RIGHTS, REALITIES AND REALISATION An Inquiry into the Intricacies of Rights- Based Protection of Human Dignity Netherlands School of Human Rights Research.

RIGHTS, REALITIES AND REALISATIONAn Inquiry into the Intricacies of Rights-Based Protection of Human Dignity

Netherlands School of Human Rights ResearchTilburg University, 2 October 2009

Bas de Gaay Fortman,

Chair in Political Economy of Human Rights

The dialectics of the global human rights regime

An international law construct without effective international remedies

A strong normative discourse (the UDHR) combined with a weak terminology in respect of implementation: “promotion and protection of human rights”

A weak conceptualization: “soft law” A strong focus on case-by-case approaches with

remarkably little effort to follow-up judgments in individual cases

Little attention to context

Laborious Law

Contextual intricacies

Two illustrations from rural Bangla Desh:

(1) Realities without Rights

(2) Rights without Realities

Rights-based protection of human dignity Rights are interests protected by law

Rights signify abstract recognition of claims Rights are action-oriented Rights presume concrete (conclusive) interests

in the form of actual freedoms and entitlements As declared rights, human rights presume

struggles for actual freedoms and entitlements The international venture for the realisation of

human rights is essentially a political struggle disguised as a legal venture.

Human rights from a downstream perspective

UN MECHANISMS for the Realization of Basic

EntitlementsCharter-based: Texts: the UDHR, the GADRD, etc. Institutions: the HRC, the SC, WGs, SRs Constraints: An international law construct, yet highly political in

practice; no international enforcement

Treaty-based: Texts: ICESCR, ICCPR, CCR, CEDAW, CERD, CMW, FMW Institutions: CESCR, HRC, etc. Constraints: Vertical, Juridical, Development-oriented, International

Politics, IPE

The global human rights deficit

Impunity of state-related perpetrators of actual human rights abuse

Human rights violations committed under cover of the ‘public-private divide’

Structurally failing protection of minorities Structural non-implementation of the human

rights of those living in situations of daily hardship and marginalisation

The international politics of human rights and the need for new strategies

Lack of recognition of the political dimension HR as an offensive instrument of foreign policy HR as a defensive instrument of foreign policy Needed: new approaches following from human

rights as a political struggle based on a shared faith in human dignity and universality (preambles of both the UN Charter and the UDHR)

Responding to the Human Rights Deficit

Legitimacy versus legality Linking within the UN: International security,

international justice and international development

Linking the local with the national and the international

Linking upstream human rights with downstream human rights

The meaning of HR

While rights manifest protection of interests by law, human rights are meant to legally protect fundamental human interests, namely those that refer to basic human dignity. Here a distinction may be made between freedoms and entitlements. Fundamental freedoms are assumed to be protected by civil and political rights whereas basic entitlements relate to protection of claims essential to sustain daily livelihoods.

Upstream Human Rights

The four basic elements of Human Rights:

the urge to find protection of basic human dignity a rights-based approach to such protection human rights as inalienable rights, transcending

positive law rights as an action-oriented drive to realization of

fundamental freedoms and basic entitlements

Human rights in an upstream perspective

Human rights based strategies : legal resources and political instruments in

their protective as well as emancipatory functions Functional

Instrumental

Protective Transformational

(emancipatory)

Legal resources Litigation, mediation and other forms of judicial action (case by case approach)

Structural legal aid, legal literacy programs aiming at legal empowerment and access to justice

Political Instruments Protest, resistance and opposition to policies and actions violating human dignity

Collective action addressing structural non-implementation based on power relations that embody injustice, aiming at structural reform

A case of upstream action connecting to downstream Human Rights: Treatment Action Campaign (South Africa)

An exemplary South African case in which the Constitutional Court goes very far in the type of injunctions it issues is Treatment Action Campaign and others v. Minister of Health and Others. It concerned Nevirapine, an anti-retroviral drug that helps to reduce the risk of HIV/AIDS being spread at birth from mothers to newborn children. The government had limited its use to two research and training sites per province, denying the giving out of the drug at public health sector hospitals. The most needy rural populations felt the greatest impact of this restriction. The High Court ruled that this action was unreasonable under the relevant provisions of the Bill of Rights, specifically, the sections that guarantee a right to adequate healthcare for all, and especially for children.

Collective rights: upstream action for a healthy environment Generally weak basis in law; yet may play their part as

legal principles with a strong impact. E.g.: the right to a healthy environment.

In India the Supreme Court’s firm stand on the use of green fuel ended a dispute between environmentalists and bus owners who had the backing of corporate and political lobbies. In a decision taken in 1998 subsequent to Public Interest Litigation the Court had issued a Mandatory Order for public transport to switch to compressed natural gas “to improve the air quality in this choking city of 15 million”. Time and again both the administration and the private owners of buses used for public transport had pressed for extension of the period in which they had to switch to ‘clean fuel’, which does not cause pollution or is otherwise injurious to health.

The Delhi case (2)Early 2001 the Court appears to be fed up with vested interestsand the way these argue their case:

We are conscious of the fact that due to lack of effective action taken by the private bus operators and also by the governmental authorities with effect from 1.4.2001 inconvenience is likely to be caused to the commuting public, including the school children who use the city buses, but, this “urban chaos”, (to use the expression used by the Administration) which may arise as a result of not extending the deadline fixed by this Court is a creation of the private operators and the administration and they have only themselves to thank for it. They are accountable to the commuting public for creating this situation. The administration does not admit its ‘lapses’ but the learned Additional Solicitor General has time again submitted for their lapses “let the commuting public not suffer”. It appears to be an argument of despair.

The Delhi case (3)

Consequently, no extension is granted beyond 1.4.2001, albeit with some relaxations for those who had already started a process of conversion. The transport department should see to it that these are not abused. As 2002 came to a close all diesel buses had been converted to CNG and air pollution levels were considerably down. In 2003 Delhi won the US Department of Energy first ‘Clean Cities International Partner of the Year Award’ for its “bold efforts to curb air pollution and support alternative fuel initiatives.” Indeed, it had been a whole city that suffered, listed as it used to be among the ten most polluted cities of the world, with vehicles accounting for more than 70% of the polluting emissions.

Towards a methodology of

rights-based action The rights-approach as launched in the Human Development Report 2000 provides an important methodology for finding innovative and integrative strategies to tackle poverty and other violations of basic human dignity. What is needed now is a systematic operationalisation of its implications. In struggles against poverty and exclusion this might be based on the following elements:

Rights-Based Action against Poverty (1)

Poverty is to be seen as "a brutal denial of human rights" (UNDP, Integrating Human Rights with Sustainable Development, New York, 1998). The same applies to other basic deficiencies in the quality of people’s lives. Hence, rights-based strategies confront the status-quo. As such they differ from development approaches based on a harmonious striving for progress (vide the MDGs and their failure).

Rights-based action against poverty (2)

The focus of a rights-approach is not on poverty as some abstract and general phenomenon -the number or proportion of people who have to survive on less than so much per day- but on the poor and their daily hardships. In the realm of sexual and reproductive health the focus is on women in their daily hardships.

Rights-based action against poverty (3)

Those whose basic human dignity is being violated are to be seen as people with rights. Economic, social and cultural rights are meant to offer people protection in their fundamental human needs. Hence the injustices that lie at the roots of denied needs have to be addressed. An entitlement (sub)systems approach may serve to reveal the factors behind concrete entitlement failure.

Rights-based action against poverty (4)

Rights can be approached from a "deductive" perspective: distilling, for example, 17 specified economic, social and cultural rights from the international bill of rights, while going into the juridical intricacies of legal definition. Another approach is "inductive": What are people's own perceptions of what they are due in terms of the fundamental freedoms and basic entitlements that their human dignity entails? Rights-based strategies will have to combine the two methods in spelling out the implications of human rights at the grass roots level: upstream initiatives connecting with international and national legal resources.

Rights-based action against poverty (5)

In regard to implementation a core notion in rights approaches is accountability, meaning that institutions and persons exercising power (actors, in other words) become duty-bearers. In concrete situations of non-implementation the challenge is to identify duty-bearers while specifying their duties.

Human rights strategies: The 7 A’s of rights-based action

Affection: human rights are faith-based Analysis: not just jurisprudential but also

contextual Assistance: linking with actual realities Advocacy: directed at rule of law, too Alliances: also with anti-poverty NGOs Action: directed at North, too Accountability: NORTH SOUTH

A Hopeful Perspective

Despite its flaws from the legality perspective, international human rights law has created a strong notion of global legitimacy. This is particularly significant as there exists no global government. Indeed, in our world today no use of power can be considered as being legitimate as long as it violates international human rights standards. The same applies to non-state actors.