The Global South

The latest issue of the Third Quarterly is dedicated to examine a phenomenon called: the Global South. This special edition is currently free to download and divided into three themes: Ideas and shifting power relations, International peace and security, Human rights and development. As stated in the introduction, the focus of this volume is about ‘then’ and ‘now’. The nine individual articles contribute towards improving our understanding and bridge-building in different ways – sometimes by making the differences clearer, sometimes by probing how we could conceivably move beyond them, sometimes by calling into question the shibboleths of international cooperation.

Some of the chapters are:

Who owns the right to food?

The journal of Third World Quarterly recently published my article entitled: “Who owns the right to food? Interlegality and competing interests in agricultural modernisation in Papua, Indonesia”.

The  article dicusses the extent to which the competing as well as conjoined interests of actors involved in agricultural modernisation are reconfiguring the right to food. Agricultural modernisation provides such a context to study the interplay between global and local levels and between various legal and normative frameworks, as well as how the right to food is promoted or jeopardised in these interactions. The focus here is twofold: first, it is on existing norms linked to the wider understanding of the right to food; and second, on the diverse interests supported by the state, corporations and civil society organisations, particularly indigenous rights movements.

A Political Race

In a recent interview, Stephen Hopgood raises an interesting question: how politically effective is human rights to a normative progress?  Although human rights are globally spread, one could easily argue that they at the same time stand on a shaky ground. There are various views on gender equality for example, there are also many aspects that determine the autonomy of indigenous peoples over their lands. In such fields, is claiming for human rights in its normative nature politically feasible?

Not an easy question to answer. Many have tried to. Normative lawyers might refer to the minimum core obligations. Others might refer to philosophical and historical basis for justice. But in realities these things often do not matter as much as in legal and abstract opinions. For many different reasons. Majority of the population might not consider it as important to promote gender equality, to respect LGBT rights, or to abolish death penalty. The government sees it as its obligation to convert native land into productive agricultural plantations, or to move people so dams or transportation infrastructures can be built. Obviously, there are many norms, rules and customs in the field, as much as there are many interests and agendas.

Does this imply a normative inadequacy of human rights? Another complex issue. To some extent, there are still strong western views in the ways human rights are constructed and challenged. Critiques on how ASEAN juxtaposes human rights and human responsiblity in one single authoritative document represent how certain standards should be maintained for human rights to work. Yet, many authors have successfully mustered the relevance of global south in the making of human rights. Although one should also bear in mind that the processes and outcomes of these endeavours are not altering the western influence in constructing and challenging rights.

Assessing normative inadequacy implies also an examination of the scope and jurisdiction of the human rights norms. Again, this is a contested territory, but one certain thing is that it is impossible to predict what each model of norms codification can deliver. Legal binding documents can have the same impacts as non-legal binding documents. The latter can face comparable drawbacks as the first one. Similarly, one can not simply gauge the extent to which monitoring-based system, penalties, or statistically based indicators can benefit or jeopardize rights holders.

Indeed, it is not easy to asses the political effectiveness of human rights in the race of normative progress.

 

Human Rights and Sustainability

To live in dignity, all human being needs a healthy environment. A safe, clean, healthy and sustainable environment is thus integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Increasingly, the intertwine between human rights and the environment is being acknowledged and recognised.

Routledge series of Sustainability recently publish an edited volume entitled Human Rights and Sustainability: Moral responsibilities for the future. The editors of this book, Gerhard Bos, Marcus Düwell, develop the idea of environmental obligations as long-term responsibilities in the context of human rights. The book proposes that human rights require recognition that, in the face of unsustainable conduct, future human persons are exposed and vulnerable. In doing so, the authors explore the obstacles for long-term responsibilities that human rights law provides at the level of international and national law, and scrutinise the question of whether lifestyle restrictions are enforceable in view of liberties human rights.

Some chapters that might be of interest are:

  • International Human Rights and Duties to Future Generations: The Role of an International Constitution. Stephen Riley
  • A Chain of Status: Long-term Responsibility in the Context of Human Rights. Gerhard Bos
  • Human Rights as a Normative Guideline for Climate Policy. Michael Reder and Lukas Köhler
  • On Current Food Consumption and Future Generations: Is There a Moral Need to Change our Food Consumption in Order to Safeguard the Human Rights of Future Generations? Franck L.B. Meijboom
  • The Institutional Representation of Future Generations. Sandor Fulop

On a similar subject, a recent edition of the Oslo Law Review contains a publication on Legal Pluralism, Human Rights and the Idea of Climate Justice, by Aled Dilwyn Fisher. The article can be downloaded here.

Approaching the subject from a governance perspective, a chapter published by Laura Horn entitled Human Rights and International Environmental Governance is certainly worth reading. The chapter considers the failure of the international legal system to provide adequate mechanisms for global environmental governance. It also discusses some proposals for change to environmental government from existing institutions, by focusing on a possibility for an international human rights to a healthy environment.

Law, Democracy and the Socio-Economic Rights

The problem of implementation deficits may be an inherent trait for human rights in general, including socio-economic rights. In this regard, much commentary on human rights in developing countries, particularly written by international human rights NGOs, as well as from the rights-based approaches camps, has suggested that the problem lies primarily in inadequate protection for human rights in countries’ legal frameworks. Here, many view law, accepted, ratified and/or codified as a powerful force for change. The focus has been on identifying legislative and policy gaps. But what explains countries’ slow and uneven progress in implementing socio-economic rights?

An article written by Andrew Rosser and Maryke van Diermen critically engages with this topic by arguing that the most important determinants of socio-economic rights outcomes in developing countries, such as Indonesia, lie in the political and social, rather than the legal realm. Indonesian average score on the Social and Economic Rights Fulfilment (SERF) Index shows an uneven improvement across socio-economic rights. The country has made significant progress in the rights to education and health but rather less progress in the rights to food, work and housing. The authors argue that the competing elite network over resources and power, such as reflected in the electoral process, has created a persistent obstacle for realising these rights, despite an increasing political and social space claimed and acquired by social movements.

I support this argument but also think that this approach reduces the scale of implementation problems into mere non-fulfillment ones. The implementation of socio-economic rights requires protection as much as fulfillment. And therefore a question is asked: doesn’t legal institutional design matter in how states respect, protect and fulfil these rights? Because what is missing in the argument is how the dynamic between actors affects existing enforcement mechanisms, for instance the role of prosecutorial independence and prosecutorial accountability.

A prosecutorial organ is in charge of the investigation and prosecution of violation of human rights, which makes this institution a key gatekeeper to the courts, thus the protection and realisation of socio-economic rights. Empowered with prosecutorial discretion, a prosecutorial organ dictates what, when, and whom to prosecute. The institutional design of the prosecutorial organ varies across time and across countries, which raises an important question on the discretion to prosecute (i.e., the more accountable a prosecutorial organ is). On this topic, Veronica Michel argues that the less this discretion is shaped by political pressures (i.e., the more independent the prosecutorial organ is), the more likely we will observe the initiation of prosecutions against state agents. For the case of socio-economic rights, this thesis should be tested even in political contexts that appear to be against the rights-based approach to development.

Future research on socio-economic rights should incorporate the interplay between political economy aspects and the role of prosecutorial organs and prosecutorial discretion, as this is pivotal to our understanding of how and when claims are successful or deceased.