The Regionalization of Human Rights: A Critical Analysis of the Arab Court of Human Rights

Abstract

Since the mid-twentieth century, regional courts have become a prominent mechanism of human rights protection in Europe, Latin America, and Africa. Until recently, however, the establishment of a regional legal system focused on promoting human rights in the Middle East lagged considerably. In September 2014, the Arab League approved a provisional statute to establish an Arab Court of Human Rights. This announcement inspired a rich literature on human rights regimes in the Middle East (or lack thereof). Scholars have explored topics ranging from the region-specific challenges associated with the development of an Arab human rights system to the potential implications of the proposed Arab Court. However, little work has been done to address how existing regional courts – such as the European Court of Human Rights (ECtHR), the InterAmerican Court of Human Rights (IACtHR), and the African Court on Human and People’s Rights (ACtHPR) – can improve current understandings of the proposed Arab Court. The primary aim of this work is to fill this gap in the literature and better inform the international community’s reaction to the Arab Court’s pending establishment by providing a contextualized understanding of the institution. Through a comparative case study of the European, Inter-American, and African Court, this thesis identifies key political, cultural and institutional features that lead to the development of the Arab Court and will greatly impact its overall effectiveness. This thesis is broken down into four sections. The first part identifies the institutional, political, and cultural circumstances under which a regional human rights court is most likely to arise. In this chapter, I argue that the prerequisites for a functioning regional human rights court include: (1) regional institutional integration; (2) a common conception of fundamental rights derived from a shared cultural connection; and (3) popular support for greater human rights protections. Next, I address the predominate theoretical and practical concerns fueling the mainstream narrative that the Arab Court of Human rights is inherently “doomed from the start.”1 In this section, I argue that regional courts can be a viable and effective means of promoting and protecting human rights. However, this efficacy is dependent on the implementation of appropriate institutional designs and states’ genuine willingness to cooperate with a legitimate human rights system. The following section unpacks why human rights advocates should support the development of the proposed Arab Court of Human Rights despite its many shortcomings. I argue that the Court can be integral to the development of a substantial and multi-faceted human rights system in the Middle East. Lastly, I analyze several institutional and procedural reforms that aim to strengthen the Arab Court’s ability to mitigate human rights violations. These reform recommendations are derived from international standards and the successful practices of existing regional human rights courts.