Lecture 5
Dr Nicolas Kang-Riou
REGIONAL SYSTEMS OF
HUMAN RIGHTS PROTECTION
Objectives
• Understand the regional dimension of human rights
protection
• The juridification at the regional level
• The role of regional courts and their variable authority
Levels of authority
No authority in fact
Narrow authority
• limited to parties
Intermediate legal authority
• Potential future litigants
• Government officials (ministry, judges etc.)
Extensive authority
• Shapes law and politics
Source: K Alter, L Helfer, M Rask Madsen, International Court Authority (OUP 2018)
ECHR: From narrow to extensive authority
Gradual development
Narrow authority at of generalised
the beginnings intermediate
authority
Contested authority
in some areas
The ECHR and the Council of Europe
ECHR: 1st treaty of the Council of Europe
Only a limited list of rights
Debate in 1949-1950
inspired by the UDHR
Biggest issues:
right of individual petition a court
The narrow authority based on consent
– Individual right of petition
– Compulsory jurisdiction
of the Court
– In the original ECHR
treaty: each state
needed to recognize
both options for it to
apply against them
– International law: treaty
obligations must be
accepted by states.
Structure until 1998
Individual application (if
State has accepted)
Decides on admissibility
Reports on the merit
Refers (or not) to the Court
Commission
Sits part-time
Committee of
Court
Ministers
Decides on the merit Decides on the merit (if
Makes recommendations State has accepted the
on implementation jurisdiction)
Structure after 1998 (Protocol 11)
Individual application
(compulsory)
Decides on Compulsory jurisdiction
admissibility Court Permanent Court
Then on the merit
Committee
of Ministers
Makes recommendations to the
States on implementation of the
Court judgments
Progression of the system
First judges of
Court elected by
the Consultative 168 admissible
Assembly of the applications / 26 Entry into force of Entry into force of
Council of Europe judgments Protocol No.11 Protocol No.14
14 Nov. 1960 1989 18 Sep. 2008
21 Jan. 1959 1970s 1 Nov. 1998 1 June 2010
Court 1st Right of individual The Court delivers
judgment: Lawless petition and the its 10,000th
v. Ireland Court’s jurisdiction judgment
apply to all states
Process and legal powers
Potential Inadmissible
Outcomes
Admissible but no violation
Violation of one or several articles on one or several grounds
Just satisfaction (art 41 ECHR) (financial compensation)
Implementation: Art 46(1): The High Contracting Parties undertake to abide by
the final judgment of the Court in any case where they are
parties
Overseen by the Committee of Ministers (recommendations)
Evolution of applications
70000
60000
50000
40000
30000
20000
10000
0
1955- 2001 2003 2005 2007 2009 2011 2013 2015 2017 2019 2021
1998
Applications
Evolution of judgments
1800
1600
1400
1200
1000
800
600
400
200
0
1955- 2001 2003 2005 2007 2009 2011 2013 2015 2017 2019 2021
1998
Applications
Role of the Court
ARTICLE 19 Establishment ARTICLE 32 Jurisdiction of
of the Court the Court
• To ensure the observance • 1. The jurisdiction of the
of the engagements Court shall extend to all
undertaken by the High matters concerning the
Contracting Parties in the interpretation and
Convention and the application of the
Protocols thereto, there Convention and the
shall be set up a Protocols
European Court of
Human Rights
From protecting liberal democracies
against return of authoritarian
The context practices (and against communism)
To anchoring young democracies into
the protection of human rights and
the rule of law
From 10 states to 46
Expansive interpretation of the ECHR
greatly influencing the behaviour of
states in many areas
Factors increasing the Court authority
EU Domestic judges Media and NGOs
Incorporated in EU Law Constitutional reception Report on ECHR
Highest towards states Judges training Use ECHR as a forum
applying for EU
membership
The Interamerican System
American Convention on
the Organization of
Human Rights (entry into
American States Charter
force July 1978)
(OAS)
1948 1969
1960 1988
Inter-American Commission Additional Protocol on
on Human Rights (American Economic, Social and
Declaration on the Rights Cultural Rights (Protocol of
and Duties of Man) – 1967 San Salvador)
Principal organ of the OAS
The Commission under the OAS
• 7 members
• Keep vigilance over the observation of human
rights (art 150 OAS Charter)
• Individual petitions under the OAS
• Country reports on systematic violations of
human rights
Individual complaints under
the ACHR
Individual application (if State has accepted)
Decides on admissibility
Recommendations on the merit
Commission If unimplemented refers (or not) to the
Court
Decides on the merit
Court Issues reparations
Monitors compliance
Reports to the OAS
Factors influencing authority
Facing massive
Underfunded violations of
human rights
Pioneer in terms of
protection of
A general indigenous rights,
compliance with forced
exceptions displacement,
military attacks on
civilians
Varying authority
Venezuela:
• limited
depending on Columbia:
constitutional
reception
• extensive
Chile:
• intermediate
The African System
A system looking for authority
Organization of African African Commission on
Unity (OAU) Human and People’s Rights
1963 1987
1981 2002
African Charter on Human African Union (includes the
and People’s Rights African Court on Human
(ACHPR) and People’s Rights)
Commission (ACHPR)
Individual communication
Admissibility
Amicable settlement
Report
Transmission to the Court
The individual complaints
• 244 communications
(2022)
Other actions
• State reports (Commission)
• Special Rapporteurs (women, prisons etc.)
• Working groups (death penalty, torture etc.)
• Commission Resolutions
The Court
• Complements the mandate of the Commission
• 33 state parties
• Direct complaints possible if special agreement
is given (8 states)
Statistics
• 326 contentious applications in total
