Before becoming de-facto claimants, the excluded come from an experience of being treated by bureaucrats in a way that echoes colonialism.
1. Human rights are mostly of the yes/no dichotomous kind. Respect, protect and fulfill are attributes mainly either adhered-to or not. To put this in perspective, and as a reminder:
• Respect means do no harm to others.
• Protect means prevent harm to others by third parties.
• Fulfill/facilitate means help others to meet their own needs.
• Fulfill/provide means meet others’ needs when they cannot do that themselves.
Consequently, tilting the dichotomy towards ‘yes’ is what claiming for human rights (HR) is all about.
2. Rights are –or are supposed to be– enforceable claims. So, individuals who fail to get what they are entitled-to should have direct means available to them for pressing their claims. But first, claim holders must know what their human rights are, and they must have or set up the appropriate organizational arrangements for demanding their rights. It is only through these actions that their claims can eventually become enforceable! Claim holders should thus be assisted in making their own clear judgments about whether they are in fact enjoying the HR they are entitled to. They also need to know what they can do if they conclude that they are not getting what they are supposed to get…and finally, they need to have (a) place(s) to take their complaints to.
3. Engaging claim holders in this way is intended to make them more capable of standing-up for their rights. Self-determination grows out of this sort of standing-up and speaking-out…and this self-determination-gained grows with practice…
4. Beyond the direct action with and by claim holders just described, having alternative remedies available also means there needs to be some sort of administrative or judicial procedure through which they can appeal to have the situation of deprivation they are-in corrected.
5. On the other hand, enforceability of claims means that the duty bearers, those who are to respect, protect and fulfil human rights, must be brought in line to do so, i.e., holding them accountable* for their performance or non-performance.
*: We note that accountability must be two ways: If you want something, you must bring/give something too.
6. For that, accountability institutions need to be strengthened or set up and need to embark in two distinct phases in their operations: First is the detection phase where they determine whether there are deviations from legally-binding HR standards and principles**, and to what degree***. Second is the correction phase in which something needs to be done with the information obtained to restore the HR behaviour of the duty bearers to a ‘zone of acceptability’. [We note here that ‘HR-educated’ duty bearers are more likely to keep their obligations. (FAO) But we also note that, usually, people focus on their own rights; obligations ‘are for others’; they (we?) just resist taking-on obligations, isn’t it true?].
**: Let us not forget that human rights law codifies claims that have actually come up from a widespread consensus among ordinary people. This means human rights are not simply about achieving compliance with established standards in a mechanical way.
***: One aspect of this work is to carry out ‘compatibility reviews’ that compare texts of existing national HR-related laws against the text of the various HR covenants and respective General Comments. (FAO)
7. Accountability organizations also need to have the power to impose sanctions of different types. However, they should first engage duty bearers in a “constructive dialogue”, i.e., using persuasion rather than punishment. As a critical starting point, such a local dialogue and the concomitant work with claim holders are to center on the meaning, the relevance and the application of human rights-based strategies in the each specific concrete context. This is necessary to make HR ‘come from within’, and not from without. So for us, our support to communities is about facilitating the internal learning and self-empowering process for local actors to become de-facto demanding claim holders and complying duty bearers . (Equalinrights)
8. To reiterate, local communities must fully participate in formulating the rules under which they are to live. For that, community members:
• must reach a fair and informed judgment about what best serves their interest –provided there is a reasonably democratic decision-making process and a sense of community that ensures that the interests of all are served; where local politics are undemocratic, the fight for a democratic decision-making process becomes the goal of HR work; and
• must be supported to stand up for their rights as applied to their local reality.
9. It is thus decision-making that needs to be localized, in the sense of achieving greater local control over policy. In practice, this means increasing the capacity of local groups to define, analyze and act on their own problems; it is about building self-reliance and direct democracy by going beyond the sometimes complex HR language and applying it to the main policy choices and institutional and political questions at hand. (Interestingly, this last statement comes from the 2005 WB/IMF Review of PRSPs Processes)
10. This said, this is no ordinary time. The HR movement is not new, true. But its vying for center stage in development work is new…and has to be made new!
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org