Regional systems relevant to IML

Africa

After the Second World War, following the adoption of the 1945 United Nations Charter and the 1948 Universal Declaration of Human Rights, different regions developed their own systems of regional legal instruments and mechanisms. These regional instruments reflect international human rights norms, while including regional perspectives.

List

List 7. Regional instruments and mechanisms for human rights protection in Africa

Regional instruments	African Charter on Human and Peoples’ Rights, 1981 (Banjul Charter) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003 African Charter on the Rights and Welfare of the Child, 1990
Mechanisms for human rights protection	African Commission on Human and Peoples’ Rights, 1987 Established to promote and protect human rights. Set up a number of Special Rapporteurs, including the Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons African Court on Human and Peoples’ Rights, 2004

Note: This list is not exhaustive.

The African Commission on Human Rights was established as a supervisory body to promote and protect human rights. Its findings are not binding as such, but States should respect them given their obligation under article 1 to give effect to the African Charter on Human and Peoples’ Rights. Among other findings, the Commission has found that mass expulsion of aliens and unlawful deportations violate article 18. There has been compliance with the Charter in at least some instances (Viljoen and Louw, 2007).

The African Court on Human and Peoples’ Rights has jurisdiction to deal with disputes and to provide advice regarding the African human rights instruments that States have ratified. The Court may receive cases filed by:

The African Commission of Human and Peoples’ Rights;
States parties to the Protocol;
African intergovernmental organizations;
NGOs with observer status before the African Commission, and
Individuals (only against States that have recognized the jurisdiction of the court).

Case Study

African Court of Human and Peoples’ Rights ruling on a case of deprivation of nationality

In a case filed by an individual, the applicant claimed to have been arbitrarily deprived of his Tanzanian nationality by the Tanzanian authorities and arbitrarily expelled to Kenya. There, he was considered as an irregular migrant and consequently had to live in the transit zone between both countries in alleged inhuman and degrading conditions. The African Court of Human and Peoples’ Rights sustained the claims and importantly concluded that:

The burden of proof to show that an individual is not a citizen lies with the State;
The applicant’s situation, in being rejected as a national by both the United Republic of Tanzania and Kenya, makes him a stateless person as defined by the Convention relating to the Status of Stateless Persons;
Even if the applicant would have been a migrant, his deportation by the United Republic of Tanzania was in violation of the law since he was not given the right to due process.

Source

African Court on Human and Peoples’ Rights, Anudo Ochieng Anudo v. United Republic of Tanzania, 2018.

There are also instruments and mechanisms focused on freedom of movement. For example, at the regional level, the African Union Protocol to the Abuja Treaty relating to free movement (2018) regulates the free movement of persons, right of residence and right of establishment. Other instruments and mechanisms operate at the subregional level.

List

List 8. Subregional instruments guaranteeing freedom of movement in Africa and mechanisms for accountability

Subregional instruments	East African Community Treaty, 1999 Economic Community of Western African States (ECOWAS) Revised Treaty, 1993 Southern African Development Community (SADC) Treaty, 1992
Mechanisms for accountability of subregional instruments	East African Court of Justice ECOWAS Community Court of Justice Southern African Development Community Tribunal

Note: This list is not exhaustive.

The Americas

List

List 9. Regional instruments and mechanisms for human rights protection in the Americas

Regional instruments	Organization of American States Charter, 1948 American Convention on Human Rights, 1969 MERCOSUR Citizenship Statute 2002
Mechanisms for human rights protection	Inter-American Commission on Human Rights (IACHR) Inter-American Court of Human Rights

Note: This list is not exhaustive.

Both the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) can consider complaints.

The IACHR is a quasi-judicial body, and its work revolve around three main pillars:

The individual petition system;
Monitoring the human rights situation in the Member States;
Attending to priority thematic areas.

The IACHR also established a Rapporteurship on the Rights of Migrants. The mandate of this rapporteur is to guarantee the rights of migrants and their families, asylum seekers, refugees, stateless persons, victims of human trafficking, internally displaced persons and other vulnerable groups of people in the context of human mobility. The findings and recommendations of the IACHR are non-binding on Member States.

The mandate of the IACtHR includes considering and deciding on cases brought to it against the Member States that have specifically accepted the Court’s jurisdiction. Those cases must be processed first by the Commission. Only States parties and the Commission may refer cases to the Court. The Commission can also address the Court for advisory opinions. Individuals, however, have no standing. Most importantly, the judgments of the Court are binding on States parties.

To Go Further

Some of the advisory opinions of the Inter-American Court of Human Rights relevant for international migration law (IML) include the following:

Under the Citizenship Statute, citizens of MERCOSUR have the right to free movement, residence and employment in MERCOSUR Member States and in the five associated countries. Labour laws and social welfare systems are also harmonized between Member States.

Europe

List

List 10. Regional instruments and mechanisms for human rights protection in Europe

	COUNCIL OF EUROPE	EUROPEAN UNION
Regional instruments	European Convention on Human Rights, 1950 (ECHR) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987 (CPT) European Social Charter (Revised), 1961 (ESCC) Guarantees social and economic rights, such as those related to employment, housing, health, education, social protection and welfare. States can select the articles by which they will be bound.	The European Pillar of Social Rights, 2017 Aims to deliver new and more effective rights for European Union citizens and persons with regular status. Establishes 20 principles on equal opportunities, access to the labour market, fair working conditions, social protection and inclusion. Lisbon Treaty, 2007a Establishes rules on the structure and functioning of the European Union. Charter of the Fundamental Rights of the European Union, 2000 Creates the European Union citizenship and provides for the political, social and economic rights of citizens. Schengen Agreement, 1985 Enhances freedom of movement for European Union citizens and persons with regular status by enabling them to cross internal borders without being subjected to border checks.
Mechanisms for human rights protection	European Court of Human Rights (ECtHR) Considers cases and adjudicates on the application of the European Convention on Human Rights. European Committee of Social Rights Monitors the implementation of the revised European Social Charter.	Court of Justice of the European Union (CJEU) Interprets European Union law and settles legal disputes.

Note: This list is not exhaustive.

In Europe, two systems are relevant for international migration law (IML): the Council of Europe and the European Union.

The European Council

The Council of Europe (CoE) consists of 47 States parties to the European Convention on Human Rights (ECHR). ECHR guarantees civil and political rights and applies to everyone under the jurisdiction of Member States. It has been incorporated into the legal system of many States parties, and so it is binding on Member States through domestic law.

The enforcement of ECHR is overseen by the European Court of Human Rights (ECtHR).

In its almost 50 years, ECtHR has ruled on many cases of migrants alleging rights violations under ECHR. A considerable number of rulings have shed light on whether the return of a migrant would constitute a violation of specific rights protected under the ECHR. These include:

The right to life;
The right to a fair hearing;
The right to respect for private and family life;
The prohibition against torture and inhuman or degrading treatment or punishment;
Slavery and forced labour;
Collective expulsion.

The ECtHR has also considered allegations by migrants of arbitrary and unlawful detention.

The (revised) European Social Charter (ESC) is another CoE treaty that guarantees social and economic rights for everyone without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin. The ESC is monitored by the European Committee of Social Rights, which manages the system by which States report on their commitment to ESC. The Committee evaluates the reports and publishes conclusions, which are then reflected in the respective resolutions by the CoE Committee of Ministers. It is also empowered to hear collective – not individual – complaints against States that have accepted this procedure. The Committee issues decisions regarding these collective complaints.

The European Committee on Social Rights has considered whether migrants in an irregular situation are excluded or not from the Charter’s rights. It has concluded that some of the rights are “of fundamental importance to the individual since [they are] connected to the right to life itself”, and as such, they apply to irregular migrants as well.

Example

Fundamental rights in the European Social Charter applicable to migrants, irrespective of status

These include:

The right to health (article 11 of the European Committee of Social Rights [ECSR]). See International Federation of Human Rights Leagues v. France (ECSR, 2004), para. 30–32;
The right not to be deprived of shelter (article 16);
The obligation to “provide protection and special aid from the State for children and young persons temporarily or definitively deprived of their family’s support”. See Defence for Children (DCI) International v. Belgium (ECSR, 2012), para. 136.

European Union

The European Union is an economic and political arrangement between 28 Member States. The Lisbon Treaty establishes the rules on the structure and functioning of the European Union, while the Charter of Fundamental Rights of the European Union creates European Union citizenship and provides for the political, social and economic rights of citizens. European Union citizenship entails the freedom to move, live and work in another Member State and enjoy the same civil, socioeconomic and political rights as the nationals of that country.

One of the main achievements of the European Union is the Schengen Area, which abolishes internal borders. However, if there is a serious threat to public policy or internal security, a Schengen country may exceptionally reintroduce border control at its internal borders for, in principle, a limited period of no more than 30 days. The Schengen Agreement (CISA) extends the freedom of movement beyond European Union Member States to a few other States that are also party to the agreement. It benefits nationals and residents of the Schengen Member States, as well as non-nationals of a number of defined countries. A number of other instruments have been added to CISA, aiming to ensure harmonization of migration and asylum regulations among Member States.

To Go Further

Today, the European Union has developed a large set of rules on migration and asylum, including:

The Court of Justice of the European Union (CJEU) has two main functions. The first is to interpret European Union law and settle legal disputes between national governments and European Union institutions. The second function is that, in certain circumstances, it can be used by individuals, companies or organizations to take action against a European Union institution for alleged violations of their rights as recognized by European Union law.

Individuals may file complaints to national courts, and the national court may then refer the case to CJEU for interpretation of the European Union law.

CJEU has made a number of important judgements in the field of migration, such as judgements regarding the right to family life, the right to return and the best interests of the child.

Case Study

Ruling on the legality of removal

In the case of Abdida (CJEU, 2014), the Court of Justice of the European Union (CJEU) ruled on both the European Union Qualification Directive and the European Union Returns Directive. Mr Abdida, a Nigerian national diagnosed with AIDS, submitted an application to the Belgian State requesting a leave to remain due to medical reasons, but he was refused such a leave. Through domestic litigation, the case was referred to CJEU.

The CJEU concluded that an application under national legislation granting leave to remain due to a serious illness, coupled with a lack of treatment in the country of origin, does not constitute a claim for international protection within the meaning of article 2 (g) of the Qualification Directive. However, CJEU – quoting also the European Court of Human Rights (ECtHR) jurisprudence in the case of N. v. the United Kingdom (ECtHR, 2008) – affirmed that in exceptional cases, the removal of a third-country national suffering from a serious illness to a country in which appropriate treatment is not available may infringe the principle of non-refoulement and result in a violation of article 5 on non-refoulement of the European Union Returns Directive, which includes “the state of health of the third-country national concerned”.

Asia

Unlike Europe, Africa and the Americas, the Asia–Pacific region does not have a region-wide intergovernmental system (such as treaties, courts, commissions or other institutions) with a mandate to protect and promote human rights. However, steps have been taken at the subregional level to strengthen human rights, which shows that a human rights system is emerging.

The Association of Southeast Asian Nations (ASEAN) has led efforts to promote the respect, protection and fulfilment of human rights among its members. The ASEAN Human Rights Declaration, adopted in 2012, followed the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009. It also builds on the ASEAN Charter, which called for a human rights body (article 14). The AICHR priority areas on human rights are in the Five-Year Work Plan. AICHR holds at least two regular meetings per year and reports to the ASEAN foreign ministers.

Unlike mechanisms in other regions, there is no regional court system. The role of AICHR is focused on raising awareness and building capacity, rather than on monitoring or ensuring compliance.

In addition, Pacific Island nations are in the process of developing human rights bodies in line with their specific needs and circumstances. Formed in 1996, the Asia Pacific Forum of National Human Rights Institutions (APF), together with its member institutions and partner organizations, seeks to support and engage with the various human rights protection systems in place across the region.

To Go Further

Association of Southeast Asian Nations (ASEAN), Human Rights Declaration, 2012.
ASEAN Intergovernmental Commission on Human Rights (AICHR), Terms of Reference, 2009.
AICHR, Five Year Work Plan: 2021–2025, 2020.
The Asia Pacific Forum of National Human Rights Institutions.

Middle East and North Africa

Following the uprisings of 2010 around the Middle East and North Africa (MENA) region, there have been initiatives over the past years to reform the League of Arab States system, including the human rights system. These initiatives have been led by the League and some States parties to the Arab Charter on Human Rights, as well as civil society. For example, in 2014, the League adopted the Statute of the Arab Court of Human Rights (not yet in force) to create an inter-State regional judicial body to adjudicate complaints of human rights violations under the Charter. A similar process took place leading to the revised version of the Arab Charter on Human Rights in 2004.

The Committee of Experts on Human Rights, comprised of seven members, receives periodic reports from States parties in order to monitor the implementation of the 2004 revised version of the Arab Charter on Human Rights. However, it does not have a mandate to receive petitions from a State party or an individual for violations of the Charter.

To Go Further

Arab Charter on Human Rights, 2004.

Key messages

Different regions have developed mechanisms to promote and protect human rights. Some of these are more developed and robust with treaties and courts (Africa, the Americas and Europe), while others are undergoing development processes (Asia, the Pacific, the Middle East and North Africa).
Regional systems seek, or should seek, to be in alignment with international human rights norms. They are thus relevant to international migration law (IML), while including regional perspectives.