Victim Reparations in Transitional Justice-What Is

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Victim Reparations in Transitional Justice–What is at Stake and Why
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V ICTIM R EPARATIONS IN T RANSITIONAL J USTICE

– W HAT IS AT S TAKE AND W HY
JEMIMA GARCÍA-GODOS*
Abstract: Based on the growing international and academic interest on victim reparations as
a mechanism of transitional justice, and the abundant literature that has emerged in the past
few years, this article takes a step back to ask what is actually at stake with victim reparations
and why. Through a discussion of the core issues and choices present in developing victim
reparations initiatives, the elements of an analytical framework for the study of specific repa-
ration programs emerge. The framework highlights the social and contested character of
reparation programs, arguing that such programs be seen in relationship to the political
projects they support.
Keywords: Victim reparations, transitional justice, victims’ rights, reparation programs,
victimhood.
A. I NTRODUCTION
Processes of transition from armed conflict and authoritarian rule present a number of chal-
lenges for the societies and states involved, not only concerning the present and the future of
their nations, but also their troubled past. The various ways such societies deal with their past
in practical terms are commonly referred to as “transitional justice”, that is, the attempt to see
justice done in relation to past sufferings and harm. The end of the Cold War, the democratic
transitions in Latin America, and later the atrocities of the Balkan wars, in Rwanda and Sier-
ra Leone, formed the background for the increased attention given to issues of transitional
justice in the 1990s – from human rights organizations, public institutions and academics
alike. Faced with the challenge of how to combine democracy with justice in a context of tran-
sition,1 the growing body of literature on transitional justice paid most attention to mecha-
nisms such as truth-finding missions (truth commissions and commissions of inquiry), crim-
inal prosecutions of perpetrators, and institutional reforms that might enhance the rule of law
* Jemima García-Godos (b. 1966), Dr. Polit. (Oslo), Post-Doctoral Research Associate, Norwegian
Centre for Human Rights, University of Oslo. E-mail: jemima.garcia-godos@nchr.uio.no. I am grate-

ful to Andreas Føllesdal, Nils Butenschøn and Malcolm Langford at the Norwegian Centre for Human
Rights for useful comments to an early draft of this paper, and to the anonymous reviewers for their help-
ful comments.
1 Neil Kritz (ed.): Transitional Justice: How Emerging Democracies Reckon with Former Regimes
(Washington, D.C.: United States Institute for Peace Press 1995).
NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER – VOL. 26, NR 2, S. 111–130. ISSN 1503-6480 111
(C) UNIVERSITETSFORLAGET 2008
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in democratizing societies.2 However, and in spite of the fact that truth commissions and tri-
als often recommend(ed) reparation plans or sanction(ed) the payment of monetary compen-
sation to the victims of abuse and human rights violations, little attention was given to the
issue of reparations itself outside the sphere of specialized international agencies and human
rights organizations.3 This has fortunately changed.
As a mechanism of transitional justice, victim reparations have emerged in recent years as
a dynamic field of social and academic inquiry. In the past two years we have seen the prolif-
ic publication of comprehensive research on victim reparations,4 filling a gap long lamented
by those working on transitional justice. For those not so familiar with this field though, the
term “victim reparations” is often associated with “reconciliation” and/or “monetary com-
pensation”. While it is true that reparations are related to both, current debates on victim repa-
rations encompass much more, to the extent that the uninitiated risks losing sight of the core
issues and trends that started this development. Furthermore, while there might exist a com-
mon normative ground in international law on the right to remedy and reparation, the socio-
political context of each country attempting to establish a reparations program will play a
decisive role in shaping the conceptual framework upon which the program is based – and
this is a highly contested process. Another challenge – though one that contributes to its rich-
ness – is that the reparations literature cuts across several academic disciplines, the most
prominent being law and philosophy, followed by social sciences and history. From different
perspectives, the literature approaches the moral and legal frameworks as well as the politi-
2 See for example, Alexandra Barahona de Brito, Carmen González-Enríquez and Paloma Aguilar
(eds.): The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford Uni-
versity Press 2001); Neil Kritz (ed.): Transitional Justice: How Emerging Democracies Reckon with
Former Regimes; Martha Minow: Between Vengeance and Forgiveness: Facing History after Geno-
cide and Mass Violence (Boston: Beacon Press 1998); Naomi Roht-Arriaza (ed.): Impunity and Human
Rights in International Law and Practice (New York: Oxford University Press 1995); Robert I. Rotberg
and Dennis Thompson (eds.): Truth v. Justice: The Morality of Truth Commissions (Princeton and
Oxford: Oxford University Press 2000).
3 Naomi Roht-Arriaza: “Reparations in the aftermath of repression and mass violence”, in Eric
Stover and Harvey M. Weinstein (eds): My Neighbor, My Enemy. Justice and Community in the After-
math of Mass Atrocity (Cambridge: Cambridge University Press 2004); Pablo De Greiff (ed.): The
Handbook of Reparations (Oxford: Oxford University Press 2006)
4 At least seven volumes have been published in the past two years. These are: Koen De Feyter et
al. (eds.): Out of the Ashes. Reparation for Victims of Gross and Systematic Human Rights Violations
(Antwerpen – Oxford: Intersentia 2005); Pablo De Greiff (ed.): The Handbook of Reparations; Jon
Elster (ed.): Retribution and Reparation in the Transition to Democracy (Cambridge: Cambridge Uni-
versity Press 2006); Jon Miller and Rahul Kumar (eds.): Reparations: Interdisciplinary Inquiries
(Oxford: Oxford University Press 2007); Ruth Rubio-Marín (ed.): What happened to the women? Gen-
der and Reparations for Human Rights Violations (New York: Social Science Research Council 2006);
John Torpey: Making Whole What Has Been Smashed: on reparations politics (Cambridge, Mass.: Har-
vard University Press 2006); and Max Du Plessis and Stephen Peté (eds.): Repairing the Past? Interna-
tional Perspective on Reparations for Gross Human Rights Abuses (Antwerpen – Oxford: Intersentia
2007).
112 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 113
cal, historical and administrative challenges involved in designing and implementing victim
reparation programs. The inter-disciplinary interest is at least partially related to develop-
ments in the international human rights arena during the past two decades, and much of
today’s literature on reparations is directly linked to them. All these features are indicative of
the multi-dimensional character of victim reparations.
Based on the above, this article aims to take a step back and reflect on the core issues of vic-
tim reparations highlighting its contested nature, that is, what is stake and why. I argue that
this is necessary because the way victim reparations are conceptualized in a given society has
important implications for the interpretation and construction of the past – a past which repa-
rations try to heal. In this sense, it is necessary to approach victim reparations as a social
process, one which starts from an interpretation of the past and leads towards a re-interpreta-
tion of that past. The article begins with a brief presentation of significant developments in the
international human rights arena that have advanced the right to remedy and reparation of vic-
tims of gross human rights violations in the past decades. I then move on to a conceptual clar-
ification of victim reparation and related terminology, and discuss the most substantive issues
of victim reparations, both normative and programmatic. This discussion is based on a review
of the field of victim reparations as it has developed in the transitional justice literature since
the mid 1990s.5 In the final section, I outline an analytical framework for the study of victim
reparations that takes into consideration the contested nature of reparation initiatives and
their role in processes of history construction and nation-state building.
B. V ICTIM R EPARATIONS IN THE I NTERNATIONAL A RENA
The increased interest in victim reparations since the end of the Cold War runs parallel to
developments in the international arena, more specifically, in the realm of international law
and human rights law. I highlight here three processes or “tracks” where the issue of victim
reparations has been dealt with and directly contributed to the enhancement of the rights of
victims of human rights violations and the right to remedy.6 The three tracks were initiated at
different points in time over the course of 60 years and peaking in the 1990s. In their own
manner, these tracks have been successful in putting the issue of victim reparations in the
international agenda. These tracks are the work with the “Basic Principles and Guidelines on
the Right to Remedy”; the International Criminal Court’s focus on victims’ rights; and the
issue of redress in the Draft Principles on State Responsibility.
5 This cannot possibly hope to summarize all that has been written about it, the literature is much
too voluminous for that. Instead, I want to take a step back and ask what victims reparations in transi-
tional justice are, basing my analysis on selected works within the literature.
6 The choice of these three “tracks” is based on their international presence and influence. Similar
initiatives at the national level have also contributed to the advance of victim rights in individual coun-
tries.
NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 113

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1. BASIC P RINCIPLES AND G UIDELINES ON THE R IGHT TO R EMEDY AND R EPARATION
On December 16 2005, the General Assembly of the United Nations approved the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Vio-
lations of International Human Rights Law and Serious Violations of International Human-
itarian Law.7 This document had previously been adopted by the UN Human Rights Com-
mission in April that year, concluding a process that started in 1988, when the then Sub-Com-
mission on Prevention of Discrimination and Protection of Minorities (now the Sub-Com-
mission on Promotion and Protection of Human Rights) recognized that all victims of gross
human rights violations and fundamental freedoms should be entitled to restitution, fair and
just compensation, and the means for as full a rehabilitation as possible for any damage suf-
fered.8 In 1993, the Special Rapporteur Theo van Boven delivered a study which became the
basis for the process completed in 2005.9
As stated in the Preamble, the Basic Principles are directed “at gross violations of interna-
tional human rights law and serious violations of international humanitarian law which, by
their very grave nature, constitute an affront to human dignity.” Taking into account that the
Basic Principles are based on the “obligation to respect, ensure respect for and implement
international human rights law and international humanitarian law”10 the question arises as to
whether there is a tension between reaffirming respect for both bodies of law, and choosing
the categories of “gross” human rights violations and “serious” IHL offences as target areas.
As Marten Zwanenburg has pointed out, the document does not include clear definitions nor
an explicit list of which human rights violations are considered ”gross” and which IHL
offences are “serious”. After a careful analysis of the relationship between human rights law
and IHL, Zwanenburg concludes that the absence of clear cut definitions need not be a limi-
tation, but rather provides these types of concepts with much needed flexibility, as they are
constantly evolving in legal theory and practice.11
7 GA Res. 147, UN GA, 60th Session, UN Doc A/RES/60/147 (2005). Basic Principles and Guide-
lines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law. To be referred as the Basic Prin-
ciples.
8 Dinah Shelton: “The United Nations Draft Principles on Reparations for Human Rights Viola-
tions: Context and Content”, in Marc Bossuyt et al. (eds.): Out of the Ashes: Reparation for Victims of
gross and Systematic Human Rights Violations (Antwerpen – Oxford: Intersentia 2005) 11–33
9 UN CHR, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th
Session, UN Doc E/CN.4/Sub.2/1993/8 (1993). Review of Further Developments in Fields with which
the Sub-Commission has been concerned. Study Concerning the Right to Restitution, Compensation
and Rehabilitation for Gross Violations of Human Rights and Fundamental Freedoms: Final Report by
Mr. Theo van Boven.
10 Basic Principles supra n 7 at Section 1.
11 Marten Zwanenburg: “The Van Boven/Bassiouni Principles: An Appraisal” (2006) 24 Nether-
lands Quarterly of Human Rights 4, 641-668. Zwanenburg provides an extremely well informed and
thorough analysis of the Basic Principles from a legal perspective, thus addressing a number of legal
issues (such as the relation between human rights law and IHL) that fall outside the scope of this article.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 115
The Basic Principles establishes that the right to remedy comprises two aspects, the pro-
cedural right to justice, and the substantive right to redress for injury suffered due to act(s) in
violation of rights contained in national or international law. According to the Basic Princi-
ples “remedies for gross violations of international human rights law and serious violations of
international humanitarian law include the victim’s right to the following as provided for
under international law”: equal and effective access to justice; adequate, effective and prompt
reparation for harm suffered; and, access to relevant information concerning violations and
reparation mechanisms.
Concerning reparation, the Basic Principles establish that “in accordance with its domes-
tic laws and international legal obligations, a State shall provide reparation to victims for acts
or omissions which can be attributed to the State and constitute gross violations of interna-
tional human rights law or serious violations of international humanitarian law.” The full and
effective reparation envisaged by the Basic Principles includes: restitution, compensation,
rehabilitation, satisfaction, and guarantees of non-repetition. These forms of reparation are
described in articles 19 to 23 of that document.
The Basic Principles operate with a broad definition of reparations, one which addresses
also alternative or complementary transitional justice mechanisms (i.e. the right to justice, the
right to truth). It is important to emphasize that the Basic Principles’ focus on remedy and
reparations does not exclude the right to justice, or the duty to prosecute violations that con-
stitute crimes under international criminal law. On the contrary, the Principles clearly state
that
in cases of gross violations of international human rights law and serious violations of
international humanitarian law constituting crimes under international law, States have
the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecu-
tion the person allegedly responsible for the violations and, if found guilty, the duty to
punish her or him.12
This reflects the current international trend promoting accountability for past crimes in post-
conflict societies and post-authoritarian regimes, 13 while taking into account that accounta-
bility can take various forms, some aimed to fulfill the requirements of international criminal
law (prosecutions), others focusing on the needs of victims and their families (as reparations).
The distinctions made between different forms of reparation, particularly restitution, com-
pensation and rehabilitation, contribute to a much needed conceptual clarification in the field
of victim reparations. While restitution aims to restore the victim to the original situation
before violations were committed (addressing mainly personal but also material suffering),
12 Basic Principles supra n 7 at Section III, paragraph 4.

13 On accountability for past crimes, see Cherif Bassiouni: “Accountability for Violations of Inter-
national Humanitarian Law and Other Serious Violations of Human Rights”, in M. C. Bassiouni. (ed.):
Post-conflict justice (Ardsley, N.Y., Transnational Publishers 2002) 3-54; and Naomi Roht-Arriaza:
“The new landscape of transitional justice”, in N. Roht-Arriaza and J. Mariezcurrena (eds.): Transi-
tional Justice in the Twenty-First Century. Beyond Truth versus Justice (Cambridge: Cambridge Uni-
versity Press 2006) 1-16.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 116
compensation refers to economically assessable damage, and rehabilitation to medical and

psychological care. These concepts will contribute to the operationalisation and design of
specific measures in the context of reparation programs.
Furthermore, and in spite of its status as “soft law” since they are not legally binding, the
Basic Principles provide legal support to representatives and advocates of victims’ rights in
national settings to the effect that victims are legally entitled to reparations.14 Much as the
Guiding Principles on Internal Displacement did for the plight of internally displaced per-
sons in the political and humanitarian agendas, it is expected that the Basic Principles will
constitute the beginning of a process of institutionalization and international involvement in
the issue of reparations, the rights of victims, and the design and implementation of specific
reparation programs. Even more, reparations have already entered the agendas of peace-
negotiation processes around the world, such as in Northern Uganda; this development is
likely to continue in the future.
2. T HE I NTERNATIONAL C RIMINAL C OURT
The International Criminal Court was established by the Rome Statute of the International
Criminal Court, on 17 July 1998. The Rome Statute is an international treaty, binding only on
those States which formally express their consent to be bound by its provisions (becoming
“parties” to the Statute).15 The Statute entered into force on 1 July 2002. Today, 106 States are
Parties to the Statute. Following the adoption of the Rome Statute, the United Nations con-
vened the Preparatory Commission for the International Criminal Court. Among its achieve-
ments, the Preparatory Commission reached consensus on the “Rules of Procedure and Evi-
dence” and the “Elements of Crimes”. These two texts were subsequently adopted by the
Assembly of States Parties. Together with the Rome Statute and the Regulations of the Court
adopted by the judges, they comprise the Court’s basic legal texts, setting out its structure,
jurisdiction and functions.16
One of the innovations of the Rome Statute and the ICC’s Rules of Procedure and Evi-
dence is a series of rights granted to victims. For the first time in the history of international
criminal justice, victims have the possibility under the Statute to present their views and
observations before the Court. Furthermore, this is also the first time that an international
court has the power to order an individual to pay reparation to another individual.
14 Richard Falk: “Reparations, International Law, and Global Justice: A New Frontier”, in Pablo De
Greiff (ed.): The Handbook of Reparations (Oxford: Oxford University Press 2006) 478-503.
15 However, the Court may also exercise jurisdiction in those cases when the United Nations Secu-
rity Council refers a particular situation to the Prosecutor, irrespective of the nationality of the accused
or the location of the crime; when the accused is a national of a State that accepts jurisdiction without
ratification; and in those cases where the crime took place on the territory of a State Party or a State oth-
erwise accepting the jurisdiction of the Court. http://www.icc-cpi.int/about/ataglance/
jurisdiction_admissibility.html.
16 This section is based on material reviewed on the ICC website in September and October 2006:
http://www.icc-cpi.int/victimsissues.html.

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Pursuant to article 75, the Court may lay down the principles for reparation for victims,
which may include restitution, indemnification and rehabilitation. On this point, the Rome
Statute has benefited from all the work carried out with regard to victims, in particular with-
in the United Nations. The Court may also enter an order against a convicted person stating
the appropriate reparation for the victims or their beneficiaries. This reparation may also take
the form of restitution, indemnification or rehabilitation. The Court may order this reparation
to be paid through the Victims’ Fund, which was set up by the Assembly of States Parties in
September 2002.
The ICC has developed a standard procedure for handling reparation claims. It has also a
special unit, the “Victims’ Participation and Reparation Section”, responsible for giving all
appropriate publicity to these reparation proceedings in order to enable victims to make their
applications. These proceedings take place after the person prosecuted has been declared
guilty of the alleged facts.
The Court has the option of granting individual or collective reparation, concerning a
whole group of victims or a community, or both. If the Court decides to order collective repa-
ration, it may order that reparation to be made through the Victims’ Fund and the reparation
may then also be paid to an inter-governmental, international or national organization.
The institutionalization of victim reparations as an integral part of the work of the ICC
brings the rights of victims to the highest level, and can be expected to have a strong effect
upon national criminal courts, both in protecting the right to remedy as well as fighting
impunity. As Falk suggests, “international law also helps by clarifying those forms of gov-
ernmental abuse that constitute international crimes, and therefore cannot be shielded from
legal accountability. … That is, by linking accountability for perpetrators to compensation for
victims there is encoded in international law a conception of fairness and rectification of past
harm that includes victims.”17
3. D RAFT P RINCIPLES ON S TATE R ESPONSIBILITY
The topic of State responsibility has been on the agenda of the International Law Commission
since 1949. The Commission confined the scope of the topic to be the study of international
responsibility of States for internationally wrongful acts. In addition, the Commission has
concentrated its study on the determination of the principles which govern such responsibil-
ity, the so-called ”secondary rules”, rather than the substantive rules which define interna-
tional obligations in each particular context.
In 1996 the Commission adopted an entire set of Draft Articles dealing with a range of
legal issues, including the elements constituting an internationally wrongful act; the defini-
tion of an internationally wrongful act as an international crime; and the consequences result-
ing from such an act. The Draft Articles include the defenses or excuses that could preclude
wrongfulness, such as distress, necessity and self-defense. They also define the rights of the
State that is injured; deal with rights to reparation (by way of restitution, compensation or sat-
isfaction); and provide for the possibility of resort to countermeasures. The Commission
completed its second reading of the Draft Articles, adopting the final text of the Articles and
17 Falk supra n 14 at 497.

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accompanying Commentaries in August 2000.18 The Draft Articles were presented to the UN
General Assembly in 2001 and 2004 for consideration; the topic was included in the agenda
for the sixty-second session, in 2007.
Although the Draft Principles deal with responsibilities and relationships between States
and identify States as the subjects of international law, the document has implications for the
issue of reparations, as it identifies forms for redressing injury caused in violation of interna-
tional law.19
The common thread that runs across these three international legal tracks is their focus on
victims, both in terms of legal status and enhancement of rights. Work along these tracks has
received inputs from operational actors, such as international organizations, NGOs and aca-
demics alike. The influence has also gone in the opposite direction, with international legal
work setting the agenda for national/regional debates and operational practices as well. Sim-
ilarly, the jurisprudence of regional human rights courts has influenced and been influenced
by the international debate on victim rights.20 The drafting processes of international legal
documents have involved lively academic debates, albeit confined to the field of law.21 The
transitional justice literature of the past twenty years has opened up the field for other disci-
plines, particularly from social science, which are contributing at the analytical and empiri-
cal level. If we understand law as the codification of social relations, social sciences can play
an important, socially critical role in the development and analysis of international legal
tools.
C. V ICTIM R EPARATIONS : BASIC D EFINITIONS
In the context of transitional justice, there is a widespread consensus over the desirability and
importance of victim reparation programs, as an effective way to address the needs of vic-
tims,22 as well as a means to reconciliation and peace.23 The term “reparation” was original-
18 GA Res. 83, UN GAOR, 56th Session, UN Doc A/RES/56/83 (2001). Responsibility of States for
internationally wrongful acts.

19 Christian Tomuschat: “Individual Reparation Claims in Instances of Grave Human Rights Vio-
lations: The position under general international law”, in Albert Randelzhofer and Christian Tomuschat
(eds.): State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human
Rights (The Hague: Martinus Nijhoff Publishers 1999).
20 The work of the Inter-American Court of Human Rights has been particularly strong in setting
precedence on the duty to repair and compensate human rights violations under international law. See
Arturo J. Carrillo: “Justice in Context: The Relevance of Inter-American Human Rights Law and Prac-
tice to Repairing the Past”, in Pablo De Greiff (ed.): The Handbook of Reparations (Oxford: Oxford
University Press 2006).
21 See for instance Tomuschat supra n 19; and UN CHR supra n 9.
22 Pablo De Greiff: “Repairing the Past: Compensation for Victims of Human Rights Violations”,
in Pablo De Greiff (ed.): The Handbook of Reparations (Oxford: Oxford University Press 2006) 1-18.
23 Elin Skaar, Siri Gloppen, and Astri Suhrke (eds.): Roads to Reconciliation (Lanham: Lexington
Books 2005).

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ly used to refer to the monetary compensation that victorious nations required from those
defeated parties in war. After World War II, reparations referred also to the compensation giv-
en to the survivors of the Nazi Holocaust, by far the most comprehensive reparations effort
implemented in modern history. While a similar use has been applied to compensation pro-
grams for Japanese-Americans interned in relocation camps during World War II and the case
of Asian comfort-women for Japanese soldiers, the concept has continued to develop since
World War II.24 The term has been adopted by African-Americans seeking compensation for
the enslavement of black peoples prior to the American Civil War, as well as Australian abo-
rigines claims; in those particular cases, reparations are understood as a way to redress his-
torical injustices.25 While the literature on the Holocaust has been abundant right since the
end of World War II, the literature in historical injustices received an impetus since the end of
the Cold War. According to Barkan, “the demand that nations act morally and acknowledge
their own gross historical injustices” is a novel phenomenon, resulting from the introduction
of questions of morality and justice in the realm of politics.26 While the Holocaust literature
can be considered as a historical background for the contemporary study of reparations, and
the historical injustice literature offers interesting philosophical and historical questions,
their review falls outside the scope of this article. Here I limit myself to the discussion of vic-
tim reparations in situations of transition from authoritarian regimes and armed conflict,
where the victims have been subject to human rights violations as defined by international
human rights law.
The desire to see justice done for past wrongdoings in a society that has made a transition
from an authoritarian regime and/or armed conflict can be fulfilled in various ways.27 One
can choose to prosecute perpetrators and punish them; this is the aim of “retributive justice”.
One may try to learn the truth about what happened; that is the aim of truth-seeking process-
es. Institutional reform can also be promoted, in order to address present and future needs to
avoid the mistakes of the past; this is the aim of “prospective justice”. The issue of reparations
in transitional justice emerges as a way of addressing the needs and demands for redress of
those who suffered some form of harm in a previous regime, that is, the victims. This is what
is commonly referred to as “restorative justice”, a dimension of transitional justice which
focuses on the victims of such abuses, acknowledging their suffering and needs, and attempt-
ing to restore the damage done. The underlying assumption is that physical, psychological
24 John Torpey: “Victims and Citizens: The discourse of reparation(s) at the dawn of the new mil-
lennium”, in Koen de Feyter et al. (eds.): Out of the Ashes. Reparation for Victims of Gross and Sys-
tematic Human Rights Violations (Antwerpen - Oxford: Intersentia 2005) 35-50.
25 Elazar Barkan: The Guilt of Nations: Restitution and Negotiating Historical Injustices (New
York: Norton 2000). There is abundant literature on these understandings of reparations, as easily
observed on the internet, where one can find numerous websites with resources on Holocaust and
African-American reparation claims.
26 Philosophers would of course trace these topics back to medieval discussions about the justice
of war, and justice in war; thanks to Andreas Føllesdal for bringing this to my attention.
27 Siri Gloppen: “Roads to Reconciliation: A Conceptual Framework”, in Elin Skaar, Siri Gloppen,
and Astri Suhrke (eds.): Roads to Reconciliation (Lanham: Lexington Books 2005) 17-50.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 120
and social damage must be acknowledged and addressed in order to heal and reconcile.
Restorative justice seeks to repair or restore the injustice done, which is why victim repara-
tions are commonly linked to restorative justice in the language of transitional justice. How-
ever, victim reparations constitute only one aspect of restorative justice, as restorative justice
emphasizes the humanity of both offenders and victims, seeking to repair social relations and
peace, and encouraging forgiveness and reconciliation.28 This latter feature points to the roots
of restorative justice in the roman Christian tradition. Furthermore, restorative justice has
developed in Western societies as a mechanism of conflict mediation and/or conflict resolu-
tion, particularly related to criminal cases, where the participation of both victims and perpe-
trators is encouraged.29 It is mainly due to its emphasis on the ultimate goal of reconciliation,
which moves beyond the focus on victims, that the concept of restorative justice is being chal-
lenged as inaccurate to address the needs of victims.
Rama Mani puts forward the concept of “reparative justice” as an alternative to restorative
justice, in order to offer “a centralization of the principle of reparation, as the origin and core
of the need for justice in times of violent and brutalizing transition”.30 While putting the vic-
tim at the centre of a concept of justice that addresses the need for reparations is indeed ne-
cessary, Mani undermines his own proposal when he later suggests that the agency (re)gained
by the victim goes through the process of becoming “a survivor”, along with all other sur-
vivors of an armed conflict or authoritarian regime. This means that those formerly catego-
rized as victims, perpetrators, bystanders, and the like, all become survivors. In my view, the
specific character of the “victim” category dissolves in the overall category of survivors. In
consequence, the focus of reparations as means to redressing the needs of victims is also
weakened.31
Victim reparations encompass a number of related issues and concepts that are complex in
nature and closely (sometimes messily) interlinked. To bring some clarity to the debate, I
endorse Pablo De Greiff’s suggestion to distinguish between conceptualizations of repara-
tions as used in international law and the one used in reparation programs. Although related
to each other, these two contexts involve different choices and motivations in a conceptual-
ization of victim reparations.32
28 Martha Minow supra n 2.

29 This is the case of the European Forum for Restorative Justice, established in 2000, with the aim
to help establish and develop victim-offender mediation and other restorative justice practices through-
out Europe. More information is available in their website: http://www.euforumrj.org/homepage.asp.
30 Rama Mani: “Reparations as a Component of Transitional Justice: Pursuing ‘Reparative Justice’
in the Aftermath of Violent Conflict”, in Koen De Feyter et al. (eds.): Out of the Ashes. Reparation for
Victims of Gross and Systematic Human Rights Violations (Antwerpen – Oxford: Intersentia 2005) 53-
82, 79.
31 A related issue is, of course, the political and historical implication of transforming all actors
involved in gross human rights violations into “survivors”, including perpetrators. While the “survivor”
approach might support a reconciliation agenda, in my view, any serious attempt at “reconciliation” is
bound to fail if it blindly does away with contextualization and historical interpretation.
32 Pablo De Greiff: “Justice and Reparations”, in Pablo De Greiff (ed.): The Handbook of Repara-
tions (Oxford: Oxford University Press 2006) 451-477.

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In international law, reparations refer to all sorts of reparatory measures implemented to

address human rights violations, without necessarily targeting specific violations. This juridi-
cal definition of reparations differentiates – as we have seen in the previous section – between
the categories of restitution, compensation, rehabilitation, satisfaction, and guarantees of
non-recurrence. It is particularly the latter two categories that make reference or are related
not only to other mechanisms of transitional justice, such as disclosure of truth and judicial
and administrative sanctions, but may even include reform processes, development projects,
and symbolic acts, among others. The broadness of the juridical understanding of victim repa-
rations can be explained, according to De Greiff, by the specific aim pursued in the judicial
process, which is the achievement of justice for individuals, where the means of achieving
justice is the trial of isolated cases. The “menu” of choices needs thus to be extensive in order
to allow its adaptability to the individual case and to encompass as many situations as possi-
ble.
In the context of designing specific reparation programs, a narrow definition of reparations
is needed, as it refers to a specific target group (the victims) and a specific type of
crimes/human rights violations. This definition does not include truth-telling, criminal jus-
tice, or institutional reform. Instead, it operates on the basis of two fundamental elements: the
types of reparations (material and symbolic), and the forms of distribution (individual and
collective); this will be discussed in more detail in the next section. The narrow definition of
reparations is, in a sense, an operational one, suggesting certain limits to the responsibilities
of those in charge of designing reparation programs.
The distinction between a juridical and an operational conceptualization of reparations
might prove useful at the analytical and operational level, yet it should also be said that the
operational definition is not only grounded on the broader juridical definition, but it becomes
itself a legal category which determines many aspects of the reparation involved. For this rea-
son, the debate between jurists active in international law and reparation “officers” and advo-
cates seems to be more a matter of form and scope rather than content. In my view, there is no
inherent contradiction between juridical and operational definitions, as they both focus and
acknowledge the victim’s right to redress. As we shall see in the next section, most debates on
reparations centre on the applicability and implementation of juridical definitions to specific
cases, particularly those involving massive human rights violations – which is usually the
case in situations of transition from armed conflict and authoritarian regimes.
D. M AIN I SSUES ON V ICTIM R EPARATIONS
In spite of the apparent consensus over the right to remedy for victims of human rights viola-
tions, the design and implementation of reparation programs (including their legal framework
and categories) are highly contested issues involving a series of substantive, ultimately polit-
ical decisions to be taken by new regimes.33 Notwithstanding their grounding in internation-
al law and human rights, there is nothing universal about the way different countries go about
33 Jon Elster: Closing the Books. Transitional Justice in Historical Perspective (Cambridge: Cam-
bridge University Press 2004).

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taking these decisions. On the contrary, such decisions are highly contextual, depending not
only on the political conditions of the post-conflict or transitional period, but also on the his-
torical legacy of the previous regime, power structures, and even practical matters (such as
the feasibility of implementation and funding). In this section, I present the core issues of vic-
tim reparations based of the most important decisions involved in the elaboration and imple-
mentation of reparation programs.
1. R EPARATIONS – Y ES OR N O ?
The first move in the process of establishing reparation programs is to decide for or against
them. While truth commissions may recommend the need for reparations as an integral part
of a transitional justice process, there is no immediacy in governments’ responses towards
reparation. In order to opt for reparations, a political regime has first to acknowledge the exis-
tence of a situation that calls for reparations, as well as the existence of people who have been
harmed and should be entitled to the attention of the state through a reparations program.
Whatever the legitimacy of the claims and actors involved, these are not light decisions to
take, as they will involve the initiation of a comprehensive and sensitive process of repara-
tions which usually creates high expectations among the population (particularly among vic-
tim groups and potential beneficiaries). On the other hand, political will to develop and
implement a reparations program might yield popular support and legitimacy to the new
regime. Having said yes to victim reparations, regimes will then have to act effectively and
timely in order to prove their commitment and sustain credibility. With all the pressing needs
of post-conflict situations, these features might be highly volatile. In the case of post-author-
itarian regimes, much will depend on the balance of power between former and current
regimes.
2. W HO IS THE V ICTIM ?
In transitional justice and human rights discourse, human rights violations are often depicted
in terms of victim and perpetrator, those who have been harmed and those who have inflicted
harm upon others, respectively. In the context of reparations, the identification of the victim
is vital, as it is he/she who will be entitled to whatever form of remedy or benefit is to be pro-
vided. Through the use of legal categories, reparation programs can identify the universe of
victims to which the program is addressed, often by reference to specific types of human
rights violations. In that manner, victims tend to refer to all those who have suffered a specif-
ic type of violation. The most common types of violations in authoritarian regimes and armed
conflict situations are murder, kidnappings, torture, forced disappearance, rape, sexual abuse,
mutilation, forced draft, and displacement, among others. In other words, the victim is iden-
tified on the basis of the type of violation inflicted upon them.
Elster formulates the issue of victims by asking “what forms of suffering constitute vic-
timhood”.34 He makes a distinction between three types of suffering, situations that are wider
in scope than specific legally defined violations. Material suffering involves the loss of real
34 Ibid at 127.

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or personal property, the loss coming about either by destruction or confiscation; by personal
property one refers to physical objects or financial assets. In some cases, the way the loss
occurred may strengthened or delegitimize certain claims. Personal suffering refers to harm
to life, body or liberty, which can take place both during and outside combat situations. Intan-
gible suffering refers to the loss or lack of opportunities.
The different types of suffering call for different approaches to the issue of reparations,
posing several challenges. In most cases, the burden of proof is usually left to the responsibil-
ity of the claimant. The main emphasis has usually been on the need to avoid paying compen-
sation to those not entitled, rather than to avoid denying them to those who are entitled. The
demand for rigorous proof of victimization may, for some victims, add to their burden.35
Another aspect is the issue of citizenship or residence: some victims might be excluded from
reparations benefits because they are not citizens, or cannot proof permanent residence, even
when harm has been done within national territories. Particularly in the context of intangible
suffering, the debates seem to focus on what is to be considered the optimal or legitimate
grounds for compensation: past suffering or present/future needs. Will reparation be enough
to ensure that a victim not only recovers from past suffering/violations, but also meet her pres-
ent and future needs? Could these needs be better satisfied through other mechanisms such as
property restitution? How to deal with the issue of dual ownership then? Here again, we can
see that there are no easy answers, but rather complex political choices.
While the identification of victims is the cornerstone of any victim reparation program, it
is necessary to problematize the dichotomy victim/perpetrator. The human rights discourse
that informs most of the transitional justice literature tends to reduce complex realities into
neat, clear-cut, legalized categories.36 As a case in point, transitional justice processes always
involve more than two types of agents. As the recent armed conflicts of the 1990s around the
world have demonstrated, these two categories do not cover the universe of actors that take
part in armed conflict or are involved in human rights violations. Neither are the boundaries
of these categories always clearly delineated. Cutting loose from the dichotomy vic-
tim/perpetrator, Elster identifies eight agents of transitional justice:37
• Wrongdoers: those who committed wrongdoings

• Victims: those against whom wrongdoings were committed
• Beneficiaries: those who benefited from the wrongdoing
• Helpers: those who helped victims
• Resisters: those who fought against wrongdoing
• Promoters: those who promote transitional justice processes
• Neutrals: neither wrongdoers, victims, helpers nor resisters
• Wreckers: those who obstruct transitional justice processes
35 Elster supra n 33 at 183.

36 Richard A. Wilson: “Representing Human Rights Violations: Social Contexts and Subjectivi-
ties”, in Richard A. Wilson (ed.): Human Rights, Culture and Context: Anthropological Perspectives
(London: Routledge 1997).
37 Elster supra n 33 at 99.

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Drawing on historical examples from Western Europe, Elster moves on to discuss the many
contradictions and complementarities that may exist when different roles are combined by the
same social actors or groups. Independently of whether more categories could be identified,
Elster’s expanded classification of agents highlights the fact that it is not uncommon to find
that a single individual can have several roles, that is, be identified as several types of agent at
different points in time. These alternate roles are a challenge for transitional justice processes,
where clear legal identifications are at the basis for the decisions that need to be taken.
Closely related to the identification of victims is the identification of beneficiaries of repa-
ration programs.38 Should reparation be limited to the victim herself, if she survived abuse? In
the case of death and disappearance, it is often the closest relatives who become beneficiaries
of reparations programs. Should they also be considered as victims? Can descendants claim
reparations for violations committed a generation or more ago? The combination of time
passed between the claim and the violation, and the degree of kinship/closeness to the primary
victim can produce several surprising combinations when it comes to reparations.
3. T YPES OF R EPARATIONS
The type of reparations that ought to be implemented in a particular situation is often the most
discussed issue regarding reparations. In spite of an overall consensus on the complementari-
ty of reparations in relation to other transitional justice mechanisms, human rights organiza-
tions, NGOs active in the field of transitional justice, and victim groups still tend to focus their
debates on monetary compensation – while this is only one of the forms that reparations can
take.
As mentioned earlier, there are two basic distinctions to be made concerning types of repa-
rations, one regarding their form (symbolic or material), and the other concerning its distribu-
tion (individual and collective). Symbolic reparations include various forms of recognition
and acknowledgement for the suffering of victims, such as commemorations, rituals in hom-
age to the victims, changing the names of streets, places of memory, and apologies in the name
of the nation, in public acts or private letters. Material forms of reparation include all tangible
assets which are provided to repair the harm done, such as money, goods or services. These
might in turn be provided as a single lump sum, or a series of payments (like pensions), the
return of lost property, or privileged access to educational and health programs. There has
been an expansion of the forms that material reparations may have, moving from what was
previously the most dominant form of reparation (i.e. individual monetary compensation)
towards services, such as mental health schemes, legal counseling, physical medical treat-
ment, scholarships, priority in housing schemes, and more. Collective reparations, the most
preferred option for governments facing redress for massive human rights violations, offer as
well a variety of options, the most common being the provision of basic public infrastructure
(water and sanitation, health posts, schools, bridges and local roads). In that particular case,
the distinction between development projects and reparations becomes blurred, and there are
38 This is not to be confused with Elster’s “beneficiaries” in the classification presented above.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 125
those who argue that the development responsibilities of governments can never stand as
reparation for human rights violations.39
Martha Minow reflects on the need to pay attention to the symbolic dimensions of reparato-
ry justice, questioning the widespread assumption that what victims need the most was mone-
tary compensation. She called instead for a restorative justice that was aware of the impossibil-
ity of “repairing the irreparable”. The problem arises however, when symbolic forms of repara-
tions are not accompanied by other more tangible benefits; symbolic reparations might then be
interpreted by the victims as empty words with no serious commitment to the victims.40
If monetary compensation is to be granted, how to measure the amounts of money to be
granted as reparation for human rights violations? One criterion that has been applied in inter-
national law is restitution in integrum, that is, full restitution. There are standard methods for
measurement of what “full restitution” might be, based in the socio-economic status of the
victim, future earnings, and costs of living, among others. According to De Greiff, this is prob-
lematic not only because it is almost impossible to define what constitutes full restitution, but
also because it is a mechanism designed for individual cases and therefore difficult to apply in
cases of massive human rights violations, none the least, due to large amount of resources that
the principle of full restitution would involve for countries that lack those resources from the
outset.41
This leads us to the second basic distinction, that regarding the form of distribution of repa-
ration benefits. Should reparations be granted individually, or should they be collective, giv-
en to groups? While the ideal reparation program should include both modalities, govern-
ments with limited resources would prefer collective reparation schemes, while human rights
activists and not few victims’ organizations prefer individual reparations. Arguments in favor
of one or the other form of distribution are many, and include pragmatic as well as normative
and philosophical reasons. Would an individual victim of torture receive the acknowledge-
ment and redress he deserves through a collective reparation scheme providing, say, housing
and public services? There are those who argue that he would, because the program would
address present needs, while others argue that the individual personal suffering drowns in the
collective character of the reparation.
Individual and collective reparations need not be exclusive, nor do they have to limit the
possibility of resorting to civil litigation. In the Western judicial system, monetary compensa-
tion is the most common form of redressing damage; this is particularly the case under tort
law, where civil litigation is the common procedure. Can the torts approach be used to human
rights abuse? Jamie E. Malamud-Goti and Lucas Sebastían Grosman offer a balanced discus-
sion of the pros and cons of the applicability of tort law for human rights, arguing for the need
39 This is an ongoing debate in countries where collective reparation programs are being imple-
mented, such as in Peru, where the author is currently conducting research on the reparations program.
It is worth noting that there is no clear position among victim groups/beneficiaries and human rights
organizations on whether or not development projects can or should be consider as an appropriate form
of reparation. Different positions can be found in all groups.
40 Minow supra n 2.
41 De Greiff supra n 32 at 456.

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to leave the legal option open, if the victim so wishes.42 According to De Greiff, the option of
case-by-case proceedings de-contextualizes individual cases from their historical situation.
Furthermore, it disaggregates the universe of victims and their collective claims while giving
attention to those applicants who have the resources to access a legal action. In Latin Ameri-
ca, for example, for every judicial action that reaches a positive outcome at the Inter-Ameri-
can Human Rights Court, there are hundreds others that will not even go as far as being regis-
tered or acknowledged. On the other hand, as Malamud-Goti and Grosman argue, “the torts
approach can serve the goal of restoring victims’ dignity by emphasizing their individuali-
ty”.43 From an administrative and financial point of view, it is the risk of double-payment, or
receiving reparations for the same violation more than once, that is behind most official argu-
ments on the need to rule out the legal option. However legitimate these arguments might be,
there is a need for creative mechanisms to reduce the risk of double-payment without sacri-
ficing the victims’ right of access to justice.
4. T HE A IMS OF R EPARATION
Are there any aims to reparation programs other than to redress the needs of victims? In the
context of transitional justice, the answer to this question tends to be positive, and on a nor-
mative basis. Recalling the broader definition of reparations applied in international law, we
can see the links made to truth and justice as integral parts of the right to remedy. In the con-
text of transitional societies, De Greiff highlights these links in order to recognize the inher-
ent political potential of reparations:
In transitional periods reparations seek, in the last analysis, as most transitional measures
do, to contribute (modestly) to the reconstitution or the constitution of a new political
community. In this sense also, they are best thought as part of a political project.43
The (re)constitution of this new political community lies in a conceptualization of justice that
includes three elements; recognition, civic trust and solidarity. These elements are usually the
aims of reparation programs, but simultaneously, they are also necessary conditions and con-
sequences of justice.45 Recognition refers to the recognition of individuals as individuals
(thus recognizing their agency), as citizens, and as victims (because individuals actually can
become subject to harm effected by others). Civic trust refers to the expectation of a shared
normative commitment, while social solidarity refers to the ability to empathize with the sit-
uation of others. In the particular case of reparations, victims can expect and trust that the state
and society at large will recognize and address their needs; this will be the ultimate sign of
social of inclusion in a society where their rights have previously been violated:
42 Jaime E. Malamud-Goti and Lucas Sebastián Grosman: “Reparations and Civil Litigation: Com-
pensation for Human Rights Violations in Transitional Democracies”, in Pablo De Greiff (ed.): The
Handbook of Reparations (Oxford: Oxford University Press 2006) 504-559.
43 Ibid at 555.

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Reparations, in summary, can be seen as a method to achieve one of the aims of a just state,
namely, inclusiveness, in the sense that all citizens are equal participants in a common politi-
cal project.46 De Greiff’s argument for thinking about the aims of reparations in explicitly
political terms as opposed to more judicial terms of compensation in proportion to harm helps
place the issue of victim reparations in the realm of politics, identifying the close intercon-
nections existing between reparations and nation-state building, citizenship, and historical
(re)construction.
The development of different measures of transitional justice has increasingly been incor-
porating analysis of the socio-political situations facing countries in transition, while endors-
ing a common platform of human rights and the rule of law. However, we have to take seri-
ously the warning raised by Wilson that “ignoring the ideological dimensions of transitional
justice is the quickest route to entrenching legal fetishism”.47 The expansion of human rights
talk in the 1990s has developed into a universal language, or even more, into “a global human
rights machinery”48 in which a positivist strand of human rights has achieved almost hege-
monic status at the expense of other understandings. Although the authors do not specifically
deal with the issue of reparations, I believe that their proposed “social critique of rights and
the legal process” can bring fruitful insights to the study of victim reparation programs.
According to their critique, the use of positivist accounts on social life within human rights
institutions and discourse tends to flatten multiple subjectivities and complex practices and
experiences. An individual becomes then either a victim or a perpetrator, and a violent act is
either a human rights violation or not. As previously mentioned, such clear-cut definitions
oversee the possibility that a person can be both a victim and a perpetrator at different points
in time. For example, in situations of armed conflict, can “active combat” be defined as a
human rights violation? According to the Peruvian Truth Commission, it can, if the victim is
a member of the armed forces and the peasant patrols – but not if s/he is a guerrilla member.49
The explanation for this different treatment lies on a normative understanding of the legiti-
macy of the act of combat: present in the case of soldiers, absent in the case of guerrillas. The
identification of victims and violations as neat categories, as necessary as they are for the
practical formulation of a specific reparation plan, cannot be equated with a complex social
reality. The problem is that through reparation schemes sanctioned by law, such categories
become entrenched in the legal discourse of particular regimes of truth, thus setting the prem-
ises for what is to be recognized and included, and what is not.

47 Richard A. Wilson: The Politics of Truth and Reconciliation in South Africa. Legitimizing the
Post-Apartheid State (Cambridge: Cambridge University Press 2001), 29.
48 Richard A. Wilson and J. Mitchell: “Introduction. The social life of rights”, in Richard A. Wilson
and J. Mitchell (eds.): Human Rights in Global Perspective. Anthropological studies of rights, claims
and entitlements (London: Routledge 2003), 1-15.
49 CVR 2003, at Vol. IX, 150. For an analysis of the issue of victim reparations in the Peruvian Truth
and Reconciliation Commission, see Jemima García-Godos: “Victim reparations in the Peruvian Truth
Commission and the challenge of historical interpretation” (2008) 2 International Journal of Transi-
tional Justice 1, 62-83.

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On his work on the South African Truth and Reconciliation Commission, Wilson makes a
link between human rights discourse and the nation-building project of the post-Apartheid
state.50 He calls for “a critical understanding of the reformulation of human rights in the hege-
monic project of states emerging from authoritarian rule”.51 He argues that states do not
endorse human rights simply for their appreciation of liberal values, but because the language
of rights can be inscribed in nation and state-building projects. From that perspective, the
truth-writing project of truth commissions has the power to codify the history of a particular
period, fixing memory and institutionalizing a view of the past conflict.52 This view is also
endorsed by a growing body of literature on the politics of memory, where the debate centers
on the socially constructed character of memory and history.53 Remembering, and forgetting
should be understood as social processes where different versions of the past struggle for
recognition and assertion as the official history, the true account of the past.54
Through reparation programs, states can put into practice the interpretation of the past for-
warded by truth commissions, with all the advantages and limitations this conveys. It is vital
however, to be aware of the links between human rights discourse, the regime of truth and the
nation-building project that such schemes support. In other words: what kind of nation-build-
ing project is being supported through the design and implementation of specific reparations
programs? A critical analysis of reparation plans and programs that situate them not only in
their immediate socio-political context, but also in regards to contesting interpretations of the
past and state-nation building projects can provide answers to these most pressing questions.
50 Wilson supra n 46.

51 Ibid.
52 Ibid at 16.
53 See for example Paloma Aguilar: “Collective Memory of the Spanish Civil War: The Case of the
Political Amnesty in the Spanish Transition to Democracy” (1997) 4 Democratization 4, 88-109; Bene-
dict Anderson: Imagined Communities: Reflections on the Origin and Spread of Nationalism (London:
Verso 1991); Carlos Iván Degregori (ed.): Jamás Tan Cerca Arremetió Lo Lejos: Memoria y Violencia
Política en el Perú (Lima: Instituto de Estudios Peruanos 2003); Laurence Kirmayer: “Landscapes of
Memory: Trauma, Narrative and Dissociation”, in Paul Antze and Michael Lambek (eds.): Tense Past:
Cultural Essays in Trauma and Memory (New York and London: Routledge 1996); Michael Lambek:
“The Past Imperfect: Remembering as Moral Practice”, in Paul Antze and Michael Lambek (eds.):
Tense Past: Cultural Essays in Trauma and Memory (New York and London: Routledge 1996).
54 Contestation and struggle in nation- and state-building processes have been widely documented
by social historians. See for example, Florencia Mallon: Peasant and Nation: The Making of Postcolo-
nial Mexico and Peru (Berkeley: University of California Press 1995); Margaret Somers: “Citizenship
and the Place of the Public Sphere: Law, Community, and Political Culture in the Transition to Democ-
racy” (1993) 58 American Sociological Review 5, 587-620; and, Charles Tilly (ed.): Citizenship, Iden-
tity and Social History - International Review of Social History Supplements Vol. 3 (Cambridge: Cam-
bridge University Press 1996).

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D. AN ANALYTICAL FRAMEWORK FOR THE STUDY OF VICTIM REPARATIONS
From the previous sections, we can see that the core issues of any victim reparations initiative
involve choices that reach well beyond the realm of the merely administrative or technocrat-
ic and deep into the realm of the political. The challenge at hand is thus how to reach a critical
understanding of reparation programs that links them up to larger processes of history con-
struction and nation-state building. In my view, the core issues discussed above serve as the
basis for an analytical framework for the study of victim reparation programs, one that
includes four basic and inter-related elements. Although not exhaustive, the framework pro-
vides the basic tools to analytically and systematically approach how different countries deal
with the issue of victim reparations, while keeping an eye on contested social processes. One
of the benefits of such a framework is to allow the comparative study of reparation programs,
both in normative and process-oriented terms from a social critical perspective, thus empha-
sizing the multiple subjectivities and complex practices and experiences that armed conflicts
and authoritarian regimes entail.
The point of departure for this analytical framework is a conceptualization of victim repa-
rations as a contested social process. This implies a focus on the identification of social actors
involved in contestation and negotiation for (i) framing the terms of engagement and (ii) influ-
encing the content/form of specific the reparation programs. The dynamic of the process and
social actors’ access to relevant decision-making processes will vary from case to case due
both to socio-political factors as well as existing/competing notions of victimhood. The ele-
ments suggested for this analytical framework are discussed in turn.
Contextual origin of victim reparations: This element focuses on the immediate socio-
political context where the reparations issued was raised, as well as on the nature of the con-
flict or regime prior to the transition. Questions to be asked include: How and when did the
reparations issue come about? What is the social, political and economic background that
gave rise to the reparations issue? Which social actors contributed in the framing of victim
reparations as an issue? Which social actors opposed reparations and why? What is the
basis/status of the issue in terms of ruling legislation and policy?
Basis of the benefit: This element focuses on the most basic definitions of a reparations pro-
gram – identifying the victim and the basis of victimhood. A closely related definition is that
of the beneficiary. What nuances are reflected and ignored by the basic concepts? What types
of damages or events are entitled to reparation? Which ones are not? Given the basic concepts
of a reparations program, what are the implications of these when applied to different groups
of victims? Who becomes a beneficiary? Who does not, and why?
Implementation: This element deals with the basic distinctions of form and distribution of
reparation measures; symbolic or material, individual or collective. These variables can be
combined in many different ways, thus producing various kinds of reparation measures. What
are the challenges posed to the actual implementation of reparation measures at both local and
national levels? What are the advantages? How does the “menu” of reparation measures
respond to the needs of different types of victims and beneficiaries?
Historical dimension: This element focuses on the implications that reparations programs
have for the political and legal claims of different victim groups. In the construction of the past
that emerges as hegemonic, what role is being assigned to the various groups? Are there any

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aspects of the assigned roles that do not correspond to the groups’ self-defining role, and why
is this so? Is there public recognition for contesting claims, or are alternative claims doomed
to oblivion? Ultimately, what history is the specific reparation program helping to construct?
E. C ONCLUSION
Based on the growing international and academic interest in victim reparations as a mecha-
nism of transitional justice, and the abundant literature that has emerged in the past few years,
this article takes a step back to ask what is actually at stake with victim reparations and why.
As we have seen, the conceptual clarification in this emerging field is a fairly recent develop-
ment, and categories are still being challenged in the academic debate. Similarly, while con-
sensus has been reached about the legitimacy of victims’ rights, there is an ongoing debate
over how best to address the needs of victims, both in form and content.
Reparations are a highly normative and ethical issue. They are also a highly sensitive, polit-
ical one. I therefore argue that any reparations program must be seen in relation to the politi-
cal project it supports. Through a discussion of the core issues and choices present in devel-
oping victim reparations initiatives, the elements of an analytical framework for the study of
specific reparation programs emerge. The framework highlights the social and contested
character of reparation programs by situating the issue of victim reparations in a political and
historical context. This may well lead to a certain “loss of innocence” of victim reparation pro-
grams, but the awareness of what is at stake in the (re)construction of painful histories will
contribute to an open process of recognition of social actors and what they endured in the past.

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E NFORCEMENT OF S OCIO -E CONOMIC R IGHTS IN S OUTH

A FRICA : S TRENGTHENING THE R EASONABLENESS A PPROACH
BY CHRISTOPHER MBAZIRA*
Abstract: This paper discusses the extent to which the South African courts have given effect
to the socio-economic rights in the Constitution. While the courts have surmounted traditio-
nal prejudices against these rights the reasonableness review approach adopted to enforce
the rights is lacking in some respects. Two such shortcoming are the failure of the court to
give content to the rights and to interrogate the effectiveness of the means adopted for their
realisation. These shortcomings can be overcome were the courts to carry out an inquiry
similar to that set out in the section 36 limitations analysis. The state would be required to
demonstrate a rational connection between the means chosen to realise the rights and the
rights themselves.
Keywords: Judicial enforcement, socio-economic rights, reasonableness approach
A. I NTRODUCTION
The 1996 South African Constitution (the Constitution)1 perhaps has the most comprehensi-
ve domestic protection of economic, social and cultural rights (socio-economic rights) as
enshrined in international treaties such as the International Covenant on Economic, Social
and Cultural Rights (the ICESCR).2 The socio-economic rights in the Constitution are drafted
along the same lines as those of the ICESCR.3 The drafters of the Constitution reasoned that
this formulation had the advantage of facilitating consistency between South Africa’s domes-
tic policies and laws and its international human rights obligations.4 Article 2(1) of the
∗ Christopher Mbazira (b. 1975) LLM (Pretoria) PhD (University of the Western Cape); lecturer
department of Public and Comparative Law, Faculty of Law, Makerere University Kampala. Email:
bazzira@yahoo.co.uk. This paper was first drafted during the time I spent as a visiting scholar at the
Norwegian Centre for Human Rights, University of Oslo, 9 October – 3 November 2006, at the invita-
tion of the South African Programme, to which my appreciation goes. Also appreciated are Professor
Pierre De Vos (my PhD supervisor) and Professor Solly Leeman, all of the University of the Western
Cape for their comments. Parts of this paper are drawn from my PhD thesis.
1 Act No. 108 of 1996 (Constitution).
2 Adopted and opened for signature, ratification and accession by GA Resolution 2200A (XXI) of
16 December 1966, entered into force 3 January 1976.

3 See Constitutional Assembly Constitutional Committee, Draft Bill of Rights, Volume 1, Explana-
tory Memoranda of Technical Committee to Theme Committee IV of the Constitutional Assembly (9

October 1995).
4 See Sandra Liebenberg: “Socio-economic rights”, in Chaskalson et al: Constitutional Law of
South Africa (Kenwyn: Juta & Co 1998) 41−4.
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ICESCR requires states to undertake steps to the maximum of their resources, with a view to
progressively realising the rights by all appropriate means. Similarly, the South African Con-
stitution compels the state to take reasonable legislative and other measures, within its avai-
lable resources, to achieve the progressive realisation of the rights.5 The differences between
the Constitution and the ICESCR are mainly nomenclatural; a closer scrutiny shows that the
obligations engendered by the two instruments are similar in many respects. Both are subject
to limitations defined by the available resources and the need to realise the rights progressi-
vely. In determining the appropriateness of the measures taken by the state, guidance may be
sought in the test of reasonableness: what is appropriate will also be reasonable.
In South Africa, it was not until 1994 that a Bill of Rights protecting human rights was
adopted as part of the Constitution. Prior to this, with the exception of constitutions of some
homelands, human rights did not enjoy constitutional protection. This facilitated the massive
violation of all kinds of human rights, especially of the black majority, who endured decades
of political subjugation as well as economic and social deprivation. Even when provision was
made for some socio-economic goods and services, this was based on racial discrimination;
the white minority enjoyed access to better quality goods and services while the blacks either
had to make do with poor quality services or none at all.6 It is within this context of depriva-
tion and discrimination that the struggle for human rights was carried on. The struggle against
apartheid was a struggle for both political and socio-economic equality. As early as 1955, the
Freedom Charter (the Charter)7 made the call for socio-economic justice in addition to poli-
tical rights. It also called for the removal of restrictions on land ownership and equal access
to work, housing and education. This paper does not intend to detail the events leading to the
inclusion of socio-economic rights in the Constitution. What is apparent, however, is that the
process of including these rights in the Constitution needed to overcome opposition to the
constitutional protection of the rights. In many circles, the rights were rejected on the ground
that they did not meet the essential requirements of rights per se. I.e., they were positive in
nature and had budgetary implications requiring the redistribution of resources − a function
only political organs were deemed competent to discharge as opposed to the judiciary.8 The-
5 Sections 26(2) and 27(2); the right to further education in 29(1)(b) is also to be realised progres-
sively by the state taking reasonable measures, but no mention is made of acting within available
resources.
6 Nico Steytler: “Local government in South Africa: Entrenching decentralised government”, in
Nico Steytler (ed.): The place and role of local government in federal systems (Johannesburg: Konrad-
Adenauer-Stiftung 2005) 184.
7 The Freedom Charter, adopted by the Congress of the People at Kliptown on 26 June 1955
(http://www.anc.org.za/ancdocs/history/charter.html) (last visited 17 May 2005). The Charter was

adopted by the liberation movements to exemplify what they considered to be the ideal bill of rights for
South Africa. See generally Nico Steytler (ed.): The Freedom Charter and beyond: Founding the prin-
ciples for a democratic South African legal order (Cape Town: Wyvern Publications 1991).
8 See Albie Sachs: Protecting human rights in a new South Africa (Cape Town: Oxford University
Press 1990); Dennis Davis: “The case against the inclusion of socio-economic demands in a Bill of
Rights except as directive principles” (1992) 8 South African Journal on Human Rights 475; Cowling
M.G.: “Judges and the protection of human rights in South Africa: Articulating the inarticulate premise”
(1987) South African Journal on Human Rights 177; Bertus De Villiers: “Socio-economic rights in a
new constitution: critical evaluation of recommendations of the South African Law Commission”

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se objections were, however, unsuccessful. With subsequent judicial approval,9 a wide array
of socio-economic rights were incorporated into the Constitution as judiciously enforceable
rights on the same basis as the civil and political rights.10
The Bill of Rights protects three categories of socio-economic rights: rights with internal
limitations; rights without internal limitations; and prohibition rights.11 Suffice it to say here
that the most controversial of them, however, are those with internal limitations. These inclu-
de the right to adequate housing in section 26 and the rights to health care services, sufficient
food and water, and social security and assistance. In respect of these rights, the state is
required to undertake reasonable legislative and other measures, within its available resour-
ces, to progressively realise them.12 This obligation has given birth to the reasonableness
review approach as used by the Constitutional Court (the CC) to enforce the rights. This paper
pursues one of the criticisms directed at the CC’s approach for failing to give substantive con-
tent to the rights, that is, defining the rights in a manner that details their ingredients.13 This
is in addition to the failure to interrogate the effectiveness of the means chosen to realise the-
se rights.
The purpose of this paper, after a review of the rights, is to interrogate the effectiveness of
the means chosen to realise them. I will propose applying a test of interrogation similar to the
one applied under the section 36 inquiry. As will be seen, section 36 allows the state to impose
on the rights limitations that are consistent with a society based on democracy, human digni-
ty and freedom. Before discussing how the section 36 test could be used, the paper will first
lay bare the reasonableness review approach as used by the CC and some of its shortcomings.
B. A N A PPRAISAL OF THE R EASONABLENESS R EVIEW A PPROACH

According to the CC, it is beyond doubt that socio-economic rights are capable of judicial
enforcement; the question should not therefore be one of whether or not these rights are judi-
cially enforceable but how to enforce them in a given case.14 The Court has rejected conten-
tions that the rights cannot be enforced by the courts because they have budgetary implicati-
ons. The CC has observed that when the courts enforce socio-economic rights, the task con-
ferred upon them is no different from the one by which they enforce civil and political rights
such as the right to vote and the right to a fair trial. Accordingly, just like socio-economic
(1992) 3 Tydskrif vir die Suid-Afrikaanse 421; and C. R. M Dlamin: “The South African Law Com-
mission’s Working paper on group and human rights: Towards a bill of rights for South Africa”(1990) S
A Public Law 96.
9 In re Certification of the Constitution of the Republic of South Africa (First Certification case)
1996 (10) BCLR 1253 (CC), para 77.

10 See Kristine Yigen: “Enforcing social justice: Economic, and social rights in South Africa”
(2002) 4 International Journal of Human Rights 21.

11 See Liebenberg (note 4 above) 41−5.
12 See sections 26(2) and 27(2) of the Constitution.
13 See David Bilchitz: Poverty and fundamental rights: The justification and enforcement of socio-
economic rights (New York: Oxford University Press 2007) 136.

14 Government of the Republic of South Africa v Grootboom & Others 2000 (11) BCLR 1169 (CC)
2001 (1) SA 46 (CC) (Grootboom case) para 20.

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rights, orders to enforce civil and political rights may have budgetary implications.15 The CC
has also said that the inclusion of socio-economic rights in the Constitution does not result in
the violation of the doctrine of separation of powers between the different organs of state, the
judiciary, executive and legislature.16 It is on this basis that the CC has entertained and adju-
dicated a number of socio-economic rights cases.
The first case to engage directly with the enforcement of these rights was Soobramoney v
Minister of Health, Kwazulu-Natal.17 The case was instituted by a patient diagnosed with
chronic kidney failure at Addington Hospital in Kwazulu-Natal. He was denied access to dia-
lysis treatment under a policy that excluded patients of his status from the treatment because
of the limited resources at the disposal of the hospital. Mr Soobramoney based his case on the
section 27(3) right not to be denied emergency medical care and the section 11 right to life.18
However, the Court rejected this formulation holding his case was not an emergency. An
emergency, according to the CC, occurs when ‘[a] person suffers a sudden catastrophe which
calls for immediate medical attention’.19 His condition, the Court noted, was by contrast ‘an
ongoing state of affairs resulting from a deterioration of … [his] renal function which is incu-
rable’.20
Properly speaking, the Court added, Mr Soobramoney’s case could be located only in sec-
tions 27(1) and (2), which guarantees the right to health cares services subject to the available
resources and progressive realisation. The CC found that while the state was under a duty to
provide Mr Soobramoney with access to health care services, it had been established that the
hospital did not have sufficient resources to provide dialysis treatment to all those in need the-
reof.21 The Court emphasised that
[The] guarantees of the Constitution are not absolute but may be limited in one way or
another. In some instances, the Constitution states in so many words that the state must
take reasonable legislative and other measures, within its available resources “to achieve
the progressive realisation of each of these rights.” In its language, the Constitution
accepts that it cannot solve all of our society’s woes overnight, but must go on trying to
resolve these problems. One of the limiting factors to the attainment of the Constitutio-
n’s guarantees is that of limited or scarce resources. In the present case the limited hae-
modialysis facilities, inclusive of haemodialysis machines, beds and trained staff consti-
tute the limited or scarce facilities.22
Additionally, the Court said it would only interfere with the decision of the hospital if it was
irrational and taken in bad faith: ‘[a] court will be slow to interfere with rational decisions
15 First Certification case (note 9 above) para 77.

16 First Certification case (note 9 above) para 78.
17 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC) (Soobramoney case).
18 As I will show later, the CC held that Mr Soobramoney’s case could not be decided on the basis
of the right to life but on the basis of the specific right to have access to health care services in section
27(1), para 19.
19 Para 20.
20 Para 21.
21 See paras 24–26.
22 Para 44.

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taken in good faith by the political organs and medical authorities whose responsibility it is to
deal with such matters.’23 Unlike the political organs, held the Court, it did not have the insti-
tutional capacity to engage with the agonising problems of making choices.24
The Soobramoney case was followed by Government of the Republic of South Africa v
Grootboom & Others,25 a case brought by a group of almost 1,000 adults and children who
had been evicted from a shanty town in the most brutal manner. Their shacks had been set on
fire and, in a desperate condition, they had sought refuge at a local sports ground. Here, they
only managed to erect the most rudimentary and inadequate shelter. This case was instituted
under sections 26 (1) to enforce everyone’s right of access to adequate housing and the chil-
dren’s 28(1)(c) rights to shelter, basic nutrition and health care respectively.
The High Court found that the rights of the adults had not been violated since they are sub-
ject to available resources and progressive realisation. It did, however, find in favour of the
children insofar as their rights under section 28 were considered by the Court to be immedia-
te and not subject to available resources.26 In setting aside the decision of the High Court, the
CC held that children’s rights were no different from those of adults as section 28 did not esta-
blish independent rights for children on demand. According to the Court, the duty to provide
for the section 28(1)(c) rights lay in the first place with the parents and fell to the state only
when the children were removed from parental care. For those children living with their
parents, their right to housing would be enforced under section 26. The CC held that for the
right in section 26 to be fulfilled, the Constitution would require the state to put in place a com-
prehensive and workable plan in order to meet its socio-economic rights obligations. But this
obligation in turn is defined by three key elements that have to be considered separately: (a)
‘to take reasonable legislative and other measures’; (b) ‘to achieve the progressive realisati-
on’ of the right; and (c) ‘within available resources.’27 A reasonable programme, according to
the Court, must clearly allocate responsibilities and tasks to the different spheres of govern-
ment and ensure that the appropriate financial and human resources are available.28 Each
sphere of government must accept responsibility for the implementation of particular parts of
a comprehensive and well-coordinated programme.29
The Court noted further that while the contours of this programme will be for the state to
decide,30 the programme must be balanced and flexible and make appropriate provision for
attention to short, medium and long-term needs. ‘A programme that excludes a significant
segment of society cannot be said to be reasonable.’31 Those whose needs are the most urgent
and whose ability to enjoy all rights is most in peril must not be ignored by measures aimed at
achieving realisation of the right.32 It is on this basis that the National Housing Programme
was found to be unreasonable because it did not have an element that responded to the needs
23 Para 29 [Emphasis mine].

24 Para 58.
25 Note 14 above.
26 Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).
27 Para 38.
28 Para 39.
29 Para 40.
30 Para 41.
31 Para 43.
32 Para 44.

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of such vulnerable people as the applicants. Later, in the case of Minister of Health and Others
v. Treatment Action Campaign,33 the CC added that for a public programme to meet the con-
stitutional requirements of reasonableness, its contents must be made known appropriately.34
In both the Grootboom and TAC cases, the CC rejected application of the concept of mini-
mum core obligations in South Africa. The concept of minimum core obligations was coined
by the United Nations Committee on Economic, Social and Cultural Rights, the Committee
that monitors the implementation of the ICESCR. It construed the provisions of the ICESCR
as engendering a minimum core obligation incumbent upon all state parties. The Committee
‘is of the view that a minimum core obligation to ensure the satisfaction of, at the very least,
minimum essential levels of each of the rights is incumbent upon every State party’.35 The
Committee gave as an example of a prima facie violation a state party in which any signifi-
cant numbers of individuals are deprived of essential foodstuffs, of essential primary health
care, of basic shelter and housing, or of the most basic forms of education.36 The minimum
core content of a right is therefore its essential elements, without which the right risks losing
its substantive significance as a right.37 It is the level below which standards should not fall.38
In South Africa, this notion has, however, been rejected by the CC; in the Grootboom case,
that it was impossible, without sufficient information, to define the minimum core where peo-
ple’s housing needs are diverse. In the TAC case, it was held that it was impossible to give eve-
ryone access to a minimum core and that all the state can do is undertake reasonable measu-
res within its available resources to progressively realise the rights. In these cases all that the
state was required to demonstrate was that it has in place a reasonable programme.
1. G IVING THE R IGHTS N ORMATIVE C ONTENT

One of the shortcomings of the CC’s reasonableness approach is its failure to give content to
the socio-economic rights in the Constitution. In the Grootboom case, the CC was quick to
emphasise that the rights in the Constitution must be understood in their contextual setting.
This requires consideration of chapter two (the Bill of Rights) and the Constitution as a who-
le.39 In considering the right to adequate housing, the Court held that section 26 must be
understood in its context; the first subsection confers a general right of access to adequate
housing and the second subsection establishes and delimits the scope of the positive obligati-
33 2002 (5) SA 721, the TAC case.

34 Para 123.
35 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States
parties’ obligations (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), reprinted in
Compilation of General Comments and General Recommendations. Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev. 6 at 14 (2003) para 10.
36 As above.
37 Geraldine Van Bueren: “Alleviating poverty through the constitutional court” (1999) 15 South
African Journal on Human Rights 58.

38 Russell, S.: “Minimum state obligations: International dimensions” in Danie Brand and Russell,
S, (eds): Exploring the core content of socio-economic rights: South African and international per-
spectives (Pretoria: Protea Book House 2002) 15.
39 Para 22.

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ons to realise that right.40 Accordingly, subsections (1) and (2) are related and must be read
together. In this, the Court conflated the subsections in such a manner that subsection (1) dis-
appeared in subsection (2). In all three cases, Soobramoney, Grootboom and TAC, the CC,
after casually referring to subsection (1), concentrated its interpretative efforts on subsection
(2). In the Grootboom case the CC said that
[H]ousing entails more than bricks and mortar. It requires available land, appropriate ser-
vices such as the provision of water and the removal of sewage and the financing of all of
these, including the building of the house itself.41
The Court held that section 26 does not expect more of the state than is achievable within its
available resources.42 In the Soobramoney case, while the CC made an attempt to define the
right not to be denied emergency medical treatment as protected in section 27(3), it construed
the right narrowly as a negative right devoid of any positive elements and merely requiring
that people should not be turned away. The Court held that
Section 27(3) itself is couched in negative terms – it is a right not to be refused emergen-
cy treatment. The purpose of the right seems to be to ensure that treatment be given in an
emergency, and is not frustrated by reason of bureaucratic requirements or other formali-
ties.43
Though the CC had said that the rights must be construed in the context of other provisions of
the Constitution, in particular the Bill of Rights,44 in the Soobramoney case it declined an invi-
tation to construe section 27(3) consistently with the right to life in section 11.45 It said that the
right to medical treatment does not have to be inferred from the right to life in section 11 sin-
ce it is directly protected by section 27.46 The problem with this sort of reading is that it disin-
tegrates the rights and isolates them from each other, in addition to undermining the notion
that the rights are interdependent.47 The Court’s definition has been criticised by many com-
mentators. The interpretation, they say, renders the right redundant by denying the existence
of the duty to ensure that emergency services are sufficient to attend all who need them.48 It
40 Para 21.
41 Para 35.
42 Para 20.
43 Para 20; see also para 38.
44 1995 (3) SA 391 (CC) (Makwanyane case) para 10.
45 Para 14.
46 Para 19.
47 See Craig Scott: “Reaching beyond (without abandoning) the category of ‘economic, social and
cultural rights’” (1999) 21 Human Rights Quarterly 633, 638−40; and Marius Pieterse: “Possibilities
and pitfalls in the domestic enforcement of socio-economic rights: Contemplating the South African
experience” (2004) 26 Human Rights Quarterly 882, 899−900.
48 Craig Scott and Philip Alston: “Adjudicating constitutional priorities in a transitional context: A
comment on Soobramoney’s legacy and Grootboom’s promise” (2000) 16 South African Journal on
Human Rights 206, 245. See also Sandra Liebenberg: “South Africa’s evolving jurisprudence on socio-
economic rights: An effective tool in challenging poverty” (2002) 6 Law, Democracy and Development
159, 165−166.

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has been submitted further that by reading the provisions together, greater coherence could be
achieved as to determining what is protected and what is not. This is especially necessary
when the question is whether certain interests are protected implicitly by the Constitution.49
The CC’s restrictive approach in defining the right not to be refused emergency medical
care can be likened to what Scott has described as ‘negative textual inferentialism’. According
to Scott, a treaty monitoring body may use provisions of another treaty to limit rights that are
granted in the treaty it monitors. Such body may allege that since the monitored treaty does
not mention certain aspects of a right mentioned in another treaty, the treaty should be read as
excluding those aspects. In the same way, the CC declined to invoke section 11 on the right to
life to develop the right to emergency medical care on the ground that the right was express in
section 27(3); yet it denied the right any meaningful content. In the TAC case, the CC con-
centrated on dismissing the arguments to the effect that section 27 should be read as establis-
hing two self-standing and independent rights:
[O]ne an obligation to give effect to the 26(1) and 27(1) rights; the other a limited obliga-
tion to do so progressively through “reasonable legislative and other measures, within its
available resources”. Implicit in that contention is that the content of the right in subsec-
tion (1) differs from the content of the obligation in subsection (2).50
It had been argued that the right to health care in section 27(1)(a) is one of the rights in the Bill
of Rights and accordingly attracts the duties imposed on the state by s 7(2) and further that
there is nothing in section 27(2) to suggest that the duties it imposes replace any of the duties
imposed on the state by section 7(2). Section 7(2) requires the state to respect, protect, pro-
mote and fulfil all the rights in the Bill of Rights. It had further been argued that to give mea-
ningful content to the constitutional right of every person to have access to the goods and ser-
vices described in s 27(1), there must be some concomitant duty on the state to make those
goods and services accessible to ‘everyone’. Section 27(2) does not do this because it is a
‘macro’ duty, rather than one that obliges the state to make the goods and services accessible
to every or any particular person. It accordingly cannot be exhaustive of the positive duties
imposed on the state.51 The Court relies on the Soobramoney and Grootboom cases in rejec-
ting this argument; it held that the two subsections cannot be separated from each other; refe-
rence to ‘the right’ in subsection (2) is clearly also reference to the subsection (1) right:52
[S]ection 27(1) of the Constitution does not give rise to a self-standing and independent
positive right enforceable irrespective of the considerations mentioned in section 27(2).
Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights
that everyone has and the corresponding obligations on the state to “respect, protect, pro-
49 Scott & Alston (Note 48 above) 245.

50 Para 29.
51 See Submissions of the Community Law Centre and IDASA in Minister of Health and Others v
Treatment Action Campaign and Others

(http://www.communitylawcentre.org.za/ser/docs_2002/TAC_MTCT_Case_Heads_of_Arguments.
doc) (last visited 22 February 2006) paras 15−27.
52 Para 30.

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mote and fulfil” such rights. The rights conferred by sections 26(1) and 27(1) are to have
“access” to the services that the state is obliged to provide in terms of sections 26(2) and
27(2).53
The Grootboom case adopted the same approach, interpreting subsection (2), especially on
the requirement that the state undertakes reasonable legislative and other measures to realise
the right, but also loosely on ‘progressive realisation’ and ‘within available resources’, inde-
pendently from subsection (1).54 The Court thus summed up: ‘both the content of the obliga-
tion in relation to the rate at which ... [a right] is achieved as well as the reasonableness of the
measures employed ... are governed by the availability of resources.’55 As with the Grootbo-
om and Soobramoney cases, the Court in the TAC case does not give content to the right of
access to health care services; it does not answer the question of the services to which a per-
son is entitled and whether it includes preventive or curative medical care.56
In these three decisions socio-economic rights have been interpreted in a manner that only
entitles the beneficiaries of the rights granted in sections 26 and 27 to reasonable state action
undertaken to progressively realise these rights subject to the available resources.57 It is clear
from subsection (2) of both sections 26 and 27 that what is required of the state is to realise the
right mentioned in subsection (1). To this extent, one agrees with the CC’s decision in the TAC
case that the two subsections must be read together. What the CC does not realise, however, is
that these sections establish a goal as well as the means to achieve that goal. The goal is that
the rights in subsection (1) should be realised, but only through the means stated in subsecti-
on (2). If we take this further, on the basis of what the CC says, viz, that the two subsections
have to be read together, the means need to be understood therefore in the context of the goal.
We cannot test the efficacy, or even reasonableness, of the means used in realising the goal
unless we know precisely what the goal entails.58 The CC should have begun by understan-
ding the content of the right, because only then would it have been able to determine whether
the measures adopted were reasonable methods of realising the right.59 The failure of the CC
53 Para 39.
54 See paras 39–46.
55 Para 46.
56 David Bilchitz: “Towards a reasonable approach to the minimum core: Laying the foundations
for future socio-economic rights jurisprudence” (2003) 19 South African Journal on Human Rights 1,
6; see also David Bilchitz: ”Health” in Chaskalson M, Kentridge J, Klaaren J, Marcus G, Spitz D, Wool-
man S (eds): Constitutional law of South Africa (2nd ed., Pretoria: Juta & Company and Centre for
Human Rights, University of Pretoria 2005 ) 56A-i —56A-47, 56A-21.
57 Brand: “The proceduralisation of South African socio-economic rights jurisprudence, or ‘what
are socio-economic rights for?’” in H. Botha, A van der Walt, and J van der Walt Brand, D. (eds): Rights
and democracy in a transformative constitution (Stellenbosch: Sun Press 2003) 33–56, 38.
58 Brand (as above) 44; see also Bilchitz (note 56 above) 8; and David Bilchitz: “Placing basic
needs at the centre of socio-economic rights jurisprudence” (2003) 4(1) ESR Review 2, at 3.
59 Bilchitz (note 56 above) 9; David Bilchitz: “Giving socio-economic rights teeth: The minimum
core and its importance” (2002) 119 South African Law Journal 484, 496; and Marius Pieterse: “Com-
ing to terms with judicial enforcement of socio-economic rights” (2004) 20 South African Journal on
Human Rights 383, 407.

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to adopt this approach has serious implications on the efficacy of the remedies the Court may
have chosen to address a violation. It has been submitted that in order to resolve issues related
to constitutional remedies, courts need to identify the goals they seek to achieve in this area of
law. In this way, a court can evaluate the alternatives by asking which of them will better achi-
eve the policies at stake.60
The approach of the CC in conflating the two subsections has rendered section 7(2) parti-
ally redundant in as far as the section obligates the state to respect and protect the rights. Gene-
rally, these two obligations are not so dependent on resources and therefore may not be sub-
jected to progressive realisation: they are mainly of a negative nature, and generally speaking,
do not require positive action that would call for allocation of resources. Conflating the two
subsections haphazardly means that the duties to respect and protect the rights in sections
26(1) and 27(1) are also subject to progressive realisation and available resources. In the TAC
case, the argument had been made to the effect that section 27(2) is not exhaustive of the posi-
tive duties imposed on the state towards fulfilment of the rights created in section 27(1), inclu-
ding the right to health care; and that those rights also attract the duties imposed on the state
by section 7(2).61 In identifying the elements of the right of access to health care services that
are immediately enforceable by virtue of section 7(2), the amici made reference to positive
elements that could only be realised at the level of fulfilment.62 For instance, the amici stated
that individuals have access to the minimum core of necessities of life and have a claim
against the state for access to those goods and services under section 7(2). This claim is not
subject to the complications of claims under sections 26(2) and 27(2).63
As can be deduced from Bilchitz,64 the advocates of the above arguments are struggling
here not only to give content to the rights in subsection (1) but also to locate the minimum core
within this subsection without invoking subsection (2). However, there is a difficulty with an
approach that excludes subsection (2) as the basis for the minimum core. It is my contention
that the minimum core approach has been derived from the notion of progressive realisation,
stressing the point that certain needs are immediate and need not be subject to available
resources and realised progressively. The point being made here is that one cannot exclude
subsection (2) and locate the minimum core only in subsection (1). Rather, the minimum core
has to be derived from sections 26(1) and 27(1) read together with their respective subsecti-
ons (2) in addition to section 7(2).
The failure of the Court to give content to the rights also leaves the government without
guidance as to what is expected of it in implementing the rights.65 Davis Dennis has argued
that
60 Michael L. Wells and Thomas A. Eaton: Constitutional remedies: A reference book for the Unit-
ed States Constitution (Praeger: Praeger Publishing 2002) xxv.

61 TAC amici submissions, para 34.
62 TAC amici submissions, see paras 47 and 48.
63 TAC amici submissions, para 48.2.
64 Bilchitz (note 56 above) 11. See also Sandra Liebenberg: “The interpretation of socio-econom-
ic rights” in Chaskalson et al. (note 56 above) 33–1 to 33−64, 33−42.

65 Kevin Iles: “Limiting socio-economic rights: Beyond the internal limitation clauses” (2004) 20
South African Journal on Human Rights 448, 454.

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If the Constitutional Court does not define these rights with any precision, the burden pla-
ced upon the executive by the courts is significantly increased. That is precisely what the
Court’s approach to these sections is designed to prevent.66
There is therefore a need on the part of the courts to help the executive by defining in precise
terms the goal, that is, to specify the ingredients of each right. This would forestall moves by
the state to contend that it had discharged its duties even when it is clear that the programmes
adopted have not led to realisation of the rights. Defining the goal also makes the task of moni-
toring the implementation of court orders much easier. This is because it makes it possible for
the courts to prescribe, in precise terms in their orders, what the government should do to
remedy a violation. This lack of precision makes the task of enforcing court orders insur-
mountable since enforcers cannot point precisely to the steps required to remedy the violati-
on. The court would be able to define the goals and interrogate the means for their realisation
by using a proportionality test.
C. I NTERROGATING THE M EANS AND E ND : A P ROPORTIONALITY T EST

The main thesis of this paper is that the South African courts could interrogate the means
adopted by the state for the realisation of the rights only by subjecting these means to a heigh-
tened level of proportionality beyond the reasonableness test that has been employed. Such
heightened level of proportionality is used in the section 36 analysis and could be borrowed
from here. Section 36 provides as follows:
36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general applica-
tion to the extent that the limitation is reasonable and justifiable in an open and democra-
tic society based on human dignity, equality and freedom, taking into account all relevant
factors, including –
• the nature of the right;
• the importance of the purpose of the limitation;
• the nature and extent of the limitation;
• the relation between the limitation and its purpose; and less restrictive means to achieve
the purpose.
The drafters of this section were much inspired by the provisions of the Canadian Charter of
Rights and Freedoms,67 and the reasoning in the cases from the Canadian courts. Section 1 of
this Canadian Charter provides that
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably jus-
tified in a free and democratic society.
66Dennis Davis: “Adjudicating the socio-economic rights in the South African Constitution:
Towards ‘deference lite’?” (2006) 22 South African Journal on Human Rights 301, 304−305.
67 Schedule B of Constitution Act, 1982 (Charter).

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This section has been dealt with by the Canadian courts in a number of cases. The most pro-
minent of these decisions is the Supreme Court case of R v Oakes68 where the Court found that
the rights and freedoms guaranteed by the Charter are not absolute; they may be limited in cir-
cumstances where their exercise would be inimical to the realisation of collective goals of
fundamental importance.69 According to the Court, it was for this reason that section 1 provi-
des criteria to be used in deciding whether a limitation on the rights and freedoms guaranteed
by the Charter is justified, which imposes a stringent standard of justification.70 The Court
went on to hold that the onus of proving that a limitation of a right or freedom guaranteed by
the Charter is reasonable and demonstrably justified in a free and democratic society rests
upon the party seeking to uphold the limitation.71 According to the Court, to establish that a
limitation is reasonable and demonstrably justified in a free and democratic society, two cen-
tral criteria must be satisfied. First, the objectives which the limitation is designed to serve
must be of sufficient importance to warrant overriding a constitutionally protected right or
freedom. Second, once a sufficiently significant objective is recognised, then the party invo-
king section 1 must show that the means chosen are reasonable and demonstrably justified,
which involves a form of proportionality test. The Court goes on to hold that although the
nature of the proportionality test will vary depending on the circumstances, in each case,
courts will be required to balance the interests of society with those of individuals and groups.
And, there must be a rational connection between the objective and the means chosen and also
as little as possible impairment of the right.72
In South Africa, the application of section 36(1) has come through a two-stage approach in
litigation. At the first stage this approach requires that whenever it is argued that a right in the
Bill of Rights has been infringed, it must be proved by the complainant that indeed the right
has been infringed. This requires it to be established that the activity for which constitutional
protection is sought falls within the sphere of activities protected by the Bill of Rights. After
such establishment has been made, the complainant must then show that either the law or
government conduct impedes the exercise of the protected activity. At the second stage, the
state will have to justify the infringement as a limitation of the right within the provisions of
section 36(1). As is explicit from the section itself, the state must prove that the limitation is
reasonable and justifiable in an open and democratic society based on human dignity, equali-
ty and freedom.73
The manner in which this section is crafted and has been applied suggests that it is more
suited for negative violations, and of limited application to positive violations − especially of
socio-economic rights. By its very nature, the section requires the state to justify restrictions
imposed on the enjoyment of the rights. Though violations of socio-economic rights may
68 [1986] 1 SCR 103, 26 DLR (4th) 200.

69 at 136.
70 at 136.
71 at 136−137.
72 at 138−139.
73 See Woolman, S.: “Limitation” in Chaskalson, M., Kentridge, J., Klaaren, J., Marcus, G., Spitz,
D., & Woolman, S., (eds): Constitutional law of South Africa (Cape Town: Juta & Company 1996) 12-
i—12-64, 12-2 and 12-17. See also Iain Currie and Johan de Waal: The new constitutional and adminis-
trative law Vol. 1 (Cape Town: Juta & Company 2001) 339; the Makwanyane case, para 102; and S v
Zuma 1995 (4) BCLR 401 (CC).

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come as restrictions, in most cases the state’s violation arises from its failure to provide.
However, it appears that the limitation clause may only be applied to violation of negative ele-
ments of socio-economic rights, such as the failure to respect the rights. In this respect, Pier-
re de Vos has given the example of a case based on the failure to respect the right to housing,
which if proven, would require the state to justify the violation on the basis of section 36(1).74
The other reason why the general limitation clause cannot be applied to all violations of socio-
economic rights is because section 36(1) envisages limitations resulting from exercising a law
of general application.75 While socio-economic rights may be limited by legislation, in some
cases they are limited by policy measures or sheer administrative decisions. Such forms of
limitation are not excluded by the internal limitation clause. Liebenberg contends that requi-
ring the limitation of socio-economic rights to be justified by a law of general application has
the advantage of ensuring that limitations of these rights are publicly debated and adopted by
the elected representatives of the people.76 This is because the limitation must be adopted
through legislation after it has been debated by Parliament and the public. The problem with
this is that it will subject limitations, or even provision for socio-economic rights and servi-
ces, to the rigorous and bureaucratic processes of passing legislation. While this may be
necessary in circumstances seeking to establish long-term benefits, it may impede response to
short-term needs arising at short notice and requiring immediate attention. Yet, pre-adopted
legislation may not have foreseen these needs. It would also curtail the flexibility emphasised
in the Grootboom case as one of the requirements of a reasonable programme This is an issue
which those who advocate the application of section 36(1) to socio-economic rights litigation
have ignored in their discussion.
Additionally, the limitations imposed on the socio-economic rights in sections 26(1) and
27(1) are expressly prescribed in sections 26(2) and 27(2).77 In the Khosa case, the CC was of
the view that there is a difficulty in applying section 36(1) of the Constitution to the socio-eco-
nomic rights entrenched in sections 26 and 27 because these sections contain an internal limi-
tation which qualifies the rights. According to the Court, the state’s obligation in respect of
these rights goes further than to take reasonable legislative and other measures within its avai-
lable resources to achieve the progressive realisation of the rights. The Court was of the view
that section 36 can only have relevance if what is ‘reasonable’ for the purposes of section
36(1) is different from what is ‘reasonable’ for purposes of sections 26 and 27. This makes use
of the limitation in sections 26 and 27 more appropriate than the general limitation in section
36. What needs to be done, however, is to heighten the level of scrutiny under section 26 and
27 and require strict justification. This is where one could use the section 36 limitation analy-
sis.
74 Pierre De Vos: “Pious wishes or directly enforceable rights?: Social and economic rights in South
Africa’s 1996 Constitution” (1997) South African Journal on Human Rights 67, 92, See also Iain Cur-
rie and Johan de Waal: The Bill of Rights handbook (Lansdowne: Juta & Company 2005) 594; and Mar-
ius Pieterse: “Towards a useful role for section 36 in social rights cases? Residents of Bon Vista Man-
sions v Southern Metropolitan Council” (2003) 120 South African Law Journal 41, 46. See also Jaftha
v Schoeman and others; Van Rooyen v Stoltz and others [2003] 3 All SA 690 (C).
75 Currie & De Waal (as above) 594.
76 Sandra Liebenberg: “The value of human dignity in interpreting socio-economic rights” (2005)
21 South African Journal on Human Rights 1, 28.

77 Paras 83 and 105.

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In the Makwanyane case, the CC said that the limitation of constitutional rights for a pur-
pose that is reasonable and necessary in a democratic society involves the weighing up of
competing values and ultimately an assessment based on proportionality. The CC held that the
fact that the different rights had different implications for democracy and, in the case of the
Constitution, for ‘an open and democratic society based on freedom and equality’, there could
be no absolute standard for determining reasonableness and necessity. Principles can be esta-
blished, but their application to particular circumstances could only be done on a case-by-case
basis. This indeed is inherent in the requirement of proportionality, the Court went on, which
calls for the balancing of different interests. In the balancing process, according to the Court,
the relevant considerations will include the nature of the right that is limited and its importan-
ce to an open and democratic society; the purpose for which the right is limited and the impor-
tance of that purpose to such a society; the extent of the limitation, its efficacy and, particu-
larly where the limitation has to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right.78
Section 36 also has a set of factors that have to be considered in determining whether a limi-
tation is reasonable and justifiable in the said society. Of relevance to my discussion is first
whether there is a relation between the limitation and its purpose and second whether there are
less damaging means of achieving the purpose. The effect of these considerations is that
restrictions on human rights will not be justifiable unless there is good reason to do so and
there is no other realistically available way in which the purpose can be achieved without
restricting the right.79 It has to be shown that there is a causal connection between the means
chosen to limit the rights and the objective to be served.80 If the restrictive measures do not
lead to the realisation of the object of the restriction, justification will have failed. In the Mak-
wanyane case, the state argued that the objects to be achieved by the imposition of the death
penalty were to prevent and deter commission of violent crime. The CC’s stand was that whi-
le the death penalty may effectively prevent criminals from committing crime again (since the
criminal is dead) the state had not adduced sufficient evidence to prove that the penalty actu-
ally deterred the commission of crime.81
Though it is not the duty of the court to decree what it may consider as less restrictive
means, it is duty bound to assess the selected means alongside examples of less restrictive
means. ‘A court will … need to know what alternative measures for implementing the objec-
tive were available to the legislators when they made their decisions.’82 In so doing, the court
must not ‘second-guess the wisdom of policy choices made by legislators’,83 but allow for
78 Para 104. See also S v Bhulwana 1996 (1) SA 388 (CC), para 18.
79 Currie & De Waal (note 74) 164.
80 Currie & De Waal (note 74) 182. See also Minister of Home Affairs v National Institute of Crime
Prevention (Nicro) and Others 2004 (5) BCLR 445 (CC). Indeed the proportionality test is being used
in enforcing such provision of the Bill of Rights as affirmative action under section 9(2). The CC has
held that, amongst others, it has to be proved that the affirmative action is reasonably capable of realis-
ing the intended goal of advancing persons disadvantaged by discrimination in the past. See Minister of
Finance v Van Heerden 2004 (11) BCLR 1125 (CC).
81 Para 184.
82 Oakes case (note 68 above) 138.
83 Makwanyane case (note 44 above) para 104.

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some exercise of discretion on the part of the state in selecting the most effective means.84
A similar approach could be employed by the courts in socio-economic rights litigation to
interrogate the effectiveness of the means chosen to realise the rights. The court would have
to investigate whether there is a rational connection between the means chosen and the right
to be realised. The state would have to convince the court that the selected programme or poli-
cy was the most effective means of realising the targeted socio-economic right(s).85 In addi-
tion to this, the court would inquire whether there are less restrictive means of achieving the
state’s purpose without denying socio-economic rights.86 But the court in this process would
be alive to the fact that there are several ways of effectively realising socio-economic rights,
leaving some room for the exercise of discretion on the part of the state − that is, in terms of
choosing amongst various means.87 That notwithstanding, where the means chosen by the
state are demonstrably inadequate and incapable of reasonably realising the right(s), then the
court should make such a declaration. Though at this stage the court may propose what it con-
siders to be the most appropriate means, the choice of means would be left to the state. The
court should, however, be entitled to be prescriptive if, after being given a reasonable oppor-
tunity and time to substitute the condemned means the state fails to do so. This approach
would not only allow the courts to interrogate the effectiveness of the means chosen but
would compel them to give content to the rights. This is because the court could not assess the
effectiveness of the means chosen without an understanding of the goal to be achieved, which
is the realisation of the right.
The Khosa case is an example of how the court can effectively apply this approach in
socio-economic rights litigation, without applying section 36. The case was brought by a
group of permanent residents of Mozambican origin who had been denied access to social
assistance benefits on the basis of their nationality. The Social Assistance Act, No. 59 of 1992
amongst others, set South African nationality as one of the prerequisites to gain access to the
benefits (sections 3 and 4). Non-nationals, supported by some civil society organisations,
based their case on their perceived constitutional right to social assistance, as well as the
rights to life, human dignity and equality. The state argued inter alia that including the appli-
cants in the social assistance scheme would impose a financial burden on the state and dis-
courage self-sufficiency amongst non-nationals.88 The Court rejected this argument on the
ground that there were other means available to the state of ensuring that non-nationals ente-
ring the country were self-sufficient.89 The Court held that once the non-self-sufficient are
granted permanent resident status, then the state has a duty to provide for them. This is irres-
pective of the financial burden that may be imposed on the state.90 The application of the pro-
84 Currie & De Waal (note 74) 184.

85 In making its analysis, the court would rely on the content of the right and the purpose it is intend-
ed to achieve.
86 Liebenberg (note 76 above) 27.
87 This would quell fears that the courts are going to hide under the cloak of choosing the most
effective means to carry out functions that are reserved for the executive and legislative organs of the
state. See Woolman (note 73 above) 12−8.
88 Paras 60 and 63.
89 Para 64.
90 Para 68.

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portionality test in this case lies in the fact that providing social assistance to the applicants
outweighed the financial and immigration concerns.91 The Court said that
The importance of providing access to social assistance to all who live in South Africa
and the impact upon life and dignity that a denial of such access has far outweighs the
financial and immigration considerations on which the State relies. For the same reasons,
I am satisfied that the denial of access to social grants to permanent residents who, but for
their citizenship, would qualify for such assistance does not constitute a reasonable legis-
lative measure as contemplated by section 27(2) of the Constitution.92
The CC in this passage appears to suggest that proportionality has a role to play in conside-
ring whether the measures adopted by the state are reasonable. The Court appears to have
been pushed to the edge to apply this test because of the direct invocation by the applicants of
the right to equality in section 9. The proportionality test has featured strongly in the appro-
ach that the CC has adopted in considering equality cases, particularly when considering
whether discrimination amounts to unfair discrimination. At this stage of dealing with the
rights to equality the court has to consider the impact of the discrimination on the victim. If
the discrimination burdens people who have in the past been victims of discrimination, then
it will be unfair unless the purpose it intends to achieve outweighs the burdens imposed. This
requires a proportionality test which requires asking, amongst other things, whether there are
less burdensome means that could have been adopted.93
Another case where the CC applied the proportionality test is Minister of Public Works and
Others v Kyalami Ridge Environmental Association and Another (Kyalami).94 The facts of
the case are briefly as follows: a group of residents of a township called Alexandra had had
their homes destroyed by flooding following heavy rains. As an immediate relief measure the
government had moved them to a safe piece of land where they stayed in tents and later huts
constructed to accommodate them. However, poor sanitation and overcrowding made the site
far from ideal. In order to ameliorate the conditions of the victims, the government decided to
set up a camp in another location with better houses and sanitation facilities. This move was,
however, resisted by a group of residents adjoining the prison farm on which the camp was to
be established. The residents argued that the authorities had not followed due process pre-
scribed by town planning and environmental protection laws, and had not given the residents
a chance to air their objections. However, their biggest concern appears to have been that by
siting the camp on a prison farm in the neighbourhood it would spoil the character of the
neighbourhood and reduce the value of their properties.95 The Court, however, applied the
proportionality test to uphold the right of access to adequate housing against the right to pro-
perty. The decision in this case shows how the proportionality test can be applied to cases that
invoke purely positive obligations. One cannot, therefore, use the Khosa case to argue that the
91 Liebenberg (note 76 above) 21−22.

92 Para 82 [Emphasis mine].
93 See Harksen v Lane NO 1998 (1) SA 300 (CC); para 53. See President of the Republic of South
Africa v Hugo 1997 (4) SA 1 (CC); Pretoria City Council v Walker 1998 (2) SA 363 (CC); and Nation-
al Coalition for Gay & Lesbians Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).
94 2001 (3) SA 1151 (CC).
95 Paras 93–94.

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test is only applicable in cases invoking negative violations. The Court held that although the
property interests of the Kyalami residents was a factor to consider, it was not the only factor,
there were the interests of the flood victims and their constitutional right of access to adequa-
te housing as well.96 According to the Court,
The fact that property values may be affected by low cost housing development on neigh-
bouring land is a fact that is relevant … it is only a factor and cannot in the circumstances
of the present case stand in the way of the constitutional obligation that government has
to address the needs of homeless people.97
It should be noted that use of this test is the only way by which the undue burden imposed on
litigants in socio-economic rights cases to prove the unreasonableness of the state’s measures
can be shifted to the state. This test compels the state to put before the courts adequate evi-
dence, allowing them to make informed decisions. Indeed, the CC in the Khosa case held that
the state had an evidential burden to put all relevant information before the court. This is espe-
cially so in cases where court orders would have budgetary implications.98
D. C ONCLUSION
The test used in the application of section 36 would go a long way in strengthening the reaso-
nableness review test as used by the CC in the adjudication of socio-economic rights. Howe-
ver, successful use of this test would require that the rights be given content by definition of
their substantive content, something the CC has yet to do. The content of the rights would be
determinative of the goal towards which the state is working and would make it easier for the
court to test the reasonableness of the means chosen to realise the rights. The state would have
to prove that the means chosen are capable of realising the rights in a rational manner. Where
the chosen means are demonstrated to be inadequate, then the court would proclaim them as
such and require the state to come up with another plan. If the state fails to do so, the court may
be justified in proposing to the state what it thinks to be the most appropriate means of reali-
sing the rights.
96 Para 106.
97 Para 107.
98 Para 19.

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I SLAMSKE EKTESKAP I EN SEKULÆR KONTEKST :

N OEN SØRAFRIKANSKE EKSEMPLER
AV SINDRE BANGSTAD*
Summary: The ANC has pledged to recognise Islamic marriages in South Africa. The South
African Law Commission issued a proposal for a law on Islamic marriages in 2003. The pro-
posal stands in a contested relationship with the guarantees for gender equality under the
Constitution of 1996, and CEDAW 1981. In exploring the proposed recognition of Islamic
marriages from the point of view of a few underprivileged Muslim women and their experi-
ence of the institution of polygyny, the articles argues that the proposed law is based on the
construction of an idealised legal subject adhering to Muslim middle-class normativities.
Keywords: Muslims in South Africa, islamic marriages, Muslim Personal Law, the South
African Constitution, CEDAW.
A. I NNLEDNING
Femten år etter at Nelson Mandela under et folkemøte i den overveiende muslimske bydelen
Bo-Kaap i Cape Town i 1992 lovet anerkjennelse av islamske ekteskap dersom ANC skulle
komme til makten, er disse fremdeles ikke formelt anerkjent under sørafrikansk lov. Denne
artikkelen utforsker problemstillinger knyttet til islamske ekteskap og deres anerkjennelse i et
multikulturelt samfunn med utgangspunkt i erfaringene til et utvalg av muslimske kvinner fra
underprivilegerte områder i Cape Town, som alle har det til felles at de har erfaring fra poly-
gyne ekteskap. Litteraturen om muslimsk familielovgivning (Muslim Personal Law, MPL) i
Sør-Afrika har vært dominert av tekstbaserte studier – som har den utilsiktede effekt å margi-
nalisere de konkrete og empiriske erfaringene med institusjonen polygyni som muslimske
kvinner i Sør-Afrika har opparbeidet seg i løpet av de over tre hundre år det har vært muslimer
i Sør-Afrika. Polygyni eller ‘flerkoneri’ refererer i antropologisk språkbruk til sosiale og eller
religiøse systemer hvor menn har den unilaterale retten til å inngå ekteskap med flere enn én
kvinne på samme tid.1 Det er underprivilegerte muslimske kvinners erfaringer med polygyni
i Cape Town, Sør-Afrika denne artikkelen vil dreie seg om. Debatten omkring islamske ekte-
skap, polygyni og grunnlovsgarantiene for likebehandling mellom kjønnene i Sør-Afrika
* Sindre Bangstad (f. 1973) er utdannet sosialantropolog, med en PhD fra Radboud Universite-
tet/The International Institute for the Study of Islam in the Modern World (ISIM) i Nederland (2007). E-
post: s.bangstad@gmail.com.
1 Charlotte Seymour-Smith: Macmillan Dictionary of Anthropology (London: Macmillan 1986)
228.
148 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER – VOL. 26, NR 2, S. 148–162. ISSN 1503-6480
NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 149
etter apartheid må sees i lys av de generelle politiske debattene om multikulturalisme og reli-

giøse og kulturelle minoriteters rettigheter i Sør-Afrika. Denne debatten ble også aktualisert
av den såkalte Recognition of Customary Marriages Act av 1998, hvorunder svarte sørafrika-
nere som ønsker å inngå ekteskap – herunder polygyne ekteskap – basert på sedvanelovgiv-
ning [customary law] for første gang fikk adgang til dette under offisiell sørafrikansk lovgiv-
ning. Det uavklarte forholdet mellom grunnlovsgarantiene for likestilling mellom kvinner og
menn, forpliktelsene den sørafrikanske post-apartheidstaten har under CEDAW (Convention
for the Elimination of All Forms of Discrimination Against Women, 1981) og ulike familie-
lovssystemer, er derfor langt fra unikt for muslimer i Sør-Afrika. All den stund det forelig-
gende lovutkastet om islamske ekteskap og relaterte spørsmål er basert på ideelle religiøst
baserte forestillinger om hva slike ekteskap innebærer, som er utbredt blant muslimske reli-
giøse ledere og muslimske fagfolk med middelklassebakgrunn, og hvordan de juridiske sub-
jektene i slike ekteskap ideelt sett opptrer, innreflekterer det derfor i manglende grad de fak-
tiske sosiale rammene for polygyne ekteskap i et samfunn karakterisert av ekstrem sosial og
økonomisk ulikhet og patriarkalske normer. Det argumenteres for at lovreguleringer bare i
begrenset grad kan determinere utenom-juridiske kontekster og atferd, og at nettopp dette
fremstår som noe av svakheten ved enkelte uttrykk for prosedural liberalisme, som konsen-
trerer det meste av oppmerksomheten i kampen for likestilling mellom kjønnene i Sør-Afrika
omkring lovreform snarere enn sosioøkonomiske endringer. Ethvert demokrati inkluderer og
ekskluderer,2 og i Sør-Afrika er det spesielt underprivilegerte kvinner som rammes av pro-
sesser som gjelder ekskludering og marginalisering. Med underprivilegerte kvinner menes
her kvinner som lever i områder av Cape Town hvor arbeidsledigheten er høy og hvor mange
lever på eller nær fattigdomsgrensen. Disse kvinnene lever under forhold som innebærer at de
har begrenset tilgang til ressurser som høyere utdanning, til politi- og rettsvesen osv.3 Lov-
forslaget om anerkjennelse av islamske ekteskap og relaterte spørsmål vil derfor sannsynlig-
vis ikke kunne tilby tilstrekkelig beskyttelse for muslimske kvinner i underprivilegerte områ-
der, hvis erfaringer med polygyne ekteskap ofte står i motstrid til de middelklassespesifikke
moralitetene som ligger til grunn for lovforslaget.
B. S ØRAFRIKANSK MULTIKULTURALISME
Sør-Afrika er et pluralt samfunn som er sterkt fragmentert med henblikk på forståelser av ver-
dier og normer. Det alt overveiende liberale og sekulære rammeverket til den nye sørafrikan-
ske grunnloven og rettighetserklæringen av 1996 er imidlertid forankret i ideer om universa-
2 For en utmerket analyse av dette spørsmålet i konteksten av et nyliberalt, afrikansk nasjonalistisk
og teknokratisk Sør-Afrika etter apartheid, se Ivor Chipkin: Do South Africans Exist? Nationalism,
Democracy and the Identity of ‘The People’ (Johannesburg: Wits University Press 2007).
3 Utviklingsøkonomen Amartya Sens teorier om fattigdom fokuserer på de mulighetsbegrensning-
er for substansiell frihet som ligger i materiell fattigdom. Det er et slikt fattigdomsbegrep som legges til
grunn i denne artikkelen. Se Amartya Sen: Development as Freedom (New York: Anchor Books 1999).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 150
le menneskerettigheter, ideer som underordner religiøs praksis statlig autoritet.4 Den uttryk-
ker på den ene siden globaliseringen av det rettsantropologen Richard A. Wilson har karakte-
risert som ‘menneskerettighets-snakk’ på 1990-tallet.5 Men grunnloven av 1996 kan også
sees på som et forsøk på å finne et balansepunkt mellom vektleggingen av universelle og indi-
viduelle menneskerettigheter og anerkjennelsen av faktisk eksisterende religiøs og kulturell
pluralisme i Sør-Afrika.6 Rettigheter som er spesifikke for bestemte etniske, kulturelle eller
religiøse grupper i Sør-Afrika vurderes dermed ikke med nødvendighet som å stå i motstrid
til grunnloven av 1996. Avsnitt 15 (3) av grunnloven åpner for anerkjennelse av MPL og
andre og tilsvarende familielovsystemer og/eller sedvanelovgivning [customary law]. Det er
imidlertid verdt å merke seg at grunnloven ikke garanterer rettigheter til slik anerkjennelse.7
Ledere for ulike etniske og religiøse minoriteter i post-apartheid Sør-Afrika har anvendt den
åpningen for juridisk pluralisme som grunnlovens bestemmelser tilbyr til å argumentere for
statlig anerkjennelse av systemer for familielov og sedvanelov. MPL representerer derfor
bare et særtilfelle av de generelle utfordringer med hensyn til ivaretakelse av menneskeret-
tigheter og likestillingsprinsipper som multikulturelle samfunn som tar sikte på å implemen-
tere multikulturalisme langs liberale og sekulære akser står overfor.
I moderne tid har den forestilte ‘tilbakevendingen til shari‛a’ ofte blitt betraktet som et sen-
tralt anliggende for muslimer verden over, siden det representerer et potent symbol på en uav-
hengig identitet og alternativer til antatte ‘vestlige’ modeller.8 Det var derfor på mange måter
forutsigbart at MPL skulle bli et nøkkelsymbol for muslimer i post-apartheid Sør-Afrika.
Men slike krav innebærer ofte et paradoks, siden selve defineringen og begrensningen av sha-
ri‛a til en lov om personlig status er utfallet av en sekulariseringsprosess med sekulariserende
og privatiserende effekter.9 Den teleologiske og preskriptive orienteringen i mye akademisk
litteratur om moderne juridiske reformer i den muslimske verden har ofte innebåret at moder-
ne kodifisering og reform av MPL er blitt oppfattet som synonymt med en utvidelse av mus-
limske kvinners rettigheter, men dette er ikke nødvendigvis tilfellet.10
4 Ebrahim Moosa: “Tensions in legal and religious values in the 1996 South African Constitution”,
i Mahmood Mamdani (red.): Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics
of Rights and Culture (New York: St. Martin’s Press 2000) 132.
5 Richard A. Wilson: The Politics of Truth and Reconciliation in South Africa: Legitimizing the
Post-Apartheid State (Cambridge: Cambridge University Press 2001).

6 John L. og Jean Comaroff: “Reflections on Liberalism, Policulturalism & ID-ology: Citizenship
& Difference in South Africa”, i Steven L. Robins (red.): Limits to Liberation After Apartheid: Citizen-
ship, Governance & Culture (Oxford: James Currey 2005) 38.
7 Najma Moosa: “Muslim Personal Laws Affecting Children: Diversity, Practice and Implications
for a New Children’s Code for South Africa” (1998) 115 The South African Law Journal 482.
8 Ziba Mir-Hosseini: Marriage on Trial: Islamic Family Law in Iran and Morocco (2. utg., Lon-
don: I.B. Tauris 2000) 10.

9 Talal Asad: Formations of the Secular: Christianity, Islam, Modernity (Stanford, California:
Stanford University Press 2003) 230–31.

10 Amira El-Azhary Sonbol: “History of Marriage Contracts in Egypt” (2005) 3 Hawwa 159–96.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 151
Det eksisterer allerede en omfattende mengde litteratur om aspekter ved MPL i Sør-Afri-
ka innen jus og islamske studier.11 Med få unntak forstås MPL og den mulige anerkjennelse
av aspekter av MPL i denne litteraturen i henhold til religiøse og juridiske diskurser, og den-
ne avgrensningen genererer bestemte tausheter. Muslimers faktiske erfaringer med islamske
ekteskap og relaterte spørsmål refereres det bare unntaksvis til.12 Den religiøse diskursen til
konservative ’ulama’er (religiøse ledere), som representerer hovedstrømningen blant musli-
mer i Sør-Afrika, tenderer til å fremstille shari‛a (‘islamsk lov’) som et sett av absolutte og
ufravikelige normer, og MPL som nokså statisk og frosset i tid. Det er innlysende at det er
enklere å argumentere for anerkjennelse av aspekter av MPL dersom komplekse spørsmål
knyttet til representasjonen av muslimers ofte motstridende ’interesser’, og den interne nor-
11 For noen fremtredende eksempler, se Waheeda Amien: “Overcoming the conflict between the
right to religious freedom and women’s right to equality – a South African case study of Muslim mar-
riages” (2006) 28 Human Rights Quarterly 729–754; Ebrahim Moosa: Application of Muslim Person-
al & Family Law in South Africa: Law, Ideology And Socio-Political Implications. Upublisert master-
gradsavhandling, Department of Religious Studies, University of Cape Town, Cape Town (1988);
Ebrahim Moosa: “Tensions in legal and religious values in the 1996 South African Constitution”, i Mah-
mood Mamdani (red.): Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of
Rights and Culture (New York: St. Martin’s Press 2000) 121–35; Ebrahim Moosa: “Shaping Muslim
Law In South Africa: Future And Prospects”, i Wilfried Schärf og Daniel Nina (red.): The Other Law:
Non-State Ordering in South Africa” (Cape Town: Juta Law 2001) 121–47; Najma Moosa: A Compar-
ative Study of the South African And Islamic Law of Succession And Matrimonial Property With Espe-
cial Attention To The Implications For The Muslim Woman. Upublisert M. L. avhandling, Faculty of
Law, University of the Western Cape, Bellville (1991); Najma Moosa: “The Interim Constitution And
Muslim Person Law”, i Sandra Liebenberg (red.): The Constitution of South Africa From A Gender Per-
spective (Cape Town: David Philip Publishers 1995) 167–84; Najma Moosa: An Analysis of The
Human Rights And Gender Consequences of The New South African Constitution And Bill of Rights
With Regard To The Recognition And Implementation Of Muslim Personal Law (MPL). Upublisert D.
L. avhandling, Faculty of Law, University of the Western Cape, Bellville (1996); Najma Moosa: “Mus-
lim Personal Laws Affecting Children: Diversity, Practice and Implications for a New Children’s Code
for South Africa” (1998) 115 The South African Law Journal 479–92; Christa Rautenbach: “Muslim
Personal Law And The Meaning of ’Law’ In The South African And Indian Constitutions” (1999) 2
Potchefstroom Electronic Law Journal 1–19.
(http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/99v2raut.pdf). Besøkt 5.
februar 2006; Christa Rautenbach: “The Recognition Of Muslim Marriages in South Africa: Past, Pres-
ent And Future” (2000) 17 Recht van de Islam 36–89; Christa Rautenbach: “Some Comments on the
Current (and Future) Status of Muslim Personal Law in South Africa” (2004) 7 Potchefstroom Elec-
tronic Law Journal 1–34.
(http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/2004_2__rautenbach_a
rt.pdf). Besøkt 5. februar 2006; Abdulkader Tayob: “Muslim Personal Law – Women’s Experiences
And Perspectives” (2003) 6 Annual Review of Islam in South Africa 30–34; Abdulkader Tayob: “The
Struggle Over Muslim Personal Law In A Rights-Based Constitution. A South African Case Study”
(2005) 22 Recht van de Islam 1–16.
12 Men se Tayob (2003) for et unntak.

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mative pluralismen i islamske tradisjoner (ikhtilaf), i den grad det er mulig blir unngått.13 Dis-
kursen om MPL er i stor grad basert på juridiske abstraksjoner, og bringer i sterk grad de fak-
tiske dynamikkene i ekteskapsrelasjoner til taushet.14 Muslimer i Cape Town har faktisk
århundrers praktisk erfaring i å forholde seg til for eksempel polygyni. Eksempelvis vet vi av
historiske kilder at en minoritet av velstående muslimer i Cape Town levde i polygyne ekte-
skap på 1800-tallet. Det er imidlertid viktig å understreke at tenkningen om, og holdningen
til, polygyne ekteskap blant muslimer i Cape Town historisk sett ikke har utviklet seg isolert
fra det sørafrikanske samfunnet for øvrig. Blant mine informanter var det mange som kunne
huske besteforeldre som levde i slike ekteskap, men det var langt færre som hadde foreldre
som levde i slike ekteskap. På 1950- og 60-tallet stod sekulære moderniseringsideologier
sterkt blant lokale muslimer,15 et stort antall muslimske kvinner tok arbeid i den lokale tek-
stilindustrien, og polygyni ble etter alt å dømme langt mindre vanlig.
Muslimer utgjør en relativt liten minoritet i Sør-Afrika. De utgjorde ca. 654 000 av en sam-
let befolkning på 44,8 millioner, eller 1,4 prosent av befolkningen i 2001.16 I Cape Town var
anslagsvis ti prosent av befolkningen på 2,8 millioner i 2001 muslimer. Det var til Cape Town
de første muslimske slavene og politiske fangene fra ulike steder rundt Det indiske hav ble
brakt av nederlandske kolonister etter 1658, og det var også her de første moskeene i Sør-
Afrika ble reist på begynnelsen av 1800-tallet (religionsfrihet ble erklært i 1804). 86 prosent
av Cape Towns muslimer var klassifisert som fargede i 2001.17 I kjølvannet av britenes intro-
duksjon av indiske kontraktarbeidere i KwaZulu-Natal fra 1860, ankom muslimer fra det
nordlige India som frie handelsmenn i Cape Town mot slutten av det 19. århundre.18 Musli-
mer i Cape Town er for det meste sunnier, og har en nominell tilknytning til shafi‘i lovskolen
(madhab). Religiøse dekreter utstedt av det dominerende Muslim Judicial Council (MJC, eta-
blert 1945, kontrollerer anslagsvis 120 av 145 moskeer i og rundt Cape Town) kombinerer
imidlertid ofte shafi‘i og hanafi fiqh (islamsk lovfortolkning) på en eklektisk måte. Muslimer
i Cape Town ansees ofte å ha et mer liberalt og egalitært syn på kjønnsrelasjoner enn musli-
mer i andre deler av Sør-Afrika.19 Strikt kjønnssegregering er uvanlig; polygyne ekteskap
13Khaled Abou El Fadl: Speaking in God’s Name: Islamic Law, Authority and Women (Oxford:
Oneworld 2001) 170–72.
14 Mir-Hosseini op.cit. 119.
15 Dette ga seg blant annet uttrykk i fremveksten av populære avismedier som den nå nedlagte Cape
Herald som rettet seg mot den urbane lavere middelklassen blant fargede, og hvor unge muslimske
kvinner regelmessig figurerte som bikinimodeller [sic]. Jeg er Maheerah Gamieldien takk skyldig for å ha
gjort meg oppmerksom på fremstillingen av muslimske kvinner i disse mediene på 1950- og 60-tallet.
16 Goolam Vahed og Shamil Jeppie: “Multiple Communities: Muslims In Post-Apartheid South
Africa”, i John Daniel et al. (red.): State Of The Nation: South Africa 2004–2005 (Cape Town: Human
Sciences Research Council Press 2005) 252.
17 Simon Bekker og Anne Leildé: Faith in Cape Town: Identity, Cooperation and Conflict. Mono-
grafi nr. 6 (Cape Town: Institute for Justice and Reconciliation 2003) 7.
18 Surendra Bhana og Joy B. Brain: Setting Down Roots: Indian Migrants in South Africa
1860–1911 (Johannesburg: Witwatersrand University Press 1990) 121–27.

19 Abdulkader Tayob: “Southern Africa”, i Ingvar Svanberg og David Westerlund (red.): Islam
Outside The Arab World (Richmond, Surrey: Curzon Press 1999) 113.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 153
unntaket snarere enn regelen; inter-religiøse ekteskap er, spesielt blant underprivilegerte mus-
limer i Cape Towns townshiper og uformelle bosetninger, utbredt blant begge kjønn.20 Mus-
limske kvinner deltar i utstrakt grad i arbeidslivet. Sosiale ulikheter mellom muslimer i Cape
Town er markante, og har tiltatt med økende generell arbeidsledighet blant fargede etter apar-
theids fall.
Når det kan hevdes at sørafrikanske muslimer har århundrers praktiske erfaringer å trekke
på med hensyn til polygyni, er det fordi polygyni, i motsetning til hva tilfellet var i det kristne
Europa, hvor det for de fleste praktiske formål ble ansett som synonymt med bigami og der-
for som straffbart, aldri formelt ble forbudt for ikke-europeiske befolkningsgrupper i de kolo-
niale sørafrikanske provinsene (Cape og senere Natal).21 Historiske kilder indikerer at flere
velstående ‘frie svarte’ (dvs. ikke-slaver) levde i polygyne ekteskap i Cape Town på 1800-tal-
let. Eksempelvis vet vi at den velstående muslimske forretningsmannen Gastordien eller
‘Carol Pilgrim,’ den første muslimen fra Cape Town som dro på pilgrimsferd til Mekka i
1834–38, levde i et polygynt ekteskap.22 Polygyne ekteskap synes ikke å ha vært spesielt
utbredt blant muslimer i Cape Town i moderne tid, men det faktum at mange av mine infor-
manter hadde erindringer om bestefedre som levde i polygyne ekteskap, indikerer at det at
koner og barn i slike ekteskap ikke hadde noen form for formell rettighetsbeskyttelse under
sørafrikansk lov under segregeringstiden (1894–1948) og apartheid (1948–90), ikke er blitt
ansett som noe hinder for inngåelse av slike ekteskap.
Løftene om å anerkjenne islamske ekteskap var utvilsomt ledd i en politisk strategi fra
ANCs side for å tiltrekke seg muslimske velgere i provinser med et betydelig antall muslim-
ske velgere (Western Cape og KwaZulu-Natal) hvor utfallene av demokratiske valg for ANCs
del har vært høyst usikre siden 1994.23 Det er imidlertid klart at andre velgergrupper har langt
større betydning for ANC enn sørafrikanske muslimer. Sedvaneekteskap blant svarte sørafri-
kanere er allerede blitt anerkjent under sørafrikansk lov under Recognition of African Cust-
omary Marriages Act 120 av 1998, og islamske ekteskap er fortsatt i noe av et politisk limbo.
Dette må kunne sies å reflektere en realpolitikk fra det statsbærende og hegemoniske ANCs
side, som innebærer at multikulturelle krav av betydning for en rural og svart afrikansk
befolkning med velgermessig betydning for ANC gis forrang foran kravene til en hovedsake-
lig farget og sørafrikansk indisk muslimsk befolkning.
C. P OLYGYNI , ISLAM OG MUSLIMER I C APE TOWN
De fleste islamske fortolkninger gir muslimske menn adgang til å inngå ekteskap med inntil
fire hustruer på én og samme tid under bestemte vilkår. Islamske ekteskap er i denne sammen-
20 Sindre Bangstad: “When Muslims Marry Non-Muslims: Marriage as Incorporation in a Cape

Muslim Community” (2004) 15 Islam and Christian-Muslim Relations 349–64.
21 Rautenbach (2000) 45.
22 Jackie Loos: Echoes of Slavery: Voices from South Africa’s Past (Cape Town: David Philip Pub-
lishers 2004).
23 I Western Cape og KwaZulu-Natal tapte ANC de første demokratiske valgene i 1994 til hen-
holdsvis New Nationalist Party (NNP) og Inkatha Freedom Party (IFP).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 154
hengen ekteskap som er inngått i henhold til religiøse riter. Sørafrikanske muslimer har his-
torisk sett måttet registrere sine monogame ekteskap sivilt, dersom de har ønsket lovmessig
gyldighet av ekteskapene sine. En rekke sørafrikanske muslimer har imidlertid unnlatt å
registrere sine monogame eller polygyne islamske ekteskap som en formell protest mot den
manglende anerkjennelsen av islamske ekteskap – hvilket innebærer at de og deres ekteskap-
spartnere samt barn blant annet er ekskludert fra ordinære sivile rettigheter i forbindelse med
f.eks. skilsmisse og arv.
Bakgrunnen for at islamske ekteskap aldri har blitt anerkjent som gyldige under koloniti-
den, segregeringstiden og apartheid var nettopp at slike ekteskap ble betraktet av myndighe-
tene som enten de facto eller potensielt polygyne, og dermed som i motstrid til de overveiende
kristne boni mores (‘gode verdier’) som sørafrikansk ekteskapslovgivning hevdet å basere
seg på.24 Heteroseksuelle ekteskap25 inngått av sørafrikanere er i det vesentlige regulert av
The Marriage Act av 1961, som ble innført under apartheid, og reflekterer heteronormative,
monogame og konservative kristne forestillinger om hva et ekteskap er. Det statlig initierte
Muslim Personal Law Board (MPLB) brøt sammen etter åtte måneders virke i 1994, etter at
‘ulama’-organisasjonene hadde insistert på at muslimer burde kreve unntak fra rettighetser-
klæringens likestillingskrav i interimgrunnloven av 1994, noe såkalte progressive muslimske
grupperinger og muslimske kvinneaktivister i rådet motsatte seg.26 I 2000 ble det så etter ini-
tiativ fra ANC-regjeringen nedsatt en prosjektkomité under overoppsyn av den sørafrikanske
lovkommisjonen (South African Law Commission, SALC). Denne komiteen bestod av åtte
medlemmer, hvorav to var kvinner, og hadde blant annet bakgrunn fra ‘ulama’-organisasjo-
nene, advokatstanden og det sørafrikanske parlamentet. Det er denne komiteen som etter to
høringsrunder og offentlige konsulteringer på publiserte lovforslag har levert det endelige
lovutkastet27 som per 30.05.2008 ennå ikke er blitt oversendt parlamentet.
Polygyni er et av de mest omstridte temaene med hensyn til anerkjennelse av aspekter av
MPL, og førte til intense debatter i komiteen. Opplysninger fra medlemmer i komiteen tyder
på at det hovedsakelig var ‘ulama’ene som fremmet kravet om anerkjennelse av polygyni i
komiteen.28 Dersom en lov om MPL skal ratifiseres av parlamentet, kreves det at den er i sam-
svar med kravene om likestilling mellom kjønnene i rettighetserklæringen i den sørafrikan-
ske grunnloven av 1996.29 Rautenbach ser polygyni som grunnlovsstridig, men det faktum at
polygyne ekteskap ble anerkjent under Recognition of African Customary Marriages Act 120
av 1998 innebærer at lovgivende myndigheter i Sør-Afrika ikke nødvendigvis ser den samme
konflikten på dette punktet som Rautenbach gjør, eller i det minste ikke er rede til å ta de prak-
24 Albie Sachs: “The Future of Muslim Family Law in South Africa”, i Albie Sachs (red.): Advanc-
ing Human Rights in South Africa (Cape Town: Oxford University Press 1992) 83.
25 Civil Union Act 17 av 2006 anerkjenner ekteskap og partnerskap for homoseksuelle, men side-
stiller ikke slike ekteskap med heteroseksuelle ekteskap med hensyn til rettigheter.
26 Moosa (2001) 128.
27 South African Law Commission (SALC): Islamic Marriages And Related Matters. Report (Pre-
toria: South African Law Commission 2003). Tilgjengelig på

http://wwwserver.law.wits.ac.za/salc/report/pr59report.pdf Lastet ned 15.01.06.
28 Intervju med Prof. Najma Moosa, University of the Western Cape, Bellville 03.03.2005.
29 Rautenbach (1999) 3.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 155
tiske konsekvensene av et slikt syn. En mer grunnleggende utfordring er imidlertid CEDAW

(FNs Convention on the Elimination of All Forms of Discrimination Against Women, 1981)
som Sør-Afrika signerte i 1993. CEDAW er i prinsippet er bindende for medlemsland. I hen-
hold til avsnitt 39 (1) b av grunnloven av 199630 er sørafrikanske domstoler på alle nivåer for-
pliktet til å ta CEDAW i betraktning i behandlingen av saker som har tilknytning til rettig-
hetserklæringen. Avsnitt 16 av CEDAW krever – i likhet med FNs Menneskerettighetserklæ-
ring av 1948 – at kvinner og menn har samme rettigheter til ekteskap og skilsmisse.31
CEDAW inneholder ikke et eksplisitt forbud mot polygyne ekteskap, men både CEDAW-
komiteen og andre menneskerettighetsorganer i FN har kommet til at avsnitt 16 må kunne
anses som å forby polygyni. Muslimske lands omfattende reservasjoner mot CEDAW har da
også vært sentrert om avsnitt 16,32 og dette indikerer at mange muslimske stater33 – og mange
troende og praktiserende muslimer med dem – har sett en klar konflikt knyttet til mannlige
unilaterale rettigheter til polygyni og skilsmisse og CEDAWs avsnitt 16. I henhold til klas-
siske fortolkninger av shari‘a er muslimske kvinners og menns rettigheter til ekteskap og
skilsmisse ganske enkelt ulike,34 selv om faktisk islamsk rettspraksis i mange tilfeller bidrar
til en utvidelse av muslimske kvinners rettigheter.35
Domstoler i post-apartheid Sør-Afrika har imidlertid i saker som Daniels vs. Campbell
2003, Amod vs. Road Accident Fund 2000 og Rylands vs. Edross 1997 tolket grunnloven av
1996 dit hen at rettigheter for arveløse enker og skilte hustruer fra monogame islamske ekte-
skap inngått utelukkende under religiøse riter skal innvilges. Potensielt polygyne ekteskap er
blitt vurdert som juridisk bindende og gyldige i påvente av anerkjennelse av MPL.36 Khan vs.
Khan 2005 var den første rettssaken i sørafrikansk historie som fastslo at det eksisterer en juri-
disk plikt til understøttelse mellom ekteskapspartnere i et polygynt ekteskap inngått av mus-
limer i henhold til religiøse riter.37 Dertil kommer at nyere sørafrikansk lovgivning (Births
30 Waheeda Amien, personlig korrespondanse, 05.10.2005.

31 Ann Elizabeth Mayer: Islam And Human Rights: Tradition And Politics (3. utg. Boulder, Col-
orado: Westview Press 1999) 124.

32 Mayer op.cit. 125. For en mer utførlig behandling, se Ann Elizabeth Mayer: “Internationalizing
the Conversation on Women’s Rights: Arab Countries Face the CEDAW Committee”, i Yvonne Y. Had-
dad og Barbara F. Stowasser (red.): Islamic Law and the Challenges of Modernity (Walnut Creek:
Altamira Press 2004) 133–60.
33 En muslimsk stat er i denne sammenheng en stat hvor muslimer er i flertall i befolkningen, uav-
hengig av hvorvidt lovgivningen er inspirert av shari‘a eller ikke.

34 Knut Vikør: Between God and the Sultan: A History of Islamic Law (Oxford: Oxford Universi-
ty Press 2005) 309.

35 For antropologiske studier fra henholdsvis Indonesia og Malaysia som påviser dette, se John
Bowen: Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge:
Cambridge University Press 2003) og Michael G. Peletz: Islamic Modern: Religious Courts and Cul-
tural Politics in Malaysia (Princeton: Princeton University Press 2002).
36 Tayob (2005), 10.
37 Wesahl Domingo: “Muslim Personal Law in South Africa: An Overview of the Draft Muslim
Marriages Bill”, paper presentert på The International Symposium on Islamic Civilization in Southern
Africa, University of Johannesburg 01–03.09.2006, 7.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 156
and Death Registration Amendment Act 40 av 1996) anerkjenner ekteskap inngått i henhold
til enhver religions riter for det formål å registrere eventuelle barn av et slikt ekteskap som
legitime.38 Sakene som har involvert MPL som er blitt behandlet av sørafrikanske domstoler
etter 1996 har i all hovedsak vært saker som involverer horisontale snarere enn vertikale ret-
tigheter (dvs. rettigheter mellom individer, og ikke mellom individer og staten), og monoga-
me snarere enn polygyne ekteskap.39 Spørsmålet om hvorvidt innvilgede rettigheter til mus-
limske kvinner i monogame ekteskap inngått under religiøse riter også skal inkludere mus-
limske kvinner i polygyne ekteskap, er i praksis overlatt til lovgiverne.40 SALCs lovforslag
om islamske ekteskap står med andre ord i et potensielt konfliktfylt forhold til rettighetser-
klæringen i grunnloven av 1996 så vel som CEDAW. Konflikten er tydeligst knyttet til poly-
gyne ekteskap. Selv muslimske kvinneaktivister som er prinsipielle motstandere av polygy-
ni, vedgår at en midlertidig anerkjennelse av polygyni kan være nødvendig for å sikre sør-
afrikanske muslimske kvinner som allerede lever i slike ekteskap adekvat juridisk beskyt-
telse,41 så det er ikke et enkelt sammenfall mellom prinsipiell støtte til likestilling og polygy-
nimotstand.
I motstrid til de historiske kravene til muslimske religiøse ledere i Sør-Afrika, foreslår
SALCs lovutkast anerkjennelse og regulering av islamske ekteskap, og ikke MPL per se.
Lovutkastet kan best beskrives som et kompromiss mellom et potensielt motstridende religi-
øst og sekulært rammeverk. Omformingen av elementer av shari‛a til statutorisk lov innebæ-
rer i seg selv en sekulariseringsprosess, noe de sørafrikanske ‘ulama’er som avviser selve ide-
en om å underordne islamske ekteskap et sekulært rammeverk later til å ha forstått. En slik
avvisning på prinsipielt grunnlag kommer klarest til uttrykk i arbeidene til Abdul Kariem Tof-
far,42 en ‘alim (religiøst skriftlærd) i Cape Town med tilknytning til den islamistisk orienter-
te Islamic Unity Convention (IUC).43 Toffar hevder ganske enkelt at sekulær lovgivning er
uforenlig med – og i direkte motstrid til – shari‛a, og at ethvert forsøk på sammenføring
innenfor rammene av lovgivning i et ikke-muslimsk land som Sør-Afrika derfor på prinsipi-
elt grunnlag må avvises fra muslimsk hold.
Men det er også verdt å merke seg at lovutkastet overhodet ikke refererer eksplisitt til inter-
nasjonal lovgivning på menneskerettighets- og likestillingsfeltet, noe som indikerer i hvilken
grad ‘ulama’ene i prosjektkomiteen har maktet å sette rammer for hva som konstituerer rele-
38 Moosa (1996) 42.

39 Kfr. Amien op.cit.
40 Rautenbach (2004) 10, 15.
41 Intervju med Waheeda Amien, National Association for Democratic Lawyers (NADEL), Cape
Town 19.12.2004.
42 Abdul Kariem Toffar: Administration Of Islamic Law of Succession, Adoption, Guardianship &
Endowments in South Africa. Upublisert doktorgradsavhandling, Department of Arabic and Islamic

Studies, University of KwaZulu-Natal, Durban (1999); Abdul Kariem Toffar: “The Quranic Constitu-
tion And Its Expression In Law – A Legal Dilemma in A Non-Muslim State” (2001) 2 ICOSA Occa-
sional Journal 1–20.
43 Sammenfallet i synspunkter på dette mellom Toffar og IUC fremgikk klart av mitt intervju med
den radikale islamisten og tidligere anti-apartheidaktivisten Achmat Cassiem, forgrunnsfigur for IUC,
Cape Town 10.07.2005.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 157
vante juridiske og religiøse parametere i fortolkningen av islamske ekteskap. Lovutkastet

gjør utstrakt bruk av moderne reformistiske prinsipper som takhayyur (teologisk eklekti-
sisme, som innebærer at en på bestemte punkter velger å følge forordningene til en annen lov-
skole (madhahib) enn den en selv tilhører),44 og talfiq, prinsippet om at en kan kombinere for-
tolkningene til ulike lovskoler for å formulere en enkelt lovregulering.45 Lovutkastet har til
hensikt å begrense utbredelsen av polygyni ved å regulere praksisen. Partnerne i et muslimsk
ekteskap skal i henhold til lovutkastet frivillig kunne velge om de vil ha ekteskapet regulert
av loven eller av sivile ekteskapsforordninger. Minimum ekteskapsalder er satt til 18 år. Poly-
gyne ekteskap som er inngått før loven trer i kraft, foreslås retroaktivt anerkjent. Det foreslås
at islamske ekteskap inngått under loven reguleres enten av en kontrakt som ekteskapspart-
nerne selv formulerer eller av en standardisert kontrakt, og at den offentlig godkjente ekte-
skapsfunksjonæren som utfører ekteskapsseremonien plikter å informere ekteskapspartnerne
om denne retten).46 En slik kontrakt kan da selvsagt også prinsipielt sett inneholde forord-
ninger om at dersom mannlig ekteskapspartner senere skulle inngå ekteskap av polygyn art,
vil dette kunne anses som tilstrekkelig grunn til unilateral oppløsning av ekteskapet (fasakh)
fra den første hustruens side.47 I henhold til eksisterende praksis så vel som islamske lovfor-
tolkninger blant shafi‘i-muslimer i Cape Town, er ikke den første hustruens samtykke til et
polygynt ekteskap nødvendig. Men lovforslaget anser ikke at ekteskapsfunksjonærens mang-
lende opplysning om retten til en ekteskapskontrakt skal ha konsekvenser for ekteskapets gyl-
dighet.48 Det foreslås en bot tilsvarende ZAR 5000,– (ca. NOK 4387,– i 2006) for en ekte-
skapsfunksjonær som unnlater å opplyse om denne retten og som blir påtalt for dette. Mus-
limske menn som ønsker å inngå et polygynt ekteskap, vil i henhold til lovforslaget måtte
søke rettens tillatelse til dette. Dommere som presiderer over slike saker skal ikke nødven-
digvis være muslimer (gitt at bare 1,4 prosent av befolkningen er muslimer ville dette knapt
ha vært realiserbart), men de skal assisteres av to kvalifiserte muslimer som skal ha “spesiali-
sert kunnskap om islamsk lov”, og derfor etter alt å dømme i de fleste tilfeller vil være mann-
lige ‘ulama’er. Domstolene kan innvilge retten til å inngå et polygynt ekteskap under vilkår
av at mannen har (1) tilstrekkelige [sufficient] midler til å forsørge samtlige koner, (2) at en
hensikt om å behandle hustruene likt [equitably] er blitt demonstrert og (3) at ekteskapet ikke
vil være til ulempe [prejudice] for eksisterende hustruer.49 Lovutkastet krever ikke tilslutning
til et polygynt ekteskap fra eksisterende hustru, og heller ikke lik forsørgelse av barna til hus-
truene i et slikt ekteskap. Med bakgrunn i en antropologisk forståelse av lov som en sosial pro-
sess,50 kan man imidlertid forestille seg problemer knyttet til hvordan “tilstrekkelige midler”
skal fortolkes (siden dette vil variere betydelig i henhold til menns sosiale og finansielle sta-
tus) med hensyn til å etablere en presis juridisk definisjon av hva det vil si å behandle sine hus-
44 John L. Esposito: Women in Muslim Family Law (Syracuse: Syracuse University Press 1983) 50.
45 Esposito op.cit. 63.
46 SALC op.cit. 117.
47 Esposito op.cit. 33.
48 SALC op.cit. 118.
49 Ibid. 48.
50Sally Falk Moore: Law as Social Process: An Anthropological Approach (London: Routledge
& Kegan Paul 1978).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 158
truer “likt”, og også med hensyn til hva som skal kunne betraktes som “ulempe” for eksiste-
rende hustruer. En muslimsk mann som inngår et polygynt ekteskap i strid med lovens bok-
stav, risikerer en bot på ZAR 20 00051 (ca. NOK 17 549,– i 2006), og ‘ulama’er som utfører
slike ekteskapsseremonier vil ikke risikere noen sanksjoner. Det er ikke vanskelig å tenke seg
at konservative ‘ulama’er som motsetter seg lovens forsøk på regulering av polygyni vil kun-
ne fortsette å utføre polygyne ekteskapsseremonier uberørt av domstolenes blikk. ZAR
20 000,– er da også en relativt ubetydelig sum for mange muslimske menn med overklasse-
og middelklassebakgrunn. Lovutkastet har støtte av de viktigste ‘ulama’-organisasjonene i
Sør-Afrika, blant dem MJC i Cape Town. De har etter alt å dømme valgt å støtte lovutkastet
ut ifra en overbevisning om at anerkjennelse av islamske ekteskap er å foretrekke fremfor
opprettholdelsen av status quo. Det fremstår imidlertid som klart at de i løpet av prosessen har
reist sterke innvendinger mot den reguleringen av bl.a. polygyni som lovutkastet legger opp
til,52 selv om det offisielt heter fra MJCs side at lovutkastet er “i pakt med shari‛a”.53
D. E RFARINGER MED POLYGYNI BLANT MUSLIMSKE

KVINNER I UNDERPRIVILEGERTE OMRÅDER AV C APE TOWN
De muslimske kvinnene som ble intervjuet om sine erfaringer med polygyni, ble rekruttert
gjennom de personlige sosiale nettverkene til min kvinnelige muslimske forskningsassistent,
som selv levde i et underprivilegert område av Cape Town. De fleste intervjuene foregikk i
kvinnenes hjem. Intervjuene foregikk i på engelsk eller afrikaans, avhengig av informantens
personlige språkpreferanser. Kvinnene som ble intervjuet ble informert om bruken av inter-
vjudataene forut for intervjuet i form av et skjema om informert samtykke som de ble bedt om
å underskrive. De fikk også garantier om anonymisering. Samtlige navn som brukes i denne
delen av artikkelen er derfor fiktive. Intervjuene ble tatt opp på lydbånd. Totalt ble 14 kvinner
intervjuet. De fleste av kvinnene hadde erfaring som andrehustru i polygyne ekteskap, og det
var en overvekt av kvinner som ikke lenger var i slike ekteskap. Det er grunn til å anta at beg-
ge faktorer har betydning for hvorvidt kvinner er rede til å snakke om sine erfaringer eller
ikke. Stigmaet som kvinner i polygyne ekteskap står overfor kan være sterkt. I sammenlik-
ning med andre forskningstema som inngikk i feltarbeidet, var dette et tema hvor andelen
avslag på forespørsler om intervjuer var usedvanlig høy (38 prosent). De to narrativene som
presenteres nedenfor er ikke ment å representere erfaringene med polygyni i utvalget som
helhet, men gir uttrykk for noen av de sentrale spørsmål og utfordringer som knyttet seg til
polygyni ifølge informantene.
Muslimske kvinners erfaring med polygyni varierer i henhold til variabler som klasse,
sosial status og religiøs orientering. Det ble derfor inkludert to kvinner med middelklasse-
bakgrunn med selvstendig inntekt og yrkeskarriere i utvalget for å ha et visst sammenlik-
ningsgrunnlag. Det fremstår som nokså klart at for muslimske kvinner fra underprivilegerte
områder av Cape Town er handlingsvalg med hensyn til ekteskap og skilsmisse ofte begren-
51 SALC op.cit. 59.

52 Samtale med Mawlana Yusuf Karaan, leder for Fatwa Dept. ved MJC, Cape Town 10.05.2005.
53 Intervju med Mawlana Ihsaan Hendricks, President for MJC 2006–, Cape Town 29.07.2005.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 159
set av de sosiale og økonomiske vilkårene de lever under. Bare to av de fjorten kvinnene som
ble intervjuet, rapporterte entydig positive erfaringer med polygyni. Mine funn indikerer at
polygyne ekteskap blant muslimer i underprivilegerte områder i Cape Town i regelen inngås
på grunnlag av et scenario ifølge hvilket en gift muslimsk mann inngår en utenomekteskape-
lig seksuell forbindelse (zina). Man må i forhold til dette også ta i betraktning at i de multi-reli-
giøse lokalsamfunnene som de fleste underprivilegerte muslimer i Cape Town lever i,54 er før-
og utenomekteskapelige forbindelser ikke spesielt uvanlige,55 og at maskulinitetsidealer
blant unge menn her ofte er knyttet til seksuell attraktivitet og aktivitet. Blant underprivile-
gerte muslimske kvinnelige informanter ble også menn forstått som vesensulike fra kvinner i
den forstand at menns behov i et ekteskap oftere ble ansett for å være knyttet til seksuell utfol-
delse. En kvinne som levde i et polygynt ekteskap uttrykte det slik: “Die mans se ‘sex drive’
is different van die vrou sinne, hulle hele mind draai or sex” (“Menns seksualdrift er annerle-
des enn kvinners, alle tankene deres kretser om sex”).56 Ofte inngås polygyne ekteskap som
følge av at en kvinne i forløpet av et skissert utenomekteskapelig forhold blir gravid, eller
mannen hun har et forhold til bestemmer seg for å legitimere forholdet for å unngå negative
konsekvenser for seg selv, sin familie og/eller sin elskerinne. Konsekvensen er en hurtig og
relativt liten ekteskapsseremoni (en nikah) foran en imam og et par mannlige vitner, ofte i et
annet område hvor bakgrunnshistorien ikke vil være kjent for de lokale, og ofte ikke for ima-
men som utfører seremonien. Det er ikke noe i mitt forskningsmateriale som indikerer at ima-
mer som utfører slike ekteskapsseremonier foretar grundige undersøkelser av spørsmålet om
hvorvidt ektemannen har tilstrekkelige midler til forsørgelse (nafaqa) av hustruene og deres
barn.
Zohra var en 37 år gammel kvinne som levde med sin ektemann og tre mindreårige barn i
et lite uthus i en township på Cape Flats. Zohra hadde konvert til islam i en alder av 14 år. I
ungdomstiden hadde hun etter eget utsagn hatt “mange kjærester”. Zohra møtte sin muslim-
ske ektemann, Faheem, da hun var 21. Han var 30. Faheem hadde en stabil og relativt god inn-
tekt. Seks måneder inn i forholdet oppdaget Zohra at hun var gravid med Faheem. Zohra bod-
de med sin mor og stefar på det tidspunktet. Et par dager etter at hun hadde fortalt Faheem om
54 Med multi-religiøse lokalsamfunn menes her lokalsamfunn hvor muslimer bor side om side med
hovedsakelig kristne naboer, og både muslimske kvinner og menn i stor grad inngår ekteskap med ikke-
muslimer. Den muslimske øvre middelklassen i Cape Town bor i sterkere grad i strøk hvor de hovedsa-
kelig er omgitt av andre muslimer, og inngår i mindre grad enn underprivilegerte muslimer ekteskap
med ikke-muslimer. Se Bangstad (n 20) for dette.
55 I en studie av saksdokumentene til 600 muslimer som hadde søkt skilsmisse via MJC og Natio-
nal Ulama Council i Cape Town, fant en muslimsk forsker at 57 prosent av utvalget (hvor muslimske
kvinner fra underprivilegerte områder er overrepresentert) hadde inngått ekteskap på grunn av førekte-
skapelig graviditet. Kfr. Moegamat Y. Toefy: Divorce in the Muslim Community Of The Western Cape:
A Demographic Study Of 600 Divorce Records At The Muslim Judicial Council And National Ulama
Council Between 1994 And 1999. Upublisert mastergradsavhandling, Department of Psychology, Uni-
versity of Cape Town (2000) 82.
56 Sitatet er på afrikaans. Det er verdt å merke seg det sterke innslaget av engelske lånord, som er
typisk for en lokal kontekst hvor det ofte, og avhengig av kontekst og samtalepartner, veksles mellom
afrikaans og engelsk.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 160
graviditeten, kom hans foreldre og banket på døren til blokkleiligheten til Zohras foreldre. De
informerte dem om at Faheem allerede var gift og hadde en åtte år gammel sønn. Zohra
bestemte seg, i strid med foreldrenes ønsker, å gå med på å gifte seg med Faheem. Hun trod-
de hun kunne “få det til å fungere”. Kvelden før nikah’en kastet moren henne på dør. For
Faheems første kone var ekteskapet et fait accompli, og det Zohra fortalte tydet heller ikke på
at hun var blitt bedt om å gi sin tilslutning om det. Hun hadde vært “svært opprørt” i forhold
til Faheems og Zohras ekteskap. Det er imidlertid en sterk forestilling blant mange kvinner i
underprivilegerte områder om at en slik tilslutning er nødvendig; det er bare på en slik bak-
grunn man kan forstå de mange anekdotene om førstehustruer som blir båret ut av moskeer
med tvang under forsøkene på å avbryte ektemannens andre nikah’er. Faheems førstehustru
arbeidet ikke, og lønnen Faheem mottok strakk ikke til for to familier. Faheem brukte i prak-
sis lønnen Zohra fikk som fabrikkarbeider i en tekstilfabrikk til å forsørge førstehustruen. I en
periode levde de alle under samme tak. Zohra hadde inntrykk av at hun var Faheems favorit-
thustru i lang tid etter bryllupet, og at han hadde seksuelt samkvem med bare henne. Forhol-
dene ble imidlertid umulige etter at Zohra uforvarende spaserte inn på førstehustruens sove-
rom en natt mens Faheem hadde samleie med henne. Faheems forhold til førstehustruen ble
gradvis mer problematisk på grunn av konflikter om eiendomsretten til huset deres, og da
Faheems førstehustru brakte ham inn for retten for mishandling, skilte han seg fra henne ved
talaq. En slik talaq utføres vanligvis i én sekvens, overvært av en kvalifisert ‘alim. Zohras og
Faheems ekteskap hadde også blitt verre, selv om det nå bare var dem og deres to barn; Fahe-
em skjelte ofte Zohra ut foran barna deres, og banket opp den 15-årige datteren deres når hun
tok moren i forsvar. Zohra hadde sett seg tvunget til å gå til retten for å få en beskyttelsesor-
dre for datteren. Faheem nektet etter hvert Zohra å arbeide, og forsøkte å forhindre henne i å
ha kontakt med venner. Zohra flyktet fra hjemmet et par måneder etter vårt intervju med hen-
ne. Zohra var ni år yngre enn sin ektemann, og det synes nokså utbredt for hustruer (og spesi-
elt andrehustruer) i polygyne ekteskap i underprivilegerte områder i Cape Town å være yng-
re enn sine ektemenn. I mitt utvalg var kvinnene med erfaring fra polygyne ekteskap
gjennomsnittlig 4,7 år yngre enn sine ektemenn. Aldersdifferensialer er en viktig faktor med
hensyn til kjønnsulikhet,57 og det er grunn til å anta at slike aldersdifferensialer også påvirker
maktforholdene i ekteskap.
En motvekt til Zohras narrativ finner vi i narrativet til en 38 år gammel muslimsk kvinne
ved navn Rabiya. Rabiya ble født av det hun beskrev som “svært religiøse” foreldre i en arbei-
derklassebydel i Cape Town, men hadde hatt det hun oppfattet som en materielt akseptabel
levestandard hele livet. Faren var sjømann og hadde to hustruer; moren var hjemmeværende.
Rabiya giftet seg med sin ektemann, Hassan, i en alder av 22 år; de har vært gift i 16 år, og har
to døtre sammen. Rabiya arbeidet som frisør de første årene av ekteskapet, men måtte oppgi
dette yrket etter en bilulykke. Rabiya beskrev seg selv som “svært religiøs”. Hun oppga at
hun hadde “helseproblemer”, men presiserte også at hun aldri hadde avvist ektemannen sek-
suelt, siden hun oppfattet dette som “hans rett”. Ti år inn i ekteskapet deres hadde Hassan bedt
57 Rachel K. Jewkes, Jonathan B. Levin, og Loveday A. Penn-Kekana: “Gender inequalities, inti-
mate partner violence and HIV preventive practices: findings of a South African cross-sectional study”
(2003) 56 Social Science & Medicine 125–34.

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Rabiya om tillatelse til å ta en kone nr. to. Maria er betydelig yngre enn Rabiya, og var kristen
før hun konverterte til islam da hun giftet seg med Hassan. Maria bor i et annet område av
byen med sine og Hassans barn; Hassan forsørger begge husholdene. Rabiya hadde blitt
følelsesmessig berørt av det faktum at hennes ektemann hadde tatt en andrehustru. “Det er
ikke det jeg ventet meg, og ikke det jeg ønsket meg heller.” Rabiya understreket at hun aldri
hadde motsatt seg dette ekteskapet, siden det var “hans valg” og han “hadde råd til det”, og
siden det var tillatt fra et religiøst synspunkt. I intervjuet henviste Rabiya ved flere anled-
ninger til at hun hadde måttet “ofre” sin egen lykke for å få det polygyne ekteskapet til å fun-
gere. Hassan forsøkte etter beste evne å behandle sine to familier likt, og Rabiya fant trøst i
det faktum at hun kunne anse seg for å ha vært en god mor og en god hustru, og at han i hvert
fall ikke hadde forlatt henne for en annen kvinne. Rabyia brukte den arabiske termen sabr
med henvisning til måten hun hadde taklet de personlige utfordringene hun hadde stått over-
for. Sabr betyr direkte oversatt “tålmodighet”, men henviser i lokale populære idiomer ofte til
et videre betydningsnettverk, som inkluderer evnen til å forbli en god, men overbærende
muslim i møtet med store personlige utfordringer. I underprivilegerte områder er evnen til å
demonstrere sabr i slike tilfeller ofte en markør for moden og ansvarlig kvinnelighet. “Det
som ligger foran oss i livet er ikke i våre hender; det er i Allah sine hender”, konkluderte
Rabiya.
Monogame så vel som polygyne ekteskap blant muslimer i Cape Town er bare unntaksvis
regulert av ekteskapskontrakter. I mitt utvalg hadde ingen av de intervjuede kvinnene en
skriftlig ekteskapskontrakt. Det er fremdeles uvanlig for muslimske kvinner i Cape Town å
kreve kontrakter ved inngåelse av ekteskap, uavhengig av sosial status og utdanningsnivå.
E. S LUTTSATSER
I denne artikkelen har jeg indikert at lovforslaget om islamske ekteskap og relaterte spørsmål
– med mindre den ledsages av tilføyelser i loven, investering i kampanjer for å øke muslim-
ske kvinners bevissthet om deres rettigheter under MPL og investering i ressursene til politi-
og rettsvesen med henblikk på å styrke muslimske kvinners utøvelse av sine rettigheter under
MPL – sannsynligvis ikke vil kunne bringe orden i/tale til kompleksiteten i de situasjonene
som muslimske kvinner i polygyne ekteskap i underprivilegerte områder i Cape Town
befinner seg i. Lovutkastet er basert på juridiske abstraksjoner og speiler forestillinger om
idealisert normativ atferd utbredt blant ‘ulama’er og muslimske fagfolk med middelklasse-
bakgrunn. Med henblikk på forordningene knyttet til polygyni, er det moralske og juridiske
subjektet som lovforslaget konstruerer en mannlig muslim som har midler til adekvat forsør-
gelse av flere enn én kone, og som i praksis etterlever de vilkårene som settes for inngåelse av
slike ekteskap. Enhver lovregulering er uttrykk for en prosess som innebærer sosial inklude-
ring så vel som ekskludering. Som en konsekvens av lovforslaget vil de fleste muslimske
menn fra underprivilegerte områder i Cape Town de facto være forhindret fra å få sine poly-
gyne ekteskap anerkjent av staten – men dette betyr selvsagt ikke nødvendigvis at de av den
grunn vil slutte å inngå slike ekteskap. Den moralske heterogeniteten i faktiske snarere enn
idealiserte sosiale og religiøse praksiser i juridisk plurale samfunn som Sør-Afrika, kan muli-
gens aldri bli regulert på en fullstendig måte gjennom lov. Lovreguleringer kan bare i begren-

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 162
set grad determinere utenom-juridiske kontekster og atferd,58 og nettopp dette er noe av svak-
heten ved enkelte uttrykk for prosedural liberalisme, som konsentrerer det meste av opp-
merksomheten i kampen for likestilling i Sør-Afrika omkring lovreform snarere enn sosio-
økonomiske endringer. En referanse til de praktiske effektene av Recognition of Customary
Marriages Act 120 av 1998 kan bidra til å kaste et lys over denne problematikken. Funn fra en
studie fra KwaZulu-Natal indikerer at forordningene i denne loven, som fastlegger en detal-
jert prosedyre som skal følges av menn som ønsker å inngå et polygynt ekteskap, står i direk-
te motstrid til empiriske forhold hvorved førstehustruer og deres barn i regelen bare blir for-
latt av sine ektemenn i tilfeller hvor disse tar en andrehustru.59 Den prisverdige hensikten til
lovgiverne om å regulere polygyni har i dette tilfellet blitt underminert av ‘fakta på bakken’
som lovgiverne ikke synes å ha tatt i betraktning i tilstrekkelig grad i formuleringen av loven.
Det er liten grunn til å tro at lovgiverne ikke skulle møte tilsvarende utfordringer med hensyn
til en eventuell lov om islamske ekteskap og relaterte spørsmål.
Det er betydelig ambivalens knyttet til polygyni som institusjon blant muslimer i Cape
Town. Her som i andre kontekster fremstår polygyni ofte som en sentral faktor i ekteskaps-
sammenbrudd.60 Som denne artikkelen har søkt å demonstrere, er det ulike grunner til at poly-
gyni ikke synes å fungere for de fleste av de kvinnene som ble intervjuet om sine erfaringer
med institusjonen.
Graden av faktisk forpliktelse fra ANC og deres regjeringspartneres side med hensyn til å
gjøre anerkjennelse av islamske ekteskap i Sør-Afrika til virkelighet, har fremdeles ikke blitt
testet. Mye tyder på at det blant ‘statsfeminister’ knyttet til ANC foreligger betydelig skepsis
til anerkjennelse av polygyne islamske ekteskap,61 selv om dette prinsipielt sett vil åpne for
anklager om ulik statlig behandling av muslimer og afrikanske ‘tradisjonalister’. Sørafrikan-
ske muslimers kamp for anerkjennelse av islamske ekteskap i Sør-Afrika – monogame som
polygyne – ser ut til å kunne komme til å fortsette i årene som kommer. Denne artikkelen har
pekt på noen av de utfordringene og paradoksene som denne kampen vil måtte forholde seg
til.
58 Shahrzad Mojab: “Theorizing the Politics of ‘Islamic Feminism’” (2001) 69 Feminist Review
142.
59 Mothokoa Mamashela: “New Families, New Property, New Laws: The Practical Effects of The
Recognition of Customary Marriages Act” (2004) 20 South African Journal of Human Rights 636–38.
60 Someya Abdullah: Multicultural Social Intervention And Nation-Building in South Africa: The
Role of Islamic Counselling and Psychotherapy. Upublisert doktorgradsavhandling, Department of

Religious Studies, University of Cape Town (2002) 164. For tilsvarende funn fra Iran og Marokko, se
Mir-Hosseini op.cit. xv, 127.
61 Intervju med tidligere Gender Commissioner of South Africa, Prof. Farid Esack, Cape Town
14.06.2005.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 163
TENDENSER
F REEDOM OF E XPRESSION : R ETROSPECT AND P ROSPECT

T HE TORKEL O PSAHL MEMORIAL LECTURE 2007
BY KEVIN BOYLE*
A. I NTRODUCTION
This lecture offers me an opportunity to salute the memory of someone who had a consider-
able influence on me. Torkel Opsahl, who died in 1993, was for me a role model. The career
he pursued with such commitment might be described by the three ‘A’s’: he was an academ-
ic, an advocate and an activist for universal human rights.
I first met Torkel, a distinguished professor of international law, in the early 1970s when he
was a member of the European Commission of Human Rights. I was representing applicants
in Strasbourg arising from torture allegations against the British authorities in Northern Ire-
land.1 I have one memory that survives from that very early attempt to invoke the individual
complaint procedure before the Commission. At a point in the proceedings when we thought
we were losing the argument and before a recess, Torkel invited us to look at a very recent
decision of the Commission which we had not seen. It was exactly on point and in our favour
and on returning to the hearing we relied on it strongly as no doubt he intended. As a result we
survived for another day in the case.
Later I had some role in persuading Torkel to chair an innovative civil society inquiry in
Northern Ireland into the possibilities of peace and reconciliation. Completed in 1993, the
year of his death, the Opsahl Commission report did help to generate the ideas that encour-
aged the long process of peacemaking in Northern Ireland.2 I have no doubt that he would
have been as pleased and perhaps as amazed as the rest of us to see the culmination of that
process in the new power sharing government of Ian Paisley’s party and Sinn Fein inaugurat-
ed a few days ago in Belfast. He would have been pleased also to read that the four Northern
Irish Nobel Peace Prize Laureates generated over the decades of this conflict, marked the new
era with a plea for peace across the world.3
* Professor of Law and former director Human Rights Centre University of Essex UK, first direc-
tor of the NGO Article 19 the Global Campaign for Freedom of Expression 1986–1989. This is an edit-
ed and annotated version of a lecture delivered at the Norwegian Centre for Human Rights, Faculty of
Law University of Oslo, on 14 May 2007.
1 Donnelly and others v United Kingdom, Nos. 5572-5583/72, Admissibility hearing April 1973.
2 A Citizens’ Inquiry: The Opsahl Report On Northern Ireland (Dublin: Lilliput Press 1993).
3 “North’s four Nobel Laureates in world peace plea”, Irish Times, 10 May 2007.
NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 164
1. A N AUDIT OF F REEDOM OF E XPRESSION
I have called my lecture “Freedom of Expression: Retrospect and Prospect”. I thought that I
might offer some reflections on what has changed with respect to this freedom over the last
twenty years and on the prospects ahead of us for this freedom as a universal right. The choice
of this time period arises from several anniversaries. This year, 2007 is the 20th anniversary of
the establishment of the Norwegian Institute for Human Rights at the University of Oslo by,
among others, Torkel Opsahl. It is the 20th anniversary also of the launch in London of the
international NGO Article 19, of which I was founding director.4 Norway and its freedom of
expression community from the beginning have been among the strongest supporters of Arti-
cle 19. The NGO still thrives I am delighted to say as does the Norwegian Centre. Article 19
was the brainchild of the US philanthropist and journalist Roderick Mc Arthur. He had the
idea for a new NGO working in parallel with Amnesty International founded some 20 years
before that would both challenge censorship worldwide and promote and defend the right to
freedom of expression. Its name invoked the 19th article of the Universal Declaration of
Human Rights:
Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
Freedom of expression is as complex a freedom as it is vital. More time than is available in a

lecture would be needed to audit fully freedom of expression over the last two decades in par-
ticular. They have marked a period of extraordinary and rapid global change that has affected
all of us. I can only therefore offer limited personal reflections.
Perhaps the first observation that should be made is that if the concern is to chart the
progress or lack of it in achieving universal enjoyment of freedom of expression it is not pos-
sible to speak of this freedom in isolation. To focus on its progress is to raise as well the ques-
tion of other human rights and their prospect in the 21st century. Indeed a central theme of my
remarks will be the dependency of freedom of expression on other goals of the international
community and their dependency in turn on this enabling freedom.
Let me highlight two words in the text of Article 19 of the Universal Declaration. First is
the word ‘everyone’. Every individual everywhere is entitled to the benefits of this freedom
as they are to all other rights and freedoms. One change in approach evident over the last two
decades is the recognition that there is more to freedom of expression than concern alone with
the means of expression or with media and media freedom. Freedom of expression is a vital
freedom for journalists, artists, intellectuals and politicians and most attention is paid to them
in discussion of the freedom. But it is also the entitlement of each ordinary citizen, man,
women and child, everywhere on the globe and some sixty years after the Universal Declara-
tion was proclaimed they are far from exercising that entitlement. This reality has been less
emphasised than it should be in human rights analyses of freedom of expression and will be
given more attention in my lecture than media freedom.
4 www.article19.org (last visited 23 June 2008).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 165
The other word I will highlight is ‘freedom’. It is used throughout the Universal Declaration.
But what is meant by freedom in this famous text? I shall suggest that since the creation of the
United Nations, conflicting positions over the meaning of human freedom have influenced
and shaped the international norms of freedom of expression – as indeed they have other
rights and freedoms. In the past the conflict was between East and West. Today it has been
replaced by tension between the West and Islamic states over the relationship between free-
dom of expression and freedom of religion.5 Thus freedom of expression has been and con-
tinues to be an ideologically contested right. One consequence has been that this freedom,
famously described in a United Nations General Assembly resolution of 1946, “as the touch-
stone of all the freedoms to which the United Nations is consecrated”, has remained a rela-
tively weak and underdeveloped norm in international law and practice.6
P LUS ÇA CHANGE PLUS C ’ EST LA MÊME CHOSE

If we look over our twenty year period, a period that straddles the end of the 20th century and
the first years of the 21st, is the real verdict on the fate of this freedom, that it is a case of the
more things change the more they remain the same? Certainly there is a powerful argument
that it is the correct verdict.
The NGO Article 19 was born in the final years of the Cold War. It was launched in New
York in the autumn of 1986 just after the Reykjavik Summit between Ronald Reagan and
Mikhail Gorbachev, the leaders of the then two super powers. It was a time when the world
was agog at Gorbachev’s experiment in introducing a version of the principles of freedom of
expression and of democracy into the USSR, expressed through the famous concepts of glas-
nost and perestroika. At its heart the Cold War was an ideological competition over both the
meaning and the possibility of human freedom.7
That struggle was reinforced by decades of military confrontation between East and West
and threatened nuclear exchange could have destroyed the human race. By 1989 the Cold War
was over and with it the Soviet Union that had subsumed all personal freedoms in a coerced
collectivist ideology. But the victory of the other protagonist, the United States, did not result
in the triumph of a theory of freedom of expression based on the International Bill of Human
Rights. As will be seen, the United States maintains a position which is largely at odds with
that of other democratic states on the role of international law in reference to this freedom.
Some say we now face a new Cold War on this continent with relationships between
Moscow and the West at their lowest ebb since 1989. Freedom of expression has been sadly
short lived in the new democratic Russia. Independent television media that sprung up have
5 This tension has been most evident within the United Nations over the organisation of the Islam-
ic Conference’s insistence on promoting the concept of defamation of religion as a legitimate ground of

restriction on freedom of expression. See, Human Rights Council Resolution (A/HRC/7/L.15) on com-
bating defamation of religions and resolution (A/HRC/7/L.24) 28 March on the mandate of the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 28 March
2008, www.ohchr.org. For Article 19’s and other free expression groups’ campaign over these develop-
ments, see www.article.19.org.
6 UN resolution No. 59(1) 14 December 1946.
7 John Lewis Gaddis: The Cold War: A New History (Penguin Book 2005).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 166
disappeared into state dominated corporations. The freedoms of assembly and of association
have equally disappeared. The murders of journalists such as Anna Politkovskaya, who doc-
umented state human rights abuses in Chechnya, occur today with what seems impunity.8
Meanwhile, post 9/11, we are in the midst of another war proclaimed by the United States
against Islamic extremists, ‘the Global War on Terror’. Pursuit of this war has led to a regres-
sion from international law and human rights by the major powers led by the United States,
the state that was so largely the progenitor of the dream of universal rights and freedoms in the
1940s.
Dr Agnès Callamard, the current Executive Director of Article 19, recently issued a lament
over the media in Iraq. She declared that the media was targeted and attacked by all sides to
the conflict, the various armed groups, the Iraqi authorities and US forces. More than fifty
journalists have been abducted over the last three years and most have been killed. The Arti-
cle 19 statement noted that two well-known Iraqi journalists had been held for months with-
out charge by the US authorities which had refused to provide any information as to their
whereabouts on security grounds.9
To look to the positive side we can celebrate the expansion of democracy and respect for
human rights in Europe and other parts of the world, especially in the Americas.10 From a
European perspective we can note the achievements of a European Union of 27 states, the
OSCE of 55 countries and the Council of Europe with 47 states. All such regional arrange-
ments are committed to human rights, democracy and the rule of law even if not all members
consistently fulfil such commitments at home.
Paradoxically, according to the research evidence, if we exclude the horrors of Darfur and
the Democratic Republic of the Congo, we can also note that in the period since the end of the
Cold War to the current ‘War on Terror’ there has been a steady decline in the number of con-
flicts in the world and the number of people who have died in such conflicts has also
decreased.11
The early years of this century has seen the rise of China, India and Brazil as economic
powers with a consequential gradual rebalancing of global power from the West to the South.
In China’s case its economic progress has achieved much for its people, who one should recall
amounts to at least one fifth of the world’s population. But China is not a democratic state. In
China the transition from communism to capitalism has come without any change in system-
atic censorship of the media or in the denial of individual freedom of thought, expression or
8 “Russia: continued violations of the Right to free expression”, Article 19 press statement, July
2007, (www.article19.org).
9 “Iraq: media under siege”, Article 19, press release, 3 May 2007. Article 19 reports that 274 jour-
nalists have been killed in Iraq since the beginning of the war. Sixty one journalists and media workers
were killed in 2007 and 23 were kidnapped, most of these were killed, and the fate of six of them remains
unknown. ”Iraqi journalists demand protection for their lives, not early graves”, Article 19 press release,
19 March 2008.
10 UNDP: Democracy in Latin America: Towards a Citizens’ Democracy (New York 2005).
11 Human Security Centre: Human Security Report (2005) (http://www.humansecurityreport.info/)
(last visited 23 June 2008).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 167
belief. The possibility of democratic change in China is an unknown that lies in the future.
While any human rights review of the two decades must celebrate the end of apartheid in
South Africa in 1994, and that country’s new democratic institutions, we should also think of
the democratic leader under house arrest in Burma, Aung San Suu Kyi, an honorary board
member of Article 19. She has been detained by Burma’s military leaders for almost the entire
twenty years under review. In sum, in the transition from the fixed points of reference of the
Cold War to an as yet unclear future for the international order, advances in the protection of
universal human rights as measured by the status of freedom of expression and of independ-
ent media or political freedom across the world cannot be described as a cause for unqualified
celebration.
B. T ECHNOLOGICAL T RANSFORMATIONS
1. I NTERNET
One set of dramatic changes over the twenty-year period we must immediately note concerns
the means of communications. In the autumn of 1986, when Article 19 set up in premises in
London south of the Thames just over London Bridge it was the time of “big bang” in the City
of London. That was the media name given to the era of deregulation of the money markets
and the arrival of 24 hour computer trading in stocks and shares. It was also for Britain, fol-
lowing the lead of the United States, the beginning of economic globalisation. Few, perhaps,
foresaw the rapidity and scale of the change that these technologies would unleash. Few fore-
saw how rapidly we would reach a global economy or what is called the global Information
Age. The invention of the Internet and mobile telephone were yet to come. When Article 19
ran a global campaign in 1989 in defence of Salman Rushdie, author of The Satanic Verses,
following a fatwa issued by Ayatollah Khomeini of Iran calling for Rushdie to be killed, the
most advanced technology available was the fax machine.
The transformation of global communications over the least ten years is a subject in itself
for a lecture. The digital revolution and the cyber world it has given birth to, are still ongoing.
The Internet described by the US Supreme Court as “a unique and wholly new medium of
worldwide human communication”,12 has clearly major and positive implications for the
right to freedom of expression. The extraordinary opportunities offered to individuals and
communities to have, in the words of Article 19 of the Universal Declaration, “freedom to
seek, receive and impart information and ideas of all kinds without regard to frontiers” is tru-
ly revolutionary. The integration of digital media into normal life, challenging if not perhaps
ultimately eclipsing traditional broadcasting and print media, is the most rapid, palpable
transformation of communications ever experienced. The Internet has given NGOs every-
where a wonderful tool for lobbying – and not only in the developed world.13 In South Amer-
12 Reno v. American Civil Liberties Union521 U.S 1997.

13
See UNDP: Human Development Report 1999, Globalization with a Human Face (Oxford:
UNDP-OUP 1999) 5859.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 168
ica indigenous communities are now using the Internet to disseminate their culture and offer
information about their struggles.14 Some community stations are also broadcasting through
the Internet.15
2. D IGITAL D IVIDE
The Internet is not available to all – while the growth of access to the Internet has been extraor-
dinary with some 1 billion of the world’s 6 .5 billion now connected, what is termed the digi-
tal divide reflects the multiple disparities in both access to and utilization of the Internet and
information and communication technologies (ICTs). More than a simple north-south split,16
the digital divide is felt between countries, regions, men and women, young and old.17 It is
strongly influenced by wealth disparities, but also educational opportunities, regulation and
political commitment. But even in the presence of resource limitations, many developing
countries have managed to implement highly innovative schemes as part of their develop-
ment strategies.18
There have been international efforts to address this divide19 but as with so much else in the
struggle to address global poverty and the new threats of climate change those efforts have
been subordinated to the unwillingness of the developed world to question the global eco-
14 See for example, the page of the U´wa indigenous communities in Colombia at:
http://www.uwacolombia.org/quienes/index.html (last visited 23 June 2008).

15 An example is the association of educative radio broadcasters in Bolivia (Red Erbol) encom-
passing several community radios that broadcast in Spanish and indigenous languages:
http://www.erbol.com.bo/ (last visited 23 June 2008).
16 For example, internet penetration in Latin America (22.2%) is over four times higher than Africa
(4.7%), and in some Latin American countries (Colombia, Mexico, Peru) is higher than many northern
countries (Russia, Turkey) http://www.internetworldstats.com/(December 2007 figures) (last visited
23 June 2008).
17 The Digital gap has been defined as ‘a growing asymmetry in the capacity of firms, institutions
and individuals in different countries to use Information and Communication Technologies (ICTs)
effectively in accessing and applying knowledge, and thus, spurring competitiveness and innovation,
Commission on Science and Technology for Development, Draft summary report prepared by the
UNCTAD secretariat on the Panel on Bridging the Technology Gap between and within Nations (held
in Rabat, Morocco, in November, 2005), E/CN.16/2006/CRP.1,
http://stdev.unctad.org/unsystem/cstd/crp1-cstd9.pdfat 5 (last visited 23 June 2008).
18 Post-civil war Rwanda has made structural reforms and developed rolling five-year plans to
introduce ICTs as a means of lifting the country out of poverty and transforming its mainly agricultural
economy into a “Predominantly Information-rich, Knowledge-based Economy”. World Information
Society Report: Beyond WSIS (2007) 29
(http://www.itu.int/osg/spu/publications/worldinformationsociety/2007/report.html) (last visited
23 June 2008).
19 The World Summit on the Information Society, established by the UN General Assembly, reso-
lution 56/183 (21 December 2001) was held in two phases: Geneva in 2003 and Tunis in 2005.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 169
nomic system that sustains their dominance and advantage, evidence in itself of the enduring
link between information, technology and economic and political power.
3. I NTERNET C ENSORSHIP
There was an early belief, even a faith, that the Internet was impossible to interfere with and
that it would end forever the era of political censorship by states. But that has proved a false
dawn. Amnesty International now campaigns on behalf of cyber prisoners of conscience. In
2004 it launched a campaign http://irrepressible.info/ against Internet censorship. Many
states, including, Burma, Cuba, Iran, North Korea, Tunisia, Turkmenistan and Vietnam cen-
sor the Internet, in many instances blocking sites that are critical of governments or reli-
gions.20 Amnesty International blames both governments and IT companies which have aid-
ed China to construct what have been dubbed the “Great Firewall of China”.21 As a result Chi-
na systematically controls freedom of speech on emails, on web sites and of bloggers and it
imprisons cyber dissidents.22 Multinational corporations registered in the United States, the
land of the 1st Amendment, have supplied the software to achieve such censorship. Yahoo!
achieved particular notoriety after providing the Chinese authorities with the name of a jour-
nalist Shi Tao who had used its email service. He was later sentenced to ten years in prison for
‘divulging state secrets’.23
4. H ATE S PEECH
At the same time, the abuse of speech, a major preoccupation in the ‘real’ or off-line world,24
20 “Net Censorship Spreads Worldwide”, BBC, 4 May 2006
(http://news.bbc.co.uk/1/hi/technology/4973114.stm) (last visited 23 June 2008).

21 China has a discrete number of portals which link it to the outside World Wide Web and these can
be controlled as to the information permitted to be accessed in China.

22 Reporters Without Borders calculated that the number of cyber dissidents imprisoned in China
in November 2007 was 49. “Cyber-dissident Zhao Changqing freed on completing five-year sentence”,
Reporters Without Borders Press release, 28 November 2007
(http://www.rsf.org/article.php3?id_article=24546) (last visited 23 June 2008).
23 Faced by the censure of the US Congressional House of Representatives Committee on Foreign
Affairs, on 6 November 2007, two Yahoo executives gave a “half-hearted” apology to the mother of
jailed Chinese journalist Shi Tao for having provided information to the Chinese authorities that led to
his being sentenced to 10 years in prison. “Yahoo!’s half-hearted apology is not enough”, Amnesty Inter-
national Australia, 7 November 2007
(http://action.amnesty.org.au/china/comments/yahoos_half_hearted_apology_is_not_enough/)
(last visited 23 June 2008). In April 2008 China’s best known human rights defender, Hu Jia who had
spoken out on Aids policy and Tibet as well as on freedom of speech, was sentenced to three years in
prison for “inciting to subvert state power”, Irish Times, 4 April 2008.
24 OSCE Office for Democratic Institutions and Human Rights (ODIHR): Hate Crimes in the
OSCE Region: Incidents and Responses: Annual Report for 2006 (2007) 83
(http://www.osce.org/odihr/item_11_26296.html) (last visited 23 June 2008).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 170
has found its home also in the unregulated freedom of cyber space. The Internet is a haven for
the purveyors of racial and religious hatred, for paedophiles and violent pornography. Not
only is the Internet increasingly used as a tool to co-ordinate and commit crimes, additional-
ly, it serves as a platform where extremist groups conduct their recruitment.25 It is also a site
for undreamed of propaganda where one can view on jihadi websites the beheading of inno-
cent civilians or download and transmit these horrendous scenes on mobile phones.26 All such
content is contrary to international human rights law and a duty falls on the states party to the
International Covenant on Civil and Political Rights (ICCPR) to seek to suppress it and to
punish those responsible.27 But efforts to address these abuses in cyber space through nation-
al and international regulation have to date achieved little, apart from creating duplication and
delays in policy development.28 Early on it was recognized that “no national legislation has
any power over this worldwide network”.29 The current trend to involve different sectors of
society in the “governance”30 of the Internet in turn raises concerns about policing functions
devolved to private actors and the risk of censorship.31
5. G LOBAL C ONCENTRATION OF M EDIA OWNERSHIP
We should also note that the unique nature of the Internet has not shielded it from the rapid
trends in the concentration of ownership of print and television media.32 These have acceler-
ated beyond national concentration over the last twenty years resulting in extraordinary dom-
25 The sole international regulation on hate speech on the Internet is the Protocol to the [COE] Con-
vention on Cyber Crime which entered into force in 2006. It has been estimated that the number of web-
sites involved in various forms of hate crimes increased from 70 in 1996 to more than 6000 in 2006.
Yaman Akdeniz: “Governing Racist Content on the Internet: National and International Responses”
(2007) University of New Brunswick Law Journal 56, 105.
26 This might be described as war propaganda although an accepted definition of what constitutes
such propaganda is lacking in international law. M. Kearney: The Prohibition of Propaganda for War in
international law (Oxford: Oxford University Press 2007) 3–6.
27 ICCPR Article 20.
28 Akdeniz, note 25, at 159.
29 Secretary-General, Elimination of Racism and Racial Discrimination: Measures to combat con-
temporary forms of racism, racial discrimination, xenophobia and related intolerance, UN GA, 51st
Sess., UN Doc. A/51/301 (1996).
30 It has been argued that a State is not in the position to curb hate crimes on the Internet without co-
operation from the private sector, thus leading to “governance” rather than the government by the state.
See Akdeniz, note 25, at 160. The non-legal forms of regulation this cooperation gives rise to include
self-regulation, regulation through technical means and awareness campaigns. Akdeniz, note 25, at 142.
31 Akdeniz, note 25, at 151.
32 Time Warner, the owner of CNN and the Time Inc magazine publisher also owns Internet com-
pany AOL, which in turn has bought popular social networking site Bebo. Rupert Murdoch bought the
myspace site in 2005.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 171
inance of mainly US communications corporations operating increasingly on a global basis.33

While the Council of Europe has had a consistent concern with the effects of media concen-
tration on freedom of the press and expression, most recently in an important Declaration of
January 2007, the capacity of international law to challenge or even reverse the threat to media
pluralism and diversity in the context of economic and communications globalisation and its
longer term danger to democracy appears limited.34 However we will later note the positive
achievement of one effort to fight back in the form of the recent UNESCO Convention on the
Protection of Cultural Diversity.
C. L INKING F REEDOM OF E XPRESSION TO OTHER G OALS
If we look further back than the twenty years under discussion and instead consider the almost
sixty years from the adoption of the Universal Declaration of Human Rights, what can we say
about the ambition of universal protection of human rights as a whole including freedom of
expression? It is clearly an ambition that has not been realised. One achievement that can be
pointed to is the global reach of the ideals of the Universal Declaration. If there has been a
civilisational advance it is the extraordinary appeal of the concept of common humanity
human dignity and the belief in universal rights and freedoms to be enjoyed by all without dis-
tinction. But the experience of human existence for perhaps the majority of people in the
world is far from the ideals of the Universal Declaration. The world remains unequal in every
respect and the majority does not enjoy the promise of full human rights including the fruits
of freedom of expression. The extraordinary benefits of the digital age and its communication
possibilities is to be celebrated but the ideal of a universal right to freedom of expression is
hollow where there is no education or electricity and life expectancy can be as low as a third
of what it is in Oslo.
We must content ourselves with the conclusion that we may not have delivered on the
promise of human rights including freedom of expression but that we understand better than
we did what their global achievement requires. In the case of freedom of expression for exam-
ple, we have come to recognise particularly in the decade after the Cold War that this freedom
does not stand alone. That while an NGO such as Article 19 must continue to fight the daily
evidence of abuse of power found in censorship and political oppression it must also recog-
nise that freedom of expression is dependent on progress on securing sustainable human
development, on building democracy and the rule of law within states and at the international
33 Ben H. Badigan: The New Media Monopoly (Boston Beacon Press 2004). Badigan identifies as
“the Big Five” Time Warner, the Walt Disney Company, Rupert Murdoch’s News Corporation, Viacom
and Bertelsmann, p. 3. In the Americas for example in the year 2000, the main media company in each
country dominated, on average, more than 30% of the market. Altogether, the main four companies of
each country controlled 80% of the media market. For television, the concentration of ownership of the
broadcasting market by the four main companies in each country was 85%, Press and Society Institute
of Peru / Instituto Prensa y Sociedad (IPYS) 2000 (www.ipys.org) (last visited 23 June 2008).
34 Declaration on protecting the role of the media in democracy in the context of media concentra-
tion, Committee of Ministers Council of Europe adopted on 31 January 2007.

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level. In short we are coming to recognise the interconnectedness of all rights and freedoms
with the struggle for global social justice.35 It is this insight and our collective modest efforts
at acting upon it which are perhaps the major advance of the last twenty years. Some of you
will recognise that similar thinking about the challenge for universal rights has been taken up
in recent years by another NGO which campaigns on freedoms, Amnesty International. It has
not shifted its focus from the fight against torture or the plight of prisoners of conscience but
it has broadened its campaigns under pressure from its vast membership in the South of the
World to encompass fighting for the deep structural changes necessary to advance its man-
date.36
I want to now look briefly at some of these linkages in a little more detail. I will address the
interconnectedness of freedom of expression with other rights and freedoms; the relationship
between development and freedom of expression and also its relationship with democracy.
1. C ONNECTIONS B ETWEEN F REEDOMS
One of the Cold War’s most destructive legacies was the divorce between different rights and
freedoms. The split between civil and political rights and economic social and cultural rights
reflected the ideological division between East and West. The civil and political rights were
espoused by the West, economic and social rights by the East. The essential inter- connection
and interdependence of all rights were ignored for over fifty years. It has been only in the
1990s that the connections have been restored in thinking and policy, although there contin-
ues to be considerable resistance to the idea and implications of the indivisibility and interde-
pendence of universal rights and freedoms.
The Cold War also left us with the tendency to neglect the significance of the links even
within the cluster of civil and political rights and freedoms of which speech, information and
expression is a part. That cluster includes belief rights – freedom of thought, conscience reli-
gion as well as freedom of association and assembly and the democratic freedoms of partici-
pation and empowerment. It is no accident that in the international human rights treaties these
freedoms are placed together in sequence.
I might mention only one such related freedom which has become prominent in recent
years – freedom of religion. Freedom of expression is the child of freedom of religion in his-
torical terms. In European history it was only when the freedom to dissent over religious
beliefs was secured that the space was open for the development of artistic and political dis-
sent and expression. The great arguments for freedom of expression and publication were
made in the context of the search for religious freedom. John Milton’s famous Aeropagitica
being one example, John Locke’s Plea for Toleration being another.
It is impossible to envisage freedom of religion without the freedom to express beliefs, to
preach, teach and worship. Equally the freedoms of assembly and association are essential
guarantees of the freedom of religion. One effect of the failure to connect these freedoms has
been the fact that religious persecution and discrimination have been routinely overlooked by
35 K. Boyle: “Linking Human Rights to Other Goals” in J Morrison et al (eds): Judges, Transition
and Human Rights (Oxford 2006) 122.

36 http://www.amnesty.org/en/economic-social-and-cultural-rights (last visited 23 June 2008)

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free speech advocates. Yet today the suppression of religious minorities, prohibition of their
publications and denial of their freedoms to meet for worship are as common if not more com-
mon violations of freedom of expression on this continent and in other parts of the world as
the repression of political dissidents or attacks on journalists and the media.37
While suppression of religious freedom is largely ignored, the tension between that free-
dom and freedom of expression has been a theme of global concern in the first years of the 21st
century. The controversy over the publication of cartoons of the prophet Mohammad by the
Danish newspaper Jyllands Posten was the most serious of a number of episodes in Europe
over which understanding of these freedoms should prevail in international law, a broadly
secular and liberal posture or a more religiously grounded and conservative stance.38A better
understanding of the historical affinity between freedom of religion and freedom of expres-
sion could be of importance in the conduct of such debates. There is continuing tension with-
in the United Nations Human Rights Council between the proponents of greater restriction on
speech which constitutes ‘defamation of religion’ led by Muslim majority countries, and the
vigorous resistance to such an extension of established limitation on expression led by Euro-
pean and other states. As already noted this new ideological dispute over the meaning of free-
dom of expression has replaced the equivalent East-West impasse over the nature of this free-
dom which endured throughout the Cold War.39
2. F REEDOM OF E XPRESSION AND D EVELOPMENT
In 1941 in his famous Atlantic Charter speech before the United States entering the Second
World War, President Franklin D. Roosevelt held out a vision of the new world for which the
Allies fought. It was to be a world of four freedoms: freedom of religion, freedom of speech,
freedom from fear and freedom from want. These goals were to not only underlie the war
effort but were to be translated into the very purposes of the new United Nations Charter. In
2005, in his last major policy document on reform of the United Nations, In Larger Freedom,
the former Secretary- General Kofi Annan, presented these purposes as the three pillars of the
UN: “security, development and human rights”. He emphasised as had Roosevelt 60 years
before that these goals for the world were interlinked and interdependent.40 Our task in fur-
37 The Oslo-based human rights NGO Forum 18, which works for the securing of religious free-
dom, provides the most objective and well-researched information on violations of religious freedom
(http://www.forum18.org) (last visited 23 June 2008). See also Brussels based Observatory on religious
freedom, Human Rights without Frontiers, (http://www.hrwf.org) (last visited 23 June 2008) and the
Amsterdam based Humanist NGO, The Ethical and Humanist Union, (http://www.iheu.org) (last visit-
ed 23 June 2008).
38 K. Boyle: “The Danish Cartoons” (2006) 24 Netherlands Quarterly of Human Rights 2.
39 Note 6 above. See also Human Rights Council, Resolution on Combating Defamation of Reli-
gion, 30 March 2007 (A/HRC/4/L.12). The resolution was adopted on a vote of 24, yes, 14, no, and 9
abstentions. All European members of the Council voted against.
40 Report of the Secretary General: In Larger Freedom: Towards Development, Security and
Human Rights For All (UN DOCA/59/2005).

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thering the implementation of universal human rights is to continue to build on those connec-
tions, including the specific linkages between freedom of expression, development, and
democracy.
The recognition or rather the rediscovery of the relationship between human rights and
development is another of the positive gains of the post-Cold War period. The era of the sep-
aration of development from human rights was dominated by the assumption that develop-
ment was a process exclusively based on economic growth. In the Vienna World Conference
on Human Rights 1993 the interdependence of development on the achievement of all human
rights, civil and political as well as economic social and cultural, was recognised by states.41
But it was the influential work of the UNDP’s Human Development Reports and the great
development economist Armatya Sen that opened our eyes to the centrality of freedoms such
as expression and thought to ensuring sustainable human development.42 Such thinking is
also at the centre of the UNDP body based here in Oslo, the Oslo Governance Centre.43 Devel-
opment assistance, it is now recognized, should not only be directed at economic develop-
ment, its traditional focus, but should also be concerned with the expansion of human capa-
bilities and choices. Securing people’s human rights, including guarantees of civil rights and
political freedoms, enables them to take control of their own development and secures the
democratic empowerment of women and men.
In the context of freedom of expression therefore, progress on the Millennium Develop-
ment Goals (MDGs) is vital for the expansion of global freedom of expression. In particular
the efforts to implement the MDG on education – to give all children access to primary edu-
cation is a goal to advance the core of the human capacity to enjoy freedom of speech. It is
good to acknowledge that Norway, Ireland and Britain are among those states most commit-
ted to the World Bank-led Education for All Fast Track Initiative, a global partnership estab-
lished in 2002 to ensure the finance to end illiteracy experienced by now 77 million children,
which includes 44 million girls.44
3. D EMOCRACY AND F REEDOM OF E XPRESSION
The integration of rights thinking and particularly the importance of freedom of expression in
41 Declaration and Programme of Action, World Conference on Human Rights, UN DOC A/
CONF/157/24.
42 See especially, UNDP: UNDP Human Development Report 2000, Human Rights and Human
Development (2000) and Amartya Sen: Development as Freedom (Oxford 1999). Sen’s research has
demonstrated that no famine has ever occurred in a democratic country with a free press and regular
elections. He has also championed the empowerment of women, citing the irrefutable evidence that
securing the right to education for women has far reaching effects on the lives of all, through the reduc-
tion of child mortality as well as fertility rates, and in increasing the effectiveness of public participation.
See Amartya Sen “Global Doubts” in, Commencement Day Address, 8 June 2000 (available at
www.harvard.edu) (last visited 23 June 2008).
43 www.undp.org/oslocentre (last visited 23 June 2008).
44 http://www.education-fast-track.org/ (last visited 23 June 2008).

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development programmes is not an easy task as a practical matter but it remains a vital one.45
It has proved easier to recognise the link between democracy building and its deepening with
freedom of expression and free media. Democracy and freedom of expression are mutually
reinforcing. Democracy nourishes itself from public debate, which in turn requires freedom
of expression for its full development.
But in no relationship did the Cold War do more to suppress thinking than in respect of the
interface between the goal of universal human rights protection and democracy. Thus, the
Universal Declaration’s ‘democracy’ clause (article 21) manages to avoid the word altogeth-
er.46 The explanation lay in the developing Cold War clash between the East and West. The
idea of communist democracy meant that the people through the supremacy of the Commu-
nist Party had no need for pluralism. The view of Western societies was that democracy was
precisely defined as pluralism and competition between political parties. Failing agreement,
the word was left out. There was literally nothing written nor policy pursued on democracy at
the global level until the 1990s. In Europe the Statute of the Council of Europe 1949 had set
down its core values as ‘genuine democracy, human rights and the rule of law’. But these val-
ues and, in particular, the idea of democracy, were too contentious for assertion at global lev-
el. That is no longer the case. At the Millennium +5 Summit in 2005 world leaders reaffirmed
democracy as “a universal value based on the freely expressed will of people to determine
their own political, economic, social and cultural system.”47 The most accepted justification
for the protection of the freedom of the media and expression is directly linked to the right to
know and the right to participate.
As Article 19 has expressed it:
Freedom of expression makes electoral democracy meaningful and builds public trust in
administration. Access to information strengthens mechanisms to hold governments
accountable for their promises, obligations and actions. It not only increases the know-
ledge base and participation within a society but can also secure external checks on state
accountability, and thus prevent corruption that thrives on secrecy and closed environ-
ments.48
4. ACCESS TO I NFORMATION L AWS
Perhaps the most positive and concrete advance of the relationship between freedom of
expression and democracy has been the extraordinary advance of freedom of information
laws in every world region, an advance that the NGO Article 19 can claim to have made a sig-
nificant contribution. The UN Special Rapporteur on freedom of expression, Abid Hussain,
45 For a through and an optimistic assessment of progress, see PhilipAlston and Mary Robinson:
Human Rights and Development, Towards Mutual Reinforcement (Oxford 2005).

46 Johannes Morsink: The Universal Declaration of Human Rights, Origins, Drafting and Intent
(University of Pennsylvania Press 1999) 58-65.

47 2005 World Summit Outcome, UN DOC A/60/l (2005), para 135.
48 www.article19.org/pdfs/publications/blasphemy-hate-speech-article.pdf (last visited 23 June
2008).

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first advanced the position that the right to freedom of information was more than a part of the
right to freedom of expression as defined in international law but a fundamental right in
itself.49 He also argued that freedom of information includes the right to access information
held by the State:
[T]he right to seek, receive and impart information imposes a positive obligation on Sta-
tes to ensure access to information, particularly with regard to information held by
Government in all types of storage and retrieval systems.50
These positions were endorsed by the former UN Commission on Human Rights and a paral-
lel process of recognition of the right to access to government-held information has been
evolving in all three regional systems of human rights protection.51 In a landmark case in
October 2006 the Inter American Court of Human Rights became the first international tri-
bunal to hold that there was a fundamental right to access government held information. The
Court held that the freedom of expression guarantee of the American Convention, Article 13,
included a general right to access state-held information and a corresponding obligation for
states to ensure the availability of information.52 It has been calculated that by 2006 some 66
countries around the world had adopted comprehensive freedom of information laws to
ensure access to government-held records.53
D. S TATUS OF F REEDOM OF E XPRESSION IN I NTERNATIONAL L AW
My final comments raise the question of the status of this freedom in international law. One
goal of Article 19 from its launch in 1987 was to strengthen the protection of this right in
national and international law. How has that goal fared?
For a freedom so fundamental, the touchstone right for all rights, it might seem curious that
the norms that exist in international law at United Nations level concerning it are rather few.
These are in essence the text of Article 19 of the Universal Declaration and its elaboration in
49 “The Special Rapporteur wishes to state again that the right to seek, receive and impart informa-
tion is not merely a corollary of freedom of opinion and expression; it is a right in and of itself “, UN Doc
E/CN.4 1998/40 para. 14.
50 UN Doc. E/CN.4/1999/64, para. 12.
51 See Declaration of Principles on Freedom of Expression in Africa, African Commission on
Human and Peoples’ Rights, 32nd Session, 17–23 October, 2002: Banjul, Council of Europe Commit-
tee of Ministers d a Recommendation on Access to Official Documents Recommendation No. R
(2002)2, adopted 21 Feb. 2002 and the Inter American Court of Human Rights judgment, Claude Reyes
and others vs. Chile, note 49 above.
52 Corte Interamericana de Derechos Humanos, Caso Claude Reyes y Otros vs. Chile, Sentencia de
19 de Septiembre de 2006. See also, Open Society Justice Initiative,

http://www.justiceinitiative.org/activities/foifoe/foi (last visited 23 June 2008).
53 Global Survey Freedom of Information and Access to Government Record Laws around the
World, www.freedominfo.org (last visited 23 June 2008).

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the subsequent International Covenant on Civil and Political Rights (ICCPR), Articles 19 and
20.54 There is no specific treaty on freedom of expression or on the freedom of the media for
example. At regional level the right to freedom of expression is guaranteed in the regional
human rights instruments and has benefited hugely especially over the last two decades from
the jurisprudence of regional courts, pre-eminently that of the European Court of Human
Rights.55 But at global level there has been little further strengthening of this freedom in inter-
national law since the adoption of the ICCPR in 1966. The explanation relates to contested
nature of the freedom from the outset of UN standard setting on human rights. It is worth not-
ing however that there have been attempts by states to address freedom of expression and the
media in a more comprehensive way and to agree more detailed international law on the sub-
ject. All, however, have failed.
1. I NTERNATIONAL C ONFERENCE ON F REEDOM OF I NFORMATION , 1947
The first and the most serious attempt occurred in 1947 when the little remembered confer-
ence was convened by the United Nations. The story of this extraordinary conference held in
parallel to the drafting of the Universal Declaration of Human Rights, has been best told by a
Norwegian, Ambassador Gunnar Garbo, and I acknowledge my debt to him.56 As Garbo has
written, at no time before or since the 1947 conference did the international community come
so close to adopting a comprehensive set of principles and rules to govern freedom of expres-
sion and the free flow of news and information. Despite occurring at a time of intense East-
West tension that many expected to lead to another war, the conference did succeed in agree-
ing in outline three international instruments: A General Convention on Freedom of Informa-
tion; a Convention on the International Right of Correction; and a draft Convention on the
Gathering and Transmission of News.57
This early initiative on freedom of information was ultimately to come to nothing except
for the texts that were to become article 19 of the Universal Declaration and the freedom of
expression clauses of the International Covenant. As a direct result of the failure to agree rules
on the flow of information, a half century of propaganda and radio jamming ensued across
Europe. The cause of failure was fundamental disagreement between the Soviet Union and
the United States over the balance to be struck between freedom of expression and agreed
54 To these should be added the relevant provisions of the International Convention on the Elimi-
nation of Racial Discrimination, ICERD, in particular articles 4, and 5.
55 See Human Rights Files No. 18: Freedom of Expression in Europe, Case–law concerning Arti-
cle 10 of the European Convention on Human Rights (Council of Europe Publishing 2007). See also the
Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on
Human and Peoples Rights, 32nd session, 17–23 October 2002.
56 Gunnar Garbo: A World of Difference: The International Distribution of Information: The Media
and the Developing Countries (Paris: UNESCO 1985), translated by Gail Adams Kvan. Ambassador
Garbo was Chair of the First International Programme for the Development of Communication estab-
lished by UNESCO.
57 Only the Convention on the International right to Correction came into force. It was opened for
signature by GA resolution 630(VII), 16 December 1952 and entered into force 24 August 1952.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 178
restrictions on that freedom, in particular where it concerned the media. Behind the disagree-
ment over draft clauses was a more fundamental ideological difference over the role of the
state and market in regulating freedom of information across borders.
The USSR wanted to assert control on all media and communications that might challenge
the communist system, not least where it was being erected in the ‘peoples’ democracies’ of
Eastern Europe behind the Iron Curtain. On the other hand, the United States and especially
its press organisations whose idea it had been to hold the conference saw an opportunity for
economic dominance in developing world communications from a new regime of maximum
unfettered international communications.58
What might be termed three different concepts of freedom were at play in this confronta-
tion: the totalitarian/authoritarian; the liberal-democratic and the libertarian. The Soviet posi-
tion insisted on state control of information and journalism. The USA took the libertarian
stance which rejected the idea of international law or the state setting out any limitations on
freedom of information or its internal or international distribution. “The tail of limitation
should not wag the dog of freedom” as one delegate put it. The market not the state should
govern the freedom. The majority of states, including the European states took the middle
position that strongly supported freedom of expression but thought it legitimate to defend that
freedom from abuse through a framework of agreed principles and limitations. It is the mid-
dle position that has become the norm in international law. It is expressed in the language of
article 19 of the ICCPR, which affirms freedom of expression as a fundamental freedom
while also speaking of ‘special duties and responsibilities’ that accompany its exercise. While
there is no explicit recognition or protection for press freedom in article 19 of the Covenant,
its scope was intended to embrace the rights and the responsibilities of the press.
Today the totalitarian /authoritarian position on freedom of expression continues to govern
the one fifth of humanity who are citizens of China. It obtains in many other countries, for
example in Europe the case of Belarus.59 As for the United States, that country and its private
media organisations fell out of love with international regulation of the freedom of the press
after the 1948 Conference and have not changed position since. In all efforts to achieve fur-
ther protection and regulation of this freedom through international law since that date the US
has been opposed. Its stance has been that freedom of expression and media freedom are
always at risk where international regulation legitimises restriction. But its opposition has
also reflected concern that its media corporations’ dominance in global information and cul-
tural production might be at risk. In the 1970s the United States successfully led the move-
ment to block the efforts of the developing and non-aligned world in the initiatives at
UNESCO on the ‘New International Information and Communications Order’ which sought
to challenge the developed world and US dominance of information flow in the world.60 It has
also resisted successfully the objections from the European Union and others over its formal
control of the governance of the Internet.61 The United States ratified the ICCPR subject to its
58 Garbo, see note 55, 18–25.

59 Human Rights Watch, Europe and Central Asia, Belarus, www.hrw.org/europe/belarus.php.
60 Garbo, see note 55, 37–48.
61
For debates see the UN Internet Governance Forum. (IGF) Athens, 30 October–2 November
2006 (www.intgovforum.org) (last visited 23 June 2008).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 179
own constitutional provision on free speech which, as the Human Rights Committee has not-
ed, in effect places the US outside the norms of both Article 19 and 20 of the Covenant.62 If
one adds to the position taken by the United States, the most powerful country in the world,
that of a future super power China, which to date has not ratified this Covenant, the weakness
of the existing norms on freedom of expression in international law as enshrined in the
ICCPR, is stark.
What was lost in 1948 was a stronger framework of international agreement on media free-
dom and the rights and responsibilities of journalists and media organisations. There is no
international agreement on the protection of journalists or indeed no norms on the freedom of
the press in international law.63 Article 19 of the ICCPR, which fails to mention the vital role
of media yet invokes undefined duties and responsibilities connected with the exercise of the
freedom of seeking, receiving and imparting of information, is deficient. One contribution
that the present ICCPR Human Rights Committee could make would be to prepare for article
19 of the Covenant a new General Comment.64 The Committee has said nothing on the
responsibilities of states under this article since a General Comment of 1983.65 Adopted in the
Cold War this offers little substance or guidance for states as to the scope of the right for the
Information Age. Nor does it address a range of contemporary issues such as media and the
protection of privacy in the digital age or the threats to both privacy and freedom of expres-
sion from ever expanding counter-terrorism measures.66
2. UNESCO C ONVENTION ON C ULTURAL E XPRESSION
Only one global treaty relating to freedom of expression has been adopted over the last sixty
years, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultur-
al Expressions. It entered into force in March 2007.67 An earlier UNESCO Declaration on
Cultural Diversity adopted in 2001 in the immediate aftermath of the 9/11 attacks in the Unit-
ed States, describes cultural diversity including linguistic diversity as “a source of exchange,
innovation and creativity,” “a common heritage of humanity” that “should be recognized and
62 Concluding Observations of the Human Rights Committee: United States of America 03/10/95.
CCPR/C/79/Add. 50; A/50/40, paras. 266–304, para. 279.

63 An exception concerns journalists working in situations of war and armed conflicts. Under Addi-
tional Protocol No 1 of the Third Geneva Conventions 1949, an additional provision adopted in 1979
gave journalists the status of civilians, Article 79. See also the Security Council resolution 1738 (2006),
condemning acts of violence against journalists, media professionals and associated personnel, in armed
conflicts in many parts of the world.
64 ICCPR. Article 40
65 Human Rights Committee, General Comment No. 10 Freedom of Expression (Art. 19)
29.6.1983.
66 See Council of Europe: ”Declaration on freedom of expression and information in the media in
the context of the fight against terrorism”, Adopted by the Committee of Ministers on 2 March 2005 at
the 917th meeting of the Ministers’ Deputies.
67 www.unesco.org/culture/en/diversity/convention (last visited 23 June 2008).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 180
affirmed for the benefit of present and future generations”.68 The Declaration offers a perti-
nent vision for freedom of expression in the 21st Century:
While ensuring the free flow of ideas by word and image care should be exercised that all
cultures can express themselves and make themselves known. Freedom of expression,
media pluralism, multilingualism, equal access to art and to scientific and technological
knowledge, including in digital form, and the possibility for all cultures to have access to
the means of expression and dissemination are the guarantees of cultural diversity.69
These important normative initiatives reflect concern over the impact of globalisation on cul-
tures, especially minorities and indigenous peoples. UNESCO has recorded that half of the
world languages are in danger of extinction and that 90 per cent of them are not represented
on the Internet. In addition, five countries monopolize the world cultural industries. In the
field of cinema, for instance, 88 countries have never had their own film productions. The new
Convention asserts the sovereign right of states to protect their culture and to take measures
aimed at enhancing the diversity of the media including through public service broadcast-
ing.70 Apart from the goal of encouraging greater diversity, the Convention commits states to
promoting international co-operation between cultures and development and dialogue
including the creation of an international fund for cultural diversity. A key objective of the
Convention is to recognise the distinctive nature of cultural activities, goods and services as
vehicles of identity, values and meaning in the context of global rules on trade. It affirms: “the
sovereign rights of States to maintain adopt and implement policies and measures that they
deem appropriate for the protection and promotion of the diversity of cultural expressions on
their territory.”71 The European Community has ratified the treaty, as have a large number of
European countries including Norway. States from all world regions, including China, India,
Brazil, and South Africa, have ratified. The United States voted against the treaty, describing
it as “deeply flawed”.72
E. P ROSPECTS
In this lecture on freedom of expression I have perhaps spent too much time on the past rather
than the future. But perhaps a future agenda for action in strengthening freedom of expression
has been implicit. My argument has been that the experience of the last twenty and more years
underscores that advancing freedom of expression as a right is inseparable from the fate of
other rights and freedoms. It is not possible to imagine every individual having freedom to
have and express views, without the equal guarantee of other freedoms and rights. Freedom
68 The Universal Declaration on Cultural Diversity, http://unesdoc.unesco.org/ (last visited 23 June
2008).
69 Article 6.
70
“New UN treaty to preserve world’s rich cultural diversity to come into force in March”, UN
News Service, 19 December 2006.
71 Article 1.

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in that sense is indivisible. Thus freedom of expression is vital for all rights but equally all
rights are vital for it. Thinking about the universal guarantee of freedom of expression
inevitably leads to the question about the conditions required to secure it. That means work-
ing towards a future where there will be global achievement of development, democracy and
security. The case has also been made that the international defence of freedom of expression
and information requires for the future the strengthening of standards at international level
particularly as regards the role of independent media. The gains of globalisation and global
communications cannot be sustained without agreement on a positive role for the state but
also the private sector and civil society along with the international community. All need to co
-operate in defending media pluralism including the openness of the Internet as well as cul-
tural diversity and inter-cultural dialogue.

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T HE U NITED NATIONS H UMAN R IGHTS C OUNCIL : T HE N EXT

V ICTIM OF I LLUSIONS AND FALSE E XPECTATIONS
BY MIKO LEMPINEN*
A. I NTRODUCTION
The United Nations Commission on Human Rights was abolished for being allegedly too
political in nature. It was generally assumed that because the Commission was unable to find
working methods that were free from politics it was also unable to contribute to the interna-
tional promotion and protection of human rights.
By replacing the Commission on Human Rights with the Human Rights Council, a num-
ber of governments and other key actors working in the field of human rights believed, at least
for a while, that it was possible for an intergovernmental human rights body to be guided by
the principles of universality, impartiality, objectivity and non-selectivity when promoting
and encouraging respect for human rights. Why they believed that to be possible is unclear. It
is namely not meaningful to look for any significant action by an intergovernmental organ
that was not a reflection of, or at least influenced by, politics and international relations more
generally. The Human Rights Council is as political as its predecessor. Nothing has changed
in that respect. But is this all that bad? Are we not barking up the wrong tree when we accuse
the Commission on Human Rights for having brought discredit to the whole international
human rights community? At least the present author believes this to be the case.
B. D ID THE C OMMISSION ON H UMAN R IGHTS R EALLY D O T HAT BADLY ?
It would not be an exaggeration to say that the Commission on Human Rights was for much
of its existence under the control of the very same countries that ought to have been under the
Commission’s scrutiny. The composition of the Commission was favourable to all those who
did not find it appropriate to place governments under public country-specific scrutiny. This
is all well recorded because the Commission’s response to violations of human rights in par-
ticular countries is the benchmark most frequently used when evaluating its success or possi-
ble failure. It is likely that this will be true for the Human Rights Council as well.
It is true that the Commission on Human Rights never publicly condemned the military
dictatorship in Argentina where thousands disappeared or the situation of human rights in
*
Miko Lempinen (b. 1968). Educational background: PhD Pol. Sc. (Åbo Akademi University),
E.MA. (University of Padova). Current professional position: Senior researcher, Institute for Human
Rights, Åbo Akademi University, Finland. Tel. +358-40-594 8027. Email: miko.lempinen@abo.fi.
182 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER – VOL. 26, NR 2, S. 182–188. ISSN 1503-6480
NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 183
China. However, it is not possible to say that these situations were not placed under interna-
tional scrutiny. They were not placed under scrutiny by the Commission on Human Rights,
but they were placed under international scrutiny at the Commission on Human Rights by
governments with a progressive human rights policy, by non-governmental organizations and
by the thematic special procedures established by the Commission on Human Rights.1
Besides having been the principal intergovernmental human rights actor of the United
Nations, the Commission’s role also as a forum where issues of concern were raised – irre-
spective of whether the Commission, in the end, took any action – was crucial. Distinguish-
ing between the Commission on Human Rights as an actor, on the one hand, and a forum, on
the other, is important when arguing that the mere submission of a country-specific draft res-
olution together with the process attached to this, as such, amounts to international exposure
of the targeted government and its human rights record.
The assumption of the importance of the process as a whole, which emphasizes lobbying,
debate, accusations and negotiations between all interested parties, consequently avoids
overemphasizing the adopted resolution. One should not be all that concerned by the fact that
the Commission was time and again unable to express its concern on a number of issues. A
draft resolution, for example, on a politically significant country hardly goes unnoticed,
despite the fact that the draft in the end is defeated. The lively debate caused by such a draft
resolution is more significant than an adopted resolution which has not been given proper
attention. And there are plenty of resolutions that are adopted, year after year, without any
debate, and without anyone really paying any attention to them.
Those who criticize the Commission on Human Rights for having been impotent, unable
and unwilling to address serious violations of human rights are, undoubtedly, at least partly
right. But the essential point is frequently missed completely by not realizing the importance
of the interaction between all interested parties that took place during the Commission’s
annual session and the work that began months before the session even started. The work at
the United Nations – surely the largest institutionalized dialogue of all – is so much more than
the adoption of resolutions. The strength of the scrutiny lies not in the resolution, but else-
where. It is, however, of utmost importance that governments with a progressive human
rights policy continue to raise issues of concern even when it is obvious that such initiatives
will raise strong opposition among a considerable number of countries.
It is under these circumstances that it is possible to argue that the Commission’s composi-
tion was not so decisive when evaluating its achievements and possible failures. The same is
true for the Human Rights Council as well.
1 See, e.g., Philip Alston: ”The Commission on Human Rights”, in Philip Alston (ed.), The United
Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press 1992) 126–210; and Miko
Lempinen: The United Nations Commission on Human Rights and the Different Treatment of Govern-
ments: An Inseparable Part of Promoting and Encouraging Respect for Human Rights? (Åbo: Åbo
Akademi University Press 2005).

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 184
C. T HE I RRELEVANT M EMBERSHIP R EQUIREMENTS
The way members of the Human Rights Council are elected is, indeed, innovative.2 But we
still only have the same players to choose from.3 It is also unlikely that the requirement
attached to the membership of the Council according to which members elected shall ”be
reviewed under the universal periodic review mechanism during their term of membership”4
would have the result that certain countries with a less impressive human rights record would
decide not to apply for membership as was initially intended. They will be placed under the
universal periodic review anyway, irrespective of whether they are members or not. It is still,
as it was during the Commission on Human Rights, more tempting to be among the members
of the Council than to be among the observers.
However well intended, the universal periodic review will hardly provide a serious oppor-
tunity to evaluate the fulfilment by all states of all their human rights obligations. This will
particularly be the case if much effort is not put into the exercise. It is true that it is still too ear-
ly to make any assessment of the role and function of the universal periodic review in the over-
all work of the Human Rights Council. It has, however, been agreed that the review should not
be ”overly burdensome” to the concerned State nor ”overly long” in order not to place too
heavy a burden on governments in their allegedly sincere effort to promote and protect human
rights.5 It is up to everyone to judge whether this is good or bad.
It is the present author’s sincere wish that his scepticism is proven wrong and that the uni-
versal periodic review proves useful, avoids becoming the next wastepaper basket of the
Organization,6 will not be discontinued as obsolete or as an activity of marginal importance7
2 It has, among other things, been agreed that members of the Human Rights Council ”shall be elect-
ed directly and individually by secret ballot by the majority of the members of the General Assembly”
which means that at least 96 votes are required to be elected. General Assembly resolution 60/251, para-
graph 7.
3 In the statement delivered after the adoption of draft resolution A/60/L.48 on the Human Rights
Council, on 15 March 2006, the delegate of Brazil reminded other delegates of the fact that the creation
of the Human Rights Council should not be understood as an end in itself because “at the end of the day,
the members of the old and often criticized Commission on Human Rights will be the very same mem-
bers of the new Council”. UN doc. A/60/PV.72.
4 General Assembly resolution 60/251, paragraph 9.
5 Human Rights Council resolution 5/1, annex, paragraph 3 (h) and (i).
6 John Humphrey, the first Director of the United Nations Division of Human Rights, called the pro-
cedure in which complaints concerning human rights were treated at the United Nations as the ”most
elaborate wastepaper basket ever invented”. John Humphrey: Human Rights & the United Nations: a
great adventure (Dobbs Ferry: Transnational Publishers Inc. 1984) 28.
7 For the universal periodic reporting mechanism undertaken by the Commission on Human Rights
between 1956 and 1981, see Commission on Human Rights resolution I of 1956; Economic and Social
Council resolutions 728 C of 30 July 1959, 1074 C (XXXIX) of 28 July 1965, 1596 (L) of 21 May 1971,
1978/20 of 5 May 1978 as well as Commission on Human Rights decision 10 (XXXVII) of 13 March
1981; Economic and Social Council decision 1981/151 of 8 May 1981. See UN doc A/C.5/35/40 and
Add.1, for the Secretary-General’s report, prepared in 1980, on the identification of activities that have

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 185
and that its results will not only be measurable in terms of trees destroyed.8 It remains, how-
ever, a mystery to the present author how an intergovernmental human rights body will man-
age to carry out a review objectively and non-politically or why it even should try to do that.
It is at the election of the Council members that Members of the United Nations may, if they
choose, ”take into account the contribution of the candidates to the promotion and protection
of human rights and their voluntary pledges and commitments made thereto”.9 It is true that
certain countries with a less impressive human rights record have failed to become elected to
the Human Rights Council.10 This may, indeed, be due to the new election procedure. It is
equally true, however, that an equally large number of countries with a poor human rights
record and with a marginal, if any, commitment and contribution to the promotion and pro-
tection of human rights have been elected to the Council. The elections held so far have not, in
other words, revealed any significant change in the composition of the Council as compared
to the composition of the Commission. The most significant difference so far is that the Unit-
ed States has not stood for election to the body whose establishment it opposed.11 But all this
is less important if it is believed that the composition of the Council is not so decisive when
evaluating its achievements and possible failures.
It would, indeed, be a considerable breakthrough in the foreign human rights policy of
states and in international relations more generally if human rights were placed so high on the
agenda of states that other qualifications and relations between states had become less impor-
tant than a government’s human rights record. The requirement attached to the election
process – the contribution of candidates to the promotion and protection of human rights and
their voluntary pledges and commitments made thereto – is hardly relevant.
The voluntary pledges so far submitted by the candidate countries are indeed impressive.
They do, however, hardly contain anything that would not belong to the international obliga-
tions that the government concerned already was bound by. There is no need for member
states of the United Nations to recommit themselves to anything. What they need to do is to
start fulfilling their already undertaken commitments.
been completed or are obsolete, of marginal usefulness or ineffective. In the report, the Secretary-Gen-
eral noted, in rather cautious terms, that the reporting procedure ”yielded modest results” and that the
procedure was considered to be of ”marginal usefulness and somewhat ineffective”. UN doc.
A/C.5/35/40, annex, table 1 (summary of the activities which are considered to be obsolete, of margin-
al usefulness or ineffective in the programme budget for the biennium 1980-1981).
8 Philip Alston noted in 2006 that the achievements of the Commission’s previous reporting proce-
dure could readily be measured in terms of trees destroyed, but it is doubtful whether it made any sig-
nificant contribution to the promotion of respect for human rights. It did, however, succeed in giving the
appearance that all governments were making themselves accountable to the Commission. Philip
Alston: ”Reconceiving the UN Human Rights Regime: Challenges confronting the New UN Human
Rights Council” (2006) 7 Melbourne Journal of International Law, no. 1.
9 General Assembly resolution 60/251, paragraph 8.
10 Elections have so far been held on 9 May 2006 and 17 May 2007.
11 United States of America, together with its closest allies, Israel, Marshall Islands and Palau, vot-
ed against General Assembly resolution 60/251 of 15 March 2006 establishing the Human Rights Coun-
cil.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 186
D. W HERE D OES A LL THIS L EAVE U S ?
The establishment of the Human Rights Council was welcomed by many as an opportunity
for a new and fresh start with a body that would enjoy a higher institutional status and that
would not cause so much disappointment as the Commission on Human Rights allegedly did.
For others, it was merely a reminder of the fact that politics, not the promotion and protection
of human rights, comes first.
The debate on the importance of the institutional status of the main human rights body of
the United Nations has a long history. Hersch Lauterpacht noted in 1950 that the United
Nations would not meet the expectations set forth in the Charter of the United Nations con-
cerning the promotion and encouraging respect for human rights until the Commission on
Human Rights was transformed into a body with the status of a council.12 Also John
Humphrey, the first Director of the United Nations Division of Human Rights, noted that the
main human rights body of the Organizations should not be a functional commission of the
Economic and Social Council but rather a “Council of Human Rights”.13 An interesting point
was also raised by Jean-Bernard Marie when he noted that the Commission could well be
transformed into a council that would, as the Economic and Social Council, be assisted by
functional commissions.14
To believe that the creation of a new body that enjoys higher institutional status would
“accord human rights a more authoritative position” as the Secretary-General put it in his
report “In larger freedom” is interesting.15 The assessment made by the present author with
regard to the role of the Commission on Human Rights and the level and quality of the pro-
motion and protection of human rights by the Commission is, however, in sharp contradiction
with the one made by the Secretary-General.
The Commission on Human Rights was an exceptional body. Because of its importance
and, in particular, because of the importance attached to human rights, the Commission was
given more attention than any other subsidiary organ of the United Nations. It was not a hand-
icap for the promotion and protection of human rights that the Commission on Human Rights
was a functional commission of the Economic and Social Council. In fact, it was even seen as
an advantage that there was a certain institutional distance between the Commission and the
General Assembly.16
Addressing the twenty-fifth session of the General Assembly on 23 October 1970, the late
President of Finland, Urho Kekkonen, noted that “the UN is plagued by public disappoint-
ment born of illusions and false expectations”. The President continued by noting that “[A]s
12 Hersch Lauterpacht: International Law and Human Rights (London: Stevens & Sons Limited
1950) 254.
13 John Humphrey, 1984, 56.
14 Jean-Bernard Marie : La Commission des Droits de l’Homme de l’O.N.U. (Paris : Editions A.
Pedone (D) 1975) 320.

15 UN doc. A/59/2005, paragraph 183.
16 See, for example, the written contributions from 1978 by France, Australia, the German Demo-
cratic Republic, the Federal Republic of Germany, and India. UN docs. E/CN.4/1318 and
E/CN.4/1318/Add.1.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 187
we now discuss what could be done to make this Organization more effective, let us beware of
creating new illusions leading to more disappointment”.17 Although the late President of Fin-
land spoke on a completely different occasion and place of time his words are useful to bear in
mind whenever a reform process is proposed at the United Nations.
What now has been done with the creation of the Human Rights Council is precisely what
the late President of Finland was referring to some thirty-five years ago. Some of us had – and
some may even still have – great expectations about a body with higher institutional status that
could work objectively, non-selectively and that would not apply double standards. It could,
it was believed, start its work with a clean table, free from politics, and without the allegedly
harmful past of the Commission on Human Rights hanging over its shoulders. However, the
only way to get rid of politics would have been to get rid of the governments. But that is sure-
ly not what we need. We have enough expert bodies already. What we need is an intergovern-
mental body where governments gather and debate issues of concern. We should not expect
any less politics at the Human Rights Council, despite the fact that the allegations of the Com-
mission’s politicization caused its abolition. It should not be understood as a huge disappoint-
ment if the Human Rights Council will not perform its duties better than its predecessor. This
is the case because the Commission on Human Rights did not fail in its task.
On a previous occasion, the present author has concluded that the Commission on Human
Rights was the victim of illusions and false expectations.18 The argument made in the present
contribution is that the Human Rights Council will be the next victim of illusions and false
expectations. Human Rights Council will, in next to no time, be accused for inefficiency,
hypocrisy, selectivity, for applying double standards, and above all for politicizing human
rights exactly as the Commission on Human Rights was. Nothing has changed in this regard.19
However, we should not criticize the structures that we have created if something goes
wrong. The occasional failure of the Commission to adopt a certain initiative should not be
understood as having reduced its authority and credibility. We cannot, for example, criticise
the Commission on Human Rights for not having condemned discrimination based on a per-
son’s sexual orientation or for not having publicly condemned the atrocities committed by the
regime of Idi Amin’s Uganda. Instead we need to look at the actors – the governments – that
are responsible for an alleged failure. It was the authority and credibility of those governments
that voted against these progressive initiatives that suffered, not that of the Commission.
In her statement of 23 February 2006, the High Commissioner for Human Rights noted pre-
cisely on this point that “even an institution that is perfect on paper cannot succeed if the inter-
national community does not make the necessary change in the culture of defending human
rights”. The High Commissioner continued by noting that it was the inability of the interna-
17 Statement found in Ulkopoliittisia lausuntoja ja asiakirjoja, 1970, 258–261. See also United
Nations General Assembly, twenty-fifth session, 1881st meeting, paragraphs 2-15.
18 Miko Lempinen: “United Nations Commission on Human Rights: The Victim of Illusions and
False Expectations”. Paper presented at the Symposium The Protection of Human Rights by the United
Nations Charter Bodies, 25-27 July 2007, MenschenRechtsZentrum der Universität Potsdam.
19 See the contribution by Thomas Obel Hansen: “FNs Menneskerettighedsråd – En kritisk analyse
af rådets hidtidige formåen” (2007) 25 Nordic Journal of Human Rights, 193–201, for a brief evaluation
of the early achievements of the Human Rights Council.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 188
tional community to respect its commitments that caused the continuous disappointments
towards the Commission’s work.20 It was, in other words, the Member States of the United
Nations that failed, not the institutional structure they had created. It was the Member States
of the United Nations, or at least some of them, who had lost their credibility and profession-
alism and that had brought discredit not only upon the Commission on Human Rights but
upon the United Nations as a whole, not the Commission on Human Rights.
Unlike many who will criticize the Human Rights Council, the present author argues that
the Council’s importance – like the importance of the Commission on Human Rights – is
found precisely in the fact that it is a body composed of governments where human rights are
placed on the agenda of states. The Human Rights Council matters precisely because it does
not act as a body of independent human rights experts. The Council matters and it contributes
to the international promotion and protection of human rights not despite but indeed because
of its political nature.
The confrontational and sometimes bitter atmosphere that will be felt in the plenary hall
and the occasional loss of some country-specific or innovative thematic initiatives do not
highlight – as some may believe – the Council’s irrelevance, but rather its importance.
20 Statement by the United Nations High Commissioner for Human Rights, Louise Arbour, at the
informal consultations of the plenary on the Human Rights Council.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 189
THE HUMAN RIGHTS ARCHITECTURE OF EUROPE: RECOM-

MENDATIONS FROM THE N ORDIC I NSTITUTES OF H UMAN R IGHTS
BY GUDMUNDUR ALFREDSSON, MORTEN KJÆRUM, MARTIN SCHEININ AND GEIR ULFSTEIN*
A. I NTRODUCTION
Europe has had two large regional organisations working directly with human rights: the
Council of Europe for almost 60 years and the Organization for Security and Cooperation in
Europe (OSCE) since the 1970s. The European Union (EU) has also been involved in the
global promotion of human rights for many decades and is also gradually developing its inter-
nal human rights dimension. The EU is now setting up a new human rights institution: the
Fundamental Rights Agency. It is therefore time to investigate whether the three organiza-
tions (Council of Europe, OSCE and EU) are properly designed to resolve the specific func-
tions needed of a regional human rights machinery.
What should be expected from a comprehensive regional system is that it:
• affirms and develops the highest normative standards for human rights,
• offers effective monitoring and protection to secure compliance with the standards,
• provides professional and experienced capacity building for national level protection
mechanisms, within Europe and beyond; and
• serves a constructive, progressive and consistent role within the United Nations human
rights machinery.
These fundamental requirements can in principle be delivered in a unified system or via the
combined interventions of several institutions. In Europe today there are three key institu-
tions shaping a comprehensive European system. However it is high time to ask whether they
supplement each other, overlap, destructively compete or jointly under-deliver.
In this respect the Nordic institutes for human rights organized a symposium in Oslo 29–30
November 2007 on the Human Rights Architecture of Europe. The Nordic institutes recom-
mend that:
* Gudmundur Alfredsson (Raoul Wallenberg Institute), Morten Kjærum (Danish Institute for
Human Rights), Martin Scheinin (Åbo Akademi) and Geir Ulfstein (Norwegian Centre for Human
Rights). The text is based on the Symposium ‘The Human Rights Architecture of Europe’, arranged by
the Norwegian Centre for Human Rights in cooperation with the other Nordic human rights instituti-
ons 29-30 November 2008.
NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 190
• the Nordic governments commission a comprehensive study on the future European

human rights architecture, and
• these Nordic human rights institutes’ recommendations be used to draft the terms of refe-
rence of such a study.
B. C OUNCIL OF E UROPE
The Nordic human rights institutes recommend that the Council of Europe remain the pri-
mary human rights forum in Europe, this requiring the Council both to strengthen its own
human rights focus and define its relationship to the other European organisations, especial-
ly the Organisation for Security and Cooperation in Europe and the European Union in a con-
structive and collaborative manner. This may require radical reform of the Council of Europe,
discontinuing some of its non-human-rights activities and shedding redundant parts of the
human rights programme.
The Council of Europe is perceived by external observers as highly self-contained and insu-
lar. The Council of Europe needs to open up and develop a much stronger dialogue and engage-
ment with non-state actors such as NGOs, national human rights institutions and ombudsmen,
the corporate sector and others. The complex internal structure of Council of Europe, not only
an intergovernmental dimension but a Parliamentary Assembly and a bureaucracy headed by a
politically appointed Secretary-General as well, may be a part of the problem.
A clearing house or coordination office supported by the three institutions – CoE, OSCE
and EU – should be created in the field of capacity building to secure real-time exchange of
information and effective coordination in capacity building, as well as facilitating the devel-
opment of comprehensive strategies. The Nordic governments should finance the project.
Taking note of the important role of National Human Rights Institutions (NIs) in remedy-
ing human rights violations, but in particular in raising awareness in general and among state
authorities in particular, comprehensive European strategies need to be developed that pro-
mote the interaction between regional bodies and NIs.
We consider a strong monitoring mechanism to be a vital component of any human rights
convention; we recommend that studies be undertaken on how the various Council of
Europe’s human rights mechanisms and institutions may be strengthened and streamlined,
including a.o. the possibility of establishing a monitoring body for conventions without such
a mechanism, for instance the European Convention on Nationality, and a complaints proce-
dure under the Framework Convention for the Protection of National Minorities.
The Committee of Ministers and the Parliamentary Assembly represent a political dimen-
sion in the protection and promotion of human rights. The Committee of Ministers has fur-
thermore an important function in ensuring the execution of judgments by the European
Court of Human Rights at the national level. It should, however, be considered how the Com-
mittee best can support implementation of findings by other supervisory organs (such as those
under the European Social Charter and the Framework Convention on National Minorities),
and, above all, not undermine their interpretive authority by taking into account political con-
siderations. Likewise, the Parliamentary Assembly should aim at strengthening the work of
the supervisory organs and not engage in double-politicisation and even arbitrariness.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 191
The role of the European Court of Human Rights (ECtHR) has to be secured and strength-
ened through appropriate financing and relevant procedural reforms. The Nordic human
rights institutes recommend that both on-going and upcoming reforms be analysed and fol-
lowed up in a constructive manner by all relevant Nordic governments, NGOs, ombudsmen,
research institutes and national human rights institutions.
Concerning the role and the functioning of the ECtHR, several avenues could be explored.
It has been suggested that a ‘filtering mechanism’ should be adopted to allow the Court to con-
centrate on the most serious cases or those involving questions of principle. We, however, feel
it necessary to warn against denying direct individual access to the Court. Improvements in
its working methods have already increased the Court’s capacity. But, most importantly, the
fundamental reason for the overload of cases is that national legal systems are not properly
reflecting international human rights standards, and the lack of effective national remedies.
As far as unmeritorious cases are concerned, information about and education of lawyers on
the ECHR, the ECtHR and its practice is also lacking. For this reason, the Nordic human
rights Institutes consider that more emphasis should still be placed on improvements of
national legal systems. There is furthermore a need to train government officials and raise the
public’s awareness more widely about these issues.
Possible options to be explored include:
• Analysis of the work by the European Commission for Democracy through Law (the Veni-
ce Commission)
• Cooperation between national human rights institutes and the Office of the Commissioner
for Human Rights
• The use of pilot judgments as a method to decide a whole category of cases through an
order of a collective remedy
• The institution of hybrid tribunals, with international judges, in respect of countries that
generate a disproportionate number of cases before the Court. It is to be emphasized that
such tribunals belong to the national legal system and in no way replace the role of the
European Court at the international level.
C. T HE E UROPEAN U NION
Within the human rights area the EU should be compared to a nation state inasmuch as there
is a need to ensure implementation of human rights within EU law and practice. Mechanisms
to this effect should be seen as supporting rather than competing against Council of Europe
mechanisms, including the European Court of Human Rights.
There is a need for an active Fundamental Rights Agency. We recommend that the mandate
of the Agency should be strengthened and cover not only the implementation of EU law but
all aspects of the former Third Pillar, and of human rights in member states. The Agency
should be given sufficient resources in order for it to develop, obtain and utilize highly pro-
fessional analysis of human rights issues for the Commission, Parliament, Council and mem-
ber states, as well as to capitalize on the numerous and important networks attached to the
Agency such as networks of independent experts and the Scientific Committee of the Agency.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 192
The EU should accede to the European Convention on Human Rights as accepted in the
Lisbon Treaty and ECHR Protocol 14. The EU should, however, also strive for accession to
global human rights instruments, starting with the Convention on the Rights of Persons with
Disabilities. Furthermore, the EU should consider reporting on human rights implementation
on a voluntary basis under other global human rights instruments.
D. T HE O RGANISATION FOR S ECURITY AND C OOPERATION IN E UROPE
It should be recognised that the OSCE has a particular role to play in the field of capacity
building, since it has a broader membership and represents a more flexible approach than tra-
ditional intergovernmental organizations. Furthermore, the roundtable concepts of the
OSCE/ODIHR have created an inclusive discourse which should be developed further. The
activities of the OSCE should be guided by the additional benefits of a wider participation of
states and of its security mandate. The OSCE should be considered to have a particular role in
capacity building in participating states that are not member states of the Council of Europe.
E. U NITED NATIONS
Europe can contribute to the development of standards, capacity building, monitoring and
dispute settlement mechanisms within the UN. While it is positive that the EU develops its
common positions on human rights, it should allow its member states to act in a constructive
way when interacting with non-member states. Nordic cooperation has a long tradition and
should be promoted. As the establishment of the Human Rights Council has resulted in new
power constellations, Europe must not isolate itself by focusing on internal negotiations on
positions and ignoring the need to be innovative, constructive and diplomatic.
Finally, the Nordic governments should feel a responsibility to develop best practice when
examined by the Universal Periodic Review under the Human Rights Council or when par-
ticipating in the examination of other countries.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 193
BOKANMELDELSER
Sia Spiliopoulou Åkermark (ed.): Den åländska hembygdsrätten (1sta utg., Mariehamn:
Ålands lagting och Ålands fredsinstitut 2007), ISBN 978-952-5265-20-0, 139 pp.
REVIEWED BY NORBERT TÓTH*
As it is widely known among scholars inter- guage, namely Swedish, which means that
ested in minority issues and perhaps other Finnish can only boast unofficial status in the
issues as well, the status (but not simply the archipelago. Second, Ålanders retain their
territorial autonomy!) of the Åland Islands special Ålandic status, or let us say, ‘citizen-
has some special and unique characteristics ship’, by virtue of a very strange and unique
when compared with other examples island legal instrument, the ‘right of domicile’
communities. Almost all these special fea- (hembygdsrätt). Conferring certain citizen-
tures are linked to the Swedish character of ship rights on holders, it passes from parent
the archipelago in question1 enabled by the to child. It was the subject of a 14 June 2007
so-called Ålandsöverelskommelse (Åland Helsinki symposium on ‘Right of Domicile,
Agreement) between Finland and Sweden Right to Conduct Business, Civil Rights –
and based on the well-known 1921 decision Cornerstones of Åland Autonomy’,3 organ-
of the League of Nations. In laying down a ised by the Åland Parliament (Ålands lag-
framework for autonomy, the 1921 Decision ting), Åland Islands Peace Institute (Ålands
of the Council of the League of Nations on fredsinstitut) and Centre for Nordic Studies,
the Åland Islands reminded the parties that Helsinki University. The proceedings are
‘The new guarantees to be inserted in the now available as a book published jointly by
autonomy law should specially aim at the Åland Parliament and Peace Institute.4
preservation of the Swedish language in the One could ask of course whether another
schools, at the maintenance of the landed book about the Åland Islands is strictly nec-
property in the hands of the Islanders’.2 At essary, since it is such a well-studied case
least two of the (unique) cornerstones of the already. Well, despite the wealth of literature
Ålandic regime derive from this. First of all, on Åland, the Ålandic regime is – just like
the Åland Islands have only one official lan- other autonomy arrangements – not a frozen
* Norbert Tóth (b. 1980), Master of Laws (Pécs), Doctoral candidate, Junior research fel-
low, Research Institute on Ethnic and National Minorities of the Hungarian Academy of Sci-
ences. E-mail: ntoth@mtaki.hu.
1 Its neutrality is another unusual feature of the Åland Islands; it harks back to the geopo-
litical significance of the region in times past.

2 1921 Decision of the Council of the League of Nations on the question of Åland, 3rd
paragraph.
3 ’Hembygdsrätt, näringsrätt, medborgarrätt – hörnsternar i den åländska självstyrelsen’.
4 Four of its five chapters are in Swedish, the other in English.
NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 194
system but one in flux, reacting continuous- matter shall be rendered by the Supreme
ly to changes in the environment. Suffice it Court on the proposal of the Government of
here to mention the fact that since the estab- Åland or the State official.
lishment of Åland’s self-government three According to Koskelo, the paragraph has
autonomy statutes have been adopted so far. been used only twice in the last decade. One
Furthermore, the subject of the book of the most interesting discussions concerns
reviewed, i.e., the right of domicile, has a dispute settled by having recourse to sec-
received less attention by scholars and tion 77 of the Finnish constitution. The sec-
researchers. tion requires acts to be submitted to the Pres-
The first chapter, written by Pauliine ident of Finland for confirmation. In 2001,
Koskelo, explores the role of the Finnish the president confirmed the ‘Lottery Act’.
Supreme Court in deciding jurisdiction dis- The Supreme Court found however that the
putes between the Finnish State and Åland. Act in question was inadequate to the regula-
The author is perhaps one of the most tions set out in the Act on Åland. In other
informed persons one is likely to meet: She is words, the Court made a decision in favour
president of the Supreme Court. The compe- of the interests of Åland by recommending
tence of the Supreme Court to control the an amendment to the law on lotteries! That
Lagting’s lawmaking process is set out in said, the role of Supreme Court in matters
Section 19 of the 1991 Law on Åland’s self- pertaining to Åland has being questioned
government, but is limited to examining the several times in the eighty-odd years since
legality of Lagting acts. According to the establishment of autonomous institu-
Koskelo, there is an old tradition of not questions, as indeed Koskelo concludes.
tioning the opinion of the Åland Delegation In her chapter on the emergence of the
on this matter. She differentiates three cate- right of domicile as a unique piece of legisla-
gories of possible illegality. The first arises tion, Sia Spiliopoulou Åkermark looks at the
when an Act of Åland is contrary to the period between 1921 and 1951 and the legal
Finnish constitution. In cases like this the lat- and political circumstances prevailing at the
ter has a priority over the former. Second, time (Hembygdsrättens framväxt: Från
there are the so-called classical cases, when Ålandsöverelskommelsen till 1951 års själv-
an Ålandic authority simply goes beyond its styrelselag – och idag?). Åkermark, the cur-
powers. And finally, the most serious points rent director of the Peace Institute of Åland,
of dispute arise when a certain norm is con- notes that Ålandic regional ‘citizenship’
trary to EU rules. The situation mentioned is emerged from a combination of historic facts
still under debate because of an international and brainstorming by legal scholars on
agreement, known as the Protocol on Åland Åland’s regime during the interwar period.
and its regulations. Koskelo also mentions Autonomy was not planned originally, then,
disputes relating to section 60 § (2) of the and its seeds can be traced to the Åland auto-
1991 Law on Åland. This reads as follows: nomy Act.5 The subsequent history of the
If a conflict of authority arises between right of domicile from 1951 to today is the
Åland officials and State officials on a given subject of Anna-Lena Sjölund’s chapter
administrative function, a decision on the ‘Förvärv av åländsk hembygdsrätt på ansö-
5 Suksi Markku: Ålands konstitution (1.utg., Åbo: Åbo Akademis Förlag 2005) 41.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 195
kan’. She also examines statistical data in her Williams, from an international obligation of
discussion of the process of applying for Finland, it is based on law and has a legiti-
right of domicile. mate purpose, namely to preserve the
Jouko Kinnunen studies migration to and Ålandic population’s identity. Therefore the
from Åland in his chapter on the necessity of relevant test of the practical rights and duties
free movement of people and businesses to emanating from the right should be based on
Åland’s economic health (‘Fri rörlighet för proportionality and reasonability.
människor och företag: En förutsättning för And what conclusions can be drawn after
Ålands utveckling’), while Rhodri C. reading the book? Well, first of all we should
Williams analyzes lack of coherence underline the unique character of right of
between the right of domicile, EU and inter- domicile at least once more. If we take a look
national law in terms of human rights. Dis- at the autonomy debates all over in Europe
cussing ‘Excluding to Protect: Land Rights nowadays, it would seem virtually impossi-
and Minority Protection in International ble to implement a similar system for emerg-
Law’, Williams lists three areas in which the ing regimes in other parts of our continent,
right of domicile restricts other rights. First, not least as it would collide head-on with
it restricts the rights of those with the right of EU’s legal, political and historical frame-
domicile on Åland to dispose over their work. In other words, the European system
property freely through testamentary dispo- of individual human rights, and the econom-
sition. Second, it restricts the rights of per- ic basis of EU, namely the ‘four freedoms’
sons without the right of domicile to pur- make such arrangement highly unlikely any-
chase, possess, lease or inherit landed prop- where else. In this aspect, the Ålanders are
erty on Åland. And third, it restricts the right lucky, because the institution of domicile
of legal residents of Finland without the right entitlement is older than European integra-
of domicile to freely choose their place of tion. Albeit its uniqueness, it seems to be an
residence on Åland.6 appropriate tool to preserve a certain group’s
But while the present right of domicile identity. And what if it causes economic
system appears to clash with EU and/or troubles in the future? I am sure the Ålanders
international law, it originates, says will find an appropriate remedy.
***
6Åkermark Sia-Spiliopoulou (ed.): Den åländska hembygdsrätten (1. utg., Mariehamn:

Ålands lagting och Ålands fredsinstitut 2007) 109–110.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 196
Mats Lindfelt: Fundamental rights in the European Union: Towards higher law of the
land? A study of the status of fundamental rights in a broader constitutional setting. (Åbo:
Åbo Akademi University Press 2007), ISBN: 951-765-346-8, 360+viii s.
ANMELDT AV HJALTE RASMUSSEN*
Mats Lindfelt (ML) vil i sin afhandling navn- ML flere steder breder sine argumentationer
lig undersøge fire forskningsspørgsmål (s. over ganske mange sider uden at annoncere,
15): Hvilken er i EU-retssystemet den norma- at fortsættelse følger. Man opdager det derfor
tive status af grundrettighederne, og har den- typisk for sent i en situation, hvor stikord vil-
ne status været for opadgående siden vedta- le have hjulpet læseren tilbage til begyn-
gelsen af 2000-grundrettighedchartret, som delsen af argumentationen. Et godt eksempel
et konvent formulerede i de sidste år af herpå er ML’s diskussion af, hvorfor EF-
1990erne, og som institutionerne i 2000 tog domstolen i mange år lod, som om 2000-
til sig i form af en anerkendende, Højtidelig Chartret ikke eksisterede, som (med pauser)
Politik Erklæring? Dernæst: Hvad er selve varer fra s. 173 til s. 257.
2000-Chartrets retlige status og hvilke dets I anden runde belyser anmeldelsen de pro-
retsvirkninger? Er grundrettighederne lave- blemer, som strandingen af forfatningstrakta-
rerangerende almindelige retsgrundsætning- ten – muligvis midt i ML’s arbejdsproces –
er i EU’s normhierarki end TEF’s fire grund- skabte for sammenhængen i bogens analyser.
læggende økonomiske rettigheder til fri På linje med fhv. EU-dommer Pierre Pescato-
bevægelighed, der er skrevne retsregler med re (s. 13) og professor Joseph Weiler (s. 249)
traktatstatus? Usikker på oversættelsen/for- peger Deres anmelder til slut kritisk på ML’s
ståelsen af spørgsmål 4 lyder dette på origina- (og mange andres) unuancerede begejstring
lens engelsk: ”Does the EUCFR itself create over, at charterrettighederne er ved at blive
an internal hierarchy rights? If so, what is the retliggjorte. Det bedste, sagde Pescatore om
implication of this in terms of promoting the Chartret, ville være, om dette “spurious docu-
indivisibility of rights?”. ment” “will remain in the OJ C series, thus
Forfatteren, som i flere år har arbejdet never acquiring a formally binding legal sta-
intenst med disse emner, skal lykønskes med tus.”
at have forfattet en god og læseværdig bog på Bogens forsøg på at forklare, hvorfor EFD
et ganske velbehandlet engelsk. Den omfatter først inddrog 2000-Chartret i en domspræmis
en rummelig emnekreds af utvivlsom aktuel i 2006, indleder ML først rigtig side 232.
samfundsmæssig og videnskabelig interesse, Over for Domstolens tavshed står, at Første-
som belyses bredt. Afhandlingen er, dens instansen i samme periode gang på gang hav-
længde taget i betragtning, desværre trykt de benyttet Chartret retligt udfordrende i sine
uden stikordsregister. Det vanskeliggør læse- domme, samt at generaladvokaterne talløse
rens vej ind i ML’s univers, blandt andet fordi gange havde gjort Chartret til afgørende rets-
* Hjalte Rasmussen (f. 1940), dr. jur. Først professor (EU-ret) på CBS, siden 1993 på Københavns
Universitet. Visiting professor bl.a. l’Université Aix-Marseille III og College of Europe. Jean Monnet
Professor (EU-ret, 1997). Hovedværk: On Law and Policy in the European Court of Justice. A Com-
parative Study in Judicial Policymaking (1986). Korresponderende medlem af “Det Norske Videnskaps
Akademi” (2003-). Email: Hjalte.Rasmussen@jur.ku.dk.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 197
kilde. ML’s første forklaringsforsøg henter I sin forsatte søgen efter en gyldig forkla-
han i en afhandling af professor Miguel ring antyder ML på s. 256, at EFD’s tavshed
Maduro (fra 2003 generaladvokat), som anta- kunne skyldes, at Chartret findes i to versio-
ger, at EFD ikke forsatte med at tie Chartret ner: Den fra 2000 og Fremtidskonventets
ihjel, fordi tavsheden ville koste den sit histo- modificerede redaktion (s. 108; arg. 4). Den
riske nærmest-monopol på at være grundret- slags tvetydigheder plejer dog ikke at
tighedernes beskytter i EU (arg. 1). Den anta- afskrække EF-domstolen. En langt bedre tese
gelse anser ML dog for at være for kynisk til formulerer ML herefter på s. 257, hvorefter
at være sand (s. 232). I tavshed passerer ML, Domstolens kursændring i 2006-dommen
at EU-retshistorien til fulde viser, at Domsto- fulgte af, at den i sagen omstridte retsakt selv
lens realpolitiske dømmekraft aldrig har fej- havde indarbejdet Chartret i sin præambel og
let noget, hvorfor Maduros forklaring faktisk derved nærmest inviteret EFD til at forholde
forekommer troværdig. Domstolen måtte sig til Chartrets retskildeværdi (arg. 5).
formentlig i 2006-dommen endog foretage Isoleret herfra, men efter min vurdering
hele to ”kyniske” afvejninger. Foruden den uhyre centralt for tavshedsargumentationen
nævnte, måtte EFD afveje, om prisen for et påpeger ML på siderne 173 og 204, at EF-
eventuelt forsøg på at redde magten kunne dommerne kan have holdt beskyttelsen af
blive at vække slumrende løver – i skikkelse charterrettighederne på lavt blus for at undgå
af et antal medlemsstater. Ville uviljen blandt at ofre hele eller dele af de originale, traktat-
modstanderne i medlemsstatskredsen af at fæstede rettigheder til fri bevægelighed og
retliggøre grundrettighedschartret vokse, disses velstands- og velfærdsgenererende
dersom EFD begyndte at udvide grundrettig- potentialer – uden på baggrund af en sikker
hedsbeskyttelsen blot på grundlag af et retligt (men endnu ikke forhåndenværende) intern-
uforpligtende dokument? Hvad kunne så retlig konsensus mht. den rette retskildeprio-
ikke ske med et retligt bindende charter? At ritering (arg. 6; mere nedenfor).
EFD’s balancegang i dette spændingsfelt ML afslutter sin argumentation på s. 257
ikke var let, fremgår formentlig af, at EFD i uden klart at røbe, hvilken forklaring på mar-
2006-dommen nøjedes med at citere Chartret ginaliseringen han anser for den bærende. I
til støtte for et resultat, som andre retskilder stedet anfører han, at ”we have a Charter that
givetvis kunne bære alene. has proven to be of legal significance in spite
Næste argument (på ny Maduros) lyder, at of its formally non-binding character.” Ikke
EFD’s tavshed måske var udtryk for en sund meget af et resultat mod slutningen af over
judiciel self-restraint. Tesen, som lyder, at 250 siders analyser. I øvrigt: Også medlems-
Domstolen måske anså, at det ikke tilkom staternes forfatningstraditioner og Stras-
den, men de politiske processer at bestemme bourg-menneskerettighedskonventionens
2000-Chartrets retlige status (s. 233; arg. 2), regler påvirkede EFD’s udvikling af EU-ret-
underbygger ML med, at 2006-dommen i tid ten, og mere end Chartret, uden at de havde
faktisk fulgte efter, at de politiske processer status af gældende, forpligtende EU-forfat-
selv havde lanceret en forfatningsgørelses- ningsret.
proces (arg. 3; mere nedenfor). Dette i øvrigt Vi kan nu vende os mod de problemer,
rigtige argument overser blot, at forfatnings- strandingen af forfatningstraktaten med stor
gørelsesprocessen i 2006 allerede havde lidt sandsynlighed skabte for den overbevisende
skibbrud ved folkeafstemninger i to af EU’s kraft af ML’s afhandling. De første spadestik
grundlæggerstater i foråret 2005. hertil blev givetvis taget, mens luften i 2000-

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 198
tallets begyndelse endnu var fuld af en EU- overprætentiøse lovgivningstiltag en atmo-

grundretttighedsoptimisme. Denne, som sfære af ”so ein Dink muss ich auch haben”.
gennemstrømmer ML’s teser, næredes først Det nærmeste man kom i retning af at forsøge
af 2000-Chartret og derefter af Laeken- at begrænse regelinkompatibilitet og følgen-
mødet og Fremtidskonventets indsætning i de ny deling af Europa, er besværgelserne i
2003 af 2000-Chartret i den såkaldte forfat- art. 51 ff. ML har ikke stor tillid til, at de er
ningstraktat, hvorved 2000-Chartret opnåede andet end utilstrækkelige lapperier.
en begyndende forfatningsretsstatus (s. 222). Herefter er der to hovedveje for retsudvik-
Ulykken, som indtraf, da de franske og hol- lingen. Den bedste er efter min mening, at
landske vælgere massivt afviste at godkende EFD læser charterbestemmelserne ned til
forfatningstraktaten (s. 181), må have stillet soft law på trods af retliggørelsen. Det er ikke
ML over for nogle svære valg. Flere steder i ML’s anbefaling, men den vil tillade en
bogen nedtonede han tilsyneladende sine ønskelig fortsættelse af en case-to-case afvej-
optimistiske sammenfatninger, der jo brat var ning af en udvidet rettighedsbeskyttelse over
blevet til dels uholdbare. Derimod nyredige- for ulemperne herved for konkurrerende
rede ML ikke hele afhandlingen, som han samfundsværdier og -interesser. Alternativet
afsluttede uden at kende Lissabontraktatens er, at EU-lovgiverne og EU-dommerne sæt-
halvhjertede inkorporering af 2000-Chartret i ter fuldt tryk på at omsætte charterreglerne til
gældende EU-ret. Alt dette har skabt en uba- retlig virkelighed. Det kan formentlig kun
lance i bogens fremstillinger, som ikke er let ske ved hjælp af indskrænkende fortolkning-
at leve med, men heller ikke ruinerende. er af EU-kompetencer til for eksempel øko-
Denne formentlig forhastede inkorpore- nomisk deregulering og udvidende for-
ring risikerer at skabe en ny deling af Europa, tolkninger af de sociale beføjelser, blandt
nu langs grundrettighedslinjer (s. 146), andet til skade for attributionsprincippet (ss.
blandt andet på grund af de mange tekstuelle 134–36). Andre tabere bliver antagelig EU-
disharmonier og inkonsistenser mellem char- traktaternes fire friheder og deres afledte ska-
terrettighederne og EMRK’s regler (s. 124, belse af økonomisk vækst i Unionen og mere
130 f og 151 f). Mens charterreglerne er ”ele- velfærd for dens borgere, samt EU-retssyste-
gantly conceived, beautifully drafted, and a mets legitimitet og medlemsstaternes suve-
masterly combination of pastiche, compro- rænitet. Den sidste udvej er måske den bedste
mise and studied ambiguity” (McCrudden, prioritering – måske ikke. Der mangler i
citeret s. 125), undlod dets forfattere syste- ML’s afhandling en grundig diskussion for og
matisk at sammentænke indebyrderne af det imod det ene eller det andet alternativ. Uden
nye regelgrundlag med traktaternes institu- dén, er prioriteringen i risiko for at fremstå
tionelle, kompetencemæssige og værdimæs- som vilkårlig – derfor min anbefaling til
sige prioriteringer. Hermed er grunden lagt til Domstolen om at fortsætte soft law tilgangen.
en i fremtiden truende vækst i forekomsten af En god grundrettighedsbeskyttelse er givet-
jurisprudentielle divergenser (s. 149 f). vis et samfundsmæssigt og også et individu-
Anvendt på denne manér er charterteknikken elt gode. Skal man tro, hvad man læser i hans
helt åbenbart mindre egnet til at skabe en bog, anser ML det vist overhovedet ikke for
lødig og bredt favnende beskyttelse af grund- nødvendigt at kende de afledte samfunds-
rettighederne end Domstolens traditionelle mæssige omkostninger.
case-to-case metode. Der er over Chartrets

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 199
Chopra, Pran (ed.): The Supreme Court versus the Constitution. A Challenge to Federalism.
(New Delhi: Sage Publications 2006), ISBN 0-7619-3444-8, 287 pp.
REVIEWED BY DAG ERIK BERG*
More visible courts seem to reflect a “rights constitutional basis. Rather, the critical point
revolution” in modern democracies. Pran is that the Court has “more recently … also
Chopra’s edited volume can also be seen in taken on the Constitution itself” (ibid.), and
this context, although the book brings the that “some pivotal issues hang by that peg”
reader to a crucial political dimension in (p. 22).
India’s constitutional debates: the relation- The growth of judicial power has been a
ship between democratic government and central aspect of India’s democratic politics.
India’s Supreme Court. Indira Gandhi’s 1975-76 emergency was a
This book highlights how the working defining moment in the history of judicial
relationship between parliament and review in India. At the time, Mrs. Gandhi’s
Supreme Court connects to issues like India’s critical encounters with the judiciary resulted
federal structure and the country’s unity. in a bill to exclude judicial review from any
Overall, the political factors that reinforce constitutional amendments. The Supreme
judicial power in India today are shaping fac- Court, however, affirmed its ability to strike
tors for the arguments in the book. But the down constitutional amendments that could
book itself focuses on jurisprudence and how violate the constitution’s basic structure.
the Supreme Court seems to have pushed Since then, the Court has gained momentous
constitutional interpretations to its limits. powers – so much so, it has become a con-
More precisely, the discussion (in the book ventional truth in the country’s constitutional
under review) centres on the possible harms debates to rank the Supreme Court of India as
to India’s constitutionalism that the editor the most powerful in the world.
Pran Chopra claims have emerged after the Unsurprisingly, therefore, the power of
Supreme Court invented its extra-constitu- judicial review generates ample room for dis-
tional “basic structure doctrine”. The doc- cussions over legal practices and their rela-
trine holds that the Court has the right to tion to the detailed constitution of India.
defend the constitution against constitutional What makes Chopra’s edited volume worth
amendments proposed by the Parliament. It is reading is its bringing into view different
a vague doctrine, but it clearly enables the legal arguments as well as significant impli-
Supreme Court powers beyond plain inter- cations for the democratic system. It is dis-
pretations of the constitution. The position cussed among the leading juridical experts in
was laid down in the Keshavananda case India, but does not become too technical.
1973 and has given judicial power “a clear Rather, the general reader is introduced to the
shape” in India (p. 33). But Chopra’s essen- “pivotal issues” of democratic governance
tial claim is not merely that India’s Supreme connecting to judicial review.
Court has developed a position beyond its However, the legal theory behind the basic
* Dag Erik Berg, (f. 1974), PhD Candidate, Department of Administration and Organization Theo-
ry, University of Bergen. Email: dag-erik.berg@aorg.uib.no.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 200
structure doctrine is virtually missing from feature of the Constitution” (p. 219). And
the book. This means that while Hans whereas the malleability of the basic struc-
Kelsen’s Grundnorm and the German consti- ture doctrine stimulates the debate, its genesis
tution are referred to in some illuminating is another contested factor. For example,
passages, there is hardly a systematic attempt Andhyarujina, who “was closely associated
to incorporate these references into the struc- with the Keshavandanda case” (p. 220), is
ture of the argument. Sorabjee’s comparative one of several contributors to stress the fact
perspective is an interesting exception. In that only a 7:6 majority invented the doctrine.
short, the book is not a path-breaking text, but In any case, everyone tends to be a constitu-
its merit is to collect some main viewpoints in tional patriot, and no one seems to disagree
an old and vital debate. that “our constitution is a beautifully bal-
The book is the result of a September 2004 anced document” (p. 230).
seminar held in Delhi by a distinguished team In the main, Chopra’s lead paper shapes
of lawyers, scholars and politicians. The sem- the book. His argument clusters around three
inar spirit and open-ended character are topics, basic structure, due process and feder-
maintained. The book thus communicates the alism. The basic proposition is that federal-
point often made about judicial power and ism is a vital form of government in such a
constitutional viability as the stuff of continu- diverse country as India. Besides, the consti-
al debate in India. Contributors include Som- tution “is one of the longest and most detailed
nath Chatterjee, speaker of the Lok Sabha in the world, and probably the most complex”
(House of Parliament), Fali Nariman, Senior (p. 23). The constitution was most carefully
Advocate, and Soli Sorabjee, former Attor- worked out, Copra suggests, precisely to
ney-General of India. The editor, Pran enable the liberal structure to gain momen-
Chopra, is a political analyst and former tum in the context of independent India. No
Chief Editor of The Statesman (Delhi). public institutions, that is, not the parliament
Chopra’s main concern is the challenge nor the Supreme Court, can be called sover-
posed by institutionalised judicial power to eign, “only the Constitution”, he adds (p. 27).
the federal structure. Fali Nariman and Soli It is against this background the basic
Sorabjee, on the other hand, highlight judicial structure doctrine as it emerged from the
review as a guarantee of freedom of speech Keshavananda case 1973 presents a chal-
and minority rights as well as a safeguard lenge. First, it implied that the Court has “an
against the “majoritarianism” of Hindu undefined, undefinable and therefore inex-
nationalist movements. Others express more haustible power to annul any amendment to
faith in democratic mechanisms. Senior the Constitution” (p. 27). It was not clear in
advocate Andhyraujina, for instance, points 1973 what exactly the basic features were;
out that Indira Gandhi was in fact removed nor has they been established since. It is not
from office by the electorate, not the courts. the case that the constitution’s Preamble
Accountability is a serious problem for (which lists sovereignty, socialism, secular-
judicial institutions. Judges are not democrat- ism, justice, liberty, equality, fraternity for the
ically elected. But the flexibility of the basic Indian republic) is exhaustive for the doc-
structure doctrine is also such – according to trine. Second, Chopra is not only critical to
Shankardass – that the Court theoretically the constitutionality of the doctrine, but he
may claim, “that the appointment of judges also claims it might be redundant given the
by five judges of the Supreme Court is a basic long and detailed constitution that already

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 201
gives ample space for interpretation and solu- some revealing insights, particularly the
tions. ways in which later interpretations relate to
Chopra persists on the separation of pow- (or exploit?) the ambivalence expressed in
ers. He contends conflicts between Parlia- the constituent assembly debates.
ment and the Supreme Court in the past could This book shows how the legal debate is
be solved by referring to the constitution, reinforced by the immediate (and often criti-
whereas this “may not always be possible in cal) issues emerging in the political context,
future in view of a challenge the Supreme although major reasons for judicial authority
Court has posted to the Constitution itself” (p. like political corruption, disruptions of par-
17). And in an overlong end chapter, it is liament sessions and majoritarianism are not
asserted, given that federalism is the bedrock systematically articulated.
of the unity of India, and Article 368 has a And as Pant aptly remarks, Chopra’s agen-
strong federal aspect to it, any amendment of da is a bit old fashioned obliging the reader to
the Constitution made in a manner which “concentrate more on the health of democrat-
bypasses that Article can have adverse impli- ic institutions” (p. 178). On this point, Pratap
cations for that unity. (p. 244) B. Mehta’s insightful chapter departs from
No doubt the editor could have discussed the frequent displays of moralizing on judi-
specific examples in his broad historical out- cial power in a situation where the parliament
line. But it deserves to be said that the has lost much public esteem. Being the only
Supreme Court is indeed a central institution political scientist among the contributors,
within India’s “quasi-federal” structure. Mehta gives prominence to the institutional
There is a tide in the powers of India’s combi- characteristics of the Supreme Court. The
nation of a centralised and a federal system. self-appointment of judges needs mention.
And, recently, an opportunity to centralise Apart from accentuating the problem of
policies was voiced in a debate on “reserva- accountability, that judges are internally
tion” (affirmative action). The Supreme recruited may condition a strong institutional
Court judgement M. Nagaraj vs. Union of identity.
India and Otrs, (October 2006) draws a limit In other words, Mehta combines a focus
to the degree of reservation, and thus seemed on the constitutional developments with
to challenge the extensive reservation poli- institutional orders. The approach is promis-
cies in a state like Tamil Nadu. ing, since it may clarify more about the
Even so, Chopra queries whether the judi- embedded dynamics at stake in the constitu-
cial practice of India’s Supreme Court has in tional interpretations. As Mehta also points
fact introduced a US-type “due process”. The out, the courts’ limited institutional capacity
principle stands for fundamental rights and is relevant to explain, for instance, India’s
conditions the American judiciary’s vast and unfinished “rights revolution” (p. 166).1 It is
consolidated powers over political institu- worth keeping in mind that the institutional
tions. This book does not quite explain the capacities at lower level courts (unaddressed
systematic implications beyond the legal disin this book) are unlike the powerful Supreme
course. But the chapters on the subject offer Court.
1 Cf. Charles R. Epp: The Rights Revolution. Lawyers, Activists, and Supreme Courts in Compara-
tive Perspective (Chicago: Chicago University Press 1998) 71.

NTMR208:M&Rnr4.2003 29-07-08 14:53 Side 202
Mehta’s chapter is also more consistent in In any case, “interpretation”, in light of

its use of references than several others. But India’s basic structure doctrine, would seem
while Chopra’s chapter on federalism offers to offer considerable leeway for judicial
insights into his central points, it is unfortu- manoeuvring. Here, the institutional order
nate for the book that the editor undermines appears to wield greater influence than nor-
its scholarly significance by writing a chapter mally conceded in juridical literature. This
without reference to wider, up-to-date schol- must be noted while displaying (beyond what
arship on the issue. Evidently, the book is Chopra’s book achieved) how the “doctrine”
streamlined by constitutional issues dis- is reinforced in the structural interplay
cussed mostly by practitioners in the context between a written constitution, on the one
of law; and, one may wonder what a more hand, and major political dynamics, on the
determined cross-disciplinary examination other.
may have achieved in terms of fresh insights.
***
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V ICTIM R EPARATIONS IN T RANSITIONAL J USTICE

Centre for Human Rights, University of Oslo. E-mail: jemima.garcia-godos@nchr.uio.no. I am grate-

(Washington, D.C.: United States Institute for Peace Press 1995).

112 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

B. V ICTIM R EPARATIONS IN THE I NTERNATIONAL A RENA

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 113

1. BASIC P RINCIPLES AND G UIDELINES ON THE R IGHT TO R EMEDY AND R EPARATION

114 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

12 Basic Principles supra n 7 at Section III, paragraph 4.

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 115

compensation refers to economically assessable damage, and rehabilitation to medical and

2. T HE I NTERNATIONAL C RIMINAL C OURT

116 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

3. D RAFT P RINCIPLES ON S TATE R ESPONSIBILITY

17 Falk supra n 14 at 497.

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C. V ICTIM R EPARATIONS : BASIC D EFINITIONS

internationally wrongful acts.

118 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 119

28 Martha Minow supra n 2.

tions (Oxford: Oxford University Press 2006) 451-477.

120 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

In international law, reparations refer to all sorts of reparatory measures implemented to

D. M AIN I SSUES ON V ICTIM R EPARATIONS

bridge University Press 2004).

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 121

122 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

• Wrongdoers: those who committed wrongdoings

35 Elster supra n 33 at 183.

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 123

124 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 125

126 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

46 De Greiff supra n 32 at 464.

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 127

50 Wilson supra n 46.

128 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

D. AN ANALYTICAL FRAMEWORK FOR THE STUDY OF VICTIM REPARATIONS

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 129

130 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

E NFORCEMENT OF S OCIO -E CONOMIC R IGHTS IN S OUTH

16 December 1966, entered into force 3 January 1976.

tory Memoranda of Technical Committee to Theme Committee IV of the Constitutional Assembly (9

South Africa (Kenwyn: Juta & Co 1998) 41−4.

(http://www.anc.org.za/ancdocs/history/charter.html) (last visited 17 May 2005). The Charter was

132 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

B. A N A PPRAISAL OF THE R EASONABLENESS R EVIEW A PPROACH

1996 (10) BCLR 1253 (CC), para 77.

(2002) 4 International Journal of Human Rights 21.

economic rights (New York: Oxford University Press 2007) 136.

2001 (1) SA 46 (CC) (Grootboom case) para 20.

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 133

15 First Certification case (note 9 above) para 77.

134 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008)

23 Para 29 [Emphasis mine].

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:2 (2008) 135

1. G IVING THE R IGHTS N ORMATIVE C ONTENT

33 2002 (5) SA 721, the TAC case.

African Journal on Human Rights 58.