Foundations of human rights and development: a critique of African human rights instruments.

• Author: Isanga, Joseph M.
• Position: The Foundation of Human Rights: Catholic Contributions, part 2

INTRODUCTION

Rule of law is essential to peaceful and sustainable economic development, but only if law itself is deduced from the principles of human dignity and the common good. (1) Some theory animates every form of social action. (2) This Article argues that, of the contemporary human rights theories, sustainable African development necessitates grounding human rights in complete alignment with the broader perspective of natural law theory, as opposed to narrower perspectives such as utilitarian, positivist, and kindred theories. (3) Part I presents pertinent philosophical theories and modes of analysis in conjunction with general international legal jurisprudence. Part II then uses this philosophical analysis to examine specific African human rights instruments and jurisprudence. Part III considers African traditional human rights conceptions. Part IV recommends a natural law foundation for African development.

1. CONTEMPORARY PHILOSOPHICAL FOUNDATIONS OF HUMAN RIGHTS LAW

   1. Natural Law

      Although framers of international human rights instruments agree that humans have rights because of their particular dignity, they differ as to why humans have inherent dignity.4 The African Charter on Human and People's Rights (African Charter) embraces the language of "inherent" human rights.5 But it is important to delineate what human dignity is in order to discover legitimate candidates for human rights and justify their legal protection.6 A contrasting example, utilitarianism, which proceeds from the general welfare of society, denies this analysis.7 International law in general and international human rights law in particular, in their present state, are derived from natural law, legal positivism, legal realism, and third world and feminist theories, inter alia.8 International law theorists--especially Francisco de Vitoria, Francisco Suarez, Hugo Grotius, and Samuel Pufendorf--relied heavily, albeit in very different ways, on natural law theory to defend the law of nations.9 Hugo Grotius contends that there are rights natural to man and demanded by his nature. (10) Emmerich de Vattel postulates that "the law of Nations is originally no other than the law of Nature applied to Nations." (11) A great achievement of the eighteenth century was the articulation of the rights of man as being universally guaranteed by natural law. (12) In Immanuel Kant's view, our duty to recognize and respect the humanity, or moral personality, of others is expressed in the notion of human rights. (13)

      Because natural law expresses the totality of the dignity of the human person it justifies all fundamental human rights. The very proposition of the universality of human dignity (14) affirms that human rights are justified outside of themselves, which presupposes, as Jacques Maritain put it, that the "philosophical foundation of the Rights of man is Natural Law." (15) Contemporary human rights discourse is "a modern version of the natural law theory." (16) Joseph Raz contemporaneously argues that "[h]uman rights are moral rights held by individuals" (17) and "[i]nternational law is at fault when it recognises as a human right something which, morally speaking, is not a right or not one whose violation might justify international action against a state, as well as when it fails to recognise the legitimacy of sovereignty-limiting measures when the violation of rights morally justifies them." (18) For a natural law theorist, international law consists primarily of principles of right and wrong. (19) Pope Benedict XVI reiterates that human rights are "based on the natural law inscribed on human hearts....Removing human rights from this context would mean restricting their range and yielding to a relativistic conception." (20) There are other philosophical traditions that accept a natural law foundation of human rights. (21) Because some theorists trace human rights theories to the Stoic philosophers and Judaic and Christian sources, (22) the modern human rights debate is part of the perennial debate on natural law and its consequences for human law. Natural law is central to that debate.

      Natural law explicitly underpins a number of international law instruments. (23) Human rights are essentially moral rights. (24) The Vienna Convention on the Law of Treaties (VCLT) provides peremptory norms known as jus cogens (25) and establishes the integrity of international treaties on the principle of pact sunt servanda ("an agreement must be kept in good faith"). (26) This necessarily presupposes that there is an a priori authority superior to the treaty itself that binds states to these principles. (27) International cases also occasionally have express recourse to natural law reasoning. In The Venus, Justice Story of the United States Supreme Court stated "[t]he law of nations is a law founded on the great and immutable principles of equity and natural justice." (28) In The Amistad, Justice Story maintains that a "treaty with Spain never could have intended to take away the equal rights of all foreigners...." (29) Admittedly, in some of these cases legal positivism prevails as in The Antelope, in which Justice Marshall, while admitting that slave trade was "contrary to the law of nature," nevertheless upheld its legality on the premise that the state of the law is unalterable because it is rooted in the consent and practice of nations. (30)

      In response to the defendants' argument against the application of ex post Facto international laws holding them accountable for war crimes, the Tribunal in the Nurnberg Trial stated that even in the circumstance of an inferior obeying orders, the aggressor must know that he is doing wrong and it is unjust to fail to punish his wrong. (31) In North Sea Continental Shelf, a natural law argument was tendered suggesting that the equidistance principle, concerning the delimitation of the continental shelf, had an a priori character. (32) In Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice (I.C.J.) referred to "the moral and humanitarian principles which are its basis." (33) In the Genocide Case, the I.C.J. maintained that genocide is "contrary to moral law ... 'the principles underlying the Convention ... recognized by civilized nations as binding on States, even without any conventional obligation'." (34)

      Domestic judicial decisions sometimes make express natural law arguments, including some in the United States. The United States Supreme Court postulates that federal common law is "strongly supported by reason and justice" (35) and that "[t]he common law, [is] founded in reason and nature." (36) Justice Story, in Swift v. Tyson, approvingly cites to Cicero's proclamation that "[n]on erit alia lex Roman, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit." (37) In Calder v. Bull, Justice Samuel Chase declares that if a state legislature enacted an ex post facto law it would be invalid even if the United States Constitution did not prohibit it. (38) The Supreme Court recognizes that some rights not specifically guaranteed in written law are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." (39)

   2. International Legal Positivism

      Legal positivism maintains that the legitimacy of law depends on social circumstances notwithstanding the morality of the law. (40) It emphasizes consent by locating all authority in the collective will. This is particularly evident in the priority placed on written treaties and instruments. (41) The word "consent" appears sixty-two times in the Vienna Convention on the Law of Treaties. (42) In S.S. Lotus, the Permanent Court of International Justice contended that "[i]nternational law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will...." (43) Despite the attractiveness of its appeal to personal liberty and upholding promises, even the most ardent protagonists of legal positivism recognize its inherent limitations, especially regarding its failure to provide norms for the resolution of human rights problems.

   3. International Legal Realism

      International legal realism emphasizes the autonomy of the judge as decision-maker. Realists do not understand judges as mechanically applying rules free of their own biases and policy preferences. For the realist, applying pre-existing rules "out there" to facts is misguided. (44) The realist stresses the context in which law is made, operates, and has effects. (45) To illustrate the theory, at the time of issuing its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, (46) most states did not possess nuclear weapons, but the I.C.J. did not unambiguously declare nuclear weapons to be unlawful, plausibly because nuclear weapons were unlikely to be abandoned by the most powerful states. While realism recognizes realpolitik, it ignores human rights if expedient.

   4. International Third World and Feminist Legal Theories

      The theoretical debate includes feminist and "Third World" theories. (47) Feminist theorists argue that the international legal system, as dominated by men, perpetuates the inequality of women and therefore participation needs to be equalized between the sexes. Third World theorists speculate that international law only serves the interests of the powerful developed world and therefore needs to be redirected toward distributive justice, ending poverty, and development. These theories are politically motivated and, consequently, lack merit as enduring foundations for human rights.

2. THEORETICAL PREMISES AND AFRICAN HUMAN RIGHTS INSTRUMENTS

   Universal international human rights instruments are premised on the equal inherent dignity of every person, (48) but this reasoning has not been consistently applied. As John Witte notes:

   [T]he very proliferation of new human rights...