A Human Rights-based Approach to Development in Africa: Opportunities and Challenges

The African Charter on Human and Peoples' Rights (African Charter or Charter) does not contain a clause permitting suspension of human rights during while major human rights instruments allow state parties to suspend some rights. The African Commission on Human and Peoplesâ?? Rights (African Commission or Commission) has repeatedly held that a declaration of a state of emergency cannot be invoked as a justification for violations or permitting violations of the African Charter. The silence of the African Charter and the position of the African Commission have not been welcomed by some scholars. The African Charter enjoys universal ratification as all member states of the African Union are parties thereto. Upon ratification, state parties have undertaken to adopt legislative and other measures to give effect to the rights recognised therein. However, an examination of their constitutions reveals that state parties have not taken sufficient legislative measures to ensure compatibility of their laws with the African Charter. As a result, many African constitutions contain clauses. This article argues that the omission of a clause from the African Charter was not a mistake. And it is not a defect in the Charter. Rather, it shows positive development of human rights norms in Africa and should not be seen as a defect. The arguments calling for incorporation of a clause fail to consider factors that may justify its absence. The incorporation of a clause in the African constitutions and consequently derogating from constitutional rights are violations of the African Charter and other international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR). The article is organised in seven sections. The first section introduces the issues to be explored. The second section discusses the meaning of important terms such as derogation and public emergency, and the purpose served by derogating from human rights. The third section presents arguments against the absence of clauses together with the factors that may justify their absence. The fourth section makes a brief survey of the African constitutions to examine their compatibility with the African Charter. The fifth and sixth sections discuss the implication of derogating from the constitutional rights under the African Charter and other human rights instruments respectively. The last section makes some concluding remarks.

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

The Quest for Information Privacy in Africa: A Review Essay

The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

Reviewed by: The International Human Rights Movement: A History by Aryeh Neier Wendy H. Wong (bio) Aryeh Neier , The International Human Rights Movement: A History (Princeton University Press 2012), 379 pages, ISBN No. 978-0-6911-3515-1. A number of important books in the field of human rights have attempted to trace the long history of the phenomenon (and importance) of rights in the political and social history of human civilizations.1 Aryeh Neier's The International Human Rights Movement: A History fundamentally shifts the focus of such discussions, electing instead to focus mostly on post-World War II developments and the global shift towards a human rights oriented world. The book takes its place in the burgeoning bibliography of books that offers a history of human rights, which speaks in itself to the rising importance of the topic across a variety of academic fields. It makes two contributions. First, it adds to the understanding that human rights as we know them today have unfurled most dramatically and most relevantly since the end of World War II.2 Second, Neier's emphasis on non-state actors and, in particular, the nongovernmental organizations (NGOs) that helped reify the human rights project from aspirational international law to practical policies places it among the few sweeping histories of the work, highlighting the role of an international movement in disseminating the human rights regime.3 In these two senses, Neier's version of how we should understand where human rights come from and where they are going should be a primer for anyone starting the study of human rights. Given the growing interest of recent publications in the role that non-state actors play in the construction of human rights, Neier's book is a classic statement of a growing theme in both public and scholarly imaginations.4 Neier's basic thesis is that the international human rights movement has been the most important catalyst in securing human rights throughout the world in the past thirty-five years. He proceeds in the book to provide ample [End Page 804] evidence for why NGOs have affected human rights outcomes. Neier's credible analysis stems from a place of personal investment in the subject matter; after all, he served as Human Rights Watch's founding Executive Director and shaped the politics of human rights in the United States during some of the key moments of inconsistency in the Reagan administration. Neier's book brings to life the contributions of not only the organization dear to his heart, but also traces the history of Amnesty International and other lesser known human rights NGOs working in the US, including: Human Rights First, Physicians for Human Rights, The Committee to Protect Journalists, Global Rights, and others. Neier also discusses non-US-based NGOs. These stories serve to demonstrate the diversity of views and strategies within the worldwide human rights movement, and in turn, Neier gives smaller groups a platform. This is an important achievement of the book, as to date most scholarly examinations have focused on larger, politically salient groups, thereby giving a rather skewed view of international human rights work. As much as this book notes the importance of NGOs, it is also quite clear that Neier did not simply wish to tell a story of NGOs in international human rights politics; instead, he sought to draw a more complete picture by bringing in a broader discussion of human rights beyond non-state actors. In a later chapter, for instance, Neier tackles what he sees as a major goal of the international human rights movement in more recent years: how to hold states accountable for their most grave of abuses. It is in this discussion of the International Criminal Court and other such institutions of accountability that Neier's account of the role of NGOs gets a bit muddled. What exactly is the role of NGOs once tribunals like the ICC get established? Is the work of global activism pertaining to the realization of accountability for human rights abuses, at least the most atrocious of abuses, somewhat resolved now that states have decided to create their own international institutions? The desire to "go beyond" non-state actors...

Regional human rights systems play a crucial role in strengthening IHRL. Initial concerns that regional systems could undermine the universality of human rights law have been surmounted in light of the important results achieved. In particular regional human rights systems provide a significant layer of protection, they can be more effective than UN bodies as they are closely connected to political regional developments and they have largely contributed, especially through their jurisprudence, to the enhancement of IHRL. In the field of reparations the Inter-American Commission and the Inter-American Court have paved the way to all the major developments, also in cases affecting children. The African human rights system, and in particular the African Committee of Experts on the Rights of the Child, the African Commission and Court on Human Rights and People's Rights, will be also analysed as the African continent is the most affected by violations of children's rights in armed conflict. The European human rights system will not be included in this overview because it has not dealt wiThthe impact of armed conflict on children.

This article looks into the meanings of 'human rights' and 'democracy' which are supposed to be 'essentially contested.' In this connection, it revisits the history of Western political ideas in which the political thoughts of John Locke and Jean-Jacques Rousseau on human rights and democracy are reviewed and contrasted. The ultimate purpose of this exercise is to elucidate the theoretical basis of contemporary debates on North Korean human rights within South Korea. For these debates seem to have to do with the multifarious meanings of 'human rights' and 'democracy.' While most people tend to support the concepts of both 'human rights' and 'democracy' with positive outlook, they do not seem to make an adequate differentiation of these terms. This phenomenon is not helpful in addressing the real problems of human rights in some sector of the world. In this sesne, a contrasted comparison between Locke and Rousseau regarding human rights and democracy can shed light on the contempoary debate in this field. Locke provided a comparatively thorough discussion on 'natural rights' in 17th century Europe and, in turn, the theoretical basis of contemporary liberal democracy. He emphasized that human beings were born with the natural rights of life, liberty, and property before the civil government had been established. Furthermore, he argued that the purpose of establishment of civil government was to preserve the natural rights of human beings. This means that Locke's view on natural rights underlies the 'civil and political rights' of contemporary international human rights norms. On the other hand, Rousseau, while paying keen attention to the same question of human liberty, provided a different methodology to achieve this goal in the 18th century. In other words, he advocated comparatively equal level of property among human beings for guaranteeing freedom of the people. In this sense, he placed priority on the equality over the liberty in reality of human life. In turn, he seemed clear that he had provided the theoretical basis for the 'economic and social rights' of the contemporary international human rights norms. At the same time, this article points out that whether Rousseau intended it or not, he contributed to the rise of social democracy or communism as put forward by Karl Marx and Vladimir Lenin. In particular, his thesis of 'general will' in political community embraces a crucial theoretical strand of totalitarianism as pointed out by scholars. While this interpretation of Rousseau is not common in contemporary debates on democracy, this article posits that such approach helps to clarify the contemporary debates and even confusion in the field of human rights protection. Seen in this way, the discourses of both human rights and democracy are both sides of the same coin. The 'civil and political rights' form the basis of liberal democracy while 'economic and social rights' social democracy or totalitarian communism. These two contrasted discourses have dominated modern political history, in particular, during the Cold War period. This is why the International Covenants on human rights were divided into two separate documents while the Universal Declaration of Human Rights represented a simple juxtaposition of these two ideological positions on human rights. The contrasted and even confrontational situations between the two theoretical positions were remarkably weakened with the collapse of the Berlin Wall as a proof of failed Eastern bloc. Nevertheless, the same contrasted discourse of human rights and democracy continues by way of now the concept of human security meaning both 'freedom from fear' and 'freedom from want.' The two political regimes on the Korean peninsula emerged as a byproduct of the two competitive visions of human rights and democracy.

Introduction: The issue of the relationship between international law and national legal policies in developing countries, especially in the context of human rights (HAM), is increasingly relevant in contemporary international law studies. Developing countries often face significant challenges in integrating international human rights standards into their domestic legal systems.Purposes of the Research: This study aims to analyze the influence of international law on national legal policies in developing countries in the context of human rights.Methods of the Research: The method used in this study is the normative legal research method with a literature study approach, which includes an analysis of various national laws and international legal instruments related to human rights. In addition, this study also refers to the results of academic studies, reports from international human rights institutions, and official documents from organizations such as the United Nations (UN) and the National Human Rights Commission. This approach provides a more comprehensive picture of the implementation of international human rights standards in developing countries.Results Main Findings of the Research: The results main findings of the study show that although many developing countries have ratified various international instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, their implementation is often hampered by various domestic factors. Inconsistencies between international obligations and national conditions are major obstacles, exacerbated by political instability, weak state institutions, limited resources, and tensions between international norms and local cultures. In addition, political resistance to the implementation of international human rights policies is also a significant challenge, especially in countries that prioritize political or economic interests over commitment to global human rights standards.

The complex and often sensitive interrelationship between international human rights obligations and national governments and legislatures is the subject of debate in the Nordic countries. Criticism has been voiced against the dynamic interpretation of human rights norms and the limitations on legislatures resulting from the judicial activities at the international level, in particular the European Court of Human Rights. Against this background, this article discusses the interdependence between democratic legitimacy and the protection of fundamental rights, as illustrated by recent ECtHR case law. While the need for democracy to be capable of defending itself has been recognised, the ECtHR has emphasised the impact of the rule of law in the context of restrictions of rights as well as the responsibility of domestic authorities to exercise their legislative and other competences as a precondition for being granted the margin of appreciation. The distinction between civil and political rights and socio-economic rights has had significant influence on the discussion of human rights, democracy and the division of powers, and the animosity against entrusting power to settle legal disputes to judicial bodies is particularly strong with regard to socio-economic rights. Therefore, this traditional perception of the normative character of the two sets of human rights is being questioned, and the indispensable role of social, economic and cultural rights in developing stable and sustainable democracies is illustrated by reference to theory and practice applying an integrated approach to the various types of rights. The article concludes with some reflections on the impact of the criticism of dynamic human rights on the future protection of socio-economic rights, and the dilemmas inherent in domestic implementation of evolving international norms.

The right to health and health services is generally framed as the right to the highest attainable standard of health. Like other human rights, the right to health confers to all people specific entitlements and imposes duties on governments to protect and promote them. It reflects a broadened sense of governmental responsibility for the welfare of its citizens and a more inclusive understanding of human rights. All countries, including the United States, have ratified at least one binding human rights convention that includes a provision on the right to health. The Universal Declaration of Human Rights, adopted by the United Nations more than six decades ago, has given rise to a series of international human rights instruments that legally obligate states to implement their provisions. The two most important of these are the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Despite substantial progress, a number of issues still need to be addressed for the realization of the right to health, such as the lack of political commitment on the part of many states with regard to implementation and the weakness of the international human rights system. Furthermore, many states which have ratified international or regional human rights instruments that recognize a right to health or have relevant constitutional provisions still do not invest the necessary resources or apply human rights standards to the framing of health policies.

Reviewed by: The Twilight of Human Rights Law by Eric A. Posner Hurst Hannum (bio) Eric A. Posner, The Twilight of Human Rights Law (Oxford University Press 2014), 185pages, ISBN 978-0-19-931344-0. Professor Eric A. Posner is a prolific writer and the Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago. From his CV, it appears that he has spent essentially his entire career in academia. This provocative book is thus primarily a philosophical, quasi-social science critique of international human rights law based on theory, not practice or experience. This very brief biographical summary is necessary because The Twilight of Human Rights Law is based on fundamental misunderstandings of the human rights project, which began in the 1940s, gained political traction in the 1970s, and today influences the rhetoric of practically every government in the world. These misunderstandings are both conceptual and analytical, and they undermine the attention that should be given to a number of difficult questions that Posner raises. The conceptual misunderstanding emerges from the first sentence of Chapter 1: “The animating idea behind human rights is the moral obligation not to harm strangers, and possibly the moral obligation to help them if they are in need.”1 This view of human rights as a legal-moral obligation on outsiders to impose their will or sense of justice on “strangers” leads fairly easily to Posner’s ultimate conclusion that “human rights law has failed to accomplish its objectives,” as discussed more fully below.2 The analytical misunderstanding is shared by many of the new “quantifiers” of human rights compliance, whether they are critical or supportive of human rights in general. It is the assumption that attempting to measure the impact of human rights treaties is a useful means of measuring the impact of human rights. A corollary is that the weakness of legally binding or other enforcement mechanisms is a measure of their failure. In reality, those who draft international human rights texts and who work to implement human rights norms have much more modest goals. Human rights law was not created to justify outside intervention (whether by force or otherwise); it was “animated” by the simple proposition that every human being has rights simply by being human, and that these rights belong to each person equally. While concepts of justice, fairness, and equality have appeared within societies since the beginning of time, the revolution wrought by international human rights was to expand these notions to include those who had been excluded from protection in any given society due to race, caste, gender, religion, or similar characteristics. A second important feature of international human rights law is its origin in the mid-twentieth century, a time when the state was becoming more powerful and increasingly ubiquitous. Human rights focuses on the relationship between the government and the individual (and occasionally groups), both to protect the individual from the power of the state and to identify the positive responsibility of the state to concern itself with the socioeconomic welfare of its population. The changes in government behavior envisaged by human rights are potentially [End Page 1105] extensive and long-term. Thus, Posner’s focus on the recent (twenty years or so) impact of human rights treaties largely misses the point. The goal has always been to persuade governments to change laws and policies through domestic processes, not to impose human rights law primarily through courts, economic sanctions, or military campaigns led by “foreigners.” Posner first offers a superficial overview of human rights history and institutions. The latter discussion is marred by a number of minor errors or overstatements that reflect Posner’s lack of familiarity with the way in which human rights institutions actually work. For example, the book frequently refers to the UN “Council on Human Rights” rather than the Human Rights Council. The description of the work of the UN human rights treaty bodies with respect to individual complaints refers to their attempts to “mediate”3 solutions or to enter into a “dialogue”4 with the country concerned. There is no mention of the committees’ often blunt criticism of specific human rights situations in a country or their published “views...

With an emphasis on the recurring trends of abuse and the legal frameworks put in place to deal with such misconduct, this study examined the frequency of human rights abuses by the Nigerian Police Force. Despite having constitutional and statutory protections like the 1999 Constitution (as amended), the Administration of Criminal Justice Act (2015), and the Police Act (2020), as well as being a signatory to important international human rights instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples' Rights, widespread violations still plague law enforcement operations in Nigeria. Using documented reports from reliable organisations like Amnesty International, Human Rights Watch, and the National Human Rights Commission (NHRC), the study identifies and investigates frequent abuses, including extrajudicial killings, arbitrary detention, torture, unlawful arrests, and excessive use of force. It also looks at the structural causes of these abuses, including judicial incompetence, institutional weakness, corruption, militarised policing culture, and inadequate police welfare. Despite the existence of strong legislative restrictions, the study discovers that a lack of political will and a culture of impunity frequently compromise execution. Through the use of a qualitative methodology and secondary data analysis, the study emphasises how urgently training, accountability systems, law enforcement, and institutional control need to be changed. It concluded with important suggestions for advancing a police force that upholds human rights and fortifying Nigeria's legal and democratic systems. The report adds to the current conversation on protecting human rights and changing Nigerian policing.

Human rights as a strategic system, David Barnhizer human rights priorities and responsibilities for citizens, Noam Chomsky torture in the United States - connecting international human rights standards to abuse in American prisons, Bonnie Kerness tactical innovations for human rights, Douglas A. Johnson and Kate Kelsch the Bureau des Advocats Internationaux - a victim-centred approach, Brian Concannon Jr toward a more responsive sovereignty - confronting human rights violations through national reconstruction, Jennifer Moore protecting civilians in conflict and post-conflict, Kate Robertson babe politics and the victim subject - negotiating agency in women's human rights, Ratna Kapur human rights and the future of international politics - realism and global humanism, Robert Charlick a different look at sovereignty, Anthony D'Amato international jurisdiction and prosecutorial crimes, Richard J. Goldstone coping with chaos while acting justly - lessons from Rwanda, David Rawson the United States approach to international human rights law, David Weissbrodt prosecuting violations of human rights in US courts - a primer for the Justice Department on the Convention against Torture, William J. Aceves why the International Criminal Court should have jurisdiction over contemporary forms of slavery, James G. Wilson will history repeat itself? - case studies of systemic constraints on defence counsel in historic international war crimes trials and the need for resource parity, Richard J. Wilson the (al)lure of the genocide trial - justice, reconciliation and the reconstruction in Rwanda, Mark Drumbl the rights of indigenous peoples to a healthy environment and use of natural resources under international human rights law, Bradford C. Mank civil remedies for gross human rights violations, Michael Ratner holding multinational corporations accountable for human and environmental rights abuses, Richard Herz.

The African human rights system encompasses two major instruments: the African Charter on Human and Peoples' Rights, and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa. The enforcement and monitoring mechanisms for both the Charter and the Protocol are the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights. The Court has power to give advisory opinions on an issue relevant to the African Charter or any other relevant human rights instrument. The advisory opinion may be requested by African Union States, the African Union or any of its organs or any African organisation recognised by the African Union. The effectiveness of the Commission and the Court will depend on the extent to which sufficient resources are provided for them to carry out their mandates. Keywords: African Charter; African human rights system; human rights instrument; monitoring mechanisms