Three regional systems have been established to protect human rights at the local level. This brief article will examine two of them, the European and African one, with some of the characteristics, differences, strengths and weaknesses, with a particular focus on their human rights enforcement mechanism. Europe has the oldest and most advanced system, featuring the European Court of Human Rights, which has compulsory jurisdiction and handles both inter-state and individual complaints. In contrast, the African system, represented by the African Commission on Human and Peoples' Rights, is a relatively recent development and has faced significant criticism, particularly from NGOs. Despite its challenges, the African system has raised public awareness and developed a distinctive African approach to human rights.

Under the European Convention on Human Rights (ECHR), the inter-state complaints are a valid technique to enforce its principles. According to Article 33 of the ECHR, one state can file a complaint against another if it suspects a human rights violation, even if it is not directly affected by the case. The inter-state complaint system is seen as a safeguard for public order in Europe, rather than a mechanism for advancing individual state interests. The European inter-state complaint process is the most frequently applied. A noteworthy example of its application includes Greece's complaints against the United Kingdom regarding its governance in Cyprus (Greece v Government of the United Kingdom of Great Britain and Northern Ireland, 1956). Conversely, the African system provides two methods for filing inter-state complaints. The first one permits a state to communicate directly with the alleged state regarding the human rights violations before submitting a complaint to the African Commission, giving the accused state three months to resolve the issue. The second method, outlined in Article 49, permits a state to file a complaint directly with the African Commission without prior notification to the accused state.

Despite their differences, these two regional systems offer several advantages. With fewer states involved, they can more easily achieve political consensus on legal texts and enforcement mechanisms. Shared cultural, linguistic, and traditional backgrounds in many regions can also facilitate enforceability and cooperation, as states often have similar interests (European Parliament, 2010). Regional systems provide a crucial and reliable resource for the international implementation of human rights, as they are better adapted to local contexts than a universal global system. In particular, the European system has created the judicial doctrine of the margin of appreciation, which was first applied to the case Handyside v. The United Kingdom. The doctrine allows states a degree of flexibility in interpreting and implementing their human rights treaty obligations, recognising the diversity of national contexts and legal systems. However, the European Court maintains the ultimate authority and can intervene when the state’s actions are found to disproportionately infringe upon fundamental rights (Legg, 2012). The doctrine positively affects enforcement by providing flexibility in balancing member states' sovereignty with their obligations under the European Convention. In regions such as Europe, a judicial approach to enforcement may be effective, while in others, like Africa, a mix of judicial mechanisms and non-judicial processes, such as commissions and peer reviews, may be more suitable. This different adaptability is a strength of the regional frameworks, allowing them to address specific needs and conditions that a global system may not fully accommodate (Heyns, Padilla & Zwaak, 2005).

Nevertheless, these systems are still governed by international law, as they are established through treaties that fall under the Vienna Convention on the Law of Treaties. As a result, they encounter similar challenges to those faced by international mechanisms, particularly concerning norms enforcement, since their effectiveness relies on inter-state agreement. An example of failure and inefficiency of the regional enforcement mechanisms is the reluctance of states to pursue inter-State complaints. This unwillingness often grows from concerns about diplomatic repercussions, political relationships, and the potential for conflict, highlighting a significant limitation of these regional mechanisms.

When comparing global and regional human rights frameworks, it is clear that no system should be seen as completely ineffective, as long as there is potential for improvement. However, enforcement mechanisms remain a complex and evolving challenge. Eric Posner has identified the key limitations affecting the human rights enforcement system, and they concern how the countries are subject in different ways to the human rights law. While such laws do not significantly constrain behavioural changes in Western countries, they often demand substantial changes in the conduct of many non-Western nations. This discrepancy can undermine both foreign support and the effectiveness of human rights enforcement, as the strategic interests of Western countries do not always align with the objectives of these institutions. The core issue lies in the fact that these systems are based on a model of good governance that reflects the shared historical experiences of Western nations. The same norms cannot always be suitable also for the poorer nations, which have often different traditions and contemporary challenges.

To address these problems, the successful enforcement of human rights at both levels may depend on two key factors: the degree to which treaty obligations are incorporated into domestic law, and the ability to bring individual cases before the relevant treaty mechanisms in the designated international or regional body (Higgins, 2012). In this context, regional human rights enforcement systems may offer the right solution. They are likely to be more effective than global ones in applying diplomatic, economic, and other sanctions to defend human rights. Additionally, regional mechanisms can adopt flexible approaches that fit with the regional context, as demonstrated by the doctrine of the margin of appreciation, which allows for flexibility and avoids the rigid standardised methods often promoted by the international system (Schreuer, 1995). In regions like Africa, where domestic legal remedies are often unavailable or effective, it is not always appropriate to apply methods which belong to western values. Instead, the African human rights system provides an appropriate framework for employing tools that consider local traditions and specific circumstances, as illustrated in the Jawara v. The Gambia case. Thus, human rights enforcement cannot be deemed ineffective if regional mechanisms are successful in achieving improvements at the local level, where international efforts may fall short. Nevertheless, on the global stage, the UPR mechanism has made significant contributions by regularly evaluating the performance of member states, promoting participation, and encouraging dialogue (Lane, 2022).

Despite the fact that no system is perfect, these frameworks have revealed their ability to promote the protection of human rights. To ensure that all individuals can fully enjoy rights and freedoms, it is essential for international bodies to strengthen their enforcement instruments and promoting a more compliant and impartial approach to human rights.

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References

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African Charter on Human and Peoples' Rights. (1981, June 27). Organisation of African Unity. https://au.int/sites/default/files/treaties/7771-treaty-0029__african_charter_on_human_and_peoples_rights_e.pdf (Entered into force on October 21, 1986)

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African Commission on Human and Peoples’ Rights. (2000). Jawara v. The Gambia, Communication No. 147/95.

 

British Institute of International and Comparative Law. (2015). Inter-state complaints in international

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https://www.biicl.org/documents/153_inter-state_complaints_in_international_human_rights_law_-_event_report.pdf

 

European Convention on Human Rights. (1950, November 4). Council of Europe. https://www.echr.coe.int/documents/convention_eng.pdf (Entered into force on September 3, 1953)

European Parliament. (2010). The implementation of human rights in the EU. https://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/410206/EXPO-DROI_ET(2010)410206_EN.pdf

 

Government of the Kingdom of Greece v. Government of the United Kingdom of Great Britain and NorthernIreland, App. No. 176/56 (1956).

Handyside v. United Kingdom, Series A no. 24, 1 EHRR 737 (1976).

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Heyns, C., Padilla, J. C., & Zwaak, J. (2005). The African regional human rights system: A work in progress. African Human Rights Law Journal, 5(2), 1–25.

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