A few loose ends will benefit from some further clarification; this is what this Reader attempts.
On obligations
1. The obligation to respect, protect and fulfill the human rights of groups in situations of vulnerability refers to the state’s obligation of conduct, i.e., its obligation to adopt concrete actions and measures in those three parameters (and no less!) thus decisively moving towards the realization of human rights (HR) by creating an enabling environment and by allocating sufficient resources.
2. Sustained HR progress will take place only if/when all parties involved believe that the above state obligations of conduct will be honored. Ultimately, only governments –through the active claiming of claim holders– can ensure that the protection of HR is not only a promise, but is carried out effectively. Claim holders must, in due course, make sure that the political situation they create will give those in power the needed push to enforce the specific HR being addressed. Conversely, governments must themselves demonstrate they are strong enough to effectively respect, protect and fulfill HR and must be willing to apply their own power to prevent abuses. What this means is that they have to accept to submit themselves to a system of checks and balances. Ergo, the open and transparent commitment of a country’s political institutions to HR is the ultimate determinant of progress in HR work. Countries with checks and balances in their political system, i.e., more democratic regimes, are more likely to show sustained results in the realm of HR. But a commitment to equal treatment must move-on to an emphasis on equal outcomes and/or benefits for the vulnerable if such sustainability is to materialize.
On covenants
3. By now we know that civil and political rights (CPR) and economic, social and cultural rights (ESCR) were codified in two separate UN covenants. The separation of these human rights into two covenants was merely symptomatic of the Cold War era; Eastern countries prioritized ESCR * (ratified by 155 states) and Western countries prioritized CPR (ratified by 152 states). CEDAW, on women’s rights has been ratified by 182 states. CRC, on children’s rights, has been ratified by 192 countries; both the latter have an optional protocol addressing mechanisms on how to handle complaints. ICESCR has a new optional protocol which has not yet been ratified by enough countries to enter into effect.
*: Never forget: ESCR are not just the poor step-sister in human rights work! (Philip Alston)
On international HR law:
4. International human rights law is a valuable legal and conceptual framework in our work for many reasons. Among them:
(i) for bringing strategies to improve the HR of poor and excluded social groups under one common umbrella;
(ii) for improving equality in health, in nutrition, in education, in housing, etc.;
(iii) for clarifying responsibilities and accountability issues in a whole host of social services, and
(iv) for evaluating progress in meeting the MDGs.
5. The mechanisms used to apply international HR law, among other, include:
(i) Strengthening the technical capabilities of government agencies and human rights organizations to monitor, assess, and oversee social services’ compliance with international human rights instruments;
(ii) facilitating needed technical cooperation in the design, review, and reform of social security legislation, plans and policies so that they include the international human rights provisions;
(iii) strengthening social services workers’ competencies as relates to knowledge-about and application-of international human rights instruments;
(iv) adopting legislative, administrative, educational and other measures to disseminate international norms and standards so that HR are de-facto applied in national legislatures, courts, and other pertinent government entities;
(v) strengthening civil society organizations in their strategies for HR
learning, awareness creation, education, and information, as well as taking action to combat stigmatization and discrimination against groups affected by HR violations;
(vi) training all staff of development agencies so that they incorporate HR in their programs.
6. However, beware: the potential to apply these mechanisms is one thing; reality is another. The moral and legal strengths of human rights are a fact beyond doubt, but they risks becoming a dead-body-of-international-law if they are not actively claimed by those whose basic HR are denied, and if the human rights framework is not actively used and pushed to its full potential by agencies working with those living in poverty and those that are part of marginalized groups and communities. (Dignity International)
On dignity:
7. As this Reader has said many times before, rights are different from human rights. There are other rights like property, contractual and consumer rights –all of them with precise connotations. Only HR relate to dignity; and that makes them special. (George Kent)
8. While human rights have often been interpreted in individual terms in some intellectual and legal traditions, notably in the Anglo-Saxon tradition, human rights guarantees also concern the collective well-being of social groups and thus can serve to articulate and focus shared claims to assert the collective dignity of marginalized groups and communities.
9. Dignity ultimately represents the deep desire by people to run their own lives… to be treated as citizens with both obligations and rights such that the state cannot just give and take their rights by whim. The quest for dignity is “Dignity Before Bread “. The spark that lights the fuse is always the quest for dignity. (L. Aron) Therefore, HR are the principal tool of a just struggle embracing the dream of justice and dignity for all. (M. Vargas Llosa)
On accountability
10. With no effective complaint mechanisms there are no effective HR. Period. Rights are enforceable claims, but simply need an authority to which claim holders can appeal. To make sure those that have duties carry them out, agents of accountability (i.e., those exerting such a role) have to be engaged.
11. Durable democratic regimes –those that offer a combination of stability and responsible political institutions with players subject to checks and balances– offer the most fertile ground for the fulfillment of HR. This requires specific measures though to secure accountability, supported by a political environment that instills trust.
On HR violations
12. The imperative to protect local populations from ongoing HR violations outweighs the moral objection of ‘engaging in dialogue with the devil’. Talking with duty bearers already implies engaging and having some initial clout; such a talking makes sense even if it sometimes initially takes place in the sidelines. (K. Colijn)
13. Ongoing HR violations rightfully destroy confidence in the protective function of the state. Not persecuting the perpetrators is a direct violation of one’s own obligation to defend and support HR.
On HR and justice
14. A lack of popularity is not always a good indicator to decide on the justice of a good cause –especially the HR cause. HR is not about a popularity contest! In the HR-based approach, justice is pursued as an individual, independent goal.
15. Be reminded that fairness and justice in social arrangements includes budgetary allocations that enable individuals not only to access opportunities, but actually lead them to better HR results.
On claiming
16. To claim is to search. ‘Searchers’ are those who actively claim to get solutions to their problems. There thus needs to be a shift from treating victims as recipients to treating them as rights-endowed claim holders. In short, passive recipients simply must become active claimants. Furthermore, this means we have to become part of the mobilization that provides communities with the moral grounds to claim their HR.
17. Claiming has to go beyond the stage of asking for mere palliative solutions and, instead, demand the root causes are addressed so that solutions are sustainable. So, as experience is gained from HR work, we learn from the actual practice of claim holders and duty bearers and we get better at it –and what we learn in our struggle for HR also enriches HR theory.
18. As a practical tip, in the HR-based Framework’s Capacity Analysis, we always start with the claim holders, not the duty bearer. This is key in human rights law, as opposed to humanitarian rights law, where it is the other way around. ** (Urban Jonsson)
**: On the other hand, we have to stop accepting what many call ‘Vulnerability Analysis’, in which ‘targets’ are identified to subsequently serve them with ‘packages’ of aid! The focus must be to address the processes that create and perpetuate vulnerable groups to begin with!
19. What I want to highlight here is that HR offer more than a conceptual armature connecting health, social conditions and broad governance principles. They provide an instrument for turning diffuse social demands into focused legal and political claims, as well as providing a set of criteria by which to evaluate the performance of political authorities in promoting people’s wellbeing and creating conditions for an equitable enjoyment of the fruits of development.*** (PHM)
***: Note that we are not saying the HR-based approach is necessarily the solution to the problems at hand, but it is indeed a totally different way of looking for solutions. (G. Kent) Furthermore, we should not consider HR theory as a dogma, but as a guide for action (Mao) or, in a more facetious mood: “If they hit you, yell; if they hit someone else, come up with a theory”. (Isaac Bashevis Singer)
20. Let us not forget that aggrieved claim holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator.
Having a right is different from having a right realized. (G. Kent)
-Think about a big hotel in which all guests keep complaining about the services without realizing that they are the owners of the hotel… But also beware that every defeat we can impose in our HR work should not always be construed as a moral victory. (A. Gomez)
21. It is to be appreciated that any serious effort to reduce inequities and to challenge and change the unfair distribution of social resources will necessarily involve changing the distribution of power within society. Doing so is not in the interest of those currently holding power.**** The alternative is to turn to civil society actors to serve as the drivers for positive social, political, and economic changes that will demand greater equity. Closing the gap entails using the HR principles of empowerment through active participation, i.e., incorporating the conceptual foundations of the
human rights approach to offer a compelling alternative rationale for action. However, the effort to graft community empowerment onto a project or program that focuses primarily on top-down initiatives is bound not to be successful. (A. R. Chapman) Therefore, I contend that, if HR work does not address the issues of power, the implementation of HR actions risks being mechanical, anonymous and purely quantitative. If this is difficult for our peers to grasp, remember that HR work always brings with it a revision of y/our points of view… In times of change towards HR, the limits of the possible stretch a thousand times.
****: Important in our struggle is to have enemies that respect us. (Ariel Dorfman)
22. Finally, one additional overriding message about power that I want to stay with you, the reader, is that there is a tremendous gap between the purported potential contribution private business could make to HR and the actual contributions made so far by the private sector to address HR issues; I remain pessimistic that this gap will diminish in the future.
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org