PHM-Exch> food for tilting a thought

[Claudio Schuftan]

Human Rights Reader 218



*WHERE THERE IS NO EFFECTIVE CLAIMING FOR REDRESS, THERE ARE SIMPLY NO
PROSPECTS FOR EFFECTIVE HUMAN RIGHTS. *



Before becoming de-facto claimants, the excluded come from an experience of
being treated by bureaucrats in a way that echoes colonialism.



1. Human rights are mostly of the yes/no dichotomous kind. Respect, protect
and fulfill are attributes mainly either adhered-to or not. To put this in
perspective, and as a reminder:

·       *Respect* means do no harm to others.

·       *Protect* means prevent harm to others by third parties.

·       *Fulfill/facilitate* means help others to meet their own needs.

·       *Fulfill/provide* means meet others’ needs when they cannot do that
themselves.

Consequently, tilting the dichotomy towards ‘yes’ is what claiming for human
rights (HR) is all about.



2. Rights are --or are supposed to be-- *enforceable* *claims*. So, individuals
who fail to get what they are entitled-to should have direct means available
to them for pressing their claims. But first, claim holders must know what
their human rights are, and they must have or set up the appropriate
organizational arrangements for demanding their rights. It is only through
these actions that their claims can eventually become enforceable! Claim
holders should thus be assisted in making their own clear judgments about
whether they are in fact enjoying the HR they are entitled to. They also
need to know what they *can* do if they conclude that they are not getting
what they are supposed to get…and finally, they need to have (a) place(s) to
take their complaints to.



3. Engaging claim holders in this way is intended to make them more capable
of standing-up for their rights. Self-determination grows out of this sort
of standing-up and speaking-out…and this self-determination-gained grows
with practice…



4. Beyond the direct action with and by claim holders just described, having
alternative remedies available also means there needs to be some sort of
administrative or judicial procedure through which they can appeal to have
the situation of deprivation they are-in corrected.



5. On the other hand, enforceability of claims means that the duty bearers,
those who are to respect, protect and fulfil human rights, must be brought
in line to do so, i.e., holding them *accountable* for their performance or
non-performance.*

*: We note that accountability must be two ways: If you want something, you
must bring/give something too.



6. For that, accountability institutions need to be strengthened or set up
and need to embark in two distinct phases in their operations: First is the
*detection* *phase* where they determine whether there are deviations from
legally-binding HR standards and principles**, and to what degree***. Second
is the *correction* *phase* in which something needs to be done with the
information obtained to restore the HR behavior of the duty bearers to a
‘zone of acceptability’. [We note here that ‘HR-educated’ duty bearers are
more likely to keep their obligations. (FAO) But we also note that, usually,
people focus on their own rights; obligations ‘are for others’; they (we?)
just resist* taking-on obligations, isn’t it true?].*

**: Let us not forget that human rights law codifies claims that have
actually come up from a widespread consensus among ordinary people. This
means human rights are not simply about achieving compliance with
established standards in a mechanical way.

***: One aspect of this work is to carry out ‘compatibility reviews’ that
compare texts of existing  national HR-related laws against the text of the
various HR covenants and respective General Comments. (FAO)



7. Accountability organizations also need to have the power to impose
sanctions of different types. However, they should first engage duty
bearersin a "constructive dialogue", i.e., using persuasion rather
than punishment.
As a critical starting point, such a local dialogue and the concomitant work
with claim holders are to center on the meaning, the relevance and the
application of human rights-based strategies in the each specific concrete
context. This is necessary to make HR ‘come from within’, and not from
without. So for us, our support to communities is about facilitating the
internal learning and self-empowering process for local actors to become
de-facto demanding claim holders and complying duty bearers .
(Equalinrights)



8. To reiterate, local communities must fully participate in formulating the
rules under which they are to live. For that, community members:

·      must reach a fair and informed judgment about what best serves their
interest --*provided* there is a reasonably democratic decision-making
process and a sense of community that ensures that the interests of all are
served; where local politics are undemocratic, the fight for a democratic
decision-making process becomes the goal of HR work; and

·      must be supported to stand up for their rights as applied to their
local reality.



9. It is thus decision-making that needs to be localized, in the sense of
achieving greater local control over policy. In practice, this means
increasing the capacity of local groups to define, analyze and act on their
own problems; it is about building self-reliance and direct democracy by
going beyond the sometimes complex HR language and applying it to the main
policy choices and institutional and political questions at hand.
(Interestingly,
this last statement comes from the 2005 WB/IMF Review of PRSPs Processes)



10. This said, this is no ordinary time. The HR movement is not new, true.
But its vying for center stage in development work is new...and has to be
made new! **



Claudio Schuftan, Ho Chi Minh City

cschuftan at phmovement.org

[All Readers can be found in
www.humaninfo.org/aviva<http://www.humaninfo.org/aviva%20%20under%20No.%2069>
under No. 69]

_______________

Partly adapted from George Kent, *Swaraj* and *Swadeshi, *University of
Hawai’i, draft of June 15, 2009.
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