The global human rights protection governance system
Gómez Isa, Felipe
Hegde, Venkatachala G.
Nagore Casas, María
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This report was written as part of the FP7 research project ‘Fostering Human Rights Among European (External and Internal) Policies’ and falls under Work Package 4 ‘Protection of Human Rights: Institution and Instruments’. The report builds on the D 4.1 ‘Report on the mapping study on relevant actors in human rights protection’ which outlined institutions and instruments for the protection of human rights at the national, European Union (EU), regional and international level. As the objective of WP 4 is to assess the institutions and instruments operating to protect human rights at the international, regional and national levels, the specific task of D4.2 ‘Report on the global governance protection system’ is to further this investigation by identifying gaps, tensions and contradictions in the regional and global human rights protection governance system. In order to tackle the quantity of institutions, instruments and levels involved, the report focuses in particular on the regional level. The first part of the report deals with the European level. The contributions shine spotlights on different aspects of the complex European human rights system, with a particular focus on the EU. The second part concentrates on regional human rights systems in Africa, the Americas and Asia and highlights gaps, contradictions and tensions of human rights institutions and instruments in these regions. The third part briefly summarises the most important conclusions. The review of academic legal literature at the beginning of the report (chapter II) elaborates on the broader European context by discussing the insufficiencies and inconsistencies of and the tensions and contradictions between different human rights protection systems in Europe. Examples of this are the complicated legal relationship between the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Charter of Fundamental Rights of the European Union (CFREU) and national constitutions. Moreover, the large number of Council of Europe’s (CoE) instruments which codify diverse human rights standards lack adequate supervisory mechanisms, and the European Court of Human Rights (ECtHR) suffers from severe work overload. Concerning the human rights regime of the EU, the legal literature review discusses the fragmented EU fundamental rights framework, the subordinate role of economic, social and cultural rights and the lack of an internal EU fundamental rights monitoring mechanism. The report then (chapter III) analyses the case law of the Court of Justice of the European Communities/Union (ECJ), the ECtHR and the European Committee of Social Rights (ECSR) in two selected areas: asylum and migration and the secondary role of economic, social and cultural rights (ESCR) in EU law and possible tensions between these rights and the four fundamental (economic) freedoms. It finds that there are serious human rights gaps concerning the protection of migrants such as, e.g. difficulties for migrant children to access basic services. It also points out that ESCR, which in any event have a weak position within the EU, are further threatened by the ongoing economic crises, amounting to serious violations of these rights e.g. in Greece. The political science analysis of the EU’s legal and institutional fundamental and human rights frameworks (chapter IV) shows that tensions between the Member States and the EU are a problematic and disconcerting force when it comes to human and fundamental rights protection. The specific political system of the EU allows Member States to a certain extent to safeguard their national political FRAME interests which are in some cases at odds with the human rights values laid down in the Treaties. Other problematic issues are the lack of coherence which is observable in all EU institutions, a lack of knowledge about EU human and fundamental rights competences not only among EU citizens but also among policy makers and thus, the need for a better communication to the European public as well as the necessity of revealing and addressing political aspects, processes and responsibilities concerning human rights law and policies. The analysis further points to the need for institutional learning and adequate human rights training of EU officers, the demand for a stronger focus on conceptual and strategic human rights issues and the necessity of addressing trade-offs between human rights and other interests in EU external and internal action. In addition, an analysis of EU human rights political and legal documents (chapter V) demonstrates the lack of a comprehensive and overarching EU internal human rights policy, the uneven reflection of the concept of positive duties in EU policy documents and the fact that a majority of EU policy and legal documents refer to human rights on a very general and abstract level. The review of the outcome reports of the Universal Periodic Review of the Human Rights Council (UPR) of EU Member States (chapter VI) reveals that there is not only a lack of ratification of specific human rights instruments by EU Member States – e.g. the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families – but also a lack of, or inadequate, implementation of these instruments. Part II of the report covers regional human rights protection systems in Africa, the Americas and Asia. The African Union (chapter VII) has developed a considerable body of human rights instruments that are distinguished from other regional systems by explicitly taking into consideration all generations of rights. Some of them offer wider protection, some of them leave out key human rights issues. The most important gaps were identified in the field of implementation of these sometimes far-reaching instruments. This is not only a result of a rather weak and ineffective institutional framework, but also of the inadequate implementation of these instruments by state parties. The Inter-American Human Rights System (IAHRS) (chapter VIII) evolved on the initiative of the Organization of American States and has adopted various regional human rights instruments. The problems identified include the repeated overruling of human rights standards of the IAHRS through military jurisdiction and amnesties, evasion of and withdrawing from the jurisdiction of the Inter-American Court of Human Rights and difficulties of state parties to comply with judgments that involve measures regarding ESCR. Only recently have two international organisations in Asia started to advance regional human rights protection. The Association of Southeast Asian Nations (ASEAN) adopted the ‘ASEAN Human Rights Declaration’ in 2012, which is criticised for falling far below international human rights standards and which is equipped only with a very weak and toothless supervisory body. The South Asian Association of Regional Cooperation (SAARC) mainly relies on soft law instruments and has not established any formal institutional monitoring mechanism.