IS THE AGE OF HUMAN RIGHTS REALLY OVER? THE RIGHT TO EDUCATION IN AFRICA— DOMESTICIZATION, HUMAN RIGHTS-BASED DEVELOPMENT, AND EXTRATERRITORIAL STATE OBLIGATIONS

摘要

It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed, " and the level of privation in many parts of the world is more intense than ever. This A rticle ackn owledges elements of tru th in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regai n their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domestidzed," made "home-grown" achievements -with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure “development goal” approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).