European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR), formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms, is a major international treaty established by the Council of Europe. Opened for signature in Rome in 1950 and entering into force in 1953, the ECHR was one of the first and most successful regional human rights instruments. Its primary aim was to prevent the recurrence of human rights atrocities witnessed during World War II by establishing a collective guarantee of certain fundamental rights.

The ECHR is distinct from the European Union. The Council of Europe is a separate organisation comprising 46 member states (as of 2024), including almost all European countries. Membership of the Council of Europe and ratification of the ECHR are conditions for aspiring EU members, but the Convention itself applies to all Council of Europe states, irrespective of their EU membership.

Key Rights Protected by the ECHR

The ECHR primarily focuses on Civil and Political Rights, similar in scope to many of the rights found in the ICCPR, but with its own specific definitions and nuances. The Convention also has several additional Protocols that have added further rights over time.

Core rights guaranteed by the ECHR include:

• Right to Life (Article 2): Protects the right to life, with exceptions for lawful acts of war or self-defence (further elaborated by Protocol 6 and 13 regarding the death penalty).
• Prohibition of Torture (Article 3): Absolutely prohibits torture and inhuman or degrading treatment or punishment. This is a non-derogable right.
• Prohibition of Slavery and Forced Labour (Article 4): Prohibits slavery, servitude, and forced or compulsory labour.
• Right to Liberty and Security (Article 5): Protects individuals from arbitrary arrest or detention and guarantees specific rights to arrested persons (like the right to be informed of reasons, prompt appearance before a judge, right to challenge detention).
• Right to a Fair Trial (Article 6): Guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. It includes rights like the presumption of innocence, legal assistance, and the right to examine witnesses.
• No Punishment Without Law (Article 7): Prohibits retrospective criminal laws.
• Right to Respect for Private and Family Life (Article 8): Protects against arbitrary interference with private and family life, home, and correspondence.
• Freedom of Thought, Conscience, and Religion (Article 9).
• Freedom of Expression (Article 10): Includes freedom to hold opinions and to receive and impart information and ideas, subject to specific limitations.
• Freedom of Assembly and Association (Article 11).
• Right to Marry (Article 12).
• Right to an Effective Remedy (Article 13): Guarantees that anyone whose rights are violated shall have an effective remedy before a national authority, regardless of whether the violation was committed by persons acting in an official capacity.
• Prohibition of Discrimination (Article 14): Prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (This article is non-stand-alone and must be read in conjunction with other rights).

Additional Protocols have added rights such as the right to property (Protocol 1), right to education (Protocol 1), right to free elections (Protocol 1), freedom of movement (Protocol 4), prohibition of collective expulsion of aliens (Protocol 4), abolition of the death penalty (Protocol 6 and 13).

The ECHR is significant not just for the rights it lists, but for establishing the first international judicial mechanism that individuals can directly access to complain against states.

European Court of Human Rights (ECtHR)

The European Court of Human Rights (ECtHR), located in Strasbourg, France, is the judicial body established by the ECHR to ensure that States Parties respect the rights and guarantees set out in the Convention. It is the central pillar of the European human rights protection system, providing a powerful enforcement mechanism unlike any other regional or the core UN human rights system, due to its binding judgments and direct accessibility for individuals.

The Court consists of a number of judges equal to that of the High Contracting Parties (States Parties to the ECHR), currently 46. Judges are elected by the Parliamentary Assembly of the Council of Europe and sit in their individual capacity, independent of their state. The Court functions through various compositions, including Single Judges, Committees (3 judges), Chambers (7 judges), and the Grand Chamber (17 judges).

Individual applications and inter-state applications

The primary function of the ECtHR is to deal with applications alleging violations of the ECHR. The Court can receive two types of applications:

Individual Applications (Article 34 ECHR)

This is the most frequent type of application. Under Article 34, any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto may bring the matter before the Court. This right of individual application is what makes the ECtHR particularly strong and accessible.

Key requirements for an individual application to be admissible include:

• The applicant must be a victim (or demonstrate direct impact) of the alleged violation.
• The alleged violation must concern a right protected by the ECHR or its Protocols.
• The application must be lodged against a State Party that has ratified the Convention and the relevant Protocol.
• The applicant must have exhausted all available domestic remedies in the State concerned (e.g., pursued the case through national courts up to the highest level).
• The application must be lodged within four months from the date of the final decision of the domestic court (since the entry into force of Protocol 15 on August 1, 2021; previously it was six months).
• The application must not be anonymous, substantially the same as a matter already examined, or clearly ill-founded, or an abuse of the right of individual application.

If an application is declared admissible, the Court proceeds to examine the merits of the case and determines whether the State has violated the Convention. If a violation is found, the Court issues a judgment, which is binding on the State concerned. The Court can also award just satisfaction (e.g., monetary compensation) to the victim.

Inter-State Applications (Article 33 ECHR)

Under Article 33, any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. This is less common than individual applications. One state essentially takes another state before the Court for allegedly violating the human rights of persons within that other state's jurisdiction.

Examples of inter-state cases often involve disputes between states concerning actions taken in disputed territories or concerning populations under one state's control but claimed by another.

Advisory opinions

Protocol 16 to the ECHR, which entered into force in 2018, allows the highest national courts and tribunals, as designated by the States Parties that have ratified Protocol 16, to request advisory opinions from the ECtHR on questions of principle relating to the interpretation or application of the Convention or the Protocols thereto.

Key aspects of advisory opinions:

• They are requested by designated national courts, not individuals or states (in the context of a pending case at the national level).
• They are advisory, meaning they are not legally binding judgments in the context of a specific application. However, they are intended to help national courts interpret and apply the ECHR consistently with the Court's jurisprudence.
• They contribute to dialogue and cooperation between the ECtHR and national courts, strengthening the implementation of the Convention at the national level.

This mechanism is relatively new and aims to improve the subsidiary nature of the Convention system, encouraging national courts to apply ECHR standards proactively. It is only available to states that have ratified Protocol 16.

The ECtHR's binding judgments and the right of individual petition make it a powerful and unique institution in the global landscape of human rights protection, directly impacting the laws and practices of member states to ensure compliance with European human rights standards.

American Convention on Human Rights

The Inter-American System of Human Rights Protection is a regional system established by the member states of the Organization of American States (OAS). It operates through two main bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). The foundational treaty of this system is the American Convention on Human Rights (ACHR), also known as the Pact of San José, Costa Rica. Adopted in 1969 and entering into force in 1978, the ACHR legally binds the States Parties that have ratified it to respect and ensure the rights and freedoms recognised within it.

The Inter-American system exists alongside the universal UN human rights system and complements it by providing regional standards and enforcement mechanisms tailored to the specific context of the Americas. While the system is regional, many of the rights enshrined in the ACHR echo those found in global instruments like the UDHR and ICCPR, reflecting the universality of human rights aspirations.

Key Rights Protected by the ACHR

The American Convention on Human Rights primarily enumerates Civil and Political Rights. Although the system has also developed norms and jurisprudence on Economic, Social, and Cultural Rights, the ACHR itself contains a limited number of explicit ESC rights (Article 26) compared to the ICCPR. However, the Inter-American Court has increasingly interpreted the Convention to implicitly protect certain ESC rights when linked to civil and political rights, and the IACHR extensively monitors ESC rights.

Core rights guaranteed by the ACHR include:

• Right to Juridical Personality (Article 3).
• Right to Life (Article 4): Protects life from the moment of conception, limits capital punishment.
• Right to Humane Treatment (Article 5): Prohibits torture, cruel, inhuman, or degrading punishment or treatment.
• Freedom from Slavery (Article 6).
• Right to Personal Liberty (Article 7): Protects against arbitrary arrest or detention.
• Right to a Fair Trial (Judicial Guarantees) (Article 8): Detailed guarantees for due process in criminal, civil, labour, fiscal, or any other proceedings.
• Freedom from Ex Post Facto Laws (Article 9).
• Right to Compensation in Case of Miscarriage of Justice (Article 10).
• Right to Privacy (Article 11).
• Freedom of Conscience and Religion (Article 12).
• Freedom of Thought and Expression (Article 13): Includes freedom to seek, receive, and impart information and ideas.
• Right of Reply (Article 14).
• Right of Assembly (Article 15).
• Freedom of Association (Article 16).
• Rights related to Family (Article 17).
• Right to a Name (Article 18).
• Rights of the Child (Article 19): Right to measures of protection required by his status as a minor.
• Right to Nationality (Article 20).
• Right to Property (Article 21).
• Freedom of Movement and Residence (Article 22).
• Right to Political Participation (Article 23): Right to participate in government, vote, and be elected.
• Right to Equal Protection (Article 24): Equality before the law and equal protection without discrimination.
• Right to Judicial Protection (Article 25): Right to a simple and prompt recourse (effective remedy) to a competent court against acts violating fundamental rights.

The Convention also includes provisions regarding the suspension of guarantees in emergencies (Article 27), the relationship between duties and rights (Article 32), and the competence of the IACHR and IACtHR.

Understanding the ACHR is essential for grasping the framework within which the two main Inter-American human rights bodies operate.

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IACHR) is one of the two main bodies of the Inter-American human rights system, based in Washington D.C., USA. It was created in 1959 and is an autonomous organ of the OAS. The Commission consists of seven independent members who are elected by the OAS General Assembly and serve in their personal capacity. The IACHR plays a crucial role in monitoring the human rights situation in all OAS member states (regardless of whether they have ratified the ACHR, as its mandate also derives from the OAS Charter) and in processing individual petitions.

Petitions and reports

The IACHR performs several functions, but its work on individual petitions and the issuance of various types of reports are particularly significant:

Individual Petition System

The Commission is the first instance body for individuals, groups, or non-governmental organisations (NGOs) who allege that an OAS member state has violated human rights protected by the American Convention or other relevant instruments (like the American Declaration of the Rights and Duties of Man, for states not party to the ACHR). The process involves several stages:

• Receipt of Petition: The Commission receives complaints of human rights violations.
• Admissibility Review: The Commission reviews whether the petition meets basic requirements for admissibility, which critically include the exhaustion of domestic remedies (the petitioner must have tried to get justice through the national legal system of the state concerned) and filing within six months of the final domestic decision.
• Merits Review: If admissible, the Commission examines the merits of the complaint to determine whether a human rights violation has occurred. It gathers information from the petitioner and the state ("friendly settlement" process can also occur at this stage).
• Draft Report and Recommendations (Article 50 Report): If the Commission finds a violation, it issues a preliminary report (Article 50 report) to the state concerned, setting out the facts, its findings of violations, and making confidential recommendations for redress (e.g., investigate, prosecute, provide reparations).
• Referral to the Court or Final Report (Article 51 Report): If the state does not comply with the recommendations within a specified time, the Commission can decide to refer the case to the Inter-American Court of Human Rights (if the state has accepted the Court's jurisdiction). Alternatively, if the Commission decides not to refer the case to the Court, it may publish a final report (Article 51 report) on the matter, which includes the findings and recommendations, making the situation public.

This petition system is a vital avenue for victims of human rights violations in the Americas to seek international review and accountability when domestic remedies fail.

Reports

The IACHR publishes various types of reports to document and raise awareness about human rights situations:

• Country Reports: The Commission monitors the general human rights situation in OAS member states, often conducting on-site visits (with state consent). It publishes comprehensive country reports detailing human rights concerns, progress, and challenges, and making recommendations to the state.
• Thematic Reports: The Commission also conducts in-depth studies on specific human rights issues or the rights of particular groups across the region (e.g., reports on freedom of expression, indigenous peoples, women's rights, LGBTI rights, poverty and human rights), publishing thematic reports with analysis and recommendations.
• Annual Reports: The IACHR submits an annual report to the OAS General Assembly summarising its activities, including case processing, reports issued, and recommendations. This annual report is a key tool for regional human rights monitoring and advocacy.

Through these mechanisms, the IACHR plays a critical role in supervising compliance with human rights standards in the Americas, processing individual claims, and raising awareness about human rights issues.

Inter-American Court of Human Rights

The Inter-American Court of Human Rights (IACtHR) is the judicial arm of the Inter-American human rights system, based in San José, Costa Rica. Established in 1979, its purpose is to interpret and apply the American Convention on Human Rights and other relevant treaties. The Court consists of seven judges elected by the OAS General Assembly for six-year terms. The Court's jurisdiction is twofold: contentious (dealing with cases of alleged violations) and advisory (issuing opinions on the interpretation of human rights norms).

Advisory opinions and judgments

The IACtHR exercises its mandate primarily through issuing binding judgments in contentious cases and influential advisory opinions:

Judgments (Contentious Jurisdiction)

The Court's contentious jurisdiction is exercised in cases where a State Party to the American Convention is alleged to have violated the Convention or other treaties conferring jurisdiction on the Court. However, importantly, the Court only has contentious jurisdiction over States Parties that have expressly accepted its jurisdiction. Furthermore, individuals cannot directly bring cases before the Court; cases are referred to the Court either by the Inter-American Commission on Human Rights or by another State Party.

Key aspects of the contentious procedure and judgments:

• Referral: Cases reach the Court after the IACHR has processed an individual petition, found a violation in its Article 50 report, and the State has failed to comply with the recommendations, leading the Commission to refer the case to the Court. A State Party can also bring a case against another State Party.
• Proceedings: The Court examines evidence (including expert testimony and victim testimony) and holds public hearings where the parties (the Commission, the State, and increasingly, victims' representatives participating autonomously) present arguments.
• Binding Judgments: If the Court finds that a State Party has violated a human right, it issues a binding judgment. The judgment determines the facts, declares the violation, and importantly, orders reparations.
• Reparations: Reparations can take various forms (Article 63(1) ACHR), including monetary compensation for material and moral damages, measures of rehabilitation (e.g., psychological care), satisfaction (e.g., public apology, memorial), guarantees of non-repetition (e.g., reforming laws, training officials), and investigation and prosecution of those responsible for the violations.
• Compliance Monitoring: The Court supervises the implementation of its judgments, requiring states to report on the measures they have taken to comply with the ordered reparations.

The Court's judgments are highly influential, setting precedents, clarifying the content of rights, and creating legally binding obligations for states that have accepted its jurisdiction.

Advisory Opinions (Advisory Jurisdiction)

The Court can also issue advisory opinions (Article 64 ACHR) upon the request of an OAS member state or an OAS organ. This jurisdiction allows the Court to provide authoritative interpretations of the American Convention or other human rights treaties in the Americas, or to address compatibility of domestic laws with these international instruments.

Key aspects of advisory opinions:

• Who can request: OAS member states (whether or not they have ratified the ACHR or accepted the Court's contentious jurisdiction) and OAS organs (like the General Assembly, the Permanent Council, or the IACHR).
• Subject Matter: Interpretation of the ACHR or other human rights treaties applicable in the American states, or compatibility of a state's domestic laws with these treaties.
• Non-Binding Nature: Advisory opinions are not legally binding judgments in a specific case of violation. They do not determine state responsibility in a contentious matter.
• Influence: Despite being non-binding, advisory opinions carry significant legal and moral authority. They provide guidance to states, domestic courts, and the IACHR on the meaning and scope of human rights in the region and have been crucial in the development of Inter-American human rights law.

Advisory opinions allow the Court to clarify human rights standards proactively, contributing to the prevention of violations and the harmonisation of law across the region.

Together, the IACHR and the IACtHR form a two-tiered system that provides robust mechanisms for monitoring, reporting, and adjudicating human rights issues in the Americas, serving as a vital backstop for national protection systems.

African Charter on Human and Peoples' Rights

The African System of Human and Peoples' Rights Protection is the regional human rights system for the African continent, established under the auspices of the Organization of African Unity (OAU), now the African Union (AU). Unlike the European and Inter-American systems which were established relatively soon after World War II, the African system developed later, reflecting the post-colonial context of the continent and the specific challenges faced by African nations.

The foundational treaty of this system is the African Charter on Human and Peoples' Rights, often referred to as the Banjul Charter (named after the city in The Gambia where it was drafted). It was adopted by the OAU in 1981 and entered into force in 1986. The African Charter is unique among major international and regional human rights instruments for several reasons, most notably its inclusion of not only individual human rights but also Peoples' Rights and the explicit enumeration of Duties of individuals and states.

Key Features and Rights under the African Charter

The African Charter blends various categories of rights and introduces distinct elements:

• Civil and Political Rights: Similar to the ICCPR and ECHR, it protects fundamental individual liberties such as the right to life (Article 4), liberty and security of person (Article 6), freedom from torture and cruel, inhuman or degrading punishment (Article 5), right to a fair trial (Article 7), freedom of conscience, religion and belief (Article 8), freedom of expression (Article 9), freedom of association (Article 10), freedom of assembly (Article 11), freedom of movement (Article 12), and political participation (Article 13).
• Economic, Social, and Cultural Rights: Unlike the ECHR, but similar to the ICESCR, the African Charter explicitly includes ESC rights, such as the right to work (Article 15), the right to health (Article 16), and the right to education (Article 17). These are listed on the same footing as civil and political rights, reflecting the principle of interdependence and indivisibility.
• Peoples' Rights (Solidarity Rights): This is a distinct and important feature of the Charter. It includes rights held collectively by groups or peoples, such as the right to equality of peoples (Article 19), the right to existence and self-determination (Article 20), the right to freely dispose of their wealth and natural resources (Article 21), the right to economic, social and cultural development (Article 22), and the right to national and international peace and security (Article 23) and a generally satisfactory environment (Article 24). These rights reflect the historical experience of colonisation and the struggle for liberation and collective well-being in Africa.
• Duties: The Charter is unique among major human rights treaties in explicitly listing duties for individuals (Articles 27-29). These include duties towards the family and society, the state, and the African community, such as the duty to respect and consider one's parents, to serve the national community, and not to compromise the security of the state. While some view these duties as potentially limiting rights, proponents argue they reflect a more communitarian philosophical underpinning prevalent in many African societies.

The Charter is seen as a synthesis of various international human rights traditions, adapted to the African context. It establishes a framework for human rights promotion and protection monitored by regional institutions.

African Commission on Human and Peoples' Rights

The African Commission on Human and Peoples' Rights (ACHPR) is the principal human rights monitoring body of the African Union. It was established by the African Charter itself (Article 30) and became operational in 1987, based in Banjul, The Gambia. The Commission is composed of 11 independent members elected by the AU Assembly of Heads of State and Government. It serves as the main body for interpreting the African Charter and monitoring its implementation by States Parties.

Functions and Mechanisms of the Commission

The ACHPR has both a promotional mandate and a protection mandate:

Promotional Activities (Article 45)

The Commission is tasked with promoting human and peoples' rights, which includes:

• Undertaking studies and research on African human rights problems.
• Organising seminars, conferences, and workshops.
• Disseminating information and educating the public.
• Giving its views or making recommendations to Governments.
• Cooperating with other international and African institutions concerned with promoting human and peoples' rights.

The Commission often issues resolutions, recommendations, and interpretative texts (like its General Comments and Principles) that clarify the meaning and scope of rights under the Charter.

Protection Activities (Articles 46-59)

The Commission oversees the implementation of the Charter by States Parties through:

• Examination of State Reports: States Parties are required to submit initial reports every two years and periodic reports every two years thereafter on the legislative, administrative, and other measures taken to implement the rights in the Charter. The Commission examines these reports through a constructive dialogue with the State and issues recommendations in its Annual Activity Report to the AU Assembly.
• Examination of Communications (Complaints): The Commission can receive communications concerning alleged violations of the Charter. There are two types:
  • Inter-State Communications (Article 47): A State Party can bring a communication against another State Party for alleged violations. This mechanism has been rarely used.
  • Other Communications (Individual/NGO Communications) (Article 55): Individuals, groups, or NGOs can submit communications against a State Party. This is the most frequently used mechanism.

Admissibility Requirements for Communications (Article 56)

Communications must generally meet several criteria to be admissible:

• Indicate the author's identity.
• Be consistent with the Charter.
• Not contain disparaging or insulting language.
• Not be based exclusively on news disseminated through the mass media.
• Be filed after exhausting local remedies (unless it is obvious that this procedure is being unduly prolonged).
• Be filed within a reasonable period after the exhaustion of local remedies or the date the Commission was seized of the matter.
• Not deal with cases that have been settled by States involved.

Outcome of Communications

If a communication is declared admissible, the Commission examines the merits. If it finds a violation, it makes findings and recommendations to the State concerned. These findings and recommendations are contained in the Commission's Annual Activity Report, which is submitted to the AU Assembly of Heads of State and Government. Historically, the Commission's findings were not legally binding judgments, but their publication and consideration by the AU Assembly carried political and moral weight. With the establishment of the African Court, the Commission can now refer cases to the Court.

African Court on Human and Peoples' Rights

The African Court on Human and Peoples' Rights (ACtHPR) is the judicial organ of the African human rights system, established by a Protocol to the African Charter in 1998, which entered into force in 2004. Based in Arusha, Tanzania, the Court consists of 11 judges elected by the AU Assembly. The Court complements the mandate of the African Commission by providing a judicial mechanism to ensure State compliance with the African Charter and other relevant human rights instruments.

Initially conceived as a stand-alone court, a Protocol adopted in 2008 aims to merge it with the African Court of Justice to form the African Court of Justice and Human Rights. However, this merger has not yet taken effect, and the Court continues to operate as the African Court on Human and Peoples' Rights.

Jurisdiction and Functions of the Court

The ACtHPR has both contentious and advisory jurisdiction:

Contentious Jurisdiction

The Court can hear cases concerning the interpretation and application of the African Charter and any other relevant human rights instrument ratified by the State concerned. The ability to bring a case before the Court is restricted:

• Who Can Bring Cases:
  • The African Commission on Human and Peoples' Rights (most common).
  • A State Party to the Protocol that has lodged a complaint with the Commission against another State Party.
  • A State Party against which a complaint has been lodged with the Commission.
  • A State Party whose citizen is a victim of a human rights violation.
  • African Intergovernmental Organizations.
  • Individuals and Non-Governmental Organizations (NGOs): This is a significant but qualified right. Individuals and NGOs with observer status before the Commission can only bring cases directly before the Court if the State Party concerned has made a specific declaration under Article 34(6) of the Protocol accepting the Court's jurisdiction to receive cases from individuals and NGOs. As of 2024, only a limited number of AU member states have made this declaration.
• Admissibility: Cases referred to the Court must generally have gone through the Commission's process (including exhaustion of domestic remedies, unless the Commission waives this requirement in specific circumstances).
• Binding Judgments: If the Court finds a violation, it issues a legally binding judgment against the State concerned. The judgment can order appropriate measures to address the violation, including ordering the State to pay reparations (e.g., monetary compensation, rehabilitation, guarantees of non-repetition). States are obligated to comply with the Court's judgments.

Advisory Jurisdiction

The Court can also give advisory opinions on any legal matter relating to the African Charter or any other relevant human rights instruments, at the request of an AU member state or an AU organ.

• Who can request: AU member states or any AU organ.
• Subject Matter: Interpretation of human rights treaties applicable in Africa, or compatibility of domestic laws or practices with these treaties.
• Influence: Advisory opinions are not legally binding on states in the same way as judgments in contentious cases, but they are highly influential interpretations of the law and provide guidance to states, the Commission, and national courts.

The establishment of the African Court adds a crucial judicial layer to the African human rights system, providing victims with the potential for binding redress and strengthening the enforcement of rights across the continent, although challenges related to state cooperation, compliance with judgments, and the limited number of states accepting individual/NGO access to the Court remain.