Law and the Politics of Realising Human Rights in Developing Countries

On the 31st October 2012 Dr Laura Grenfell and Cornelia Koch presented at an interdisciplinary workshop entitled ‘Law and the Politics of Realising Human Rights in Developing Countries’ run by the University of Adelaide’s Indo-Pacific Governance Research Centre. Further information on the workshop is available here. 

Cornelia presented on the topic ‘Justiciable Legal Frameworks for Human Rights as Received Legal Transplants in Developing Countries: Some Indicators for Their Success and Failure’. Her paper explained why these frameworks in developing countries are usually legal transplants from Western legal systems. Once this had been established, she highlighted the dangers and benefits of using legal transplants in developing countries when most of these transplants emanate from highly developed and industrialised countries. Utilising Ugo Mattei’s theory of classification of legal systems (‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’ (1997) 45 American Journal of Comparative Law 5), Cornelia suggested a framework for determining whether human rights as transplants may or may not be successful in a particular developing country.

Laura’s paper entitled ‘Rights-Rich and Remedy-Poor’  focussed on the example of Timor-Leste whose Constitution borrows heavily from the Portuguese constitutional system, in particular in relation to mechanisms of constitutional judicial review.  Laura questioned whether these highly complex mechanisms which provide for very limited direct access to constitutional judicial review are appropriate for a developing country such as Timor-Leste.  The mechanisms effectively mean that while Timor-Leste’s Constitution is generous on the subject of rights, articulating sets of both civil and political and social, economic and cultural rights, litigating these rights is excessively difficult with the result that civil society generally chooses to pursue non-judicial mechanisms to promote rights.  Bypassing the courts sends a symbolic message that the courts and Constitution may not be relevant to achieving social change which benefits vulnerable sections of Timorese society.

Dr Laura Grenfell and Cornelia Koch are Senior Lecturers at the Adelaide Law School.

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