5. What Does the New UN Human Rights Approach bring to the Struggle of the Poor? – I

  1. We Live in a New Age of Rights
    1. Why does our commitment to a Human Rights approach in health, nutrition and development work overall need to change?

    I would argue it is a fundamental reaction to the additive negative impacts of Globalization because Globalization is creating and is accelerating poverty, disparity, exclusion, unemployment, marginalization, alienation, environmental degradation, exploitation, corruption, violence and conflict.

    1. In short, people who are being marginalized by Globalization today are really being pushed to the limit and they do need action. In real terms, beneficiaries of top-down social services (mostly the poor) have no active claim to ensure their needs will be met. So the Human Rights approach comes to introduce the missing element of de-facto accountability; and this is its added value in development work. (1, 2)
    2. Because the rights-based approach takes the entitlements of those being marginalized as its starting point, a preliminary consensus needs to be reached that development, to be sustainable, must be based on equity. (3, 4)
    3. The rights-based approach does strive for equity and sustainability; it focuses on the basic and structural (macroeconomic) causes of poverty, ill-health and malnutrition; it further highlights the strategic importance the formation of social capital plays in the development process. (5)
    4. Historically, there has been much circularity in the discussion of Human Rights. Now, more concrete actions need to be identified. There is still a segment of the Human Rights community that thinks that one can settle world order issues while the power issues are still against the majority of the marginalized. But, as just said, this is almost a contradiction. Worldwide development will simply not take place through the benevolence of the Global Free Market and of those who, through their power, control it. (3)
    5. During the process of relentless Capitalist accumulation, serious social cleavages have eventually occurred. One would think these did sober us. But we are now living in yet another utopia, one that extols the ultimate benefit of Globalization. This utopia is made of a similar, but dangerous mythical belief that ultimately the free market will make everybody happy. (6)
    6. The Human Rights approach is here to set limits to the vicissitudes and sways of the (socially insensitive) market. (7)

    The Challenge: What Changes?

    1. Because of the fatal flaws of Globalization as the latest stage of Capitalist development, more humane global governance is now needed more than ever. (8)
    2. It is a fallacy to focus on whether Globalization or bad governments are the most important cause of Human Rights violations. The Human Rights approach shows us what states should do or not do. When they fail the test, many governments actually use the Globalization argument (of being victims of a global process) as an excuse for not implementing their obligations. (8a)
    3. In fact, one more often finds considerable softness in the approach of governments to rights and to their implementation. Often, a rights-based approach is not even on their radar screens. So both the individual duty bearers, as well as the system are to blame and to be held accountable. (3)
    4. The United States, for example, has regarded the socio-economic rights of the Universal Declaration of Human Rights as a wishful “letter to Santa Claus” (Jean Kirkpatrick, former US ambassador to the UN). The US has little sympathy for Social and Economic Rights, in contrast to its vociferous and selective support of Civil and Political Rights.
    5. In the case of all governments, how much of their general budgets they devote to health, to food, to education and to poverty alleviation is of substantive Human Rights concern. One should thus look at how the various expenditures are distributed among the various population groups. Governments do violate Human Rights when they fail to offer adequate services to certain segments of society. To take a very real and current issue, should, for example, the provision of such services be privately organized, governments still remain responsible for the egalitarian and adequate provision of the same. But, are they? They are often not; one just needs to look at the existing evidence to see that. Civil society watchdog groups should be monitoring these developments. (9)
    6. A Human Rights-focused analysis of statistical data should examine the extent to which various expenditures in social and other services are distributed among the diverse population groups according to need. Beneficiaries’ watchdog groups have to scrutinize these actions to make sure they ‘respect, protect and fulfill’ Human Rights, and protest if they fail to do so. In so doing, they will actually address the whole gamut of government Human Rights violations. (9)

    (In all candor, the very way in which statistics are now organized and presented by government agencies may be one of such violations already.) (8)

    1. But are governments the sole holders of Human Rights duties? The answer is no. Who are the other duty holders then? The example of children as right holders helps us illustrate this point: The duty bearers of children’s rights are, first and foremost, the immediate care-givers, followed by the family/ household members, the community and neighbors, local, sub-national, national and international institutions -all linked in a web of complementary duties.
    2. This is the theory. But what we have real problems with right now is to convert these concepts into working programs, people’s claims into rights, so as to implement a rights-based development model in all its components. (10)
    3. Although the recognition of the fundamental rights of all members of the human family is the basis of an overall ethical and political approach to development, really understanding these rights has largely, so far, been confined to Human Rights institutions, especially the UN agencies. How much should/can one rely on these agencies then to shift the focus of current and upcoming development programs to a Human Rights focus? For the time being, perhaps quite a bit. (2)
    4. Their first challenge will be to create a common language with governments and NGOs, a language primarily based on social commitments to Human Rights and on raising the level of responsibility of the different actors -both as claim holders and as duty bearers. (5)

    The second challenge is to make the Human Rights approach concrete and give it substance. (11, 12)

    [We desperately need more rights-based programming approaches. It would be good to have concrete examples of such programming. But, for now, we don’t. (13, 12)]

    Thereafter, UN agencies will have to build a more structured political constituency for Human Rights. (14)

    1. But for now, most governments fear that the recognition of these rights would interfere with their policy choices. They will have to be made to understand that certain aspects of the rights approach may be subject to progressive (gradual) realization. On the other hand, poorer states will have fewer resources available. But there is a minimum core of rights that they all have to uphold! States have to guarantee the respect of those rights under any circumstance, irrespective of the resources available to them. (9)
    2. What this means is that progressively, Human Rights objectives need to be better defined and refined to more explicitly establish universal Human Rights goals. Human Rights have yet to acquire a more operational meaning for people, and that is a major political responsibility we all have to deal with now.

    Put another way, in operational terms, effectively mainstreaming Human Rights in all development activities remains a challenge of enormous dimensions –and the challenge is a political one. (2, 4, 15)

    1. The main challenge here is to achieve consensus among development actors on such operationalization -and that is unthinkable outside an ideological framework which will bring us right back to the left/right, capitalism/socialism divide of “to all according to their needs regardless of their means”.
    2. What will become central in this debate is for all of us to understand that Human Rights means the right to demand a whole series of things. Among them:
    • that economic and physical access to basic services is equally guaranteed, especially for girls, women, the elderly, minorities and the marginalized,
    • that steps be taken to progressively achieve all Human Rights,
    • that expeditious and verifiable moves be undertaken towards realizing those rights,
    • that accountability, compliance and institutional responsibility be required in all processes,
    • that administrative decisions are in compliance with Human Rights obligations,
    • that unwillingness be differentiated from inability to comply,
    • that states prove that there are reasons beyond their control to fulfill their obligations,
    • that the private business sector (national and transnational) also complies with Human Rights dispositions,
    • that national strategies on Human Rights be adopted that define clear benchmarks,
    • that the implementation of national strategies is transparent, decentralized, includes people’s participation and moves towards eliminating poverty,
    • that new legislation be developed involving civil society representation in its preparation, enforcement and monitoring. (16)
    1. If the above demands are met, the added value of the rights-based approach will accrue in a way that:
    • beneficiaries become active claimants,
    • the process underlines the legal obligations of states,
    • Human Rights provide the principled framework used to make decisions,
    • the process moves the debate from charity/compassion (where there is already fatigue) to the language of rights and duties (accountable to the international community with compliance that can be monitored),
    • the respective imperatives can be made more forcefully (making governments effectively liable). (17)
    1. It is in this light that the Human Rights approach enhances the scope and effectiveness of social and economic remedial measures by directly referencing them to close to universally accepted obligations to be found in the related UN Covenants. (16)

    These obligations, let us be reminded, are either passive, negative or positive (depending on the specific Human Rights circumstance) and they are in competition with obligations stemming from other rights, especially when resources are scarce. (18)

    1. One must nevertheless keep in mind that the duty to fulfill Human Rights does not depend on an economic justification and does not disappear because it can be shown that tackling some other problems is more cost-effective. (19)
    2. The practical consequences of adopting a Human Rights approach then is that one realizes that all major currently active or passive social/political forces have the same obligations towards these rights; the challenge is to make them compliant with the fact that the responsibility must be shared. (5)
    3. To put things in a historical perspective, in the Basic Human Needs-based approach, beneficiaries had no active claim to their needs being met. The ‘value-added’ flowing from the Human Rights-based approach is the legitimization of such claims giving them a politico-legal thrust.
    4. Going back to the example of the child, in the Basic Needs approach, the child was seen as an object with needs (and needs do not necessarily imply duties or obligations, but promises). In the rights-based approach, the child is seen as a subject with legitimate entitlements and claims (and rights always imply and are associated with duties and obligations).
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