The golden age of human rights is over, as is the time when rights protection systems developed in a favorable context. Multilateralism is under attack from all sides, authoritarian countries are in the majority around the world, and democracies are increasingly fragile. The resurgence of claims about national sovereignty against universal human rights is part of a global geopolitical context in which authoritarianism and populism are permeating national political scenes. In this context, it is important to understand how regional systems for the protection of human rights manage to continue functioning, to convince states to implement the judgments of the courts, and to avoid denouncing their jurisdiction.
This was the aim of the workshop on Regional Systems for the Protection of Rights under Pressure. Experts from the regional systems brilliantly synthesized issues of interest to all researchers in this field of international law. It is interesting to note that although the systems were created and operate in different ways, they face the same problems: the worrying lack of enforcement, the difficulties of operating under procedural rules forged to protect national interests, the support or lack thereof from the parent organization.
Thus, the reader will discover all the nuances and specificities unique to each system, while realizing that, in a complex and insecure world, the challenges are the same: to maintain, at all costs, the legitimacy of the regional human rights commissions and courts.
I. The Basic Landscape of Compliance at the Inter-American System
Since its early years, the Inter-American Court of Human Rights (IACtHR) awards four kinds of remedies: compensations, rehabilitation, satisfaction, and guarantees of non-repetition. All these types of remedies are granted in the generality of cases. In practice, they may require states to ask for public apologies, reinstate individuals in their posts as judges, abrogate statutes, amend their Constitution, annul judgments, erect monuments, educate state officials in certain matters, among other measures. By contrast, the European Court of Human Rights (ECtHR) used to order only compensations, although it has started requiring additional measures, being still very traditional in its approach.Footnote 1
There are different degrees of difficulty in fulfilling the IACtHR's reparations, so there are diverse degrees of compliance with them, ranging from a rather high rate of compliance of remedies such as compensations and making public apologies—a rate that is comparable to that of the European SystemFootnote 2—to a lower rate of compliance of more exacting remedies, such as abrogating statutes and annulling judgments. Many states try to fulfill these difficult orders, but their exacting nature makes it hard to comply with them.
The reasonable rate of compliance with the basic IACtHR's orders is not due to political pressure posed by the Organization of American States (OAS), since states in the Americas have no real commitment in compelling non-abiding states to fulfill their human rights duties. The sole reason for the current rates of compliance is the mechanism for monitoring states’ fulfillment, which the IACtHR devised in 1996, acquired momentum in 2002, and developed in the decade that followed. This mechanism is sophisticated nowadays, including a full unit of the IACtHR in charge of monitoring compliance, involving public hearings and, at times, on-site visits.
One of the main challenges of the IACtHR in this matter is being able to cope with the high number of cases in the stage of monitoring compliance; each year the number of judgments under this system of surveillance increases, and this is an administrative task that requires financial resources. Another challenge is finding objective criteria for choosing the cases the IACtHR will monitor, so as to avoid suspicions on the reasons behind monitoring some cases and not others.
II. The Role of Judicial Dialogue and Cooperation Across Regional Systems
The European, Inter-American, and African human rights systems are different in many respects: their founding instruments, the milieus in which they apply, the diverse values and consensus on each region, and so on. These differences can be radical, for instance, Article 3 of the treaty creating the African Court of Human and Peoples’ Rights (ACtHPR) allows this court to apply not only the African Charter, but any other international human rights instrument. Hence, this court's solutions to some problems, may be absolutely different from those of the ECtHR, because the latter court is restricted to applying only the European Convention. As a result, there are limits to judicial dialogue—understood not as the observation of what the other courts do, but as the transplant of their solutions. For instance, if the ACtHPR were to solve a problem referring to an instrument that is not applicable in the European context, it would be inappropriate for the ECtHR to use that solution. Hence, the extent to which judicial dialogue is convenient must be studied carefully.
However, there is room for judicial dialogue. Even the ECtHR, which is the most self-sufficient court, has taken into consideration other approaches. For instance, when the ECtHR had to deal with enforced disappearances, a matter in which the Inter-American system had—unfortunately—quite a long experience, it adopted an evidentiary approach akin to the reasonable and audacious approach of the IACtHR.Footnote 3 Nowadays, the IACtHR could learn from the ECtHR, e.g., its ability to capture the nuances of cases, its capacity to see that there are different ways of understanding human rights, and incorporating tools like the margin of appreciation.
The Inter-American system has always been open to a dialogue with the ECtHR in substantive matters, in spite of the often-significant differences in their constitutive treaties and in the regional consensuses of each region. By contrast, the IACtHR has a much more restricted dialogue with the African System. Nevertheless, this is slowly changing, e.g., in its last two cases—Gutiérrez Navas and The Colectivo de Abogados José Alvear Restrepo—the IACtHR refers in footnotes to African instruments. This still incipient reference to the African system may be due to explicit efforts that the three courts are making for increasing their judicial dialogue.Footnote 4
III. The General Perception About the Legitimacy of the Inter-American System
There is no unique perception about the Inter-American System's legitimacy. Even within certain sections of society, such as academia, diplomacy, and civil society, there is a plurality of visions about the System. Nevertheless, there may be some leanings in different milieus. For instance, it is difficult to find critical approaches to the case law of the IACtHR in Colombian academia, probably because Colombians are used to the neoconstitutional interpretations of their Constitutional Court. By contrast, Chile has a more legalistic tradition—that is only recently being challenged by some judges of the Supreme Court—so it is easier to find some academic critics. Now, we will address the perceptions in academia, diplomacy, and civil society.
Most human rights scholars consider that the IACtHR has legitimacy in its performance. The basis for this belief is, however, tied to the content of the Court and Commission's decisions, not necessarily to the rigor of their decision making. so it may change if the composition of these bodies is altered. There is, however, an incipient tendency in academia to criticize some of the IACtHR's decision-making mechanisms—such as the conventionality control doctrine.
Among diplomacy and states, there are hardly any collective challenges to the System. The last relevant contestation was made by five states with more or less conservative governments in 2019, demanding the Court to give weight and recognize the principle of subsidiarity, grant some margin of appreciation, and have some consideration of states’ realities before deciding on reparations, among others.Footnote 5 These states were somewhat asking the IACtHR to engage in dialogue with the ECtHR, to adopt some of its practices. This challenge to the System had no lasting effects. In 2011, states with governments from the other political spectrum—Venezuela, Ecuador, Nicaragua, Brazil, and others—issued an alleged proposal for the Strengthening of the Inter-American System of Human Rights.Footnote 6 This challenge had some results in procedural issues.
By contrast to the oddity of collective challenges to the system, there have been some individual governmental calls for the denunciation of the Convention. A couple of recent examples are the Costa Rican president's declaration that he would favor denouncing the Convention if the IACtHR ordered legalizing abortion,Footnote 7 and recent studies by Peru's National Congress based on bills that sought to denounce the Convention.Footnote 8
Most NGOs agree on the legitimacy of the System, so there is a mainstream uniformity. However, there are grievances that manifest in complaints from NGOs that support parents’ rights, the life of the unborn and other specific rights. They have resulted in initiatives like the recent study claiming that the IACtHR receives funds from organizations with specific agendas.Footnote 9 These NGOs and their claims are frequently dismissed by actors of the System, but the IACtHR and Commission could listen to them and examine if they themselves are representing the different visions of human rights, or only a particular strand of this universal project.
IV. Some Key Challenges of the Inter-American System
The Inter-American System has many challenges. We will mention two that are not new, but have become more pressing in the last decade or so. The first is the System's inability to deal with the Commission's case load. For many years, the Inter-American Commission had a substantial backlog of petitions that had not received the initial and basic screening (which allowed rejecting clearly inadmissible cases). The Commission addressed this problem by enhancing its Registry Section—the unit that made this initial screening.
Considering that the new petitions exceed by far the Commission's ability to process them, it was reasonable to expect the Registry to acknowledge the subsidiary nature of the Inter-American system, thus relying on the well-functioning of most domestic judiciaries, dismissing a high majority of cases that either aimed at using the System as a “fourth instance,” or did not fulfill the requirement of exhausting domestic remedies.Footnote 10 However, the Registry did not do so: it continued its scrupulous examination of cases, allowing a high percentage of petitions to pass the first screening and going to the admissibility section.
The Registry Section overcame its backlog, but instead of passing only a small number of cases to the Admissibility Section—as the ECtHR does according to its own procedures—it simply transferred the bottleneck of petitions. The problem is that the Admissibility Section cannot easily dispose of petitions—as the Registry could have done—because at this stage of proceedings, petitions must be notified to states, follow a traditional procedure, and end with a public decision, which the Inter-American Commission is not able to do. As a result, the Commission created in December 2023 the “Prioritization Policy for Petitions and Cases.” This means that—de facto, not de jure—the Commission will be able to engage in a process of control of the docket. However, the American Convention on Human Rights does not allow choosing between equally admissible cases, so the Commission will not notify petitioners that their cases will be indefinitely postponed, so they will not enjoy the right to a due process.
A second challenge derives from the human rights standards that the Inter-American System asks states to fulfill. Human rights are supposed to be basic demands of humanity, so regional systems should provide protection to some core rights, in which people of good faith can all agree. This was the point of drafting the Universal Declaration of Human Rights and the American Convention. However, the IACtHR and Commission are taking the system away from the universal understanding of human rights, and endorsing a somewhat culturally or politically charged vision of them. They do so by using interpretive tools that allow departing from the basic standards established in the main instruments of the System. As a result, they are generating some distrust, and will never attract the states of the Americas that still have not adhered to the American Convention, or have not given competence to the Court. In fact, this may even prompt democratic governments to withdraw from the System.
The Inter-American System is not alone in facing challenges—all institutional arrangements do. The bright side of this is that difficulties may end up strengthening institutions, since they oblige them to take a new look at themselves, improving or removing what is defective. Fortunately, regional human rights bodies are engaged in a dialogue that may help each other in their task of improving, of finding ways to meet their challenges.
I. Basic Landscape of Compliance
The African regional human rights system is primarily composed of three main mechanisms with explicit mandates. These are the African Commission on Human and Peoples’ Rights (ACHPR), the African Court on Human and Peoples’ Rights (ACtHPR), and the African Committee on the Rights and Welfare of the Child (ACERWR). Each of these mechanisms is empowered to adjudicate on human rights disputes and make recommendations or offer reparation, as the case may be. In principle, judicial mechanisms are better suited to change states’ conducts than quasi-judicial ones. The ACtHPR is structured to adopt binding decisions,Footnote 1 thus remedying the inherent weakness in the ACHPR's quasi-judicial mandate. Some sub-regional courts also have mandates extending to human rights adjudication, such as the Economic Community of West African States Community Court of Justice (ECCJ), and the East African Court of Justice (EACJ).
African states’ implementation of their human rights obligations varies.Footnote 2 The majority of states have generally failed to adjust their behaviors to the various human rights treaties that they freely ratified. As at the end of 2023, only nineteen of the fifty-four states parties to the African Charter—representing 35 percent—were up-to-date in their Article 62 reporting obligations to the ACHPR.Footnote 3 Eighteen states have more than three reports outstanding.Footnote 4 Six states—Comoros, Equatorial Guinea, Guinea-Bissau, Sao Tome and Principe, Somalia, and South Sudan—have not submitted a single report to the ACHPR since ratifying the Charter.Footnote 5 Similarly, twenty-four states are not up-to-date on their reporting obligations under Article 26 of the Protocol to the African Charter on the Rights of Women in Africa 2003.Footnote 6
There have been some encouraging examples of progress in implementing non-binding recommendations from the African Peer Review Mechanism (APRM), which is structured to also promote human rights, among other functions. The story is starkly different with the main regional human rights mechanisms. A little over a decade ago, the African Union (AU) Commission produced a document titled, “Human Rights Strategy for Africa.”Footnote 7 The strategy, which covered 2012–2016, was “a guiding framework for collective action by AU, RECs and member states aimed at strengthening the African human rights system.” “Insufficient implementation and enforcement of human rights norms and decisions” was one of the fault lines that the strategy identified.Footnote 8
The compliance levels have remained low, if not lower, in the last decade. According to a recent ACHPR report, “[t]he level of compliance by the States Parties with the Commission's decisions, requests for provisional measures and urgent appeal letters remains low.”Footnote 9 States’ disregard of the ACtHPR's decisions and orders is routine and almost at par with those of the ACHPR. Africa's civil society was probably naïve to hope that states will readily obey the ACtHPR's orders. According to a recent ACtHPR report, “of the over 200 decisions adopted by the Court since its establishment, less than 10% have been implemented.”Footnote 10 After the Court gave judgment and ordered reparations against Rwanda in some cases—Ingabire victory Umuhoza v. Rwanda,Footnote 11 Kennedy Gihana et al. v. Rwanda,Footnote 12 and Léon Mugesera v. Rwanda Footnote 13—the respondent state “informed the Court that it would no longer cooperate with the Court.”Footnote 14
II. Effects of Non-compliance
Systematic non-compliance or partial compliance raises legitimacy questions. Non-compliance contradicts states’ commitment to ensure an effective human rights protection for their peoples’ benefit. It also undermines the credibility in the effectiveness and added value of the regional mechanisms.Footnote 15 An ineffective institution is of no value to anyone. Non-compliance encourages impunity. It also delegitimizes the AU's credential as a pan-African institution capable of advancing human rights in the continent. Ultimately, non-compliance could make Africans lose faith in the regional human rights system.Footnote 16 If states are unwilling to engage mechanisms they freely established, why should the citizens bother? It could also lead to a decline in efforts to build democracy, promote the rule of law, and defend human rights.
III. The Role of Judicial Dialogue
Judicial dialogue could take various forms. These include judicial exchanges and training programs, consultations, and meetings between judges and legal professionals, joint declarations and statements, harmonization of jurisprudence and legal frameworks, and reference to regional human rights jurisprudence by national courts. The African regional mechanisms have experimented on various forms of dialogue across board, including engagements with heads domestic courts of member states. In November 2021, the ACtHPR organized an International Conference on the Implementation and Impact of Decisions of the Court in Dar es Salaam “to analyse the manner in which the Court's decisions are received and implemented domestically across the African continent and to access the level of impact they have generated on the African human rights landscape.”Footnote 17 More than two hundred delegates from various sectors of regional and national societies attended the conference. In the communiqué, delegates advised the Court, inter alia, to adopt a holistic approach to assessing compliance with its decisions, taking into account changes in the overall governance framework in each state; disseminate its decisions widely; liaise with the AU Executive Council for engagement with national authorities; and clearly determine its role in deciding the specificity of its decisions and the extent to which it will interact with other actors to ensure implementation.Footnote 18
IV. Key Challenges to the Regional System
The African regional system faces structural and other challenges. The system was poorly designed. As an illustration, only states and the ACHPR have automatic standing before the ACtHPR pursuant to Article 5 of the ACtHPR Protocol. The ACERWC does not have standing before the Court. In addition, only Africa-based NGOs duly accredited by the AU are competent to submit requests to the Court for advisory opinion.Footnote 19 Under Article 34(6) of the Protocol, ratified states must make a declaration accepting the Court's jurisdiction to receive cases directly from individuals and non-governmental organizations (NGOs).Footnote 20 Of the eight states parties that initially deposited the declaration, four—Rwanda, Tanzania, Benin, and Côte d'Ivoire—have withdrawn.Footnote 21 Article 34(6) greatly limits the Court's personal jurisdiction; and from the point of view of complaints, states hardly access these mechanisms; and it is not as if human rights abuses have abated.
For example, it takes several years to process a human right complaint through any of the three mechanisms due to strict admissibility requirements. The ECCJ is more innovative as it dispenses with such requirements as exhaustion of local remedies. The African Charter has no enforcement provision in respect of ACHPR decisions; likewise the African Child Charter in the context of the ACERWC. These omissions undermine decision implementation. Further, these mechanisms are largely invisible due to confidentiality requirements. The AU Assembly must approve activity reports before they are published. Some regional mechanisms, such as the ACtHPR, enjoy more funding than the others. The disparity generates bad blood.
The reporting requirement affords the mechanisms opportunities to highlight cases of states’ non-compliance with their decisions and orders. Article 31 of the ACtHPR Protocol requires the Court, in submitting its activity report, to “specify, in particular, the cases in which a State has not complied with the Court's judgment.”Footnote 22 In such situations, the AU Assembly is expected to activate its sanctions regime under the AU Constitutive Act.Footnote 23 But other than receive and approve such reports, the Assembly hardly censures any errant member that disobeys the court's judgments and orders. The Executive Council, which is authorized to monitor implementation of decisions of the regional mechanisms,Footnote 24 has made a rule curtailing the ACHPR's freedom to publish reports of its missions without first seeking the government's inputs and comments. In 2015, the Council asked the ACHPR to expunge two “merit” decisions on Rwanda from its annual activity report.Footnote 25 The Council seemingly sides with states, which are generally hostile toward the mechanisms when decisions go against them.
Most dualist states view decisions of regional mechanisms as foreign judgments requiring domestic processes before enforcement. In other states, judgments obtained against a government require the justice minister's fiat before enforcement. There are also lack of comprehensive implementation and monitoring plans at the national level, unclear government focal points to oversee implementation, absence of harmonization between national and regional laws, and challenges to independence by the same AU organs that are empowered to ensure compliance. Knowledge limitations, including a general lack of understanding among state parties of the complaints procedures, working methods, and obligations regarding decision implementation also pose challenges; likewise the historical and socially complex nature of some issues adjudicated on, competing international law obligations, and contradictory domestic legislation and judicial decisions with complicated obstacles to overcome. Contradictions in successive decisions of the mechanism on the same case, weak domestic infrastructures for implementation, poor supervision mechanisms, and precarious situation of human rights defenders also pose challenges. Erroneous perceptions about international human rights system and a poor system of governance in many states also challenge the system. The allegation that the ACtHPR exists to usurp the jurisdiction of national Courts and similar myths constrain the effectiveness of the regional mechanisms.Footnote 26
V. The Future of Interdependent International Human Rights
The future of regional human rights in Africa does not look very bright. But that is no reason to give up in the attempt to strengthen the system, which explains the ongoing strategies by the regional mechanisms themselves and other AU organs to tackle the challenges. The ACHPR has adopted some innovative approaches to monitoring its mandates. It has established a working group to develop a communication matrix, conduct audits on the status of communications, and assess data related to implementation efforts. In 2020, the ACERWC also established a working group on the implemented of decisions. The African Human Rights Strategy has designated the African Governance Architecture (AGA) as the primary AU institution to coordinate regional human rights programs, though it failed to provide concrete arrangements for coordinating follow-up and implementation of decisions of regional mechanisms. The Permanent Representative Committee subcommittee on human rights, democracy, and governance is further tasked with overseeing execution of the ACHPR's decisions.
The effects of these initiatives remain to be seen, but it is cheering that fifteen states have appointed national focal points for the ACtHPR,Footnote 27 in accordance with Executive Council Decision of 2022.Footnote 28 Cooperation between a wide range of human rights stakeholders, including public officials, members of parliament, judges, prosecutors, national human rights institutions, civil society, academia, bar associations and law society members, and the media is needed to ensure full, effective, and prompt compliance with decisions.Footnote 29 Information sharing among the various stakeholders is vital to enhancing decision adherence. The regional mechanisms should establish a central working group to coordinate follow-ups on decisions. National human rights institutions should be involved in the process, and the regional mechanisms should leverage parliamentary support to bolster their efforts. The AU should urge its members to enact legislations specifying the procedure on execution of judgments of regional mechanisms. Effective civil society campaign is needed to repeal Article 34(6) of the ACtHPR Protocol to enhance individuals’ access to the ACtHPR for whose benefit the mechanism was created.
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