ARTICLES

Contemporary challenges to international human rights law and the role of human rights education

Hedendaagse uitdagings vir internasionale menseregte en die rol van menseregte-opleiding

Frans Viljoen

BLC LLB LLM MA LLD Centre for Human Rights, University of Pretoria

OPSOMMING

In hierdie bydrae word vier hedendaagse uitdagings aan international menseregte onder die loep geneem. Hierdie uitdagings is: (1) Die internasionale menseregte-sisteem is oormatig ingewikkeld en gefragmenteerd, dog steeds onvolledig in die substantiewe beskerming wat dit bied. (2) Internasionale menseregte het nie voldoen aan die beloftes wat dit voorgehou het nie. (3) Die staats-gesentreerde aard van menseregte gee aanleiding daartoe dat state die paradoksale posisie inneem as beide menseregte-beskermer en menseregte-skender. (4) Internasionale mense-regte het nie voldoende aandag geskenk aan die behoeftes van die mees behoeftige lede van samelewings nie. Hierdie artikel maak die argument uit dat elkeen van hierdie uitdagings beter verstaan en benader kan word indien 'n multidissiplinêre, eerder as 'n streng judisiële of regsgebaseerde benadering gevolg word. Die inhoud van menseregte-opleiding moet dus krities heroorweeg word, en toelatingsvereistes vir meseregte-programme behoort aangepas te word om so 'n multidissiplinêre benadering te vergestalt.

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* Reworked version of an inaugural address, delivered as head of department ('Director') of the Centre for Human Rights, Faculty of Law, University of Pretoria, on 11 May 2011. A revised version of this address was also presented on 14 November 2011 at the Second International Conference on Human Rights Education, held from 14 to 16 November 2011, in Durban.
1 The adoption of the UN Declaration on Human Rights Education and Training by the UN Human Rights Council, on 23 March 2011, testifies to the growing importance attached to human rights education globally (UN Doc A/ HRC/RES/16/1, 2011-04-08). It is expected that the UN General Assembly will endorse this draft and adopt this as a UN Declaration in 2012.
2 Henkin The age of rights (1990) ix sates "Human rights is the idea of our time, the only political-moral idea that has received universal acceptance".
3 Wiesel "A tribute to human rights" in The Universal Declaration of Human Rights: Fifty years and beyond Y (eds Danieli, Stamatopoulou & Dias)(1999) 3.         [ Links ]
4 See eg Teson Humanitarian Intervention (1988) 15 ("a government that engages in substantial violation of human rights betrays the very purpose for which it exists").
5 Gearty Can human rights survive?' (2006).
6 Douzinas The end of human rights: Critical legal thought at the turn of the century (2000).
7 For an earlier critique of human rights more generally, see Kennedy "The international human rights movement: Part of the problem?" 2002 Harvard Human Rights Journal 101.         [ Links ]
8 See eg the 2003 Southern African Development Community (SADC) Social Charter and 2008 Protocol on Gender and Development; and the 2006 Protocol on the Protection and Assistance to Internally Displaced Persons to the Pact on Security, Stability and Development in the Great Lakes Region (of the International Conference on the Great lakes Region).
9 Convention on the Elimination of All Forms of Racial Discrimination (CERD); International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (CAT); Convention on the Rights of the Child (CRC); Convention on the Protection of the Rights of All Migrant Workers and the Members of their Families (CMW); Convention on the Rights of Persons with Disabilities (CRPD); Convention for the Protection of All Persons from Enforced Disappearance (CED).
10 See arts 14(1)(d) and 14(1)(e) Protocol to the African Charter on the Rights of Women in Africa.
11 See eg the decision of the UN Human Rights Committee, Communication 488/1992, Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (1994-04-04).
12 See also the establishment by the African Commission of the Committee on on the Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, in 2010 (ACHPR/Res163(XLVII)2010).
13 Coomaraswamy "Reinventing International Law: Women's Rights as Human Rights in the International Community" Edward A Smith Lecture, Harvard Human Rights Program, 1997 available at http://library.columbia.edu/urlmirror/11/ReinventingInternationaLaw.htm (accessed 2011-04-30).
14 See Saiz "Bracketing Sexuality: Human Rights and Sexual Orientation - A Decade of Development and Denial at the UN" 2004 Health and Human Rights 49 65.         [ Links ]
15 Although there are numerous other human rights treaties under the UN, the eight mentioned above are the only treaties establishing human rights treaty bodies.
16 Art 62 African Charter on Human and Peoples' Rights.
17 Initial reports have to be submitted within two years of entry into force for a particular state (art 43(1)(a) African Children's Charter).
18 See Report of the UN Secretary General In larger freedom(2005) par 147: "Harmonized guidelines on reporting to all treaty bodies should be finalized and implemented so that these bodies can function as a unified system."
19 See eg art 28(2) CED: "As it discharges its mandate, the Committee shall consult other treaty bodies instituted by relevant international human rights instruments, in particular the Human Rights Committee instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the consistency of their respective observations and recommendations."
20 Guidelines for state reporting under the Protocol to the African Charter on the Rights of Women in Africa (http://www.achpr.org/english/Special%20Mechanisms/Women/Guideline/Guidelines _State%20Reporting_Women_eng.pdf) (accessed 2011-04-30).
21 See eg Oberleitner "Towards an International Court of Human Rights?" in International human rights law: Six decades after the UDHR and beyond (eds Baderin & Ssenyonjo)(2010) at 359.
22 Oberleitner op cit370.
23 Art 19 Protocol relating to the Establishment of the Peace and Security Council of the African Union provides that the PSC should seek "close collaboration" with the African Commission on Human and Peoples' Rights. The Commission should adjust its competence under art 58 of the African Charter, which provides for the Commission to draw situations of serious or massive violations to the attention of the AU Assembly, to rather refer such cases to the attention of the AU PSC.
24 Although there is no formal link between the African Commission or African charter, on the one hand, and the New Partnership for Africa's Development (NEPAD) and its African Peer Review Mechanism (APRM), on the other, there continued on next page is no reason why the African Commission should not make reference to APRM reports in its examination of state reports submitted under art 62 of the African Charter. Similarly, the APRM process should rely on the previous examinations of state reports (and concluding observations adopted by the African Commission and African Children's Committee) in respect of states undergoing the APRM process.
25 The PAP's competence includes the examination and discussion of "matters pertaining to respect for human rights" (art 11(1) Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament). This provision could be the basis for more extensive engagement with human rights.
26 For this wording, see Report of the UN Secretary General In larger freedom (2005) par 132: "We must move from an era of legislation to an era of implementation."
27 Preamble Universal Declaration of Human Rights.
28 See eg Keith & Ogundele "Legal Systems and Constitutionalism in SubSahara Africa: An Empirical Examination of Colonial Influences on Human Rights" 2007 Human Rights Quarterly 1065.         [ Links ]
29 Hathaway "Do Human Rights Treaties Make a Difference?" 2002 Yale LJ 1935 2007.         [ Links ]
30 See Goodman & Jinks "Measuring the Effects of Human Rights Treaties" 2003 European J of Int L 171 173.         [ Links ]
31 See Goodman & Jinks op cit 175; Bollen "Political Rights and Political Liberties in nations: An Evaluation of Human Rights Measures, 1950 to 1984" in Human rights and statistics: Getting the Record Straight (eds Jabine & Claude)(2002) 200.
32 Simmons Mobilising for Human Right: International law in domestic politics (2009) 15.
33 See Wood & Gibney "The Political Terror Scale (PTS): A Re-introduction and a Comparison to CIRI" 2010 Human Rights Quarterly 367 367-400; Cinganelli & Richards "The Cingranelli and Richards (CIRI) Human Rights Data Project" 2010 Human Rights Quarterly 401-424.
34 Wood & Gibney op cit381.
35 See eg the studies in Heyns & Viljoen The impact of the United Nations human rights treaties on the domestic level (2002); Simmonds 284-304, focusing on Chile and Israel in her analysis of torture and the impact of CAT.
36 Art 39 UN Charter.
37 The Independent International Commission on Kosovo The Kosovo Report. Conflict, International Response, Lessons Learned (2000) 186.
38 International Commission on Intervention and State Sovereignty (ICISS) "The Responsibility to Protect" (2001) http://www.iciss.ca/pdf/Commission-Report.pdf (accessed on 2011-04-30).
39 Security Council Resolution S/RES/1973 (2011) (2011-03-17), as well as Security Council Resolution S/RES/1970 (2011) (26 February 2011), preamble: "Recalling the Libyan authorities' responsibility to protect its population".
40 See eg African Union, The Common African Position on the Proposed Reform of the United Nations (the "Ezulwini Consensus"), AU Doc Ext/ EX.CL/2 (VII), advocating eg for "full representation of Africa in the Security Council", meaning "not less than two permanent seats with all the prerogatives and privileges of permanent membership including the right of veto" and "five non-permanent seats".
41 Peters "Humanity as the A and Q of Sovereignty" 2009 European Journal of Int L 513 540.         [ Links ]
42 See however the AU's own position, which is more restrictive (Ezulwini Consensus): "The African Union agrees with the Panel that the intervention of Regional Organisations should be with the approval of the Security Council; although in certain situations, such approval could be granted 'after the fact' in circumstances requiring urgent action. In such cases, the UN should assume responsibility for financing such operations."
43 Rule 118(3): "The Commission may, pursuant to Rule 84(2) submit a case before the Court against a State party if a situation that, in its view, constitutes one of serious or massive violations of human rights as provided for under article 58 of the African Charter, has come to its attention."
44 See Rule 118(1), which refers to the "decisions" taken by the Commission in respect of inter-state communications (under arts 48 and 49 Charter) and individual communications (under art 55 Charter).
45 Through the transformation of the AU Commission into an AU Authority, which aims to "broaden the mandate" of the Commission. Although the decision has been taken by the AU Assembly, the details are still in the process of being formulated. The real possibility remains that the "transformation" would be largely symbolic, with an emphasis on changed nomenclature (the title "President" and "Vice-President" of the Authority will be used) combined with little fundamental transfer of competences to the new AU Authority.
46 Du Bois "Of the dawn of freedom" in The souls of black folk (1905).
47 See eg essays in Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (eds Gargarella, Domingo & Roux)(2006).
48 See eg Pogge "Severe poverty as a human rights violation" in Freedom from poverty as a human right: Who owes what to the very poor? (ed Pogge)(2007) 11 13; Campbell "Poverty as a violation of human rights: Inhumanity or injustice?" in Freedom from poverty as a human right: Who owes what to the very poor? (ed Pogge)(2007) 55 56. See also the three conceptual frameworks privided in Doz Costa "Poverty and human rights: From rhetoric to legal obligations: A critical account of conceptual frameworks" 2008 SUR International Journal on Human Rights 81.         [ Links ]
49 Rapporteur's Report on the Draft African Charter on Human and Peoples' Rights, OAU DOC CAB/LEG/67/Draft Rapt.Rpt. (II) Rev.4, para. 13, reprinted in Human Rightts Law in Africa 1999 (ed Heyns)(2002) 94.
50 Art 8(4) Optional Protocol to the ICESCR: "When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant" (emphasis added).
51 See generally Dennis & Stewart "Justiciability of economic, social and cultural right: Should there be an international complaints mechanism to adjudicate the right to food, water, housing and health?" 2004 American Journal of Int L 462.
52 These numbers are based on the lists of cases completed by all UN human rights treaty bodies displayed on http://www.bayefsky.org (accessed 2011-04-30). The "successful complaints" are cases conclusively decided on the merits in which a violation by the state has been found.
53 Purohit and Another v The Gambia(2003) AHRLR 96 (ACHPR 2003).
54 M'Baye Les droits de l'homme en Afrique (1992) 184-209
55 See eg Donnelly "In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development" 1984 California West Int LJ 485.
56 Art 22 African Charter.
57 Communication 276/2003, Centre for Minority Rights Development (Kenya) and Minority Group Rights International (on behalf of Endorois Welfare Council) v Kenya, 27th Activity Report of the African Commission on Human and Peoples' Rights, 2009.
58 Art 2(1) ICESCR.
59 UN General Assembly Doc A/RES/75/2626 (XXV). International Development Strategy for the Second United Nations Development Decade, 24 October 1970, par 43: "In recognition of the special importance of the role which can be fulfilled only by official development assistance, a major part of financial resource transfers to the developing countries should be provided in the form of official development assistance. Each economically advanced country will progressively increase its official development assistance to the developing countries and will exert its best efforts to reach a minimum net amount of 0.7 per cent of its gross national product at market prices by the middle of the Decade."
60 Government of the Republic of Ireland in its White Paper on Irish Aid (2006): "First and foremost, we give aid because it is right that we help those in greatest need. We are bound together by more than globalisation. We are bound together by a shared humanity. The fate of others is a matter of concern to us. From this shared humanity comes a responsibility to those in great need beyond the borders of our own state. For some, political and strategic motives may influence decisions on the allocation of development assistance. This is not the case for Ireland. For Ireland the provision of assistance and our cooperation with developing countries is a reflection of our responsibility to others and of our vision of a fair global society."
61 None of these steps also absolve states in Africa and elsewhere to adjust their priorities in allocating available resources and to eradicate corruption and the systematic enrichment of isolated elites.
62 Singer "Famine, affluence and morality" 1972 Philosophy and Public Affairs 229.
63 See further Singer The life you can save: Acting now to save world poverty (2009).
64 For a general introduction to the relationship between human rights and the social sciences, see Freeman Human Rights: An Inter-disciplinary approach (2011).
65 On the transformation of moral rights into legal rights, see eg Meckled-Garcia and Çali "Lost in translation" in The Legalization of Human Rights. Multidisciplinary Perspectives on Human Rights and Human Rights Law (eds Meckled-Garcia & Çali)(2006) 11.         [ Links ]
66 See eg Forsythe "Human Rights Studies: On the Dangers of Legalistic Assumptions" in Methods of Human Rights Research (eds Coomans, Grünfeld & Kamminga)(2009) 59 62: "The crux of this view [that human rights studies are often legalistic] is that many lawyers are often too uncritical about international human rights law,         [ Links ] too focused on treaty language and court cases, and not appreciative enough about soft law and extra-legal factors that affect policy and behaviour related to human rights."
67 Meron, The humanization of international law (2006).
68 Bianchi "Terrorism and armed conflict: insights from a law and literature perspective" 2011 Leiden Journal of Int L 1 18.
69 Tembani v Zimbabwe, case no SADC 7/2008, 2009-06-05.
70 This summary is based on facts as contained in the Tribunal's judgment, as well as information obtained from http://www.sokwanele.com/thisiszimbabwe/archives/6685 (accessed on 2011-04-30).
71 Barks & Moyne The Essential Rumi'(1995).