Why Regional Systems Exist at All

In one line

Regional systems exist because a smaller group of States can agree to stronger obligations, can accept binding adjudication, can enforce through political pressure that actually reaches its members, and can protect rights the universal instruments omit, and the price is that protection then depends on where a person lives.

The four reasons

One: agreement is easier among fewer and more alike

The universal instruments are drafted for every State, so their language is the language that the widest range of governments would accept, and their limitation clauses are correspondingly generous.

A regional group can be more demanding, because its members already share constitutional traditions, a legal vocabulary, and often a recent history that supplies the motive.

This is why the European Convention of 1950 could create a court while the Covenants of 1966 could create only a committee. Ten founding members with converging systems can do what one hundred and sixty cannot.

Two: binding adjudication becomes acceptable

A State accepts a court whose judges it can recognise as its own kind. The three working regional systems all have courts delivering binding judgments; the universal system has committees delivering views.

And the caseload is manageable at regional scale, which is what makes individual access practicable at all. [The European Court of Human Rights] shows how much traffic even a regional court attracts.

Three: compliance has a political engine

A regional organisation has something a State wants. Membership of the Council of Europe, access to the institutions of the European Union, standing within the Organization of American States or the African Union.

That gives a supervisory body leverage no universal organ possesses, because the Committee of Ministers supervising execution of a judgment is composed of the governments whose good opinion the respondent needs.

The same leverage explains the failures. Where the organisation needs the member more than the member needs the organisation, execution stalls.

Four: the region has its own subjects

The instruments differ because the histories differ.

Europe wrote a convention against a totalitarian past, so its early text is dense on liberty, fair trial and legality.

The Americas wrote against dictatorship and disappearance, so the American Convention contains a right to juridical personality, a right of reply and a strong prohibition on prior censorship.

Africa wrote against colonialism, so the African Charter contains peoples' rights, a right to development, a right to a general satisfactory environment, and duties as well as rights.

And the Arab and ASEAN texts each carry their own emphases and their own reservations.

The paradox

Strength is inverse to size. The European system is the strongest and covers the smallest and most homogeneous group; the African system covers a far larger and more varied group and is weaker; the ASEAN and Arab arrangements cover regions with the least convergence and produce declarations rather than courts.