The attention that the Sustainable Development Goals (SDGs) has given to public–private partnersh... more The attention that the Sustainable Development Goals (SDGs) has given to public–private partnerships in solving global concerns including poverty, sustainable development and climate change has shed new light on the question of duties of corporations in relation to economic, social and cultural (ESC) rights. At the same time, objections to recognizing the obligations of corporations in relation to human rights in general and to ESC rights in particular have continued to be made. At the formal level, these objections are reflected in new distinctions such as between the duties of states and responsibilities of corporations, between primary duties of states and secondary duties of corporations, and between obligations of compliance and obligations of performance. All these objections and distinctions are untenable and serve only to stultify the discourse on business and human rights. The current state of human rights is dynamic, not static; commodious, not stale. There is ample space ...
The traditional view that only states have human rights obligations and, relatedly, that a consti... more The traditional view that only states have human rights obligations and, relatedly, that a constitution operates only vertically has been changing. In Uganda, as is the case in several other African countries, the Constitution expressly states that the rights and freedoms it recognizes must be respected, upheld, and promoted by all persons and organs of state, but the practical implications of this provision remain unexplored. So far, Ugandan courts have shown willingness to hold non-state actors directly responsible for violations of constitutional rights, although they are yet to use the language of horizontality expressly. Furthermore, Ugandan courts do not seem particularly troubled by the principle of subsidiarity which holds that statutory and common law remedies must be pursued first before recourse may be had to direct constitutional remedies. This has made it possible for litigants to bring direct constitutional suits against state and non-state actors in one action or to p...
Traditionally, constitutional rights apply in the public sphere but not in the private sphere. In... more Traditionally, constitutional rights apply in the public sphere but not in the private sphere. In other words, private actors were not bound by human rights. Although often associated with the natural rights theory, the distinction between the public and the private in the application of human rights "antedates modern liberalism by more than two millennia."
States are no longer the sole source of human rights violations. In the context of increasing eco... more States are no longer the sole source of human rights violations. In the context of increasing economic globalisation, non-state actors — particularly transnational corporations (TNCs) — have assumed enormous powers which were once considered to fall within the exclusive preserve of the state. As a result, it has become increasingly difficult for states to regulate and control these actors to ensure that they do not commit human rights violations or that they are held accountable for those violations. The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (UN Norms) adopted in 2003 by the UN Sub-Commission for the Protection and Promotion of Human Rights are the most significant step the international community has taken towards developin binding human rights standards for TNCs. Development of the UN Norms was motivated by the need to fill the vacuum created by lapses in the operation of the doctrine of state resp...
The International Health Regulations (ihr), of which the World Health Organization is custodian, ... more The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing covid-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the ihr is a necessary step in ensuring these obligations can be acted upon and fully realized, and in fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 44 using the interpretive framework of the Vienna Convention on ...
The International Health Regulations (ihr), of which the World Health Organization is custodian, ... more The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing covid-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in ensuring the fulfillment of obligations, and fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 43 using the inter...
The designations employed and the presentation of material in this information product do not imp... more The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations (FAO) concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The mention of specific companies or products of manufacturers, whether or not these have been patented, does not imply that these have been endorsed or recommended by FAO in preference to others of a similar nature that are not mentioned. The views expressed in this information product are those of the author(s) and do not necessarily reflect the views or policies of FAO.
As the problem of a lack of parental care over the years has worsened in Africa, states have not ... more As the problem of a lack of parental care over the years has worsened in Africa, states have not adopted sufficient alternative care measures to address the needs of the children involved. To date, many countries in Africa remain suspicious of inter-country adoption and, hence, consider it as a subsidiary means of providing alternative care to children deprived of a family environment. Through a study of the legal frameworks and court decisions of Malawi and Uganda, the article demonstrates that some of the most common restrictions on inter-country adoption do not serve the best interests and rights of the child. As a result, the courts in these countries have gone out of their way to bypass or ignore these restrictions, and have sanctioned inter-country adoptions. In doing so, the courts have put themselves at risk of being accused of law making. Due to the absence of an appropriate legal framework, these courts have also struggled to make inter-country adoption orders that are capable of being effectively AFRICAN HUMAN RIGHTS LAW JOURNAL * LLB Hons (Malawi) LLM (Pretoria) PhD (Western Cape);
A range of international human rights instruments, declarations and resolutions affirm that good ... more A range of international human rights instruments, declarations and resolutions affirm that good health is a precondition for the enjoyment of all other human rights and for participation in socio economic and political life. However, many people across the globe (especially in Africa and Asia) lack access to essential medicine. This article argues that access to medication, treatment and care is an essential element of effective responses to pandemics and other diseases. In particular, it is argued that international law imposes a minimum core (and non derogable) obligation on states to provide essential medicine. In recognition of the increasing role that private actors are playing in ensuring access to essential medicine, their human rights obligations relating to access to essential medicine are also explored. * Lecturer in Law, University of Cape Town. This article was written when I was a research fellow at the Community Law Centre, University of the Western Cape. I would like to thank Sandra Liebenberg who made helpful comments on an earlier version of this article. I am also indebted to the anonymous SAJHR reviewers from their comments.
The attention that the Sustainable Development Goals (SDGs) has given to public–private partnersh... more The attention that the Sustainable Development Goals (SDGs) has given to public–private partnerships in solving global concerns including poverty, sustainable development and climate change has shed new light on the question of duties of corporations in relation to economic, social and cultural (ESC) rights. At the same time, objections to recognizing the obligations of corporations in relation to human rights in general and to ESC rights in particular have continued to be made. At the formal level, these objections are reflected in new distinctions such as between the duties of states and responsibilities of corporations, between primary duties of states and secondary duties of corporations, and between obligations of compliance and obligations of performance. All these objections and distinctions are untenable and serve only to stultify the discourse on business and human rights. The current state of human rights is dynamic, not static; commodious, not stale. There is ample space ...
The traditional view that only states have human rights obligations and, relatedly, that a consti... more The traditional view that only states have human rights obligations and, relatedly, that a constitution operates only vertically has been changing. In Uganda, as is the case in several other African countries, the Constitution expressly states that the rights and freedoms it recognizes must be respected, upheld, and promoted by all persons and organs of state, but the practical implications of this provision remain unexplored. So far, Ugandan courts have shown willingness to hold non-state actors directly responsible for violations of constitutional rights, although they are yet to use the language of horizontality expressly. Furthermore, Ugandan courts do not seem particularly troubled by the principle of subsidiarity which holds that statutory and common law remedies must be pursued first before recourse may be had to direct constitutional remedies. This has made it possible for litigants to bring direct constitutional suits against state and non-state actors in one action or to p...
Traditionally, constitutional rights apply in the public sphere but not in the private sphere. In... more Traditionally, constitutional rights apply in the public sphere but not in the private sphere. In other words, private actors were not bound by human rights. Although often associated with the natural rights theory, the distinction between the public and the private in the application of human rights "antedates modern liberalism by more than two millennia."
States are no longer the sole source of human rights violations. In the context of increasing eco... more States are no longer the sole source of human rights violations. In the context of increasing economic globalisation, non-state actors — particularly transnational corporations (TNCs) — have assumed enormous powers which were once considered to fall within the exclusive preserve of the state. As a result, it has become increasingly difficult for states to regulate and control these actors to ensure that they do not commit human rights violations or that they are held accountable for those violations. The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (UN Norms) adopted in 2003 by the UN Sub-Commission for the Protection and Promotion of Human Rights are the most significant step the international community has taken towards developin binding human rights standards for TNCs. Development of the UN Norms was motivated by the need to fill the vacuum created by lapses in the operation of the doctrine of state resp...
The International Health Regulations (ihr), of which the World Health Organization is custodian, ... more The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing covid-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the ihr is a necessary step in ensuring these obligations can be acted upon and fully realized, and in fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 44 using the interpretive framework of the Vienna Convention on ...
The International Health Regulations (ihr), of which the World Health Organization is custodian, ... more The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing covid-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in ensuring the fulfillment of obligations, and fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 43 using the inter...
The designations employed and the presentation of material in this information product do not imp... more The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations (FAO) concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The mention of specific companies or products of manufacturers, whether or not these have been patented, does not imply that these have been endorsed or recommended by FAO in preference to others of a similar nature that are not mentioned. The views expressed in this information product are those of the author(s) and do not necessarily reflect the views or policies of FAO.
As the problem of a lack of parental care over the years has worsened in Africa, states have not ... more As the problem of a lack of parental care over the years has worsened in Africa, states have not adopted sufficient alternative care measures to address the needs of the children involved. To date, many countries in Africa remain suspicious of inter-country adoption and, hence, consider it as a subsidiary means of providing alternative care to children deprived of a family environment. Through a study of the legal frameworks and court decisions of Malawi and Uganda, the article demonstrates that some of the most common restrictions on inter-country adoption do not serve the best interests and rights of the child. As a result, the courts in these countries have gone out of their way to bypass or ignore these restrictions, and have sanctioned inter-country adoptions. In doing so, the courts have put themselves at risk of being accused of law making. Due to the absence of an appropriate legal framework, these courts have also struggled to make inter-country adoption orders that are capable of being effectively AFRICAN HUMAN RIGHTS LAW JOURNAL * LLB Hons (Malawi) LLM (Pretoria) PhD (Western Cape);
A range of international human rights instruments, declarations and resolutions affirm that good ... more A range of international human rights instruments, declarations and resolutions affirm that good health is a precondition for the enjoyment of all other human rights and for participation in socio economic and political life. However, many people across the globe (especially in Africa and Asia) lack access to essential medicine. This article argues that access to medication, treatment and care is an essential element of effective responses to pandemics and other diseases. In particular, it is argued that international law imposes a minimum core (and non derogable) obligation on states to provide essential medicine. In recognition of the increasing role that private actors are playing in ensuring access to essential medicine, their human rights obligations relating to access to essential medicine are also explored. * Lecturer in Law, University of Cape Town. This article was written when I was a research fellow at the Community Law Centre, University of the Western Cape. I would like to thank Sandra Liebenberg who made helpful comments on an earlier version of this article. I am also indebted to the anonymous SAJHR reviewers from their comments.
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