Dialogue in Pursuit of Development - Are you looking for one of ...

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Domestic law/constitutions
When it comes to using domestic documents as a point of departure, typically
the Constitution and/or Bill of Rights, it goes without saying that this
must of course be that of the recipient state. Many of the same considerations
apply as in relation to the regional instruments (above), but of course
even more so in the sense that the country providing assistance, but also
being in a position to exercise conditionality, may have to deal with interpretations
of human rights which are quite far from its own. In earlier times
most national constitutions were a blueprint of the European Convention,
as was the case when the British colonies gained independence in the early
1960s, but even though donor influence in the constitutional processes in
many countries has been significant, the formulations are far more reflective
of contextual interpretations of human rights principles. Ultimately
this stretches and tests our willingness for dialogue, because as we in these
cases move solely on the recipients’ turf, we may have to confront how
much diversity, cultural relativism or at least interpretations within a certain
margin, of the so-called universal standards we are willing to live with, especially
as donors?! We may even have to accept that a seemingly globally
applicable standard like “freedom from cruel, inhuman or degrading punishment
or treatment”, which is found in most of the global, regional and
national instruments, may be subject to different interpretations. For instance,
in a European context it is uncontested that the principle is incompatible
with any type of corporal punishment, while in an African or Asian
context this may not be the case at all, as several states accept moderate
forms such as ‘caning’ as a legitimate penal sanction.
Provided, however, that one can overcome such differences, the national
Constitutions have the important advantage that in terms of legitimacy,
they rise above the international regulations, simply because they must be
seen as an indication of a given state’s commitment, expressed at the highest
level of law. Therefore, in the aid dialogue, to point one’s finger at the
obligations which the states have declared themselves willing to undertake,
expressed in the Constitutional Bill of Rights, is a very strong argument –
especially if followed by an indication of understanding of, and willingness
to help in overcoming, the difficulties which a developing and/or transitional
country may be faced with when it comes to their implementation in
reality.
Three illustrative cases
In the following, I will give three stories as case examples, illustrating how
the human rights instruments described above, at various levels, can play a
significant role in relation to development dialogue, spanning from interstate
negotiation to various training and teaching sessions.