Reconstituting the universal: human rights as a regional idea

Abstract

This chapter discusses the reconstitution of the universality of human rights as a regional idea that as a result becomes visible through the lens of regional treaty-based systems of human rights. There are four such initiatives: the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention), the American Declaration of the Rights and Duties of Man 1948 (American Declaration) read together with the American Convention on Human Rights 1969 (ACHR, American Convention), and the African Charter on Human and Peoples’ Rights 1981 (African Charter). Although these regimes form the pinnacle of regional human rights law, they have crystallised into regional systems in which a corpus of specific human rights regimes have sprouted in relation to, for example, the prevention of torture, the protection of minorities, women, children, and economic, social and cultural rights, etc. Such treaty regimes are not the focus of this chapter although they should be acknowledged as belonging to respective regional systems of human rights. We start our discussion of reconstituting the universal by examining the essential characteristics of universality, the reasons for reconstituting the universal and the place of universality as the flying buttress of regionalism. This discussion is then followed by an examination of human rights protection as a regional idea. Here we consider the reasons behind the establishment of regional regimes of human rights, the essence of regional human rights obligations in the context of universality, and the relative differences between regional human rights regimes. The chapter then examines regional human rights protection mechanisms, and the dynamics that lie behind the development of human rights law by the cross-fertilisation of human rights ideas across regional bodies of human rights. This development is seen as a reinforcement of universality. (The issue of relativism is not directly discussed as it falls outside the compass of the chapter albeit, as is to be expected, it emerges frequently as a point of importance when working through the content of the regional rights’ instruments that we will be discussing.)