Background
1. On December 10, 1948, 48 countries signed the Universal Declaration of Human Rights. The rest is history –history not to be taken lightly since human rights (HR) are just not any rights. They are specifically laid down in treaties. Treaties are contracts between governments. This means they are legally binding on the States that are party to them and call for compliance with the principles and standards contained in each instrument. Not so well known is the fact that signing these treaties already creates an obligation in the period between signing and ratification, i.e., states agree to refrain, in good faith, from acts that would defeat the objectives and purposes of the treaty.
2. Governments are actually required to harmonize their national legislation with international HR standards. For that, they need to examine their domestic legislation accordingly and carry out an analysis of existing policies; also, to refer to constitutional and domestic legal standards, as well as the government’s signed and ratified international HR obligations.*
*: We constantly need to remind governments that, at the 2005 UN World Summit. they did re-commit themselves to integrate the promotion and protection of HR into their national policies. As civil society, we can give them technical assistance to meet those commitments, but comply they must.
3. The above is often hampered by HR still being viewed with suspicion, as an external conditionality or the latest development fad or donor import. These concerns are not infrequently voiced in good faith (but out of ignorance)**, although sometimes they mask a desire to avoid HR obligations.
**: Just think how many of us have been or are unintentionally complicit with HR abuses committed by our or other governments. There simply is no such a thing as unintentional discrimination!
4. Therefore, to ultimately succeed, the challenge is to use HR in ways that people can identify-with and can internalize in the context of their own lives. Why? Because people have to reach a consensus on the causes of HR violations before they even consider demanding action to end the same.
Some further precisions are probably called for at this point:
i) On progressive realization
5. Often, governments use never-ending progressive realization tactics as an excuse for deferring or relaxing their efforts.***
***: Remember: Civil and political rights have immediate effect (right to life, right of association, right to equal access to justice). Conversely, economic, social and cultural rights (ESCR) are to be implemented progressively, except for core obligations that have to be implemented immediately. In ESCR, of immediate implementation are: no discrimination, no regression, taking concrete steps towards the full realization of rights, monitoring progress and the availability of mechanisms of redress before a competent court or other adjudicator. [Key here is a) that aggrieved claim holders are to have the opportunity for recourse where duties are not met and b) that cultural claims cannot be invoked to justify HR violations].
6. One important way to keep track of progressive realization is paying attention to the impact of governments execution of budgets on different social groups. For instance, gender responsive budgeting does influence the rights of women.
ii) On General Comments
7. Treaty bodies have produced General Comments that clarify HR standards and give guidance on what these standards actually mean in practice for each specific codified right; they interpret the respective treaties and clarify their scope and meaning.****
****: General comments adopted by the committee on ESCR: General Comment No. 1: Reporting by States parties; GC No. 2: International technical assistance measures; GC No. 3: The nature of States parties’ obligations; GC No. 4: The right to adequate housing; GC No. 5: Persons with disabilities; GC No. 6: The economic, social and cultural rights of older persons; GC No. 7: The right to adequate housing; GC No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights; GC No. 9: The domestic application of the ESCR Covenant; GC No. 10: The role of national human rights institutions in the protection of economic, social and cultural rights; GC No. 11: Plans of action for primary education; GC No. 12: The right to adequate food; GC No. 13: The right to education; GC No. 14: The right to the highest attainable standard of health; and GC No. 15: The right to water.
iii) On the roles of claim holders and duty bearers
8. During the identification of those with the role of duty bearers*****, we have to ask four key questions upfront: Who are they? What are their duties? Who of them is a violator? Is there a need for remedy?
*****: Duty bearer roles are always defined in relation to claim holders.
9. Identifying pertinent duty bearers depends on which rights are being violated or are not being fulfilled and who the claim holders are in that case.
10. For those with the role of claim holders, we have to ask: Who are they? What are their claims? Which of their rights is/are being violated?
11. Claim holders must have the triple capacity of exercising their rights, formulating claims and seeking redress. When formulating a claim, claim holders must know what they are entitled-to, know how to ask for it and know who to ask for it. Seeking redress includes seeking compensation for an unfulfilled obligation that can be either positive or negative. Remedies can be sought at either judicial, administrative and/or political level.
12. Processes that empower claim holders and duty bearers in their respective roles lead to more sustained results. For this to materialize, both claim holders and duty bearers must be ongoingly involved in monitoring and evaluation.
13. At the end of the assessment of these roles, we are left to identify 4-5 claim holders and 4-5 key duty bearers and 1-2 of the most important rights/duty relationships that need to be addressed as a matter of priority.
iv) On capacity analysis and gaps
14. Capacity gaps found both in claim holders’ and duty bearers’ respective roles have to be assessed, i.e., gaps: in knowledge, in responsibility, in motivation, in leadership, in authority and in access to and control of resources.
15. As pointed out above, the respective development of capacities to follow cannot only be a technocratic process; it also must entail engaging participants in needed social, political, legal and institutional changes.
16. The HR-based outputs aimed-at must thus, first and foremost, contribute to closing the capacity gap of claim holders, of duty bearers, as well as closing the gaps in the local legal, institutional and political frameworks.
17. Working with claim holders only, to empower them in their capacity to claim their rights, will not be effective if similar efforts are not made with duty bearers in an effort to muster their capacity and their commitment to ensure the right services are in place to respond to people’s entitlements.
v) On the human rights-based approach (HRBA)
18. The HRBA lifts intersectoral barriers and facilitates addressing common social and political hurdles that are behind capacity gaps of claim holders and of duty bearers in all the different sectors. It also shapes the type of relations with partners in other sectors by applying a holistic lens that looks at the big picture.
19. We do not deny the HRBA is time-intensive; it primarily requires devoting time to both claim holders and duty bearers capacity building; in other words, setting up ongoing, sorely needed, HR learning opportunities.
20. Furthermore, it is very important to gather information on good practices on the adoption of the HRBA so as to build up the evidence base needed to show effectiveness.
vi) On the HR results chain
21. As you know, the levels we aim-for in the development results chain are outputs, outcomes, impact and sustainability. In HR work, outcomes seek changes in development conditions and improvements in the performance of claim holders and of duty bearers (e.g., changes in their respective behavior). Impact is reached when the specific rights selected for fulfillment are finally realized. Processes are important, because, for us, the how is just as important as what is finally achieved.
22. Rights-based outputs close capacity gaps of claim holders and duty bearers; they create conditions for them to perform their respective roles.
23. Rights-based outcomes improve claim holders’ and duty bearers’ performance, i.e., they bring about positive changes in their individual behavior and that of the organizations they work in.
24. Rights-based impacts actually mean rights are realized and duty bearers are meeting their obligations.
vii) On HR principles and standards
25. The HRBA entails consciously and systematically paying attention to HR standards and principles in all aspects of development programming work.
26. Principles provide the playing rules for de development process.******
******: We talk about process principles (universality and inalienability, individuality, interdependence and interrelatedness) and content principles (participation and inclusiveness, equality and non-discrimination, accountability and rule of law).
27. Standards provide the minimum normative content of a right or entitlement, i.e., the types of claims and obligations that the right implies at the minimum, in practice. Standards correspond to the minimum level of policy an programming actions/activities necessary to make sure a right is being fulfilled. They are the minimum content of entitlements and obligations against which duty bearers, especially organs of the state, can be held accountable for. Examples of standards are articles in the HR treaties, in General Comments, in national legislation and in constitutions, as well as HR standards of the Right to Food that are found in Art. 11 of the CESCR and in GC 12. For the Right to Health, minimum standards are adequacy, access availability and quality of services (3AQ), as well as access to clean water, to food, to care and to shelter.
28. A key question to ask here is: Are national standards for positive discrimination or affirmative action recognized and applied?
In closing
29. Some tactical tips flow from all the above, namely:
• If government officials resist, turn to religious leaders, to elders, to parliamentarians, to national HR institutions, to national civil society organizations, to international and local NGOs, to UN agencies, to labor unions, to women’s and youth organizations…leaving no stone unturned.
• If the language of HR causes resistance, choose alternative ways of phrasing things without changing the content of what needs to be achieved. (Do not use HR language if it is not appropriate).
• Knowing the opposition you are facing (where they are coming from) is key to successful negotiations.
30. Bottom line, HR stand to define the content of the development objectives. They delineate the playing field in which development is to take place. One would want to think that it is clear to development workers what this means. But there has been limited operational guidance as to how HR are to be best integrated into development programs –thus the challenge for a massive worldwide HR learning effort. [This Reader operates in this realm and contributes its grain of salt to that].
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org