The new UN human rights approach... (3)
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WHAT DOES THE NEW UN HUMAN RIGHTS APPROACH BRING TO THE STRUGGLE OF
THE POOR?
Part 2
The Challenge
8. Because of the fatal flaws of Globalization as the latest stage of
Capitalist development, a more humane global governance is now needed
more than ever. (8)
9. It is a fallacy to focus on whether Globalization or bad govern-
ments are the most important cause of Human Rights violations. The
Human Rights approach shows us what states should do or not do. When
they fail the test, many governments actually use the Globalization
argument (of being victims of a global process) as an excuse for not
implementing their obligations. (8a)
10. In fact, one more often finds considerable softness in the ap-
proach of governments to rights and to their implementation. Often, a
rights-based approach is not even on their radar screens. So both the
individual duty bearers, as well as the system are to blame and to be
held accountable. (3)
11. The United States, for example, has regarded the socio-economic
rights of the Universal Declaration of Human Rights as a wishful
"letter to Santa Claus" (Jean Kirkpatrick, former US ambassador to
the UN). The US has little sympathy for Social and Economic Rights,
in contrast to its vociferous and selective support of Civil and Po-
litical Rights.
12. In the case of all governments, how much of their general budgets
they devote to health, to food, to education and to poverty allevia-
tion is of substantive Human Rights concern. One should thus look at
how the various expenditures are distributed among the various popu-
lation groups. Governments do violate Human Rights when they fail to
offer adequate services to certain segments of society. To take a
very real and current issue, should, for example, the provision of
such services be privately organized, governments still remain re-
sponsible for the egalitarian and adequate provision of the same.
But, are they? They are often not; one just needs to look at the ex-
isting evidence to see that. Civil society watchdog groups should be
monitoring these developments. (9)
13. A Human Rights-focused analysis of statistical data should exam-
ine the extent to which various expenditures in social and other ser-
vices are distributed among the diverse population groups according
to need. Beneficiaries' watchdog groups have to scrutinize these ac-
tions to make sure they 'respect, protect and fulfil' Human Rights,
and protest if they fail to do so. In so doing, they will actually
address the whole gamut of government Human Rights violations. (9)
[In all candour, the very way in which statistics are now organized
and presented by government agencies may be one of such violations
already. (8)]
14. But are governments the sole holders of rights? The answer is no.
Who are the other rights holders then? The example of children as
right holders helps us illustrate this point: The duty bearers of
children's rights are, first and foremost, the immediate care-givers,
followed by the family/household members, the community and
neighbours, local, sub-national, national and international institu-
tions -all linked in a web of complementary duties.
15. This is the theory. But what we have real problems with right now
is to convert these concepts into working programs, people's claims
into rights, so as to implement a rights-based development model in
all its components. (10)
16. Although the recognition of the fundamental rights of all members
of the human family is the basis of an overall ethical and political
approach to development, really understanding these rights has
largely, so far, been confined to Human Rights institutions, espe-
cially the UN agencies. How much should/can one rely on these agen-
cies then to shift the focus of current and upcoming development pro-
grams to a Human Rights focus? For the time being, perhaps quite a
bit. (2)
17. Their first challenge will be to create a common language with
governments and NGOs, a language primarily based on social commit-
ments to Human Rights and on raising the level of responsibility of
the different actors -both as claim holders and as duty bearers. (5)
The second challenge is to make the Human Rights approach concrete
and give it substance. (11, 12) [We desperately need more rights-
based programming approaches. It would be good to have concrete exam-
ples of such programming. But, for now, we don't. (13, 12)] Thereaf-
ter, UN agencies will have to build a more structured political con-
stituency for Human Rights. (14)
18. But for now, most governments fear that the recognition of these
rights would interfere with their policy choices. They will have to
be made to understand that certain aspects of the rights approach may
be subject to progressive (gradual) realization. On the other hand,
poorer states will have fewer resources available. But there is a
minimum core of rights that they all have to uphold! States have to
guarantee the respect of those rights under any circumstance, irre-
spective of the resources available to them. (9)
19. What this means is that progressively, we need to define and re-
fine our Human Rights objectives and explicitly establish universal
Human Rights goals. We have to give an operational meaning to the Hu-
man Rights approach, and that is a major political responsibility we
have to deal with now. Put another way, in operational terms, effec-
tively mainstreaming Human Rights in all development activities re-
mains a challenge of enormous dimensions --and the challenge is a po-
litical one. (2, 4, 15)
20. The main challenge here is to achieve consensus among development
actors on such operationalization - and that is unthinkable outside
an ideological framework which will bring us right back to the
left/right, capitalism/socialism divide of "to all according to their
needs regardless of their means".
21. What will become central in this debate is for all of us to un-
derstand that Human Rights means the right to demand a whole series
of things. Among them:
* that economic and physical access to basic services is equally
guaranteed, especially for girls, women, the elderly, minorities and
the marginalized,
* that steps be taken to progressively achieve all Human Rights,
* that expeditious and verifiable moves be undertaken towards realiz-
ing those rights,
* that accountability, compliance and institutional responsibility be
required in all processes,
* that administrative decisions are in compliance with Human Rights
obligations,
* that unwillingness be differentiated from inability to comply,
* that states prove that there are reasons beyond their control to
fulfil their obligations,
* that the private business sector (national and transnational) also
complies with Human Rights dispositions,
* that national strategies on Human Rights be adopted that define
clear benchmarks,
* that the implementation of national strategies is transparent, de-
centralized, includes people's participation and moves towards elimi-
nating poverty,
* that new legislation be developed involving civil society represen-
tation in its preparation, enforcement and monitoring. (16)
22. If the above demands are met, the added value of the rights-based
approach will accrue in a way that:
* beneficiaries become active claimants,
* the process underlines the legal obligations of states,
* Human Rights provide the principled framework used to make deci-
sions,
* the process moves the debate from charity/compassion (where there
is already fatigue) to the language of rights and duties (accountable
to the international community with compliance that can be moni-
tored),
* the respective imperatives can be made more forcefully (making gov-
ernments effectively liable). (17)
23. It is in this light that the Human Rights approach enhances the
scope and effectiveness of social and economic remedial measures by
directly referencing them to close to universally accepted obliga-
tions to be found in the related UN Covenants. (16) These obliga-
tions, let us be reminded, are either passive, negative or positive
(depending on the specific Human Rights circumstance) and they are in
competition with obligations stemming from other rights, especially
when resources are scarce. (18)
24. One must nevertheless keep in mind that the duty to fulfil Human
Rights does not depend on an economic justification and does not dis-
appear because it can be shown that tackling some other problems is
more cost-effective. (19)
25. The practical consequences of adopting a Human Rights approach
then is that one realizes that all major currently active or passive
social/political forces have the same obligations towards these
rights; the challenge is to make them compliant with the fact that
the responsibility must be shared. (5)
26. To put things in a historical perspective, in the Basic Human
Needs-based approach, beneficiaries had no active claim to their
needs being met. The 'value-added' flowing from the Human Rights-
based approach is the legitimization of such claims giving them a
politico-legal thrust.
27. Going back to the example of the child, in the Basic Needs ap-
proach, the child was seen as an object with needs (and needs do not
necessarily imply duties or obligations, but promises). In the
rights-based approach, the child is seen as a subject with legitimate
entitlements and claims (and rights always imply and are associated
with duties and obligations).
Claudio Schuftan
Hanoi, Vietnam
mailto:aviva@netnam.vn
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