Address on International Human Rights and Global Development
University of the Witwatersrand, Johannesburg, South Africa, 19th November 2014
I am deeply honoured to have been invited to address you today at the School of Law of the University of the Witwatersrand. I must express my sincere thanks to the Deputy Vice Chancellor, Professor Crouch, for welcoming me and for the invitation to speak today. May I also thank Professor Jaichand for his kind introduction and the Deputy Head of School, Professor Mhango. I express my particular thanks to Ms Asma Ooni for her work in ensuring that today’s event could happen and of course to all of you here today for attending.
As the international community embarks on the process of developing the successor standards to the Millennium Development Goals, and as South Africa celebrates twenty years of democracy, I believe this is an appropriate moment to reflect on what has been achieved in both development and in advancing the protection of human rights in this region.
In addressing you today in this centre of intellectual excellence, I bring a message of optimism and hope for what I believe is a crucial moment in the evolution of those disciplines in the social, political, economic and legal areas. Democracy and human rights are spreading and strengthening across many parts of Africa, with measurable progress in the protection of rights for many groups. There has been progress too with regard to tackling poverty in the region and global progress under the Millennium Development Goals (MDGs) has been impressive. Levels of absolute poverty have reduced significantly and continue to fall. Child hunger and child mortality are greatly reduced. The MDGs on tackling malaria and tuberculosis are on course to be met, with millions of lives saved. Access to clean drinking water is improving rapidly, as is access to education, especially for girls.
At the same time, prevailing levels of exclusion and marginalisation cannot be seen as constituting anything other than a reality of profound and persistent global injustice. There are many immediate challenges before us: climate change, population growth, hunger, disease, conflict, and unemployment. Each of these great issues will be addressed directly in the Sustainable Development Goal process, but I believe that our efforts to address these problems are all connected to the central question of how we link our aspiration for human rights with the demand for development and economic growth.
As we embark on this process of setting new goals, there is a generational opportunity to address this central question head-on; and in doing so to confront the weaknesses and limitations in our human rights discourse and in our development discourse. I believe that we have at this moment an opportunity to reconcile outstanding tensions between human rights and development, and I am optimistic that through appropriate strategic and tactical choices we can reasonably hope for a more robust and effective delivery of human rights protections in the decades ahead.
As President of Ireland, I can say with the benefit of recent history that the challenges facing the different regions of the world in this respect are increasingly converging in nature. How to connect development and economic concerns with ethical questions of human rights is also a primary challenge to my nation as we emerge from a period of great economic instability and uncertainty. Indeed our national experiences have much to offer each other as we strive to resolve the tensions between development and human rights.
In addressing this theme of human rights and development, my first focus here today is on the role of the international systems and institutions, and on how the relationship between development and human rights within the UN mechanisms needs to be re-evaluated. The relationship between development and human rights remains problematic. This is first and foremost an intellectual question, but one with real political and practical impact.
Secondly, and following on from the task of reconstructing the discourse at the UN level, we must review our understanding of the relative and appropriate roles of state authorities, international bodies, and private actors in delivering human rights. I believe that a deeper understanding of how individual states may influence each other can support greater progress in the years ahead. In the South African context, the richness and strength of your constitution and bill of rights is a key factor in positioning this state as a leader in expanding the protection of rights across your region.
Thirdly and finally, we must, I believe, put social movements back at the heart of our understanding of human rights. We must recapture a sense of the public space which embraces the importance of activism in constructing human rights, and one which also recognises the centrality of education as a crucial element in fostering a healthy national rights culture.
Despite progress, most notably the reduction in aggregate poverty rates, it is clear that the existing global development framework does not sufficiently promote, protect and integrate the universal and indivisible nature of human rights.
Moreover, at times, development initiatives have directly contributed to violations of human rights. One such example can be seen in the forced eviction of large numbers of people from their land to make way for major infrastructure projects. The World Commission on Dams estimates that, over the last century, between 40 and 80 million people have been displaced worldwide to facilitate the constructions of dams alone. We have seen that a disproportionate number of those forcibly displaced are indigenous peoples and poor communities, for whom the experience of being displaced can be particularly damaging and traumatic, further embedding them in the destructive cycle of poverty.
We have also seen, under the banner of development, dramatically changed patterns of land holding and acquisition with the diversion of land use from small-scale and community-based food production to agricultural and bio-fuel production on an industrial scale. According to Professor Ruth Hall, from the University of Cape Town, some 56 to 227 million hectares have changed hands globally over the last 5 to 10 years, with African land making up 60 to 70% of those large land deals.
The so-called violence of economic development has also manifested itself in a less direct but equally destructive way through environmental degradation. In addition to the entirely unsustainable levels of CO2 emissions, we continue to see rampant increases in deforestation, shrinking fish stocks and threats to biodiversity, often in the name of economic growth. Faced with depleted productive resources, vulnerable individuals and communities, again a disproportionate number of whom are indigenous and otherwise marginalised, stand on the frontline of price shocks and extreme weather events which are having a direct impact on their livelihoods, health and wellbeing.
Too narrow a conception of development, focusing primarily on economic growth, often subjects significant numbers of people to the “violence of development”, whereby the well-being of those who are most vulnerable is devastated by the development process.
Yet, the argument that economic and human development must act as a prerequisite for the realisation of human rights is still a prevalent view. The maxim of “food first, freedom later” has been cited, often disingenuously, by those who would seek to postpone political reform in the name of economic development.
This view that human rights can be suspended in the name of macroeconomic stability would also have the effect of preventing individuals from being empowered to realise their rights in such a way that they lead and take full ownership of the development process. Without this, we have no means of accurately and legitimately conceptualising which developmental needs are most pressing.
We need to take great care to avoid the projection of a false choice between the pursuit of human rights and global development. Experience has clearly shown us that such arguments are inherently and demonstrably flawed. Respecting economic and social rights, for example by ensuring access to quality education, to healthcare and to decent work, can prove to be an invaluable investment in human capital with enormous development dividends.
Apart from the potential for conceptions of development to run counter to human rights, there is also the widespread view in the developing world that development models are externally imposed. Development has come to be seen as synonymous with the imposition of western, growth-centred economic models.
Writers such as Balakrishnan Rajugopal have argued convincingly that our dominant models of development can be traced back through modernisation theory back to colonialism. He argues that the role of the international development and financial institutions can be understood in this way too – as instruments of domination.[1]
At the same time, we must also reject any fatalism about the historic content of models of development and look to reshape theories of development and human rights for the future. I believe that it is possible to forge new models of development that respect dignity, culture and traditions. We are beginning to see the seeds of such models in the work of Amartya Sen and others, where a broader and more ethical form of development is being presented, one which is embedded in rights discourse.
This will be a central task of the ongoing intergovernmental discussions to agree a new set of global development goals, the post-2015 development agenda, which will succeed the MDGs when they expire next year. The recent appointment of Ireland, together with Kenya, as co-facilitators for this process is a great honour for our country, and a challenge to us, which I know our diplomacy is determined to meet.
In this process, it will be essential that African states have a leading voice. We have seen with the initial rise of the third world in the 1960s that states working together can radicalise and alter dominant discourses. In this regard, we must also recognise that the traditional dichotomy between north and south is breaking down. For example, one of the changes we see in recent years is that institutions and instruments that have traditionally been applied to developing countries are now being applied to developed states too, including the involvement of the IMF in European states such as Ireland.
The rise of new centres of economic power in this hemisphere alters power dynamics at the global level. Growth in Africa, Latin America and Asia holds the promise of narrowing wealth gaps between continents, and the increasingly complex nature of new global alliances can present creative opportunities in addressing common global problems.
In this process, the voice of Africa can be stronger than ever before, and the message that Africa has to articulate, about the need to redefine development in a way that respects rights and culture, has never been more necessary and is full of promise.
In looking to the future evolution of rights and development discourse, a second area for consideration is the relative roles of international and national institutions in promoting the protection of human rights. In reimagining the nexus between human rights and development there is a need to move beyond an uncritical acceptance of the primacy of international legal institutions and instruments. It is vitally important that international lawyers face the significant challenge of fundamentally reconsidering how they conceive of their discipline through reflecting on what role international law has in bringing about meaningful and lasting global change – in the lives of real people and communities.
When looking at outcomes, there can be no denying the achievements of advancing civil and political rights in many African states in recent decades. In many countries, full deliberative democracy is still a work in progress, but the momentum – away, for example, from one-party state systems to free elections – is unmistakable and is, I fervently hope, irresistible.
What has been the relative role of the international human rights and development infrastructure in contributing to this achievement? Certainly, civil and political rights objectives have been increasingly linked to aid and development measures. Rajugopal argues, however, that overestimating the role of international agents in the development of human rights at the national level, has supported an expansion of the reach and role of those international institutions in the object states, rather than a sustained improvement in democratic participation by grassroots.
In their recent study Socializing States: Promoting Human Rights Through International Law,[2] Ryan Goodman and Derek Jinks posit three mechanisms by which state-level protection of human rights can be influenced: through inducements (being imposed from outside); through persuading states of the validity of human rights; and through what they define as “acculturation” or processes of socialisation of states.
Goodman and Jinks argue that acculturation plays an underestimated role in progressive change at the national level, whereby peer influence between states, especially within regional “social networks” can act as powerful force in inspiring progressive change in law and practice. They present a persuasive body of evidence to argue that the widespread and contemporaneous advances in the protection of women’s rights and children’s rights in recent years can be explained in this way.
Regional leadership, for example, is an underestimated and highly important force for the protection of human rights. In this respect, the role of South Africa, and specifically the Constitution of the Republic, should be considered not only in its foundational role at the national level, but also in its potential as a model for others.
As South Africa has demonstrated so remarkably, it is at the level of the national constitution that we see the optimum locus for the resolution of questions of values, sovereignty and rights. Over the past 20 years, your Constitution has acted as a beacon for human rights protection not only in this region, but around the world. In Ireland, for example, the South African constitutional scheme was a key influencing factor in the consideration by our recent Constitutional Convention of the question of constitutional protection of economic and social rights.
By appreciating the actual and potential role of national exemplars of human rights protection in influencing peer states, we can help refocus on the importance of internal mechanisms over extraneous institutional expansion.
In seeking the most effective mechanisms for transmitting rights protection, we must also- as I have said in my introduction – look beyond the state. It is now time to admit that human rights law has traditionally suffered from an overly state-centric perspective which has been focused almost exclusively on governments and international institutions with the principle of national sovereignty at its core.
Again, we have much to learn from Africa in terms of bottom-up and innovative approaches to political participation in the construction of rights. These include the post-conflict constitutional arrangements which were adapted in Rwanda, the experiments in transitional restorative justice taking place in South Africa and Northern Uganda, and new mechanisms for developing the social contract between the citizen and state. These new approaches to citizen participation and representation warrant closer examination by those who are charged with improving the nature of engagement between the state and its citizens.
The roles of societal actors and social movements have too often been marginalised in the broader narrative on international human rights. Conspicuously missing has been an appreciation of the importance and potential of an array of groups which have mobilised as social movements and civil society actors – be they women’s groups, sexual or ethnic minorities, indigenous and displaced peoples, or the rural poor.
The anti-apartheid movement is a crucial example of how social movements have sparked, advocated for, and effected seismic changes nationally and globally. The movement changed the face of social democracy and participation, transforming forever a country’s democratic being through the struggle of a people oppressed. It built a conscience and a following across the world, driven by the people of South Africa. It garnered strong and committed support in Ireland, and it also inspired us in our work to build a more just and equal society at home.
Not only did the anti-apartheid movement drive civil and political change in South Africa, but it also demonstrated how the architecture of international law can be shaped by grassroots resistance. On the premise that the anti-apartheid movement was not only about civil liberties, but about the conditions necessary to enjoy these freedoms in human dignity, the movement secured the inscription of social and economic rights in the Constitution. In doing so, it reaffirmed that civil and political rights alone are not sufficient for the realisation of socio-economic rights, and that democratic processes alone and of themselves do not necessarily lead to socio-economic transformation.
Equally, however, we know that the presence of de jure socio-economic rights is not easily translated into de facto socio-economic empowerment. It requires more than formal rights and institutions to ensure human wellbeing, and in particular, to ensure protection of the rights of the most vulnerable. As observed by the former United Nations High Commissioner for Human Rights, Navi Pillay:
“Poverty undermines basic human rights, such as access to food, to shelter, and to education. It entrenches discrimination and marginalisation and makes it difficult for victims to obtain justice and remedies when their rights are violated.”
It is in this context that we have seen the transformative impact of social movements that employ human rights principles of participation and accountability to defend the interests of the most marginalised. Having given form to human rights instruments in South Africa, we have seen post-apartheid social movements seize upon these, and capitalising on the institution of the Constitutional Court to exercise their civil and political rights in order for social and economic rights to benefit the most marginalised.
The South African experience presents us with a number of examples of the transformative impact of social movements in leveraging community-based action and existing legal structures to effect lasting change. Such examples offer us a way forward in ensuring that international human rights has a greater impact and successfully contributes to sustainable development.
The ruling of the Constitutional Court in favour of the provision of access to adequate housing in the Grootboom case of 2000 was a significant achievement for the participation of civil society in articulating and giving voice to the needs of the most marginalised. It was also an important assertion of the justiciability of socio-economic rights, one that reinforced the accountability of the State in taking positive action to address these rights.
South Africa’s Treatment Action Campaign, which successfully fought for access to anti-retroviral treatment as a socio-economic right, also further extended the realm of accountability to citizens. It not only held the State to account, but also multinational pharmaceutical corporations, accusing them of profiteering by keeping the price of drugs high and arguing this conflicted with the right to life. The campaign reaffirmed that public service delivery, a critical issue during the anti-apartheid struggle, continues to be at the heart of the realisation of socio-economic rights.
These and many other social movements have provided international law and development discourse with evidence of transformative justice and sustainable outcomes owned and driven from below. The budgetary implications of protecting, promoting and fulfilling rights are a common preoccupation of the State, made all the more difficult with strained resources and competing interests. Whose rights are prioritised and resourced are value judgements beyond the realm of a courtroom. It is the norms and values that human rights instruments uphold, however, that provide the foundation for the participation and engagement of civil society to play a meaningful role in the prioritisation of rights in democratic and national development processes.
I can say that such campaigns have proved inspirational to the Irish people too, just as the anti-apartheid movement did in previous decades. The techniques and strategies developed by the activists and lawyers in the Grootboom and Treatment Action Campaign cases are being used today by communities struggling for housing rights and other economic and social rights in both parts of the island of Ireland.
Through empowerment and the use of the human rights principles of participation and accountability, social movements can uphold human rights and contribute to better development outcomes. We must, therefore, adopt a more eclectic conception of the range of actors capable of agency in bringing about lasting changes in both international human rights and global development. In truth, this requires nothing less than a paradigm shift in the way in which we conceive of human rights and development. Most importantly, we can no longer conceive of states as being the sole locus around which all human rights issues revolve, and we must instead better appreciate the role and potential role for civil society and social movements.
This reminds us, too, that we cannot overlook the centrality of cultural rights in any discussion of human rights and sustainable development. Cultural rights empower local communities to take ownership of their own development pathways. The cultural sphere, properly respected, can be a source of vision, offering innovation and imagination in defining what constitutes well-being and a quality life. As Amartya Sen argued, “development is not the acquisition of more goods and services but the enhanced freedom to choose (capabilities), to lead the kind of life one values”.
In this regard, education is a key component in empowering meaningful participation in society. You are again fortunate to have a rich heritage of understanding education as central to the process of nation building, as was powerfully summarised by Gandhi:
“Effective education and social justice goals are inextricably linked.”
A number of years ago, I received as gift from my good friend Kader Asmal, a copy of Spirit of the Nation, the excellent series of essays on the ethos of South African education which he edited with Wilmot James.[3] Including essays by Kader and by Kate O’Regan and Edward Said, this collection conveys the rich and vibrant national conversation in South Africa about the importance of the education system in fostering progress and development, but in a way that is not instrumental only.
We often think of civil society as people with placards, occupy movements, and peaceful protests. However we must remember that these collectives of solidarity are not the only exercise of power from below. There are also the voices of individuals being asserted quietly, nobly and just as importantly. The priority which has been afforded to literacy and access to education in the new South Africa cannot be overstated in its importance for the health of your democracy.
If we are to reclaim the discourse of human rights as one in which all of our citizens have an active stake, we must empower them with the tools of a rich education. The dividend will be a society where rights are living instruments of human fulfilment and progress, a society where the value espoused in your Constitution to “Improve the quality of life of all citizens and free the potential of each person” is a reality and not merely an aspiration.
I believe that South Africa can play a central role in the evolution of a new approach to human rights and development through its constructive role at the international level, and through its leadership role in Africa, informed by the ethical origins of the state, its model constitution, and energised by your history of activism and the vibrant participation of your people.
Writing in defence of human rights, the great Irish poet Seamus Heaney in his poem “Republic of Conscience”, reminds us that everyone has a role to play in the promotion of human rights. Let me conclude my address, and indeed my visit to the great continent of Africa, with the voice of Heaney and his vision of what might be possible if the dream of human rights is to be fulfilled:
At their inauguration, public leaders
must swear to uphold unwritten law and weep
to atone for their presumption to hold office –
and to affirm their faith that all life sprang
from salt in tears which the sky-god wept
after he dreamt his solitude was endless.
I came back from that frugal republic
with my two arms the one length, the customs
woman having insisted my allowance was myself.
The old man rose and gazed into my face
and said that was official recognition
that I was now a dual citizen.
He therefore desired me when I got home
to consider myself a representative
and to speak on their behalf in my own tongue.
Their embassies, he said, were everywhere
but operated independently
and no ambassador would ever be relieve
[1] International Law from Below, Cambridge University Press, 2003.
[2] Oxford University Press, 2013.
[3] Spirit of the Nation. Reflections on South Africa’s Educational Ethos, NAE, 2002.