[TLDR (too long didn’t read): This Reader discusses redistributive and restorative justice and asks whether it is too late for moderation when human rights violations are so overwhelming. For a quick overview, just read the bolded text].
-We cannot fulfill the human rights (HR) mandate if ‘we’ does not democratically represent most people that social services are meant to serve. Having objectives is nothing; the movement is all. (Eduard Berstein) Yes, when the idea of HR disappears, so do its objectives. (Louis Casado)
Where in the world is the distance that separates the few (that have the right to dictate) from the many (that have the obligation to obey) not overwhelming? (Eduardo Galeano)
1. In these times of neoliberalism, and especially at the eve of many elections, the inalienable HR are reduced to favors granted by the powerful, and the power granted makes sure, for instance, that public health and public education are treated like public charity and not as a matter of justice. (Furthermore, the right to property becomes the overarching right …not to talk about the perpetuation of the right toheredity).*
*: But it is more, the military, business moguls, bankers and the manufacturers-of-opinions-and-emotions in the North give themselves the right to impose military dictatorships and docile governments on other countries. (E. Galeano) [I do not forget here the special case of the dictatorship of many a repressive bureaucracy in whatever type of government… (Esteban Valenti)].
As is true for human rights, justice is a multidimensional concept
–Laws are just a means; the true end is justice. (In front of Georgetown University Library)
2. Here is why:
- Distributive justice is concerned with giving all members of society a ‘fair share’ of its benefits and costs.
- Procedural justice is concerned with making and implementing decisions according to unbiased processes.
- Restorative justice is concerned with healing victims’ wounds and repairing harm done.
3. All of these dimensions are reflected in human rights law. [Furthermore, note that Environmental justice is another increasingly urgent dimension/type of justice that is also steadily being integrated into the human rights framework].
Viewed holistically, the human rights framework does pursue redistributive justice
-According to all UN HR covenants, collectively, claim holders and duty bearers are both rights-bearing individuals!
4. Broadly defined, accountability is the obligation of power-holders to take responsibility for their actions. It describes the dynamics of rights and responsibilities that exist between people and the institutions that have an impact on their lives –in particular the relationship between the duties of the state and the entitlements of citizens. The concept of accountability is at the heart of both democratic, rights-based governance and equitable human development. A democratic and inclusive society is based on a social contract between a responsive and accountable state (duty bearer) and responsible and active citizens (claim holders) in which the interests of those rendered poorest and most marginal are taken into account. (UNDP 2013, Reflections on Social Accountability)**
**: But it is claim holders that are the vulnerable: They have brought so much suffering on themselves. In terms of HR, claim holders have for too long thought they could cope with the better times. But they can no longer submit to fate. It is for the bad times that they (should?) have to equip themselves to take up their role as proactive claimants! Has the time not come for them to instinctively rise up without necessarily a leader or a manifesto? …We understand that, if a HR movement organizes, it risks repression. (adapted from V.S. Naipaul, A Bend in the River)
Should and can are different!
5. Recognizing the relevance of the capacity (or more correctly, the incapacity) of claim holders to demand their HR be fulfilled is key to shed light on why HR are being violated. Many will be surprised to learn that although much of our contemporary political discourse is dominated by the concept of HR, there still exists a largely unresolved debate over whether claim holders actually have this capacity to demand. Assessing claim holders’ capacity is thus part of the broader project/challenge of rectifying this neglect. In summary, HR are constrained by the competence and determination of claim-holders to impose their justified demands upon duty bearers. (Mhairi Cowden)
6. Furthermore, many people still think of HR as beingindividualistic. Not so. In fact, claim holders must jointly address interdependent HR. This makes pragmatic-claim-holder-solidarity a key HR value. The right to decent work, to food, to health or to freedom of association… cannot be guaranteed-to or claimed-by individuals acting alone. They require collective efforts by both claim holders and duty bearers to make them real. (Kate Donald et al, A Rights-Based Economy: Putting People and Planet First, CESR, 2020)
7. Is it ombudspersons and other judicial and non-judicial actors that ought to be in the front line for bringing up claim holders’complaints*** to state bodies that are not meeting adequate HR standards? Is this to say that institutions set up to monitor the enjoyment of HR are the most important part of a true accountability ecosystem –including independent national justice systems, national human rights institutions and regional and international human rights bodies such as the United Nations Treaty Bodies (set up to monitor compliance with the various international human rights treaties)? The question is: Is this enough? No! Every claim holder whose rights are violated has the right to make an enforceable claim against those in authority and/or obtain a remedy.**** The latter may take the form of restitution, compensation and guarantees of non-repetition. (K. Donald et al, ibid)
***: Take parliaments (including parliamentary accounts and budget committees): They play a key role in HR accountability –as long as multiple political parties are represented and have a meaningful voice. …But do they play such a role?
****: Take children: Day-in, day-out, children are stripped of their right to be children and complain about wrongs done to them. The world treats rich children as if they were currency so they get used to act as money acts. The world treats children rendered poor as if they were trash so they eventually become trash. And the children in-between –those children that are neither rich nor poor– the world keeps them attached to their TV and phone screens so, from very early on, they accept as their fate an imprisoned life. Much magic and much luck have those children who succeed being children. (E. Galeano)
It is too late for moderation (Jane Fonda)
-You have enemies? Good. That means you have stood up for something. (Winston Churchill)
-When the government violates the rights of the people, insurrection is, for the people and for any group of the people, the most sacred of the rights and their most indispensable obligation. (Article 35, Constitution of 24 June, 1793, France)
8. Groups working on development that do not put hierarchies and power relations at the center of their HR work are clearly accomplices in keeping power relations unaltered –which is perfectly fine for the groups in power… Groups that do not do it, are those that –today and in the past– have not really wanted the needed changes in the social determination of HR violations. Groups that do put power at the center, welcome a political debate and some form of organization and mobilization, as well as new rules of governance –and this is what is needed! Actually, the key blockages to a political debate come, first and foremost, from those in power. (Mind you, many otherwise active Christian organizations stay ‘neutral’ in the power debate for fear of anything ‘that may look political’).
9. Yes, the future of HR (like their past) is local. But it should be clear for all of us that ‘another world’ is not possible without building up counterpower, without new alternative pathways, without organization, without international solidarity. Yes, social resistance movements in the HR struggle are mainly local and national, but they cannot thrive without flying global, without the solidarity of other movements in other countries. Collective counterpower is built from below, but the choking power imbalance will only be ultimately tipped when counterpower reaches global proportions. (Francine Mestrum)
10. So, mind: A crisis is a time for action, not the time for negotiating new rules. (Michael Fakhri) What is difficult is not necessarily impossible; it is possible with more effort! (Prasit Watanapa)
11. Human rights activists must be pushed to meaningfully engage public interest civil society organizations (PICSOs) and social movements in all their decisions to make claim holders’ voice count, because ‘civil death’ is a form of HR violation that is hampering the realization of all five inseparable categories of rights (civil, political, social, economic and cultural) when citizens voices and votes remain absent.***** This is a concept that has been reshaped and reinterpreted over many generations and remains as urgent today. (Ayesha Sharma)
*****: If you look at a column of ants on the march you will see that there are some who are stragglers or have lost their way. The column has no time for them; it goes on. Sometimes the stragglers die. But even this has no effect on the column. (V.S. Naipaul, ibid)
Claudio Schuftan, Ho Chi Minh City
Your comments are welcome at schuftan@gmail.com
All Readers are available at www.claudioschuftan.com
Postscript/marginalia
-From the Shona language: “How are you?” “I am fine if you are fine”.