Academic journal article Chicago Journal of International Law

International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law

Academic journal article Chicago Journal of International Law

International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law

Article excerpt

I. INTRODUCTION

Few would dispute that international human rights law has grown exponentially in the last few decades. Legal arguments based on international human rights law, as well as domestic law that is interpreted or otherwise influenced by international human rights law, are increasingly common. The pressing question is no longer whether international human rights law exists, but whether, to what extent, and how, international human rights law makes a difference.

It is not surprising that there is some skepticism about the relevance of international human rights law. One need only look to the last half century to see atrocities and genocide committed with seeming impunity. In response to the call of 11 never again" after the Nazi genocide, the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention") was drafted and ratified by most of the world's states. The Genocide Convention obligates states to "undertake to prevent and to punish" acts of genocide wherever committed! Yet genocide continues to be committed, most notably and recently (but by no means exclusively) in Cambodia, Bosnia, and Rwanda.

In the field of international law, a rich body of scholarship has developed among social scientists, international relations theorists, and legal academics focusing on the relationship between international law and the behavior of states. That inquiry, however, has primarily focused on the impact of law on the behavior of states vis-a-vis each other (or on the behavior of sub-state institutions, such as courts or parliaments), and not directly on the impact of law on the individuals within those states. This is not surprising, given that international law was traditionally understood to have as its subject and object the nation-state, with private individuals deriving benefits, if at all, through and at the discretion of the state. This view of international law has changed, both with the development of areas of international law which explicitly identify private individuals as the subject and object of international law-most notably international human rights law-and with the recognition that international law is not restricted to international institutions, but is embedded in a much more complicated and pervasive environment of transnational legal interactions.2

In this article, I want to focus the question of the relevance of international human rights law and ask about its impact on those it is designed to benefit-the poor and oppressed of the world. For ease of discussion, I will refer to this broad class of people as "human rights beneficiaries." Recognizing that every individual is a beneficiary of human rights, I intend to focus on those whose rights have already been violated and continue to be violated.

The application of this relevance inquiry to international human rights is relatively new. It is an inquiry that until recently engaged very few specialists in international human rights law and has been mostly taken up by social and political scientists.3 This essay is in part a suggestion that international legal scholars, and particularly those of us specializing in international human rights law, incorporate into our teaching and scholarship the empirical and normative research undertaken by some of our colleagues in the social sciences. Incorporating such materials may make our undertaking more relevant to the everyday concerns of the victims of human rights violations throughout the world. While the focus on law-making and normative rhetoric at the international level is important, it often appears quite removed from the real concerns of those individuals on whose behalf many of those efforts are undertaken.

What follows are some brief thoughts on how one might approach a scholarship of human rights that more closely reflects the concerns of the oppressed. My interest in this question arises in part out of my work and research over the past four years in connection with South Africa's transition from apartheid to democracy. …

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