Frans Viljoen

The Impact of the United Nations Human Rights Treaties on the Domestic Level

Preface. Overview of Study Results. Country Studies. 1. Australia. 2. Brazil. 3. Canada. 4. Colombia. 5. Czech Republic. 6. Egypt. 7. Estonia. 8. Finland. 9. India. 10. Iran. 11. Jamaica. 12. Japan. 13. Mexico. 14. Philippines. 15. Romania. 16. Russia. 17. Senegal. 18. South Africa. 19. Spain. 20. Zambia. Annexures.

Application of the African Charter on Human and Peoples' Rights by domestic courts in Africa

The African Charter on Human and Peoples’ Rights1 (hereinafter the “African Charter” or “Charter”) was adopted by the Organisation of African Unity (OAU) Assembly of Heads of State and Government in 1981. It entered into force on 21 October, 1986, after a majority of OAU member states had ratified the Charter. At present, 52 of the 53 member states have become parties: the only non-ratifying state is Eritrea.

Human rights in Africa: normative, institutional and functional complementarity and distinctiveness

While the United Nations is the main human rights norm-creator for Africa, the Organisation of African Unity/African Union has ‘appropriated’ many of these standards in treaties of its own. In as far as these treaties deviate from a global consensus, they do so to ensure greater normative legitimacy in the African context. The institutions created under AU human rights treaties — especially the African Commission on Human and Peoples’ Rights — have shown themselves as relatively effective in promoting and protecting human rights. While the African Court on Human and Peoples’ Rights was added by way of a subsequent redesign of the system, its potential has remained largely unexplored. In addition, the emergence of subregional courts as fora to provide relief to victims of human rights has opened the door for competition and forum shopping. These developments have often been initiated and steered by civil society organisations and subregional judicial institutions rather than member states of international organisations. Much can still be done to strengthen and extend complementarity between international organisations in this field.

State reporting under the African Charter on Human and Peoples' Rights: a boost from the South

The problems of the absence or infrequency of states parties reports to the African Commission and the inadequacy of many that are submitted needs to be addressed. At the 25th session of the African Commission, South Africa presented its initial report. This process before, during and after the examination of the report is discussed and provides both encouragement for states to comply with their reporting obligations under the African Charter and useful lessons for states wishing to improve the quality of their reports.

Danger and fear in prison : protecting the most vulnerable persons in Africa and the Americas by regional human rights bodies through interim measures

This article focuses on the role the African and Inter-American human rights systems in protecting the rights of detainees through interim measures. The need for regional human rights to complement protection at the national level is all the more pronounced when it comes to detainees, because they often lack democratic leverage at the national level. While complementing the universal system, regional systems have the added benefit of closer connection and binding judgments. Because the situation of detainees often requires urgent intervention, interim measures are required to ensure that detainees do not suffer undue harm. A comparative survey of interim measures in the two regional systems reveals that, while these measures had been issued in both systems, the Inter-American has used them much more frequently. One of the reasons for this difference is the fact that the Inter-American system does not make the submission of a formal complaint a prerequisite for issuing interim measures. The African Commission should amend its Rules of Procedure to allow for a similar possibility; and it should devote more resources and institutionalize this procedure. Despite the inclusion of collective rights in the African system, the African Commission has infrequently dealt with urgent measures affecting groups of detainees. Both systems suffer from some defects. There is a lack of substantiated reasoning in decisions dealing with interim measures, especially when requests are rejected; information is not made available systematically about the fate of all requests for interim measures; and a lack of compliance besets both systems.

Impact in the African and Inter-American Human Rights Systems: A Perspective on the Possibilities and Challenges of Cross-Regional Comparison

Despite the differences between the Inter-American and African human rights systems, there are good reasons for their comparative analysis. This chapter focuses on two such reasons: cross-regional learning and the overall development of global human rights. Four areas of potential cross-regional learning are analysed: weak political oversight, distinct yet overlapping normative frameworks, interim measures and remedies. Much cross-regional learning has already taken place in these areas but more thinking and research is required. In particular, similarities in compliance and design of political oversight hold much potential for cross-regional learning. As to the development of global human rights, important insights can be gained by comparing institutional design, political reaction and the role of domestic actors. The two regional systems can inform our understandings of these dynamics.

The feasibility and desirability of an African disability rights treaty : further norm-elaboration or firmer norm-implementation?

Abstract The United Nations General Assembly in 2006 adopted the Convention on the Rights of Persons with Disabilities (CRPD), sparking debate in Africa about the desirability and feasibility of adopting an African pendant to this UN treaty. Two main rationales that support an ‘African’ treaty on the rights of persons with disabilities (PWDs) are examined in this article. The first is a process argument that contends that African participation in the elaboration of the CRPD was inadequate. The second, substantive argument suggests that the CRPD, itself, is defective, as it does not adequately address issues pertinent to and reflecting the life world of Africans with disabilities. Concluding that both rationales lack persuasive force, the authors identify two alternative courses of action. First, they argue that the CRPD should be prioritised and used to its fullest extent before attempts are made to elaborate parallel African standards to the CRPD. Among the measures to be prioritised are increased ratification, domestication, presentation of state and alternative civil society reports, and submission of individual complaints. Second, given that all African Union (AU) member states (except South Sudan) are party to the African Charter on Human and Peoples’ Rights, they contend that the existing mechanisms under the African human rights system should first be fully exploited. Although the African human rights system may not have delivered sufficient results when it comes to PWDs, it has taken some tentative steps and has further unexplored potential. There is both a need and the potential for the regional system to play its part in advancing the rights of PWDs. In particular, the African Commission on Human and Peoples’ Rights could draw inspiration from the recent adoption of its first General Comment (on art 14(1)(d) and (e) of the Women’s Protocol) to spell out the implications of the African Charter for PWDs. Formulating a new treaty is a complex and time-consuming exercise that will further delay the effective implementation of states’ obligations. However, if the option of an African-specific treaty gains wide support, it should take the form of a protocol to the African Charter, with the African Commission as monitoring mechanism, and not as a separate treaty with a self-standing treaty monitoring body.

Interim Measures Before the Inter-American and African Human Rights Commissions: Strengths and Weaknesses

Interim measures in international human rights law may be defined as a tool, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency. Interim measures result in an immediate protection offered by the member State to the beneficiaries in compliance with the order issued by an international body. This article aims to illustrate that although interim measures in the African and the Inter-American system have been a useful legal tool to avoid (further) human rights violations in difficult situations, there are still some obstacles that may lead to the interim measures not functioning as one would wish. We begin by mentioning three aspects of interim measures that lend themselves to a comparison between the two regional systems: the admissibility requirements; the frequency of their use; and the rights and beneficiaries protected through these interim measures. Taking into account the aforementioned comparison, the merits and deficiencies of interim measures in regional human rights systems will be highlighted, and recommendations will be advanced for improving their functioning and impact.