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Regional human rights instruments

 

The right to a remedy exists also within various regional human rights instruments.

The Inter-American region

Article 25 American Convention on Human Rights makes detailed provision on the right to judicial protection. First, under article 25(1), everyone has the right of access to a competent court or tribunal "for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties" (emphasis added). The breadth of this provision is notable since, unlike most treaty texts, its scope is not limited to the provisions of the American Convention, rather extends to national constitutions and other domestic laws too. This point is illustrated by article 13 of the European Convention on Human Rights (ECHR) "right to an effective remedy" which states that "[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity". Article 25(2) then articulates three elements to this right: that any such remedy be "determined by the competent authority provided for by the legal system of the state" (25(2)(a)); that States "develop the possibilities of judicial remedy" within their own national legal systems (25(2)(b)); and "ensure that the competent authorities shall enforce such remedies when granted" (25(2)(c)).

In contrast, there is no treaty provision for a right to remedy for human rights violations, including of the Charter's provisions, within the text of the African Charter on Human and Peoples' Rights, other than a very limited reference to "adequate compensation" in the context of the right to the lawful recovery of property. Nevertheless, as the following case studies reveal, the African Commission has interpreted the existence of a right to a remedy for victims of human rights violations.

The Asian region

In terms of other regional human rights systems, within the Asian region provision is made in article 5 ASEAN Declaration on Human Rights that: "Every person has the right to an effective and enforceable remedy, to be determined by a court or other competent authorities, for acts violating the rights granted to that person by the constitution or by law." This is one of the Declaration's overarching principles, thereby applying to a wide range of human rights violations. Specific mention of "victims" is made in the Asian Human Rights Charter in relation to specific, more vulnerable categories of person. One reference is to the special needs of "female victims of armed conflict [who] are often denied justice, rehabilitation, compensation and reparation of the war crimes committed against them, [for whom] it is important to emphasise that systematic rape is a war crime and a crime against humanity". (Article 9.2). In Article 15.4(c), reference is made to the need for "[a]ll states [to] establish Human Rights Commissions and specialized institutions for the protection of rights, particularly of vulnerable members of society." One of the perceived benefits of such entities is that "[t]hey can provide easy, friendly and inexpensive access to justice for victims of human rights violations" additional to remedies which may be available through more formal judicial mechanisms, such as conciliation and mediation. Though both instruments are non-formally binding, they are nevertheless important in terms of shaping regional norms and identifying regional priorities, such as improving the national remedies available to female victims of rape during times of armed conflict.

The Middle East and Gulf regions

With respect to the Middle East and Gulf Regions, the only binding human rights instrument is the revised Arab Charter on Human Rights 2004 (adopted 22 May 2004, entered into force 15 March 2008) which contains several relevant provisions. Firstly, the Charter makes provision for remedies of specific rights: "[e]ach State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation" (article 8(2)); and that "[a]nyone who has been the victim of arbitrary or unlawful arrest or detention shall be entitled to compensation" (article 14(7)). This model to some extent parallels article 9(5) of the International Covenant on Civil and Political Rights (ICCPR) which makes provision for compensation for wrongful arrest or detention. More generally, the Charter provides that States parties "shall also guarantee every person subject to their jurisdiction the right to seek a legal remedy before courts of all levels" in the context of provision for due process and fair trial rights (article 12). Furthermore, general provision is made that "[e]ach State party to the present Charter undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity" (article 23). In contrast, in the context of the Organization of Islamic Cooperation (OIC), the only provision dealing with remedies in the Cairo Declaration on Human Rights in Islam 1990 (adopted 5 August 1990) is article 15(a) which refers to compensation in the context of property rights.

 

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