Claudio Schuftan, People’s Health Movement, Ho Chi Minh City, Vietnam
Abstract
Historically, political elites adopted the idea of human rights if, and only if, it could foster their interests. Today, it is thus public interest civil society organizations, and not states, that are left to contribute most to the protection of and the struggle for human rights. Despite human rights being enshrined in constitutions, nowadays they can primarily be effectively claimed by those with access to the courts and by the press, i.e., those in power. Public interest civil society organizations and social movements are the only ones left to play this crucial role. The need for the global human rights movement to bridge the gap that has opened up between itself and the majority of the public is clear. Communications in the human rights domain simply have to become less legalistic and more hands-on. To claim their rights, those rendered poor need real power. Those who have been left poor and oppressed do not ever get to actively claim their rights. Instead they ask for mercy, expect charity, and seek benefits from benevolent masters.
Keywords human rights history, accountability, role of civil society, claim holders, duty bearers
A Bit of History: Human Rights From Then to Now
Powerful barons in the year 1215 (the year of the Magna Carta), the advancing bourgeoisie of the 18th century, and the new political elites in 1948 and 1989 all adopted the idea of human rights (HR) at a time when it could foster their interests. Once they had assured access to power for themselves, they often abandoned the idea of rights. The present crisis of the idea of HR, however, seems primarily related to the fact that no strong power exists that actually fosters its own political interests under the banner of HR. Today, it is thus public interest civil society organizations (PICSOs), and not states, that are left to contribute most to the protection of and the struggle for HR.
In this context, defending and protecting HR is proportional to the present and growing strength, organization, and mobilization of PICSOs. By now you know: even when HR are enshrined in constitutions, nowadays they can primarily be effectively claimed by those with access to the courts and by the press, i.e., those in power. The rich have no need for civil society in this regard, for they can go to court to assert their rights on their own. But for everyone else whose rights are being violated, PICSOs and social movements are the only ones left to play this crucial role. When attempts are made to enforce HR through other mechanisms, such as by falling back on reminding states of their solemn responsibilities vis-à-vis ratified international treaties, PICSOs again play the vital role. The example of the Treatment Action Campaign (TAC) in South Africa regarding the lowering of prices for antiretroviral medicines is a good example here.
In the 19th century, democratic theory accepted party systems as a necessary mediating institution between individual voters and their representation in government. Similarly, constitutional democracy ought to accept the need for public interest institutions without which individual and collective HR are of limited use to anyone who is not rich and powerful. PICSOs must thus be elevated to the status of political parties in the theory and practice of constitutional democracy.
The need for the global HR movement to bridge the gap that has opened up between itself and the majority of the public is clear. This gap needs to be closed, both in how HR organizations communicate with the public, and in whose causes (which groups, which rights) these HR organizations take up. Communications in the HR domain must become less legalistic and more hands-on. And the movement has to embrace those left behind by economic growth in the era of globalization. Yes, there are institutions that are supposed (or pretend) to benefit those rendered poor, but this is done in a way too close to humanitarianism and charity, and not by enforcing HR principles.
More than ever, to claim their rights, those rendered poor need real power. The principles of HR have seldom yet sufficiently served those who are poor, destitute, dispossessed, and oppressed. Such groups usually do not ever get to actively claim their rights. Instead they ask for mercy, expect charity, and seek benefits from benevolent masters.
Experience shows us that HR have usually been claimed by those strong enough to demand them. Going back to the same example above, TAC’s success in having its demands heard and acted upon was the result of rapidly growing support both within South Africa and actually all over the world. Each call for rights served the purpose of social groups that tried to stop further proliferation of rights once their own goals were reached. Globalization has opened up an even deeper schism between HR and people whose poverty still seems (only seems?) invisible to the masters of globalization. The HR movement has lost precious time. We must recognize that PICSOs and social movements must actively take advantage of those moments of HR ascendance to make quantum leap progress beyond what the great powers will concede (Only thus will claim holders attain what they are capable of striving for and what they deserve to attain. If claim holders continue being slaves, they will be that due to their own incapacity to shake off the chains of tyranny. If so, a country will become trapped in the fatalistic fate it willingly chose. Let it be said that sentiments of compassion for those who thought they were obliged to sell their soul and their intelligence in the “market of life” and became slaves are of no help.1). We also must insist on the legitimacy of PICSOs as independent pillars of constitutional democracy, able to call on the moral and financial support of allies worldwide (adapted from Wiktor Osiatyński).2
What the above tells us is that all socioeconomic models of the past required a philosophy and an education that would justify and sustain it. In the here and now, neoliberalism combats critical thinking from primary school on. It fears and abhors such thinking. It, therefore, actively attempts to restrain the teachers that dare to cover HR issues with their students.3 This being the case, are we to go from “naming and shaming” to “knowing and showing” in our HR work? If the latter is true, are PICSOs consequently expected to go along with or oppose “responsible business”—provided such can be found? Will this mean emphasizing regulation of conduct and accountability by adopting an approach that favors internal company changes through soft rules? Has this worked in the past? I have my doubts. Negotiating and concluding a legally binding instrument on HR and transnational corporations and other business enterprises, as is now under way in the United Nations, will be a significant step forward. An international agreement that creates or enhances the legal liability and accountability of business corporations will indeed have a balancing effect in a context where there are just a handful of international agreements that only very partially address the role and responsibility of corporate entities.4
Conceptualizing Accountability
-Essentially, accountability is a process to ensure that commitments are kept.
Accountability pertains to a triad comprising monitoring, review and remedial action. (Review alludes to analyzing data to determine whether a certain HR has improved or not plus analyzing whether pledges, promises, and commitments have been kept by countries, donors, and non-state actors. Remedial action alludes to the idea of redress or remedy, i.e., to measures to put things right.) Human rights instruments have importantly contributed to shape and insist on this understanding of accountability. Equating monitoring alone (or tracking progress alone) with accountability actually eviscerates the concept of accountability. Kate Donald of CESR calls what we need “a web of accountability” that, in her words, includes independent review, compliance with U.N. human rights treaty-bodies and U.N. special rapporteurs’ reports.5 If a global independent accountability review body is (hopefully) established, to whom should it report? Formal independent HR reviews must have one or more suitable political body(ies) or process(es) to which they are required to report. Otherwise, accountability charges will risk disappearing without attracting the significant needed attention and reaction. If the 3 components above are not distinguished, there is a risk that one, such as monitoring, will be conflated with accountability. If this happens, those who made the commitments by ratifying HR covenants—the duty-bearers—are likely to escape meaningful accountability.5
Most people think of HR as a body of accepted norms or standards. However, HR-based social systems involve more than that. There are institutional arrangements that must be put into place to make sure that HR are in fact realized. Human rights are to be seen inescapably as enforceable claims. Let us not forget that on top of claim holders and duty bearers are agents of accountability. The task of these agents is to make sure that those who have the duty do carry out their obligations to those who have the rights. The accountability mechanisms importantly include the remedies that have to be made available to the claim holders themselves (George Kent, personal communication, March 2014). International HR principles and standards and international HR law apply to all branches of the state: the executive, the legislative, and the judiciary. The “dam of justice” can only hold back the waters of righteousness for so long.6 For too long, oppressed people have learned to move within the “bureaucracy of pain.” They have yet to learn to live with justice, dignity, and equality. In this world, we need more angry people who will not take it anymore. It is time to level with a dire, oppressive reality. The failures we witness day-in-day-out translate to what is referred to as the “social debt” which is defined as “the State’s unfulfilled obligations to its citizens, which can be approximated from the State’s commitments in its Constitution and its laws, the socioeconomic targets set by all previous development programs and plans, and the international standards set by the United Nations and other international covenants.”7
The HR framework directly addresses the problem of the social debt in a meaningful and inclusive manner—and accountability is at the center of it all.8
Postscript/Marginalia
—The United States has not ratified the international treaties that enshrine many of the HR directly impacted by extremes of poverty and wealth, like education and health. The United States clings to the Cold War fixation that HR encompasses only the civil and political and not the economic, social, and cultural entitlements that are just as central to the idea of human dignity as expressed in the Universal Declaration of Human Rights. As appalling is the fact that the U.S. Supreme Court has held that there is no constitutional right to an education, let alone a quality one, and has never held that there is a right to health care either. But denial does not eliminate responsibility!
—There are so many millions of human beings to be reached. I mean people living small lives in our world of today, people making a living in an honest way, without showing any visible outbursts of envy, people not seeing any of their contradictions with the society or the times they live-in, with neither professing any defined political ideology nor embarking in ambitious individual or altruistic projects. They work, eat, sleep, suffer a bit, but are not apparently tormented by it; they cannot see the why of their suffering.1
References
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Author Biography
Claudio Schuftan, MD, born in Chile and currently based in Ho Chi Minh City, works as a freelance consultant in public health. He is the author of more than 85 scholarly papers published in refereed journals and of several book chapters, plus more than 400 other assorted publications. He has carried out more than 100 consulting assignments in 50 countries on 5 continents. He has worked long term in his native Chile, the United States, Cameroon, Kenya, and Vietnam. He is fluent in 5 major languages. He is currently an active member of the Steering Council of the People’s Health Movement and of the World Public Health Nutrition Association. He is the author of a long-running blog, the Human Rights Reader, counting over 440 issues.