Avoiding another Brexit: the subsidiarity principle,the European Convention on Human Rights and the United Kingdom

ABSTRACT

Following a number of controversial judgments, the British government has been pushing for some time for a limitation of the supervisory powers of the Human Rights Court in Strasbourg. On a British proposal, the member states of the Council of Europe agreed in 2012 to include a reference to the subsidiarity principle into the Preamble of the European Convention on Human Rights. This paper describes these developments and explores the possible role of subsidiarity considerations in the context of international human rights protection.     

African Indigenous Knowledge Systems and Human Rights: Implications for Higher Education,Based on the South African Experience

ABSTRACT

Africa has rich traditions and knowledge systems founded on the principles of caring for one another and the spirit of mutual support embedded in the African philosophy of Ubuntu. These collective values tend to be marginalised in international human rights standards built on western values. The standards were developed without broad-based consultation of the different value systems in Africa. Therefore, in order to inspire sustainable implementation among diverse cultures, dialogue to develop universal human rights and obligations based on the diversity of cultures and ways of knowing is needed. Using South Africa's experience at two universities, the extent to which these institutions have attempted to incorporate African indigenous knowledge systems (AIKS) and human rights into the higher education curriculum is investigated. The implications for higher education and the human rights and development paradigms built on western knowledge systems are investigated. North-West University has been the pioneer of integrating AIKS into higher education in South Africa and is the only higher education institution in South Africa with an accredited IKS Teaching Programme at both undergraduate and postgraduate levels – which has been notably successful, albeit with some challenges. AIKS has also been integrated into research and teaching at the University of KwaZulu-Natal and has registered significant successes since 2012. The need to embed AIKS in the curriculum of higher education institutions is affirmed.     

The International Criminal Court and the Darfur crimes: The dilemma of peace and supra-national criminal justice

ABSTRACT

The supra-national criminal prosecution by the International Criminal Court (ICC) of the alleged crimes committed in Darfur raises critical legal and conceptual issues. This article addresses the dilemma of peace, justice and reconciliation from a legal perspective, as well as the justice options that are available. The article also assesses the Sudan's criminal and military laws (both at the substantive and procedural levels) in terms of the country's ability to prosecute international crimes such as war crimes, crimes against humanity and genocide. In this respect, the article argues that these laws fall short of international criminal law standards and principles – particularly the amendments introduced after the United Nations Security Council referred the Darfur situation to the ICC. The article critically examines the Sudan government's policy of non-engagement, which ultimately led to supra-national criminal prosecution (represented by the ICC intervention under the complementarity principle of the Rome Statute). Finally, the article interrogates the report issued by the African Union High-Level Panel on Darfur (AUPD), and evaluates the strengths and weaknesses of its recommendations.     

The role of African Union law in integrating Africa

This article traces how the development of regional law is linked to the state of regional integration in Africa. Given the prominent role European Union law plays in the functioning of the European Union, the question is posed whether there is similar scope for the development of ‘African Union law’, a term not established hitherto. Initially devoid from the necessary supranational elements required to adopt law that would automatically bind member states, the African Union is leaning towards a functionalist approach paving the way for transfer of sovereign powers to African Union institutions. It is argued that law-making capacity, be it through the activities of the Pan-African Parliament, the Peace and Security Council or the African court system, is a necessary requirement to accelerate the process of regional integration. African Union law will hold member states accountable to comply with international and continentally agreed standards on, inter alia, democracy, good governance and human rights.     

The role of African universities in the protection of the rights of indigenous peoples: A development agenda

Before the emergence of the United Nations at the end of the Second World War, human rights were generally scantily recognised in international law and, even under the UN Charter of 1945, indigenous peoples received merely tacit reference. Since the 1970s, however, several normative instruments have been adopted to give recognition to the rights of indigenous peoples as a distinct component of international human rights law. With the further adoption of the Declaration on the Rights of Indigenous Peoples by the UN General Assembly in 2007, the subject has assumed new dimensions with the possibilities of new vistas. What, for instance, is the role of African universities in the promotion and protection of the rights of indigenous peoples as critical agents in the global human rights and development agenda? The purpose of this article, among others, is to synthesise the strategic approaches to the rights of indigenous peoples and to accentuate a more informed conceptualisation of what the role of African universities on this subject ought to be, and must be, in the light of the dynamic opportunities of the post-2007 era.     

Norm dynamics and international organisations: South Africa in the African Union and International Criminal Court

Over the past two decades, South Africa has sought to perform several roles on the world stage, such as the economic dynamo of Southern Africa, a diplomatic heavyweight representing the African continent, and a norm leader on the world stage as a so-called ‘middle-power’. Although South Africa's evolution and rise as an important player in global affairs has generated a welcome body of critical scholarly literature, comparatively little analysis has been allocated to understanding how norm dynamics and the country's ever-evolving international identities have enabled it to construct and reconstruct its ‘interests’. Social constructivism is best suited for such an analysis because it can operationalise norms, commitments, identities, and interests, and it provides the epistemological tools to map the increasingly multilateral connections between global, regional, and domestic forums. By employing a rationalist approach to constructivism, this paper remedies the aforementioned gap in the literature by illustrating how South Africa constructs and reconstructs its identities and interests in relation to membership in international organisations (IOs). To that end, the paper examines the evolution of South Africa's participation in the African Union (especially ‘peacekeeping’ contributions) and the International Criminal Court. The paper concludes by assessing the theoretical implications and practical ramifications of the norm dynamics involved in South Africa's commitment to these two IOs.     

Major rulings of the European Court of Human Rights on Cyprus: the impact of politics

The European Court of Human Rights (ECtHR) has so far issued six major judgments on Cyprus concerning the ongoing consequences of Turkey’s military intervention of 1974. Starting with the Loizidou case (1995, 1996), the rulings of the court on Cyprus v. Turkey (2001), Demades v. Turkey (2003), Eugenia Michaelidou v. Turkey (2003), Xenides-Arestis v. Turkey (2005), and Demopulos and others v. Turkey (2011) have mostly been criticized for their ‘politicized’ legal content, including by some of the judges of the ECtHR itself, through their dissenting opinions. This article attempts to demonstrate the – not always negative ? impact of specific political developments on the court’s rulings as well as on the attitudes of the states parties before the court, as a result of this interaction.     

African research and development surveys: Highlights from the South African success story

ABSTRACT

Science and technology have a major role to play in current and future developments on the African continent as a whole. With the vast array of developmental challenges, current thinking needs to be expanded, so that technologies provide increased and enhanced solutions, such that African scientists produce an African response to the very many shared challenges affecting Africa – both as individual nations and as regards African people collectively. Key to developing an integrated science and technology network, within and across nations, is firstly to understand the extent of research and development (R&D) currently undertaken within individual territories and on the continent as a whole. In light of this, the article examines the value and importance of national surveys of research and experimental development undertaken in Africa. Within the Southern Africa Development Community (SADC), many member states now have dedicated departments overseeing state science and technology (S&T) development initiatives. South Africa has the most developed science and technology system on the continent. In recent years, other SADC countries like Mozambique, Botswana and Namibia have initiated projects to measure R&D activities within their territories. Despite this, further North, R&D measurement on the continent is uncommon, both as a result and as a cause of underdevelopment.

The article explores the limited data from selected African R&D surveys in an attempt to understand measurement issues that exist and to detail the value and importance of mapping S&T systems and their applications to developmental issues in Africa. In countries like Algeria, Angola, Burkina Faso, Cameroon, Egypt, Ethiopia, Gabon, Ghana, Kenya, Lesotho, Malawi, Mali, Nigeria, Senegal, Tanzania, Uganda and Zambia, where S&T systems exist, effective means of measurement need to be established, so that the power of these systems can be harnessed, shared and exploited to benefit the African people. To this end, the African Science, Technology and Innovation Indicators (ASTII) initiative was set up at a meeting in Addis Ababa with the aim of delivering a survey of these countries’ R&D output and potential. This is eagerly awaited by the African S&T community.

At the forefront of African R&D measurement is the South African national R&D survey, administered by the Human Sciences Research Council (HSRC). Being an established survey, the South African team is often called upon by other African nations to support the setting up of surveys. The HSRC also trains visiting African scientists in the delivery of accurate and reliable R&D survey data. This article will, for the first time, present detailed results of the most recent South African national R&D survey (2008/2009), together with a trend analysis of historic South African R&D surveys.     

Horizontal Accountability in Transitional Democracies: The Human Rights Ombudsman in El Salvador and Guatemala

Postwar El Salvador and Guatemala have undertaken to reform and democratize the state and to support the rule of law. Each country entered the 1990s hobbled by a legacy of authoritarian rule, while a corrupt and politicized judiciary offered virtually no check on the abuse of power. Because the judiciary has performed poorly as an institution of horizontal accountability, this article examines the performance of a new "accountability agency," the Human Rights Ombudsman. The article discusses the context in which the office was established and developed in each country, perceptions of its performance, and political responses as the office began to perform its function of holding public officials accountable in their exercise of power. Unfortunately, this new office may fall prey to the same weaknesses that have plagued older institutions in both countries.     

In search of international criminal justice in Africa: What role for the United Nations?

The International Criminal Court (ICC) ran into considerable controversy almost immediately after its creation. More than 10 years later, the tension between the court and the AU is palpable. The court’s perceived political prosecutions as well as procedural flaws in light of the power bestowed on the UN Security Council under Article 13(b) of the Rome Statute are some of the areas of contention. However, despite the obvious flaws of the ICC, there is also widespread scepticism that the AU can be trusted to mobilise sufficient political will to deliver justice on the continent, more so in cases where the perpetrators are sitting heads of state or government. In lieu of cooperation with the ICC and the UN, can the AU deliver justice to victims of gross human rights abuses? Are extraordinary African Chambers such as the one created in Senegal to try the former Chadian dictator Hissene Habre an alternative to the ICC? This article argues that it is only through a partnership of convenience between the AU and the UN that victims of human rights abuses on the continent can access justice. Furthermore, the article opines that calls for African states to withdraw from the ICC en mass must be vigorously opposed.     

Knowledge production on conflict early warning at the African Union

ABSTRACT

How does the African Union (AU) generate knowledge about on-going violent conflict as well as post-conflict situations? This article offers an analysis of the multiple sites and sources in the construction of conflict-related knowledge. It also reflects on the various institutional ways this knowledge is filtered into the activities of a wide range of AU actors, starting with the AU Commission, the AU Commission Chairperson and the Peace and Security Council. Emphasis is on the development of the Continental Early Warning System and some of its limitations, the latter partly related to the specific organisational culture of the African Union.     

冷战后东盟对西方人权压力的反应及其影响

冷战结束后,以美国为主的西方社会不再对东南亚进行直接的军事干涉,而是增加了以人权为借口和手段对东盟施加的压力。面对西方压力,东盟在不同阶段作出了不尽相同的反应。在东盟与西方博弈以及走向一体化的过程中,人权逐渐演变为东盟的重要议题之一,已经并将继续对东盟的发展产生一些不可忽视的影响。     

Knowledge generation,political action and African development: A polycentric approach

ABSTRACT

Knowledge generated to meet societal needs is the bedrock of development. Africa's development crisis is marked by the persistent gap between the application of intellectual rigours and political action. Despite abundant development potential (human and natural resources, and scientific knowledge), coupled with reform declarations and commitments by African leaders over the past four decades, development remains illusory. This article examines the relationship between key development players (African public officials and African scholars), and how generated knowledge is applied to respond to the needs of African citizens. Using the Institutional Analysis and Development (IAD) framework (otherwise known as new institutionalism) this article examines weaknesses in the interaction of knowledge, political action and development, while at a local level African citizens, through shared strategies and problem-solving interdependency, are effectively transforming indigenous knowledge inherited from their parents to confront daily challenges. The article suggests ways of bridging the gap between development players by proposing an African Development Institutional Mechanism (ADIM) aimed at enabling key development players to operate in synergy.     

Brexit and Trade Ties between Europe and Commonwealth States in Sub-Saharan Africa: Opportunities for Pro-poor Growth or a Further Entrenchment of North–South Inequalities?

Abstract

Brexit will of course have major implications for trade between Commonwealth African nations and the European continent. In the short term, the European Commission’s Economic Partnership Agreements with regional groups such as the East African Community will be complicated by the UK’s decision to leave the European project. Moreover, there are longer-term consequences to be considered, not least the role which the UK—as an independent trade actor—will adopt in its trade relations with Commonwealth African countries. This article examines the impact of Brexit for Commonwealth African nations’ trade with Europe (including the UK). It particularly points to several potential pitfalls arising from the Brexit referendum vis-à-vis African development.     

African Postmodernism: Its Moment,Nature and Content

The fulcrum of this article is its exposure of postcolonial African modernity as being both historically and philosophically, an anachronistic colonial modernity, or simply Afrocoloniality. I explicate this anachronism by pointing out that while the cultural and intellectual edifice of Afrocoloniality was built on a colonial European Modernism, whose epistemic infrastructure continues to be reconstructed by the Western postmodernist movement, the structure of this Afrocoloniality remains impervious to this reconstruction. A Status quaestionis arises from the fact that, historically, in its nascent form, this African modernity that we claim is an Afrocoloniality was facilitated by an anticolonial consciousness that embraced and generated a series of political categories and a political praxis, which, in turn, had to be trapped in the paradigms of European modernism, while this very European modernism was in a state of philosophic crisis. A recognition of this incongruity, I argue, constitutes a uniquely African postmodernist conceptual prism that can serve to appraise these politico-philosophical categories that have informed the conduct of the anti-colonial struggle and the resultant postcolonial milieu. This article therefore, makes a case for this Afro-postmodernism.     

China and the International Human Rights Covenants

ABSTRACT

In 1966 the UN passed two International Human Rights Covenants that are among the great achievements of humankind. The covenants were adopted in five equally binding languages, one of which was Chinese. The People's Republic of China (PRC) is generally assumed to have ratified one and signed (but not ratified) the other. In 1973, however, soon after the PRC began representing China in the UN, new Chinese-language versions of each mysteriously came into existence. These are the versions one is likely to find on the UN website, and they are what the Chinese government treats as the “covenants.” The authors of this article show that these contain substantial revisions from the covenants that had been passed by the UN 1966 and subsequently ratified by at least 164 countries. The revised versions are so different, in fact, that one could well question whether the PRC actually embraced either covenant. The covenants granted rights that the revisions would later withdraw, and in at least one case the revisions recognize a right that is absent in the covenants. Based on their comparative analysis of the various versions, the question arises as to whether China is a responsible actor in the international legal order and a reliable partner when it comes to entering into agreements with other countries or acceding to international treaties. Given that China comprises over one-fifth of humanity, it also brings into question whether the principles in the covenants can claim absolute validity and anything like universal acceptance.     

美国关塔那摩系列人权案中的权力制衡

对美国关塔那摩系列人权案件审理过程的解读可以发现,分权制衡的理念在实际运作中存在着立法权对行政权制约失灵的可能性,这时司法权的制衡就能发挥重要的补充作用。而在司法制衡过程中,美国联邦最高法院对制衡依据的选择值得重视。在传统的三权分立、相互制衡的制度之外,第四种制衡力量,即民间人权组织的作用,已成为主权在民的另一个有效途径。     

Human Rights and Tear Gas: The Question of Carter Administration Officials Opposed to the Shah

Jimmy Carter’s arrival to the White House and Washington’s new focus on human rights caused an early, although subtle, rift between the United States and the Shah’s Iran. The aim of this paper is to explore how the Bureau of Human Rights’ activist approach, under the leadership of the outspoken Patricia Derian, muddied the waters between Tehran and Washington, while using the export of riot control equipment as the spearhead of Carter’s human rights policy abroad.     

Towards political integration in Europe: the involvement of national parliaments in European Union politics and policy-making

This article provides an overview of the life of the European Union over a period that has witnessed a number of historical international and institutional developments, and provides a politico-juridico-historical perspective on its growth. The article aims to examine the role of national parliaments in relation to increasing European legislative powers. The European Union is using these powers to ensure that non-European-Union states accept its rules as universal standards. At the same time, European foreign policy has expanded remarkably, reflecting its more prominent international role. The European Parliament is the world's first directly elected transnational parliament. In recent decades, the principles of human rights, peace, and democracy have reflected the deeply embedded values at the core of European integration since its inception, determining the evolution of the European Union from international actor to a model of democratization: a model promoting not only respect for human rights, but also democracy and peace, which have become concrete goals steering the European Union foreign policy.     

Proposals for a New Bill of Rights in Sri Lanka: Narrow Debates,Unmarked Challenges

ABSTRACT

This article makes two claims about the current proposals for reforming Sri Lankan’s fundamental rights chapter. One is that the complex challenges in seeking judicial enforcement of fundamental rights largely remain unmarked in the narrow and limited debates that have taken place on these proposals. Thus far, these proposals have attracted minimal debate and discussion except in relation to the judicial enforcement of economic and social rights. The second and related claim is that the transformational reach of the proposals is yet to be evaluated against Sri Lanka’s actual experiences in the enforcement of a Bill of Rights in its republican era. Critical reflection and debates that mark and engage the challenges posed by the current proposals for a new Bill of Rights are essential if these proposals are to be effective in implementation.