A Focus on the European Framework

INTRODUCTION

Regional human rights mechanisms and framework have developed in Europe, Americas, Africa and the Arab nations, of which the most effective is the European framework. Other regional frameworks do not offer an enforcement mechanism of the kind that is demonstrated by the European framework. Presenting a discussion on the European framework on human rights as well as other regional mechanisms and UN system, this essay will show that the European system of protection of human rights remains more effective and stronger as compared to the others.

EUROPEAN HUMAN RIGHTS FRAMEWORK

Membership of the European Union is linked with the membership of the 2009 Charter of Fundamental Rights, which contains rights corresponding with the ECHR rights. The principal treaty on human rights protection in the European framework is the European Convention on Human Rights (ECHR) officially, the Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

The membership of EU is not linked to the ECHR and even if a State Party were to leave the EU, as in the case of United Kingdom under (Brexit), they would still be bound by the ECHR as made clear by the White Paper Legislating for the United Kingdom’s withdrawal from the European Union. By delinking the membership of EU with the membership of ECHR, the European framework of human rights has been strengthened because even if a State Party were to leave the EU, as the UK seeks to do now, it would have

to still follow the standards of human rights as well as be bound by the ECtHR jurisdiction under ECHR until it specifically leaves the ECHR as well.

It has been said that the ECHR “establishes not only the world’s most successful system of international law for the protection of human rights, but one of the most advanced forms of any kind of international legal process.” The advanced nature of the international legal process created by the ECHR is due to the powers and functions of the court, as well as the mechanisms within the ECHR that lead to effectiveness of the ECtHR decisions. The reasons for the strength of the human rights protection of European framework may be traced back to the Conference of the International Committee of the Movements for European Unity at the Hague in May1948, where the motivating factor behind the European framework for human rights can be found in the following words:

“We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression, as well as the right to form a political opposition; we desire a Court of Justice with adequate sanctions for the implementation of the Charter.”

The above words are important because they point at two of the important aspects of the European framework of human rights, which make it effective in enforcing human rights in Europe: a substantive framework of rights; and an effective judicial enforcement mechanism for the enforcement of the rights. The above statement clearly mentions the common desire of the European nations for a substantive list of human rights as well as the desire for the establishment of a Court of Justice which would have relevant powers to effectively enforce rights under the Charter.

The establishment of the European Commission of Human Rights (European Commission) and European Court of Human Rights (ECtHR) was envisaged in 1949 itself. The substantive list of rights in the ECHR include the right to life (Article 2), right against torture (Article 3), right to liberty and security (Article 5), right to fair trial (Article 6), right to privacy (Article 8), and right to freedom of religion and conscience (Article 9), to name a few. The interpretation of the rights is left to the ECtHR, and this interpretation is also binding on the national courts.

English courts have also acknowledged the supremacy of the EU law and have generally followed the line of reasoning and interpretation given by the European courts including the ECtHR. In Ullah, the House of Lords held that national courts should not " dilute or weaken the effect of the Strasbourg case law without reasonable justification. ECtHR is the court with final jurisdiction on the interpretation of the ECHR. The examples from the English courts are useful because they point to the effectiveness of the decisions of the ECtHR, which demonstrates the effectiveness of the enforcement mechanisms under the ECHR.

The character of human rights protection in the EU is multi-layered because the implementation of rights is done through different mechanisms. Moreover, individuals can also approach the ECtHR after the admissibility requirements are satisfied and this is a mandatory and not optional jurisdiction of the court as is seen in other regional arrangements. The effectiveness of the ECHR in the enforcement of the human rights protected by the ECHR also lies in the interpretation of the rights by the ECtHR.

Judgments of the ECtHR indicate that there is an emphasis on interpreting ECHR rights in a way which asks for fair balance between the demands of the general interest of the community and the individual’s fundamental rights and a broad interpretation to rights. This applies to a host of rights that are recognised in the ECHR. For instance, reading the right against slavery to include right against trafficking, the ECtHR took a stringent view of obligations of the states to prevent and punish the offence of human trafficking. In Brogan, ECtHR held detention for unreasonable period to be a violation of rights protected by Article 5. In Rahman and Others, Member States have been asked to facilitate entry and residence for ‘any other family members’ dependants of a Union citizen, in a broad reading of the right to family life under Article 8 of the ECHR.

There are also a number of directives that are issued by the EU, such as the EU Data Protection Directive, which regulates the right to private life and the protection of personal data; and regulations, such as, Regulation 1049/2001/EC, which provides for transparency in the EU decision making processes. The directives and regulations of the EU are aimed at ensuring regulatory and administrative regimes that are conducive to the protection of rights.

The core idea in the ECHR, as well as in rights systems in the EU is harmonisation of human rights standards in the different European countries. Harmonisation is also ensured through the decisions of European Court of Justice, through the preliminary ruling procedure which allows access to individuals to the Court of Justice, uniform application of EU law, binds national courts to the ruling with retroactive effect, and sets precedent for future

cases. Through harmonisation of standards, the European courts ensure that similar standards of human rights are applicable to all countries within the EU as far as possible. The only exception to such harmonisation is found in the doctrine of margin of appreciation, discussed below.

Although the list of human rights is substantive and uniformly applicable to all Member States, the doctrine of margin of appreciation is applied by the ECtHR to allow states some flexibility in the application of standards based on national conditions. Margin of appreciation is a space allowed to the national authorities for derogating from ECHR rights if the exigencies of local situations so demand. Such local conditions may be related to national security, religious feelings, and morality. However, even in that case, the ECtHR has evolved principles that allow it to temper the effect of margin of appreciation allowed to the states.

Example of application of doctrine of margin of appreciation is in Frette v France, wherein the ECtHR allowed France to make a law prohibiting homosexual adoption. But as another case decided by the ECtHR shows, margin of appreciation is not always followed. The purpose behind application of the doctrine of margin of appreciation with some rigidity is to ensure that particularity or relativism is allowed to states only to a reasonable degree and not for the complete annihilation of the universally recognised human rights standards. Therefore, the interpretation of the ECHR by the ECtHR seems to be a well-balanced exercise by the court, where the court allows some margin to let states apply rights that are more suited to their national conditions, but not to the extent of allowing the complete annihilation of the right.

Letting states have some margin of appreciation is actually considered to increase the effectiveness of the right because states are more accepting of human rights standards in international law if they are allowed some scope for particularity. Indeed, doctrine of margin of appreciation is one of the examples of the better effectiveness of the ECHR as compared to other regional instruments. It has been argued that adopting the doctrine in Inter-American system would lead to increasing effectiveness of the Inter-American system because the doctrine allows the regional courts to provide a balance between human rights protection to individuals and domestic democratic decision-making for the State Parties.

In other words, the application of the doctrine of margin of appreciation will provide more justification for the Inter-American court’s decisions that may otherwise be seen to be ‘sovereignty-invading’ by the states concerned by showing how the court has evolved processes that allow balance between power of the court to rule in favour of rights of individuals and the right of the States to interpret convention rights in a way that also takes into account national considerations.

EUROPEAN HUMAN RIGHTS FRAMEWORK AS COMPARED WITH OTHER REGIONAL FRAMEWORKS AND THE UN FRAMEWORK ON PROTECTION OF HUMAN RIGHTS

Inter-American Framework on Human Rights

The Inter-American regional framework on the protection of human rights is applicable to the states in North and South America under the Organisation of American States. The Inter-American Convention on Human Rights 1969 (ACHR) is the major human rights convention under this system. The Inter-American Commission on Human Rights

(Inter-American Commission) was already in existence since 1960; this was reinforced by the Inter-American Convention. The Inter-American Court of Human Rights (Inter-American Court) came into existence in 1979 and along with the Inter-American Commission has “competence with respect to matters relating to the fulfilment of the commitments made by the States Parties” as per Article 33 of the Inter-American Convention.

Like the ECHR, the ACHR emphasises on civil and political rights, with there being an extensive list of civil and political rights recognised by the Convention. Social, economic, and cultural rights are recognised under the Additional Protocol to the Convention in the Area of Economic, Social and Cultural Rights. It is in the implementation mechanisms that differences between European and Inter-American system may be found, which show the former to be superior in terms of enforcement of human rights.

The implementation mechanism of the ACHR is done through the Inter-American Commission and the Inter-American Court, provided that States parties have accepted the jurisdiction of the latter. Therefore, at least for the application of the jurisdiction of the Inter-American Court, the recognition of its jurisdiction by the state concerned is a necessary prerequisite. In this, there is an important difference between the European system and the Inter-American system, in which we will also find one of the reasons for the superiority of the European system.

The Inter-American Commission implements the rights in ACHR by preparing studies and reports; and, and taking action on petitions and other communications. Unlike the Inter-American Court, which does not have compulsory jurisdiction, the Inter-American Commission has a mandatory jurisdiction for individual which can be made by “any person

or group of persons, or any non-governmental entity legally recognized in one or more member States of the Organization [of American States]” (Article 44). Inter-State Communications can also be made under Article 45(1) and (2); however, the Inter-American Commission can only hear such complaints against States that have recognised its competence to examine communications brought by other State party which has also recognised this jurisdiction (Article 45(1) and (2)).

Furthermore, neither the individual petition or inter-State complaint can be admitted by the Inter-American Commission unless it is established that domestic remedies are exhausted (Article 46(1)(a)). An exception to this rule can be made if it is established that domestic legislation “does not afford due process of law for the protection of the right or rights that have allegedly been violated”; victim was denied access to domestic remedies; or there were “unwarranted delay in rendering a final judgement” (Article 46(2)).

As mentioned above, the jurisdiction of the Inter-American Court is optional in nature, which means that the jurisdiction is limited to states that have recognised the jurisdiction of the court. On the other hand, the jurisdiction of the ECtHR is mandatory and all State Parties are subject to the jurisdiction of the ECtHR. This would mean that in the European framework, individuals can easily approach the ECtHR if any of their ECHR rights are violated against any State Party. This is not the case in the Inter-American framework on human rights. Moreover, the Inter-American Court has also found it challenging to ensure that the decisions are implemented in the national jurisdictions, which is not the case in Europe. Therefore, it can be said that the Inter-American framework does not have as effective an enforcement mechanism to deal with human rights violations by State Parties as is seen in the European context.

The African Charter on Human and Peoples’ Rights 1981 (ACHPR) entered into force on 21 October 1986. The majority of the African states are State Parties to the African Charter. The ACHPR itself is inspired by the UDHR, the UN International Covenants (ICCPR and ICESCR) and other regional human rights conventions, predominantly, the American and the European systems. The ACHPR contains rights in the nature of civil and political rights, and economic, social and cultural rights. It also includes collective rights, as is signified by Article 30 of the ACHPR, which specifically provides that the Charter aims to

“promote human and peoples’ rights and ensure their protection in Africa”.

Implementation of the rights protected by the ACHPR is done through two principal bodies: African Commission on Human Rights (African Commission) and the African Court of Human Rights (African Court). The African Commission consists of eleven members. It has two principal functions: promoting human and peoples’ rights; and protecting rights.

A Protocol to the Charter on the Establishment of an African Court of Human Rights was adopted in 1998 (1998 Protocol), Article 1 of which provides the creation of African Court of Human Rights, which came into existence in 2004. Like the ECtHR, the African Court has also been given both contentious and advisory jurisdiction. However, unlike ECtHR, the African Court’s jurisdiction is not compulsory in nature. This means that only those states that have made the declaration recognising the competence of the Court to

receive cases from NGOs and individuals can be made parties in contentious cases filed by individuals and NGOs.

As of now, only nine State Parties have recognised this jurisdiction of the African Court. The jurisdiction of the African Court extends to all cases and disputes relating to the interpretation and application of the ACHPR, the 1998 Protocol and any other human rights instruments that may have been ratified by the States concerned. Apart from NGOs and individuals who can file cases before the African Court, cases can be filed by African Commission, State parties to the Protocol or African Intergovernmental Organizations.

Like the European framework, the African framework also has a substantive list of human rights that are recognised and protected by the ACHPR. Like the ECHR, the ACHPR has individual rights in the nature of civil and political rights. However, the ACHPR can be considered to be more extensive than the ECHR, because it also contains a list of collective or peoples’ rights. Thus, the ACHPR contains some rights that are not found in the ECHR. These are in the nature of collective rights, including, the right of peoples to equality (Article 19); the right to existence of all peoples, including the right to self-determination; the right of all peoples to assistance in their liberation struggle against foreign domination (Article 20) to name a few. These rights are worded to signify their relation to all people and not just to individuals. These are collective rights and their significance may be seen in the context of the colonial experiences of the African nations, which has led to a greater emphasis on the rights of the peoples.

However, the right is only so good as its enforcement and the real test of comparison between European framework and the African framework on human rights is in the

enforcement of these rights. It is in this area that the European framework proves itself to be superior to the African framework.

The African Commission protects the rights through a method of communications from States and other sources, and by interpreting provisions of the ACHPR. These functions are advisory and recommendary in nature. Inter-State Communications under Article 47 are either settled to the satisfaction of the State making the communication and the State against whom the communication is made through bilateral negotiation or other peaceful procedures (Article 48); or prepare a report “stating the facts and its findings” (Article 52). The African Commission only makes “such recommendations as it deems useful” in the report and does not really give a binding decision in the case (Article 53).

Clearly, the African Commission is limited in its powers to deal with cases of human rights violations whether these come to it under complaints by the State parties. Even where the African Commission can hear individual petitions or petitions made by the NGOs, its powers are limited in dealing with the cases. In response to individual complaints, the African Commission can only take action after the communication is brought to the concerned State’s attention (Article 57), or undertake a study and make a factual report, accompanied by its findings and recommendations (Article 58(1) and (2)). Again, it is hard to say that the process is effective in protection of human rights. Apart from these mechanisms, there is the reporting mechanism (Article 62). These periodic reports are to be submitted by State Parties every two years.

The African regional system is more like the UN human rights framework and the same criticisms that are applicable to the UN system are also applicable to the African system. The framework contains an extensive list of human rights, more extensive than the

European framework, however, the enforcement mechanism is not effective. The African Court’s jurisdiction is not compulsory like the jurisdiction of the ECtHR. The African Commission has been given certain functions in the area of enforcement of human rights, but these functions are not effective at enforcing human rights because the powers of the African Commission are limited to issuing recommendations and advisory. These are not binding on the States concerned.

On the other hand, the decisions of the ECtHR are binding and enforceable against the states concerned. Therefore, it can be argued that the European framework of human rights is more effective at protection of human rights because it has a strong and effective enforcement system. The higher effectiveness of the European framework as compared to the African can be traced to the enforcement mechanisms contained in the ECtHR.

The Arab regional framework on human rights is the most recent addition to regional protection of human rights. The Council of the League of Arab States (Arab League) is the regional organisation under whose aegis the mechanism has been developed. For a long time, the Arab framework was missing a substantive list of human rights. The 1994 Arab Charter on Human Rights was a step in that direction, but it did not come into force. The principal convention under the Arab framework is the Arab Charter on Human Rights 2004 (Arab Charter), which is now the substantive framework on human rights.

The Arab Charter demonstrates regard for universal human rights in Article 43 which states that Charter cannot be construed to impairing the rights protected by the domestic laws of the States parties or by international and regional human rights instruments adopted or ratified by the State Parties. Prior to the Arab Charter, the Cairo Declaration of Human Rights 1990, which also recognised universally recognised rights as well as emphasised on the ‘Islamic’ view on rights.

Indeed, Baderin argues that that some of the rights recognised by the Cairo Declaration are close to both international human rights law as well as Islamic law and practices, such as, the freedom of movement. The synergy between universalist and relativist positions in Arab context is significant because Arab world reflects heterogeneity of polities, cultures and languages, which makes application of universal human rights without attention to local contexts difficult.

Relativism is also one of the areas that makes the implementation of human rights in Arab context difficult and less effective as compared to the European framework of human rights, where despite the application of the ‘margin of appreciation’ which may allow some variations of human rights practice in State Parties, the adoption and application of human rights standards are more universalised.

The Statute of the Arab Court of Human Rights 2014 provides for the establishment of an independent Arab judicial organ as the Arab Court of Human Rights (ACtHR) under Article 2. The adoption of the Arab Statute is a major step towards implementation of human rights and the step itself took twenty years to culminate; the absence of a judicial body was seen as a serious lacuna in the Arab framework. The step was also taken in order to bring Arab human rights at par with other regional human rights mechanisms such as ECtHR, the Inter-American Court, and the African Court.

The Arab League did propose in 1996 to establish the Arab Court, and again in 2005. Due to lack of consensus, the ACtHR did not materialise. The Arab framework did include the Arab Permanent Committee on Human Rights (Permanent Committee) since 1968. This body has been critiqued for its composition being political in nature, and for only having consultative functions. Consequently, in the absence of a judicial body, the Permanent Committee is only seen as a poor substitute.

Compared to the European regional framework on human rights, the Arab framework is not yet developed to the extent of providing strong implementation of human rights due to the absence of strong and effective enforcement mechanisms. In the Arab system, there has been a talk of establishing a ACtHR, which if established will be a judicial mechanism for the enforcement of human rights. However, till date such a court has failed to materialise. Comparatively, the European framework has effective judicial mechanisms for the protection of human rights, particularly in the ECtHR. Therefore, it can easily be argued that the European framework is more effective at enforcement of human rights as compared to the Arab framework.

CONCLUSION

To conclude, the European system can be distinguished from all other regional frameworks on human rights on the basis of the enforcement mechanisms in Europe, which are far more effective than those that are offered by the other systems. The superiority of the

European system can be traced to the establishment of the ECtHR, which has compulsory jurisdiction over State Parties to the ECHR. The European Court of Justice is also an important judicial body in the protection of rights, and has managed to use its powers to harmonise many standards that have direct bearing on the protection of human rights.

The ACHR as well as the ACPHR also establish judicial bodies for the interpretation of respective convention rights. However, these judicial bodies lack compulsory jurisdiction as State Parties have the option to not recognise the jurisdiction of the regional courts. The Arab League has so far failed to establish a regional court of human rights. Therefore, it may be said that although the Inter-American, African, and Arab regional systems of human rights protections have substantive list of rights; these systems are missing effective judicial mechanisms that are seen in Europe.

The European framework is also notable for the development of principles like the doctrine of margin of appreciation, which have further strengthened the human rights system in Europe. This is because the ECtHR can balance the rights of individuals and the state’s interest in national conditions which may require deviation from some of the standards in the ECHR.

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Table of cases

Costa v Enel (1964) Case 6/64 (1964).

Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (1963) ECR 1 30/62; C.I.L.F.I.T. (1982) C 283/81.

E.B. v France [GC], (App no 43546/02) ECHR 2008.

Frette v France, (App no 36515/97) ECHR 2002-I.

Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren (2004) C-453/00.

Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.

R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.

R (Ullah) v Special Adjudicator, [2004] UKHL 26.

Secretary of State for the Home Department v Rahman and Ors (2012) C-83/11.

Sporrong v Sweden [1982] 5 EHRR 35.

UK v Brogan (1988)11 EHRR 117; also see Aksoy v Turkey (1996) Eur Ct HR 78.