ rights as explained in Article 11 (1) of the protocol
of the court resembles that of the European court, outlining that the court shall be made
up of eleven judges who are nationals of the member states of the former OAU/AU
members, and the court will not have more than one judge from a single member state.
The judges shall have a six-year term and may only be re-elected once. However, the
terms of office of four judges elected during the first election shall expire at the end of
two years, and the terms of four more judges will expire at the end of four years.
Although the numbers and terms of service are not exactly the same as in the African
and European human rights systems, the difference in the general composition of the
courts in these systems which is represented by the fact that in the inter-American
system, terms of office for only three judges ends after three years and the rest are
allowed to stay in office for the duration specified in Article 54 (1) of the American
convention on human rights.

The derogatory clauses included in the charters and conventions establishing the
European, African and inter-American systems also serve in differentiating these
systems from one another. In this case, the European and Inter-American systems
provide for the derogation of certain rights in times of public emergencies even when
the state parties are not allowed to derogate to the international labour convention even
in times of public emergencies. The African charter however due to claw back clauses
and omission of derogatory clauses, is permeated the African charter and also permit
African states to restrict basic human rights to the extent allowed by domestic laws.
The African charter doesn’t contain a general derogation clause which makes this
omission more serious because the charter in effect permits states through the claw back
clauses to suspend and to de facto many fundamental rights in their municipal laws.

The jurisdiction ratione materiae of the European court of human rights differs from
that of the inter-American and African systems. In the European court, the court’s
jurisdiction is restricted to matters that concern interpreting and applying the provisions
and principles of the European convention and the protocols attached to it, and because
the commission is no longer in existence, the court only considers cases directly
submitted by individuals, states or groups who are victims of human rights violations.
In the inter-American system, the jurisdiction of the court is much broader than that of
the European court including interpreting and applying the “provisions of the
convention as well as the provisions of the treaties concerning the protection of human
rights and a contentious jurisdiction, suitable for the trial of concrete cases, when some
of the state parties of the American convention is alleged to have violated any of its
precepts”. Unlike in the European system that currently lacks a commission, and
individuals and other groups are allowed to refer cases directly to the court, the
commission in the inter-American system is responsible for referring cases to the court,
a duty that can also be performed by another member state as long as the state that is
being accused of violating the principles of the convention previously accepted the
jurisdiction of the court to act in this context.

There is also a difference in the locus standi of individuals in both systems. In the
African system, article 5 of the court protocol allows that only the commission, state
parties and inter -governmental organizations can stand directly before the court, and a
joint reading of Articles 5 (3) and 34 (6) of the court protocol will provide an
understanding that for NGO’s and individuals to apply directly to the court, the matter
must involve a state that has previously accepted the court’s jurisdiction. However, in
the inter-American system, only state parties and the commission are allowed to
directly bring cases before the court and individuals can only lodge complaints through
the commission to the court once the admissibility of the case has been established.

The list of rights outlined in the instruments of the European, inter-American and
African systems make for a great difference between these regional systems of human
rights. The African charter incorporates civil and political rights as well as
socioeconomic and cultural rights. In the European system, these rights are entrenched
in different instruments including the European charter and the social charter. In the
inter-American system, again the case is noticeably different because while part 1 of
the convention outlines civil and political rights, the convention does not specifically
outline cultural, social or economic rights. The African human rights system starts with
the adoption of the African Charter on Human and Peoples’ Rights, 9(also known as the
Banjul Charter). The Banjul Charter was designed to function within the existing
framework of the Organization of African Unity (OAU), a regional IGO established in
1963 and since replaced by the African Union (AU) in 2002.

The enthusiasm of the African states to prove that the second-generation rights should
not be dissociated from the first- generation rights, drove the drafting of the charter
towards a different course and instead of clearly cataloguing and defining these
socioeconomic and cultural rights, the drafters were more interested in emphasizing the

9
June 27, 1981, 1520 U.N.T.S. 217, 245; 21 I.L.M. 58,59 (1982)
need for the independence and indivisibility of such rights. For example, the African
charter fails to mention such rights as the right to form or join trade unions, the right to
social security and the right to strike, which are considered important socioeconomic
rights preserved in the instruments of the other systems including the ICESCR10.

In conclusion, the above discussion has explained the universality principle of human
rights, a simple explanation about African, European and inter-American human rights
systems. The salient differences between African, European and InterAmerican human
rights systems have also been discussed drawing my mind on the comprehensive
analysis and review of the key topics of these systems. This piece of work helps one to
appreciate especially the universality principal of human rights more.

10
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