Academic literature on the topic 'Social and Economic Rights Action Center and Center for Economic and Social Rigths v Nigeria'

AbstractThis article argues that the decision of the African Commission on Human and Peoples' Rights in the Ogoni case represents a giant stride towards the protection and promotion of economic, social and cultural rights of Africans. This is predicated on the African Commission's finding that the Nigerian Government's failure to protect the Ogoni people from the activities of oil companies operating in the Niger Delta is contrary to international human rights law and is in fact a step backwards since Nigeria had earlier adopted legislation to fulfill its obligation towards the progressive realization of these rights. The findings of the African Commission demonstrate that economic, social and cultural rights are not vague or incapable of judicial enforcement. They also illustrate how the Charter can be interpreted generously to ensure the effective enjoyment of rights. Novel and commendable as the decision is, it is not without its shortcomings. These shortcomings lie in the failure of the Commission to pronounce on the right to development, its silence on the desirability of holding transnational corporations accountable for human rights violations, and the institutional weakness of the Commission in enforcing its decisions.

Abstract Development programs in many African countries include the reallocation of land and the nationalization of mineral resources for the benefit of less privileged communities in those countries. Implementing these programs is, however, quite complicated. This paper pays special attention to the confiscation of the land of white farmers in Zimbabwe as part of a development program, and the rapid decline of the economy of that country in consequence of this program. It serves as a reminder that depriving landowners of their property rights is counterproductive and is therefore not a feasible development strategy. As far as the right to explore natural resources is concerned, the paper highlights the repeated resolutions of the United Nations proclaiming the “inalienable right of all states freely to dispose of their natural resources in accordance with their national interests” as an inherent aspect of sovereignty [e.g. G.A. Res. 626, 7 U.N. GAOR, Supp. (No. 20), at 18, U.N. Doc. A/2361 (1952).], with occasional reminders that developing countries were in need of encouragement “in the proper use and exploitation of their natural wealth and resources” [e.g. E.S.C. Res. 1737, 54 U.N. ESCOR, Supp., No. 1 (1973).]. These resolutions were adopted in the context of the decolonization policy of the United Nations and were mainly aimed at denouncing the exploitation of the mineral resources of African countries by colonial powers [G.A. Res. 2288, 22 U.N. GAOR, Supp. (No. 16), at 48, U.N. Doc. A/6716 (1967)., para 3]. The emphasis of international law relating to the natural resources over time also emphasized the right to self-determination of peoples. As early as 1958, the General Assembly, in a resolution through which the Commission on Permanent Sovereignty over Natural Resources was established, stated that the “permanent sovereignty over natural wealth and resources” of states is “a basic constituent of the right to self-determination” [G.A. Res. 1314, 13 U.N. GAOR, Supp. (No. 18), at 27, U.N. Doc. A/4090 (1958).]. The African Charter on Human and People’s Rights similarly provides “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it” [Art 21(1)]. This provision featured prominently in several judgments of courts of law, such as the one of the South African Constitutional Court in the case of Bengwenyama Minerals (Pty) Ltd & Others v Gemorah Resources (Pty) Ltd & Others [2011] (3) BCLR 229 (CC) (3) BCLR 229 (CC) and of the African Court of Human and People’s Rights in the case of Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report. AHRLR 60 (Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report.) Communication 155/96. In view of these directives of international law, the paper will critically analyze the South African Mineral and Petroleum Resources Development Act 28 of 2002, which deprived landowners of the ownership of unexplored minerals and petroleum products and proclaimed mineral and petroleum resources to be “the common heritage of all the people of South Africa” with the state as the custodian thereof.

IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circumstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisement to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisement was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisement to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

I. First Brexit, then Trump: Has the past year or so ushered in a “wave” (Weisberg), a “barrage” (Desmond-Harris) or a “deluge” (Sidahmed) of that notoriously noxious affect, hate? It certainly feels that way to those of us identified with progressive social and political causes—those of us troubled, not just by Trump’s recent electoral victory, but by the far-right forces to which that victory has given voice. And yet the questions still hanging over efforts to quantify emotional or affective states leaves the claim that there has been a clear spike in hate moot (Ngai 26; Massumi 136-7; Ahmed, Promise 3-8). So let’s try asking a different question. Has this same period seen a rise, across liberal media platforms, in the rhetorical work of “hate-attribution”? Here, at least, an answer seems in readier reach. For no one given to scrolling distractedly through liberal Anglophone media outlets, from The New York Times, to The Guardian, to Slate, will be unfamiliar with a species of journalism that, in reporting the appalling activities associated with what has become known as the “alt-right” (Main; Wallace-Wells; Gourarie), articulates those activities in the rubric of a calculable uptick in hate itself.Before the U.S. Presidential election, this fledgling journalistic genre was already testing its wings, its first shudderings felt everywhere from Univision anchor Jorge Ramos’s widely publicized documentary, Hate Rising (2016), which explores the rise of white supremacist movements across the South-West U.S, to an edition of Slate’s Trumpcast entitled “The Alt-Right and a Deluge of Hate,” which broached the torment-by-Twitter of left-wing journalist David French. In the wake of the election, and the appalling acts of harassment and intimidation it seemed to authorize, the genre gained further momentum—leading to the New Yorker’s “Hate Is on the Rise After Trump’s Election,” to The Guardian’s “Trump’s Election led to Barrage of Hate,” and to Vox’s “The Wave of Post-Election Hate Reportedly Sweeping the Nation, Explained.” And it still has traction today, judging not just by James King’s recent year-in-review column, “The Year in Hate: From Donald Trump to the Rise of the Alt-Right,” but by Salon’s “A Short History of Hate” which tracks the alt-right’s meteoric 2016 rise to prominence, and the New York Times’ recently launched hate-speech aggregator, “This Week in Hate.”As should already be clear from these brisk, thumbnail accounts of the texts in question, the phenomena alluded to by the titular term “hate” are not instances of hate per se, but rather instances of “hate-speech.” The word “hate,” in other words, is being deployed here not literally, to refer to an emotional state, but metonymically, as a shorthand for “hate-speech”—a by-now widely conventionalized and legally codified parlance originating with the U.N. Declaration to describe “violent or violence-inciting speech or acts that “aim or intend to inflict injury, or incite prejudice or hatred, against persons of groups” because of their ethnic, religious, sexual or social affiliation. And there is no doubt that, beyond the headlines, these articles do incredibly important work, drawing connections between, and drawing attention to, a host of harmful activities associated with the so-called “alt-right”—from a pair of mangled, pretzel-shaped swastikas graffiti-ed in a children’s playground, to acts of harassment, intimidation and violence against women, African-Americans, Latinos, Muslims, Jews, and LGBTQ people, to Trump’s own racist, xenophobic and misogynistic tweets. Yet the fact that an emotion-term like hate is being mobilized across these texts as a metonym for the “alt-right” is no oratorical curio. Rather, it perpetuates a pervasive way of thinking about the relationship between the alt-right (a political phenomenon) and hate (an emotional phenomenon) that should give pause to those of us committed to mining that vein of cultural symptomatology now consigned, across the social sciences and critical humanities, to affect theory. Specifically, these headlines inscribe, in miniature, a kind of micro-assessment, a micro-geography and micro-theory of hate. First, they suggest that, even prior to its incarnation in specific, and dangerous, forms of speech or action, hate is in and of itself anathema, a phenomenon so unquestioningly dangerous that a putative “rise” or “spike” in its net presence provides ample pretext for a news headline. Second, they propose that hate may be localized to a particular social or political group—a group subsisting, unsurprisingly, on that peculiarly contested frontier between the ideological alt-right and the American Midwest. And third, they imply that hate is so indubitably the single most significant source of the xenophobic, racist and sexist activities they go on to describe that it may be casually used as these activities’ lexical proxy. What is crystallizing here, I suggest, is what scholars of rhetoric dub a rhetorical “constellation” (Campbell and Jamieson 332)—a constellation from which hate emerges as, a) inherently problematic, b) localizable to the “alt-right,” and, c) the primary engine of the various activities and expressions we associate with them. This constellation of conventions for thinking about hate and its relationship to the activities of right-wing extremist movement has coalesced into a “genre” we might dub the genre of “hate-attribution.” Yet while it’s far from clear that the genre is an effective one in a political landscape that’s fast becoming a political battleground, it hasn’t appeared by chance. Treating “hate,” then, less as a descriptive “grid of analysis” (Sedgwick 152), than as a rhetorical projectile, this essay opens by interrogating the “hate-attribution” genre’s logic and querying its efficacy. Having done so, it approaches the concept of “alternatives” by asking: how might calling time on the genre help us think differently about both hate itself and about the forces catalyzing, and catalyzed by, Trump’s presidential campaign? II.The rhetorical power of the genre of hate-attribution, of course, isn’t too difficult to pin down. An emotion so thoroughly discredited that its assignment is now in and of itself a term of abuse (see, for example, the O.E.D’s freshly-expanded definition of the noun “hater”), hate is an emotion the Judeo-Christian tradition deems not just responsible for but practically akin to murder (John 3:1). In part as a result of this tradition, hate has proven thoroughly resistant to efforts to elevate it from the status of an expression of a subject’s pestiferous inner life to the status of a polemical response to an object in the world. Indeed, while a great deal of the critical energy amassing under the rubric of “affect theory” has recently been put into recuperating the strategic or diagnostic value of emotions long scorned as irrelevant to oppositional struggle—from irritation and envy, to depression, anger and shame (Ngai; Cvetkovich; Gould; Love)—hate has notably not been among them. In fact, those rare scholarly accounts of affect that do address “hate,” notably Ahmed’s excellent work on right-wing extremist groups in the United Kingdom, display an understandable reluctance to rehabilitate it for progressive thought (Cultural Politics). It should come as no surprise, then, that the genre of “hate-attribution” has a rare rhetorical power. In identifying “hate” as the source of a particular position, gesture or speech-act, we effectively drain said position, gesture or speech-act of political agency or representational power—reducing it from an at-least-potentially polemical action in or response to the world, to the histrionic expression of a reprehensible personhood. Yet because hate’s near-taboo status holds across the ideological and political spectrum, what is less clear is why the genre of hate-attribution has achieved such cachet in the liberal media in particular. The answer, I would argue, lies in the fact that the work of hate-attribution dovetails all too neatly with liberal political theory’s longstanding tendency to laminate its social and civic ideals to affective ideals like “love,” “sympathy,” “compassion,” and, when in a less demonstrative humor, “tolerance”. As Martha Nussbaum’s Political Emotions has recently shown, this tradition has an impressive philosophical pedigree, running from Aristotle’s philia (16), John Locke’s “toleration” and David Hume’s “sympathy” (69-75), to the twentieth century’s Universal Declaration of Human Rights, with its promotion of “tolerance and friendship among all nations, racial or religious groups.” And while the labour of what Lauren Berlant calls “liberal sentimentality” (“Poor Eliza”, 636) has never quite died away, it does seem to have found new strength with the emergence of the “intimate public sphere” (Berlant, Queen)—from its recent popular apotheosis in the Clinton campaign’s notorious “Love Trumps Hate” (a slogan in which “love,” unfortunately, came to look a lot like resigned technocratic quietism in the face of ongoing economic and environmental crisis [Zizek]), to its revival as a philosophical project among progressive scholars, many of them under the sway of the so-called “affective turn” (Nussbaum; Hardt; Sandoval; hooks). No surprise, then, that liberalism’s struggle to yoke itself to “love” should have as its eerie double a struggle to locate among its ideological and political enemies an increasingly reified “hate”. And while the examples of this project we’ve touched on so far have hailed from popular media, this set of protocols for thinking about hate and its relationship to the activities of right-wing extremist movements is not unique to media circles. It’s there in political discourse, as in ex-DNC chair Debbie Wasserman Schultz’s announcement, on MSNBC, that “Americans will unite against [Trump’s] hatred.” And it’s there, too, in academic media studies, from FLOW journal’s November 2016 call for papers inviting respondents to comment, among other things, on “the violence and hatred epitomized by Trump and his supporters,” to the SCMS conference’s invitation to members to participate in a pop-up panel entitled “Responding to Hate, Disenfranchisement and the Loss of the Commons.” Yet while the labor of hate-attribution to which many progressive forces have become attached carries an indisputable rhetorical force, it also has some profound rhetorical flaws. The very same stigma, after all, that makes “hate” such a powerful explanatory grenade to throw also makes it an incredibly tough one to land. As Ahmed’s analysis of the online rhetoric of white supremacist organizations should remind us (Cultural Politics), most groups structured around inciting and promoting violence against women and minorities identify, perversely, not as hate groups, but as movements propelled by the love of race and nation. And while left-wing pundits pronounce “hate” the signature emotion of a racist, misogynist Trump-voting right, supporters of Trump ascribe it, just as routinely, to the so-called “liberal elite,” a group whose mythical avatars—from the so-called “Social Justice Warrior” or “SJW,” to the supercilious Washington politico—are said to brand “ordinary [white, male] Americans” indiscriminately as racist, misogynistic, homophobic buffoons. Thus, for example, The Washington Post’s uncanny, far-right journalistic alter-ego, The Washington Times, dubs the SPLC a “liberal hate group”; the Wikipedia mirror-site, Conservapedia, recasts liberal objections to gun violence as “liberal hate speech” driven by an “irrational aversion to weapons”; while one blood-curdling sub-genre of reportage on Steve Bannon’s crypto-fascist soapbox, Breitbart News, is devoted to denouncing what it calls “ ‘anti-White Racism.’” It’s easy enough, of course, to defend the hate-attribution genre’s liberal incarnations while dismissing its right-wing variants as cynical, opportunistic shams, as Ahmed does (Cultural Politics)—thereby re-establishing the wellspring of hate where we are most comfortable locating it: among our political others. Yet to do so seems, in some sense, to perpetuate a familiar volley of hate-attribution. And to the extent that, as many media scholars have shown (Philips; Reed; Tett; Turow), our digital, networked political landscape is in danger of being reduced to a silo-ed discursive battleground, the ritual exchange of terminological grenades that everyone seems eager to propel across ideological lines, but that no one, understandably, seems willing to pick up, seems counter-productive to say the least.Even beyond the genre’s ultimate ineffectiveness, what should strike anyone used to reflecting on affect is how little justice it does to the ubiquity and intricacy of “hate” as an affective phenomenon. Hate is not and cannot be the exclusive property or preserve of one side of the political spectrum. One doesn’t have to stretch one’s critical faculties too far to see the extent to which the genre of hate-attribution participates in the emotional ballistics it condemns or seeks to redress. While trafficking in a relatively simple hate-paradigm (as a subjective emotional state that may be isolated to a particular person or group), the genre itself incarnates a more complex, socially dynamic model of hate in which the emotion operates through logics of projection perhaps best outlined by Freud. In the “hate-attribution” genre, that is, hate—like those equally abjected categories “sentimentality,” “worldliness” or “knowingness” broached by Sedgwick in her bravura analyses of “scapegoating attribution” (150-158)—finds its clearest expression in and through the labor of its own adscription. And it should come as no surprise that an emotion so widely devalued, where it is not openly prohibited, might also find expression in less overt form.Yet to say as much is by no means to discredit the genre. As legal scholar Jeremy Waldron has recently pointed out, there’s no particular reason why “the passions and emotions that lie behind a particular speech act” (34)—even up to and including hate—should devalue the speech acts they rouse. On the contrary, to pin the despicable and damaging activities of the so-called “alt right” on “hate” is, if anything, to do an injustice to a rich and complex emotion that can be as generative as it can be destructive. As Freud suggests in “Group Psychology and the Analysis of the Ego,” for example, hate may be the very seed of love, since the forms of “social feeling” (121) celebrated under the liberal rubric of “tolerance,” “love,” and “compassion,” are grounded in “the reversal of what was first a hostile feeling into a positively-toned tie in the nature of an identification” (121; italics mine). Indeed, Freud projects this same argument across a larger, historical canvas in Civilization and its Discontents, which contends that it is in our very struggle to combat our “aggressive instincts” that human communities have developed “methods intended to incite people into identifications and aim-inhibited relationships of love” (31). For Freud, that is, the practice of love is a function of ongoing efforts to see hate harnessed, commuted and transformed. III.What might it mean, then, to call time on this round of hate-attribution? What sort of “alternatives” might emerge when we abandon the assumption that political engagement entails a “struggle over who has the right to declare themselves as acting out of love” (Ahmed, Cultural Politics 131), and thus, by that same token, a struggle over the exact location and source of hate? One boon, I suggest, is the license it gives those of us on the progressive left to simply own our own hate. There’s little doubt that reframing the dangerous and destructive forms of speech fomented by Trump’s campaign, not as eruptions of hate, or even as “hate-speech,” but as speech we hate would be more consistent with what once seemed affect theory’s first commandment: to take our own affective temperature before launching headlong into critical analysis. After all, when Lauren Berlant (“Trump”) takes a stab at economist Paul Krugman’s cautions against “the Danger of Political Emotions” with the timely reminder that “all the messages are emotional,” the “messages” she’s pointing to aren’t just those of our political others, they’re ours; and the “emotions” she’s pointing to aren’t just the evacuated, insouciant versions of love championed by the Clinton campaign, they’re of the messier, or as Ngai might put it, “uglier” (2) variety—from shame, depression and anger, to, yes, I want to insist, hate.By way of jump-starting this program of hate-avowal, then, let me just say it: this essay was animated, in part, by a certain kind of hate. The social critic in me hates the breathtaking simplification of the complex social, economic and emotional forces animating Trump voters that seem to actuate some liberal commentary; the psychologist in me hates the self-mystification palpable in the left’s insistence on projecting and thus disowning its own (often very well justified) aggressions; and the human being in me, hating the kind of toxic speech to which Trump’s campaign has given rise, wishes to be able to openly declare that hatred. Among its other effects, hate is characterized by hypervigilance for lapses or failings in an object it deems problematic, a hypervigilance that—sometimes—animates analysis (Zeki and Romoya). In this sense, “hate” seems entitled to a comfortable place in the ranks of what Nick Salvato has recently dubbed criticism’s creative “obstructions”—phenomena that, while “routinely identified as detriments” to critical inquiry, may also “form the basis for … critical thinking” (1).Yet while one boon associated with this disclosure might be a welcome intellectual honesty, a more significant boon, I’d argue, is what getting this disclosure out of the way might leave room for. Opting out of the game of hurling “hate” back and forth across a super-charged political arena, that is, we might devote our column inches and Facebook posts to the less sensational but more productive task of systematically challenging the specious claims, and documenting the damaging effects, of a species of utterance (Butler; Matsuda; Waldron) we’ve grown used to simply descrying as pure, distilled “hate”. And we also might do something else. Relieved of the confident conviction that we can track “Trumpism” to a spontaneous outbreak of a single, localizable emotion, we might be able to offer a fuller account of the economic, social, political and affective forces that energize it. Certainly, hate plays a part here—although the process by which, as Isabelle Stengers puts it, affect “make[s] present, vivid and mattering … a worldly world” (371) demands that we scrutinize that hate as a syndrome, rather than simply moralize it as a sin, addressing its mainsprings in a moment marked by the nerve-fraying and life-fraying effects of what has become known across the social sciences and critical humanities as conditions of social and economic “precarity” (Muehlebach; Neil and Rossiter; Stewart).But perhaps hate’s not the only emotion tucked away under the hood. Here’s something affect theory knows today: affect moves not, as more traditional theorists of political emotion have it, “unambiguously and predictably from one’s cognitive processing,” but in ways that are messy, muddled and indirect (Gould 24). That form of speech is speech we hate. But it may not be “hate speech.” That crime is a crime we hate. But it may not be a “hate-crime.” One of the critical tactics we might crib from Berlant’s work in Cruel Optimism is that of decoding and decrypting, in even the most hateful acts, an instance of what Berlant, herself optimistically, calls “optimism.” For Berlant, after all, optimism is very often cruel, attaching itself, as it seems to have done in 2016, to scenes, objects and people that, while ultimately destined to “imped[e] the aim that brought [it to them] initially,” nevertheless came to seem, to a good portion of the electorate, the only available exponent of that classic good-life genre, “the change that’s gonna come” (“Trump” 1-2) at a moment when the Democratic party’s primary campaign promise was more of the free-market same. And in a recent commentary on Trump’s rise in The New Inquiry (“Trump”), Berlant exemplified the kind of critical code-breaking this hypothesis might galvanize, deciphering a twisted, self-mutilating optimism in even the most troublesome acts, claims or positions. Here’s one translation: “Anti-P.C. means: I feel unfree.” And here’s another: “people react negatively, reactively and literally to Black Lives Matter, reeling off the other ‘lives’ that matter.” Berlant’s transcription? “They feel that they don’t matter, and they’re not wrong.”ReferencesAhmed, Sara. The Promise of Happiness. Durham, NC: Duke University Press, 2010.———. The Cultural Politics of Emotion. London: Routledge, 2004.Aristotle. Rhetoric. Trans. W. Rhys Roberts. New York: Cosimo Classics, 2010.———. Politics. Trans. Ernest Barker. Oxford: Oxford University Press, 1995.Berlant, Lauren. Cruel Optimism. Durham, NC: Duke University Press, 2011.———. “Trump, or Political Emotions.” The New Inquiry 5 Aug. 2016. <http://thenewinquiry.com/features/trump-or-political-emotions/>.———. “Poor Eliza.” American Literature 70.3 (1998): 635-668.———. The Queen of America Goes to Washington City. Durham, NC: Duke UP: 1998.Butler, Judith. Excitable Speech: A Politics of the Performative. New York and London: Routledge, 1997.Campbell, Karlyn Kohrs, and Kathleen Hall Jamieson. “Introduction to Form and Genre.” Methods of Rhetorical Criticism: A Twentieth Century Perspective. Eds. Bernard Brock, Robert L. Scott, and James W. Chesebro. Detroit: Wayne State University Press, 1990. 331-242.Conservapedia. “Liberal Hate Speech.” <http://www.conservapedia.com/Liberal_hate_speech>.Cvetkovich, Ann. Depression. Durham, NC: Duke University Press, 2012.Desmond-Harris, Jenna. “The Wave of Post-Election Hate Reportedly Sweeping the Nation, Explained.” Vox 17 Nov. 2016. <http://www.vox.com/2016/11/17/13639138/trump-hate-crimes-attacks-racism- xenophobia-islamophobia-schools>.Freud, Sigmund. “Group Psychology and the Analysis of the Ego.” Complete Psychological Works of Sigmund Freud Vol. XVIII: 1920-1922. Trans James Strachey. London: Vintage, 2001.———. Civilization and Its Discontents. Trans. James Strachey. 1930. <http://www.stephenhicks.org/wp-content/uploads/2015/10/FreudS-CIVILIZATION-AND-ITS-DISCONTENTS-text-final.pdf>.Gould, Deborah. “Affect and Protest.” Political Emotions. Eds. Janet Staiger, Anne Cvetkovich, Ann Reynolds. New York: Routledge, 2010.Gourarie, Chava. “How the Alt-Right Checkmated the Media.” Columbia Journalism Review 30 Aug. 2016. <http://www.cjr.org/analysis/alt_right_media_clinton_trump.php>.Hardt, Michael. “For Love or Money.” Cultural Anthropology 26. 4 (2011): 676-82.hooks, bell. All about Love: New Visions. New York: Harper Collins, 2001. Horowitz, David. “Anti-White Racism: The Hate That Dares Not Speak Its Name.” Breitbart News 26 Apr. 2016. <http://www.breitbart.com/big-journalism/2016/04/26/anti-white-racism-hate-dares-not-speak-name-2/>.Hume, David. A Treatise of Human Nature: Being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects. London: Thomas and Joseph Allman, 1817.KCRW. “The Rise of Hate and the Right Wing.” <http://www.kcrw.com/news-culture/shows/press-play->.King, James. “This Year in Hate.” Vocativ 12 Dec. 2016. <http://www.vocativ.com/383234/hate-crime-donald-trump-alt-right-2016/>.Locke, John. A Letter Concerning Toleration. London: Huddersfield, 1796.Main, Thomas J. “What’s the Alt-Right?” Los Angeles Times 25 Aug. 2016. <http://www.latimes.com/opinion/op-ed/la-oe-main-alt-right-trump-20160825-snap-story.html>.Massumi, Brian. Parables for the Virtual: Movement, Affect, Sensation. Durham, NC: Duke University Press, 2002.Matsuda, Mari. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Westview Press 1993.Muehlebach, Andrea. “On Precariousness and the Ethical Imagination: The Year in Sociocultural Anthropology.” American Anthropologist 115. 2 (2013): 297-311.Neilson, Brett, and Ned Rossiter. “From Precarity to Precariousness and Back Again: Labour, Life and Unstable Networks.” Fibreculture 5 (2005). <http://five.fibreculturejournal.org/fcj-022-from-precarity-to-precariousness-and-back-again-labour-life-and-unstable-networks/1>.Ngai, Sianne. Ugly Feelings. Cambridge: Harvard University Press, 2005.Nussbaum, Martha. Political Emotions: Why Love Matters for Justice. Cambridge: Harvard University Press, 2013.Okeowo, Alexis. “Hate on the Rise after Trump’s Election.” New Yorker 17 Nov. 2016. <http://www.newyorker.com/news/news-desk/hate-on-the-rise-after-trumps-election>.Phillips, Angela. “Social Media Is Changing the Face of Politics—and It’s Not Good News.” The Conversation 9 Feb. 2016. <https://theconversation.com/social-media-is-changing-the-face-of-politics-and-its-not-goodnews-54266>.Reed, T.V. Digitized Lives: Culture, Power and Social Change in the Internet Era. New York: Routledge, 2014.Salvato, Nick. Obstructions. Durham, NC: Duke University Press, 2016.Sandoval, Chela. Methodology of the Oppressed. Minneapolis; Minnesota University Press, 2001. Sedgwick, Eve Kosofsky. Epistemology of the Closet. Berkeley: University of California Press, 1990.Sidahmed, Mazin. “Trump's Election Led to 'Barrage of Hate', Report Finds.” The Guardian 29 Nov. 2016. <https://www.theguardian.com/society/2016/nov/29/trump-related-hate-crimes-report-southern-poverty-law-center>.Stengers, Isabelle. “Wondering about Materialism.” The Speculative Turn: Continental Philosophy and Realism. Eds. Levi Bryant, Nick Srnicek, and Graham Harman. Melbourne: re.press, 2001. 368-380. Stewart, Kathleen. “Precarity’s Forms.” Cultural Anthropology 27.3 (2012): 518-525. Tett, Gillian. The Silo Effect: The Peril of Expertise and the Promise of Breaking. New York: Simon and Schuster, 2016.Turow, Joseph. The Daily You: How the New Advertising Industry Is Defining Your Identity and Your Worth. New Haven, CT: Yale University Press, 2011.Waldron, Jeremy. The Harm in Hate Speech. Cambridge: Harvard University Press. Wallace-Wells, Benjamin, “Is the Alt-Right for Real?” New Yorker 5 May 2016. <http://www.newyorker.com/news/benjamin-wallace-wells/is-the-alt-right-for-real>.Washington Times. “Editorial: The FBI Dumps a ‘Hate Group’.” 28 Mar. 2014. <http://www.washingtontimes.com/news/2014/mar/28/editorial-the-fbi-dumps-a-hate- group/>.Weisberg, Jacob. “The Alt-Right and a Deluge of Hate.” Slate 1 Nov. 2016. <http://www.slate.com/articles/podcasts/trumpcast/2016/11/how_the_alt_right_harassed_david_french_on_twitter_and_at_home.html>.Zeki, S., and J.P. Romaya. “Neural Correlates of Hate.” PLoS ONE 1.3 (2008). <http://dx.doi.org/10.1371/journal.pone.0003556>.Zizek, Slavoj. “Love as a Political Category.” Paper presented to the 6th Subversive Festival, 16 May 2013. <https://www.youtube.com/watch?v=b44IhiCuNw4>.

"Although the African Commission recognised that non-state actors (in this case the transnational corporations (TNCs)) contributed to the violations that prompted the SERAC communication, it failed to hold the TNCs accountable for the violations. The Commission rather held the state party responsible [for] failing to prevent the violations in its territory. The reason for the failure of the Commission to hold the non-state actor accountable is obvious. As Anderson has noted, 'conventional jurisprudence contends that human rights are enforceable only against the acts of omissions of the state rather than the acts of private entities'. Consequently, especially in international fora, violations by non-state actors have gone largely unaccoutned for. Hence, commentators have argued in favour of seeking an appropriate regime for holding non-state actors accountable for such violations, some arguing for horizontal application at international fora. However, non-state actors lack the status to allow Charter institutions exercise jurisdiction over them. This leaves the option of domestic systems as fora for their accountability. Thus, the emerging principle of horizontal applicability of human rights in domestic jurisdictions and the assumption of independent judiciaries provide the premises for this study. ... Chapter 1 contains a general overview of the study. In Chapter 2, the essay examines the scope and content of the right to a satisfactory environment as contained in the African Charter. Chapter 3 examines the existing framework for the realisation of the right to a satisfactory environment under the African Charter. The SERAC case is considered briefly in this chapter as an example of the difficulty to arrest non-state actor violations in the existing framework. Chapter 4 presents the case for horizontal application of article 24 of the African Charter at the domestic level as a complimentary approach to realisation of the right. The debate on horizontal applicability of human rights is highlighted to show that it is not yet widely accepted but it is presented as a basis for this option. The recent Nigerian case of Gbemre v SPDC is examined as an example of the possibility of horizontal applicaton of the article 24 right in a domestic tribunal. Chapter 5 summarises the conclusions from the study and makes recommendations in support of applying the African Charter based right horizontally in domestic courts." -- Introduction.
Mini Dissertation (LLM)--University of Pretoria, 2006.
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
Centre for Human Rights
LLM
LLM