39/58 Regional arrangements for the promotion and protection of human rights - Report of the Human Rights Council Advisory Committee
Document Type: Final Report
Date: 2018 Jul
Session: 39th Regular Session (2018 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Item5: Human rights bodies and mechanisms
GE.18-11383(E)
Human Rights Council Thirty-ninth session
10–28 September 2018 Agenda items 3 and 5
Promotion and protection of all human rights, civil,
political economic, social and culture rights,
including the right to development
Human rights bodies and mechanisms
Regional arrangements for the promotion and protection of human rights
Report of the Human Rights Council Advisory Committee
United Nations A/HRC/39/58
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Establishment of regional and subregional human rights mechanisms ............................................ 3
III. Achievements of regional and subregional human rights arrangements .......................................... 6
IV. Challenges faced by regional and subregional human rights arrangements ..................................... 8
V. Role of the Office of the United Nations High Commissioner for Human Rights
in the advancement of regional and subregional human rights arrangements .................................. 11
VI. Contribution of other actors to regional and subregional human rights arrangements ..................... 12
VII. Implications for the protection of human rights through regional and subregional human rights
arrangements .................................................................................................................................... 14
VIII. Conclusions and recommendations .................................................................................................. 16
I. Introduction
1. Pursuant to the adoption by the Human Rights Council of decision 32/115, the
Advisory Committee was mandated to prepare a report on regional arrangements for the
promotion and protection of human rights, in particular on the progress made in the
establishment of regional and subregional arrangements for the promotion and protection of
human rights; their achievements in all regions of the world; and the role that has been
played and can be played in the future by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) in advancing cooperation between
international and regional human rights mechanisms. The Committee was further mandated
to identify ways to increase the role that regional and subregional arrangements play in
promoting and protecting human rights and to reinforce universal human rights standards,
including those contained in international human rights instruments, and to submit the
report to the Human Rights Council at its thirty-ninth session. It is hoped that the present
submission can take advantage of the celebrations marking the seventieth anniversary of the
Universal Declaration of Human Rights and the twenty-fifth anniversary of the Vienna
Declaration and Programme of Action to promote the role of regional arrangements.
2. At its seventeenth session in August 2016, the Committee heard presentations from
experts, held discussions on regional arrangements for the promotion and protection of
human rights and established a drafting group for the preparation of a progress report. The
group currently comprises Mohamed Bennani, Laurence Boisson de Chazournes, Mario
Luis Coriolano, Karla Hananía de Valera, Mikhail Lebedev, Xinsheng Liu, Kaoru Obata,
Katharina Pabel (Chair), Anantonia Reyes Prado, Changrok Soh (Rapporteur) and Imeru
Tamrat Yigezu.
3. At the same session of the Advisory Committee, the drafting group elaborated a
questionnaire, in accordance with decision 32/115, in which the Council encouraged the
Committee to consider the views and inputs of relevant stakeholders. The questionnaire was
disseminated to various stakeholders, including States Members of the United Nations,
international and regional organizations, relevant special procedures mandate holders and
treaty bodies, national human rights institutions and civil society organizations, with a
deadline of 31 October 2016. As of 1 February 2017, 23 responses to the questionnaire had
been received, including 9 from States, 5 from non-governmental organizations (NGOs), 7
from national human rights institutions and 2 from other organizations.
II. Establishment of regional and subregional human rights mechanisms
4. The present report identifies five regions or areas where regional human rights
mechanisms have been (or are to be) established; Europe, the Americas, Africa, the Arab
States and Asia. 1 The first four regions already possess regional and subregional
mechanisms while Asia only has a few subregional mechanisms. Although regional and
subregional human rights bodies are very different, particularly in how their jurisdictions
and responsibilities overlap, the present study treats them as different facets of the same
process of localizing the protection and promotion of human rights. An overview of those
arrangements is set out below.
5. Europe has one of the most effective human rights regimes, stemming in part from
its combination of expert networks and intergovernmental cooperation. Its origins date back
to the formation of the Council of Europe in 1949 and the adoption of the European
Convention on Human Rights and Fundamental Freedoms in 1950. The European Court of
Human Rights, established in 1959 and restructured through Protocol 11 in 1998, functions
as the main human rights protection mechanism in Europe. All 47 Council of Europe
member States are party to the European Convention on Human Rights. Judges are elected
1 For the purposes of this report, Asia refers to the entire Asia-Pacific region, including Oceania.
by the Parliamentary Assembly of the Council of Europe and enjoy a high degree of
independence from their respective Governments. The States can also file State-to-State
complaints and in extreme cases even demand expulsion for flagrant and systematic
violations of the Convention. The decisions of the Court create binding legal obligations for
the State concerned.2 The European Social Charter, which addresses economic and social
rights, is subject to quasi-judicial enforcement. Insofar as they refer to legally binding treaty
provisions, the decisions and conclusions of the European Committee of Social Rights —
the monitoring body established by the treaty — must be respected by the States concerned,
even if they are not directly enforceable in domestic legal systems. They set out the law and
can provide the basis for positive developments in social rights through legislation and case
law at national level.3 Other important organizations for the protection and promotion of
human rights in Europe include the European Union Agency for Fundamental Rights and
the Office for Democratic Institutions and Human Rights of the Organization for Security
and Cooperation in Europe (OSCE).
6. The Inter-American human rights mechanism dates back to the approval of the
American Declaration of the Rights and Duties of Man by the Organization of American
States (OAS) in April 1948. The Declaration brought about the adoption of the OAS
Charter and the Inter-American Commission on Human Rights was established in 1959 to
enhance the implementation of human rights protections among the 35 OAS member States.
Following the adoption of the American Convention on Human Rights in 1969, the Inter-
American Court of Human Rights was established in 1979. The Commission monitors the
implementation of human rights by member States by making country visits, publishing
country and thematic reports and carrying out on-site visits. It also has a quasi-judicial
function in that it can interpret human rights instruments created by the OAS and makes
non-legally binding recommendations on individual complaints. Individual applications can
be lodged with the Commission based on the Declaration or the Convention.4 All cases go
through the Commission but only those OAS member States that have ratified the
Convention and accepted the jurisdiction of the Court can be brought before it. Some other
regional human rights treaties, such as the Inter-American Conventions to Prevent and
Punish Torture, on the Prevention, Punishment and Eradication of Violence against Women
and on Forced Disappearance of Persons, and the Additional Protocol to the Convention in
the Area of Social, Economic and Cultural Rights (San Salvador Protocol) also allow for
individual petitions to be lodged before the Commission.5
7. The African human rights mechanism emerged as a response to the challenges of
decolonization, racial discrimination, environmental protection and refugees. The African
Charter on Human and Peoples’ Rights was adopted in 1981 and came into force in 1986.
In accordance with the Charter, the African Commission on Human and Peoples’ Rights
was set up in 1987. The African Court of Human and Peoples’ Rights was established by a
protocol to the Charter in 1998, came into force in 2004 and was operational in 2006. As of
September 2016, the African Charter had been ratified by 54 of the 55 member States of the
African Union, the exception being South Sudan, and nearly half of the member States have
ratified the Protocol to the Charter. 6 The Commission accepts individual and State
complaints or communications based on the Charter, while the Court on may receive
applications either from the Commission, States parties to the Protocol, or African
intergovernmental organizations. Non-governmental organizations with observer status
before the Commission and individuals from States which have made a declaration
accepting the jurisdiction of the Court can also institute cases directly before the Court, but
only six African Union member States have accepted the competence of the Court to handle
2 See European Court of Human Rights, “The EHCR in 50 Questions” (February 2014), available at
www.echr.coe.int/documents/50questions_eng.pdf.
3 For more details, see www.coe.int/en/web/turin-european-social-charter/about-the-charter.
4 See International Justice Resource Center, “Inter-American human rights system”, available from
www.ijrcenter.org/regional/inter-american-system/.
5 Inter-American Commission on Human Rights, “The Organization of American States”,
available from www.oas.org/en/iachr/mandate/basic_documents.asp.
6 Other important institutions in the context of the African Union include the African Peer Review
Mechanism and the Pan-African Parliament.
such complaints. As of January 2016, the Court had received 74 applications and finalized
25 cases. 7 The Commission, however, has a longer history of judicial work. As of
November 2017, it had received 659 communications, of which it had finalized 446.
Another important regional human rights mechanism is the African Committee of Experts
on the Rights and Welfare of the Child, which is tasked with promoting and protecting the
rights enshrined in the African Charter on the Rights and Welfare of the Child, which came
into force in 1999 and has been ratified by 48 member States. In addition, there are
subregional courts which have over the years adjudicated on a number of important human
rights cases, such as the Economic Community of West African States (ECOWAS) Court
of Justice and the East African Court of Justice.
8. The current Arab Charter on Human Rights was adopted in May 2004 by the
Council of the League of Arab States (LAS) at the Summit level after the revision of an
earlier version that was adopted in 1994 but not ratified by any member State. of the
League. The Charter entered into force in March 2008, two months after the seventh
document of ratification had been deposited with the General Secretariat of the League,
pursuant to paragraph 2 of article 49 of the Charter. The Charter has been ratified by 14 out
of 22 LAS member States. However, it includes many provisions that are incongruent with
international standards.8 The Arab Human Rights Committee was established in 2009 to
oversee the implementation by State parties to the Charter of the rights and freedoms set
forth in the Charter and to issue its observations and recommendations in accordance with
the provisions of the Charter. In 2014, the LAS Council adopted the Statute of the Arab
Court of Human Rights. The Court will have jurisdiction over all cases resulting from the
implementation and interpretation of the Charter, or any other Arab convention in the field
of human rights. Another important mechanism to consider is the Organization of Islamic
Cooperation (OIC), a transregional organization with members in Africa, Europe, Asia and
even South America. The OIC Independent Permanent Human Rights Commission was
launched in 2011 and has identified the rights of women, the rights of the child, human
rights education and the right to development as its key priorities.9
9. The Asia-Pacific region does not yet possess a regional arrangement for the
protection of human rights, even though several workshops to discuss the possibility have
been convened since 1990.10 However, some progress has been made at the subregional
level, particularly in South-East Asia. The first agreement of the Association of Southeast
Asian Nations (ASEAN) to consider the establishment of a regional human rights
arrangement was made in June 1993 following the Vienna Declaration and Programme of
Action. In November 2007, the ASEAN member States signed the Charter of the
Association of South East Asian Nations, in which the promotion and protection of human
rights was expressed, along with a commitment to the establishment of a regional human
rights mechanism. Accordingly, the ASEAN Intergovernmental Commission on Human
Rights was established in July 2009. In 2012, the countries of ASEAN unanimously
adopted the ASEAN Human Rights Declaration but a human rights court has not yet been
established. Although progress at the subregional level is promising, a regional framework
for the entire Asia region is still a work in progress.11 One example of this was the proposal
by the Constitutional Court of the Republic of Korea to create an Asian human rights court,
which was announced at the third congress of the World Conference on Constitutional
Justice in 2014.
7 See http://en.african-court.org/index.php/cases/2016-10-17-16-18-21#finalised-cases.
8 See Mervat Rishmawi, “The revised Arab Charter on Human Rights: a step forward?”, Human Rights
Law Review, vol. 5, No. 2 (January 2005).
9 See www.oic-iphrc.org/en/about.
10 See www.hurights.or.jp/archives/focus/section2/1997/03/un-workshops-on-regional-arrangement-for-
human-rights-in-the-asia-pacific.html.
11 See ASEAN Intergovernmental Commission on Human Rights, available from http://aichr.org/press-
release/the-adoption-of-the-asean-human-rights-declaration-ahrd-at-the-21st-asean-summit-and-the-
special-meeting-of-the-asean-intergovernmental-commission-on-human-rights-aichr/.
III. Achievements of regional and subregional human rights arrangements
Judicial and quasi-judicial decisions
10. The most visible contributions of regional human rights arrangements have occurred
in the form of court rulings and attempts by commissions to sway the behaviour of member
States.12 The Inter-American Commission on Human Rights and the landmark decisions of
the Inter-American Court of Human Rights even have an impact on countries beyond the
scope of the original ruling. For example, military officers from several Latin American
dictatorships had benefited from amnesty laws until the Court ruled in the case of Barrios
Altos v. Peru in 2001 that they were in violation of international human rights law.
Consequently, several countries, including Argentina and Chile, repealed their amnesty
legislation and began to prosecute military officers for violations going back to the 1970s.
Indeed, throughout the 2000s, the preventive approach of the Court to human rights
violations, especially its demands for reparations, led some to consider it a “unique driving
force for change.”13
11. The decisions of the European Commission of Human Rights 14 and later the
European Court of Human Rights have also had a considerable impact on law and practice
in several States. Examples of this include changes to detention practices in Belgium,
Germany, Greece and Italy, the treatment of aliens in the Netherlands, Switzerland and
other countries, press freedom legislation in Britain, wiretapping regulations in Switzerland,
legal aid practices in Italy and Denmark, procedures to speed up trials in Italy, the
Netherlands and Sweden, and privacy legislation in Italy.15 In Dudgeon v. United Kingdom
in 1981, the Court held that the criminal laws of Northern Ireland prohibiting consensual
sex between consenting adult males violated the right to privacy, as protected by article 8 of
the European Convention on Human Rights. As a consequence of the judgment,
homosexual relations between males were decriminalized in Northern Ireland in 1982.16
Even if the judgments of the Court are only formally binding vis-à-vis the respective State,
the case law develops human rights standards with significant relevance for all member
States.
12. In 2001, the African Commission on Human and Peoples’ Rights considered a
communication that dealt with alleged violations of the human rights of the Ogoni people in
Nigeria. It marked the first time the Commission was able to deal with alleged violations of
economic, social and cultural rights in a substantial and firm manner.17 Another interesting
example of court activism is the East African Court of Justice, which has reinterpreted its
mandate to include cases of human rights violations.18 Furthermore, the ECOWAS system,
which is best known for its jurisprudence on women’s and children’s rights, allows actio
popularis, the filing of complaints by third parties on behalf of victims, which even the
European mechanism does not permit.
12 It should be noted that the African, Inter-American and European commissions on human rights,
among other regional arrangements, use precautionary measures where there is an imminent risk of
irreparable harm to individuals or groups. That is a powerful protection mechanism, especially for
human rights defenders at risk.
13 Geneviève Lessard, “Preventive reparations at a crossroads. The Inter-American Court of Human
Rights and Colombia’s search for peace”, International Journal of Human Rights, (January 2017).
14 The precursor of the enlarged European Court of Human Rights until the entry into force of Protocol
11 in 1998.
15 See Jack Donnelly, Universal Human Rights in Theory and Practice, 3rd ed. (Ithaca, New York,
Cornell University Press, 2013).
16 European Court of Human Rights factsheet, “Homosexuality: criminal aspects”, (2014), available at
www.echr.coe.int/Documents/FS_Homosexuality_ENG.pdf.
17 Fons Coomans, “The Ogoni case before the African Commission on Human and Peoples’ Rights”,
International and Comparative Law Quarterly, vol. 52 (July 2003).
18 Ally Possi, “The East African Court of Justice: towards effective protection of human rights in the
East African Community”, Max Planck Yearbook of United Nations Law, vol. 17 (2013).
Standard setting
13. Although court decisions, by establishing legal precedents, constitute a form of
strong standard-setting, regional arrangements are also successful at diffusing and
reinforcing human rights norms and standards in their regions in cooperation with member
States. The European human rights regime has contributed to human rights advancements
within European countries and serves as a reference model worldwide. The creation of and
high compliance with human rights norms has been possible due to strong pre-existing
norms within Europe, but the European Convention on Human Rights has also helped to
develop human rights standards in new member States, particularly with the accession of
many eastern and south-eastern member States after 1990. Montenegro, which acceded to
the Council of Europe in 2007, exemplifies the way in which a regional human rights
mechanism can assist standard-setting in a collaborative fashion, not only through court
rulings. According to the Government of Montenegro, the country has adopted numerous
strategic documents and action plans, including on displaced people, improvement of the
status of Roma and Egyptians, human trafficking, lesbian, gay, bisexual and transgender
rights and the protection of children and the elderly. In terms of legal changes, Montenegro
has amended the Law on the Prohibition of Discrimination, the Law on Gender Equality,
the Law on the Protector of Human Rights and Freedoms and adopted a Law on the
Prohibition of Discrimination against Persons with Disabilities. In line with
recommendations from the Council of Europe, Montenegro also included a comprehensive
definition of hate speech in the Law on the Prohibition of Discrimination.19
14. This collaborative approach is evident in Africa as well. At its fifth session, the
African Commission on Human and Peoples’ Rights resolved that States parties should
incorporate the teaching of human rights into their educational curricula and establish
committees on human rights at national, subnational and regional levels. Some African
countries, such as Nigeria, have incorporated the provisions of the African Charter on
Human and Peoples’ Rights into their domestic law. The Commission has also sponsored a
number of seminars and international conferences covering a broad spectrum of issues,
such as community work, economic, social and cultural rights, HIV and AIDS in Africa,
prisons and women’s rights.20
Publication of country reports, on-site observation and country visits
15. Regional arrangements also play a crucial role in collecting and disseminating
information about human rights conditions in the region, which allows cross-country
comparisons and the development of best practices. In 2014, the press unit of the European
Court launched six new factsheets on the case law concerning elderly people, persons with
disabilities, political parties and associations, hunger strikes in detention, migrants in
detention and domestic violence. It has now prepared a total of 59 factsheets in English and
French, many of which have also been translated into German, Italian, Polish, Romanian,
Russian and Turkish with the support of the Governments concerned. The press unit has
also prepared country profiles covering each of the 47 member States. In addition to general
and statistical information on each State, the country profiles provide information on the
most noteworthy cases concerning that State.21
16. Between 1970 and 1980 the Inter-American Commission on Human Rights put
pressure on repressive Governments. Its reporting on Chile and Argentina under military
law had particular significance for internal and international human rights advocates. In the
early 1990s, the Commission began to closely monitor countries with fragile democratic
institutions that were still experiencing political violence. It published four reports on the
human rights situation in Haiti between 1990 and 1995 and three reports on Guatemala
between 1993 and 2001. In 1998, the Commission visited Peru and prepared a
19 Survey response by the Government of Montenegro.
20 Timothy F. Yerima, “Over two decades of African Commission on Human and People’s Rights:
flying or fledgeling”, Global Journal of Human Social Science Arts and Humanities, vol. 12, No. 12
(2012).
21 See, for example, European Court of Human Rights, annual report 2014.
comprehensive report on the human rights situation. The report was released in June 2000
and was crucial in ending the Fujimori regime.22 In 1999 the Commission published a major
report on the human rights situation in Colombia, in which for the first time it considered
international humanitarian law, i.e., the law of armed conflict, to identify the legal regime
governing the ongoing internal armed conflict. More recently, reports were issued on
Guatemala (2016) and the Bolivarian Republic of Venezuela (2018) which drew attention
to serious human rights challenges in those countries. The Commission has also publicized
prominent individual cases, such as its issuance of a public condemnation of the murder of
human rights defender Marisela Escobedo in Mexico.23 It regularly conducts on-site visits
to countries and publishes press releases with its recommendations. The Commission issues
an annual report, in which it highlights the most serious human rights violations in the
Americas. It also publishes thematic reports, of which the most recent refer to the
criminalization of human rights defenders and human rights standards in relation to human
mobility. Furthermore, it has been asking for transparency about the detention facility at
Guantánamo Bay, Cuba, and urging its closure since the early 2000s.
17. While the African Commission on Human and People’s Rights is responsible for
reviewing State compliance through biannual reports on country efforts to implement the
African Charter, many States combine several years’ worth of reports instead of submitting
biannual reports. Moreover, seven member States have yet to submit a report at all. That
can be attributed to a lack of resources and interest in those States. African Commission
communications have only a 15 per cent implementation rate. Nevertheless, even that level
of transparency has had an impact. According to the Government of Kenya, the reporting
requirements of the regional mechanism have played a major role in strengthening the
rights of indigenous people. The new Kenyan Constitution provides several avenues for the
protection and strengthening of the personal and collective rights of indigenous peoples.
Article 27 obliges the State to develop legislation and affirmative action programmes.
Article 56 obliges the State to provide for adequate representation of “marginalized groups”
at all levels of government, undertake affirmative action on behalf of those groups and
promote the use of indigenous languages and the free expression of traditional cultures.
Article 100 requires the legislature to enact a law which will promote the representation of
marginalized communities.24
18. The Arab Human Rights Committee carried out its first examination of State reports
in 2012 and 2013, starting with Jordan, then Algeria and Bahrain. The concluding remarks
of the Committee are now published on its website in Arabic. Civil society organizations
are allowed to disseminate the concluding remarks in their countries for public outreach
(through the media, websites and social networks) and follow up with the national
authorities.25
IV. Challenges faced by regional and subregional human rights arrangements
Structural and financial challenges
19. Broadly speaking, structural challenges refer to the way in which a lack of political
will, membership issues, or greater than expected demand have manifested themselves in
poorly resourced or unbalanced regional arrangements. The global human rights system is
trying to do more with less. Thus, the greatest obstacle to the effective functioning of both
the Inter-American Commission and Court is the lack of adequate human and financial
resources. The 30 staff lawyers at the Commission, who are presently handling nearly 1,250
22 Robert K. Goldman, “History and action: the inter-American human rights system and the role of the
Inter-American Commission on Human Rights”, Human Rights Quarterly, vol. 31, No. 4 (November
2009).
23 See www.oas.org/en/iachr/media_center/preleases/2011/127.asp.
24 Survey response by the Government of Kenya.
25 See report of the International Federation for Human Rights and others on a seminar held in Cairo in
February 2013, “The Arab League and human rights: challenges ahead”, (May 2013).
open cases, cannot keep pace with the annual increase in the number of petitions and thus
cannot meet the reasonable expectations of States and victims for their prompt resolution.
The Commission receives an average of over 2,000 new petitions each year.
20. Membership issues also hinder both the Inter-American Commission and the Court.
As of 2013, 25 of the 35 OAS member States had ratified the Convention, while 2 have
subsequently denounced it, leaving 23 active parties. Only 21 of those parties have
acknowledged the jurisdiction of the Court in contentious cases. Notably, the United States
of America and Canada have not ratified the American Convention on Human Rights,
although the United States remains the largest donor of voluntary funds to the Commission,
despite the fact that it has not signed the Convention. It contributes $2.3 million a year and
an additional $300,000 to the Special Rapporteur for freedom of expression. Very few OAS
member States contribute voluntary funding to the Commission and the Court.26 In 2016,
when the Commission faced its most serious financial crisis, OHCHR was crucial in calling
attention to the problem. Among the challenges facing the Arab Human Rights Committee
are the delayed submissions by States parties of their first and periodic reports on the
implementation of the Arab Charter on Human Rights and the effective implementation of
the Committee’s recommendations at the national level. Furthermore, eight LAS member
States have still not ratified the Charter and are therefore not yet members of the Committee.
21. The African Commission for Human and Peoples’ Rights also faces many structural
and resource challenges. Among them are a lack of capacity to ensure that the system is
accessible to rights holders and that norms and standards are effectively implemented and
enhanced at the national level; to monitor the non-compliance of member States with their
obligation to submit regular reports; to overcome challenges in implementing the decisions
of the Commission; and a very limited operating budget. For example, in 2002/2003, the
Commission only had a budget of $790,000, although this was subsequently increased to
around $7.9 million in 2011. 27 As with OAS, fiscal challenges are compounded by
membership problems. As of July 2017, only 8 of the 30 States parties to the Protocol to the
Charter had made the declaration recognizing the competence of the Court to receive cases
from NGOs and individuals. They are Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi,
Mali, Tunisia and the United Republic of Tanzania. 28 Moreover, only 26 States have
accepted the jurisdiction of the Court. In its response to the survey, the Government of
Kenya noted a lack of political will to implement the decisions of the Court and a lack of
adequate funding as the main obstacles.
22. Although it boasts the best-funded regional arrangement in the world, Europe also
has a problem with structural imbalances. Within the European system, the Convention
makes provision for civil and political rights only, while the European Social Charter
covers social and economic rights. The two are not treated equally: while accession to the
Convention is a condition of Council of Europe membership, it is not a requirement for the
Charter, underlining the lesser status accorded to social and economic rights in the
European system.29 Ironically, the most critical problem appears to be the mounting number
of individual complaints. A combination of factors - the positive public reputation of the
Court in some countries, its expansive interpretation of the Convention and entrenched
human rights problems in other countries - has attracted tens of thousands of new individual
applications annually. Such cases often last for years, resulting in a mounting backlog. As
of September 2016, the Court had issued more than 10,000 judgments but had more than
74,000 pending cases. Some say the Court is becoming a victim of its own success and now
26 Survey response by the Government of the United States.
27 See Frans Viljoen, International Human Rights Law in Africa, 2nd ed. (Oxford, Oxford University
Press, 2012).
28 The following 30 member States have ratified the Protocol: Algeria, Benin, Burkina Faso, Burundi,
Cameroon, Chad, Comoros, Congo, Côte d’Ivoire, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho,
Malawi, Mali, Mauritania, Mauritius, Mozambique, the Niger, Nigeria, Rwanda, Sahrawi Arab
Democratic Republic, Senegal, South Africa, Togo, Tunisia, Uganda and the United Republic of
Tanzania.
29 See Anna Greer and Louis J. Kotzé, eds., Research Handbook on Human Rights and the Environment
(Cheltenham, Edward Elgar Publishing, 2015).
faces a docket crisis of massive proportions. There also remain substantive questions about
how the Court accomplishes its core mandate - protecting the civil and political rights
enshrined in the Convention - and whether the procedural framework it uses to achieve that
goal needs to be revised in response to changes in the legal and political landscape of
human rights protection in Europe.30 On a positive note, however, the backlog has been
decreasing since 2014 owing to institutional reforms.
Procedural challenges
23. Procedural problems are typically the result of institutional design decisions,
subsequent modifications, or day-to-day practices that serve to limit the efficacy or scope of
a regional arrangement. While the League of Arab States which was founded in 1945, was
the first regional mechanism recognized by the United Nations, it was almost 60 years
before member States adopted the Arab Charter on Human Rights. There exists a window
of opportunity to further enhance the compatibility of the Charter with international human
rights standards. The Arab Human Rights Committee can only receive State reports and
issue recommendations. It cannot decide on individual or inter-State complaints. The final
draft for the statute of the Arab Court of Human Rights has been revised to restrict access to
the Court to States parties only. However, member States can, at their discretion, permit
civil society organizations to present cases on behalf of individuals.
24. The Inter-American Court has a special unit dedicated to monitoring compliance
with its judgments and the average duration of the cases before it was 20 months in 2016,
less than the 24 months in 2014. The Inter-American Commission currently has no strong
institutionalized form of follow-up, although it is creating one. However, individual
complaints often take too long before the Commission, resulting in a backlog of cases. It
can take three or more years for the Commission to forward a petition to the relevant State
for an initial response. 31 According to the 2016 annual report of the Commission, it
received 2,567 petitions in that year alone, adding to a backlog of thousands of pending
cases.32
25. The 11 members of the African Commission on Human and People’s Rights are
part-time but fulfil numerous functions, which may limit the capacity of the Commission.
Commissioners and judges of the African Court are elected by the African Union to ensure
independence.33 However, some scholars consider the coverage of human rights by the
African Charter to be incomplete by international standards. For example, article 6 of the
Charter states that “no one may be deprived of his freedom except for reasons and
conditions previously laid down by law.” This means that as long as there is a pre-existing
law, Governments may deprive people of their freedoms.34 However, it should be noted that
these “clawback” provisions are fairly common in legal language and that the African
Commission has so far maintained a strict interpretation of them, thereby preventing their
abuse.
26. The ASEAN Charter fails to provide an effective enforcement mechanism, as it
continues to emphasize sovereignty, territorial integrity and non-interference in domestic
affairs. Thus, the Intergovernmental Commission on Human Rights is comprised of
government appointees accountable to their Governments, who can remove the appointees
at their discretion. It operates by consensus, which gives each State an effective veto over
the decisions of the Commission. In fact, the mandate of the Commission does not contain
explicit provisions for receiving and investigating complaints of human rights violations.
Discussions of complaints take place in closed meetings, so it cannot be confirmed whether
and which cases have been discussed. The Commission has yet to take public action in
30 See Laurence R. Helfer, “Redesigning the European Court of Human Rights: embeddedness as a deep
structural principle of the European human rights regime”, European Journal of International Law,
vol. 19, No. 1 (2008).
31 Survey response by the Government of the United States.
32 See www.oas.org/en/iachr/docs/annual/2016/TOC.asp.
33 See www.au.int/en/organs/cj.
34 See Sandhiya Singh, “The impact of clawback clauses on human and peoples’ rights in Africa”,
African Security Review, vol. 18, No. 4 (2009).
response to a complaint. Although NGOs are striving to improve human rights conditions
in Asia, that is proving to be difficult because the Commission has largely excluded civil
society organizations from participation in its initiatives.35
V. Role of the Office of the United Nations High Commissioner for Human Rights in the advancement of regional and subregional human rights arrangements
27. Mandated by Human Rights Council resolutions, OHCHR has consistently
organized workshops aimed at enhancing cooperation between the United Nations and
regional human rights mechanisms, including information-sharing on best practices and
lessons learned and discussions on possible new forms of cooperation. A key success story,
for example, is the Addis Ababa road map adopted by the special procedures of the United
Nations and the African Commission on Human and People’s Rights. 36 International
workshops on regional arrangements, preceded by consultations, were held in 2008, 2010,
2012, 2014 and 2016. Furthermore, OHCHR has a dedicated section, the National
Institutions, Regional Mechanisms and Civil Society Section, which is responsible for
supporting regional mechanisms. Although a key achievement has been the creation of a
network of 17 focal points for cooperation between regional mechanisms, which hold
annual meetings and coordinate the biannual workshops, this activity is coordinated by a
single person in the Section.
28. OHCHR supports the establishment and operation of national and regional human
rights organizations through capacity-building, such as training and technical assistance,
and facilitating information flows. The technical assistance programme integrates support
for national institutions with other forms of United Nations assistance, but more needs to be
done for effective capacity-building. In its response to the survey, the Government of
Kenya noted that it had faced a challenge with regard to training on various human rights
issues. It stated that more support was required for human rights awareness campaigns,
especially in regard to the abolition of the death penalty and the training of government
officers on a human rights-based approach to programming and planning, in order to build
their capacity to provide service delivery in a meaningful way. In its response, the National
Council for Human Rights of Egypt also noted that OHCHR could play an important role
by conducting training for the staff of the institutions concerned, helping to develop
information and documentation systems, and facilitating exchange of experience with
relevant institutions, especially those belonging to the international system of human rights
protection. OHCHR could also help to establish regional offices and human rights centres
that would provide an additional structure promoting the concept of regional protection of
human rights.
29. OHCHR also assists with the diffusion of international human rights standards to
regional arrangements. In the case of the League of Arab States, OHCHR provided
assistance in revising the 1994 version of the Arab Charter on Human Rights to improve its
compliance with international human rights standards. 37 OHCHR has encouraged the
security architecture of the African Union to adopt a human rights approach and supported
the 2017 African Union high-level dialogue on human rights, as well as planning for the
10-year action and implementation plan for the promotion and protection of human rights.
In the Americas, OHCHR supported the Inter-American Commission during its 2013
reform process and helped to raise public awareness during its budgetary crisis in 2016. In
2017 in the Middle East, valuable training on United Nations human rights mechanisms
was provided to the OIC Independent Permanent Human Rights Commission. Of course,
there are still challenges. It has been pointed out that OHCHR may consider facilitating
staff exchange and peer advice for regional mechanisms, provide regular training and
35 See https://humanrightsinasean.info/asean-intergovernmental-comission-human-rights/about.html.
36 See www.ohchr.org/Documents/HRBodies/SP/SP_UNHRC_ACHPRRoad%20Map.pdf.
37 Mervat Rishmawi, The League of Arab States Human Rights Standards and Mechanisms: Towards
Further Civil Society Management: a Manual for Practitioners (2015).
publish its performance assessment of regional mechanisms to identify areas where it can
provide further support.38
30. Working towards this end, OHCHR has set up 12 regional offices and is currently
carrying out plans to establish more in Asia. The regional offices have facilitated various
forms of planning and cooperation between international and regional or subregional
mechanisms. Key examples of those strategic activities include the annual meetings held by
the secretariats of OHCHR and the Council of Europe since 2007; the joint declarations on
the reinforcement of cooperation with the Council of Europe (in 2013) and the OSCE
Office for Democratic Institutions and Human Rights (in 2014); and the participation of
judges from the European Court of Human Rights in the Human Rights Committee session
in July 2016 and of judges from the European Court and the Inter-American Court in the
session of the Committee against Torture in December 2017. OHCHR, which signed a joint
declaration with the Inter-American Court in 2014, now participates in planning activities
with both the Inter-American Commission and the Court, which in 2016 included meetings,
training and seminars in Washington, D.C., Guatemala and Panama City. Another
accomplishment was a workshop on regional and subregional human rights courts held at
Strasbourg, France, in 2015, which allowed the sharing of jurisprudence and best practices
by judges and experts from Africa, the Americas and Europe.
31. OHCHR plays a pivotal role in bridging the gap between regional human rights
mechanisms and the broader international community. For example, joint public statements
and technical cooperation with regional and subregional organizations have been an
important tool in denouncing violations and in assisting States to comply with international
legal standards.
VI. Contribution of other actors to regional and subregional human rights arrangements
National human rights institutions
32. National human rights institutions, which vary in size and capacity from country to
country, support regional mechanisms directly by creating connections for national actors at
the international level. For instance, in its response to the survey, the National Council for
Human Rights of Egypt explained that the effectiveness of the African human rights
mechanism could be improved by strengthening cooperation with national human rights
institutions, increasing awareness of the competences and goals of both the African
Commission on Human and People’s Rights and the African Court on Human and People’s
Rights, exchanging experiences with other regional mechanisms and learning from success
stories that have made these institutions more effective. It also noted that the African Union
Commission and the Network of African National Human Rights Institutions signed a
memorandum of understanding in January 2016 and have developed guidelines on the role
of national human rights institutions in monitoring the implementation of the findings of
the African Commission and the judgments of the African Court. European national human
rights institutions have created the European Network of National Human Rights
Institutions to coordinate their activities across a range of human rights issues. Finally,
there is the Global Alliance of National Human Rights Institutions, which was established
in 1993.
33. Owing to their role of ensuring fluid connections with human rights actors, national
human rights institutions have the potential to foster active dialogue between United
Nations and regional human rights regimes worldwide. Such institutions network both with
each other and with OHCHR in Geneva on a regular basis through annual meetings and in
regional meetings. Given the now recognized international status of national human rights
institutions, their potential to advance human rights is manifest. 39 The Iberoamerican
38 Survey response by the European Union Agency for Fundamental Rights.
39 See John von Doussa, “The potential role of national human rights institutions in the Pacific”, paper
given at the Australasian Law Reform Agencies Conference (September 2008).
Federation of Ombudsman has played this role in the Americas, linking national, regional
and United Nations systems. Another example is the Asia Pacific Forum of National
Human Rights Institutions, one of the most effective forms of collaboration in the region.
Established in 1996, the organization aims to support the establishment and efficient
operation of national human rights institutions in Asia and currently has 24 members. The
key roles of the Forum include building stronger national human rights institutions;
providing advice and expertise; collaborating and sharing knowledge; promoting gender
equality; contributing at the national, regional, and international level; and supporting
effective leadership and governance. It thus opens up new avenues for strengthening human
rights protections for the inhabitants of the region.
Civil society
34. NGOs push reluctant Governments to step up their human rights protection efforts
by pressuring them to ratify international human rights treaties. After ratification, they also
help to evaluate compliance. NGO monitoring and reporting serves are invaluable sources
of information for the enforcement authorities of regional regimes. In one example, the
International Commission of Jurists complained to the European Committee of Social
Rights that child labour incompatible with the European Social Charter was common in
Portugal. That led to Portugal amending its Constitution to prohibit the employment of
schoolchildren and increasing the minimum age for employment, which caused a dramatic
drop in violations.40
35. The productive engagement of NGOs in other regional mechanisms is also visible.
Although many NGOs are active, only a few examples can be cited. The Center for Justice
and International Law has participated in over 300 cases before both the Inter-American
Commission and Court on behalf of more than 13,000 victims. Its success has translated
into, among other things, the payment of monetary reparations (more than $66 million to
almost 2,500 victims); the reopening of investigations and cases that had earlier been met
with impunity; public apologies by high-ranking government officials; and changes in the
laws and practices of States.41 In Africa, the rules of procedure of the African Commission
allow NGOs to sit in on public sessions of the Commission and of its subsidiary bodies.
There are 515 NGOs with observer status with the Commission and the engagement of civil
society has been further enhanced by the NGO forum, an advocacy platform coordinated by
the African Centre for Democracy and Human Rights Studies, which convenes in advance
of sessions of the Commission.42
36. Although Asia does not yet have a regional human rights arrangement, civil society
is working towards this goal. In 1993, building on earlier groundwork, more than 110
NGOs from 26 countries across Asia adopted the Bangkok NGO Declaration of Human
Rights, a hopeful step towards cooperative transborder human rights activism. Continued
efforts to build a comprehensive system of human rights norms led to the issuance of the
Asian Human Rights Charter in 1998, an important demonstration of the existence of a
normative consensus among representatives of Asian civil society. Although many
countries in the region do not have strong domestic civil societies, Asian NGOs have
compensated by creating transnational networks focusing on networking, coalition-building,
capacity-building and advocacy across borders, while also putting effort into monitoring,
documentation, campaigning, and training. For instance, the Asian Forum for Human
Rights and Development (Forum-Asia), one of the most prominent transnational NGOs
based in South-East Asia, has been implementing human rights advocacy programmes in
ASEAN countries to ensure the effectiveness of ASEAN human rights institutions and is
also making strenuous efforts to raise public awareness of and bring government attention
to regional human rights cooperation in Asia.
37. As of now, however, many NGOs, especially those in Africa, Asia and the Middle
East, suffer from a lack of legal protection and the resources to successfully carry out their
40 International Commission of Jurists v. Portugal, complaint No. 1/1998.
41 See www.cejil.org/sites/default/files/legacy_files/Report20_ENpdf.pdf.
42 For more information, see www.acdhrs.org/ngo-forum/.
activities. 43 According to the online monitor run by CIVICUS, civil society space is
narrowed, obstructed, repressed and even closed in most countries around the world, with
only a few northern European countries and New Zealand classified as truly open. 44
Shrinking civil society space suggests that NGO efforts to create subregional and regional
mechanisms from the bottom up cannot succeed unless they receive sustained support and
coordination by international actors.
VII. Implications for the protection of human rights through regional and subregional human rights arrangements
38. The foregoing analysis of the achievements and challenges of regional human rights
arrangements suggest that the most important factors determining the success or failure of
regional human rights mechanisms include the following factors:
(a) Commitment:
(i) The intent and will of individual States to conform to regional and
international standards;
(ii) Signing and ratification by most, if not all, of the States in the region;
(iii) Changes in laws or legal practices by individual States in the region;
(iv) Securing adequate human and financial resources for the regional and
subregional human rights arrangements;
(b) Procedures:
(i) Ensuring the institutional independence of judges from national interests and
influences;
(ii) Resolving backlogs and delays in human rights mechanisms (especially
courts) and preventing future backlogs;
(iii) Establishing enforcement mechanisms for decisions by regional human rights
mechanisms;
(iv) Monitoring mechanism to follow up on decisions and increase transparency;
(v) Maintaining the integrity and neutrality of regional mechanisms;
(c) Collaboration:
(i) Alliances between global and local human rights organizations to uphold
international standards and hold perpetrators of violations accountable;
(ii) Role of national human rights institutions in coordinating and strengthening
the implementation of decisions and increasing the likelihood of compliance;
(iii) Protection of and participation by members of civil society in submitting
petitions, representing victims, pressuring responsible actors and following up on
court decisions.
39. Ideally, the efficient functioning of a regional mechanism requires all three factors to
operate in unison. A lack of member State commitment undercuts the vitality of the entire
structure, while a mismatch between commitment and collaboration will create adversarial
relationships that complicate the procedural level. Although the potential for procedural
flaws and inefficiencies exists in all regional arrangements, a synergistic relationship
between member State commitment and collaboration with international and civil society
43 Council on Foreign Relations, International Institutions and Global Governance Program, “The global
human rights regime” (May 2012), Available from www.cfr.org/human-rights/global-human-rights-
regime/p27450.
44 See https://monitor.civicus.org/.
actors helps to identify and manage such problems and, in the best cases, literally ties all
three levels together into a closely functioning and self-reinforcing system.
40. Conceptualizing successful regional mechanisms as integrated systems of
commitment, procedure and collaboration has important implications for ongoing efforts to
create new regional arrangements. First, it highlights the importance of the commitment of
member States but emphasizes that this factor does not exist in isolation. Collaboration with
domestic and international actors is required, even in the presence of strong member State
commitment, just as domestic and international actors cannot succeed without member
State commitment. This suggests that thinking sequentially is problematic when creating
new arrangements. Rather, a successful regional arrangement requires the parallel
development of self-supporting levels of collaboration, procedure and commitment. Modest
but balanced arrangements that are allowed to evolve organically may be more sustainable
than ambitious projects that seek to do too much too quickly.
41. Guaranteeing the commitment of member States to a regional human rights
arrangement may be hindered because of different types of State governance. In contrast to
norms prevailing in other regions, many Asian countries regard human rights issues as a
domestic issue. Since non-interference in domestic affairs is one of the principles explicitly
underlying the ASEAN founding documents, efforts to internationalize human rights
protection within the ASEAN framework are expected to encounter procedural problems
Furthermore, Asian countries tend to prioritize government-centred policy initiatives for
creating economic development and accept the relegation of individual rights for the
collective good.45 Those differences, combined with the growing economic and political
importance of Asia in the world, suggest that a simple transference of European models
may not be a realistic expectation.
42. Strong commitment by a powerful country or small group of countries could be one
way to generate momentum for a regional arrangement in Asia. As we have seen, a similar
role was played by the United States in creating and financing the Inter-American human
rights mechanism. For many international regimes, the presence of a leading nation is very
important. However, many Asian powers do not appear to be willing to take on this role.
43. Thus, there appear to be three possible routes to creating an Asian regional human
rights arrangement. The first is the narrow approach. That would consist of the creation of a
small subregional human rights arrangement that is geographically limited but marked by a
high degree of commitment, procedures closely modelled on best practices and deep
collaboration with international actors and civil society. For example, an Asian human
rights regime could be centred on a country with a strong human rights record and then
expand to neighbouring countries. That approach would have the advantage of maximizing
the protections for the inhabitants of member States in accordance with international
standards but could experience growth difficulties if its convention and enforcement
mechanisms were perceived as too intrusive.
44. The second route is the wide approach. That would consist of the negotiation of a
broad and inclusive human rights arrangement that encompasses the entire region. Owing to
widely divergent cultural values, types of governance and member State preferences, a
successful agreement would necessarily reflect the lowest common denominator. In all
likelihood, such an organization would be underfunded, procedurally handicapped and
would limit the opportunities for civil society engagement. Nevertheless, its existence
would be highly symbolic, provide at least a modicum of protection to the largest number
of people and could help to encourage member States to show more commitment in the
future.
45. The third route to a regional arrangement in Asia would consist of a networked
approach, which closely resembles the method adopted in Africa. That would consist of the
development of multiple and overlapping subregional mechanisms among like-minded
countries. Those mechanisms would not have the same procedures because compromises
45 See Amartya Sen, Human Rights and Asian Values (New York, Carnegie Council on Ethics and
International Affairs, 1997).
would be necessary when establishing each body, realistically taking into account which
provisions member States would be comfortable ratifying and implementing. Attention
should be focused on the extent to which compromises could be made. This approach could
lead to the proliferation of organizations based on subregions, such as Central, Eastern,
Northern, South-eastern, Southern and Western Asia. Those organizations would cooperate
with each other but would reflect the distinctive approach to human rights protection of
each subregion. In parallel, further international agreements could be created at the regional
level focusing on addressing common issues, such as child poverty or the rights of the
elderly, or technical issues such as consumer privacy rights. In the long run, of course,
efforts would be needed to integrate these diverse subregional rights systems and single
issue regimes into a coherent whole. Criss-crossing the region with a network of
subregional arrangements would allow countries to move at their own pace. In doing so,
they would be encouraged by international civil society and assisted by the United Nations
system.
46. It is clear from the case of Europe and other successful regional arrangements in
Africa and the Americas that strong regional cooperation and coordination greatly
contribute to the consolidation of universal human rights. The networked approach is not
only effective in creating new regional mechanisms, it will also revitalize existing ones.
Joint networks are essential for ensuring that overlapping global, regional, subregional and
national human rights actors maximize their potential and avoid jurisdictional conflict. For
stronger and more effective regional mechanisms, all actors, including Governments and
civil societies, will need to play important roles in promoting multilevel cooperation, which
will include national assemblies, courts, national human rights institutions, private sector
representatives and scholars from various fields. Specifically, there needs to be awareness
that sustainable procedures are the result of a careful balance between commitment and
collaboration. Finding that balance requires careful research, honest negotiations and a
willingness to listen and learn by local and international actors alike. Put simply, human
rights can be implemented to the fullest extent only when Governments, citizens and
international civil society are willing to engage in the process.
VIII. Conclusions and recommendations
Conclusions
47. Regional human rights mechanisms have made important achievements in
protecting human rights around the world. The European regime has made great
strides in changing laws and practices in its member States, including enhancing the
protections for vulnerable populations such as same-sex couples and children. The
Inter-American Commission on Human Rights has helped to protect human rights
defenders and the rights of indigenous peoples, and has issued reports on member
States. The African Commission on Human and People’s Rights and the Arab Human
Rights Committee publish reports which are used by civil society actors to further
advocate for the protection and promotion of human rights.
48. Despite these successes, regional human rights mechanisms are still struggling
to overcome serious limitations. Some of them do not enjoy the membership of all
States within their respective regions. In the case of the Inter-American human rights
mechanism, the United States, Canada and most Caribbean States have not ratified
the relevant convention. Likewise, some African and Arab States have not ratified
their respective regional human rights conventions either. In Asia, there is no region-
wide human rights arrangement. Regional arrangements also have many operational
limitations, including restrictions on the independence of judges, an inability to
enforce their decisions, or serious backlogs of cases. A lack of political will by relevant
States and insufficient funding are also serious obstacles, even in Europe.
49. The United Nations is essential to forging a complementary relationship
between regional and universal arrangements, because it is in a position to work with
all regional mechanisms and promote further exchanges of information and good
practices between them. South-South cooperation is vital in strengthening existing
regional mechanisms and developing new ones. The United Nations can also
strengthen the international legal order by actively promoting the exchange of
jurisprudence between regional mechanisms and active dialogue regarding common
issues and best practices. That is important for resolving potential tensions between
the universal approach to human rights and regional approaches. More specifically,
the partnership between OHCHR and human rights mechanisms (particularly
through its regional and country offices and through its special procedures and treaty
bodies) has proven crucial in the promotion and protection of human rights at the
local level. OHCHR helps regional mechanisms and States with drafting human rights
instruments, following up on the universal periodic review, supporting the work of
national human rights institutions, providing platforms and training, and by acting as
a bridge between global and regional mechanisms.
50. National human rights institutions and civil societies have also contributed to
regional and subregional human rights arrangements. They play a special role as an
institutional bridge between individuals and States and between States and
international society. Meanwhile, members of civil society have made significant
contributions to ensuring the long-term effectiveness of regional human rights
arrangements. NGOs, although facing resource constraints and shrinking civil society
space, successfully spread human rights values, lobby Governments, publish
independent reports, create blueprints for further human rights progress, draft
human rights conventions and even help to create new international bodies. This
bottom-up pressure can help regional arrangements to work more smoothly in cases
of strong member State commitment and can help generate commitment where it is
initially lacking.
51. At their best, regional human rights mechanisms can change State laws and
practices, promote the rights of the most vulnerable and serve as a reference model
for member States and neighbouring regions. To achieve optimal results from such
arrangements, there is a need to ensure that most, if not all, States within the region
ratify the relevant conventions. There is also a need to ensure the independence of
judges and the existence of an enforcement mechanism for their decisions. The
implementation of a monitoring mechanism to follow up on decisions is also necessary,
as is allowing members of civil society to participate in the process. More broadly,
collaboration with OHCHR, State Governments, local governments, national human
rights institutions, corporations and NGOs at all stages of the development and
operation of a mechanism must be ensured and strengthened. Lastly, securing human
and financial resources is vital for ensuring effective operation.
52. The implications of the present study for the prospects of a new regional
mechanism in Asia is that all actors, including Governments and civil societies, must
play strong roles in promoting a mechanism of multilevel cooperation. Although there
are several possible routes to creating a regional arrangement in Asia and improving
existing mechanisms elsewhere, it is certain that this cannot be accomplished by
simply mimicking mechanisms from other regions. It requires strong State leadership,
supplemented by all relevant stakeholders such as national assemblies and legislatures,
courts, national human rights institutions, law enforcement agencies and even
corporations.
Recommendations
53. Member States of regional human rights arrangements need to make greater
efforts to guarantee adequate funding for the latter. Without funds, even the best
designed procedures will struggle to protect human rights adequately. The
sustainability of regional arrangements requires strong commitment by member
States and the active participation and oversight of other human rights organizations,
both domestic and international. That said, worsening economic conditions around
the world mean that regional arrangements may face increased competition for access
to State budgets. There is a need for innovative thinking and experimentation by
human rights practitioners and the international community to find ways to enable
regional arrangements to do more with less. Leveraging new technologies for greater
efficiencies or streamlining traditional methods of human rights litigation are just
some of the ways that resource constraints could be managed in the years ahead.
Another promising possibility is using private-public partnerships to forge new types
of funding arrangements between regional human rights mechanisms and Western
donors, especially large charitable foundations.
54. Asia may consider establishing a human rights court or a similar human rights
institution with a relevant mandate, building on lessons learned from other regions.
One way to create the necessary political consensus for this court would be an
innovative adaptation of the pre-existing universal periodic review process. Since all
Asian countries participate in that process, it could be leveraged to facilitate
discussions on enhancing regional human rights cooperation. Ideally, a regional
subforum based on the universal periodic review, especially if it was open to the
expanded participation of civil society, scholars and other relevant stakeholders, could
focus on cooperative solutions to common problems, carry out peer reviews and
encourage States to share their experiences on how to implement its recommendations.
It is noteworthy that regional mechanisms, such as the Council of Europe, the OSCE
Office for Democratic Institutions and Human Rights and the European Union
Agency for Fundamental Rights, are now taking part in the universal periodic review
process in Europe, which helps both OHCHR and the States involved. In Asia, this
process could be reversed. Starting modestly as an institution for providing technical
assistance to States engaged in the universal periodic review process, such a subforum
would be well placed to evolve into a more comprehensive regional mechanism.
55. More support needs to be given to the actors that play key roles in establishing
regional human rights cooperation at the national and local level, particularly
parliaments and legislatures, law enforcement agencies, courts and municipal or local
governments. A regional human rights mechanism is only as strong as the local actors
responsible for implementing and guaranteeing its protections. The facilitation of
horizontal cooperation between those actors will permit the dissemination of best
practices and help to create State preferences for regional human rights cooperation
from the ground up. As such, in the present report the Advisory Committee reiterates
its earlier recommendation that local governments participate more in United Nations
human rights mechanisms (A/HRC/30/49). The support provided by OHCHR for
human rights education at the level of local communities in Georgia in 2015 is
noteworthy in that regard.46
56. Regional human rights arrangements can further improve their effectiveness
by improving their communications and information dissemination. For instance, the
Government of Montenegro recommends the appointment of focal points for the
European Court and the Council of Europe who would regularly disseminate
information about special procedures and treaty bodies. 47 That could involve
cooperation with human rights institutions inside their jurisdictions, such as national
human rights institutions, civil society groups and individual scholars, as well as
coordination and information-sharing with other regional human rights arrangements.
Moreover, regional mechanisms must be more effective at explaining their importance
to the public because popular support is essential for maintaining a high level of
commitment.
57. Human rights institutions, including regional human rights regimes, should
cooperate by tackling region-wide thematic issues, including but not limited to,
women’s rights, children’s rights, the rights of migrants and the rights of persons with
disabilities. Efforts should be made to develop the treaties on specific subjects and
systems into effective tools for the promotion of human rights. An excellent case in
point is the Sustainable Development Goals, which officially aim to “realize the
human rights of all.” Regional cooperation in the practical implementation of the
Goals not only has tangible developmental benefits for the countries involved but can
46 Survey response by the Government of Georgia.
47 Survey response by the Government of Montenegro.
also be used to create the scaffolding of future regional human rights instruments,
particularly those protecting economic and social rights. Economic, social and cultural
rights may be the best place to expand regional mechanisms.
58. OHCHR needs to play a key role in facilitating the creation of a regional or
subregional human rights mechanism in Asia and in improving the operation of
existing arrangements in other regions. It could accomplish this by continuing to act
as an information clearing house that provides detailed, technical advice on best
practices and by creating forums where negotiations and exchanges of ideas can occur.
That could include offering regular newsletters that bring together updated
information from regional human rights mechanisms, including on best practices,
lessons learned, decisions, recommendations, reports, calendars and planned visits
(A/HRC/28/31). OHCHR could also help to establish regional offices and human
rights centres that provide additional institutional support for promoting the regional
protection of human rights.48 More substantively, thematic issues of common interest,
such as the fight against racial and ethnic discrimination, the rights of persons with
disabilities, gender equality, violence against women, and the protection of vulnerable
groups are areas where the OHCHR can contribute.49
59. However, in the present report the Advisory Committee acknowledges that
OHCHR cannot do more without adequate resources. Strengthening the relationship
between the United Nations system and regional mechanisms through research,
capacity-building and organizing workshops will require the allocation of more
personnel and financial resources to the task, even if this requirement can be offset
somewhat by the innovative use of technology. It is recommended that a special unit
within the National Institutions, Regional Mechanisms and Civil Society Section of
OHCHR be created to coordinate all activities involving regional mechanisms. The
unit will require more staff than the one person currently allocated to regional
mechanisms, preferably one P-4 and one P-3 or P-2. The section will also require
additional funding to take on a broader scope of activities.
60. In addition to supporting a network of focal points, the special unit could
conduct an exhaustive review of OHCHR activities regarding regional human rights
mechanisms to date and develop a comprehensive strategy detailing how the regional,
subregional and international human rights systems could be integrated into an
effective whole. That would include elaborating criteria and methodological tools for
evaluating and comparing regional mechanisms, determining their needs, compiling
information on best practices and devising capacity-building benchmarks. Ultimately,
the unit will seek to support the establishment of regional and subregional
mechanisms and strengthen the effectiveness of existing mechanisms, which will
require horizontal and vertical information-sharing and enabling their greater
participation in United Nations bodies.
48 Survey response by the National Council of Human Rights of Egypt.
49 Survey response by the Government of Montenegro.