Food for an already existing thought
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Human Rights Reader 34
RIGHTS ARE GUARANTEED ENTITLEMENTS: RIGHT?
[The title question is a political and not a legal one: the legal ob-
ligation 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) for-
mulation of entitlements and of economic, social and cultural rights.
That has progressively lead to people getting fed up with interna-
tional 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 main stream
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 re-
sources 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 interna-
tional alliance or coalition against HR violations.
7. Experts and international bureaucrats keep talking about good ex-
amples and best HR practices yet discussions about the legal obliga-
tions 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 pro-
posed 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 cri-
teria 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 which 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 im-
plementation strategy including new legislation and the setting of
benchmarks for the implementation of concrete steps and the achieve-
ment of intermediate objectives over a given period of time. All this
requires implementing administrative innovations and setting up moni-
toring mechanisms....clearly a scary prospect for many non-committed
governments.
10. Moreover, states have HR obligations vis-a-vis international or-
ganizations 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 coun-
tries, 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 imme-
diately 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 in-
stance, 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, Vietnam
mailto:aviva@netnam.vn
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