New frontiers in international human rights: Actionable nonactionables and the (non)performance of perpetual becoming

Abstract

This article explores the emergence of various international justice narratives that operate as legal nonperformatives, making the law and law making seem liberatory. It shows that the ratification of a treaty may not qualify as a form of state expression or a speech act advocating human rights. Instead, it can be interpreted through semiotics as sending a signal about a stance. By examining this proleptic space, we can begin to make sense of what we cannot yet see, and perhaps begin to forecast whether the core tenets of international human rights will soon be reinvented or merely perpetuated.

Acknowledgments

The author wishes to thank the following individuals for their critically important contributions to the research and conceptualizations that informed this article: Alysson Ford Ouoba, Ermias Kassaye, Wumi Asubiara Dada and Fela Dada. A special thank you to the OSIWA for their funding of the research for this project and NSF for their support in the final write up.

Notes

1 For a detailed discussion of the Sudan and Kenya cases, refer to the memo on peace and justice sequencing dated August 4, 2015.

2 Doc. EX.CL/710(XX).

3 Just one week after that, on October 25, 2016, The Gambia announced its intent to withdraw as well.

4 Burundi’s withdrawal will not affect the past obligations the country may have in relation to ongoing proceedings or investigations, and it will not come into effect until after a one-year waiting period has elapsed and the subsequent notification of withdrawal is registered with UN treaty office.

5 At the time of these deliberations, I served as a technical advisor to the African Union Legal Office and we conducted the research being requested of us at the time: to assess whether there were precedents for a collective withdrawal from the Rome Statute and under what conditions a collective withdrawal was possible.

6 The protocol establishing the current African Court is included in both the human rights and juridical treaty groups.

7 ACJ Protocol Status List (the protocol was adopted in July 2003 and entered into force in February 2009).

8 Malabo Protocol Status List.

9 African Court Status List.

10 Regarding methods, between 2017 and 2018, I and ACRI researchers and staff from the AU’s Office of Legal Counsel (OLC) conducted interviews with state officials about the Malabo Protocol at three AU summits. I also created a survey questionnaire regarding treaty ratification and the Malabo Protocol, which was distributed to all African States by the OLC. In addition to these primary sources, ACRI collected and analyzed data on AU treaty ratification trends; assessed public statements by African State officials on the Malabo Protocol and other supra-national courts; examined relevant provisions in state constitutions and laws; and reviewed academic articles, policy reports, and media commentary on the Malabo Protocol. This research confirmed the validity of the concerns that prompted this study: namely, that the pace of ratification of the Malabo Protocol has been unusually slow, even by AU standards. A comparison of signature and ratification trends of the Malabo Protocol with other AU treaties plainly demonstrates that ratification of the Malabo Protocol is well behind schedule.

11 AU, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Article 46A bis.

12 The phrase “African Union Head of State or Government” refers to people occupying such an office in a state which is party to the AU Constitutive Act; D. Tladi, at 6., that a broad interpretation could result in the inclusion of all ministers and even all members of parliament in some states, whereas a narrow one could confine the definition to a deputy head of state or government and Beth Van Schaack and M. du Plessis, who noted that the term “senior officials” is not defined and suggests that it has been left to the new court to determine the reach of the term (du Plessis, at 8; Van Schaak). There is also a lack of clarity on what exact “functions” are likely to result in the granting of immunity (ibid.).

13 Confirming that immunity from criminal jurisdiction is “procedural in nature.”

14 Human Rights Watch.

15 Africa Centre for Open Governance, supra note 101, at 15.

16 Botswana Keynote Address at the 2011 ASP, at para. 35.

17 E.g., AU Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of Sudan, supra note 156, at para. 6; AU Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, supra note 156, at 4; AU Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (ICC), supra note 260, at para. 3.

Additional information

Notes on contributors

Kamari Maxine Clarke

Kamari Maxine Clarke is a Professor of Transnational Justice and Sociolegal Studies at the University of Toronto where she teaches in the Centre for Criminology and Sociolegal Studies and the Centre for Diaspora and Transnational Studies and holds a cross appointment at the Faculty of Law and the Department of Anthropology. She is the author of nine books and over fifty peer reviewed articles and book chapters, including her 2009 publication of Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009) and Affective Justice (with Duke University Press, 2019).