Abstract
Africa (including its human rights system) is rarely imagined or considered an originator, agent and purveyor of ideas, including in the human rights sphere. On this occasion of the fortieth anniversary of the adoption of the 1981 African Charter on Human and Peoples' Rights which founded the African human rights system, it is only fitting that its contributions or otherwise to global human rights praxis, over these four decades, be examined from this perspective. Utilising the theory of the norm life cycle, developed by scholars of international relations who work within 'strategic social constructivism', this article examines how the African human rights system has, or has not, functioned as a 'norm leader' with regard to certain important and increasingly widely-accepted human rights standards. To that extent, the article examines (as examples) certain human rights norms first elaborated and made into legally-binding forms in the African Charter, widely circulated and having achieved a considerable level of global dispersal and adoption, in part, as a result of the work of the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights. Focusing on three important norms (the right to self-determination, the right to development and the right to the environment) and based on a study of academic and other literature, treaties or instruments, case law and records of international negotiations, the article attempts to respond systematically to this overarching question. The article argues that although the African human rights system clearly is not a state, the critical but globally under-appreciated roles it has played regarding the globalised socialisation of certain human rights ideas fits within, and helps in extending, social constructivist human rights theory and praxis. The article concludes with a reflection on some key limitations that are observable as to how far the system has been able to travel in the direction of norm leadership in human rights law.
Highlights
Human rights systems and norm creationThe African human rights system is an ensemble of institutions as well as instruments that make provision for individual and peoples’ rights and obligations, agents and institutions
We argue that the African human rights system has equipped diverse actors and rights systems with an enhanced toolbox, well beyond what usually is available in mainstream human rights praxis, for evolving norms and strategies for, and intervening in, contentious politico-legal affairs
176 Art 46C Malabo Protocol (n 174). While this is a welcome addition to the repertoire of normative resources available for redressing human rights violations in Africa, certain challenges remain in the area of the struggle to instate a robust anti-corporate violations regime, regarding the forcefulness with which African states – hostages rather than hosts to powerful Global North-domiciled transnational corporations – in reality, even with the best intentions, can mobilise or encourage the mobilisation of this aspect of the Malabo Protocol to moderate the worst excesses of these enterprises
Summary
The African human rights system is an ensemble of institutions as well as instruments that make provision for individual and peoples’ rights and obligations, agents and institutions. In many senses it is a trailblazer in human rights jurisprudence and the evolution of international human rights law. Despite its influence on regional and global rights theory and praxis,[1] the African human rights system continues to attract relatively marginal and less-than-generous attention.[2]. The authors argue that the African human rights system has functioned as a ‘norm leader’ that has made a critical (and even radical) contribution – at least in certain areas – to the global rights
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