[The title question is a political and not a legal one: the legal obligation already exists!].
1.The strength of a rights-based approach is that it allows one to talk about entitlements and to challenge unwilling governments. (“One person should not have to decide whether s/he can eat or go to the health center to seek care”).
2.Forcefully applied, a rights-based approach is a strong tool to change government behavior, as well as to initiate societal processes of accountability.
3.But in international fora, the United States, for example, has most often taken the position to avoid any (in-writing/binding) formulation of entitlements and of economic, social and cultural rights. That has progressively lead to people getting fed up with international conferences that result in ever-weaker statements.
4.Actually, many heads of state of rich countries (and many poor) are not the least interested in the Human Rights (HR) question beyond lip service. HR problems are basically problems of marginalized groups and, therefore, not a priority concern for many mainstream politicians.
5.This indifference is a crime at a time when the world is moving back to jungle capitalism and when actual access to productive resources for the poor is a key issue in guaranteeing HR.
6.It is in this North-dominated climate of ‘soft issues being pushed to the fringes’ that we have the not-easy task to build an international alliance or coalition against HR violations.
7.Experts and international bureaucrats keep talking about good examples and best HR practices yet discussions about the legal obligations these would entail fail to come to concrete proposals (when, by now, we clearly need to give guidance to states to embark in actions that go beyond mere ‘best practices’). Codes of conduct guiding the implementation of rights are needed (for example, one has been proposed for the right to adequate food).
8.Applying the HR-based approach is not creating new obligations and, further, HR obligations do not ask states to do the impossible; applying it rather requires that states be monitored against HR criteria set in existing international covenants they are signatories-of already; they prefer not to be checked on these though, in an effort to avoid being exposed for their lack of commitment…That is why the term obligations is so much more attractive to civil society.
9.Conversely, it is the use of the term obligations that makes some governments reluctant to use a rights-based approach. This, because governments are not only obliged to respect existing rights; they must also protect people living within its borders from having any of their rights violated, and must implement all codified rights using their maximum available resources. Governments also must give victims of violations the means to seek redress and challenge violations by establishing recourse procedures. They are to check that national policies do not have a negative impact on established rights; they are also to check existing legislation and develop a national HR implementation strategy including new legislation and the setting of benchmarks for the implementation of concrete steps and the achievement of intermediate objectives over a given period of time. All this requires implementing administrative innovations and setting up monitoring mechanisms….clearly a scary prospect for many non-committed governments.
10.Moreover, states have HR obligations vis-a-vis international organizations and in controlling the private sector. (The activities of the private sector –especially transnational corporations– do need to be regulated in a HR-based approach; the sector cannot be allowed to benefit or take advantage by interfering with or violating HR in any country).
11.Although states are already obliged to use existing international reporting mechanisms to report on the progress of HR in their countries, it is civil society actors that should actively monitor this, in addition to providing inputs for national HR-linked legislation and for coming up with a roadmap for its implementation. (Plans of action have to help set priorities on what must be implemented immediately and what progressively).
12.Overcoming the most common trap in the discussion of whether changes are necessary nationally or internationally, do bare in mind that states also have international obligations to assist other states to implement HR.
13.HR obligations of non-state actors do exist, but are not codified in international covenants; they are nevertheless crucial. For instance, international organizations and the private sector also have HR responsibilities.
14.We have to think in terms of a veritable HR web where co-responsibilities among different actors exist although not all actors are equally important.
(Taken from Hungry for what is Right, FIAN-Magazine for the Human Right to Feed Oneself, No. 2002/02).
Claudio Schuftan, Ho Chi Minh City