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International Human Rights: Neglect of Perspectives From African Institutions

Published online by Cambridge University Press:  17 January 2008

Rachel Murray
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Extract

International human rights law advocates tolerance, inclusivity and the promotion of equality among peoples, nations and individuals across the world. It seems disappointing, therefore, that these standards do not always apply to the discipline of international human rights law itself. Instead there seems to be a hierarchy in the international human rights system. Others have written about such an approach in relation to different types of rights,1 reflecting political power struggles.2 This paper will consider whether African institutions are ‘third generation’ organs and perceived as of less value than others. It will argue that international human rights law has focused primarily on European and Western sources and neglected those from other jurisdictions. It has failed, therefore, to use African institutions, for instance, to provide examples of good practice, relying on them only as examples of what not to do. As Okafor and Agbakwa state, there is evidence of a one-way traffic, with Western scholars giving the impression that they feel they have little to learn from African institutions and their experiences:

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 193 - 204
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 Meron, T‘On a Hierarchy of International Human Rights’ (1986) 80 AJIL 1.CrossRefGoogle Scholar See alsoWeiler, JHH and Paulus, AL‘The Structure of Change in International Law or is There a Hierarchy of Norms in International Law?’ (1997) 8 EJIL 545–5.CrossRefGoogle Scholar

2 See Otto, D ‘Rethinking the ‘Universality’ of Human Rights Law’ (1997) 29 Columbia Human Rights Law Review 1. As Craven argues, ‘the reason for making a distinction between first and second generation rights could be more accurately put down to the ideological conflict between East and West pursued in the arena of human rights during the drafting of the Covenants. …The fact of separation has since been used as evidence of the inherent opposition of the two categories of rights. In particular, it has led to the perpetuation of excessively monolithic views as to the nature, history and philosophical conception of each group of rights.… Of greater concern, however, is that despite the clear intention not to imply any notion of relative value by the act of separating the Covenants, it has nevertheless reinforced claims as to the hierarchical ascendance of civil and political rights'Google ScholarCraven, MThe International Covenant on Economic, Social and Cultural Rights. A Perspective on its Development (Clarendon Press Oxford 1995) 9.Google Scholar

3 See Okafor, OC and Agbakwa, SC‘Re-Imagining International Human Rights Education in our Time: Beyond Three Constitutive Orthodoxies’ (2001) 14 Leiden Journal of International Law 563–90, 576.CrossRefGoogle Scholar

4 See Organization of African Unity Report of the International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and Surrounding Events (Addis Ababa Organization of African Unity 7 July 2000) <http://www.oau-oua.org>.

5 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).

6 American Convention on Human Rights, adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica (22 Nov 1969).

7 African Charter on Human and Peoples' Rights, adopted 27 June 1981 and entered into force 21 Oct 1986, OAU Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (1982).

8 Arts 1–18.

9 Arts 19–24.

10 Arts 27–9.

11 Art 62.

12 Arts 47–59.

13 Among the Objectives of the Union in Art 3 of the Constitutive Act are to ‘promote democratic principles and institutions, popular participation and good governance; promote and protect human and Peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments’, Arts 3(g) and (h). In addition, the Principles of the Union include in Art 4 ‘promotion of gender equality; respect for democratic principles, human rights, the rule of law and good governance; promotion of social justice to ensure balanced economic development; respect for the sanctity of human life, condemnation, and rejection of impunity and political assassination, acts of terrorism and subversive activities; condemnation and rejection of unconstitutional changes of governments’, Arts 4(l), (m), (n), (o), and (p).

14 Adopted in 1969, 10 Sept 1969, AHSG, OAU Doc CAB/LEG/24.3. It entered into force in 1974.

15 OAU Doc CAB/LEG/24.9/49 (1990).

16 See Evans, M and Murray, RThe African Charter on Human and Peoples' Rights (CUP Cambridge 2002).Google Scholar

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18 Robertson, GCrimes Against Humanity. The Struggle for Global Justice (Penguin London 2000) 60. In addition, he provides a factually incorrect account of the Commission whilst noting that it ‘has become a sad joke’, should be renamed ‘the African Charter for Keeping the Rulers in Power’, holds ‘slapstick’ sessions, and concludes by stating the Commission ‘is such a farce’ and ‘the hollowest of pretences’ 63–4.Google Scholar

19 Welch, CE‘The African Commission on Human and Peoples' Rights: A Five Year Report and Assessment’ (1992) 14 Human Rights Quarterly 43–56.CrossRefGoogle Scholar

20 eg when discussing the regional human rights systems, Shaw spends only three pages on the African Charter on Human and Peoples' Rights, compared with over 30 pages on the European system, the vast majority of the chapter. There are a few notable exceptions to this approach, see Rehman, JInternational Human Rights Law. A Practical Approach (Longman Harlow 2003);Google ScholarSmith, RKMTextbook on International Human Rights (OUP Oxford 2003).Google Scholar

21 See below.

22 Tomuschat, CHuman Rights. Between Idealism and Realism (OUP Oxford 2003) 33, and 49–50 respectively.Google Scholar

23 Steiner and Alston (n 17) 920.

24 eg Jayawickrama's work makes little reference to the African Charter on Human and Peoples' Rights beyond citing the content of its provisions, Jayawickrama, NThe Judicial Application of Human Rights Law. National, Regional and International Jurisprudence (CUP Cambridge 2002). In addition, an article on the justiciability of economic, social, and cultural rights failed to make any reference to the important decision of the African Commission on the right to housing, food, and healthCrossRefGoogle ScholarDennis, MJ and Stewart, DP‘Justiciability of Economic, Social and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?’ (2004) 98(3) American Journal of International Law 462–515.CrossRefGoogle Scholar

25 Such an approach is linked closely with feminist perspectives. ‘The role of women under colonialism is in many respects symbolic of the domination of the colonised within a colonial society’, Chinkin, C‘A Gendered Perspective to the International Use of Force’ (1992) 12 Australian Yearbook of International Law 279–93, 281.Google ScholarSee also, eg, Charlesworth, H, Chinkin, C and Wright, S‘Feminist Approaches to International Law’ (1991) 85 AJIL 613;CrossRefGoogle ScholarCharlesworth, H and Chinkin, CThe Boundaries of International Law: A Feminist Analysis (MUP Manchester 2000);Google ScholarHarding, SThe Science Question in Feminism (Open University Press Milton Keynes 1986).Google ScholarSee also other ‘transformative’ critiques: Cornell, DTransformations: Recollective Imagination and Sexual Difference (Routledge London 1993).Google Scholar

26 ‘The bourgeois jurists…do not see, or do not want to see, that this community reflects…the common interests of the commanding and ruling classes of different States which have identical class structures. The spread and development of international law occurred on the basis of the spread and development of the capitalist mode of production’ Beirne, P and Sharlet, R (eds) Pashukanis, Selected Writings on Marxism and Law (Academic Press London 1980) 171.Google Scholar

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28 For further discussion on this point see Murray, RThe African Commission on Human and Peoples' Rights and International Law (Hart Publishing Oxford 2000) 2.Google ScholarSee also Koskenniemi, M‘Hierarchy in International Law: A Sketch’ (1997) 8 EJIL 566–82;CrossRefGoogle ScholarEngle, K ‘Female Subjects of International Law. Human Rights and the Exotic Other Female’ in Danielson, D and Engle, K (eds) After Identity: A Reader in Law and Culture (Routledge London 1995) 210;Google ScholarAllain, J‘Orientalism and International Law: The Middle East as the Underclass of the International Legal Order’ (2004) 17 Leiden International Law Journal 391–404;CrossRefGoogle ScholarMickleson, K‘Rhetoric and Rage: Third World Voices in International Legal Discourse’ (1998) 16 Wisconsin International Law Journal 353–420.Google Scholar

29 Donnelly 312. Otto also notes (n 2) 8 ‘in contemporary debates, the ‘universalists’ who are primarily Northern States, predict that even the slightest ‘ilution’ of universalism will give the green light to tyrannical governments, torturers and mutilators of women. The universalist position completely denies that the existing universal standards may themselves be culturally specific and allied to dominant regimes of power.’

30 Benedek, W ‘Human Rights in a Multi-Cultural Perspective’ in Ginther, K and Benedek, W (eds) New Perspectives and Conceptions of International Law. An Afro-European Dialogue Osterreichische Zeitschrift fur Offentliches recht und Volkerrecht Supplement 6 (Vienna 1984) 147–61, 150.Google Scholar

31 Cobbah, JAM‘African Values and the Human Rights Debate: An African Perspective’ (1987) 9 Human Rights Quarterly 309–31, 327. See also Okafor and Agbakwa (n 3).CrossRefGoogle Scholar

32 Art 1 reads: ‘the term ‘refugee’ shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.’

33 Art 2(1)

34 Art 5.

35 Art 2(2).

36 Art 4(1) of the African Charter provides that the best interests of the child is ‘the primary consideration’, in contrast to the UN Convention on the Rights of the Child where it is simply ‘a primary consideration’, see Gose, MThe African Charter on the Rights and Welfare of the Child (Community Law Centre Bellville 2002) 25–6.Google Scholar

37 Art 21(1) of the Charter.

38 Art 21(2).

39 Art 22.

40 Art 30.

41 Art 23. See in this respect, Kaime, T‘From Lofty Jargon to Durable Solutions: Unaccompanied Refugee Children and The African Charter on the Rights and Welfare of the Child’ (2004) 16(3) International Journal of Refugee Law 336–48.CrossRefGoogle Scholar

42 Communication 155/96 Social and Economic Rights Action Center and the Centre for Economic and Social Rights v Nigeria, Fifteenth Annual Report of the African Commission on Human and Peoples' Rights 2001–2, Annex V.

43 eg see Coomans, F‘The Ogoni Case before the African Commission on Human and Peoples' Rights’ (2003) 52 ICLQ 749–60;CrossRefGoogle ScholarOloka-Onyango, J‘Reinforcing Marginalized Rights in an age of globalization: international mechanisms, non-state actors, and the struggle for peoples' rights in Africa’ (2003) 18 American University International Law Review 851–913;Google ScholarShelton, D‘Decision Regarding Communication 155/96’ (2003) 96(4) AJIL 937–42.CrossRefGoogle Scholar

44 eg First Optional Protocol to the International Covenant on Civil and Political Rights; European Convention on Human Rights Art 34; American Convention on Human Rights Art 44.

45 eg Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon Eighth Annual Activity Report of the African Commission on Human and People's Rights (1994–5) Annex V; Communication 241/2001, Purohit and Moore v The Gambia Sixteenth Annual Report of the African Commission on Human and Peoples' Rights (2002–3) Annex VII.

46 eg Communication 242/2001 Interights, Institute for Human Rights and Development in Africa and Association Mauritanienne des Droits de l'Homme v Mauritania Seventeenth Annual Report of the African Commission on Human and Peoples'* Rights (2003–4) Annex VII.

47 eg Communication 75/92 Katangese Peoples' Congress v Zaire Eighth Annual Activity Report of the African Commission on Human and People's Rights (1994–5) Annex V.

48 It is unfortunate, however, that there have been no cases brought under the communication mechanism of the Charter relating to the rights of women specifically. It is a shame that NGOs and others have not used this process more.

49 eg NGOs can apply to obtain consultative status with UN ECOSOC, ECOSOC Resolution 1996/31.

50 eg Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002) ACHPR /Res 62(XXXII)02; Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (2002) ACHPR/Res 61(XXXII)02.

51 Resolution on the Rights of Indigenous People/Community in Africa, adopted at the 28th Session of the Commission (Nov 2000).

52 See below. At the UN level representatives of indigenous people can attend the Working Group on Indigenous Populations under the UN Sub-Commission on the Promotion and Protection of Human Rights, they can participate in the Permanent Forum for Indigenous Issues, and have had a role in discussing the Draft Declaration on the Rights of Indigenous Peoples.

53 The members of the Commission are Mrs Salamata Sawadogo, Mr Yaser El-Hassan, Mr Kamel Rezag-Bara, Ms Raine Alapinn-Gansai, Mr Musa Ngany Bitaye, Adv Faith Pansy Tlakulai, Mr Mumba Malila, Dr Angela Melo, Mr Mohammed Babana, Ms Sanji Monageng, and Mr Tom Nyanduga.

54 Decision on Mainstreaming Gender and Women's Issues in the African Union, CM/Dec 683. For example, Art 5 of the Protocol on the Peace and Security Council requires that members of the Council should be elected on the basis of ‘equal rights’, Art 5(1). The Protocol on the African Court of Justice provides that ‘due consideration shall be given to adequate gender representation in the nomination process’, Art 5(3) and ‘in the election of judges the Assembly shall ensure that there is equal gender representation’, Art 7(3).

55 See Anaya, JIndigenous Peoples in International Law (OUP Oxford 1996);Google ScholarLâm, MCAt the Edge of the State: Indigenous Peoples and Self-Determination (Transnational Publishers Ardsley 2000);Google ScholarAnaya, SJ and Williams, RA‘The Protection of Indigenous Peoples' Rights over Land and Natural Resources under the Inter-American Human Rights System’ (2001) 14 Harvard Human Rights Journal 33.Google Scholar

56 African Commission on Human and Peoples' Rights, Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, adopted at 35th session of the African Commission (May/June 2004) (African Commission on Human and Peoples' Rights Banjul 2004).

57 ILO Convention No 107, Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (1957); and No 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989).

58 1995–2004 General Assembly Resolution 50–157 (21 Dec 1995).

59 UN ECOSOC Resolution E–RES–2000–22 (28 July 2000).

60 Commission on Human Rights Resolution 2001/57 UN Doc E/CN.4/RES/2001/57 (24 Apr 2001).

61 Draft United Nations Declaration on the Rights of Indigenous Peoples (1994/45) produced in the Annual Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN 4/Sub 2/1994/56.

62 Under Art 62 of the African Charter states are required to submit reports to the Commission on the legislative and other measures that they have adopted to implement the Charter.

63 ‘[T]here is reference to the “San” people for example and reference has been made to the Herero people.…It would be helpful to know what is the situation relative to land rights, natural resources’, Questions posed by Commissioners during the examination of Namibia's report, 29th Ordinary Session of the African Commission, Tripoli, Libya (Apr 2001) see R Murray ‘Report of the 2001 Sessions of the African Commission on Human and Peoples' Rights’ on file with author.

64 African Commission on Human and Peoples' Rights Report of the African Commission' Working Group of Experts on Indigenous Populations/Communities, adopted at 35th session of the African Commission (May/June 2004).

65 Sixteenth Annual Report of the African Commission on Human and Peoples' Rights, Annex VII.

66 ibid paras 35–7

67 The Commission found violations of Art 2 (non-discrimination), 3 (equality before the law and equal protection of the law), 5 (dignity and prohibition of torture, inhuman or degrading treatment or punishment), 7(1)(a), and (c) (right to an appeal and right to a defence), 13(1) (participate freely in government), 16 (right to health) and 18(4) (special protection for the aged and disabled).

68 ibid paras 75–6. See in similar regards, before the European Court of Human Rights, Hirst v UK (No 2) Judgment of 30 Mar 2004.

69 See, eg, Askin, KD and Koenig, DMWomen and International Human Rights Law vols I and II (Transnational Publishers Ardsley NY 1999);Google ScholarKnop, KGender and Human Rights (OUP Oxford 2003);Google ScholarCook, RHuman Rights of Women: National and International Perspectives (University of Pennsylvania Press Philadelphia 1994); Charlesworth and Chinkin (n 5).CrossRefGoogle Scholar

70 See, eg, Integration of the Human Rights of Women and the Gender Perspective. Violence against Women. Report of the Special Rapporteur on Violence against Women, its causes and consequences, Ms Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights Resolution 2000/45, Violence Against Women Perpetrated and/or Condoned by the State during Times of Armed Conflict (1997–2000) E/CN.4/2001/73.

71 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (July 2003). See Murray, R ‘Women's Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa’ in Buss, D and Manju, AInternational Law: Modern Feminist Approaches (Hart Publishing Oxford 2005) 253–72.Google Scholar

72 ibid, Art 5(b).

73 Including the need for states to ‘undertake to protect asylum seeking women, refugees, returnees, and internally displaced persons, against all forms of violence, rape, and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction’ ibid Art 11(3).

74 States are obliged to ‘take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action’, ibid Art 9(1). Art 7 of CEDAW requires States to ensure that women on equal terms with men have the right to ‘participate in the formulation of government policy…participate in non-governmental organisations and associations…’. Art 8 CEDAW also adds that women should be ensured on an equal basis with men ‘the opportunity to represent their governments at the international level and to participate in the work of international organizations’.

75 Art 4 of the Protocol reads ‘States parties shall take appropriate and effective measures to (a) enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public;…(e) punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims.’

76 Protocol (n 58) Art 15.

77 ibid Art 16.

78 ibid Art 18.

79 In this respect it requires States to ‘ensure participation of women at all levels in the conceptualization, decision-making, implementation, and evaluation of development policies and programmes’, among other matters, ibid, Art 19.

80 ibid Art 14(2)(c).

81 In its document, Non-Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach DOC/OS/50b (XXIV), the African Commission suggests that one way in which the decisions of the Commission could be enforced would be the inclusion of such cases into the agenda of the Committee of Ministers and the Council of Ministers of the OAU, ‘the idea here being to “heckle” States accused of human rights violations and therefore to get rid of the process of confidentiality which has shown its limits and insufficiencies’.

82 Okafor and Agbakwa (n 3) 587.