HUMAN RIGHTS ARE COMPELLING IN THE ABSTRACT, BUT IMPOSSIBLE IN PRACTICE AS LONG AS THERE IS NO ACCOUNTABILITY.

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Foood for an allergizing thought

Human Rights Reader 288

 

-It seems our peers have an allergy to enforcing   human rights accountability. (J. Alday)

-To be effective, accountability needs to be demanded; therefore, effective mechanisms to demand accountability are badly needed. Are we fostering such mechanisms?

 

1. Monitoring and evaluation (M&E) both serve accountability purposes, but must be directed towards human rights standards and principles if they are to have even a chance to improve the human rights (HR) situation. (So beware: Monitoring does not automatically lead to demanding accountability!). In HR work this means we need to foster bottom-up monitoring systems. Examples of the same are: citizens report cards, social audits, HR impact assessments, public hearings and active complaints mechanisms plus direct interaction between service users and providers. All these empower poor and marginalized citizens and make the needed naming and shaming possible. If this is not achieved, accountability risks becoming just another development buzzword. (The Broker)

 

2. As this Reader has said many times, the human rights-based framework emphasizes both processes and outcomes; it draws attention to marginalized populations; it works towards equitable service delivery; it extends and deepens people’s rights; it ensures local ownership of the development process and, last but not least, strengthens the accountability of all actors by addressing the common weaknesses of the accountability systems.

 

3. HR work departs from the premise that the process of demanding accountability improves fiscal transparency towards HR in good part through independent civil society organizations keeping a vigilant eye. * There are thus obvious links between transparency, accountability and participation. In last instance, implementing effective accountability measures involves challenging the state. As a result, accountability measures also transform the state.

*: Human rights accountability is actually more than the purely civil-society and popular movements accountability described here though. It is also to include accountability demanded by parliamentary committees, ombudsmen and national human rights institutions.

 

4. As a corollary, HR work insists that the socially marginalized must muster collective power to carry out autonomous accountability checks through collective action –action that ultimately pursues shifting the existing power balance between state and society.

 

5. At the end of the day, mobilization for accountability must lead to the building of coalitions between the marginalized social actors and allies to be found both within and outside government. (J. Fox)

 

6. Note that, procedurally speaking, accountability greatly benefits from having data as disaggregated as possible so as to establish reasonable benchmarks for those-in-any-way-marginalized and thus measuring progress. (One can actually think of setting up and following something like an ‘Index of Fulfilled HR Obligations and Commitments’).

 

The idea that economic, social and cultural rights (ESCR), as a whole category, are not fit for judicial adjudication is seriously misguided.

 

7. Apparent obstacles-to and difficulties-with* justiciability, as one of the important alternative accountability mechanisms, equally affect ESCR and civil and political rights. But such difficulties have never deterred the international community to seek justiciability for violated civil and political rights. The question is: Have national and international actors to an equal extent sought justiciability for ESCR?

*: Real difficulties can be overcome, it is only the imaginary difficulties that are unconquerable…

 

8. Massive and serious HR violations perpetrated by political authorities (be it by commission or by omission) do indeed require firm judicial interventions in order to (re)establish the rule of law (nationally) and/or the rule of international HR law.

 

9. But let me be clear here: Justiciability is not the only means of enforcing ESCR. A great number of the tasks required for the full realization of ESCR depend primarily on actions by the executive and legislative branches of the State.

 

10. Denying judicial intervention in the realm of HR seriously reduces the remedies victims of economic, social and cultural rights violations can claim. ** It also weakens the accountability of the State and erodes deterrence, consequently perpetuating impunity for ESCR violations.

**Be reminded here that ESCR litigation can also refer to collective grievances and can demand collective remedies.

 

11. Furthermore, international and regional experiences can offer valuable arguments and examples to help overcome prejudices in those jurisdictions where there are still limitations on the possibility of enforcing ESCR through litigation. Both domestic and international good practices in this field have shown to be mutually reinforcing.

 

12. The ways in which civil and political and economic, social and cultural rights are intertwined and interact with one another makes it impossible to declare the latter category non-justiciable without undermining the protections granted by both categories of rights (actually artificially classified separately!).

 

13. Evidence shows that ESCR claims have many times played a constructive role in promoting more inclusive and responsive policies and programs. Some of these have saved thousands of lives.

 

14. But let us be realistic: In the context of, for example, widespread hunger and homelessness in both affluent and impoverished countries, the number of ESCR cases brought to court may seem quite insignificant. *** Clearly, resolving the justiciability debate will not solve the systemic poverty and social exclusion that are the primary causes of ESCR violations. What is cause for hope are the signs of a newly invigorated court adjudications for HR cases at the domestic, regional and international levels. After too many years of delay, we are beginning to see the emergence of fair hearings into violations of all human rights, not just a selective few. These developments reflect the emergence of a new human rights movement that is more and more fully inclusive of those whose dignity, security and equality is assaulted by poverty, homelessness, hunger or violations of other economic, social and cultural rights. (A. Nolan, B. Porter and M. Langford)

*: Note that, while judicial redress systems seem to work best in Latin America, they

are largely lacking in most African, Asian and Middle-Eastern countries.

 

15. Bottom line here then is that concerns about the justiciability of ESCR are thus generally ill-conceived and run contrary to an already sizeable positive experience.

 

Corporate Social Accountability vs Corporate Social Responsibility

 

16. Because corporations use such a myriad of tactics to get away with ‘their way’ in, for instance, the realm of health, food and nutrition, demanding corporate accountability (and not only the so-far-mostly-toothless version of corporate responsibility!) is key to HR work. Why? To illustrate what I mean, let me give you some selected examples of strategies used by pharmaceutical, food and beverage corporations to get ‘their way’ in their daily business. They:

  • Embark in public relations campaigns that emphasize consumers’ personal responsibility, moderation, free choice, and enjoyment.
  • Use the government-versus-personal-freedom and the get-government-off-our-backs arguments.
  • Vilify their critics, health advocates and public health and nutrition scientists as policing their actions and accusing them of seeking to impose a controlling state.
  • Hire a public relations firm to develop and help carry out their plans to create a favorable image, to combat negative reports, or to repair damage to their credibility or image.
  • Set up or fund ‘front groups’ with consumer-advocacy-sounding names to promote the corporate agenda and messages.
  • Distort any science to divert the attention from the negative health effects of their products or practices to other matters.

They also:

  • Publish journal articles and book chapters, make presentations at scientific meetings, host conferences and workshops for professionals that give the appearance of objective science in order to convey an image of credibility, but do not present the entire dataset, or misrepresent or distort data about the corporation’s harmful operations, products or policies.
  • Pay scientists or physicians or other professionals to serve as spokespersons to represent the corporation’s position.
  • Use their lobbying power to buy political influence, to gain a competitive advantage and to avoid or minimize regulation and taxation.
  • Contribute funds to election campaigns of politicians in positions to influence legislation favorable to the corporation and to obtain favorable rulings from the judiciary.
  • Participate as delegates in the policy-making or standard setting process to ensure the lowest or most lenient possible standards for corporate products and operations.
  • Work to reduce government budgets for scientific, policy and regulatory activities deemed contrary to the corporations’ profits.
  • Set up or fund foundations that support the corporations’ agendas rather than funding priorities determined through independent democratic processes.
  • Externalize as many costs as possible (e.g., dumping chemicals into rivers or in Third World countries; not providing their employees medical coverage).
  • Use assorted tricky legal and regulatory tactics.
  • Work to get corporate officials or industry lobbyists appointed to government regulatory agencies with authority over its own industry.
  • ‘Shop’ for alternative judiciary venues or levels of government when rulings or decisions are unfavorable to them.
  • When deemed necessary to ensure profits, they even employ illegal means.
  • Emphasize technological solutions to health problems mostly to generate profit.
  • Use both direct advertising and indirect methods such as product placement and integration into the story line of entertainment products.
  • Connect image of product or corporation with human emotions and values.
  • Financial tactics they use include contributing funding to community and neighborhood organizations in order to create dependency, gain allies, and influence or manipulate the organization’s agenda. (D. Stuckler et al)

 

17 . Does more need to be said…? Does all this sound familiar to you? What this list does is to reinforce the need for our own tactics to select and use accountability mechanisms that confront face-on the shrewd operators that use the above tactics.

 

18. So, after all is said and done, as you see, the intention of this Reader is to reinforce our calls for pursuing all possible mechanisms to demand accountability in an effort to contribute to change the current balance of power between state, corporations and citizens –primarily towards the latter.

 

Claudio Schuftan in Ho Chi Minh City

cschuftan@phmovement.org

_____________

Adapted from UNFPA  A HRBA to Programming: Practical implementation manual and training materials, 2010; F+D 47:4, Dec. 2010; Courts and the Legal Enforcement of Economic, Social and Cultural Rights, Comparative experiences of justiciability.  International Commission of Jurists, Geneva, 2008; and D. Stuckler et al, Global Health Philanthropy and Institutional Relationships: How Should Conflicts of Interest Be Addressed? PLoS Medicine | www.plosmedicine.org 1 April 2011 | Volume 8 | Issue 4.

 

Postscript

Today’s Reader speaks the truth to power; it does not, for a moment, timidly ask the powerful to justify their truth to us. Actually, most Readers intend to make you uneasy, to shake state structures that have become too rigid, excluding and deformed; they attempt to be wake-up calls. (Ortega y Gasset)

This effort of mine to ‘moralize’ readers has gotten to me; I have now began to convince myself. (Facetiously quoting Charlie Chaplin)  But, seriously, what I really ask myself every time I send out a Reader is if all this is worth, if it helps at all; or will it either be deleted or stacked in a folder somewhere in your computer?

 

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