Theorising the Right to Environment: An Africological Typology
| DOI | 10.3366/ajicl.2019.0258 |
| Date | 01 February 2019 |
| Published date | 01 February 2019 |
| Pages | 25-49 |
In recent times, there has been growing interest in shifting away from the limitations of a single, Eurocentric narrative in international legal discourse and turning towards exploring alternative ways of thinking about and doing law. In line with this call for renewed thinking, this article engages with the concept of the universality of rights in an attempt to emancipate the right to environment from perceived ‘universal’ normative uniformity and situating its emergence within an Africological context. It confronts the historical challenges of Eurocentric theorising on rights in an effort to unpack the universalising effects of Eurocentrism as well as its implications for Africa's continuing rights evolution. For illustrative purposes, the article uses the right to environment as a pathway to elucidating the transformative capacity of thinking through an Africological lens. Thus this article critically examines the emancipatory potential of a rights discourse informed by a distinct Africological perspective as a complementary voice in the global rights project. Additionally, it explores the normative utility of Africa as a subject of rights inquiry, particularly in ways that the notion of ‘Africa’ as an epistemological space finds expression in the global rights arena. Consequently, this article examines the distinctive value of an Africa-inspired thinking on rights and its material significance to the emergence of the right to environment.
I draw on complementary insights from comparative and interdisciplinary perspectives on Bourdieu's reflexive sociology, postcolonial (legal) theory and third world approaches to international law (TWAIL) to illuminate the substantive discussion on Africology. The discursive interaction across these theories focuses on the utility of the normative contribution of Africology in the appreciation of the evolutionary processes for rights in general and of the right to environment in particular.
Apart from this introduction, the article comprises seven sections. The first section outlines the inherent nature of universality in rights discourse. This is followed by a discussion of resistance and reform in the discourse on rights. The next section provides insights into significant turning points in the universality discourse while the following section focuses on the importance of Africa in legal theorising by introducing Africology as a way of thinking about rights. In using Africology to explicate Africa as a crucible of rights development, the next section critically evaluates the normative value of an interdisciplinary conceptual framework by employing reflexive sociology, postcolonial theory and Third World approaches to international law to illuminate the discussion of Africology. The penultimate section builds on the analysis in the preceding section through further exploration of the Africological utility of the concept of a right to environment in Africa. The final section concludes this article.
The concept of universality dominates rights discourse. At the heart of this universal acclaim is an uncritical acceptance of the general applicability of rights. Based on this faulty premise of universality, it has been argued that ‘[O]urs is the age of human rights. Human rights is the idea of our time, the only political-moral idea that has received universal acceptance.’
Consequently, on the momentous occasion of the 70th anniversary of the UDHR, it is most appropriate to reconsider the UDHR's legacy in the field of contemporary human rights discourse. As a non-binding instrument, the UDHR possesses tremendous international force and a perception of near-absolute sacrosanctity. For some scholars, the UDHR has attained the status of international custom,
Masked by its claim to universality, conversations around the global rights project tend to obscure the peculiar evolutionary origins of rights. The international human rights instruments concluded in the post-1945 era convey a semblance of uniform acceptance of the global constitution of rights. Not long after these foundational rights instruments were negotiated and adopted, the global wave of decolonisation peaked, leaving in its trail a host of newly independent states who were forcefully thrust onto the world stage with little contribution to the normative structures underpinning the international system. In the period immediately following decolonisation, these states began contesting the coverage and application of rights in these legal instruments.
As a distinct geopolitical collective, Africa also confronted the international legal order's failure to adequately incorporate Africological perspectives into international law.
Today, the reification of human rights in the global context and its concomitant effect on the conduct of states derives legitimacy from the foundational significance of the UDHR. Flowing from the UDHR, however, the universality of rights is premised on a faulty assumption; that is, in conceptualising its evolution, there is a tendency to gloss over the fact that not all states were part of the UDHR's adoption nor do these states necessarily agree to the UDHR's configuration. Another substantial challenge is the subtle time-stamp that the UDHR imprints on the progressive development of rights, thus freezing subsequent developments in rights evolution. So, in a seemingly innocuous way, the UDHR as the basis for the notion of the universality of rights fails to account for the historical continuum of rights evolution that even predates its adoption in 1948.
Consequently, the international human rights regime's perceived neutrality and uniformity has been systematically challenged for its insufficient coverage.
At its founding, a larger part of the UN's present-day membership was still under European colonialism. African states in particular, which were transitioning from long periods of European imperialism, began joining the UN from the late 1950s and well into the late 1980s.
These new states were confronted with two major challenges. First, these states were joining this global institution long after the UDHR had been negotiated and adopted. Second, at...
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