Human rights principles and standards are to be used by activists in social movementsto contest neoliberalism’s myriad violations of human rights.(adapted from P. Clayes)
The challenge to be addressed in contesting human rights violations is to leave the ever-present statistical approach behind and to insist on claim holdersde-factoexercising their sovereignty.
1. La Via Campesina has succeeded in using human rights (HR) thanks to its innovative use of staking demands. The advantages they see in using HR to frame peasants claims are numerous. Human rights are used by their activists to redefine the boundaries between what-is-just-and-fair and what-is-unjust-and-unfair. For them, HR grievances turn claims into universal and legitimate demands, and allow any social movement to frame their claims in a way that de-emphasizes just sectoral solutions. Human rights allow the integration of more than one ideology and help share claims among movements with divergent ideological, political, or cultural references. These advantages help explain why HR have been made center stage in a great number of social struggles and its language having been gaining ground. The shift from demanding-decision-makers-to-make-good-on-their-promises to reminding-decision-makers-of-their-solemn-duties strengthens social solidarity, i.e., HR help claim holders imagine and fight for a different common future.
2. All these factors combined support the rebellious potential of HR, because the HR framework connects individuals to a collective in a way that reintroduces equality and self-determination as central themes in people’s struggles –and this attracts ever new movements to actively participate.
3. On the other hand, applying the HR framework injects a new meaning to the very idea of ‘participation’ which activists do not limit to ‘the right to participate in development’, but see the challenge rather being ‘to demand a break in the monopoly of the government’ in defining public interest. When necessary, this means challenging the state as the only legitimate source of law making and of applying laws. Having an internal dimension, i.e., the right of people to choose their own political, economic, and social system, this ultimately emphasizes much greater democratic control. It calls for integrating all participating movements in a far-reaching, wide variety of struggles at the local and national level.
4. Activists in these movements are thus called upon to put in place HR practices that represent concrete and feasible alternatives in the here and now. Fewer efforts are sunk into elaborating on the kind of regulatory institutions and measures that would be needed to enable these practices to flourish under the existing system. So, here we have a veritable anti-reformist position where activists rather demand deeper systemic changes and not mere ‘cosmetic reforms’. This notwithstanding, in this emerging struggle, efforts to institutionalize recognized HR are certainly not abandoned.
5. In all fairness though, the HR struggle has not yet acquired strong mobilizing qualities: HR do not yet constitute a true unifying and mobilizing movement. The HR framework remains perhaps more than somewhat disconnected from natural grassroots leaders. The mobilizing potential of the HR framework will indeed be considerably greater if it manages to reinforce the collective identity of different existing movements. We badly need to search for new ways to build links among diverse memberships. [As can be guessed, a renewed unambiguous call for massive HR learning is pertinent here].
6. Moreover, consider that rather than directing our HR praxis at the grassroots, it unfortunately tends to be organized around and oriented towards institutionalized structures of power. This can and does seriously endanger the emancipatory thrust of HR.
7. The level of expertise being used to spread HR arguments is such that, more often than not, the latter have been defended by HR lawyers and not by average citizens. As a result, conflicts framed in HR terms have tended to be solved in specialized arenas and run the risk of undermining social movements’ efforts to organize and mobilize de-facto claim holders around HR issues that affect them. Experience with UN-led processes aiming at creating new and respecting existing HR standards shows that, to be successful in the longer term, those involved in standard setting need to build a broader and more inclusive base and thus reach out not only to governments, but also to public interest civil society organizations, experts, victims and beneficiaries, as well as to other UN agencies. Among other things, this means that, to secure compliance with international HR norms and principles, inevitable adjustments need to be made to many national standards. But, be it as it may, the ultimate aim is to localize HR. i.e., making them meaningful to more and more local constituencies and contexts.
8. Only by revitalizing the ‘HR project’ with true rebellious dimensions* will we succeed achievingrecognition of its global validity and local legitimacy. This also points to the importance of the political mobilization needed for the success of rights-based strategies, at the same time finding an adequate balance between institutional and non-institutional movement building.
*: When injustice becomes the law, rebellion becomes a duty. (Thomas Jefferson)
Is it not true that to talk about duty bearers is to talk about ideology? (adapted from Michel Foucault)
9. The homogenizing tendencies of the global regime have to be fought. For that, an incontrovertible distinction must be made between the different logics and interests of claim holders and duty bearers**. In the end, what will make the difference for HR movements is building links between the global political space and local realities, that is, ‘bringing home’ the outcomes of global negotiations with, on the other hand, local and national mobilization efforts providing the needed popular energy required for global political work. National accountability backed by political mobilization is thus the indispensible complement for globally negotiated guidance on HR. (N. McKeon and People’s Health Movement)
**: For many HR thinkers,duty bearers are,themselves, not,strictly talking,duty bearers;they often are claim holders to other duty bearers. [I have to confess here that, in the Readers, I talk about claim holders and duty bearersas two categories of people or classes. That is not correct.Claim holders and duty bearers are roles into which individuals, groups of individuals, non-state actors and state actors enter depending on the situation. Most of them enter into the role of both claim holder and duty bearer, but in relation to different specific human rights (ergo claim holder/duty bearer) relationships. We cannot forget that even the individual claim holders who live in poverty have a number of important duties! (reminded to me, as often my mistakes or omissions, by Urban Jonsson)].
States must be provided with greater guidance and deadlinesto fulfill their dutyto progressively realize the different human rights so as to counter themisperception thatthey have embarked in suchprogressive realization when they areactually indefinitely delaying taking key actions.
10. Since 1948, the modern international HR law system has rapidly evolved
producing nine core human rights treaties, many related UN institutions and at least a hundred HR declarations, resolutions, conferences, and programs of action. Regional analogs of the international HR law system have developed in Africa, the Americas, and Europe. The speed of these developments has seen international HR law become the fastest growing field in international law.
11. The progressive realization of HR requires states to take immediate action towards realizing all rights including immediately guaranteeing the non-discriminatory exercise of all HR***. Governments thus must take deliberate, concrete, and targeted steps (even if long-term) towards full realization. This means that while states can justify some deficiencies in their social services, they cannot justify the failure to work towards rectifying them. The importance of distinguishing between non-compliance arising from unwillingness rather than inability must be emphasized when determining whether particular actions constitute violations of any of the HR.
***: Let us examine discrimination –of which class prejudice is a central element: We have actually moved from simplicity to ambiguity and this makes me angry. Angry, because stories of injustice that have been passed down for generations seem to be continuing before our very eyes. I am offended, because of the insulting comments I keep hearing and reading about. I am introspective, because I most often want to take sides on this issue. Let me use an example: The nature of racism has changed. There has been a migration away from prejudice based on genetics to prejudice based on class. ‘Proper’ people have both a disgust and a fascination for those who live in the untouchable realms. Fascination is responsible for a sort of ‘poverty tourism’. Let’s face it, we have a sharp social divide between people who live in the ‘respectable’ meritocracy and those who live beyond it. In one world, people can control their destiny; in the other, no matter how hard they try, they cannot. Widening class distances produces class prejudice, classism on visceral attitudes about competence. People in the ‘respectable’ class have meritocratic virtues –and this view metastasizes into a vicious, intellectually lazy stereotype. Classism combines with latent and historic racism to create a particularly malicious brew. People are assigned a whole range of supposedly underclass traits based on a single glimpse at skin color. The distinction between civil, economic and social rights has now been obliterated. But every civil rights issue is also an economic and social issue! Classism intertwines with racism. We need a common project: a HR project. (D. Brooks)
Remember: General Comments go a long way in clarifying the entitlements and duties under the different human rights and their progressive realization.
12. General Comments resolve some of the vagueness of formulations and arguments in the respective HR covenants and provide policy-makers and courts with clearer guidance for overseeing the realization of each right. This is not to suggest, however, that General Comments are sufficient to resolve all remaining questions about scope and context, including in particular the content of the HR Minimum Core Obligations, e.g., non-discrimination, non-retrogression.
13. Furthermore, the application of HR covenants and of General Comments also implies the need for a democratic allocation of the limited resources available. There are indeed important downstream legal consequences for countries that have ratified the different HR treaties, particularly in cases where individuals and social actors can now access independent judiciaries willing to enforce these rights ordering governmentsto comply.
14. Despite this, we see growing recognition that General Comments and law alone are insufficient mechanisms to advance transformative HR changes. It is social action that is key to such outcomes!****
****: Social action can involve state reporting and/or individual complaints. Both are primary mechanisms within theinternational HR Treaty System for monitoring and encouraging state accountabilityfor their compliance with ratified treaties.Each of three regional HR systems offers mechanisms to deal with individual complaints of violations of the different rights. (Note that states agree to submit regular reports that update the respective UN Treaty Monitoring Committeeon the state’s progress in complying with its obligations; additionally, individual complaints alleging the violation of treaty rights must be lodged against states at the relevant treaty committee –thus the importance of ‘shadow reports’ submitted by public interest civil society organizations). (L. Forman)
Some people’s idea about human rights is so perverse that it can forever spoil good judgment. (PabloSimonetti)
15. Many colleagues seem to have assumed that there are no real issues in HR, or else, that the issues they may be aware-of as citizens are genuine HR issues, but are not their problem. And this can spread maliciously: We all know colleagues rich in opinions and poor in true dedication… Yes, in tranquil times, HR principles could be implied rather than pursued. But in tumultuous times, such as now, they need to be specified and vigorously pursued(Geoffrey Cannon)–hence these Readers. So, if we are going to make any progress, we have got to go all out for it. But, mind you, a technical only focus on progress is counter-productive, because it weakens the drive for a more radical, structural reorganization. (John Waterlow)
Claudio Schuftan, Ho Chi Minh City
cscuftan@phmovement.org