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International Human Rights: Neglect of Perspectives From African Institutions

Abstract

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

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T Meron ‘On a Hierarchy of International Human Rights’ (1986) 80 AJIL 1.

JHH Weiler and AL Paulus ‘The Structure of Change in International Law or is There a Hierarchy of Norms in International Law?’ (1997) 8 EJIL 545–5.

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

CE Welch ‘The African Commission on Human and Peoples' Rights: A Five Year Report and Assessment’ (1992) 14 Human Rights Quarterly 4356.

N Jayawickrama The Judicial Application of Human Rights Law. National, Regional and International Jurisprudence (CUPCambridge2002). In addition, an article on the justiciability of economic, social, and cultural rights failed to make any reference to the important decision of the African Commission on the right to housing, food, and health

MJ Dennis and DP Stewart ‘Justiciability of Economic, Social and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?’ (2004) 98(3) American Journal of International Law 462515.

See also, eg, H Charlesworth , C Chinkin and S Wright ‘Feminist Approaches to International Law’ (1991) 85 AJIL 613;

K Ginther ‘Redefining International Law from the Point of View of Decolonisation and Development of African Regionalism’ (1982) 26 Journal of African Law 49’67, 59.

See also M Koskenniemi ‘Hierarchy in International Law: A Sketch’ (1997) 8 EJIL 566–82;

J Allain ‘Orientalism and International Law: The Middle East as the Underclass of the International Legal Order’ (2004) 17 Leiden International Law Journal 391404;

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

T Kaime ‘From Lofty Jargon to Durable Solutions: Unaccompanied Refugee Children and The African Charter on the Rights and Welfare of the Child’ (2004) 16(3) International Journal of Refugee Law 336–48.

F Coomans ‘The Ogoni Case before the African Commission on Human and Peoples' Rights’ (2003) 52 ICLQ 749–60;

D Shelton ‘Decision Regarding Communication 155/96’ (2003) 96(4) AJIL 937–42.

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
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