Questioning the Universality of Human Rights

African Charter on Human and People's Rights in Botswana, Malawi and Mozambique

Lone Lindholt

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429816253
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First published in 1997, this volume analyses the material provisions of the African charter on Human and Peoples' Rights from 1981, discussing the issues this raises both with respect to the theoretical aspects of human rights law, and in relation to its implementation in various African member states. Illustrating the first aspect, in particular the question of universality of human rights is discussed; with respect to the national implementation the Southern African states are the main focal points, in particular Botswana, Malawi and Mozambique.

Part I
Theoretical issues

1 General introduction

Sources and levels of human rights regulation

In relation to a discussion of the basic sources of human rights regulation within any system, the starting point will be to clarify the question of terminology.

Generally we speak of two distinctions of law, the first of which is the international law as a denominator for all forms of legal regulation of a trans-national kind, e.g. involving in some way more than one national state. In contrast hereto stands the domestic law, which is a similar phrase covering all aspects of what the individual state may consider to be valid law within its domain.

The key problem relating to this terminology, and structure of perception, is that we experience an increase in laws and regulation cutting across these borders on a regional basis. The most extensive example hereof is the regulation within the European Communities, which in many cases confers direct significant obligations on member states or even in some cases substitutes the domestic law of the member states.

Within the field of human rights we have two well-established regional systems for protection and promotion of human rights, namely the European and American Courts and Commissions on Human Rights, under the European Council and Organization of American States (OAS) respectively. For a long period of time, these were the only two regional human rights arrangements, and these institutions operate alongside the international regulation established by the various bodies of, mainly, the United Nations. In cases where conflict between these two systems exists, a compromise has to be found, since none of them are above the other in a way similar to the relationship beween national and international law.

In relation to human rights promotion and protection the regional institutions would often supply the mechanisms of enforcement lacking in the international systems, while they would also at the same time apply the principles adopted on a global scale through such instruments as the Universal Declaration and the two International Covenants. This way the two systems would supplement each other, reducing the aspect of conflict between them to a relative minimum.

These regional institutions operated within systems with a relatively uniform cultural, political and legal background, and did not have wider impact on states outside the structure itself. Furthermore, both regional instruments contain provisions roughly similar to those of the main international instruments, with the institutions operating on similar conceptions and interpretations of law. Therefore the apparent consensus on the existence of a universally applicable code of human rights remained fairly unquestioned for a long period of time.¹

Over the last decades this situation has changed, mainly due to a growing influence by states from other geographical regions, in particular Africa and Asia, on the international legal arena.

The key factor here has been the growth in regional human rights instruments, expressed by an African convention as well as various declarations and a draft charter for Asia and the Arab world, resulting in an increased recognition that the unquestioned universal applicability of, particularly, a European concept of law and human rights is no longer valid.

This discussion has been further actualized with the increased tendency of including human rights aspects in the development aid. As a consequence hereof we see a so far unprecedented tendency towards exchange of human rights concepts between Europe and North America on one side and Asia, Africa and Latin America on the other side. This again raises the question of the legitimacy of attempting to “export” human rights from one culture to another, particularly when extensive financial and other pressure is involved in the exchange.²

A model of global, regional and local human rights regulation

In light hereof, and in order to accommodate these discussions, I have chosen to operate with a terminology of three different levels, to be defined below: the local, the regional and the global level of regulation.

Still, I will continue to apply the terms “national” and “international”, but I use them differently in situations where the particular distinctions are of a different nature or without significance. As such, the term international is used as a common denominator for global and regional regulation in general, while the term national refers to all law without distinction within a given national state.

The outer limit to the first level, the local sphere, is still the borders of the national state, following the distinction national-international, but the difference in relation to national law is more internal. By using the term “local”, I intend to leave room for the possibility of sub-levels within the state, both in relation to geographical differences, such as the regulation in different states of the federal systems of Germany and USA as well as the variations in the customary laws between different tribes in Botswana. Also, this term implies the possibility of including different informal regulation applied by particular groups within the State, such as places of work particular to women or among ethnic or social groups or sub-cultures. In other words, it will have to be left to the discretion of each state to determine how far to go when setting the limits of the concept of law internally.

The second distinction of regional regulation is also of a geographical nature, including all forms of human rights regulation applicable to several states within a certain geographical area. These regions may vary, usually following the borders of continents and sub-continents such as Asia or Africa and sub-regional systems may be established. Examples hereof are the SADCC-states of Southern Africa, the Arab states of Northern Africa, or the Francophone states of West-Africa, which may form similar enclaves and establish initiatives within the regional framework of the OAU. All such potential initiatives would have to be encompassed by the distinction of regionality, and although (or because) they may seldom result in substantial structures such as the main regional human rights bodies, such potential conflicts of diversity would then have to be handled.

The third and last term, the global level, contains the element which we usually ascribe to the term international, and implies that we have moved beyond geographical borders and instead apply other criteria such as common interest and commitment or recognition of similar needs. In relation to human rights, regulation at a global level is open to adherence by all states regardless of their geographical location, and the most central example hereof is the above mentioned Bill of Rights. Supplementing this the United Nations, as well as other related organisations such as the ILO, have established a wide spectrum of different instruments, enforced by a significantly smaller number of various kinds of monitoring bodies. All of these instruments cover specific principles or concepts of human rights such as instruments regulating protection against torture and the prohibition against discrimination on the basis of culture, race or sex, just to mention a few.

The distinctions of these three different levels are not based on a presumption of hierachy, similar to the structures found in national law, where constitution is above legislation is above court practice is above administrative regulation etc.

The global regulation of human rights does not necessarily have a status superior to the decisions and legal provisions from the regional bodies. When ratifying a regional or global treaty, the national state usually has an obligation to ensure that the provisions contained herein are effectively transformed into its internal legal sphere, often by including them in national and/or local law. It does not, however, mean that it is hereby inferior to the powers of the supra-national structures, and non-compliance with the obligations of implementation can very often not be formally sanctioned.

Rather than a hierarchical perspective, one could look at such a model as governed by a principle of proximity in a “flat” model of circles within circles.

Here, the centre represents universal principles, if such can be identified,³ while the next levels indicate each of the three levels mentioned above, and in theory the model continues until it reaches the smallest social and legal unit, the individual. Also, it allows for new regions or groupings to separate within each level, so that on the regional level it can easily accommodate a potential Eastern European or Pacific human rights initiative similar to those of the other regions.

In the centre we find the basic principles of human rights, expressed as customary supra-regulatory norms and issues considered to be of such a vital importance that they must be protected by international law. Examples hereof are the right to life and sustenance, freedom from violation of one’s mental and physical integrity, the availability of opportunities to develop one’s personal capacities, and the access to form and maintain relationships with others at both an individual and collective level.

We formulate these principles in terms of rights and freedoms, but in a legal sense it is doubtful whether we can talk about these formulations of basic issues and needs within the framework of law at all. Rather, at this core level it is a question of identification of basic needs and values, which are then to be protected and normatized at subsequent levels. Their nature is such that they can be concluded as being fundamental and general, insofar as the lack of fulfilment seems incompatible with human existence and well-being regardless of geography or culture.

However, the same lack of cultural adaption also means that on their own they have limited effect as instruments of international law, since their scope and implications are not defined precisely enough to constitute legally enforceable rights and obligations. Their significance lies in the function of defining an overall framework for the actual human rights legislation taking place at the next levels, which derive their legitimacy from these basic principles. The dependency is mutual, because at the same time the core also relies on the outer levels for its fulfilment and legalization.

It is clear that once we leave the non-legal core of human rights principles, there is a quantum leap into the next levels, where we find the general and specialized global instruments elaborating and normatizing the issues and principles established in the centre. Examples hereof are the two International Covenants and the conventions relating to particular areas of human rights such as torture, discrimination etc. These provisions confer direct rights on individuals and corresponding obligations on member states to the instruments after a process of ratification and adherence. Following from this, and keeping in mind the discussion on this topic above, it is here we definitely move beyond any notion of absolute universality.

When we move on to the next spheres, of regional or sub-regional regulation, we are faced with partial solutions to the problems related to the global regulation, but at the same time other aspects and problems present themselves.

The lack of recognition of the distinction of this level of regulation can to some extent be accredited to the simple fact stated above, that until fairly recently only two regions, the European and the American continents, had fully established general human rights conventions with corresponding institutions of enforcement. The only available international bodies and measures available to individuals as well as states from other regions such as Africa or Asia were the international ones mentioned above.

Now, the situation has changed over the last decade, with the coming into force of the African Charter on Human and Peoples Rights and the establishment of the African Commission in 1986. The picture has further been enhanced with the Asian Declaration of the Basic Duties of Asean Peoples and Governments from 1983, and the Draft Charter on Human and Peoples’ Rights in the Arab World from 1986, neither of which, however, are of a legally binding nature qua their declarational respective provisional status.

A key characteristic of this level is that we find a stronger cultural impact on the formulation of these instruments than at the global level. The overall principles established at the global level are here given substance in a way which reflects the background, circumstances and general context in which they operate.

Such cultural influence is expressed at different levels and different forms, the most direct expressions hereof in individual provisions being the African Charter’s art. 29 stating the individual’s duty to preserve and strengthen positive African values and to contribute to the promotion and achievement of African unity.

A less expressive but still poignant expression of cultural impact is found in the formulations and systematics of other regional human rights instruments, such as the emphasis of the Asean...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Abbreviations
• Preface
• Part I: Theoretical issues
• Part II: Context and genesis of the instruments
• Part III: Analysis of material human rights provisions in the African Charter on Human and Peoples’ Rights and the Constitutions of Botswana, Malawi and Mozambique
• Part IV: Conclusion
• Appendix:
• Bibliography