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.

Human Rights and Social Justice

Can human rights bring social justice?  This crucial question is the focus of the latest Amnesty International publication edited by Doutje Lettinga and Lars van Troost. The publication aims to discuss the changing perspective of human rights in 12 thought-provoking essays. Authors contributing in this volume are scholars and analysts with various scientific backgrounds, who build their arguments based on contemporary challenges to human rights implementation, in order to advance the debates on the potential contribution of human rights to deliver social justice.

From here authors reach different conclusions.

In order to become effective in the social and economic realm, a first group of authors suggests that human rights advocates must (re-)enter the political arena. They cannot afford to provide only ideologically neutral, technocratic solutions to politically-charged problems but must take these head-on.

On the other hand:

Authors disagree that human rights can be effective tools to reduce or eliminate inequality and oppose the politicization of human rights in this way.

A very interesting discussion, indeed. The volume is free to download here.

More Persuasion Needed

Discussions about persuading states to implement human rights frequently appeared in the end of last century. Back then many talked about the “curious grapevine,” an extraordinary tale of how NGOs, through their persuasion have made human rights a major item in international discourses, in the media, state chancelleries, and international institutions. An example of such discussion can be found here.

I think we need to revitalize this debate for different reasons.

  1. Human rights, despite the increasing popularity and acceptance, still need to answer questions concerning their relevance – especially compared to concepts such as autonomy or social justice.
  2. There are limits to human rights. In relation to inequality, political economy structures around the distribution of welfare have established human rights as helpless bystanders.
  3. Rights talks operate in different political spaces/levels. Although they definitely share a wall with those spaces where policies are made, measuring their impacts remains difficult. Rights talks are also not immune from the risk of depoliticization.

Compared to the situation in the late 90s, more developing countries, as well as countries that are considered authoritarian are now parties to major international human rights treaties. Debates on how to persuade states to implement human rights in the age of inequality are needed. Particularly discussions that consider how actions come from/are initiated by domestic forces and interest groups, using the accepted political cultures and strategies, can deliver meaningful persuasion.

Power and Subjectivity

The special edition of the journal Third World Quarterly on ‘the power of human rights/the human rights of power’, considers the question of duality of human rights in a neo-liberalism context. Here, social and political practices represent realities as to how the interplay of power and subjectivity plays a role in, for example, deducting complex realities into a human rights language or disconnecting rights talks from actual contexts of struggles.

The 14 articles published in the issue are structured into these interesting themes: subject and struggles; rights, state and borders; power, privilege and change; and, politicisation and depoliticisation.

Some of them are:

Food Sovereignty

In a FIAN Publication, Winfur and Jonsén argue on the political weight of the concept of food sovereignty.  The focus on social movement and autonomy provides a distinctive feature of food sovereignty in comparison to food security, which they observe as to provide technical guidelines.

Similar to food security, food sovereignty consists of an overarching claim. At the World Food Summit in 1996 the concept of food
sovereignty was launched by the international movement
La Via Campesina as:

The right of each nation to maintain and develop their own capacity to produce foods that are crucial to national and community food security, respecting cultural diversity and diversity of production methods.

According to the 2007 Declaration of Nyéléni, food sovereignty encompasses:

The right of peoples, communities, and countries to define their own agricultural, labour, fishing, food and land policies which are ecologically, socially, economically and culturally appropriate to their unique circumstances. It includes the true right to food and to produce food, which means that all people have the right to safe, nutritious and culturally appropriate food and to food-producing resources and the ability to sustain themselves and their societies. Food sovereignty means the primacy of people’s and community’s rights to food and food production, over trade concerns.

Recently, a special issue on Food Sovereignty is published  in the journal of Globalization. The issue includes some interesting topics, such as: