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A Critical Review of the Jurisprudence of the African Commission on the Right to Development

Published online by Cambridge University Press:  28 June 2013

Abstract

This article critically examines the jurisprudence of the African Commission on Human and Peoples' Rights (the African Commission) on the right to development (RTD). Notwithstanding the controversy over the RTD, it is binding in the African human rights system and has been the focus of a number of cases that have come before the African Commission. After briefly examining the historical and theoretical framework of the RTD, the article focuses on the meaning of the right and its duty bearers at the national and international levels. After analysing several cases decided by the African Commission, the article concludes that the RTD is an important composite right that can provide scope, at both an individual and a collective level, for marginalized groups in society to assert their human rights.


Type
Research Article
Copyright
Copyright © School of Oriental and African Studies 2013 

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References

1 The “African human rights system” should be understood broadly. It includes the “regional”, ie African Union based, system and “sub-regional” systems, such as the Southern African Development Community or the Economic Community of West Africa systems, and even national laws and case law.

2 Comm 155/96 of 2001 AHRLR 60 (ACHPR 2001).

3 Comm 227/99: 20th Annual Activity Report of the African Commission, annex IV, 111.

4 Comm 266/2003: 26th Annual Activity Report of the African Commission, annex IV.

5 Comm 276/2003: 27th Annual Activity Report of the African Commission, annex 5.

6 This section relies on the history and theory of the RTD as discussed by SAD Kamga “Human rights in Africa: Prospects for the realization of the right to development under the New Partnership for Africa's Development” (unpublished LLD thesis, University of Pretoria, 2011) at 73 and 76.

7 UN GA res 3201 (S-VI), 1 May 1974.

8 UN GA res 3281 (XXIX).

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13 Available at: <http://www.wto.org/english/docs_e/legal_e/14-ag_01_e.htm> (last accessed 30 April 2013).

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16 Kamga, ibid.

17 Ibid.

Ibid

18 Ibid.

Ibid

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29 Adopted by the UN General Assembly in res 41/128 of 4 December 1986.

30 Vienna Declaration and Programme of Action, 14–25 June 1993: UN GA A/Conf.157/23 12 July 1993 (Vienna Declaration).

31 Commission on Human Rights res 1998/72, adopted without a vote on 22 April 1998, appointed Arjun Sengupta as the UN independent expert on the RTD.

32 The fifth session of the working group on the RTD recommended, among other things, the constitution of a high level task force to implement the RTD within the framework of the working group. This recommendation was adopted at the 60th session of the Commission for Human Rights (CHR) in its res 2004/7.

33 Above at note 9.

34 J Whyte “Review of development as a human right” as quoted by Kamga “The right to development in the African human rights system”, above at note 28 at 383.

35 L Arbour “Forward” in Andreassen and Marks (eds) Development as a Human Right, above at note 9 at iii.

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37 V Dimitrievic “Is there a right to development?” (paper presented at the annual convention of the International Studies Association, Cincinnati, March 1982).

38 Shue, HBasic Rights (1980, Princeton University Press) at 19–20Google Scholar.

39 Salomon “Legal cosmopolitanism and the normative contribution”, above at note 14 at 17.

40 Alston, PMaking space for new human rights: The case of the right to development” (1988) 3/1Harvard Human Rights Yearbook 3 at 20Google Scholar.

41 Donnelly, JIn search of the unicorn: The jurisprudence and politics of the right to development” (1985) 15 California Western International Law Journal 473Google Scholar.

42 Id at 477.

43 Shivji, IThe Concept of Human Rights in Africa (1989, Codesria Book Series) at 82Google Scholar.

44 M'baye, KLe droit au développement comme un droit de l'homme” [“The right to development as a human right”] (1972) 5/2–3Revue des Droits de l'Homme 503 at 513Google Scholar.

45 Id at 523.

46 Bello, EArticle 22 of the African Charter on Human and Peoples' Rights” in Bello, E and Adjibola, B (eds) Essays in Honour of Judge Taslim Olawale Elias (1992, Martinus Nijhoff ) 462 at 462Google Scholar.

47 Rosas, AThe right to development” in Eide, A, Krausus, K and Rosas, A (eds) Economic Social and Cultural Rights (2001, M Nijhoff) 251 at 251Google Scholar.

48 Alfredsson, GThe right to development: Perspective from human rights law” in Rehof, LA and Gulmann, C (eds) Human Rights in Domestic Law and Development Assistance Policies of the Nordic Countries (1989, M Nijhoff) 84 at 84Google Scholar.

49 Y Ghai “Whose human rights to development” (Human Rights Unit occasional paper, 1989), as quoted by Baxi, UHuman Rights in Post Human World: Critical Essays (2007, Oxford University Press) at 124Google Scholar.

50 Espiell, GThe right to development” (1972) 5 Revue des Droits de l'Homme 190 at 190Google Scholar.

51 Johnson, MGThe contribution of Eleanor and Franklin Roosevelt to development of international protection for human rights” (1987) 9 Human Rights Quarterly 19 at 48CrossRefGoogle Scholar.

52 Arts 55 and 56.

53 Art 28.

54 Art 2.

55 Chowdhury, SR and De Waart, PJIMSignificance of the right to development in international law: An introductory view” in Chowdhury, SR, Denters, EMG and De Waart, PJIM (eds) The Right to Development in International Law (1992, Martinus Nijhoff) 7 at 10Google Scholar.

56 A group comprising Algeria, Bangladesh, Bhutan, China, Cuba, Egypt, India, Indonesia, Iran, Malaysia, Myanmar, Nepal, Pakistan, the Philippines, Sri Lanka, Sudan and Vietnam.

57 The USA, Denmark, Israel and Australia are some of the outsiders.

58 In 1998, res E/CN.4/RES/1998/72 was adopted at the CHR without a vote, whereas, at the General Assembly, 125 votes in favour, one vote against and 42 abstentions were recorded for res A/RES/53/155. In 1999, res E/CN.4/RES/1999/79 was adopted at the CHR without a vote; at the General Assembly, 119 votes for, ten against and 38 abstentions were recorded for res A/RES/54/175. In 2000, res E/CN.4/RES/2000/5 was adopted without a vote at the CHR; res A/RES/55/108 was also adopted without a vote at the General Assembly. At the CHR in 2001, the EU (except the UK) was in favour of the RTD; three abstentions (UK, Canada and the Republic of Korea) were recorded, and Japan and the USA voted against; see CHR res 9, UN ESCOR, 57th sess, at 68: UN doc E/CN.4/2001/167 (2001). Also in 2001, at the 56th session of the General Assembly (September – December), 123 votes in favour and four against (Denmark, Israel, Japan and the USA) were recorded, with 44 abstentions; see GA res 150, UN GAOR, 56th sess, supp no 49, at 341: UN doc A/2890 (2001). At its 57th session in December 2002, where the General Assembly adopted the conclusions of the open-ended working group on the RTD, 133 votes were recorded in favour, four votes against (United States, Australia, the Marshall Islands and Palau), and 47 abstentions; see GA res 556, UN GAOR, 57th sess, supp no 49: UN doc A/57/49 (2002).

59 UNDRTD, art 8.

60 For more on international co-operation, see Human Rights Council “Consolidation of findings of the high-level task force on the implementation of the right to development” (11th session of the high-level task force on the implementation of the right to development): UN doc A/HRC/15/WG.2/TF/2/Add.1.

61 S Fukuda-Parr “25 years of the right to development: Achievements and challenges” (statement at the Global Partnerships for Development Conference, Friedrich Ebert Foundation, Berlin, 24–25 February 2011).

62 UNDRTD, para 2.

63 F Kirchmeier “The right to development – Where do we stand? State of the debate on the right to development” (Dialogue on Globalization, occasional paper, 23 July 2006) at 10.

64 Adopted by the Organization of African Unity in Nairobi, Kenya on 27 June 1981 and entered into force on 21 December 1986.

65 Baldwin, C and Morel, CGroup rights” in Evans, M and Murray, R (eds) The African Charter on Human and Peoples' Rights – The System in Practice, 1986–2006 (2008, Cambridge University Press) 244 at 270Google Scholar. The RTD is binding in the African Charter (art 22) as well as in its protocol on the rights of women in Africa (art 19 provides for the right to sustainable development for women).

66 Baxi Human Rights in Post Human World, above at note 49 at 124.

67 For more insights on the communications discussed in this section, see Kamga “Human rights in Africa”, above at note 6 at 217–37.

68 Comm no 260/2002, AHRLR (2004) 43.

69 African Charter, art 7(1)(a).

70 Id, art 14.

71 Id, art 21.

72 Art 50 of the African Charter reads: “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”

73 Above at note 3.

74 Available at: <http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b36d2> (last accessed 30 April 2013).

76 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations, adopted at the 25th session of the GA, 1970, available at: <http://www.un-documents.net/a25r2625.htm> (last accessed 30 April 2013).

77 DRC, para 87.

78 African Charter, art 22(2).

79 DRC, para 95.

80 Above at note 2.

81 African Charter, art 2.

82 Id, art 4.

83 Id, art 14.

84 Id, art 16.

85 Id, art 18.

86 Id, art 21.

87 Id, art 24.

88 SERAC, above at note 2, para 64.

89 Above at note 4.

90 Id, para 205.

91 Id, para 206.

92 Ibid.

Ibid

93 Held in Banjul, The Gambia from 11–25 November 2009.

94 Above at note 5. This section relies on Kamga “The right to development in the African human rights system”, above at note 28 at 386–91.

95 Endorois, above at note 5, para 1.

96 Id, para 22.

97 African Charter, art 8.

98 Id, art 14.

99 Id, art 17.

100 Id, art 21.

101 It is important to note the rights to participation and self-determination are core elements of the RTD as defined by art 1 of the UNDRTD.

102 Endorois, above at note 5, para 125.

103 Id, para 133. See also Mary and Carrie Dann v USA case 11.140, report no 75/02, InterAmerican CHR, doc 5 rev 1 860 (2002), para 136.

104 Id, para 270.

105 UN GA res A/RES/41/128, December 1986. See also paras 21 and 22 of the Rio Declaration (adopted at the Rio Conference on Environment and Development in Rio de Janeiro, Brazil, 3–4 June 1992) which clearly underline the right of indigenous people to participate in development; the 1990 African Charter for Popular Participation in Development and Transformation (adopted at the International Conference on Popular Participation in Development and Transformation, Arusha, Tanzania, 12–16 February 1990): UN doc E/ECA/CM.16/11,1990; the African Charter, art 13; arts 11 and 12 (for example) of the Declaration on the Rights of Indigenous People: UN res GA/10612 of 13 September 2007.

106 ICCPR, art 27.

107 UNDRTD, art 2(1).

108 Id, art 2(2).

109 Id, art 2(3).

110 Endorois, above at note 5, para 281.

111 UNDRTD, art 2(3).

112 Endorois, para 129.

113 African Charter, art 20.

114 Id, art 21.

115 Endorois, para 128.

116 Id, para 126.

117 African Charter, art 20.

118 Art 1(1) of both the ICESCR and ICCPR; the Vienna Declaration part 1, para 2. Also NIEO Declaration, art 4; arts 26(k) and 14(e) of the Report of the World Summit for Social Development, Copenhagen, 6–12 March 1995: UN doc A/CONF.166/9 of 19 April 1995; art 2 of the Charter of Economic Rights and Duties of States, 29th session of the UN General Assembly: UN doc, A/RES/29/328; the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, art 2(2); and the September 2007 UN Declaration on the Rights of Indigenous Peoples, art 3.

119 Endorois, above at note 5, para 278.

120 Sen, ADevelopment as Freedom (1999, Knopf) at 35Google Scholar; also Steiner, Alston and Goodman International Human Rights in Context, above at note 36 at 1434.

121 Banik, DIntroduction” in Banik (ed) Rights and Legal Empowerment in Eradicating Poverty (2008, Ashgate) 1 at 1Google Scholar.

122 A-I Motoc and the Tebtebba Foundation “Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the working group on this concept”: UN doc E/CN.4/Sub.2/AC.4/2004/4 (2004), para 14(a).

123 17 June 2005, InterAmerican CHR.

124 Id, para 164.

125 African Charter, art 61.

126 Olowu, DAn Integrative Rights-Based Approach to Human Development in Africa (2009, PULP) at 154Google Scholar. Also Kamga “The right to development in the African human rights system”, above at note 28 at 391.

127 Ibid.

Ibid

128 SERAC, above at note 2, para 64.

129 Id, para 60.

130 OC Okafor “‘Righting’ the right to development: A socio-legal analysis of article 22 of the African Charter of Human and Peoples' Rights” in Marks (ed) Implementing the Right to Development, above at note 14, 52 at 55.

131 Ibid.

Ibid

132 Olowu An Integrative Rights-Based Approach, above at note 126 at 155.

133 See Katangese Peoples' Congress v Zaire (2000), AHLR 72 (ACHPR 1995).

134 Olowu An Integrative Rights-Based Approach, above at note 126.

135 Ibid.

Ibid

136 Endorois, above at note 5, paras 156–57.

137 Id, para 157.

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