The Human Rights-Based Approach as a Conceptual Framework for Ascertainment of Indigenous Customary Law
Copyright © 2021 By Dr. Leesi Ebenezer Mitee, PhD in International Human Rights Law, Legal Information Technology (Legal Informatics), Indigenous Customary Law and Indigenous Rights
Excerpts from the book, The New Human Rights-Based Huricompatisation Model of Ascertainment of Indigenous Customary Law: Strategies for Adequate Local and Global Public Access, Volume 2 of the Human Right of Free Access to Public Legal Information Book Series (Publisher: Koinonia Legal Research and Book Publishing, Tilburg, The Netherlands 2021).
The human rights-based approach (HRBA) emerged in 1995 from ‘The Right Way to Development: Human Rights Approach to Development Assistance’ published the Human Rights Council of Australia.[1] The United Nations Sustainable Development Group (UNSDG)[2] adopted The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies statement in 2003[3] (shortened as ‘the Common Understanding’). One of the items of the Common Understanding states: ‘All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.’[4]
The United Nations defines ‘human rights-based approach’ as ‘a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.’[5] The United Nations’ three HRBA strategies are as follows:
- As development policies and programmes are formulated, the main objective should be to fulfil human rights.[6]
- A human rights-based approach identifies the rightsholders and their entitlements and the corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations.[7]
- Principles and standards derived from international human rights treaties should guide all development cooperation and programming in all sectors and in all phases of the programming process.[8]
- Other HRBA strategies include rights talk to promote awareness of the rights of a group and legal advocacy or mobilisation through litigation in domestic courts to enforce and promote human rights.[9]
[1] Sakiko Fukuda-Parr, ‘Human Rights and Politics in Development’ in Michael Goodhart (ed), Human Rights: Politics and Practice (2nd edn, Oxford University Press 2013) 161, 166.
[2] Also referred to as United Nations Development Group (UNDG).
[3] UNSDG ‘The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies’ (adopted the United Nations Sustainable Development Group in 2003) <https://undg.org/document/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies/> accessed 27 November 2020 (UN Statement of Common Understanding 2003).
[4] Ibid
[5] UN Office of the High Commissioner for Human Rights, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (HR/PUB/06/8, United Nations 2006) 15 <https://undg.org/wp-content/uploads/2016/09/FAQen2.pdf> accessed 1 June 2019 (UN Human Rights-Based Approach 2006).
[6] Ibid 15.
[7] Ibid
[8] Ibid 16.
[9] Paul J Nelsona and Ellen Dorsey, ‘Who Practices Rights-Based Development? A Progress Report on Work at the Nexus of Human Rights and Development’ (2018) 104 World Development 97, 99 <https://doi.org/10.1016/j.worlddev.2017.11.006> accessed 13 April 2018.
Dr. Leesi Ebenezer Mitee is the Founder and Director of the Human Right of Free Access to Law Advocacy (HURIFALA). He holds a multidisciplinary PhD in international human rights law, legal information technology (legal informatics), indigenous customary law and indigenous rights.
He is an Associate Professor of Law and a former legal research national consultant to the United Nations Development Programme (UNDP) on the 1998 PCASED project that provided the juridical foundations for the Economic Community of West African States (ECOWAS) 1998 Moratorium which culminated in a regional multilateral treaty: ECOWAS Convention on Small Arms and Light Weapons, their Ammunition and other Related Matters 2006.
Dr. Mitee’s legal innovations include:
➤ pioneered the global advocacy of the recognition of the right of free access to public legal information as a substantive human right in 2017;
➤ devised the <.officiallaws) official public legal information generic top-level domain (gTLD) system for easy identification of the reliable versions of the laws published online worldwide;
➤ developed the system of nationally networked one-stop official public legal information websites (NOPLIW system) for optimal findability and management of online law databases;
➤ invented the human rights-based public access-adequate huricompatisation model of ascertainment of indigenous customary law; and
➤ formulated the new human rights-advocacy approach (NHRAA) that consists of ten criteria for the recognition of new human rights.
His upcoming New Human Right of Free Access to Public Legal Information Book Series consists of 22 modern academic article-style independent but interconnected chapters of four books:
➤ Developments in Human Rights Law and the New Human Right of Free Access to Public Legal Information: The New Human Rights-Advocacy Approach and the Ten Criteria for the Formal Recognition of New Human Rights (Volume 1) — ISBN 9789083108520 (eBook) 9789083108506 (paperback);
➤ The New Human Rights-Based Huricompatisation Model of Ascertainment of Indigenous Customary Law: Strategies for Adequate Local and Global Public Access (Volume 2) — ISBN 9789083108568 (eBook) 9789083108544 (paperback);
➤ Innovative Technological Mechanisms for Adequate Web-Based Access to National and Global Public Legal Information (Volume 3) — ISBN 9789083108513 (eBook) 9789083108582 (paperback); and
➤ A Model Empirical Study of the Current State of Governmental Provision of Free Access to Nigerian Public Legal Information (Volume 4) — ISBN 9789083108551 (eBook) 9789083108537 (paperback).
Email: info@hurifala.org
Website: https://hurifala.org