-There is a clear difference between having a right and having a right realized. Slaves in the US had the right to freedom before President Lincoln and native Africans in South Africa had the right to freedom before Apartheid was abolished.
-If a country (state party) has ratified a treaty, individuals move from being just right-holders to being claim-holders –with valid claims on others, i.e., the correlative duty-bearers. This forms a ‘claim-duty pattern’ in society, in which the state, most often, is the ultimate duty-bearer. (Urban Jonsson)
1. Ratification is a binding act in international law. The extent to which human rights (HR) can be enforced through litigation acknowledges that: they must indeed be taken seriously. But we are all aware that court verdicts are not self-executing; popular mobilization is still essential to overcome state resistance to implement such judgments. Implementing entities responsible for the adoption and actual implementation of HR policies indeed too often enjoy unwarranted impunity. (Ted Schrecker)
2. We are also aware that most countries cannot change decades-long (or centuries-long?) situations of HR violations overnight. The answer is to come up with indicators that tell us a country’s readiness to accelerate action on the progressive realization of specific HR*. We can then classify countries according to this readiness after a HR impact assessment is carried out (even if a quick one). (SCN News No. 37, early 2009) This readiness should be measured as a function of both the government’s commitment and its capacity. Commitment corresponds to willingness to act at scale (with commensurate allocation of resources). Capacity corresponds to a country’s ability to act at scale (i.e., available staff, institutions, training opportunities). (C. Nishida)
*: It is the UN Economic, Social and Cultural Rights (ESCR) Committee that has the role as the ultimate arbiter in determining what progressive-realization-of-HR-measures are deemed appropriate, i.e., their being implemented in a reasonable short time frame; the steps being sufficiently deliberate, concrete and targeted so as to meet the respective HR obligations in default. The evidence they look for to point in that direction are: legislation passed, judicial remedies applied, and social measures or policies adopted.
3. Traditionally, capacity has been equated with training, but the HR-based framework has expanded the concept to encompass acceptance-of-responsibility to meet a set of respective duties, namely
• to have the authority to do so,
• to have the access-to and control-over the economic, human and organizational resources necessary to meet the respective HR obligations,
• to have the capacity to communicate and the capability to make rational decisions, and
• to have the capacity to use the human rights-based framework in monitoring and evaluating development projects. (U. Jonsson)
4. It is regrettable that, as countries try to (or pretend to) enforce internationally recognized Economic, Social and Cultural Rights (be reminded that the US signed, but never ratified the ESCR covenant)**,
they often fail
• to give the necessary weighted attention to the currently ongoing violations of ESCR in their midst,
• to make reference to the absence of ad-hoc legal remedies,
• to pinpoint clear, specific obligations of duty bearers,
• to critically review trade and taxation policies negatively affecting ESCR,
• to address women’s rights issues***,
• to question why disempowered segments of society do not have the right to be heard****, and
• to give due attention to issues of accountability, non-discrimination, full participation and empowerment –while they tend to focus instead on recommendations that attempt to fix or to set-up social protection nets which carry a high risk of excluding many of those most in need. (FIAN)
**: Note, importantly, that it was due to the Cold War dispute that we ended up with two separate covenants. Civil and Political Rights, and Economic, Social and Cultural Rights. There is no formal reason for this otherwise. (U. Jonsson)
***: For instance, the realization of the women’s right to health requires the removal of all barriers interfering with access to health services, to education and to information –including sexual and reproductive health and contraception. Mind you, the obligation of not discriminating against women also requires very specific measures to redress gender inequality overall.
****: The system we are trying to change is one that keeps people silenced –not even asking questions; one that keeps the judged from judging, and keeps individuals from joining together. (Eduardo Galeano)
5. Bottom line here is that, without the monitoring by the UN Human Rights Council***** (i.e., without any follow-up), the UN Human Rights Strategy carries the risk of contributing more to the problem than to the solution of HR violations, because it would denote a UN Strategy with ‘no teeth’. (A. Paasch, Contact, WCC, Issue 186, Nov 2008)
*****: The Human Rights Council, in existence since 2007, is made up of 47 states. It takes a broad overview on human rights issues. It is the successor to the earlier Commission on Human Rights. In contrast, the Committee on ESCR is a committee of experts, acting in their personal capacity. It oversees implementation of ICESCR.
Progressive realization and priority setting:
6. Human rights activists do not like to address the issue of choice and priority, because all rights are indivisible and interrelated, i.e., each and all of them are inherent to human dignity. There cannot be any hierarchy of rights and thus, strictly speaking, rights should not be prioritized. But because resources are limited, development programming simply requires prioritization.
7. So, in HR programming, one can indeed think of incremental solutions –provided they are arrived-at through participatory methods, i.e., the prioritization should be done with full participation of, at least, the relevant claim-holders. Outsiders’ should not decide on priorities of any kind! What we can and must prioritize are actions that will contribute to the realization of rights currently not upheld. (UNICEF) ******
******: We note though that minimum or core human rights are part of what Amartya Sen calls ‘moral-global-minima’ and are thus not part of this discussion. As per the ESCR Committee, failure to satisfy minimum core obligations imposes a fairly strict burden on states to justify their non-action or compliance.
8. Therefore, the fact that all human rights should be accorded the same respect does not preclude priority setting during the planning and programming process.
9. Bottom line here is that actions for development must be prioritized in any development approach, because resources are always limited. But no priorities should be set out-of-context, a-priori, or ‘in-general’. Better still, prioritization should be the result of a negotiation between claim-holders and duty-bearers in a participatory manner. (U. Jonsson)
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org