CAN WE GET AWAY FROM SPURIOUS MYTHS SUCH AS HUMAN RIGHTS NOT HAVING UNIVERSALITY AND LEGITIMACY?

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Human rights: Food for a detrimental thought

 

Human Rights Reader 394

 

Human rights are not just the prerogative of prosperous nations; (neither are social protection institutions). (M. Loewe).

 

  1. A widespread lack of understanding-of and misperceptions-about human rights (HR) is one of the mother-of-all-problems we have in our work. Therefore, in our HR work, we absolutely need to vernacularize, to give meaning and to frame HR so people can understand and then take ownership of their rights. The information most needed in this is the one to be used for myth busting in the realm of HR.

 

By now, we ought to know this

 

  1. Human rights particularly apply to those who are disadvantaged, excluded, ignored or demeaned. Consequently, HR do address the distributional, structural and other wrongs experienced by these out-groups. This actually means addressing five main purposes or dimensions of HR work, namely,
  • the redressing of disadvantages;
  • the addressing of stigma, of stereotyping, of prejudice and of violence;
  • the embracing of difference;
  • the pursuit and achievement of structural changes; and for the latter,
  • enhancing the voice and influence of claim holders leading to their staking of concrete claims.

 

  1. These five dimensions embrace the more dynamic conception of HR particularly as regards achieving equality. Using this disaggregation, HR are better able to respond to the real and concrete wrongs as experienced by women, children, minorities and other out-groups.

 

The aim of human rights work is not necessarily to eliminate difference, but to prohibit the detriment attached to such difference

 

  1. Coming as no surprise, eradicating this detriment will require structural changes, i.e., wide-scale transformations. In this sense, HR work aims at enabling claim holder participation in society (as per above) not only socially, but also politically. Tackling disadvantage is primarily aimed at socio-economic disadvantages, yes, but also at the right to equality addressing, among other, these groups’ under-representation in jobs, their under-payment for work of equal value, and/or their limited access to credit, property, or other vital resources. Therefore, tackling disadvantage encompasses more than addressing the maldistribution of resources; it also takes on board and aims to resolve the constraints that power structures impose on individuals, because of their dependent or oppressed status.

 

  1. What people can ultimately achieve is thus influenced by their economic opportunities, their political liberties, their exerting de-facto social power and their success in enabling conditions of good health, good education and freedom from hunger. In short, one of the functions of the right to substantive equality is to redress disadvantage by removing obstacles to genuine choice. Mind you that the right to equality not only applies to socio-economic disadvantage, but also applies to disadvantages associated with stigma and/or exclusion. (Note that disadvantage creates a veritable ‘cycle of disadvantage’, that is, disadvantage breeds disadvantage).

 

  1. A caveat here: Redressing disadvantage may not be sufficient if structural changes are not implemented at the same time! Because measures aimed at redressing socio-economic disadvantage can themselves cause stigma: ‘Accommodation’ to fit disadvantage in an unfair system is an assimilationist measure to be opposed on HR grounds.* (Sandra Fredman)

*: Accommodation’s goal is nothing but trying to make ‘different’ people fit into existing systems.

 

But there is no explicitly stated right to substantive equality, as such, under international human rights law… (Philip Alston)

 

  1. Treating people who are unequal the same way as the rest does not necessarily achieve equality; it can replicate disadvantage. We must, therefore, always identify the barriers people face –understanding that these barriers are created by others! Barriers may be legal, physical, institutional, administrative, economic, linguistic, cultural… We emphasize that not only wealth and income, but also many other factors determine inequalities. Note that the law does not require disadvantaged groups to conform to current practices and norms**, but puts the burden on the State to (again) ‘accommodate and embrace difference’. Therein lies the danger.

**: When we ask claim holders to think critically we are not asking them to think about how to accommodate and conform.

 

  1. Individuals and groups that have historically been disadvantaged need to adopt targeted positive measures that ultimately pursue redressing existing discrimination, ensuring the equal participation of all and, in no uncertain terms, demanding the redistribution of power and resources. Affirmative action is an example of this.

 

  1. Keep in mind that the State is mandated by international HR law to dismantle discriminatory practices and to target the disadvantaged as part of their obligation to prioritize individuals and groups who are excluded and discriminated against. But experience tells us that, when specific measures are taken to ensure greater inclusiveness, participation tends to be disproportionately for/from men, majority ethnic groups, wealthier, more educated households and people with a higher social status. This is why, to ensure inclusive participatory processes, inclusion must be deliberate. The first step for this is to identify those who are marginalized, as well as identifying the barriers they face. How? Asking them! Addressing all this is to uncover the underlying power dynamics. Subsequently, not only the legal framework will need reform, but also a revision transforming institutional structures will be called-for to ensure transparency and access to relevant information. This calls for a paradigm shift from addressing income inequalities to addressing inequalities in the realization of HR. (Inga Winkler)

 

COROLLARY: Applying the HR-based framework is one legitimate appropriate method to be used when confronting the destructive capitalist system; it fosters clearly alternative paths of action applicable all over the world

 

  1. Yes, but in too many countries the judiciary, supposedly responsible for defending people’s rights, is ignorant of international HR law despite the latter’s demonstrated role in social judicial jurisprudence coming from public interest litigation the world over.***

***: Furthermore, most judges are not socially and HR conscious; they are also political animals living in a neoliberal world; they are accountable for many a regressive HR ruling. So, when we talk about fairness of the rule of law, we have to specify fair to whom?

 

  1. Talking about legitimacy, it has always called my attention that we see overwhelmingly more studies on the violation of HR and far too few on the sustained licit or illicit privileges of the haves.****

****: Susan George has reminded us of the same as regards studies on poverty in proportion to those carried out on or about the wealthy, i.e., on wealth licitly or illicitly acquired…

 

  1. Hope: The resurgence in the last decade of a number of people’s movements and social struggles in the South –through campaigns on forest, water and land rights, on indigenous and dalit rights, on agricultural workers rights, on labor rights, on the rights of women, etc– provide us for guarded optimism. They represent the social basis to emulate for fundamental HR advances. (Sandeep Chachra) But beware: Some success is not the same as having decisively embarked in a process where the progressive realization of HR is being achieved.

 

Claudio Schuftan, Ho Chi Minh City

cschuftan@phmovement.org

 

Postscript/Marginalia

-We have to make the new HR paradigm a reality for the sake of our own peace, our peace towards others, and our peace with nature and mother earth. Few people getting involved in small projects in small places the world over can indeed change the world. (Anwar Fazal)

-Human rights do not need wings, they need to deepen their roots. (adapted from Octavio Paz)

-Facetiously, someone said: “Are we watching human rights or human wrongs?”

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