I Regional Protection of Human Rights
2. Europe
As early as 1950, some European states had already formed the Council of Europe126 and signed the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)127, which entered into force in 1953. The Convention was a further response to the barbarities committed in Europe during both the First and Second World Wars, a response founded on the belief that governments respecting human rights were more likely to seek to ensure the peace. They considered it necessary for regional peace that it be grounded on regional integration and the harmonization of common values, and that this be in part achieved through the institutionalization of
124 Ibid., Preamble.
125 American Convention on Human Rights (Pact of San José) adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969, entered into force on 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969).
126 The Council of Europe was established in 1949 to promote western European democracy.
127 European Convention for the Protection of Human Rights and Fundamental Freedoms. CETS No. 005, adopted in Rome, 4 November 1950 entry into force 3 September 1953, 213 UNTS 221.
those values.128 The European Convention takes into consideration the UDHR and further reaffirms, that fundamental freedoms must be the basis of justice and peace in the world, especially in the form of effective political democracy and the common understanding and observance of human rights. The European System of Human Rights has also developed a judicial mechanism in order to supervise the implementation of those rights established in the Convention. The Convention establishes the European Court of Human Rights, the jurisprudence of which has influenced other regional systems of international human rights.
The Council of Europe has adopted other Human Rights agreements. The most prominent is the European Social Charter129, which guarantees social and economic rights. The European Social Charter states in its preamble that the aim of the European nation members of the European Council is a unity of purpose for the realization and safeguarding of their common heritage and for facilitating their economic and social progress, placing special emphasis on the maintenance und further realization of human rights and fundamental freedoms, and stressing the indivisible character of economic, social, cultural, civil, and political rights. The organ responsible for supervision of the Charter is the European Committee on Social Rights, whose its function is to judge whether or not the state members are in conformity in law and practice with the provisions of the Charter.
3 Africa
The African regional Human Rights system is the youngest of all such complete existing systems. This system is the foundation of the Organization of African Unity, and has as its legal basis the African (Banjul) Charter on Human and People's Rights, adopted on 27 June 1981.130 The African system endeavours to meet the demands of the new developments in global human rights discourse. At the same time, it tries to reconcile such international standards with the demands of their particular cultures.131 One of the distinctive aspects of the African system is that the African Charter not only
128 Steiner and Alston, above note 121, p. 563 et seq.
129 European Social Charter CETS No. 035 adopted in Turin 18 October 1961, entered into force 26 February 1965, 529 UNTS 89.
130 African Charter on Human and People's Rights (Banjul Charter) adopted 27 June 1981 entered into force 21 October 1986 OAU Doc. CAB/LEG/67/3 rev. 5, 1520 UNTS 217.
131 Mashood A Baderin, "Recent Developments in the African Regional Human Rights System” Human Rights Law Review 2005 Vol. 5 No. 1, e.g. The African approach to the polygamous relationships under the African's Women Protocol.
deals with specific Human Rights and Duties but also with People's rights. The Charter places an emphasis on collective rights, the so-called third generation rights, such as the right to peace, the right to solidarity, the right to a healthy environment and, most especially, the right to development. In contrast to the European and the Inter-American system, the Banjul Charter also protects the rights of the so-called first, second, and third generations. Moreover, it positively acknowledges the relationship between fundamental peoples' rights and fundamental individual rights. However, it is important to highlight that the document is drafted in such a way as to permit state members to establish extensive restrictions and limitations on the exercise of the rights it proclaims.132 Nevertheless, Article 30 of the Banjul Charter establishes the African Commission on Human and People's Rights so as to promote and ensure the protection of the rights recognized therein.
The preamble of the Banjul Charter emphasizes that the Organization of African Unity recognizes that freedom, equality, justice, and dignity, are essential objectives for the achievement of the legitimate aspirations of the African peoples. The text affirms the idea of coexistence between, on the one hand, a universal approach to human rights and, on the other, of particular values and tradition. The historical values and traditions of African peoples are not only acknowledged in the preamble; they also find expression in the configuration of the rights and duties established therein. The Charter's preamble expressly recognizes the universality of human rights, in conjunction with the accumulated and indivisible economic, social, cultural, civil, and political rights, as a means to achieving its goals. As in the wording used in the Inter-American Convention, the Banjul Charter also regards fundamental human rights as attributes of the human being; from necessity, these human rights must be protected at both a national and international level.
The African human rights system is well known because of the proclamation of collective rights.133 Among these rights, the right to development deserves special attention. Complex in nature, it may be thought of as an all-inclusive right, the realization of which has important implications of a political, economic, and social
132 Buergenthal, above note 39, p. 229.
133 Ruti Teitel, "Human Rights Genalogy". Fordham Law Review 1997 Vol. 66 No. 2, p. 312 et seq.
"Collective human rights all framed within the so called third generation rights. The rights comprehend therein are group rights, collectivity rights, ethnicity rights, rights of peoples and self-determination right.
These generations of rights are grounded upon a communitarian perspective."
nature. The provision is formulated as follows: "all people shall have the rights to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind." The second sentence establishes a duty of cooperation. It reads as follows: "States shall have the duty, individually or collectively, to ensure the exercise to the right of development".134 Another important aspect of the African Human Rights system is the African Charter of the Rights and Welfare of the Child.135 Most of its provisions are modelled on the Convention of the Rights of the Child, with the principal difference, as in Article 31, that responsibilities or duties are also imposed upon the child.136
4 Asia
In contrast to America, Europe and Africa, Asia lacks a general system of human rights covering all its regions and states. The creation of a coherent human rights body in Asia is difficult both because of Asia's size, and because of the wide variety of cultures and religions.137 The international standards to which Asian countries have agreed have until now been at a global rather than a regional level. However, Asian human rights standards also develop at what might be described as a sub-regional level. From a geographical perspective, the following regions may easily be distinguished: Central Asia, Middle East Asia, East Asia, South-East Asia, and South Asia. The regional complexity of the Asian Continent calls for more regional human rights systems.
Human rights developments that involve Asia take place only at the level of Asian international civil society as, for example, in the principles reflected in the Asian Charter of Human Rights, or in the NGO Asian Centre for Human Rights.
To achieve a higher standard of living, many western intellectuals argue that the major focus of concern should be human rights, especially civil and political rights, whereas some governments and scholars in East and Southeast Asia place the emphasis rather on good governance, arguing that social stability and economic progress are the key issues.
In addition, Asian scholars have argued that, although some Asian nations have succeeded in achieving for their people a higher standard of living by placing an
134 Art. 22, Banjul Charter.
135 African Charter of the Rights and Welfare of the Child, OUA Doc. CAB/LEG/24.9/49 (1990) entered into force in 27, November 1999.
136 Ibid., Art 31 (b). The child, subject to his age and ability, (…), shall have the duty (b) to serve his national community by placing his physical and intellectual abilities at its service.
137 i.e. the Asian continent is the cradle of Islam, Buddhism, Hinduism, Confucianism, Christianity.
emphasis purely on economic progress, the history of the west suggests that the realization and protection of civil and political rights are in fact only possible when they are accompanied by economic, social and educational progress.138 In justification of a somewhat ambivalent attitude towards human rights, one fundamental argument given by Asian scholars is that, in some regions, as in East and Southeast Asia, the lack of a western style modern legal tradition makes it difficult to accept legally recognized human rights. In Asia, good and humane governance has traditionally depended on the virtue of the ruler and the prudence of the elite.139 In many of its behavioural codes, Asian culture insists upon the supremacy of the collective over individual identity and upon an absolute obedience to authority.140
a South Asian Association for Regional Cooperation
The South Asian Association for Regional Cooperation is an organization set up to promote welfare through economic growth, social justice, and cultural development. Its Charter, of 8 December 1985141 , does not mention human rights either in its introduction or among its objectives. Instead, there is a marked emphasis on self-determination, sovereign state equality, non-interference in internal affairs, and national independence. Nevertheless, tacit recognition is given to at least some aspects of the typical human rights discourse of international law; there is evidence of a gradual legal recognition of human rights. For example, the member states speak of their desire to achieve peace and progress through "strict adherence to the principles of the United Nations".142 They also express an awareness of the importance, through regional cooperation and integration, of individual and collective action in the achievement of peace, freedom, social justice, and economic prosperity. Of the Charter objectives, Article 1(a) states that the association shall "promote the welfare of the peoples of South Asia and to improve their quality of life"; Article 1(b) states that a further objective of the association is "to accelerate economic growth, social progress, and cultural
138 Onuma Yasuaki, “Quest of intercivilizational Human Rights "Universal" Vs. "Relative" Asia-Pacific Journal of Human Rights and Law 2000 Vol.1 No. 1 at p. 52.
139 Ibid., pp. 59-60.
140 Neil A Engelhart, Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucian Ethics in Singapore. Human Rights Quarterly 2000 Vol. 22 No. 2, p. 549.
141 The Charter of the South Asian Association for Regional Cooperation was adopted by the head of state or government of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka on 8 December 1985, UN Doc. A/41/114 Annex I; 4 Asian Yearbook of International Law 473.
142 See first recital, Preamble , SAARC Charter.
development in the region and to provide all individuals the opportunity to live in dignity and to realize their full potentials."143
Towards the end of the 20th century, some human rights principles began to gain legal status in the SAARC.144 Although the SAARC is not technically a human rights organization, many important human rights developments have occurred at its heart.
Central in this regard is the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia.145 In its preamble, the Convention evokes the UDHR, specifically its pronouncement that children are entitled to special care and assistance. In addition, the Convention clearly upholds the Declaration of the World Summit for Children and the UN Convention on the Rights of the Child. Article 1 of the Convention makes a direct reference to universal human rights in stating that the rights of children are as defined in the UN Convention on the Rights of the Child. Another instrument dealing with regional human rights is the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution.146 In this Convention, emphasis is placed above all on the evil character of trafficking women and children for the purpose of prostitution; it is a traffic that is clearly incompatibile with the dignity and honour of human beings. Moreover, such a practice is a violation of human rights.147 A further human rights milestone is the Social Charter of the SAARC of 2004.148 The Social Charter reaffirms its goal of providing to every individual an opportunity to live life with dignity and to realize his or her full potential. In addition, it states that one of its objectives is "to promote universal respect for and observance and protection of human rights and fundamental freedoms for all (...)"149 A brand new instrument within the framework of the SAARC is the SAARC Charter of Democracy, adopted in February 2011.150 It reaffirms the "faith in fundamental human rights and in
143 Ibid., Article 1 (a) and (b),
144 See for example Declaration of the Ninth SAARC Summit Malé SAARC/SUMMIT.9/11 at point 63
145 SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia done at Kathmandu 5 January 2002 available at http://www.saarc-sec.org/userfiles/conv-children.pdf last visited 25.April.2012.
146 SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution Done at Kathmandu 5 January 2002 available at http://www.saarc-sec.org/userfiles/conv-traffiking.pdf last visited 25.April.2012 .
147 Ibid., The preamble recalls some major human rights treaties like the CEDAW, ICCPR, CRC.
148 SAARC Social Charter SAARC/SUMMIT.12/SC.29/27 ANNEX-V done at Islamabad 6 January 2002.
149 Ibid., Article 2 (xii).
150 SAARC Charter of Democracy, done in Bangladesh February 2011 available at http://www.saarc-sec.org/SAARC-Charter-of-Democracy/88/ last visited November 2012.
the dignity of the human person as enunciated in the Universal Declaration of Human Rights and as enshrined in the respective Constitutions of the SAARC Member States".
This is clear evidence of an evolution towards acknowledgement of universal standards within the context of a debate on regional and domestic understanding of individual freedoms.
b Association of South-East States
The Association of South-East Asian States was established by its five original members151, in Bangkok, on 8 August 1967, in a short document of five articles known as the ASEAN (Bangkok) Declaration.152 The Declaration is a call to common action to promote the ideals of freedom, peace, social justice, and economic well-being, in a context of regional cooperation. Accordingly, its aims were economic growth, social progress, cultural development, and the achievement of regional peace and stability.153 In this declaration, no express reference is made to individual rights. Nevertheless, its second point sets out as one of its objectives the attainment of peace and justice through adherence to the principles of the United Nations. Fifty years later, on 20 November 2007, the Charter of the Association of the Southeast Asian States was adopted in Singapore, thereby providing the ASEAN with a legal status and an institutional framework.154
The principles of the ASEAN are established in the preamble to the Charter: they are principles of sovereignty, equality, non-interference, territorial integrity, and unity in diversity. These principles aim to ensure a sustainable development that places well-being, livelihood, and their people's welfare, at the heart of the organization.155 However, the Charter not only recognizes these principles but adheres also to a number of other principles of international law; these other principles include democracy, the rule of law, good governance, and the respect for and protection of human rights and fundamental freedoms. Article 1(7) (Purposes) reads as follows: "To strengthen democracy, enhance good governance and the rule of law, and to promote and protect
151 The original members of ASEAN are Indonesia, Philippines, Malaysia, Singapore and Thailand. The current Member States of ASEAN are Brunei Darussalam (1984), Cambodia (1999), Indonesia, People’s Democratic Republic of Lao (1997), Malaysia, Myanmar (1997), Philippines, Singapore, Thailand and Viet Nam (1995).
152 ASEAN (Bangkok) Declaration, Bangkok, 8 August 1967, 6 ILM 1233 (1967).
153 Ibid., Art. 2.
154 ASEAN Charter, 13th ASEAN Summit, 20 Singapore 2007 entered into force 15 December 2008 available at: http://www.asean.org/asean/asean-charter/asean-charter last visited 27 November 2012.
155 Ibid., Preamble.
human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN". Article 2(2)(i) recognizes the principle of respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice. In Article 2(2)(j), the ASEAN also upholds the UN Charter and international law, including international humanitarian law. With regard to the cultural identity of states parties, the Charter in Article 2(l) enacts, as a principle, respect for the different cultures, languages, and religions of the peoples of the region, while underlying the permanence of their common values in a spirit of unity and diversity. The Charter further provides for a member states' obligation to create a human rights body as part of the ASEAN institutional framework.
5 The Arab system
The Arab Charter of Human Rights was adopted by the League of Arab States on 15 September 1994; it was revised in 2004156, before finally coming into force on 15 March 2008.157 The Arab Charter refers to the human rights detailed in international (global and regional) instruments; namely, the principles established in the UN Charter, the UDHR, the ICCPR, the ICESCR, and the Cairo Declaration on Human Rights in Islam. 158 In its preamble, the charter reflects a markedly religious character.
Nevertheless, the Arab nations confess a faith in the dignity of the human person and a belief in universal human values that confirm the right of everyone to a decent life, based on freedom, justice, and equality.159
Article 1 of the Arab Charter establishes that an aim of the Arab world is to place human rights at the centre of the principal concerns of their nations. Besides acknowledging the importance of a common regional history, traditions, and interests,
156 Mervat Rishmawi, "The Revised Arab Charter of Human Rights: A Step Forward?", Human Rights Law Review2005 Vol. 5 No. 2, pp. 361 et seq.
157 Arab Charter of Human Rights of 22 May 2004 reprinted in 12 International Human Rights Reports 893 (2005).
158 Cairo Declaration on Human Rights in Islam, August 5, 1990 UN Doc. A CONF.157/PC/62/Add.18 (1993). The Cairo Declaration is an instrument, the purpose of which is to serve as guide for Islamic states in the field of human rights. The Declaration is in a manner a statement of a religious genre which sustain "that fundamental rights and freedoms, according to Islam are an integral part of the Islamic religion and that no one shall have the rights as a matter of principle to abolish them either in whole or in part or to violate or ignore them in as much as they are binding divine commands which are contained in the Reveal Books of Allah…" The Declaration articulates some rights such as the right to life (Art. 2 lit a), prohibition of genocide (Art. 2 lit b), the right of the child to proper nursing, education and material, hygienic and moral care (Art. 7), the right to live in a clean environment away from vice and moral corruption (Art 17 lit a), the state's duty to ensure the individual the right to a decent living – adequate food, clothing, housing, education, medical care and all other basic needs. Emphasis added
159 Preamble, Arab Charter on Human Rights.
and, above all, the development of human rights within the context of national identity, and the sense of belonging to a common civilization, the Arab Charter includes also the aim of furthering and protecting Arab culture within the context of universal principles and values already proclaimed in international human rights instruments. Lastly, the Arab Charter anchors itself in the principle that all human rights are universal, indivisible, interdependent, and interrelated. In the Arab Charter there are some provisions of which derogation is not permissible. These are some examples: Article 5 on the inherent right to life; Article 8 on the prohibition of torture or cruel, degrading, humiliating or inhuman treatment; Article 10.1 on the prohibition of all forms of slavery and human trafficking; and Article 10.2 on the prohibition of forced labour.