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Economic and social rights: legally enforceable rights?

Date
Time (GMT +00) 13:00 14:15
Hero image description: Rubbish dump scavenging Image credit:ODI/Antony Robbins Image license:Creative Commons

Speakers:

Katarina Tomasevski, Professor - Lund University
John Mackinnon, Freelance Economic Consultant
Chair:

Michael Anderson, DFID


1. The second meeting in the series was held on Monday 17 January 2005 at the British Institute of International and Comparative Law. The meeting was chaired by Michael Anderson. The two speakers were Katarina Tomasevski and John Mackinnon.

2. The Chair, Michael Anderson, introduced the meeting by explaining that there were two perspectives on the issue of the enforcement of economic and social rights. Whilst the development community was bemused about what to do with human rights standards, human rights lawyers felt human rights provided the framework to promote human self-fulfilment. There were frustrations on both sides of the debate and, as with last week's session, today's meeting would aim to bring these two normative frameworks together.

3. Katarina Tomasevski agreed that the starting points were different: development professionals had to be optimistic whereas human rights lawyers were pessimistic. By nature, human rights lawyers looked for abuses of power and backward-looking compensation. She continued by highlighting a number of concerns from a human rights perspective (Details of her presentation could be found in the background paper she had produced for this meeting series).

4. She began by commenting on the Millennium Development Goal of reducing by half by 2015 the proportion of people living in poverty. First, this approach created fear: what would happen to the 'superfluous poor'? Drawing on her work as UN Rapporteur on the Right to Education, she gave the example of the registration of children attending school in China to show how people could be eliminated statistically; in this case street children were ignored.

5. Second, who was to decide which half of the world's poor would not benefit from poverty reduction efforts? Equality and non-discrimination were fundamental human rights principles and it was not possible to say, in advance, that half of the world's population would not have equal rights. This was a particular concern for women, particularly in light of the continued institutionalised and legalised denial of women's rights in some countries, as was illustrated by a case in Cameroon which described women as the property of their husbands.

6. Third, she also expressed doubts as to the value of targets; they reminded her of the former centrally planned socialist economies where data could be falsified.

7. She then moved on to make the case as to why human rights law was important in order to realise economic and social rights. First, the approach was based on states' obligations, whereas targets are only political pledges and could therefore change with governments.

8. Second, it created immediate and continuous obligations, for example, the right to education could not be postponed until tomorrow, it had to be realised today. She noted that the law was symmetrical and that duties corresponded to rights. Taxation was key to ensuring that services were funded. This model had worked well in Scandinavia.

9. Third, it also highlighted both freedoms and responsibilities. The bar should be set low enough so that expectations concerning economic and social rights could be met. This would not lead to government by judges or lawyers, who were certainly not skilled in preparing budgets or developing economic policies, but who could review if a policy was in compliance with the Constitution. She gave the example of the European Stability Pact and the role that courts would play in adjudicating on governments' lack of implementation on limits of the size of the fiscal deficit. The most important role played by human rights were in holding governments to account, both domestically and internationally.

10. John Mackinnon, an economist currently writing a book on moral philosophy, began by highlighting how, conceptually, human rights added to the approach adopted by economists (whether they used a utilitarian or capabilities model). Economists assumed that people had a set of preferences and aimed to expand their choices. Human rights could: rephrase this using a different language; be seen as limits on state power; be seen as a condition of choice; and refer to a range of decisions that people could take. At a theoretical level, these different views of rights could conflict.

11. However, even if the conceptual contribution of human rights was rejected, a case could also be made as to their practical value. They could be seen as: moral entitlements, international commitments; and national political/legal commitments.

12. He felt that the legal value of rights should not be over-stated in the low income contexts where he had worked. Legal systems were overstressed and there were no mechanisms to translate the law on the books into real obligations.

13. In addition, a key issue for economists was clarity regarding who benefited from rights. Some rights, for example freedom of speech, could be seen as important not just for an individual but for the whole community.

14. Mackinnon then turned to examining different types of rights and how they applied to poverty reduction strategies. These included: (i) negative rights such as civil and political rights; (ii) extended negative rights that describe what should not be done, for example domestic violence; (iii) positive rights, such as health and education; (iv) positive participatory rights, such as political participation; and (v) property rights, including both procedural (right to inherit) and substantive (whether one can actually possess what one is entitled to) aspects.

15. There were a number of issues associated with traditional negative rights in relation to poverty reduction. Such issues included, inter alia, the problems associated with balancing the rights of victims and prisoners in the context of binding resource constraints in Rwanda, or the limits to the ability of military action to deliver improvements to the situation of poor people in Northern Uganda, despite conflict being the the biggest cause of poverty.

16. Positive rights to services created a problem. Should they be seen as rights to services or to outcomes? It was easier to deliver services but outcomes were more important. A key challenge was how to prioritise these rights. This could not be done through a human rights-based approach alone and a cost-benefit analysis would help to quantify the trade-offs. He also noted how some rights linked to agricultural technology had been underplayed and had led to massive under-investments in this sector in Africa.

17. Finally, Mackinnon discussed some of the challenges associated with property rights. Modern property rights had to be located in the historical and cultural context of societies, such as the particular landownership frameworks in Buganda. Both human rights lawyers and economists could argue in favour of a radical distribution of assets to tackle poverty. Consideration should be given to a minimum level of wealth as an implementable guaranteed right.

18. The discussion was wide-ranging. Conceptually, the distinction between negative and positive rights was challenged. Negative rights also required resources and structures to protect from abuses of state power. The distinction was, however, useful at a practical level: negative rights (e.g. the need for legal systems) might get forgotten when poverty reduction strategies were prepared as these focused on positive rights (e.g. health and education). The value of 'progressive realisation' of economic and social rights was stressed: primary education and primary healthcare had to be the first priority. A great deal could be learnt from Latin America. It was claimed that children's rights also took precedence. Neo-classical economics did not prevent arguments in favour of redistribution of assets, but in practice this depended on what was politically feasible. When pushing for egalitarian solutions, it was important to be sensitive to the cultural context and traditional definition of property rights.

19. Some comments were made regarding aid agencies. They had tended to take women out of the human rights agenda by focusing on gender. This was not appropriate: women faced multiple forms of deprivation, and gender was not a term that could be translated adequately beyond US and UN English! A confrontational style was needed to hold the World Bank to account as it had limited governments' ability to take decisions and more countries were now charging for primary education. Aid agencies, such as DFID, could be persuaded to see opportunities associated with the enforcement of legal rights. Some rights were clearly being internationalised: there was a tension between developing aid packages best suited for countries and increasing funds to address HIV/AIDS and other global priorities. The increase in aid flows might not have adverse macro-economic impacts as some feared, but it might be more cost effective to address the preventable deaths from malaria rather than costly curative treatment for HIV/AIDS.

20. There were a number of issues regarding the best mechanisms for implementation. The importance of public information was stressed, and there was concern about the lack of national participation in high-level processes, such as the Commission for Africa or poverty reduction strategies. Some poverty reduction strategies were taken seriously by governments, though they failed to address international issues, as well as constitutional or international standards, because they were produced by Ministries of Finance. Accountability structures to protect dignity and due process included anti-corruption prosecutions to hold senior politicians responsible and the use of law rather than political revenge. For economists, targets were a useful way of improving performance in the public sector and focusing on priorities. Charging for basic services could also enhance clients' ability to hold providers to account.

21. A question was raised regarding the reform of the UN human rights mechanisms. As a product of a particular point in time, the UN covenants perhaps needed amending, for example, some Soviet-inspired elements should be removed. The treaty monitoring bodies should also be strengthened. The priority, however, should be building national level enforcement mechanisms.

Laure-Hélène Piron
January 2005

Description

This session examined how best to enforce economic and social rights to achieve poverty reduction. Are legal enforcement strategies, in particular with regards to the rights to health and education, effective? Is the law sufficiently developed to provide development professionals with clear guidance? Is there evidence that non-legal strategies are more effective?