Principles to ensure the effectiveness of international and regional systems for redress of human rights violations
The international and regional systems for the redress of human rights violations have been a real success in making the protection of human rights a reality for thousands of people. The proliferation of courts and tribunals has led to a massive (positive) body of judicial practices and procedures
It is because of their success that people from across the globe are turning to them with petitions in increasing numbers, which has led to an overload problem for some of these bodies. It is, partly, because of this success that governments across the world are considering limiting their activities and this pressure to reform appears to be increasing.
Unfortunately much of the pressure to reform them is coming from state parties who would prefer an approach which involved less “interference” into their sovereign affairs. In Europe the massive increase in the ECtHR’s caseload has led inevitably to attempts by states to reduce access and to impose the concepts of “the margin of appreciation” and “subsidiarity” as a way of pushing back. The Council of Europe has now launched a wide ranging consultation on the long term future of the Court.
There are concerns about reforms proposed within the Inter American systems affecting independence and the capacity to defend victims and state parties are considering pulling out of the system altogether.
The African Commission is constrained by state non-compliance, lack of adequate resourcing, delays and lack of clarity within the system. Only seven countries have allowed individual complaints to be brought to the African Court, which has also suffered delays in becoming operational. Its overlapping jurisdiction with the Commission has also hindered realisation of its potential.
The United Nations Treaty processes that allow individual or groups to make complaints are finding it difficult to function properly and are now being reformed.
Finally, the development of a regional mechanism for South East Asia has been long delayed and fraught with difficulties.
All of the international treaties, which established these bodies, promote the right to fair trial by an independent and impartial tribunal and the right to an effective remedy. The organization and functioning of each of these bodies should be inspired themselves by such principles and efforts should be undertaken to translate them fully into reality. However, there are no rules or standards detailing how these principles are to be applied to the various regional and international courts and existing rules are piecemeal. At the same time, the success of the existing bodies has led to overload and blockages of the systems, and to determined efforts by governments to undermine and limit these bodies (by pulling out of the systems, or pressing for changes that weaken the systems). These regional and international human right courts and tribunals are charged with often the ultimate decisions over issues of central importance to citizens, such as life and fundamental freedoms and rights.
Many NGOs, NHRIs, lawyers and academics are justifiably critical, however, both of the inadequacies of each and every one of the current systems and, of the direction of the reforms. There is therefore a need to clarify the many different theoretical assumptions that provide the basis for these criticisms and unravel the presumptions that are being made about how a “good” institution should work.
If there existed a set of basic standards developed to measure the performance of all these institutions then this could be used to encourage reform to proceed in the right direction. If those standards were adopted widely (perhaps even by the institutions themselves) then there would be some objective way of measuring the proposals from state parties for reform and exposing those states that wanted to opt out from the systems. It could also be used as a tool to encourage the adequate funding of the institutions themselves – such basic standards could provide guidance to judges, lawyers, respondent states and the public in general as to the guarantees for independent, effective and professional courts and tribunals. Hopefully this tool might also be used to further promote the mission of the institutions themselves.
One example of successful standards that have worked (at least in part) are the standards on independence, remit and powers created by NHRIs themselves but then adopted by the UN – the “Paris Principles”. There are also other substantive standards create by the UN and regional bodies which might provide ideas and models – for instance, the UN Basic Principles on the Independence of the Judiciary and the role of lawyers; the ‘Bangalore Principles of Judicial Conduct’ (which inspired later regional initiatives by judges themselves to adopt common sets of standards such as for example, those contained in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region); and the Commonwealth (Latimer House) Principles, agreed by representatives.
Obviously the creation of standards does not, in itself, lead directly to improvement in effectiveness but they might be a useful tool – after all some of the standards like the right to an effective remedy or trial within a reasonable time are part and parcel of the very treaties that these institutions espouse themselves.
The work in creating and lobbying for these standards would provide the NGOs with a focus for our efforts and a programme of action across the institutions and around the world.
The content of the principles might include ideas like:
- Easy access to the systems for appropriate cases (information, access to application forms and information about who might help applicants) – one day even legal aid?
- Simple, clear but rigorous processes for dealing with communications
- Prompt decisions through every stage of the case and prompt final judgments (time limits?)
- Open hearings but speedy possibilities for confidential settlements
- Systemic recommendations in every important judgment
- Properly thought out redress of the individual applicants
- Adequate implementation and enforcement of decisions and judgments
- Key aims for decisions and judgments including
o Development of clearer universal standards for the substantive rights over time
- Responsibilities of applicants and lawyers
o Standards for communications
o Professional rules for representation
- Responsibilities of the state parties and those that fund the institutions (which may also be the state parties)
- Appropriate involvement of civil society and litigants’ lawyers
- Guarantees for independence of the regional and international judiciaries (selection and appointment of judges, etc.)
This is potentially a big project and could involve significant resources. If the idea has any support it would be useful to consider how it might be taken forward relatively slowly at first by getting together a small group of people from each of the four regions (Africa, the Americas, Asia, Europe) to think it through more carefully. However the long term might include:
- Starting to build an alliance of academics, NGOs, lawyers, judges and civil society interested in developing a set of principles to ensure the effectiveness of international and regional systems for the protection of human rights
- Bilateral conversations with the key litigators, academics and NGOs to build support for the idea of the principles and an analysis of what improvements need to be made
- Engaging with the UN, Inter American system, African Commission and Court, ECtHR and ASEAN project
- Seminars for NGOs, system experts, academics and those engaged in running the systems to develop the text
- A larger conference/series of seminars to put together the basis of the principles
- Event to amend and agree of the ”XYZ principles”
- Finally encouraging the slow move to adoption by the institutions themselves and implementation