Regionalisation in International Human Rights Law

Shortly after the UN Declaration on Human Rights (UDHR) was adopted in 1948, members of the UN became divided over how the Declaration should be operationalised. The original plan was for the Declaration to be followed swiftly by a single enforceable treaty, but ideological differences between UN members meant there were disagreements, particularly over how the economic, social and cultural rights should be implemented. This led the UN General Assembly in 1952 to ask the Commission on Human Rights to “draft two Covenants on Human Rights … one to contain civil and political rights and the other to contain economic, social and cultural rights”. Protracted negotiations followed and ultimately the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights were drafted. The process took much longer than originally anticipated and the ICCPR was not adopted until 1966 and did not enter into force until 1976 [for more discussion see the UN Chapter here].

The delays in negotiating these treaties were a primary driver for the creation of the first regional system of human rights protection – the European Convention on Human Rights (ECHR), which was adopted in 1950. There was a strong desire within western Europe, emerging as it was from the horrors of the Holocaust and World War II, to operationalise the commitments in the UDHR at a much quicker pace than the UN. The ECHR was conceived as a means of ensuring that European states did not backslide on democratic freedoms into totalitarianism.  The ECHR became the first instrument to give effect and binding force to certain of the rights stated in the UDHR. The urgency is reflected in the preamble to the Convention which notes that European States had “resolved to take the first steps” toward the collective enforcement of the UDHR after the initiative had stalled on the international stage. The Europeans moved quickly to operationalise the UDHR, creating a draft Convention by early 1949, a completed treaty by November 1950 and securing a sufficient number of ratifications for the treaty to enter into force in 1953. The ECHR did not operationalise all the measures in the UDHR. The ECHR has a distinct focus on civil and political rights, with much weaker protections of economic, social and cultural rights. This comparative weakness was counteracted, in part, by the adoption of additional protocols to the Convention and significantly by the adoption of a separate treaty, the European Social Charter.

This process of regionalisation of human rights protections, which began in Europe, has been mirrored elsewhere with varying degrees of success and zeal across the world in the Americas, Africa, Arabian countries and Asia. It has been something of a double-edged sword for international human rights law, conferring both advantages and disadvantages.

On the positive side, the regionalisation of human rights protections has clearly improved the speed at which international human rights norms have been adopted and implemented when compared to the global treaties. The process of regionalisation has also helped to “localise” international human rights norms. We see more variations in the content of human rights protections in regional systems based on the specific region’s values and its distinct legal, political and cultural context. Thus, for example, we can see that post-war Europe prioritised shoring up civil and political rights in the European Convention because those rights had been so weakened during a period where totalitarianism and fascism gripped the continent. While the historical experience of exploitation through colonialism prompted the African system to develop a human rights framework with a distinctly post-colonial edge, incorporating things like a right to development in Article 22 – “All peoples shall have the right to their economic, social and cultural development”. Regionalisation has thus helped to create systems which better align with the values and needs of their specific regions than the more generic global treaties. Regionalisation has allowed some regions, for example, to go further in protecting some rights than would be possible with a treaty seeking acceptance at a wider scale.

As Mugwanya notes “Regional systems are flexible and have the ability to change as conditions around them change and sometimes do so quickly”. He suggests that proposals for change in regional systems typically meet less resistance than those of the global system where the larger number of states with different traditions make securing agreement and implementation more complicated. We can see examples of this in the European system, which has curtailed the death penalty much more than would be possible in a global treaty, changing the treaty itself twice through additional protocols (6 and 13) banning the death penalty in specific circumstances. Meanwhile, the Inter-American system has created a much stronger protection of diplomatic asylum (through Article 22(7)) than other regions have.

While the process of regionalisation has usurped the role played by the United Nations in operationalising human rights protections, the UN has grown to accept regionalisation as an integral part of the global human rights protection regime. The World Conference on Human Rights in Vienna in 1993 observed in its Vienna Declaration and Programme of Action that

At the same time, the United Nations also expressed some apparent unease at the disintegrative power that regionalisation can potentially have over human rights law observing

Thus while regionalisation has ensured flexibility, the divergences in the scope and content of different rights also create the potential to negatively impact the universality of human rights protection and result in inconsistent interpretations. We can see the framing of certain rights differs significantly between different regional systems, which could lead to disparities in protection. If we compare the right to life in the American Convention with its counterpart in the European Convention, we can note significant textual differences.

There are several differences between the two texts, but we will focus on two specific ones – when protection begins and the use of force.

On the issue of when protection begins, the American Convention stipulates that the right to life “shall be protected by law and, in general, from the moment of conception”, while the European Convention remains silent on this point. In principle, this should lead to disparities in protection, but in practice each region has arrived at a similar position. In Europe, the ECtHR has consistently held that the “question of when the right to life begins” was up to each contracting State to determine for themselves because “there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2”. Despite the textual differences, the Inter-American Court of Human Rights in Artavia Murillo v Costa Rica interpreted the American Convention in light of “the regulatory trends in international law” concluding that

The reverse situation arises with respect to the regulation of the use of force. Under the European Convention, a series of circumstances in which the use of force is permissible are specified, while the American Convention simply states no one shall be “arbitrarily” deprived of his life. Yet again they reach a similar position through interpretation, applying the same core principles. In the landmark McCann v UK case at the ECtHR, the court applied principles of legality, proportionality and absolute necessity when evaluating whether the use of force violated Article 2 ECHR (see further discussion in the chapter on the right to life). The Inter-American Court applied the exact same principles regarding the right to life, even referencing jurisprudence from the ECtHR in the process, when interpreting the right to life in different cases, such as Nadege Dorzema et al v Dominican Republic. As Cali, Madsen and Viljoen note, the connections between regional regimes “generate patterns of harmonization of human rights law interpretation and convergence despite differences in historical, textual, and institutional trajectories”. They note that different courts rely on one another to aid their interpretation of different provisions, which encourages more consistent interpretation. The African Court of Human and Peoples’ Rights, for example, relied heavily on authorities from other jurisdictions in its first case.

Another notable feature of regionalisation is the degree to which protections of human rights have become “judicialized” within regional systems. As we noted in our chapter on the UN, the UN human rights treaties are overseen by treaty bodies. We will use the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, as a representative example of these bodies. The Human Rights Committee occupies a quasi-judicial space in international law. It receives “individual communications” from people claiming to be victims of a violation of the terms of the treaty. The Committee then issues “decisions” on these communications, which are not legally binding on the State parties. The Human Rights Committee is staffed by experts, not judges, and in order for the Committee to have the competence to receive individual complaints, the State party concerned must have recognized the Committee’s competence by ratifying the Optional Protocol.

By contrast, the regional systems have come to be overseen, to varying degrees, by courts. The European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human Rights and Peoples’ Rights are each charged with interpreting and applying their respective treaties. These courts are staffed by judges and in resolving complaints of human rights violations, the judgments of these courts are legally binding in international law. While judicialization is a feature of the regional system, access to those courts actually varies very widely between regions. In the European system, the jurisdiction of the court to hear individual cases was originally optional (see article 46 of the original Convention). It became mandatory since 1998 with the adoption of Protocol 11. The Inter-American Court of Human Rights lacks an analogous right to individual petition. Only contracting States to the American Convention on Human Rights and the Inter-American Commission on Human Rights may submit a case to the Inter-American Court of Human Rights (see Article 61 of the American Convention on Human Rights). The situation in the African system is further complicated by different factors. An additional protocol was added to the African Charter on Human and Peoples’ Rights establishing the African Court on Human Rights and Peoples’ Rights. It entered into force in 2004. At the time of writing, only 34 of the 55 member states of the African Union have ratified the protocol on the Court. Fewer still have issued the declaration required by the protocol for the court to receive petitions from individuals or NGOs related to the countries. Twelve states have issued such declarations, although 5 have subsequently been withdrawn.

The process of regionalisation has created a more compartmentalised human rights system across the world, which may not be a bad thing. While it has detracted from the centrality of the UN and its authority on human rights issues, the process of regionalisation has also helped to localise human rights and to better adapt them to the culture and sensibilities of different regions. While regionalisation does have the potential to undermine the universality of human rights, in practice this is often counteracted by the cross-referencing of judgments between different regional bodies, helping to create greater integration and consistency in interpretations across regions. In the following sections we will explore the regional systems in Europe, the Americas and Africa to better understand how these systems operate.

European System

The European Convention on Human Rights and the European Court of Human Rights (ECtHR) constitute the core of the European human rights framework. Although initially similar in structure to the current Inter-American system, the European system has been modified over time and has arguably developed into the most comprehensive regional human rights regime in the world today.

The Council of Europe

Institutions and Structure 

The Council of Europe (CoE) was established in the immediate aftermath of World War II. It is made up of several institutions. The Secretariat is responsible for strategic planning and direction of the Council’s work programme and budget and day-to-day operations.

The Parliamentary Assembly of the Council of Europe (PACE) has members of parliament from across the 46 member states of the Council of Europe providing a forum for debate and examination of contemporary issues. It plays an important role in electing judges to the European Court of Human Rights. In accordance with Article 22 of the ECHR, each member state submits a list of three candidates for its judge, and PACE votes to elect one judge per country for a single nine-year term. Once elected, judges serve as independent individuals, rather than as national delegates, within the ECtHR. PACE also elects  the Human Rights Commissioner, whose role is to promote awareness of and respect for human rights across Council of Europe states.

The Committee of Ministers (CoM) is the Council’s main decision making body. It is comprised of foreign affairs ministers from across the member states, though in practice permanent diplomatic representatives in Strasbourg usually fill the role. Its primary responsibilities include establishing the CoE’s policy framework, approving programs and budgets, and adopting new treaties, amendments, and additional protocols to the ECHR. It plays a critical role in monitoring compliance with the judgments of the European Court of Human Rights. When the ECtHR finds a member state in violation of the ECHR, that state is required, under Article 46 of the ECHR, to comply with the judgment. The CoM reviews state compliance, specifically by monitoring the implementation of legislative, administrative, or judicial changes aimed at preventing future violations. Additionally, the CoM may advocate for necessary measures and apply diplomatic pressure as needed.

In addition to these organs, the Council of Europe hosts an array of other bodies adjacent to it. The European Commission for Democracy through Law (aka the Venice Commission) is an influential expert advisory body to the Council of Europe on matters related to democracy and the rule of law. While the Congress of Local and Regional Authorities and the Conference of International Non-Governmental Organizations, which provide advice on local and regional issues and facilitate civil society contributions to the CoE’s organs, are also significant.

Aims

As outlined in its Statute, the CoE aims to foster greater unity among its members to safeguard and promote the ideals and principles that constitute their common heritage, while also facilitating their economic and social advancement. The European Union has taken on a significant role in economic and political integration among its member states since the founding of the CoE. Nonetheless, the Council of Europe continues to play an important role within its members states in upholding democracy, human rights and the rule of law. It has broader membership than the EU, incorporating members like Turkey and Ukraine, providing a platform for wider engagement on issues of shared importance. It has assumed an important role in advocating for freedom of expression, minority rights, issues surrounding the rule of law among its members. It has also come to serve as a platform for the development of international law within Europe on a massive range of subjects ranging from mutual legal assistance to human trafficking.

Membership 

The CoE comprises forty-six member states, including states in Eastern Europe, the Caucasus, Turkey and Ukraine (Russia is not a member anymore). Alongside these members there are a number of states with observer status at the CoE including Mexico, Canada and the Holy See. While the founding members of the CoE were predominantly western European states, they were swiftly joined by Turkey and membership has expanded significantly in Eastern Europe, particularly following the collapse of Yugoslavia and the Soviet Union.

European Human Rights Instruments 

European Convention on Human Rights

The European Convention on Human Rights was drafted in 1950 and entered into force in 1953. This multilateral treaty is divided in three sections. Section I lists the rights and freedoms guaranteed by the Convention (Articles 2-18), Section II establishes the European Court of Human Rights and its procedures (Articles 19-51) and Section III contains the miscellaneous provisions. In brief, the ECHR sets out both the substantive rights to be protected and the mechanism for enforcement. Influenced by the Universal Declaration of Human Rights, referred in its preamble, the Convention recognizes key civil and political rights. The set of rights includes:

• absolute rights which cannot be derogated from under any circumstance even in times of emergency (Article 15) such as: the prohibition of torture, inhuman and degrading treatment or punishment (Article 3), slavery and forced labour (Article 4) and the prohibition of punishment without law (Article 7);
• rights that may be derogated from within limits, such as the right to liberty and security (Article 5) and the right to a fair trial (Article 6);
• qualified rights which can be interfered with in limited circumstances such as: the right to respect for private and family life (Article 8), the freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10) and freedom of assembly and association (Article 11).

Pursuant to Article 1 of the ECHR, contracting parties are obliged ‘to secure to everyone within their jurisdiction’ the rights enshrined in Section I. This entails both negative and positive obligations as States must not only refrain from interfering with the enjoyment of the right concerned but they must also take all the appropriate steps to create the legal, administrative and social architecture to protect those rights (see Chapter on The Scope of Obligations in International Human Rights Law).

The ECHR is the product of its time, focusing almost exclusively focused on civil and political rights. It has since been extended to include other rights through the adoption of additional protocols. Protocol 1 adds a mix of three rights – the right to property, the right to education and the right to free elections. Protocol 4 and Protocol 7 expand freedoms and procedural safeguards mainly concerning criminal justice matters and the scope of the right to a fair trial. These additional protocols seek to close the gap between the ECHR and other similar (though more recent) international treaties, such as the International Covenant on Civil and Political Rights.

Crucially – and in contrast to the Inter-American and African regional systems – the CoE has taken steps to abolish the death penalty through the adoption of Protocol 6, which abolished the death penalty save in time of war and two decades later through Protocol 13 which precluded using the death penalty in all circumstances. Protocol 12 introduced a general prohibition of discrimination going further than Article 14, which only applies in relation to the rights granted in the ECHR (for further detail on Article 14 see R. O’Connell). There are currently requests for the CoE to adopt an additional protocol to protect the right to a clean, healthy and sustainable environment, reflecting the growing case-law of the Court on environmental and climate change issues and concerns on these matters (see Chapter on Human Rights and the Environment). While these protocols have closed some gaps in the ECHR, they have also created disparities in the levels of protection across European states, as the protocols require separate ratification and only some of the CoE member states have ratified all of them (for status of ratification here).

Figure 1: ECHR substantive rights at a glance

Other Council of Europe Human Rights Treaties

The European Social Charter was adopted by the CoE in 1961 and is overseen by the European Committee of Social Rights (ECSR). This treaty aimed to compensate for the lack of protection of economic, social and cultural rights in the ECHR, with a strong emphasis on the right to work. However, the absence of a judicial institution to oversee enforcement of the Charter or a right to individual petition akin to that in the ECHR mean that economic, social and cultural rights continue to hold a lesser status within the European human rights system.

Other treaties followed, notably, in 1987 the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) supervised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. As explained by Evans, it seeks to prevent torture or inhuman and degrading treatment for those in detention by providing an enforcement regime based on unannounced visits. The ECPT has been signed and ratified by every member state and the relevant Committee recommendations form a corpus of standards in the field. The European Charter for Regional or Minority languages (1992) and the Framework Convention for the Protection of National Minorities (1995), whose implementation is monitored by the CoM, represent further important instruments.

European Court of Human Rights

The ECtHR is charged with interpreting and applying the ECHR. National authorities serve as the primary guarantors of Convention rights, but individual applicants (and, less frequently, states) may require the ECtHR to exercise its supervisory role to determine state responsibility for violations of the ECHR. At the time of writing (January 2026) the Court has around 640 registry staff which comprises administrative staff and lawyers and since its inception, it has processed over 36,800 applications and issued over 10,829 judgments.

Procedural Innovations

The ECHR originally created a two‐tiered supervision mechanism, resembling the current structure of the Inter-American system discussed below. In this framework, the European Commission of Human Rights (EComHR) served as the initial point of contact for both state and individual applications. The EComHR was responsible for examining admissibility criteria and assessing the merits of cases. The European Court of Human Rights (ECtHR) assumed a secondary role. Working on a part-time basis, the ECtHR could only examine cases and issue legally binding judgments under specific conditions: when a state accepted its jurisdiction, which was optional, and only upon referral by states or the EComHR, not by individuals directly. This system was often characterized as ‘a convention à la carte,’ with major powers, notably the United Kingdom, France, and Italy, initially refusing to accept the Court’s compulsory jurisdiction or the right of individuals to petition. Consequently, in its early days the system had a limited impact and the Court adjudicated relatively few cases.

The ECHR’s enforcement mechanisms changed significantly in the early 90s with the adoption of Protocol 9 which introduced a direct right to individual petition before the ECtHR, although it was an optional mechanism before this point. Under this protocol if the EComHR prepared a report on the application, an individual could refer the case to the ECtHR. More significant changes occurred when Protocol 11 entered into force in 1998 which radically reformed the original architecture. In particular, Protocol 11 abolished the EComHR and made the ECtHR a single, full-time court. Signatories of the ECHR had to accept the Court’s compulsory jurisdiction and the right to individual petition. The latter was reflected in what is now Article 34 of the Convention. Along with this institutional overhaul, the number of member states (and applications) grew dramatically. Romania and Ukraine became, and continue to be along with Italy and Turkey, leading subjects of human rights litigation before the ECtHR (for statistics see here). With the expansion of membership, the Court’s workload increased significantly. In 2011, the backlog of cases pending before the ECtHR reached 151,000 applications. The court struggled to manage the growing number of applications, leading Helfer to observe it had become ‘a victim of its own success’.

Further reforms were adopted to increase efficiency. Protocol 14 introduced important procedural changes, allowing the court to sit in various configurations depending on the importance of the case: a) a ‘single-judge formation’ comprising a judge and non-judicial Rapporteur from the Registry; b) a three-judge committee; c) a seven-judge Chamber and d) a seventeen-judge Grand Chamber. The single-judge formation disposes of clearly inadmissible cases (‘where such a decision can be taken without further examination’). The other formations are allowed to consider both admissibility and the merits of a case. The seventeen-judge Grand Chamber hears only cases of exceptional importance. Its role is to develop and ensure the consistency of the ECtHR jurisprudence in the interpretation and application of the ECHR (Article 30 ECHR).

Protocol 14 also added a new inadmissibility criterion – individual petitions can be ruled inadmissible when ‘the applicant has not suffered a significant disadvantage’ provided that the issue has been ‘duly considered’ by a domestic tribunal and there are no other human rights reasons for admitting it (Article 35(3)(b) ECHR) (for further detail see Vogiatzis).

The court has also adopted other procedural innovations. A ‘priority policy’ allows the Court to consider the importance and urgency of the issues presented to it and respond accordingly, prioritising urgent applications e.g. where there is a risk to life and deprioritising manifestly inadmissible applications. The Court also adopted a so-called “pilot-judgment procedure” to allow the ECtHR to identify applications concerning ‘an underlying systemic problem’, i.e. when they relate to repetitive violations stemming from the same source in order to assist the concerned state in finding appropriate solutions.

Protocol 15 introduced other changes, it reduced the time-limit within which applications to the Court must be made from the last decision by the national legal system from six to four months and removed the ‘duly considered’ requirement in the ‘significant disadvantage’ criterion. Additionally, it incorporated in the preamble of the ECHR a reference to subsidiarity, the margin of appreciation and the ECtHR supervisory jurisdiction. Some commentators have observed that the Court has entered an ‘age of subsidiary’ characterised by increased deference to states.

These reforms gave the ECtHR greater ability to triage cases, disposing quickly of cases lacking arguable merit or those repetitive of settled law, while preserving resources for important disputes. The Court’s backlog has since 2011 reduced to 60,350 applications. While these changes have improved the Court’s efficiency in focusing on more meritorious cases, they also come with notable drawbacks. On one hand, the Court’s authority to dismiss manifestly ill-founded applications at an early stage carries the risk of overlooking potentially meritorious cases. The single-judge formation applies limited scrutiny, which may prevent some valid cases from being examined. On the other hand, while filtering out the more straightforward cases, the remaining applications are inevitably more complex and time-consuming to address, meaning the rest of the backlog will take much longer to resolve.

Jurisdiction

The Court primarily handles two types of contentious cases: inter-state cases and individual cases. In the inter-state process, a contracting state files a complaint against another contracting state for alleged violations of the ECHR. These cases are comparatively rare with around two dozen coming before the court since its creation and they usually involve very contentious issues, such as the Armenia v Azerbaijan case relating to the armed dispute around the Nagorno-Karabakh region or the Ukraine v Russia, Ukraine and the Netherlands v Russia relating to the war in Ukraine. The majority of the ECtHR’s workload consists of individual applications. In this context, the applicant is an individual who claims to be a victim of a violation of the ECHR committed by a contracting state.

As noted in the previous section, the Court can pass pilot judgments to address large-scale, systematic violations of human rights that result in numerous repetitive cases. The first pilot judgment was issued in 2004 in Broniowski v. Poland. Since then, the Court has further refined and expanded this procedure, outlining its key components in Rule 61 of the Rules of Court (see Degener for background). The procedure promotes a ‘dialogical relation’ between the Court and the contracting state whereby the Court not only adjudicates the case but also identifies the nature of the underlying structural or systemic issues and provides the contracting state with guidance on the necessary remedial measures (e.g. legislative amendments, compensation etc.) to address them. This includes establishing flexible time limits and follow-ups to monitor the state’s execution of these measures. According to Degener, the majority of pilot judgments have been implemented successfully and promptly, with the full cooperation of respondent states, thereby yielding positive outcomes and establishing an effective tool for addressing cases involving systemic issues and repetitive caseloads.

The Court can also issue advisory opinions. Under Article 47, the Committee of Ministers can request an advisory opinion on legal questions concerning the interpretation of the Convention, though not on questions relating to the content or scope of the rights or freedoms. This jurisdiction is seldom used. Following the adoption of Protocol 16, the highest courts and tribunals designated by a contracting party, in relation to ongoing litigation, ‘may request the [Grand Chamber] to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention’. This additional mechanism, as noted by Lemmens, is the result of a procedural reform aimed at reducing the ECtHR’s backlog. Advisory opinions are intended to enhance cooperation between the ECtHR and national courts and to serve as a preventative measure to avoid future violations (see Lemmens). Although advisory opinions are not legally binding like judgments, they are nonetheless considered authoritative statements from the ECtHR. In contrast to its counterpart, the Inter-American Court, which regularly exercises its non-contentious jurisdiction (see section on Inter-American system below), the ECtHR has issued only seven advisory opinions. Furthermore, only a few states have ratified protocol 16 at this point, thereby limiting the potential of this mechanism.

Figure 2: timeline of ECtHR main structural changes

Evolutive Interpretation

The ECtHR has played a relevant role in extending the scope of the ECHR, thus shaping human rights law across Europe and beyond. On the basis of the ‘living instrument doctrine’ according to which the ECHR must be interpreted ‘in light of present-day conditions’, the ECHR has evolved to address contemporary realities by progressively expanding the scope of its provisions. This comprises judgments that gave a broad reading of the right to life, in particular in respect of positive obligations (e.g. McCann v United Kingdom, Osman v United Kingdom), the prohibition of torture and other ill-treatments (e.g. El-Masri v the former Yugoslav Republic of Macedonia, Soering v United Kingdom), including sexual violence (e.g. Volodina v Russia, O’Keeffe v Ireland, Opuz v Turkey), immigration (e.g. M.S.S. v Belgium and Greece, Sufi and Elmi v United Kingdom, Ilias and Ahmed v. Hungary, Hirsi Jamaa and Others v. Italy) and the right to a fair trial (e.g. Niort v. Italy, Mzhavanadze and Rukhadze v. Georgia) including the right to access to justice (e.g. Zubac v Croatia).

In its jurisprudence, the ECtHR has, albeit not always with complete consistency, reinforced the rights of minorities and individuals facing discrimination, including those based on sexual orientation and gender identity (e.g. Goodwin v United Kingdom, Identoba and others v Georgia). It has also extended the scope of the right to respect for family and private life alongside the right to life to address environmental issues (e.g. Öneryıldız v. Turkey, Kolyadenko and Others v. Russia, Budayeva and Others v. Russia, Pavlov and Others v. Russia, Locascia and Others v. Italy, Canavacciuolo and Others v Italy) and more recently climate change (e.g. Verein KlimaSeniorinnen Schweiz and Others v. Switzerland), by also specifying the obligations of contracting states under the Convention in light of other international obligations, in particular environmental law and climate treaties (see Chapter on Human Rights and the Environment).

State responses to the ECtHR’s jurisprudence have been ambivalent. While the Court has received commendation for its work, criticism has also been directed at its judgments. Notably, these criticisms have emerged from both ends of the spectrum: accusations of excessive conservatism and judicial overreach. In cases involving highly sensitive national interests related to moral values or local sentiments, the Court has seemingly prioritized national sovereignty over rigorous rights protection (e.g. Leyla Sahin v. Turkey, Lautsi v. Italy), leading to accusations of being overly accommodating and ‘conservative’. Conversely, some cases have been perceived as an overextension of the ECHR’s mandate or as the Court exceeding its role as a supervisory body, particularly in relation to immigration and climate change, this, despite the fact that, as noted by Helfer and Voeten, recent rulings show a cautious approach to such matters, clearly exacerbated by the criticism and political backlash from national governments.

The ECtHR and its Convention have profoundly impacted the development of both international and national human rights law. As interpreted by the ECtHR and national courts, the ECHR has gained increasing significance within the context of the European Union (EU). Adherence with human rights standards is one of the criteria for EU membership. The Charter of Fundamental Rights, now integrated in the Lisbon Treaty, is based on the ECHR. At the national level, the ECHR has been directly incorporated into the legal systems of its Member States and is consistently applied or referenced by national courts. The jurisprudence of the ECtHR has influenced various rights and has prompted states to undertake a range of legislative and institutional reforms. Additionally, regional and international human rights bodies, already engaged in transnational judicial collaboration, frequently refer to the jurisprudence of the ECtHR.

Inter-American System

Structurally, the Inter-American system of Human Rights protection follows a similar model to the European system. The European Convention on Human Rights and its oversight machinery, the now defunct European Commission on Human Rights and European Court of Human Rights, was developed within a regional body, the Council of Europe. Similarly, the American Convention on Human Rights and its oversight machinery, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, were developed within the Organization of American States.

The Organization of American States (OAS)

The Organization of American States (OAS) was created in 1948 as a successor to the pan-American Union of States, which was meant to promote cooperation between Latin American States and the United States of America.

The OAS was founded in 1948 with the adoption of the Charter of the OAS, although it did not enter into force until 1951. The OAS describes itself in its 2014 Strategic Vision as the “hemispheric political forum inclusive of all the countries of the Americas, committed to the strengthening of democracy, the promotion and protection of human rights, the advancement of integral development, and the fostering of multidimensional security, all equal and interdependent, with justice and social inclusion, for the benefit of the peoples of the Americas”.

Institutions and Structure

Article 53 of the OAS Charter sets out the different organs of the OAS. Its main institutions are a General Assembly, a Permanent Council, a General Secretariat alongside legally focused institutions, specifically the Inter-American Commission on Human Rights (which will be discussed in depth below) and the Inter-American Juridical Committee, which acts as an advisory panel to the OAS on juridical matters.

The General Assembly is the policymaking organ of the OAS comprised of delegates from each member state. It holds annual meetings where it passes resolutions and declarations on various matters and conducts elections. The Permanent Council is the primary forum for political dialogue and strategic decision making. It handles the day-to-day business of the OAS, reporting to the General Assembly. The General Secretariat is led by the Secretary General of the OAS, who is elected for 5-year terms and acts as the organisation’s legal representative. Finally, the OAS also hosts specialised organisations e.g. the Pan American Health Organization (PAHO) and specialised inter-governmental conferences to address technical matters or to develop specific aspects of inter-American cooperation. There is also scope to convene a meeting of Consultation of Ministers of Foreign Affairs to address urgent problems.

Aims

The organisation’s primary aims are set out in the OAS Charter and the Strategic Vision. The organisation is built around 4 pillars – strengthening democracy, promoting and protecting human rights, advancing integral development, and fostering multidimensional security. For our present purposes we will focus predominantly on its role in human rights protection, but this can intersect in different ways with the other aims.

Development

The OAS role in promoting regional development engages a number of different human rights. The OAS has established the Inter-American Council for Integral Development (CIDI) to drive its regional development goals. In its strategic plan, adopted in 2023, CIDI set out several aims which clearly overlap with economic, social and cultural rights, notably enhancing education across the Americas and promoting decent, dignified, and productive work for all.

These objectives intersect with rights set out in both the ACHR and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. Under Article 26 of the ACHR,

While under the Additional Protocol, more commonly known as the San Salvador Protocol, the right to work and just, equitable, and satisfactory conditions of work are protected in Articles 6 and 7, alongside the right to education in Article 13.

We noted previously that economic social and cultural rights have been plagued with questions about their justiciability (see Chapter on Socio-Economic Rights). In spite of this global trend, the IACtHR has taken on a strong role in enforcing economic, social and cultural rights, adopting what Contesse argues is “a remarkably expansive interpretation of its powers” which overlooks several of the limitations on justiciability in both the ACHR and the San Salvador Protocol. In Lagos del Campo v Peru, for example, the IACtHR noted the interdependence (see Chapter on Core Principles of International Human Rights Law) of civil and political and economic, social and cultural rights and, referring to the ACHR, asserted that it had “full jurisdiction over all its articles and provisions”. It went on to claim it had competence to hear and decide disputes relating to Article 26 and find a distinct violation of Article 26. In this instance, the IACtHR held Peru responsible for failing to adopt adequate measures to protect the right to work of a trade union representative. This trend has continued in other cases, such as Poblete Vilches et al. v Chile, where the IACtHR identified a right to healthcare predicated on Article 26 and the San Salvador Protocol, despite the fact that Chile had not even ratified the San Salvador protocol and several other cases (e.g.San Miguel Sosa et al. v Venezuela and Gonzales Lluy et al. v Ecuador). While the IACtHR’s approach has elicited criticism that it is exceeding its jurisdiction (see for example the separate opinion of Judge Humbert Antonio Sierra Porto) its approach is at least consistent with the over-arching aims of the OAS on regional development.

Democracy

Vasquez notes that references to democracy are littered throughout the OAS Charter and the ACHR. In 2024, Guatemala drew the links between democracy in human rights into sharper focus by making a request for an Advisory Opinion from the IACtHR asking

The Advisory Opinion is still pending at the time of writing, but it has elicited contrasting academic opinions, with Escobar suggesting “it is difficult to establish a human right to democracy based on the current state of international law”, while Vasquez struck a more optimistic approach. There is certainly some support for the idea within the Inter-American system.

In 2001, the General Assembly of the OAS consolidated its approach to human rights and democracy when it adopted the Inter-American Democratic Charter, which established that the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it. The IACtHR has since referenced the Charter in its jurisprudence. In San Miguel Sosa et al v. Venezuela the IACtHR specifically noted the Charter’s importance in reflecting the OAS Member States’ interpretation and understanding of the provisions on democracy in the OAS Charter and the ACHR. In other words, it reflects opinio juris on the linkage between democracy and human rights. More recently, in an Advisory Opinion requested by Colombia on presidential re-election issued by the IACtHR in 2021, the IACtHR noted

The IACtHR alludes here to an obligation between the State parties to ensure other states in the region continue to adhere to democratic principles. We can expect that exact nature of these obligations will be further explained by the IACtHR in the forthcoming Advisory Opinion Guatemala has requested, but it is nonetheless clear that the IACtHR and the OAS more broadly has gone further than other regional bodies in exploring the links between democracy and human rights and in particular the obligations states have to protect it.

Membership

The membership of the OAS has changed over time. There were originally 21 member states, but as countries gained independence throughout the decolonisation period from the 1950s onwards, the membership grew to 35 members. Recently the withdrawal of Venezuela from the organization in 2019 and Nicaragua in 2023 has reduced its membership. The case of Venezuelan withdrawal from the American Convention on Human Rights has become an interesting and contentious issue in the Inter-American system. Venezuela initially ratified the ACHR in August 1977, but denounced the ACHR in 2012. However, the situation was later complicated by the political situation in Venezuela and the disputed outcome of elections between Nicolas Maduro and Juan Guaido. After this election, Juan Guaido claimed to be the lawfully elected leader of Venezuela and sent an instrument of accession to the OAS in 2019, to retroactively restore the Inter-American Court’s jurisdiction over Venezuela.

In 2025, the Inter-American Court passed a judgment on the case of Chirinos Salamanca and Others v Venezuela concerning the unlawful detention of police officers in which it had to rule on whether Guaido’s attempt to restore the jurisdiction was valid. The judgment offers a fascinating insight into the Inter-American Court’s understanding of the nature and function of the ACHR. Chirinos Salamanca drew the Court into the potentially dangerous territory of adjudicating on the legitimacy of the Venezuelan government. However as Savino notes, the Court sidestepped this issue and anchored its reasoning in the continuity of obligations under international human rights law. There are clearly echoes of its approach to reservations in Advisory Opinion on Reservations OC-2/82 discussed in the Chapter on The Scope of Obligations in International Human Rights Law here.

The court appealed to the principles that govern the Inter-American system, notably the requirement for effectiveness and the pro persona principle set out in Article 29(b) of the ACHR. This interpretive principle has been used by the Inter-American Court since the 1985 and in Chirinos Salamanca they noted it requires that preference be given to the interpretation that ensures the maximum effectiveness of rights and the real protection of the rights they recognize. In applying these principles, the Court noted the ACHR is not a “mere transactional inter-State agreement” but a body of law that functions as “an external anchor of legality” in the face of deterioration of the rule of law. The court thus emphasised the importance of the continuity of the obligations ruling that the Convention has been in force in Venezuela since the initial ratification, effectively overlooking the 2012 denunciation. The judgment has elicited criticism for blurring the rules on authority and non-retroactivity. Nonetheless, as we will see further below, it is typical of the court’s broader approach to interpreting the law and its mandate, which can be viewed either as bold and expansive or excessively activist depending on your perspective.

American Human Rights Instruments

American Declaration on Human Rights

In a similar way to the United Nations, the Inter-American system began by adopting a non-binding declaration on human rights. In fact, the American Declaration on the Rights and Duties of Man was adopted before the UN Declaration in April 1948, with the UN Declaration adopted in December the same year. As such, the American Declaration is the first international human rights instrument.

We noted above that there were serious disagreements within the United Nations concerning how human rights should be operationalised. A similar issue emerged within the OAS, with the Declaration conceived as “the initial system of protection” in the “present social and juridical conditions”. The members expressed the desire to “increasingly strengthen that system as conditions become more favorable”. Ultimately the OAS adopted a binding treaty, the American Convention on Human Rights, in 1969. However, the status of Declaration has been the subject of ongoing debate.

One of the curiosities of international human rights law is that it often involves States agreeing to protect rights, which they are already obliged to protect under their domestic constitutional law, in a weaker, less binding format e.g. a Declaration in international law. As the UN treaty office observes, the term Declaration “is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations”. However, that is not the end of the story. In practice, we can often see the status of declarations change over time. One way in which this can occur is by the declaration coming to hold the status of customary international law. Many parts of the UDHR, for example, have attained this status over time. As such, the status of an instrument in international law is not set in stone but can evolve and change over time.

The Inter-American Commission on Human Rights maintains that the American Declaration was incorporated into the OAS Charter when it was amended by the Protocol of Buenos Aires in 1967. At that point, the Inter-American Commission on Human Rights became a principal organ of the OAS and the American Declaration “acquired binding force”. Experts like Christina Cerna have described this position as “a legal fiction” and it has been opposed by OAS members, such as the USA.

The Inter-American Court of Human Rights considered the status of the American Declaration of Human Rights in an advisory opinion from 1989. The Colombian government asked the Court for an advisory opinion on whether the Court could issue advisory opinions regarding the interpretation of the American Declaration. Several contracting states expressed the view that because it was not a treaty, it could not be interpreted by the Inter-American Court. The USA, for example, counselled the Court not to “impose legal obligations on states through a process of “reinterpretation” or “inference” from a non-binding statement of principles”. Nonetheless, the Court considered that the Declaration had to be viewed in the context of “the Inter-American system of today” and “the evolution” the system has undergone since the Declaration was adopted. It noted that the Declaration was “a source of international obligations related to the Charter” of the OAS and observed that just because the Declaration “is not a treaty does not, then, lead to the conclusion that it does not have legal effect, nor that the Court lacks the power to interpret it”. The Court therefore held that it was competent to render advisory opinions on the Declaration.

The status of the Declaration is more than an academic curiosity because there are differences between the signatories to the American Declaration and the states that have ratified the American Convention on Human Rights. More states have signed the Declaration, than have ratified the Convention, with the USA, Canada and several Caribbean nations not parties to the Convention. The Inter-American Commission continues to apply the norms of the Declaration to the countries that have not acceded the Convention.

The American Convention on Human Rights

The OAS adopted a legally binding human rights treaty in 1969 with the American Convention on Human Rights (ACHR). It entered into force in 1978 and has 35 state parties. The Convention, like the European Convention on Human Rights, focuses heavily on civil and political rights, though the range of rights protected in the ACHR is broader than the ECHR. The American Convention is unusual in providing oddly specific detailed protections for some things, such a compensation for miscarriages of justice (art. 10 and a right to reply for the subjects of injurious statements (art. 14), while offering very vague and general protections for other areas. Thus, for example, the massive area of children’s rights, which is subject to an entire separate treaty in the UN, is covered by a single article (19) stating “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state”. The entire category of economic, social and cultural rights is given a very similar treatment in Article 26, which states

While the Protocol of Buenos Aires revised and supplemented the OAS charter in 1970, the Charter is hardly a detailed exposition of economic, social and cultural rights. It sets out some very basic goals in Article 31 that correspond with some ESC rights and offers some more detailed provisions on work (Article 43) and education (Articles 45-49). These vague and limited commitments were supplemented by a much more comprehensive body of economic, social and cultural rights in an additional protocol to the ACHR added in 1988 known as the Protocol of San Salvador. It has only been ratified by 18 of the OAS states at the time of writing (June 2026). The Convention established the Inter-American Court of Human Rights as an authoritative body to interpret and apply the Convention. Only 20 of the 35 OAS states have accepted the court’s contentious jurisdiction to receive petitions complaining of human rights violations (Article 62).

The Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights was created in 1959 by a resolution of ministers of foreign affairs of OAS States. The Commission is based in Washington DC in the United States of America and sits on a part-time basis. The Commission consists of 7 members, each appointed for a four-year term. They can be re-elected to a second term and they must be nationals of an OAS state.

According to Article 106 of the OAS Charter, the principal function of the Inter-American Commission “shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters”.

From its earliest days, the Commission has conducted visits to contracting states to observe the human rights situation on the ground. It regularly produces country and thematic reports following fact finding missions to different states. Since the early 90s, the Commission has created special thematic rapporteurships to focus on different groups or themes such as the rights of indigenous peoples and freedom of expression. These rapporteurs are akin to regional versions of the UN Special Procedures (discussed in the Chapter on The UN System of International Human Rights Protection).

Perhaps its most interesting and impactful role is in individual complaints. The Commission was authorised to hear complaints of specific human rights violations against contracting states in 1965. Every person, group of persons, or non-governmental entity legally recognized in one or more OAS Member States can submit a petition to the Commission alleging a violation of a right recognized in the American Convention, the American Declaration and a range of other human rights instruments (see art 23 of Rules of Procedure).

The Commission’s role differs depending on whether the party has ratified the ACHR. Where the State has not ratified it, a violation of the rights contained in the American Declaration can be alleged. The Commission will analyse the petition to determine the international responsibility of the state involved. Where the state has ratified the American Convention, the Commission screens the petition for admissibility and if it is admissible, begins evaluating the case. In the first instance, it seeks a friendly settlement between parties (art 48 ACHR). If it cannot, the Commission prepares a report with its findings concerning the case and recommendations (arts 50-51 ACHR). If the Commission considers that the State has not complied with the recommendations it has made, it shall refer the case to the Inter-American Court (art 45 Rules of Procedure). The Commission also has the facility to receive inter-state cases (art 45 ACHR), though in practice these are exceedingly rare.

Inter-American Court of Human Rights

With the entry into force of the ACHR, the OAS members created an Inter-American Court of Human Rights to hear cases and interpret the Convention. The Court is comprised of 7 judges who must be from the country that nominates them (art 52). There are no corresponding nationality requirements at the ECtHR where smaller states, like Andorra and San Marino, often appoint judges from larger countries. IACtHR judges are appointed for a period of 6 years and can be re-elected once. The court is based in San Jose, Costa Rica, but it can also sit on the territory of any member state with their consent. In the following sections, we will try to identify some of the features that set the Inter-American system apart from other regional systems, including the IACtHR’s approach to standing, its expansive interpretation of its material jurisdiction, the creative interpretation of the law it has followed to extend protection to indigenous groups, along with its use of advisory opinion jurisdiction to progressively develop the law.

Standing

As noted above, any person or group of persons, or any non-governmental entity legally recognized in one or more member states can petition the Commission with complaints of a violation, but access to the Court is different. Individual applicants do not have direct access to the Inter-American Court, as applicants do at the ECtHR. Instead, individual applications must run through the Commission in the first place who will try to reach a settlement between the parties. At the IACtHR, only the parties to the Convention and the Inter-American Commission have the right to submit a case to the court (Article 61 ACHR). If the Commission fails to reach a settlement, it will prepare a report on the case and submit it to the Court provided that the State in question has accepted the jurisdiction of the court under Article 62. The Commission therefore acts as a kind of intermediary between individual complainants and the court. While individuals can assist the Commission in proceedings before the Court, the Commission is ultimately responsible for presenting the case.

Article 44 of the ACHR differs from the corresponding provision in the European Convention on Human Rights (Article 34). Under the European Convention, the Court may receive applications from any person, NGO or group of individuals “claiming to be the victim” of a violation. Article 44, by contrast, allows individuals, NGOs and groups to lodge petitions, but there is no express requirement for them to be victims. As Aceves notes, the Inter-American bodies provide “more liberal locus standi requirements than either the U.N. Human Rights Committee or the European Court”. While the Inter-American bodies do not accept actio popularis petitions, which are taken in the public interest or abstract petitions not linked to a specific problem (see Gonzalez v Costa Rica at [28]), they accept several forms of group litigation. As Soley notes, this has meant that NGOs and civil society organisations have had a much more prominent role in the IA system than other human rights systems. The actions of civil society organisations have allowed vulnerable populations to bring claims to the Inter-American bodies where the cost and duration of the proceedings would have made this almost impossible for the groups concerned. The acceptance of group litigation is also more efficient and reduces the risk of reprisals from the state for bringing the case to a supra-national body because the petition is not linked to a specific individual.

Material Jurisdiction

The Court’s material jurisdiction covers “all matters relating to the interpretation and application” of the American Convention (article 62(1), but that is not the entirety of its jurisdiction. While the ECtHR’s jurisdiction only extends to interpreting and applying the Convention and its protocols, the Inter-American Court’s jurisdiction is much broader. The Court took the opportunity to explain the scope of its material jurisdiction in the case of Gonzalez v Mexico. In that case, Mexico argued that the Inter-American Court did not have jurisdiction to hear complaints regarding violations of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará). It argued that each Inter-American treaty required a specific declaration granting jurisdiction to the Court as this was required by the American Convention itself (Article 62). The Court disagreed. It held that there were three categories of treaties in the Inter-American system

1. treaties that make no reference to the processing of individual petitions by the Court (e.g. The Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities)
2. treaties that allow the processing of petitions, but restrict this to certain rights (e.g. The Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights (San Salvador Protocol)
3. treaties that allow the processing of petitions in general terms (e.g. Inter-American Convention on Forced Disappearance of Persons)

The Inter-American Court said that the Convention of Belém do Pará fell into the third category and as a result, the court had jurisdiction to consider alleged violations of Article 7 as set out in Article 12 of the Convention and that Mexico had violated Article 7. The Court has also found violations of the Inter-American Convention to Prevent and Punish Torture 1985 in cases like García Cruz and Sánchez Silvestre v Mexico and the Inter-American Convention on Forced Disappearance of Persons in Radilla Pacheco v Mexico.

The following sections consider some of the features that make the Inter-American system distinctive compared to other regional systems.

Indigenous Rights Protection

The Inter-American system has been an important forum for the development of indigenous rights in international human rights law. A central problem with applying many international human rights protections to indigenous people is that the rights are often framed in individualistic terms. The right to property in Article 21 of the Convention, for example, is individually centred “everyone has the right to the use and enjoyment of his property”. Indigenous groups, by contrast, often view land ownership in more communal terms meaning their conception does not always fit the mold of regional treaties. A notable exception is the Banjul Charter, which contains both individual rights and collective rights e.g. Articles 19-24. Nonetheless the inter-American bodies have worked around this by actively interpreting and applying individual rights in collective terms to indigenous people.

In the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, for example, the Inter-American Court adopted a progressive interpretation of the right to property in order to protect the rights of indigenous people. In that case, Nicaragua had granted permission for a company to log trees on the ancestral lands of the Awas Tingni community, which the community claimed violated their right to property under Article 21 of the ACHR. The court noted that “among indigenous peoples there is a communitarian tradition regarding a communal form of collective property […] ownership of the land is not centred on an individual but rather on the group and its community”. This communitarian tradition of land ownership was recognised within the framework of the Convention with the court ruling “the Awas Tingni Community have a communal property right to the lands they currently inhabit”, which had been violated by Nicaragua. The court arguably went even further in the case of Kichwa Indigenous People of Sarayaku v Ecuador when they recognised the group’s rights “as collective subjects of international law and not only as members of such communities or peoples”.

The Inter-American bodies have continued to develop the American Convention’s indigenous rights jurisprudence in a variety of ways. Firstly, they have recognised that certain non-indigenous communities can enjoy the same rights as indigenous groups under the Convention. The court held in Saramaka People v Suriname, that groups like the Saramaka people, who descended from self-liberated African slaves and have been living on the same territory in Suriname since the early 1700s

The extension of such rights in the specific context of Latin America is extremely important given its legacy of colonialism and slavery.

Secondly, they have tried to ensure that the rights guaranteed to indigenous groups are practical and effective by instructing states to delimit and demarcate indigenous lands in several cases. Rather than granting indigenous people a privilege to use their land, the Court has frequently instructed States to grant communal title to the land to guarantee its permanent use and enjoyment.

Thirdly, as much of the case law surrounding indigenous people involves exploitation of indigenous land without the consent of the people, it has been important for the Court to establish a right to consultation and criteria for establishing the prior and informed consent of indigenous people. The Court has obliged states to “conduct an appropriate and participatory process that guarantees the right to consultation […] conduct an environmental impact assessment, and (iii) as appropriate, reasonably share the benefits produced by the exploitation of natural resources”.

A fourth important limb of the jurisprudence on indigenous rights concerns environmental rights. While the Convention does not contain an express provision protecting the right to a healthy environment, the Inter-American Court issued an advisory opinion in which it stated the right to a healthy environment is “included among the economic, social and cultural rights protected by Article 26”. In the landmark case of Lhaka Honhat (Our Land) Association v Argentina, the court recognised autonomous and directly justiciable rights to a healthy environment, food, water, and cultural identity related to indigenous people and communities for the first time. The extension of the rights to this context is important given the expropriation and exploitation of indigenous lands throughout Latin America and the growing concerns over the human rights impacts of climate change, particularly on vulnerable groups (see Chapter on Human Rights and the Environment). This judgment paves the way for future litigation by different groups experiencing negative impacts of environmental degradation.

Finally, from a symbolic perspective, the Court has also undertaken to visit indigenous peoples in person to gain a deeper understanding of the rights issues they face. In 2012, for example, before handing down its judgment in the Kichwa Indigenous People of Sarayaku v Ecuador, the court visited the indigenous people’s territory and met with many of them. This shows the court’s willingness to engage with marginalised groups.

Advisory Opinions

A distinctive feature of the Inter-American system is its advisory opinion process. At the time of writing (June 2026), the Court’s website lists 32 advisory opinions. While both the European and African courts also have the capacity to issue advisory opinions, as the Inter-American court itself notes, the IACtHR’s advisory opinion jurisdiction is “unique in contemporary international law”.

The ECtHR has the capacity to issue advisory opinions in two situations. First, where Committee of Ministers of the Council of Europe requests an advisory opinion on legal questions concerning the interpretation of the Convention and the Protocols. This has been very seldom used in practice with opinions issued focusing largely on questions related to the election of judges to the ECtHR. Secondly, following the adoption of protocol 16, the ECtHR’s advisory jurisdiction can be invoked by the “highest courts or tribunals” of contracting states in the context of a case pending before the requesting court or tribunal and address a question of principle.

Under Article 64 of ACHR, any OAS member state, as well as any organ detailed in Chapter X of the OAS Charter, may approach the Court for an advisory opinion relating to the ACHR or other treaties concerning the protection of human rights in the American states. As such, it is open to a wider variety of parties and is much more amenable to answering abstract legal questions than the European system.

The African system is much closer to the Inter-American system. Under Article 4 of Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, the African Court can receive requests from any Member of the OAU, the OAU itself, its organs or any African organization recognized by the OAU. The court can provide an opinion on “any legal matter relating to the Charter or any other relevant human rights instruments”. While the systems bear a close resemblance to each other, the Inter-American is broader because states can also seek guidance on the compatibility of domestic law with the Convention, which they cannot do under the African system.

The advisory opinions system at the Inter-American court is also much better established than the others. The first advisory opinion was issued by the IACtHR in 1982, while the African Court’s was only established in 2004 with the first finalised advisory opinion only issued in 2014. The European Court’s advisory jurisdiction under Article 47 was first used in 2008, while the system under protocol 16 only came into effect from 1 August 2018 with the first opinion issued in 2019.

The advisory opinions of each regional body serve similar purposes. As the report explaining the reasons behind the creation of the ECtHR’s advisory jurisdiction under protocol 16 notes, its aim was to foster dialogue between courts, enhance the constitutional role of the supra-national court and help to avoid future violations. The Inter-American system serves a very similar purpose.

Pre-emption is a very important part of the process and many advisory opinions seek to prevent human rights violations before they occur. As the IACtHR notes in Advisory Opinion OC- 21/ 14

States have sought guidance through advisory opinions on emerging issues such as gender identity or how human rights impacts the climate emergency.

The form of advisory opinions can also offer significant advantages over contentious cases. As the court is not limited to addressing the specific facts of a case before it, it can provide more general guidance in an advisory opinion. This can facilitate broader discussions on the scope of human rights obligations. Ramirez and Siri point to an example of this in Advisory Opinion OC-21/14, where a number of states sought guidance from the court on their legal obligations related to the treatment of minors in the context of migration. They wanted the court to “define precise standards, principles and obligations” on the subject to guide public policy decisions. It would be much more difficult for the court to offer such guidance in the context of a contentious case.

Advisory Opinions can also serve a constitutionalising function. As Saavedra notes, the interpretation provided by the Court is binding for States and received by a broader community of practice, which extends their impact. They can assist domestic courts in developing domestic law in compliance with international standards. As states can refer their domestic laws essentially for screening to the Inter-American court, this also helps to prevent human rights problems arising from particular laws in the first place. Ortiz Ocaña and Pérez-Liñán note that several Latin American constitutional courts have used advisory opinions as a central authority in the deciding of domestic cases.

Secondly, the format is more participative than individual contentious cases. As Saavedra notes, there is open participation for all OAS states, organisations (international and civil society) and others. This leads to what he describes as “a collective construction of the law”, which is presumably much more palatable to states than a finding of a violation and instructions on how to remedy it. As the Court itself noted in Advisory Opinion OC-3/83, it

As such, the absence of the condemnatory character of judgments in individual cases, where states are found to have violated rights, offers a different means of engaging with and supporting states to better protect human rights.

African System

The African system of human rights protection is the newest of the three main regional systems. Just as the ECHR was established under the auspices of the Council of Europe, the ACHR under the OAS, the African human rights system is directly linked to what was originally the Organisation of African Unity (OAU) and later the African Union.

Organisation of African Unity / African Union

The Organisation of African Unity was founded in 1963 with the creation of the OAU Charter. The organisation sought to promote unity and cooperation among African states, to eradicate colonialism and had a strong focus on defending sovereignty, independence and territorial integrity. The organisation was later reconstituted as the African Union in 2002 as states sought to refocus regional collaboration on different areas, namely increased cooperation and integration of African states to drive Africa’s growth and economic development.

Institutions and Structure

The AU comprises a variety of different organs. The Assembly of Heads of State and Government is described as the supreme organ of the Union, which meets annually to determine common policies, consider reports and ensure compliance of MS with obligations arising from AU membership. The Executive Council is composed of ministers and authorities from member states. Its role is to coordinate and take decisions on policies in areas of common interest and monitor implementation of policies. The Permanent Representatives Committee comprises permanent representatives of the member states, it handles day-to-day operations of the African Union, preparing work of the Executive Council. The African Union Commission functions as the secretariat for the AU providing operational support for all AU organs and managing resources. The Peace and Security Council works on the prevention, management and resolution of conflicts within the region. The Pan-African Parliament is meant to provide a platform for people from all African states to be involved in discussions and decision-making on the problems and challenges facing the continent. The AU was meant to have its own Court of Justice, but this will be discussed further below.

Aims

The aims of the OAS and AU have evolved over time, particularly with respect to human rights issues. While the OAS Charter referred to the organisation having “due regard” to the UDHR, it was clear that its primary focus was on decolonisation, cooperation and development rather than human rights. The AU, by contrast, made a more explicit reference to protecting human rights as one of its objectives in its constitutive act. In addition, and similarly to the OAS discussed above, several of its other primary aims intersect with human rights as the AU aims to ensure socio-economic integration, democratic principles and institutions, sustainable development at the economic, social and cultural levels and raise living standards.

Membership

At the time of writing, the African Union has 55 members. The members are sub-divided into 5 geographic regions – Central Africa, Eastern Africa, Northern Africa, Southern Africa and Western Africa. The African Union has seen significantly more changes to its membership compared to the other regional organisations. This has resulted from a variety of circumstances related to decolonisation and secession e.g. South Sudan joined the AU after seceding from Sudan. The Peace and Security Council of the AU is charged with imposing sanctions on states whenever an unconstitutional change of government takes place in a Member State. This has resulted in the suspension of many states from participating in activities of the Union, in 2025, for example, it suspended Guinea-Bissau’s membership following a coup in that country.

Human Rights Instruments

The African Charter on Human and Peoples’ Rights

The process of establishing a binding regional human rights treaty in Africa was a protracted affair (for a detailed breakdown see Sanchez). The idea of a treaty was first mooted in 1961 at a meeting of the International Commission of Jurists in Lagos. It was discussed in many different forums over the years e.g. a UN sponsored conference in Dakar on Human Rights in Developing Countries in 1966 and another UN conference in Cairo in 1969. There was some understandable reluctance on the part of African states to cede sovereignty to a regional human rights institution. As the report from the Dakar conference recorded, some participants considered

Eventually in 1979, the OAU convened a meeting of experts to draft an African human rights treaty. The draft treaty was finalised at a meeting of the OAU in Banjul in 1980 and adopted by the OAU assembly in 1981.

The African Charter on Human and Peoples’ Rights entered into force in 1986. The Charter has been ratified by 54 states . It stands out among the regional human rights treaties for several reasons. The Charter blends a broad range of economic, social and cultural rights and civil and political rights in a way that the other regional treaties don’t. By combining these under a single enforcement mechanism, Sanchez contends that the African system surpasses the European and Inter-American systems.

It has a distinctly post-colonial focus reflected in several articles. Article 20, for example, outlines a specific right to self-determination “Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community”. Anyangwe notes that it is conceptualised under the Charter as a right claimable by peoples, it is absolute, immediate and non-derogable and, as such, broader and more forceful than the equivalent protections in the ICCPR (Article 1) and ICESCR (Article 1).

A number of additional protocols have been added to the Charter since its creation. The protocols establishing courts will be discussed further below, but there have been several protocols adding substantive rights to the body of law. The so-called Maputo protocol on the Rights of Women in Africa was adopted in 2003 and at the time of writing is the only regional human rights treaty focusing broadly on women’s rights. It has been widely ratified by members with 44 of the 55 members of the AU ratifying the protocol, with the African Commission on Human Rights describing the protocol as an integral part of the African Charter in Community Law Centre v Nigeria. The protocol goes further than simply modifying rights in the Charter and creates a significant number of additional rights and obligations, combining economic, social and cultural rights with civil and political rights. It is the first treaty to define harmful practices – behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and ‘physical integrity’, alongside specific protections of reproductive rights and rights in specific contexts, such as armed conflict. A further Convention on ending Violence against Women and Girls was adopted by the African Union in 2025.

The African Union has also sought to supplement the protection of rights of persons with disabilities through an additional protocol, building on the commitment in Article 18 of the African Charter to offer special measures of protection to disabled people. The protocol offers a combination of economic, social and cultural rights (such as the right to health in article 17) and civil and political rights (such as the right to liberty and security in article 9). Akin to the UNCRPD, there is a strong focus on eliminating discrimination. In common with the Maputo protocol, the additional protocol on rights of persons with disabilities seeks to protect disabled people from harmful practices (article 11). Detailed protections are also offered for people in “situations of risk” such as armed conflict, in addition to explicit protections for disabled women, children and elderly people. The protocol has not been widely ratified with only 10 states having ratified it at the time of writing.

The African Charter on the Rights and Welfare of the Child was adopted in 1990 to address the limited protection of children’s rights in the African Charter. As Sloth-Nielsen observes, African states were barely involved in the development of UN Convention on the Rights of the Child, prompting calls for a regional treaty. The resulting treaty bears many similarities to the UNCRC, focusing on the best interests of the child and ensuring children’s participation in decisions that affect them (article 4). It has been ratified by 50 states at the time of writing. One notable difference is the incorporation of a communications procedure within the treaty from the outset in article 44. In this way the Charter went further than the UNCRC, which only adopted a communications procedure much later with the adoption of the third Optional Protocol in 2011. This prompted Viljoen to observe that the African Children’s Charter succeeds in setting “a higher threshold” and giving “better protection to children in Africa than the UN instrument has done”.

The African Commission on Human Rights

The African Commission on Human and Peoples’ Rights began its work in 1987. It is comprised of 11 commissioners, who meet for twice yearly sessions lasting for between 10 and 15 days. According to Article 45 of the African Charter, the primary functions of the African Commission are to –

1. Promote human rights
2. Ensure the protection of human rights
3. Interpret the African Charter

It performs these functions through a variety of means. The Commission resembles a hybrid of a UN-style treaty body and a regional human rights commission, like the Inter-American Commission or the now defunct European Commission on Human Rights. According to Article 62 of the Charter, the Commission must receive and consider periodic reports on the implementation of the Charter from state parties. After considering the reports, the Commission issues concluding observations and recommendations to States on how to improve. In practice, none of the states have managed to fulfil the bi-annual obligation and reporting has been quite inconsistent with many states offering more sporadic combined and consolidated periodic reports. In this sense, it resembles a treaty body in more ways than one. It also has what it calls “special mechanisms” – special rapporteurs, committees and working groups with a specific thematic focus – which are analogous to the UN’s special procedures. The Commission adopts resolutions through these special mechanisms, which in some cases fulfil a similar role to the General Comments issued by treaty bodies by offering interpretive guidance on the scope of the state’s obligations (see for example the resolution on regulating private actors providing health and education services).

In other regards, the Commission functions like a more traditional regional, quasi-judicial human rights institution. It receives communications complaining of human rights violations from individuals, NGOs and, pursuant to Article 47 of the Charter, from other states. It interprets and applies the Charter. Where the Commission finds a violation of the Charter, it will issue non-binding recommendations to the State in question. These can become binding if they are later adopted by the African Union Assembly.

The Commission has the capacity to conduct fact finding missions to investigate human rights situations on the territory of state parties. In 2024, for example, it issued a resolution to establish a fact finding mission to investigate human rights violations resulting from the conflict in Sudan. Interestingly, the Commission also issues advisory opinions, which in the other systems is the preserve of the Courts. In its advisory opinion on the rights of indigenous peoples, the Commission inferred its power to do this from Article 45(1)(a) and 45(3) of the Charter (the African Court on Human and Peoples’ Rights also has jurisdiction to issue advisory opinions according to article 4 of the protocol on the Establishment of an African Court on Human and Peoples’ Rights).

Overall, the African Commission has struggled with both transparency and visibility. Communications are examined in private and information about outcomes are held back until publication is authorised by the AU Assembly (see rule 110). The Commission can ask states for information on how they have responded to their recommendations in periodic reports made by states and the African Union can encourage members to establish mechanisms to “follow-up on the Commission’s recommendations” (AHG/Res.227 (XXIX), but beyond that its options for enforcement are limited. These persistent issues with compliance led the African Union to consider changes to the system in the early 1990s.

The African Court of Human and Peoples’ Rights

In 1994, the OAU adopted Resolution 230 in which it noted “the need to strengthen the African mechanism” and how it was “concerned by the situation obtaining in the area of Human and Peoples’ Rights”. It instructed the OAU secretary general to convene a meeting of government experts to “consider the establishment of an African Court of Human and Peoples’ Rights”. The group of experts met in Cape Town in September 1995 to create a first draft of the protocol to the African Charter establishing the court. There followed a protracted series of negotiations and amendments, culminating in the adoption of the protocol by the OAU Assembly in June 1998. While many states signed the protocol at the meeting in Burkina Faso in 1998, the protocol did not enter into force until 15 states ratified it in January 2004. Since its establishment in 2006, the African Court has delivered more than four hundred decisions to protect fundamental human and peoples’ rights, with the majority of the cases taken against Tanzania.

Standing

Access to the court for individuals is limited. Individuals and NGOs are not permitted to submit cases directly to the court until the State has both ratified the Protocol on the Court and issued a declaration (under Article 34(6)) accepting the jurisdiction of the Court to receive individual communications. Many cases have been struck out (see for example De Lange v South Africa) on the grounds that the State against whom the communication has been issued has not made a declaration accepting the court’s jurisdiction. The European Convention, by contrast allows an automatic right to individual petition (article 34 ECHR) which is mandatory for all states party to the Convention since the adoption of Protocol 11.

Since the creation of the African Court, 34 states have ratified the protocol establishing the court. However only 12 states have made a declaration accepting the competence of the Court to receive individual petitions and several of those states subsequently withdrew their declarations including Benin, The Ivory Coast, Rwanda, Tanzania and most recently Tunisia. The withdrawals of declarations have typically been in response to adverse judgments from the court on politically sensitive issues. Tufa notes that Rwanda withdrew its declaration following the case of Umuhoza v Rwanda, which involved a prominent member of the opposition political party in the State. Similarly, Benin withdrew its declaration after they lost the case of Ajavon v Benin, which related to the prosecution of a political opponent of the president of Benin, Sébastien Ajavon.

The African Commission can submit cases directly to the Court (Article 5 of the Protocol). This process can help to alleviate some of the aforementioned weaknesses in complying with the recommendations of the Commission because the Commission can refer instances of non-compliance with its recommendations to the Court for determination. In contrast to the other regional courts, the African Charter allows actio popularis which has led to many NGOs and civil society organisations bringing cases on behalf of groups concerning violations of the Charter.

Material Jurisdiction

The material jurisdiction of the African Court of Human Rights is broader than that of the ECtHR, which is limited to the interpretation and application of the ECHR and its protocols. Under Article 3 of the Protocol establishing the African Court, its jurisdiction extends to the “interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned” (emphasis added). As such the court’s jurisdiction extends beyond violations of the Charter itself to include disputes over other human rights treaties ratified by the states involved. Thus, in Alex Thomas v Tanzania, the Court found a violation of both the African Charter and the ICCPR because the state had failed to provide the applicant with legal representation. While in APDF and IHRDA v Mali, the Court found a violation of both the African Charter and Article 16 (1) of the Convention on the Elimination of All Forms of Discrimination against Women because its law violated the right of women to consent to marriage.

The following sections consider some of the features that make the African system distinctive compared to other regional systems.

Peoples’ Rights

The collective right to self-determination is part of a much wider set of “peoples’ rights” in the African Charter, which distinguishes it from the other regional treaties. We noted above that the Inter-American system has inferred some collective rights from individual rights such as the right to property. The African Charter, by contrast, contains several peoples’ rights that are framed as such. The Charter includes collective rights of peoples to

• dispose of their wealth and natural resources
• economic, social and cultural development
• development
• national and international peace and security
• a general satisfactory environment

These rights display a particular awareness of the African nations’ history of dispossession and the exploitation of their natural resources by colonial powers. The African Commission has expressly noted that the right to dispose of natural resources “may be traced to colonialism” and the vulnerability of African states to “foreign misappropriation”.

The creation of “peoples” rights gives rise to issues defining their scope, when it refers to “peoples” can we distinguish between the peoples “of the state” or sub-divisions of people “within the state”? The African Commission partly addressed this issue in the case of SERAC v Nigeria where it held that the state of Nigeria had violated various collective rights of the Ogoni people. The Commission held, for example, that Nigeria had violated the Ogoni peoples’ right to a healthy environment under Article 24 of the Charter because they did not involve the Ogoni communities in the decisions that affected the development of Ogoniland. As Dersso notes, the Commission viewed the Ogoni as beneficiaries of peoples’ rights and the state as the bearer of the corresponding obligation. Thus, while Nigeria can produce oil to serve the Nigerian people at large, they must still have regard for the interests of the communities within the state.

The Commission went further in the so-called Endorois case (Centre for Minority Rights Development & Others v Kenya) by setting out criteria for the identification of ‘peoples’ for the purposes of the Charter, including “a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological affinities, territorial connection, and a common economic life or other bonds, identities and affinities they collectively enjoy”.

Duties

Winks contends that the collective focus on peoples’ rights in the African Charter speaks to a different philosophy of rights than the other regional systems, which have a more individualistic focus. The African Charter is imbued with a philosophy of solidarity and kinship that distinguishes it from the others. This is also reflected, he argues, in another distinguishing feature of the Charter – its inclusion of duties. Article 27, for example, states that “Every individual shall have duties towards his family and society, the state and other legally-recognised communities and the international community”. The inclusion of duties is also unique among regional treaties. Rather than viewing rights as an atomised contract between the state and individuals, as Sanchez notes, the Charter reflects a desire for reciprocity, emphasising shared responsibilities, community and solidarity. At the same time, they represent “an unprecedented attempt to regulate individual conduct through international human rights law”. The extent to which some of the duties are enforceable e.g. the duty to place your “physical and intellectual abilities” at the service of your national community is clearly open to question. Although other duties, such as the duty “to pay taxes”, seem more amenable to enforcement.

Qualifications

One of the more troubling features of the African Charter is the widespread inclusion of so-called “claw back” clauses in the treaty. These allow states discretion to restrict rights guaranteed by the Charter. Measures qualifying the protection of human rights are not uncommon in regional human rights treaties. The European Convention on Human Rights, for example, allows states to interfere with freedom of expression (article 10(2)) provided that the interferences are prescribed by law, necessary in a democratic society and proportional. The American Convention on Human Rights, allows states to impose limitations on freedom of thought conscience and religion that are “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others”. However, the scale and extent of the qualifications in the African Charter is what sets it apart from the other regional treaties. They are much broader than in the other regional treaties.

Article 6, for example, gives states a lot of leeway to curtail the right to liberty – “No one may be deprived of his freedom except for reasons and conditions previously laid down by law”. The constraint on state action of “reasons and conditions previously laid down by law” is minimalistic and creates scope for states to legally impose preventive detention without violating the Charter. Such qualifications are also evident in protections of freedom of association, movement, the right to property and the right to participate in government. Many of the clauses are framed in very vague terms, constraints on freedom of conscience and religion are, for example, “subject to law and order”. Equally, while it is possible to read across the different qualifications to rights in the ECHR and establish a framework for them, there is very limited consistency in the language used to frame the qualifications in the African Charter, making it hard to do the same for it. The Charter frequently uses different formulations of words “within the law” (article 9), “provided that he abides by the law” (article 10) and “in accordance with the provisions of the law” (article 13).

Chekol and Dogan argue that these limitations may be overstated, noting the African Commission has interpreted the qualifications narrowly in cases like Media Rights Agenda and Others v Nigeria. In that case, Nigeria had enacted a law requiring all newspaper publishers to register with a “Newspapers Registration Board” or face potential fines and imprisonment for publishing them. In a series of communications brought to the African Commission on Human Rights, several newspaper publishers complained that the law violated their rights because Nigerian authorities had raided their offices, confiscated publications and arrested staff members. The Charter only confers protection on freedom of expression “within the law” and in this case the complainants clearly had not engaged in free expression “within the law”. When the Commission came to interpret clause, however, they noted “this does not mean that national law can set aside the right to express and disseminate one’s opinions”. It also rightly noted that “To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter”. Ultimately the Commission concluded

Thus, concerns about the scope and scale of the qualifications to the rights in the African Charter may be overstated because of the way the African Commission has interpreted the clauses. Ultimately the limitations placed on rights requiring “a legitimate state interest” proportionality and necessity are extremely similar to those placed on analogous rights in other regional human rights treaties.

Compliance

The court was meant to complement the protective mandate of the African Commission (see Article 2 of the Protocol) and to improve compliance and enforcement of judgments. The Court was granted the power to make orders to remedy rights violations, including paying compensation (Article 27 of the Protocol). States are obliged to comply with and execute the judgments of the court (article 30 of the Protocol) and the Executive Council of the African Union is meant to monitor execution. The Court is also meant to periodically report to the African Union Assembly about non-compliance with its judgments. The most recent report at the time of writing, 2025, reveals a worrying level of non-compliance with the Court’s judgments. The report notes that violations were found against 10 AU Member States in 104 cases. Of those 2 have been fully implemented (by Burkina Faso) and 102 cases are still pending full implementation. While the record of state compliance with the court’s judgments and the broader trend of states withdrawing is concerning, Tufa argues that when one takes into account the age of the court, the controversial nature of the cases it has handled and some of its successes, “it is reasonable to say that the Court has been effective”.

The Future of the African Regional System

The future of the African Court is hard to determine at present because of stalling attempts to reform it. The African Court had barely reached the threshold of signatures to enter into force in 2004 when the African Union began to consider reforming the African Union’s judicial system. In July 2003, the African Union had adopted a new protocol to establish a Court of Justice of the African Union. However, in July 2004, the African Union decided that the African Court of Human Rights and the Court of Justice of the African Union should be merged because they were concerned over the financial costs of maintaining two separate regional courts. In 2008, the AU Assembly adopted the Protocol on the Statute of the African Court of Justice and Human Rights with the intention of merging the two courts.

It was also around this time that several African states came under the scrutiny of the International Criminal Court. The conflict in Sudan was referred to the ICC by the UN Security Council in 2005 which opened an investigation. It also opened investigations into events in Uganda in 2004, the Democratic Republic of Congo in 2004 and the Central African Republic in 2007. The ICC works on the principle of complementarity and will only open an investigation and prosecute where the State involved is unwilling or unable to do so themselves. The ICC was increasingly taking matters of international justice out of the hands of African states through these investigations. There was a sense among many African states that they were being unfairly singled out by the ICC and the wider international community. Although to be fair to the ICC, several of the situations were referred to them by the states themselves. The African Union Assembly issuing several decisions condemning the “blatant abuse of the Principle of Universal Jurisdiction particularly by some non-African States”. When the ICC indicted and issued an arrest warrant for Omar al Bashir, who at the time was the Head of State in Sudan, the African Union sought to counteract these efforts, in part, by exploring the possibility of giving the African Court of Justice and Human Rights power to try international crimes such as genocide, crimes against humanity and war crimes. This effort culminated in the African Union adopting a further Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in 2014.

Under this revised scheme, the regional court would have a general affairs section, a section addressing human and peoples’ rights and an international criminal law section, which would have jurisdiction to try a range of different crimes including crimes against humanity and genocide. This would be an extremely ambitious court, unique among courts across the globe, consolidating several areas of jurisdiction. It would, in an ideal world, ensure much greater consistency in the application of the law, with the types of jurisdictional clashes we sometimes see between the CJEU and ECtHR, reduced or eradicated. However, at the time of writing in June 2026, 15 states have signed the protocol to establish it, while only one state (Angola) has ratified it. The treaty needs 15 states to ratify it before it enters into force.

As such, the future of the regional court remains in a kind of limbo, with a series of incomplete reforms looming over it, which would fundamentally change its role. In fact, Amnesty International and others have argued the adoption of this protocol may be actively harmful to human rights protection in Africa. This is because the new court would have fewer judges tasked with dealing with human rights cases, reducing from 11 to 5. Amnesty also argue that transitioning to the new setup could negatively impact institutional history, experience and expertise. Finally, the existence of multiple protocols could delay, or even prevent, new states from accepting the African Human Rights Court’s Statute.

Both Rachel Murray and Frans Viljoen, leading experts on the African regional court, have also questioned the wisdom of combining the jurisdiction in this way, noting that the Court’s human rights protection role could be sidelined by “more visible” criminal cases and that combining a court that is determining both state responsibility and individual criminal responsibility is unworkable.

Further Reading

Witold Klaus and Magdalena Kmak, ‘ECtHR jurisprudence amid political shifts: rolling back the protection against pushbacks’ (2024) The International Journal of Human Rights , DOI: https://doi.org/10.1080/13642987.2025.2552950

Grażyna Baranowska, Maybritt Jill Alpes & Isabel Kienzle: ‘Making pushback facts visible: a review of tools in existing case law and the procedural framework of the European Court of Human Rights’ (2025) The International Journal of Human Rights, DOI: 10.1080/13642987.2025.2531790

Suggested Citation – Stuart Wallace and Erika Moranduzzo, ‘Regional Systems of International Human Rights Protection’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)