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Published online by Cambridge University Press: 03 July 2020
This article assesses the African Union's planning process regarding the development of the African Human Rights Action Plan (AHRAP) against the dominant or conventional “ideal” or model of human rights action planning. It examines the extent to which the AU's process followed or departed from the conventional model, the strengths and weaknesses of the AU human rights action planning process, and the lessons scholars and policymakers have learned about more effective and more locally responsive human rights action planning. In doing so, the article sequentially addresses the following specific themes: human rights action planning as a concept and its essential elements; the key characteristics and features of the conventional “ideal” human rights action planning process; and the extent to which the AU plan conformed to or departed from this conventional process, and its import. It also teases out some key insights and lessons learnt (in terms of strengths and weaknesses) in respect of the AHRAP planning process.
Professor of law and York research in international and transnational legal studies (senior tier), Osgoode Hall Law School, York University, Toronto; UN independent expert on human rights and international solidarity.
PhD candidate, Osgoode Hall Law School, York University, Toronto.
Associate professor, Department of Sociology, York University, Toronto.
Associate professor, College of Law, the University of Saskatchewan, Saskatoon.
The authors wish to express their gratitude to the Social Sciences and Humanities Research Council of Canada (SSHRC) for the short-term SSHRC Partnership Engage Grant that funded the larger study on which this article is based, and express their appreciation to the Osgoode Hall Law School of York University, Toronto, Canada, the Nathanson Centre for Transnational Human Rights, Crime and Security of the same university, and the Faculty of Law of the University of Saskatchewan, Saskatoon, Canada, for additional funding that helped make the project possible. The authors are also grateful to Feyisayo Oni, Jake Okechukwu Effoduh and Rahina Zarma for their excellent assistance in the research and other project activities on which this article is grounded.
1 Declaration of the Assembly on the theme of the year, Assembly/AU/Decl.1(XXVII) rev 1, 17–18 July 2016 (Human Rights Decade Declaration).
2 Id, para 2.
3 Department of Political Affairs, AU Commission “Human rights strategy for Africa” (action plan 2012–16), available at: <https://au.int/sites/default/files/documents/30179-doc-hrsa-final-table_en3.pdf> (last accessed 20 May 2020).
4 Agenda 2063 (popular version, May 2016, AU Commission), available at: <https://au.int/sites/default/files/documents/33126-doc-03_popular_version.pdf> (last accessed 30 April 2020).
5 UN Office of the High Commissioner for Human Rights (OHCHR) Handbook on National Human Rights Plans of Action (2002, UN) at 9 lists the following as the goals of an ideal human rights action plan: improving the promotion, protection and observance of human rights in a particular country or region; assessing a country / region's human rights situation; formulating programmes and ideas aimed at strengthening human rights institutions and other organs and agencies charged with the protection and promotion of human rights; sensitizing, deepening awareness and promoting the penetration of human rights ethos and values in day-to day work and among government officers and institutions, regional institutions, civil society and the general public; forging alliances and linkages with other agencies on human rights objectives; suggesting commitments and targets to be achieved; catalysing governments and duty bearers to ratify instruments and commit faithfully to human rights cultures; providing guidance to governments, human rights agencies and civil society on the specific actions and programmes that need to be accomplished to ensure that human rights are effectively observed; coordinating and enhancing cooperation and synergized action between all groups involved in the perpetuation of a human rights agenda, such as the strong relationship between governments and civil society; promoting, maintaining and monitoring a high level of awareness of the state of human rights observance in the region or country concerned; fashioning and implementing programmes specifically targeting the situation of vulnerable groups in society and other priority areas of concern; and facilitating the mobilization of international resources through international institutions and other agencies.
6 Chalabi, A “National human rights action plans: A roadmap to development” (2014) 24/8Development in Practice 989CrossRefGoogle Scholar at 995. OHCHR Handbook, above at note 5 at 8 notes that “the fundamental purpose of a national human rights action plan is to improve the promotion and protection of human rights in a particular country”.
7 National Action Plans on Business and Human Rights Frameworks: A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks (June 2014, Danish Institute for Human Rights (DIHR) and The International Corporate Accountability Roundtable (ICAR)).
8 OA Hathaway “Do human rights treaties make a difference?” (2002) 111 Yale Law Journal 1935 at 1938; Hafner-Burton, EM and Tsutsui, K “Human rights in a globalizing world: The paradox of empty promises” (2005) 110/5American Journal of Sociology 1373CrossRefGoogle Scholar; Hafner-Burton, EM and Ron, J “Seeing double: Human rights impact through qualitative and quantitative eyes” (2009) 61/2World Politics 360CrossRefGoogle Scholar; Neumayer, E “Do international human rights treaties improve respect for human rights?” (2005) 49/6Journal of Conflict Resolution 925CrossRefGoogle Scholar.
9 Schmitz, H and Sikkink, K “International human rights” in Carlsnaes, W, Risse, T and Simmons, BA (eds) Handbook of International Relations (2002, Thousand Oaks) 517Google Scholar at 529.
10 T Risse and K Sikkink “The socialization of international human rights norms into domestic practices: Introduction” in T Risse, SC Ropp and K Sikkink (eds) The Power of Human Rights: International Norms and Domestic Change (1999, Cambridge University Press) 1 at 11. See also T Risse, SC Ropp and K Sikkink (eds) The Persistent Power of Human Rights: From Commitment to Compliance (2013, Cambridge University Press).
11 M Finnemore and K Sikkink “International norm dynamics and political change” (1998) 52 International Organization 887.
12 E Cox “State interests and the creation and functioning of the United Nations Human Rights Council (2010) 6 Journal of International Law and International Relations 87 at 92.
13 Finnemore and Sikkink “International norm dynamics”, above at note 11.
14 See J Gest et al “A comparative analysis of six agendas and emerging migrants’ rights” (2013) 19 Global Governance 1; C Bob “Introduction: Fighting for new rights” in C Bob (ed) The International Struggle for New Human Rights (2009, University of Pennsylvania Press) 1.
15 Finnemore and Sikkink “International norm dynamics”, above at note 11 at 895.
16 Ibid.
17 Scholars have theorized the relationship between international organizations and norm diffusion. See generally, B Greenhill Transmitting Rights: International Organizations and the Diffusion of Human Rights Practices (2015, Oxford University Press); B Greenhill “The company you keep: International socialization and the diffusion of human rights norms” (2010) 54 International Studies Quarterly 127.
18 “African human rights goals (African HRGs): 10 goals in 10 years for human and peoples’ rights in Africa – Action plan of the Human and Peoples’ Rights Decade in Africa, 2017–2026 as at June 2018” at 14 (forthcoming, on file with the authors).
19 Id at 25.
20 Id at 25–26.
21 Human Rights Decade Declaration, above at note 1, para 2.
22 Ibid.
23 Id, para 4.
24 OHCHR Handbook, above at note 5 at 13–21 enumerates a number of principles, including the principle that an action plan is a commitment to universal human rights standards.
25 Vienna Declaration and Programme of Action, UN doc A/CONF.157/23, 12 July 1993, part II, para 71.
26 See African Commission on Human and Peoples’ Rights: The Grand Bay (Mauritius) Declaration and Plan of Action of 1999, and Human Rights Strategy for Africa (2012–16); Council of the European Union: European Union Action Plan on Human Rights and Democracy (2012) and Action Plan on Human Rights and Democracy (2015–19); Organization of American States: Inter-American Commission on Human Rights Strategic Plan (2017–21).
27 See generally, Vienna Declaration, above at note 25.
28 Available at: <https://archives.au.int/bitstream/handle/123456789/2058/Grand%20Bay%20Declaration_E.pdf?sequence=1&isAllowed=y> (last accessed 30 April 2020).
29 OHCHR Handbook, above at note 5 at 9.
30 For example, pillar one of inculcating a culture of human and peoples’ rights in Africa has three key result areas: entrenching and reinforcing “deeper understanding of and commitment to the culture of human and peoples’ rights; ratification”, “domestication, harmonization and implementation of shared values instruments”; and “knowledge generation, management and dissemination on human and peoples’ rights in Africa, including the use of African languages”: “African HRGs”, above at note 18 at 25.
31 Commonwealth Model National Plan of Actions on Human Rights (2007, Commonwealth Secretariat) at 19–20. These recommendations include: stronger administration of justice and the rule of law; strengthened independence of the judiciary; better relationships between governments and intergovernmental agencies and civil society; and the facilitation of the mobilization of international resources through international institutions and other agencies.
32 K Quashigah “The African Charter on Human and People's Rights: Towards a more effective reporting mechanism” (2002) 2 African Human Rights Law Journal 261 at 261; C Welch Protecting Human Rights in Africa: Roles and Strategies of Non-governmental Organizations (1995, University of Pennsylvania Press) at 58.
33 M Mutua Human Rights Standards: Hegemony, Law and Politics (2016, State University of New York Press).
34 Id at 76.
35 Id at 10.
36 A Swaine “Globalising women, peace and security: Trends in national action plans” in S Aroussi (ed) Rethinking National Action Plans on Women, Peace and Security (2017, IOS Press) 7 at 9.
37 A Chalabi “The nature and scope of states’ obligation to adopt a national human rights action plan” (2014) 18/4–5 The International Journal of Human Rights 391 at 404.
38 “Plan International's recommendations on the draft EU action plan on human rights and democracy 2015–19”, available at: <https://plan-international.org/publications/eu-action-plan-human-rights-and-democracy-2015-2019-recommendations> (last accessed 30 April 2020). The current Council of Europe 2015–19 action plan was faulted for failing to provide targets or results to be achieved or providing indicators for their achievement.
39 Aroussi (ed) Rethinking National Action Plans, above at note 36 at ix.
40 For example, see OHCHR Handbook, above at note 5 at 60–77.
41 A Chalabi “Australia's national human rights action plans: Traditional or modern model of planning?” (2016) 20/7 The International Journal of Human Rights 993 at 1000.
42 For a critique of measurement in the field of development, see R Buchanan, K Byers and K Mansveld “What gets measured gets done: Exploring the social construction of globalized knowledge for development” in M Hirsch and A Lang (eds) Research Handbook on the Sociology of International Law (2018, Edward Elgar Publishing) 101.
43 Swaine “Globalising women, peace and security”, above at note 36 at 24.
44 Chalabi “Australia's national human rights”, above at note 41 at 1004.
45 European Group of National Human Rights Institutions “Implementing the UN Guiding Principles on Business and Human Rights: Discussion paper on national implementation plans for EU member states” at 4, available at: <https://www.business-humanrights.org/sites/default/files/media/eu-nhris-paper-on-national-implementation-plans-for-ungps-210612-short.pdf> (last accessed 30 April 2020).
46 National Action Plans on Business and Human Rights, above at note 7 at 31.
47 OHCHR Handbook, above at note 5 at 62.
48 Id at 67.
49 Id at 64.
50 Commonwealth Model National Plan, above at note 31 at 28.
51 Chalabi “Australia's national human rights”, above at note 41 at 997.
52 OHCHR Handbook, above at note 5 at 66: “Some vulnerable groups are apparent to those working regularly in the human rights field. Indigenous peoples, ethnic, linguistic or religious minorities, persons with disabilities and refugees are examples that appear in most of the plans that have been prepared to date. Women and children are also always mentioned as groups requiring specific attention, though whether they should be classed as ‘vulnerable’ groups is a matter for debate. Other groups that may not always spring to mind also demand serious attention. They include people living with HIV/AIDS, the mentally ill, the elderly and sexual-orientation minorities”.
53 Swaine “Globalising women, peace and security”, above at note 36 at 17.
54 OHCHR Handbook, above at note 5 at 65.
55 A Chalabi “The problem-oriented approach to improving national human rights action plans” (2015) 7/2 Journal of Human Rights Practice 272 at 276.
56 Id at 280.
57 Chalabi “Australia's national human rights”, above at note 41 at 998.
58 Ibid.
59 “Keeping human rights at the heart of the EU agenda” (joint communication to the European Parliament and Council: Action plan on human rights and democracy, 2015–19) at 4, available at: <https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52015JC0016> (last accessed 20 May 2020).
60 Id at 4.
61 See for example T Landman and E Carvalho Measuring Human Rights (2010, Routledge) at 31.
62 National Action Plans on Business and Human Rights, above at note 7 at 29.
63 AHRAP, pillar 2, key result area 2.2 and outcome 2.2.1: see “African HRGs”, above at note 18 at 27.
64 S Engel-Merry “Measuring the world indicators: Human rights and global governance” (April 2011) 52/S3 Current Anthropology 83 at 86.
65 See Aroussi (ed) Rethinking National Action Plans, above at note 36.
66 Buchanan, Byers and Mansveld “What gets measured”, above at note 42 at 101, and generally for a discussion of the biases inherent in the use of measures in development.
67 OHCHR Handbook, above at note 5 at 9.
68 This resolution sought to “address women's exclusion from mainstream decision-making, policy and programming in international peace and security”. See Swaine “Globalising women, peace and security”, above at note 36 at 7.
69 Id at 16.
70 Ibid.
71 Ibid.
72 ICAR and DIHR “European civil society dialogue on the national action plans (NAPs) project” (18 October 2013) at 41, available at: <https://www.business-humanrights.org/en/european-civil-society-dialogue-on-the-national-action-plans-naps-project> (last accessed 30 April 2020); European Group of National Human Rights Institutions “Implementing the UN Guiding Principles”, above at note 45; UN Human Rights Council Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises A/HRC/23/32 (14 March 2013) at 20.
73 Swaine “Globalising women, peace and security”, above at note 36 at 16.
74 Ibid.
75 Ibid.
76 OHCHR Handbook, above at note 5 at 10.
77 Swaine “Globalising women, peace and security”, above at note 36 at 16.
78 Chalabi “Australia's national human rights”, above at note 41 at 994.
79 Id at 1002–04.
80 D de Felice and A Graf “The potential of national action plans to implement human rights norms: An early assessment with respect to UN Guiding Principles on Business and Human Rights” (2015) 7/1 Journal of Human Rights 40 at 46–47; T Risse “‘Let's argue!’ Communicative action in world politics” (2000) 54/1 International Organization 1. On human rights socialization, see the discussion above under “Objectives and method”.
81 Chalabi “Australia's national human rights”, above at note 41 at 995.
82 S Blackwell and K Shay “The role of national action plans on business and human rights in protecting human rights defenders” (November 2014), available at: <http://www.ishr.ch/news/role-national-action-plans-business-and-human-rights-protecting-human-rights-defenders> (last accessed 30 April 2020).
83 Chalabi “Australia's national human rights”, above at note 41 at 1001.
84 Ibid.
85 Id at 1012–13.
86 Id at 996. On this point, Chalabi relies on the work of J Friedmann Insurgencies: Essays in Planning Theory (2011, Routledge) and S Campbell and SS Fainstein (eds) Readings in Planning Theory (2012, Wiley Blackwell Publishing) at 1–15.
87 Chalabi, ibid.
88 Id at 998 and 1003.
89 OHCHR “Guidelines for national plans of action for human rights education (1997)”, doc A/52/469/Add.1 and A/52/469/Add.1/Corr.1 (20 October 1997 and 27 March 1998), para 11, available at: < http://www.ohchr.org/EN/Issues/Education/Training/Compilation/Pages/GuidelinesforNationalPlansofActionforHumanRightsEducation(1997).aspx> (last accessed 30 April 2020).
90 OHCHR Handbook, above at note 5 at 12.
91 Finnemore and Sikkink “International norm dynamics”, above at note 11 at 895.
92 See generally, Merry, SE and Levitt, P “The vernacularization of women's human rights” in Hopgood, S, Snyder, J and Vinjamuri, L (eds) Human Rights Futures (2017, Cambridge University Press) 213Google Scholar; Merry, SEHuman Rights and Gender Violence: Translating International Law into Local Justice (2006, University of Chicago Press, 2006)Google Scholar.
93 OHCHR Handbook, above at note 5 at 12.
94 Aroussi (ed) Rethinking National Action Plans, above at note 36 at viii.
95 AU Commission “Updates on AU development of the African Ten-Year Action Plan on Human and Peoples’ Rights” (21 October 2017), available at: <https://au.int/sites/default/files/newsevents/workingdocuments/33231-wd-updates_on_au_development_of_the_african_ten-year_action_plan_on_human_and_peoples_rights-english.pdf> (last accessed 30 April 2020).
96 OHCHR Handbook, above at note 5 at 62.
97 “African HRGs”, above at note 18 at 25.
98 Ibid.
99 Id at 24.
100 Ibid.
101 Id at 31. The fifth pillar provides: “Entrench as an African value and establish the continental architecture for ensuring free movement of persons in Africa, and to ensure enjoyment of the rights of residence and establishment; Manifest the right to nationality and the eradication of statelessness in Africa as rights promoted and protected within the African human rights system; Entrench deep understanding and implementation of the right to development and subsidiary rights contained therein; Develop transformative leadership on governance and human and peoples’ rights on the continent through capable, accountable national, regional and continental institutions; Ensure and sustain adequate institutional financial and human resourcing for AU, RECs and National organs and institutions with a human and peoples’ rights mandate.”
102 The Human Rights Decade Declaration, above at note 1, sets as its sole agenda the realization and promotion of the values and ethos of the shared instruments. It mandates that the AHRAP develops “efforts aimed at entrenching and reinforcing deeper understanding of the culture of human and peoples’ rights … and their promotion and popularization amongst the African peoples”.
103 See arts 14, 28A, 28L and 28LB. The Malabo Protocol is available at: <https://au.int/sites/default/files/treaties/36398-treaty-0045_-_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf> (last accessed 30 April 2020).
104 Respondent Q.
105 Respondent R.
106 See, for example, OC Okafor “Assessing Baxi's thesis on an emergent trade-related market-friendly human rights paradigm: Recent evidence from Nigerian labour-led struggles” (2007) Law, Social Justice & Global Development 1.
107 Baxi, UThe Future of Human Rights (2006, Oxford University Press)Google Scholar at 289.
108 Id at 290–91.
109 Id at 294.
110 de Felice and Graf “The potential of national action plans”, above at note 80.
111 OHCHR Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (2011, UN).
112 For critique of the UNGPs, see generally Deva, S and Bilchitz, D (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (2015, Cambridge University Press)Google Scholar.
113 Idemudia, U and Ite, UE “Corporate-community relations in Nigeria's oil industry: Challenges and imperatives”(2006) 13/4Corporate Social Responsibility and Environmental Management 194CrossRefGoogle Scholar; Power, M and Gwanyanya, M “The massacre at Marikana” (2017) 14/25SUR-International Journal of Human Rights 61Google Scholar; Welch, CE Jr “Human rights, environment and the Ogoni: Strategies for non-governmental organizations” (1999) 7 Buffalo Environmental Law Journal 251Google Scholar.
114 “African HRGs”, above at note 18 at 36.
115 Id at 37.
116 OHCHR Handbook, above at note 5 at 69.
117 See Swaine “Globalising women, peace and security”, above at note 36 at 9.
118 Respondent Q asserted that the goal of the plan should be to measure or to design the plan technically so that it can measure.
119 Engle-Merry “Measuring the world indicators”, above at note 64.
120 Buchanan, Byers and Mansveld “What gets measured”, above at note 42 at 103.
121 Id at 102.
122 Respondents M and Q.
123 AU Commission “Updates on AU development”, above at note 95.
124 Respondent M.
125 “African HRGs”, above at note 18 at 24.
126 Chalabi “Australia's national human rights action plans”, above at note 41 at 994.
127 Id at 995.
128 On this point, see de Felice and Graf “The potential of national action plans”, above at note 80 at 46.
129 To deal with the problem of non-visibility of the AU human rights systems, the first and foremost results indicator of pillar one of the AHRAP was prioritizing and emphasizing the entrenchment and reinforcement of “deeper understanding of and commitment to the culture of human and peoples’ rights”. It envisions that this would be achieved through “continental adoption of a sustained multi-stakeholder public education campaign on the central role of human and peoples' rights in governance, human security and sustainable development in Africa”.
130 OHCHR “Guidelines for national plans of action”, above at note 89.
131 See “African HRGs”, above at note 18 at 23.
132 Id at 35.
133 This was clearly stated by respondent Q in their interview.
134 Respondents V, U, Q and M emphasized the need for a participatory process.