Abstract
The clash of ideals is the most apparent in the arena of human rights. The challenge of a new dialogue on human rights lies in a redefinition of the legal, economic, social, and cultural values by developing countries, and in seeking common ground with the developed world. Forging a new “right to development” within the discourse on international development law is helping to establish a new and highly significant legal jurisprudence on the subject.
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Notes
- 1.
Cossman (1991), pp. 339, 345.
- 2.
UN G.A. Res. 217 A (III), U.N. Doc. A/810 at 71 (December 10, 1948). Although the UDHR was adopted by a vote of 48 to 0, eight member countries abstained, namely, Byelorussia, Czechoslovakia, Poland, Soviet Union, Ukraine, Yugoslavia, Saudi Arabia, and South Africa. See Mutua (1996), p. 589, n. 1. See also Cassesse (1992), pp. 25, 31 n. 22.
- 3.
Mutua (1996), p. 590 n. 1, 605.
- 4.
See generally, Bunn (2000), p. 1425.
- 5.
- 6.
See Alston (1990), pp. 365, 381.
- 7.
See generally, Locke (1988).
- 8.
See Donnelly (1990), p. 31.
- 9.
- 10.
- 11.
G.A. Res. 2200 A, (XXI) U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) (entered into force on Mar. 23, 1976). See also Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16 at 59, U.N. Doc. A/6316 (1966) (entered into force on Mar. 23, 1976).
- 12.
G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16 at 49, U.N. Doc. A/6316 (1966) (entered into force on Jan. 3, 1976).
- 13.
See Mutua (1996), pp. 592–593.
- 14.
- 15.
- 16.
Alston (1990), p. 366 n. 10.
- 17.
Paul Brietzke perceptively states that: “Advocates of the right to development can properly gore the oxen of both sides evenhandedly. For example, it costs the United States government little to permit meaningful freedom of speech, while guaranteeing the right to a job would be extremely expensive; job guarantees cost the Soviet government little—a bit of additional inefficiency from overmanning—but true free speech might cause the regime to collapse.” (1985, pp. 560, 586). Further, as Brietzke noted, the Soviet system, while guaranteeing “work,” could not guarantee a living wage or a participatory method of governance, and simply collapsed from within.
On the other hand, in the United States, and other industrialized Western European nations, expected guarantees of a certain standard of living and opportunities for full employment have become more problematic. Changing demographics through the influx of immigrants and changes in international trade patterns often threaten job security or actually result in increased unemployment in many of these nations.
- 18.
Alston (1990), p. 373.
- 19.
Alston points put that this type of philosophical resistance to the idea of social and economic rights does not reflect the current welfare commitments of Western democracies such as France, Germany, Great Britain, and others, who have made significant commitments to their citizenry to provide for their economic security, physical and mental health needs, and recreational interests. See Alston (1990), pp. 375–376.
- 20.
Id. at 387. Moreover, Louis Sohn argues forcefully that FDR’s Four Freedoms, to wit, the freedom of speech and expression, the freedom of worship, the freedom from want, and the freedom from fear, also provide the foundation for economic rights. See Lois Sohn, “The Human Rights Movement: From Roosevelt’s Four Freedoms to the Interdependence of Peace, Development and Human Rights.” March 8, 1995, lecture delivered at Harvard Law School (Harvard Law School Human Rights Programme, 1995) at 8–13. Charles Merriam, then vice-chair of the National Resources Planning Board, expanded the Four Freedoms into a revised “Economic Bill of Rights,” including, inter alia, the right to work; the right to adequate food, clothing, shelter and medical care; the right to education; the right to personal growth and happiness; and the opportunity to enjoy life and take part in an advancing civilization (Id.). The resemblance of these rights and those articulated in the ICESCR is unmistakable.
- 21.
Dennis and Stewart (2004), pp. 462, 476.
- 22.
Id. at 477.
- 23.
Id. at 466.
- 24.
N.B. The social and economic rights set forth in the UDHR, as ratified under the Truman Administration in 1948, has the force of customary international law. To some, this may negate the necessity of having the U.S. ratify the ICESCR. Others may argue that this is a cynical view!
- 25.
Philip Alston himself recognizes this by stating that “there is little reason to expect that [the] challenge will be taken up by many of the scholars, or activist groups, currently working in the human rights field.” (Alston 1990, p. 392).
- 26.
U.N. General Assembly Res. 3201 (S-VI), 29 U.N. GAOR Supp. No. 1, p. 3, U.N. Doc. A/9559 (1974) [hereinafter “NIEO Declaration”].
- 27.
U.N. General Assembly Res. 3202 (S-Vl), 29 U.N. GAOR Supp. No. 1, p. 5, U.N. Doc. A/9559 (1974) [hereinafter “NIEO Programme of Action”].
- 28.
UN General Assembly Res. 3281, 29 U.N. GAOR Supp. No. 30, p. 50, U.N. Doc. A/9631 (1974) [hereinafter “CERDS”].
- 29.
- 30.
U.N. General Assembly Res. 3201 (S-VI), 29 U.N. GAOR Supp. No. 1, p. 3; U.N. Doc. A/9559, Preamble, 111 (1974).
- 31.
Ellis (1985), pp. 647, 652–653.
- 32.
Sohn (1978), p. 1. Professor Sohn writes, “there is wide consensus that these [NIEO] declarations actually established new rules of international law binding upon all States. This is not treaty making but a new method of creating customary international law.” (Id. at 16.)
- 33.
- 34.
- 35.
Simma and Alston (1992), pp. 82, 88.
- 36.
Lauterpacht (1958), p. 191.
- 37.
See Ellis (1985), pp. 670–671, 672. Ellis correctly points out that the mere fact that the UN General Assembly is a highly political body (where many controversial views may be expressed) should not detract from its rule-making authority or from the legal effect of its resolutions. Clearly, the legislatures (or parliaments) of other countries are all highly political bodies that are designed to elicit and express a wide variety of political opinion within the legislative process.
- 38.
Id. at 667 n. 126, 699.
- 39.
Id.
- 40.
Vienna Convention of the Law of Treaties, 1155 U.N.T.S. 331, reprinted in 63 Am. J. Int’l L. 875, 891 (1969). It has been argued that Article 53 of the Vienna Convention provides the basis to void the operation of treaties which conflict with peremptory international norms. Further, developing country support of the inclusion of a jus cogens doctrine in the Convention stemmed from the desire to mitigate the effect of pacta sunt servanda, or the doctrine requiring that international obligations be observed by the signatories. The jus cogens doctrine was adopted in the Vienna Convention despite reservations concerning the vagaries of state practice in defining peremptory international norms. See Charlesworth and Chinkin (1993), pp. 63, 64–65.
- 41.
Statute of the I.C.J., art. 38, 59 Stat. 1055, T.S. No. 993, 3 Bevans 1179.
- 42.
Shelton (2006), pp. 291, 297.
- 43.
Id. at 300, footnotes omitted.
- 44.
Id.
- 45.
Id. at 295. Other sources of peremptory norms include not only state consent and natural law but also necessity, international public order, and constitutional principles. Id. at 302. Moreover, there is an evolutionary tendency to move from non-law to soft law, and from soft law to hard law, with various customary and treaty norms becoming peremptory norms over time. Id. at 322.
- 46.
Inter-American Ct. Hum Rts. Advisory Op., “Juridical Condition and Rights of Undocumented Aliens,” (ser. A) No. 18 (2203).
- 47.
See e.g., Michael Domingues (United States), Case 12.285, Inter-Am. C.H.R. Rep. No. 62/02 OEA/Ser.L/V/II.117, doc.1, rev. 1, para. 49 (2003). See also International Criminal Tribunal for the Former Yugoslavia (ICTY) which states, “[c]learly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community.” Prosecutor vs. Furundzija, No. IT-95-17/1-T, PP 153-54 (December 10, 1998).
- 48.
630 F. 2d 876, 882 (2d Cir. 1980).
- 49.
Id. at 883. See also Simma and Alston (1992), p. 91 (noting that governments conferred the UDHR with the status of customary international law). Cf. Shelton (2006), pp. 291, 316, pointing out that this federal case did not discuss jus cogens norms and simply found the act in question to violate “the law of nations.”
- 50.
Banco Nacional de Cuba v. Chase Manhattan Bank , 658 F.2d 875, 889 (2d Cir. 1981); rev’d on other grounds, 462 U.S. 611, 103 S. Ct. 2591, 77 L.Ed. 2d 36 (1983); remanded 744 F.2d 237 (2d Cir. 1984).
- 51.
Banco Nacional de Cuba v. Chase Manhattan Bank , 505 F. Supp. 412 (S.D.N.Y. 1980), aff’d as modified, 658 F.2d 875, 891 (2d Cir. 1981).
- 52.
28 U.S.C. § 1602, et seq.
- 53.
477 F. Supp. 553 (C.D. Ca. 1979); aff’d 649 F.2d 1354 (9th Cir., 1981); cert. den. 454 U.S. 1163, 102 S. Ct. 1036, 71 L. Ed. 2d 319 (1982).
- 54.
15 U.S.C. § 1 et seq.
- 55.
See 477 F. Supp. at 567-78. The Court determined that the activities of OPEC nations with regard to the taxation and the imposition of royalties for the extraction of crude oil from their respective territories did not constitute commercial activities and that the defendants were entitled to sovereign immunity under 28 U.S.C. § 1604. As a consequence, the court lacked subject-matter jurisdiction over the complaint.
In reaching its decision, the Court also found that: “In view of our own State and Federal domestic crude oil activities, there can be little question that establishing the terms and conditions for removal of natural resources from its territory, when done by a sovereign state, individually and separately, is a governmental activity. (Footnote omitted.) Plaintiff, however, asserts that, while this may be true, the actions of the OPEC nations in coming together to conspire to fix prices is commercial and, thus, not immune. Plaintiff’s position, however, is untenable. It is ridiculous to suggest that the essential nature of an activity changes merely by the act of two or more countries coming together to agree on how they will carry on that activity. The action of sovereign nations coming together to agree on how each will perform certain sovereign acts can only, itself, be a sovereign act.” 477 F. Supp. 568-69.
- 56.
See Ellis (1985), p. 660.
- 57.
Id. at 693, 695.
- 58.
ACP-EEC Convention of Lomé (II), Oct. 31, 1979, reprinted in The Courier (Nov. 1979) [hereinafter Lomé II Convention], cited in Young-Anawaty (1980), p. 63 n. 1. For a thorough discussion of why human rights concerns were not included in Lomé I, executed in February 1975, see Arts (2000), pp. 167–169 n. 27.
- 59.
Treaty Establishing the European Economic Community, March 25, 1957, Pt. IV, 298 U.N.T.S. 11, reprinted in Office for Official Publications of the European Communities, Treaties Establishing the European Communities, 163 (1973) [hereinafter “Treaty of Rome.”
- 60.
Young-Anawaty (1980), pp. 64–74. (Note that Lomé trade preferences are not consistent with the General Agreement on Tariffs and Trade [GATT] preferences.)
- 61.
Convention of Association between the European Economic Community and the African and Malagasy States Associated with that Community (Yaoundé I), Jan. 6, 1964, 7 J.O. Comm. Eur. 1431 (1964); Convention of Association between the European Economic Community and the African and Malagasy States Associated with that Community (Yaoundé II), July 29, 1969, 13 J.O. Comm. Eur. 1 (No. L 282) (1970); ACP-EEC Convention of Lomé (I), Jan. 30, 1976, 6 Collection of the Agreements Concluded by the European Communities 1003 (1976) (Official Publications of the European Communities), reprinted in 12 Comm. Mkt. L. Rev. 463 (1975), cited in Young-Anawaty (1980), pp. 64 n. 4, 75 n. 47, 76 n. 50.
- 62.
Young-Anawaty (1980), pp. 63, 79, 95–96.
- 63.
Id. at 87.
- 64.
Id. at 80. See also Arts (2000), p. 175 n. 27; see generally at 169–175.
- 65.
Decision on Human and Peoples’ Rights in Africa, Organization of African Unity Assembly of Heads of State and Government, 16th Sess. (July 17–20, 1979), reprinted in 34 U.N. GAOR, Annex (Agenda Item 23), U.N. Doc. A/34/552 (1979) at 92.
- 66.
Arts (2000), pp. 175–181.
- 67.
Id. at 183.
- 68.
Id. at 189 n. 65. See The Courier, No. 170, July–August 1998, at 7.
- 69.
Arts (2000), p. 197 n. 27. Despite additional clarifications offered by Articles 5 and 366a(3) of Lomé IV-bis, it is not clear that a framework for clear definitions of human rights (and what triggers a violation thereof) or enforcement of such rights has been determined and agreed upon (Id. at 198, 200).
- 70.
This type of preferential treatment has been termed a “differential norm” insofar as such a legal norm “on its face provides different, presumably more advantageous, standards for one set of States than for another set.” See Magraw (1990), pp. 69, 73. In this case, the NIEO Declaration, and related UN resolutions, set forth differential norms that provide for different and inherently unequal legal treatment that has the effect of distinguishing developed countries from developing ones.
- 71.
Haque and Burdescu (2004), pp. 219, 243. Under the consensus, developing countries are required to mobilize resources for poverty reduction, promote sound macroeconomic policies and a good investment climate in accordance with the rule of law. In return, affluent countries are required to provide an enabling environment for development, enhance market access, including the phasing out of agricultural subsidies, support the flow of private capital as well as ODA along with effective debt relief to developing countries. Id. at 241–242.
- 72.
Id. at 238–239.
- 73.
Id. at 243.
- 74.
Id. at 254–255. See also Arts (2016), pp. 221, 228, pointing out that the Millennium Development Goals reinvigorated the right to development discourse along with the commitment to achieve it through international cooperation.
- 75.
Dennis and Stewart (2004), p. 515.
- 76.
Id.
- 77.
This view may reflect the “[c]autious and conservative U.S. attitude towards domestic implementation of international human rights norm[s] is also reflected in the ideas often expressed in its political and judicial circles that human rights issues are a matter for the states to secure for their citizens, and that treaties are not appropriate devices to provide for the protection of human rights within state territories.” Sha Alam (2001), pp. 27, 30.
- 78.
630 F.2d 876 (2d Cir. 1980).
- 79.
Id. at 884.
- 80.
28 U.S.C. 1250.
- 81.
See generally, Norberg (2006), p. 387.
- 82.
542 U.S. 692 (2004). Dr. Humberto Alvarez-Machain was brought to trial in the United States for the alleged torture and murder of a U.S. Drug & Enforcement Agency (DEA) agent. Alvarez-Machain was acquitted, but before that happened, he had taken to the Supreme Court a claim that the United States violated a Mexico-US extradition treaty and international law in his capture. The Supreme Court rejected his claims.
- 83.
569 U.S. 108 (2013). See also “Kiobel v. Royal Dutch Petroleum.” Oyez, (September 4, 2018).
- 84.
See 133 S.Ct. 1659, 1669 (2013).
- 85.
584 U.S. ____ , 138 S.Ct. 1386 (2018), Petition No. 16-499.
- 86.
Id. at 27 of the slip opinion. See also Adam Liptak, “Supreme Court to Weigh if Firms Can Be Sued in Human Rights Cases,” New York Times (April 3, 2017).
- 87.
Boyd (1999), pp. 1139, 1151–1152.
- 88.
Id. at 1151–1152.
- 89.
Doubt was cast on the prospect of enforcing ACTA claims against sovereign states in a comment made by Professor Philip Greenwood at the Lauterpacht Conference held in Cambridge England, from July 9–10, 2008.
- 90.
106 Stat. 73 (1992).
- 91.
See generally, Boyd (1999). See Doe v. Karadzic, 176 F.R.D. 458, 460 (S.D.N.Y 1997); see also Settlement Agreement at 9, 13–14, In re Holocaust Victims Assets, No. CV-96-4849 (E.D.N.Y., Settlement Jan. 26, 1999).
- 92.
Boyd (1999), p. 1193.
- 93.
Norberg (2006), pp. 396–407.
- 94.
Boyd (1999), p. 1194.
- 95.
Knox (2008), p. 1. The author makes an in-depth examination of the private duties, if any, contemplated by different human rights legal instruments.
- 96.
Id.
- 97.
See Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).
- 98.
Knox (2008), pp. 19–20.
- 99.
- 100.
- 101.
The UNESCO meeting took place from June 19–23, 1978, and M’Baye’s presentation was reprinted in UNESCO Doc. SS-78/CONE.630/8, at 1. (See also Donnelly 1985, p. 474 n. 3.)
- 102.
“Commission on Human Rights, Report on the Thirty-Third Session, 62 U.N. ESCOR Supp. (No. 6), U.N. Doc. E/5927 (1978). Jack Donnelly notes with distaste that the right to development moved through the UN system with unprecedented speed with practically no opposition. He also notes that despite the lack of precedent for the right and the lack of scholarly discussion, the right to development was proclaimed in the Declaration of the Preparation of Societies for Life in Peace, U.N. General Assembly Res. 33/73 (1978), and in the UNESCO Declaration on Race and Racial Prejudice, adopted by the General Conference of UNESCO on November 27, 1978. (See Donnelly 1985, pp. 474–475.)
- 103.
UN General Assembly Res. 2626, para. 5, 25 U.N. GAOR Supp. (No. 28), at 39, U.N. Doc. A/8028 (1970).
- 104.
- 105.
Simma and Alston write that, “there is a remarkable correlation between the norms identified as customary rules, and the range of rights which has been incorporated into the U.S. Bill of Rights. This correlation may, of course, be considered to be coincidental. Alternatively, it might be seen as a tribute to the foresight and perceptiveness of the drafters of the U.S. documents or as a reflection of the dominant influence of American values in the world. It is also possible, however, to view it as an instance of what might be termed normative chauvinism, albeit of an unintentional or sub-conscious variety.” See Simma and Alston (1992), p. 94. (See also ICCPR, art. 18.)
- 106.
- 107.
Alston (1984), p. 610.
- 108.
- 109.
See Brietzke (1985), p. 582.
- 110.
Id. Moreover, as the earlier discussion of Ms. Cossman’s analysis pointed out, the traditional support for the social and economic rights that came from the Soviet Bloc is now jeopardized in light of the realignment of the First and Second Worlds. The emphasis on the collective nature of the right to development where social and economic rights implicit therein are paramount is clear from the Soviet standpoint, whereas the individual nature of the right was clearly emphasized by the U.S. delegate to the fifteen-member working group established by the UN Social and Economic Council in drafting a declaration of the right to development. See Nanda (1985), pp. 431, 435–436.
- 111.
Donnelly (1984), p. 271.
- 112.
The International Dimensions of the Right to Development as a Human Right in relation with other Human Rights was based on International Cooperation, including the Right to Peace, taking into account the Requirements of the New International Economic Order and the Fundamental Human Needs. See Report of the Secretary-General, U.N. Doc. E/CN.4/1334 (1979) [hereinafter, “Secretary-General’s Report”]. See also Nanda (1985), p. 433; Espiell (1981), pp. 194–195.
- 113.
Donnelly (1984), p. 262.
- 114.
Vienna Declaration and Program of Action adopted at the World Conference of Human Rights held in Vienna, Austria on June 25, 1993, Preamble.
- 115.
Id., art. 10.
- 116.
The Secretary-General’s Report, U.N. Doc. E/CN.4/1334 (1979). The Report also explains that the right to development arises from the duty of solidarity (§ 42); the moral duty of reparation for colonial and neo-colonial exploitation (§ 54); and world peace (§§ 50–51). See Donnelly (1984), p. 262.
- 117.
See U.N. Doc. A/C.3/34/SR at 24–30, 33–38, 41.
- 118.
See, e.g., G.A. Res. 174, 35 U.N. GAOR (1980); G.A. Res. 133, 36 U.N. GAOR (1981); G.A. Res. 199, 37 U.N. GAOR (1982); G.A. Res. 124, 38 U.N. GAOR (1983), and the draft resolutions adopted by the Third Committee on November 30, 1984, U.N. Doc. A/C3/39/L36.
- 119.
See Draft UN resolution A/C.3/41/L.4 adopting a declaration on the right to development by the Third Committee on November 28, 1986, U.N. Doc. A/C.3/41/SR.61 at 32.
- 120.
Id. at 31, 33.
- 121.
U.N. GA Res. 41/128 (December 4, 1986), adopted by 146 to 1 (United States voted against it), with eight abstentions (namely, Denmark, Finland, the Federal Republic of Germany, Iceland, Israel, Japan, Sweden, and the United Kingdom).
- 122.
See Ellis (1985), p. 694. In fact, consensus on an issue may be regarded as evidence of opinio juris, thus supporting the inference that the resolution is legally binding on General Assembly members (Id.).
- 123.
Id. at 694–695. Ellis points out that CERDS was passed by the General Assembly by a vote of 120 for, 6 against, with 10 abstentions. Ellis concludes that the ten abstentions, even if the six votes against are not considered, were sufficient to defeat a consensus on CERDS being reached by the General Assembly.
- 124.
Cao (1997), pp. 545, 556.
- 125.
Laplante (2007), pp. 141, 151. This article explores Peru’s truth and reconciliation commissions as a means of demonstrating the indivisibility and symbiotic relationship of human rights. The article also points out that the development process is often confused with making collective reparations for wrongs committed by the state. In other words, the Peruvian government confused its separate obligations: to make reparations for wrongs it has committed, and to provide essential services to its population. However, one is not a substitute for the other. Id. at 175.
- 126.
Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, art. 1, reprinted in 20 Hum. Rts. Q. 691, 691–692 (1998).
- 127.
Sen (1999), p. 8.
- 128.
UNDRD , art. 1.
- 129.
Locke (1952), pp. 61, 55–58.
- 130.
See Draft UN resolution A/C.3/41/L.4 adopting a declaration on the right to development by the Third Committee on November 28, 1986, U.N. Doc. A/C.3/41/SR.61 at 33.
- 131.
Cao (1997), pp. 545, 556.
- 132.
Donnelly (1985), p. 499.
- 133.
Id. at 491.
- 134.
Other obstacles to the full realization to the right to development also may include: (1) insufficient foreign aid; (2) sovereign debt and structural adjustment; (3) the activities of transnational corporations; (4) unilateral coercive measures; (5) unfair trading rules; and (6) the negative consequences of globalization. See Bunn (2000), pp. 1451–1460.
- 135.
Espiell (1981), p. 198.
- 136.
- 137.
Donnelly (1984), p. 266.
- 138.
- 139.
- 140.
- 141.
Donnelly (1985), pp. 498–499, 500–501.
- 142.
See generally, Totaro (2008), pp. 714, 737, who writes, “The fundamental problem with according the right to participatory development status as a customary international law, however, is that there are to many unknowns with respect to what constitutes this purported right. The primary unanswered question asks, ‘What exactly is participatory development?’”
- 143.
See IBRD No. 9340, and IDA 93-6 (resolutions of the Executive Boards of the World Bank and the IDA, respectively). See also Annual Report, The Inspection Panel (IBRD, IDA), dated August 1, 1994–July 31, 1996.
- 144.
- 145.
Morgan-Foster (2005), pp. 67, 72.
- 146.
Aristotle, I The Politics 9 (T.A. Sinclair, trans.) (1962).
- 147.
See Shelbourne (2001), p. 11.
- 148.
Hodgson (2003), pp. 15–16.
- 149.
Id. at 19; see also J.J. Rousseau, The Social Contract (C. Frankel, trans.) (1947) at Book III, Chapter 15.
- 150.
Morgan-Foster (2005), p. 81, “Human rights advocates were concerned that duties would be overpowering rather than complementary to rights, that they would be used as an alternative force for evil, rather than as an additional force for good.”
- 151.
Id. at 94–95.
- 152.
Id. at 115.
- 153.
- 154.
OAU Doc. CAB/LEG/67/3/Rev. 5 (1981), reprinted in 21 I.L.M. 59 (1982).
- 155.
OAU, Constitutive Act of the African Union (replacing the Charter of the OAU), July 11, 2000, 2000 AFR.Y.B. Int’l L. 479. The AU was officially launched on July 9, 2002 in Durban, South Africa.
- 156.
Kiwanuka (1988), pp. 80, 81.
The African Charter is not self-executing since ratifying members are required to adopt domestic legislative measures to give legal effect to the Charter. Article 62 provides that each ratifying member shall submit reports at two-year intervals from the date the Charter enters into force describing the legislative or other measures being taken to give legal effect to the provisions contained in the Charter. Ironically, the African Charter is considered to be self-executing by African francophone nations, but under a theory of reciprocity, it will not be given legal effect until all Anglophone nations have enacted it under their domestic laws. Since this has not occurred, the Charter is not legally effective with either side. See Welch (1992), pp. 43, 60. See also Swanson (1991), p. 327; Peter Mutharika (1995), pp. 1706, 1717.
- 157.
213 U.N.T.S. 222 (entered in force, September 3, 1953).
- 158.
O.A.S. Treaty Series No. 36, p. 1, O.A.S. Off. Rec. Doc. OEA/ser.L/V/II.23, doc. rev. 2, reprinted in 9 I.L.M. 99 (1970).
- 159.
Sohn (1982), pp. 1, 48.
- 160.
Vasak (1977), p. 29.
- 161.
Kiwanuka (1988), p. 86.
- 162.
See Hill (1995), pp. 119, 121.
- 163.
Cass (1992), pp. 21, 23–24.
- 164.
- 165.
Cass (1992), pp. 24–25, 26. (The right to self-determination of religious and ethnic minorities is set forth in art. 27 of the ICCPR.)
- 166.
Hill (1995), p. 124.
- 167.
Cass (1992), p. 24.
- 168.
G.A. Res. 3314, 29 U.N. GAOR Supp. (No. 31) at 142, U.N. Doc. A/9631 (1974).
- 169.
G.A. Res. 1514, U.N. GAOR Comm., Sess. Supp. No. 21 at 166, U.N. Doc. A/4684 (1960).
- 170.
G.A. Res. 2625, Annex, 25 U.N. GAOR Supp. (No. 17) at 66, U.N. Doc. A/5217 (1970).
- 171.
Hill (1995), p. 125, quoting the 1960 Declaration.
- 172.
Simpson (1996), pp. 255, 256, 268–269. See also Wilson (1996), pp. 433, 460.
Paragraph seven of the 1970 Declaration, however, opened the door to legitimizing secessionist movements within an established nation-state. This idea goes back to Wilson’s original conception that the legitimacy of government stems from its representation of all segments of the population. (See Hill 1995, p. 129. See also Cass 1992, p. 36.) Therefore, the territorial integrity and the national unity of such a state will only be protected when the government governs “with the consent of the governed” (Hill 1995, p. 129). Thus, an unrepresentative government may provide the necessary justification for an oppressed minority to claim its own self-determination, thus seceding on this basis (See Wilson 1996, pp. 460–461. See also Cass 1992, pp. 36–37).
- 173.
Wilson (1996), pp. 463, 476.
- 174.
Simpson (1996), p. 275.
- 175.
- 176.
Kiwanuka (1988), pp. 100–101.
- 177.
Simpson (1996), pp. 285–286. Simpson discusses four potential “models” for self-determination, namely, national (the Basque separatist movement, the Aceh in Indonesia, and Tibet); democratic aspiration (South Africa, Portugal, Spain); devolutionary practice (Quebec, Scotland); and secession (Biafra, Bangladesh).
- 178.
See Swanson (1991), pp. 324–326.
- 179.
See Cobbah (1987), pp. 309, 323 n. 41. See also Mutua (1995), pp. 339, 342. Mutua argues that since the modern African state was forcibly imposed by European colonizers without regard to existing African political and ethnic entities, the modern African state “did not result from the natural progression or evolution of those societies.” Thus, he concludes “that the traditional liberal conception of the relationship between the state and the individual is of limited utility in imagining a viable regime of human rights.”
- 180.
Swanson (1991), p. 325.
- 181.
Mutua (1995), pp. 354–355. Mutua gives an excellent discussion of this issue concerning pre-colonial African societies.
- 182.
Id. at 355, 357.
- 183.
Id. at 362–363.
- 184.
Rousseau (1964), p. 183.
- 185.
- 186.
African (Banjul) Charter on Human and Peoples’ Rights, art. 22(2).
- 187.
Id., art. 6.
- 188.
Gittleman (1984), pp. 158–159, 161–162.
- 189.
African (Banjul) Charter on Human and Peoples’ Rights, art. 6.
- 190.
Gittleman (1984), p. 159.
- 191.
International Covenant on Civil and Political Rights, art. 9.
- 192.
African (Banjul) Charter on Human and Peoples’ Rights, art. 11.
- 193.
Id. at art. 14.
- 194.
Umozurike (1983), pp. 909–910.
- 195.
European Convention on Human Rights, art. 15(1).
- 196.
Clawback clauses in the Banjul Charter include art. 6 (right to liberty), art. 8 (freedom of conscience and religion), art. 9 (right to express opinions), art. 10 (right to free association), art. 11. (right to free assembly), art. 12 (right to freedom of movement), art. 13 (right to participate in government), and art. 14 (right to property). See Gittleman (1984), p. 162.
- 197.
- 198.
See African (Banjul) Charter on Human and Peoples’ Rights, arts. 47–53.
- 199.
Umozurike (1983), p. 909.
- 200.
Viljoen and Louw (2007), p. 2. This article gives a highly structured analysis of state compliance with Commission recommendations that are divided into five broad categories of full compliance, noncompliance, partial compliance, sui generis compliance or partial compliance, and unclear cases.
- 201.
Id.
- 202.
Zimmerman and Baumler (2010), pp. 38, 49.
- 203.
African Commission on Human and Peoples’ Rights, Case Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council v. The Republic of Kenya, Communication No. 276/2003, 25 November 2009, ¶¶ 277–278; see also Arts (2016), p. 245.
- 204.
Arts. 5–7 of the Draft (Nouakchott) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (OAU /LEG/EXP/AFCHPR/PROT(2), Second Government Legal Experts Meeting on the Establishment of an African Court on Human and Peoples’ Rights (1997), Nouakchott, Mauritania.
- 205.
Arts. 5–7 of the Draft (Nouakchott) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (OAU/LEG/EXP/AFCHPR/PROT(2), Second Government Legal Experts Meeting on the Establishment of an African Court on Human and Peoples’ Rights (1997), Nouakchott, Mauritania.
- 206.
See generally, the homepage of the African Court on Human and Peoples’ Rights.
- 207.
African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights vs. Republic of Kenya, Application No. 006/2012 (May 26, 2017), ¶¶ 208, 210.
- 208.
Zimmerman and Baumler (2010), p. 50.
- 209.
- 210.
Alston (1984), p. 617.
- 211.
Id. at 621.
- 212.
See Draft UN resolution A/C.3/41/L.4 adopting a declaration on the right to development by the Third Committee on November 28, 1986, U.N. Doc. A/C.3/41/SR.61 at 31–32. The delegate from Ireland supported the adoption of the right to development but found that the assertion of the right as an “inalienable human right” to be “unconvincing” in the text as adopted.
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Sarkar, R. (2020). Is There a Human Right to Development?. In: International Development Law. Springer, Cham. https://doi.org/10.1007/978-3-030-40071-2_4
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