Lesson 5: Regional Systems and the ILO
We shall consider regional approaches to human rights and then look at the ILO (International Labor Organization) as a means of comparison.
Session 5.1 – Regional Systems
A region is a specific area that includes a number of states. As a result of their similarities, the states band together to create a common human rights system The UN feared regional systems due to the problem of dissolution. That is, the UN did not wan to lose its monopoly on certain issues, including human rights. Yet, it also recognizes the value of regional systems, especially as they can be more effective at enforcing human rights in a cultural context acceptable to the states.
The Pros and Cons of Regionalism:
Pro – Because there is greater mutuality among the states in the region, there also can be greater development and focus on human rights acceptable to the member states of the region. A regional approach implies stronger collaboration among the states, with a unique ability to refine rights adaptable to region, thereby making human rights more effective
Con – The negative aspect of regional approaches is that it isolates the area thereby moving away from an international system, possibly at the expense of universalism. The argument is that developing an international standard for human rights is thwarted if they are linked to a regional system. Furthermore, moving the issue outside of the UN not only removes human rights from the international arena, but also could cause problems for the UN when attempting to enforce a human right. Finally, some contend that regionalism is inward looking, rather than attempting to create an international system applicable to all.
Be it as it may, regional systems have developed. Some in particular have operated rather effectively, such as the European Convention on Human Rights (ECHR).
The ECHR was the first such regional system. It created a key human rights treaty from a regional standpoint in that there exists a mandatory (not optional as in the international treaties) complaint process. Furthermore, the ECHR has somewhat broader derogations than the international treaties, but overall they are quite similar in scope, if not in application.
Article 25 of the ECHR provides for individual petitions. A key condition for an application is that the individual who is applying has exhausted the domestic remedies and that the application is exclusive, meaning it is not before other human rights bodies. One problem with the ECHR is the time factor, as it can take sometime until a decision is enforced or at times, a complaint is even heard.
An interesting development however is that case law and precedents within system have begun to take root. Thus, a further entrenchment of human rights is occurring in the region, in a manner similar to common law jurisdictions. Regarding limitations, they also are similar to the international treaties save for one aspect. The so-called margin of appreciation doctrine also serves as a limitation. What this means is that the Court will recognize that states desire to structure themselves internally in a different manner, each with its own unique “take” on its society and culture. These approaches might infringe upon an individual’s human rights. For example, a state linked to a religion will generally act to protect the sensibilities of the religious adherents. The Court will at times account for such differences when making decisions.
There are certain pros and cons to the Margin of Appreciation doctrine. Pro – greater judicial restraint because the ECHR Court will not involve itself too much in the internal affairs of the state. The margin makes for a more pragmatic by recognizing the role and importance of states and the understanding is that it eventually will be uniform. The negative side is that a common standard will be stymied, which limits the applicability and desired protection of the ECHR.
Another example of a regional system is the Inter-American System. The idea in creating a human rights framework in this system is to focus on human rights and uphold democratic system. The problem is that the system has been subject to political developments and power struggles in the region. Hence, many actions have focused on issues pertinent to region, such as official corruption, problems with dictators, emergency powers, torture, and disappearances in states. Furthermore, there has been a focus on different rights, like the right to property, issues of asylum, and the rights of the child.
Similar to the UN, the Inter-American System has a Commission, whose task is to investigate gross and systematic violations of human rights. In 1965, there also was instituted an individual complaints process but it has been problematic and not as successful as in Europe. Problems have centered on beaurocracy, the reliance on the states to present the facts of the case (not a very objective source), and the weak manner of enforcement. There also are issues of finance that has tended to weaken the institutions.
The Commission also can initiate investigations and acquire information about issues or themes pertaining to human rights as well as publicize reports and disseminate information.
Furthermore, the Inter-American System has a Court that can entertain contentious issues and even award damages. It has been emerging over the past decade and becoming more active but it has not yet attained the level of acceptance as its European counterpart.
OPTIONAL READING: Steiner and Alston, 563-570
