PHA-Exchange> Food for a thought that needs to be made legal

[claudio]

Human Rights Reader 52

THE LAW IS THE LAW...AND HUMAN RIGHTS ARE NOT YET THE LAW.

1. A neglected avenue is becoming increasingly important for human rights
activists to pursue in order to more effectively meet the various Human
Rights covenants' goals. The avenue: to more actively propose/promote-new
and/or amend-existing legislation --rather than continue implementing
traditional development projects which do not necessarily address areas
where the compliance with the respective Human Rights conventions (e.g., the
Convention on the Rights of the Child -CRC- and the Convention to End All
Forms of Discrimination Against Women - CEDAW) is the weakest.

2. As a matter of priority, the traditional project approach has, therefore,
to be complemented (or replaced?) by a holistic, more legal approach to
struggle for Human Rights. This, since current, embryonic rights-based
programs are only a minor part of current development agendas of UN,
government and non-governmental organizations. Moreover, they mostly promote
'rights- orientations' rather than more explicitly seeking
'rights-improvements-as-an-outcome'.

3. So far, most UN agencies' and NGOs' new rights-based programs mostly
inform-about, train and disseminate, but do not seem to
test-rights-in-the-legal-arena (e.g., through legal challenges and/or
leading claim holders to get involved in pressing-on with their legitimate
demands using national and/or international legal channels). [Note that many
domestic legislatures give treaties precedence over domestic legislation].

4. Unfortunately, many of these current rights-based programs also often
convey a message of powerlessness of the pertinent Human Rights conventions,
i.e., that they cannot really change the deeply entrenched attitudes of duty
bearers that are causing harm, for instance, to poor women and children.

5. There is thus a risk of using the concept of rights in ways that have
little to do with actual progress in the implementation of the actual Human
Rights conventions --or of promoting just ideas, and not linking them to
action.

6. [Because of this, someone even proposed that it would perhaps be better
to define 'the-inverse-of-rights', i.e., what duty bearers do not do  and
what the penalties are].

7. That is why we, as rights activists, have to be part of the solution
beyond pronouncements, by working with claim holders and getting them
actively involved in actions that will make their appeals heard and acted
upon.

8. But equally important is to give claim holders pointers of where and who
to turn to when their rights are being violated. Emphasis is thus not only
to be placed on poor women or children receiving particular benefits, but
rather on achieving changes in
processes-and-attitudes-of-relevant-institutions.

9. We, therefore, need to come up with new capacity building
projects --understood as platforms-to-change-behaviors-on-rights-issues
rather than to foster career advancement of participants. These projects are
to include a whole new set of partners, e.g., parliamentary committees,
political parties, labor and student unions.

10. Additionally, coming up with a framework for analyzing existing laws and
to understand their shortcomings (i.e., inconsistencies with the Human
Rights conventions or the fact that promoting equality is not a feature in
them) is also needed. Missing laws, failed implementation of existing laws,
and ambiguities in current laws will all become apparent from this analysis
as well.

11. There is an easy test that can make the global Human Rights mission
clear and that can be used to 'diagnose' any program's compliance with the
spirit of, let us say, the CRC and CEDAW. The test consists in taking those
programs in a country and replacing the word 'children' or 'women' with the
word 'farm animals' raised for productive value and the word 'school' with
training pen'. The proof of the extent to which each of these programs (and
the country's laws, for that matter) reflect the goals of the CRC and CEDAW
is in the number of cases where these programs promote the essential rights
and qualities that are part of being human and that go beyond (farm animals
') basic needs. If the score is low on this test, there is a problem and, as
activists, we need to engage in reorienting strategies in our work with the
Government.

12. The rights of claim holders (poor women and children in our example)
will ultimately have to be guaranteed by laws; this means that the state
(and not families or donors) has to assume the major role of fostering
equity and equality --and this has to be guaranteed by law-- at a time when
market forces are bringing about more and more inequity and inequality.

13. The paradox is that while in some countries some development indicators
are looking better, the state's role in guaranteeing the rights of all its
citizens is getting weaker, at a time when the risks to and needs of those
individuals being left by the wayside by economic growth are becoming
greater.

14. For all of the above reasons, the reward system for project implementers
has to be changed as well. They have to be assured they will not be
penalized for vigorously pursuing claim holders' legally recognized rights.
We have to engage them in showing the claim-holders-they-serve the bases of
the conflict they have with whomever is limiting or curtailing their
rights: for sure, someone concrete is holding back the actions that are
needed, after claims have been rightfully placed. If duty bearers do not
act, approach them repeatedly; if they still do not act, expose them!  This
is pointed out here, because information alone does not give project
implementers sufficient incentives; it often only adds to the frustration
they feel with their own powerlessness... and that is precisely what we want
to avoid.

15. Laws are not something abstract, 'probably useless' and un-enforceable,
just because few people are using them or are benefiting from them. Widely
disseminating information about pertinent laws creates awareness, but
nothing else. There is this mythical belief that awareness is the first step
to achieve 'something', and that other steps will automatically follow in
due course; the reality is that they do not. Without behavioral change,
information can actually have no effect (or completely opposite effects than
those intended)...that is why TV promotions offer discounts and free
samples...

16. The big challenge ahead is for us to succeed in telling legitimate claim
holders what rights are and how they work; how, as claim holders, they can
exercise their given rights and how other countries' claim holders are
successfully struggling for their rights. Most important of all, we cannot
convey a message of powerlessness.

17. An annual reporting on progress of each of the Human Rights conventions
to show progress article-by-article would thus seem to be highly desirable.
Civil society is best placed to do this.  (We simply have to make sure that
certain groups are receiving particular benefits due them --and that is so
much easier with the law on our side...).


Claudio Schuftan, Ho Chi Minh City
aviva at netnam.vn
__________________________
Mostly taken from D. Lempert, Assessment of Vietnamese national laws and
policies related to children and women, UNICEF mimeo, Hanoi, 2003.