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[Aviva]

Human Rights Reader 34

RIGHTS ARE GUARANTEED  ENTITLEMENTS: RIGHT?

[The title question is a political and not a legal one: the legal obligation
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) formulation of
entitlements and of economic, social and cultural rights. That has
progressively lead to people getting fed up with international 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 resources 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 international alliance
or coalition against HR violations.

7.Experts and international bureaucrats keep talking about good examples and
best HR practices yet discussions about the legal obligations 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 proposed 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 criteria 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 implementation strategy including new legislation
and the setting of benchmarks for the implementation of concrete steps and
the achievement of intermediate objectives over a given period of time. All
this requires implementing administrative innovations and setting up
monitoring mechanisms....clearly a scary prospect for many non-committed
governments.

10.Moreover, states have HR obligations vis-a-vis international
organizations 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 countries, 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 immediately 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 instance,
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
aviva at netnam.vn