Foundations of Human Rights and Development: A Critique of African Human Rights Instruments
Isanga, Joseph M., Ave Maria Law Review
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.
I. CONTEMPORARY PHILOSOPHICAL FOUNDATIONS OF HUMAN RIGHTS LAW
A. 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. …