Categories
Governance Human Rights Indonesia Social Movement

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.

Categories
Human Rights

Reworking Postcolonialism

There are not many books dealing with the topic of postcolonialism and human rights, which makes this recent publication particularly interesting. The volume, Reworking Postcolonialism, discusses human rights and postcolonial discourses in the context of globalisation. There are four main themes: (1) Globalisation, Modernities and Other Histories, (2) Globalisation, Labour and Work, (3) Globalisation, Labour and Citizenship, (4) Globalisation, Rights and Citizenship.

Some of the chapters:

As mentioned in the book: both postcolonial and human rights discourses address human suffering in search of justice. But each has its own theorists, archives and spheres of engagement. If human rights imaginaries consider victims, perpetrators, duty bearers and rights holders, postcolonials studies scrutinize the colonizers and the colonized people.

In my view, relating human rights to postcolonial discourses implies, thus, examining at least two things: the asymmetrical power relations, and the collision of global and local spheres.

 

Categories
Human Rights International Law

Transnational Legal Processes and Human Rights

My review on the book Transnational Legal Processes and Human Rights has just been published online by the Journal of Legal Pluralism and Unofficial Law. Some excerpts from the review:

The volume deals with a wide range of problematics, not only legal and political but also economic and cultural, that occur and emerge at multiple levels. Analysis pertaining to various transnational legal processes provides insights that extend beyond the common caveats of what presumably constitute as differences with regard to human rights implementation and enforcement in developed and developing countries. Such a distinction might be implicitly suggested, as several chapters that deal with the judicial aspect and process of internalization of foreign law use cases from the United States and European countries. Networks and real-life realities, on the other hand, serve more as the common denominator for transnational legal processes of human rights as reflected in the cases on Angola and Pakistan. It should be noted, however, that insights on social and political processes that shape the challenge for judicial enforcement in those areas support the comparative style taken in this volume. Moreover, chapters are structured to reflect on contemporary challenges for and resulting from practicing human rights.

My guess is that it will appear in the first issue of next year.

Anyway, I wish everyone a good end of year celebration and a happy, healthy and prosperous year of 2016.

Categories
Human Rights International Law Social Movement

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.

Categories
Human Rights Social Movement

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.