Tuesday, April 17, 2012

Africa and International Law

I spent this weekend at a terrific conference on Africa and International Law organized by Professor James Gathii at Albany Law School. The conference had a rich mix of scholars at different stages of their careers.  The conference included four keynote addresses, including one by Judge Abdul G. Koroma, which I found particularly engaging. For those who may not follow international law decisions, Judge Koroma penned his well-known dissenting opinion in the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons case, which is available here.

What struck me about Judge Koroma's presentation was his emphasis on climate change, regarding which he indicated an Advisory Opinion could be sought of the ICJ. While he did not address the problem or the international law position on climate change in his address, he alluded to the climate change potentially presenting a threat to international peace and security.

At the same time, Judge Koroma discussed the question of human rights and the challenge of universalism. He noted that cultural relativism or cultural differences had to be considered in shaping human rights benchmarks. His provocative remarks about the limits of human rights and the legitimacy of universal claims to human rights made me think about the role of human rights in the climate change debate. Not only whether nations or people can claim a bundle of rights that are threatened by climate change, but also how cultural differences can affect the manner in which states/people claim these rights, if at all they do, and what that means for climate change.

What do I mean? In many countries, notably developing countries where the legal system is poorly developed or limited in terms of the enforcement mechanisms and remedies, there is a cultural preference to simply bear the consequences. What happens to people in those countries when consequences of climate change follow? Wither the rights of sub-Saharan Africans, for instance? I think this a huge problem. Human rights are as important as the venues available for their enforcement. Those venues are not only limited at the international level for most of the world's population, but they are also limited domestically.

An anicillary problem is that not all rights are created equal, surely. Yet, in international law such nuances appear to be subsumed under broad categories of social, political, cultural, and/or economic rights. The threat of climate change is perhaps a good time to re-evaluate the structure of human rights and the potential for acknowledging hierarchy among rights, ironical as this may sound...

Before signing off let me add that another notable presentation was made by Rugemeleza Nshala, SJD, Harvard Law School, on the state of mining in sub-Saharan Africa. It was a grim reminder of the numerous environmental and "human rights" problems in relation to natural resource exploitation. The presentations reminded me about the serious environmental problems that we continue to encounter.

As I mentioned in my own presentation on the impact of China's investment in Africa, according to the Human Genome Project we are all from Africa. We keep returning to this rich continent for our natural resources. We should not forget that Africa is also an important weathervane of our commitment to the rule of law.



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