A new social awareness has to be created about the fact that human rights violations are socially constructed events and must thus be tackled with public policies and actions nationally and internationally. (Flavio Valente, FIAN)
1. When presented with evidence of many flagrant human rights violations in their countries, many governments appeal to the ‘insufficient resources’ and thus to the ‘progressive implementation’ clause of the International Covenant on Economic, Social and Cultural Rights to, in reality, (indefinitely) postpone needed action. To get away with it, states often refuse to accept violation claims and resort to (twisted) ‘different interpretations’ of these terms. These arguments do not stand up to critical scrutiny; they are put forward mainly for self-serving reasons. (K. Hossain)
2. Putting this in context, we will remember that States have immediate obligations and core obligations.*
*: A core obligation means prompt steps must be taken especially for the traditionally most deprived groups. These situations cannot be dealt with progressive measures since they have irreversible consequences for the victims and hinder them from leading a dignified life. (F. Valente, FIAN)
3. Let us recall that international human rights law expects states to report on the progressive realization of different human rights (HR). Progressiveness does not apply to immediate obligations though, i.e., non-discrimination and non-retrogression, as well as when there is a risk to life requiring immediate action, i.e., in a famine situation.**
**:Since famines kill tens of thousands of people, the freedom from hunger is actually a civil and not an economic, social and cultural right. …and, beware, despite famines killing thousands of people, they do not ever kill the rulers. (K. Hossain)
4. On the other hand, there is no ‘minimum-essential-level’ for states to fulfill their HR obligations overall. Instead, there are core obligations, as for example, immunization programs in health.
5. As civil society, we therefore, need to identify all acts of omission and of commission by the state which directly contribute to the violation of HR (for example, not preventing 100% preventable ill-health, malnutrition and deaths). We must, furthermore, bring to the fore the underlying structural determinants that allow/condone those situations that make the affected population groups unnecessarily vulnerable. These unacceptable levels of ill-health, malnutrition and preventable deaths must be seen as indicators of chronic situations of vulnerability, and not as isolated events of violations. States that have ratified the HR covenants cannot thus postpone needed action (applies also to non-ratifiers). A concrete agenda for the progressive realization of the violated HR is called for –and civil society organizations (CSOs) have to hold the state accountable for this.
6. It is important for CSOs to keep in mind that cases of such ongoing violations should (and can) be presented to the judiciary if there is enough public pressure. Ergo, be aware that justiciability depends on social mobilization!
7. Since currently used indicators, including those for the MDGs, do not reflect well the processes needed for the realization of specific human rights, we need to propose more adequate, viable and measurable new indicators (or good proxy indicators).
Ultimately, states (or CSOs by default***) must develop adequate assessment mechanisms with adequate disaggregation of data that allow for the identification of the vulnerable groups and their unfulfilled rights so that improvements can be monitored. Once the baseline situation is assessed, states (or CSOs by default***) must propose clear benchmarks agreed-upon with civil society and with the affected groups themselves; this is the basis of progressive realization. Therefore, states (or CSOs by default***) must clearly and thoroughly inform the deprived populations of their rights and of the existing (or non-existing) policies and programs directed at doing away with chronic violations. [People do have the right to be supported to develop their own HR capacities and to be assisted when their human rights are being violated].
***: In this regard, further clarification of states obligations will play a crucial role in increasing the capacity and the power of CSOs to claim.
8. Furthermore, administrative and legal mechanisms need to be put in place to which claim holders can resort when they feel their human rights are being violated. This calls for norms and procedures being instituted in which the human rights of claim holders and the obligations of duty bearers are clearly spelled out –including the setting of penalties for not fulfilling such obligations.
9. Bottom line: As long as our struggle for HR is seen as fighting social regrettables, human rights violations will not be forcefully denounced as such and HR will a) not be realized, b) recourse instruments will not be instituted, and c) victims will not be able to claim.
Four caveats
i) The recognition of human rights as the guiding principle of development work does not, by itself, lead to an accelerated reduction of their violation. However, it is a solid first step if associated with strong social mobilization and with the institution of clear recourse mechanisms.
ii) Some of you may ask: why not setting up special government task forces to make sure HR are respected, protected and fulfilled? Commissions/committees/task forces come and go; civil society stays.
iii) Rich countries have the responsibility to provide the necessary support to poor countries in promoting the realization of human rights to the maximum of their available resources –and that includes supporting social mobilization and the institution of recourse mechanisms in those countries.
iv) Moreover, when rich countries are members of international bodies, they must proactively foster the HR obligations they ratified and apply as a nation.
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org