Food for a legally binding thought
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Human Rights Reader 162
HUMAN RIGHTS AND POVERTY ALLEVIATION
Human rights may seem distant ideals for families starving or unable to protect themselves from preventable illnesses or provide their children with basic education. Yet it is in these circumstances of crisis, of social ill-being and of extreme deprivation that HR assume their greatest importance.
1. To enforce and strengthen poverty reduction strategies, we absolutely have to have a detailed normative understanding of many human rights (HR). Actually, poverty reduction and the enforcement of HR are not two separate projects, but two mutually reinforcing approaches to the same project.
2. Command over economic resources does play an important role in defining poverty, but is not the only requirement. Poverty also includes insufficient command over publicly provided goods and services. All of these play a role in the causal chain leading to the non-fulfillment of HR.
3. The ratification of HR treaties explicitly entails country ownership of their relevant provisions; a ratified treaty is, therefore, legally binding on all branches of government. In the case of poverty reduction, the binding provisions of HR treaties compel all these branches to look behind national averages and identify the most vulnerable, deprived and excluded individuals and groups.
[But beware, international HR law does not --and cannot-- provide detailed prescriptions for action towards poverty reduction though. The same have to be provided by each individual country with the government working together with the various organizations of civil society].
4. Rich countries and international organizations also should feel compelled --but are not obligated in clear enough terms by international HR law-- to provide international assistance and cooperation to poor countries to reduce poverty by, at the very least, helping them to fulfill their core HR obligations* to reach the international minimum thresholds for the same. Aid, debt relief, a fair access to international markets, access to public and private financial flows and stability in the global economy are all required for the full realization of rights in poor countries. Therefore, international cooperation is not just about technical and financial assistance. It is also to include the obligation to work actively towards an equitable multilateral trade, investment and financial system that is conducive to the reduction and elimination of poverty.
[*: Core obligations require states to ensure, with immediate effect, certain minimum levels of enjoyment of various HR. They are treated as binding, i.e., no trade-offs are permitted. The core obligations provide the basic normative framework around which the poverty reduction strategy should be designed. If a strategy does not, at least, reflect these core obligations, it is inconsistent with the states legally binding obligations].
5. The setting of priorities at the national level must involve the effective participation of all stake holders especially the poor and the otherwise marginalized. The right to participate must, therefore, be enshrined in national law(s) since it is deeply dependent on the realization of other HR (of association, of assembly, of freedom of expression, the right to information and to a reasonable standard of living). Without parallel arrangements to realize these other rights, poor people cannot participate in an active and informed manner. But beware: No HR can be given precedence over others; nevertheless, based on practical grounds, different rights can still be given priority at different stages of the progressive realization of HR** --provided there is also no retrogression***.
[**: Progressive realization implies realization of a HR over a period of time; it allows setting priorities among different rights (certain conditions on these features apply though, to ensure that states do not take it as a license either to defer or to relax the efforts needed to realize more and more HR). Measures that can be taken include reducing spending on activities whose benefits go disproportionately to the rich. For a progressive realization, the state must begin immediately implementing a time-bound plan of action; it must spell out when and how the state hopes to arrive at the full realization of the rights being addressed. The plan must include a series of intermediate targets (benchmarks) with identified indicators for each target. Provided a state is taking all reasonable measures towards the realization of those rights that are subject to progressive realization, the state will be in compliance with its obligations under international HR law.
***: Non retrogression implies that no right can deliberately be allowed to suffer an absolute decline in its level of realization].
6. Therefore, state parties have:
An obligation of conduct that requires them to launch actions (a process) to realize the enjoyment of core and other rights by their population, i.e., a plan of action to reduce particular violations of HR is needed.
An obligation of result that requires them to achieve specific targets (outcomes) to satisfy particular standards of HR.
7. In poverty reduction, for the affected to acquire a political voice is a matter of rights, not matter of privilege. For poor people, the challenge is to weaken the web that perpetuates their powerlessness. Properly applied, the HR-based framework can and does mitigate the powerlessness of poor people. (Here, we understand empowerment as the expansion of the capabilities of poor people to participate, negotiate with, influence, control and hold accountable institutions that affect their lives).
8. Last, but not least, unless supported by a system of accountability, rights become no more than window-dressing. Mechanisms of accountability are, right now, simply not accessible to the poor.
9. There are four categories of accountability mechanisms:
judicial,
quasi-judicial (ombudsmen, national HR commissions),
administrative (HR impact assessments sent to UN bodies), and
political (the press, political parties, elections?).
[We take for granted that elections are an essential, but not sufficient form of accountability. Elections are not enough to ensure that those living in poverty enjoy the right to participate in key decisions affecting their lives].
In Conclusion:
10. Poverty reduction should be based explicitly on the norms and values set out in the international law of HR.
The HR-based framework offers an explicit and compelling normative framework for poverty reduction; compelling, because the norms and values enshrined in it have the potential to empower the poor. Poverty reduction is not possible without the empowerment of the poor. The HR-based approach to poverty reduction is essentially about such an empowerment process. Poverty reduction no longer derives merely from the fact that the poor have needs, but also from the fact that they have rights that give rise to legal obligations on the part of the non-poor. Poverty reduction then becomes more than a moral obligation --it becomes a legal obligation. The recognition of the existence of legal entitlements of the poor and legal obligations of the non-poor towards them is the first step towards the needed empowerment.
Adapted from Human Rights and Poverty Reduction, A Conceptual Framework,
OHCHR, UN, New York and Geneva, 2004.
Claudio Schuftan, Ho Chi Minh City
mailto:claudio@hcmc.netnam.vn