Mwenda, Kenneth --- "Review of C. Beyani, Human Rights Standards and the Movement of People Within States" [2003] MurdochUeJlLaw 11; (2003) 10(2) Murdoch University Electronic Journal of Law

Review of C. Beyani, Human Rights Standards and the Movement of People Within States

Author:	Kenneth Mwenda LLB, BCL, MBA, PhD, DBA, FCI, FRSA World Bank
Issue:	Volume 10, Number 2 (June 2003)

Author's Note: The interpretations and conclusions expressed in this paper are entirely those of the author. They do not necessarily represent the views of the World Bank, its executive directors or the countries they represent.

1. Reviewing a chapter in Goodwin-Gill, S.G and Talmon, S. (eds), The Reality of International Law: Essay in Honour of Ian Brownlie, Oxford: Clarendon Press, (1999), (592pp), Warner observes:

   Chaloka Beyani's essay on 'The Legal Premises for the International Protection of Human Rights' places special emphasis on the effects of the decisions and opinions of the International Court of Justice (ICJ). Beyani's assumption is that international law, not politics, gives human rights 'its distinct international flavour'... Beyani's thesis is that a juridical approach is the proper route to take if human rights is to continue to be a credible doctrine.[1]

2. But when will the rigid formalistic positivists ever listen? Human rights does not take exclusive sanctuary in the statute books nor does it rest solely in the bosom of the judges. And, there is hardly any fine and succinct delineating boundary between human rights and the social sciences in the geo-political and socio-economic discourse. Disappointingly though, in his monograph, Human Rights Standards and the Movement of People Within States, Beyani returns to the same superficial and positivistic treatment of complex interdisciplinary issues of human rights, examining, this time, standards of human rights applicable to the right of freedom of movement and residence of people within states.

3. The book, which is Beyani's recycled doctorate thesis, begins by looking at treaty standards on freedom of movement within states, covering topics such as the freedom of movement under the International Covenant on Civil and Political Rights. It then looks at treaties of regional application, such as the European Convention, the American Convention on Human Rights and the African Charter of Human and People's Rights.

4. Interesting as the topics covered might seem, how do we approach extra-legal factors in cases, say, of forced displacements where political refugees continue to flock across international borders? Do we address such issues from a strictly rigid positivistic jurisprudential point of view? Beyani takes such a superficial approach here and, thus, his work fails, lamentably, to offer any meaningful discussion on the political and economic ramifications of forced displacements.

5. Beyani does not offer any helpful analysis on how the political and economic dimensions of forced displacements affect the development of international human rights law. Neither is his monograph awake to the realities of the nexus between public policy and comity, on the one hand, and modern-day jurisprudence, on the other. Yet, we know that law, including human rights, does not exist or operate in a vacuum. Its usefulness must relate to the overall values of society. In a sense, therefore, Beyani's monograph is a failed attempt, and fraught with illogical difficulties, at sustaining a view that: 'International law, not politics, gives human rights [its distinct international flavour]'. As pointed out above, law, including human rights, does not exist or operate in a vacuum. Its usefulness must relate to the overall values of society.

6. Beyani highlights some of the mechanisms used to control the movement and residence of people within states. The concept of 'internal exile' is introduced, and Beyani posits some judicial precedents to support his arguments. An analysis of restrictions on the free movement of persons in political unions and economic communities is also made, while the book draws lessons from the Treaty of Amsterdam and the free movement of persons in the European Union. Other lessons are taken from the Economic Community of West African Communities and the free movement of persons in the Southern African Development Community.

7. In examining the movement and residence of minorities, Beyani makes another attempt at highlighting some of the human rights standards of protecting minorities. The exclusive movement and residence of indigenous people on traditional lands is also noted, followed by a discussion of restrictions on the movement and residence of refugees and the derogation of freedom of movement. However, as Colin Harvey rightly puts it,

   The same difficulty is evident in Chaloka Beyani's slim volume. Now this is an area where there are interesting things to say. Beyani examines the rules on free movement within states generally, as well as looking at the treatment of minorities, indigenous people and refugees. While it is useful to have a general statement of the legal position, this has been done before. A chance to say something interesting is missed here. This is not to say that the book is without merits. It offers a description of current rules. But a clear thesis is missing and the author never makes any of his theoretical premises explicit.[2]

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Notes

[1] D. Warner, "Book Reviews," International Journal of Refugee Law, Vol. 12, No. 4, (2001), p. 695, available Online at: http://www3.oup.co.uk/reflaw/hdb/Volume_12/Issue_04/pdf/120695.pdf, visited on April 11, 2003.

[2] C.J Harvey, "The Politics of International Law," Ethnic Conflict Digest, Vol. 3, No. 2, (2000), available Online at: http://www.incore.ulst.ac.uk/ecrd/harvey.html, visited on April, 11th, 2003.