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Exploring the Theory and Practice of the Relationship between International Human Rights Law and Domestic Actors
Published online by Cambridge University Press: 01 March 2009
Extract
In recent times the human rights discourse has become increasingly concerned with the relationship between domestic and international (UN and regional) human rights law. In 2007, two significant additions to this body of scholarship appeared. Although the authors of these texts are based in Canada and the United Kingdom respectively, their contributions explore the domestic–international relationship from a particularly African angle. While both works are concerned with the national arena (local activist forces and national human rights institutions respectively), the one investigates the domestic impact of international law and institutions, while the other explores the increased international impact of a particular domestic institution.
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References
1 O. C. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (2006).
2 Ibid., at 3.
3 See P. G. Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’, (2003) 97 AJIL 38; see also, e.g., Prince v. South Africa (2004) AHRLR 105 (ACHPR 2004), at para. 50.
4 See Section 2.2, infra (making reference to the Prince, Kaunda, Fourie, and Frank cases).
5 See F. Viljoen and L. Louw, ‘An Assessment of State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights between 1993 and 2004’, (2007) 101 AJIL 1. Although the ‘compliance optic’ is employed in this study, a statistical analysis of factors that are predictive of improved compliance reveals that one of these indicators is the level of involvement by NGOs in the submission and follow-up of the Commission's findings. This finding is in line with one of Okafor's main insights.
6 However, the matter is not so simple. The more vague the recommendations or orders directed at state parties, the more leeway states have in deciding on specific steps that would amount to compliance. If the content of a required remedy is not clear, assessing compliance with it becomes a moving target.
7 Hathaway, A. O., ‘Do Human Rights Treaties Make a Difference?’, (2002) 101 Yale Law Journal 1935Google Scholar; see also Keith, L. C. and Ogundele, A., ‘Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical Examination of Colonial Influences on Human Rights’, (2007) 29 Human Rights Quarterly 1065Google Scholar, who employ a similar quantitative methodology.
8 R. Goodman and D. Jinks, ‘Measuring the Effect of Human Rights Treaties’, (2003) 14 EJIL 171; see also Hathaway's response: O. A. Hathaway, ‘Testing Conventional Wisdom’, (2003) 14 EJIL 185.
9 See, e.g., Heyns, C. and Viljoen, F., ‘The Impact of the UN Human Rights Treaties on the Domestic Level’, (2001) 23 Human Rights Quarterly 483CrossRefGoogle Scholar, in which in-depth research was undertaken by country correspondents in 20 UN member states, four in each of the five regions.
10 See Cassell, D., ‘Does International Human Rights Law Make a Difference?’, (2001) 2 Chicago Journal of International Law 121Google Scholar.
11 In addition, the work could have benefited, for example, from exploring more fully the role of the Centre for Human Rights at the University of Pretoria, which is engaged in education on and dissemination of African human rights law and had been involved in submitting the only South African case (the Prince case) to the Commission. The author merely mentions that the case was ‘brought before the African Commission in 2002’ (Okafor, at 203).
12 See, e.g., C. H. Heyns ‘A “Struggle Approach” to Human Rights’, in A. Soeteman (ed.), Law and Pluralism (2001), 171–90.)
13 D. G. Hawkins, International Human Rights and Authoritarian Rule in Chile (2002).
14 Communication 155/96, Social and Economic Action Centre and Another v. Nigeria, (2001) AHRLR 60 (ACHPR 2001).
15 Constitutional Rights Project (in respect of Lekwot and Others) v. Nigeria, (2000) AHRLR 183 (ACHPR 1995).
16 The complainants’ right to be heard by an impartial tribunal was violated because the special tribunal was composed of a judge and four members of the military; their right to an appeal flew in the face of the exclusion of any appeal possibility from the tribunal's decision; and their right to be represented by counsel was flouted when their case was concluded despite the withdrawal of their counsel due to harassment.
17 However, it may be pointed out that there is some confusion in the information that Okafor provides, in that he first states that the convicted men were released in 1996 (Okafor, at 99), but later mentions that they were eventually released by the ‘Babangida-led military regime’ (ibid., at 124), which had already come to an end, in 1993.
18 See also Okafor's discussion of the Newspaper Registration Decree 43 of 1993 case, at 101–3.
19 Oji Umozurike (Nigeria) was a member of both the NNHRC and the African Commission, and Barney Pityana was simultaneously chair of the South African Human Rights Commission and a member of the African Commission.
20 See, e.g., General Comment 2, adopted by the Committee on the Rights of the Child, on ‘the Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child’.
21 That is, in her exposition, the ‘why’ question precedes the ‘how’ – and ‘how effective’ – questions.
22 In the Tanzanian Commission for Good Governance and Human Rights Act, 7 of 2001, for example, the Commissioners are aptly described as holding public office ‘in the services of the United Republic’ (section 13(1)).