Human Rights - The Next Step

by Eyal Press

The Nation magazine, December 25,2000

This past Labor Day, Human Rights Watch published a report on the "culture of impunity" that reigns in a realm not normally associated with human rights abuses-the American workplace. Each year, the report shows, more than 20,000 US workers are fired or subjected to other reprisals for attempting to organize a union. As Human Rights Watch notes, the pattern not only makes a mockery of US labor law, it violates the basic right to freedom of association that is affirmed in numerous international conventions, including the Universal Declaration of Human Rights, adopted by the UN fifty-two years ago this month, which recognizes that "everyone has the right to form and to join trade unions."

The Human Rights Watch report is part of a growing effort to broaden the agenda of the human rights movement. In recent years both Amnesty International and Human Rights Watch, which for decades focused exclusively on political and civil rights, have begun to address issues like child labor, gender discrimination and the impact of globalization in their reports. New groups like the Center for Economic and Social Rights (CESR), launched in 1993 by three Harvard graduate students, have emerged to advocate recognition of an array of economic and social rights that are affirmed in the Universal Declaration yet have long been relegated to second-class status.

At a time of rising inequality and growing concern about the consequences of unregulated global capitalism, making the right to education, shelter and other basic necessities coequal with civil and political rights is not only long overdue; it may also be the only way for the human rights movement to recapture the power and urgency that faded somewhat after the end of the cold war. In much of the world, after all, the struggle for access to basic necessities like education and medical care has become every bit as urgent as the struggle for free speech or fair trials. Despite claims that social and economic progress flows inevitably from the adoption of the rule of law (the guiding premise of the Clinton Administration), over the past three decades the gap between the world's rich and poor has doubled, even as dictatorships have collapsed and formal democracy spread. A billion adults, the majority women, cannot read or write; an estimated 35,000 children die of malnutrition and preventable disease every day.

But while incorporating social and economic rights into the human rights agenda holds great promise, it also raises new challenges. It requires, for one thing, that human rights organizations develop credible standards and legal precedents for measuring such rights-standards that recognize that states often lack the resources to implement these rights immediately but that nevertheless obligate governments to make them a priority. It means holding not only governments but private actors-including corporations-accountable for violations. Above all, perhaps, it necessitates challenging the view, still dominant among Western policy-makers, that issues like education, food and housing have no place in the traditional pantheon of rights.

The relegation of economic and social rights to secondary status began early in the cold war. As Michael Ignatieff noted recently in The New York Review of Books, beginning in 1948 "there were two human rights cultures in the world-socialist and capitalist-one giving primacy to social and economic rights, the other putting civil and political rights first." While Soviet leaders dismissed free speech as a bourgeois luxury, Western policy-makers held that recognizing economic and social rights played into the hands of Moscow. Using this as its justification, the Reagan Administration ceased to catalogue violations of social and economic rights in the State Department's annual human rights reports, reversing a practice begun under Jimmy Carter.

Although social and economic rights came to be associated with the Eastern bloc, their origin can in fact be traced to Enlightenment conceptions of basic human rights. As Stephen Marks, a professor at the Harvard School of Public Health, notes in a recent study of the French declarations of human rights of 1789 and 1793, "It is historically inaccurate to claim that those rights falling within today's category of economic, social and cultural rights were unknown to the Enlightenment and absent from the French declarations of the eighteenth century." Among the positive rights enumerated in these declarations were the right to education and the right to work or public assistance.

Nor do the economic and social rights that made their way into the Universal Declaration owe their existence to the Soviet Union, which in fact abstained from the final vote on the declaration. As Johannes Morsink notes in his recent book, The Universal Declaration of Human Rights: Origins, Drafting and Intent, the key provisions on social and economic rights actually originated in draft declarations submitted by various developing nations, including Chile, Panama, Cuba and the Philippines. Although these provisions prompted debate among the Western powers, they were widely accepted, in part because many of the Western delegates (including Eleanor Roosevelt) were deeply influenced not only by World War II and the Holocaust but by the Great Depression. Part of the inspiration for the vision of rights enshrined in the Universal Declaration came, after all, from Franklin Roosevelt's 1944 State of the Union address, which called for a "second Bill of Rights" that would recognize, among other things, "the right to a useful and remunerative job," "the right to earn enough to provide adequate food and clothing," "the right to adequate medical care" and "the right to adequate protection against the economic fears of old age, sickness, accident, and unemployment."

"True individual freedom," Roosevelt declared, "cannot exist without economic security and independence. 'Necessitous men are not freemen.' " Today there is a growing recognition that, as Roosevelt's words imply, the two sets of rights are not mutually exclusive but interrelated. People who are desperately poor or illiterate frequently cannot exercise their civil and political rights. By the same token, the absence of political freedom in countries like Indonesia and China has paved the way for gross economic abuse. Recognizing such linkages, the philosopher Martha Nussbaum and the economist Amartya Sen have advocated a "capabilities approach" to human rights that specifies the basic material resources individuals need to realize their rights and full potential, or capabilities, as human beings.

"If you want to think about how women will have a right to bodily integrity," explains Nussbaum, "you have to think about the material side of life as well as legal rights. Why can't a woman leave an abusive marriage? Very often it's because she lacks property rights, and therefore can't get a loan. These issues are interrelated."

The United States, however, has never ratified the International Convention on Economic, Social and Cultural Rights, the UN treaty adopted in 1966 that obliges states to honor economic and social rights, and Washington has persistently tried to prevent recognition of these rights in subsequent conventions. In 1996, at the Habitat II UN conference in Istanbul, for example, the US delegation attempted to eliminate every reference to a right to housing from drafts of an international declaration, an effort that failed only because representatives from all other nations rallied against the US position. At the World Food Summit in Rome a few months later, Melinda Kimble, head of the US delegation, led a charge against recognition of the right to food, objecting that such a standard could make America's welfare reform a violation of international law.

The prevailing view in the US foreign policy establishment and among some prominent human rights advocates has been that issues like housing, jobs and healthcare involve questions of governmental policy, not principle, and cannot realistically be guaranteed as universal rights, particularly in poor countries with limited resources. Civil and political rights are negative liberties, the argument runs, requiring governments not to interfere actively in citizens' lives, while economic and social rights impose positive obligations on states-obligations that cost money to enforce. Northwestern University law professor Anthony D'Amato, objecting to the idea of a universal right to housing, asks, "If the houses are to be 'affordable,' and if a billion of them are to be constructed immediately around the world, then who is going to furnish the raw materials-the wood, the metal, the glass?"

In fact, however, the Universal Declaration of Human Rights recognizes, in Article 22, that when it comes to enforcing economic and social rights, "the organization and resources of each State" must be taken into account. In a poorer country such as Bangladesh, advocates of a right to housing might focus on encouraging equitable land distribution, halting discriminatory lending practices and preventing mass evictions-all relatively inexpensive reforms that could improve millions of lives. In a wealthy country like the United States, the expectations would rightly be higher.

Taking a country's available resources into account does not, however, mean that no uniform standards can be developed for such rights. In the past year the UN Committee on Economic, Social and Cultural Rights has issued a series of "General Comments" outlining the minimal obligations that all states are expected to fulfill. With regard to education, the committee calls on all governments to provide "a detailed plan of action for the progressive implementation" of "compulsory primary education free of charge for all," noting that if a state lacks resources to furnish this basic human need, "the international community has a clear obligation to assist." Sage Russell, a senior program associate at the American Association for the Advancement of Science, says that the AAAS and a number of international NGOs, including the Institute for Food and Development Policy in Oakland and the Commonwealth Medical Association in London, have been working to develop resources to monitor violations of the right to food, housing and other economic and social rights.

It is true that calling on states to make such goods more widely available to citizens does require governments to spend money. But the same holds for civil and political rights. As Stephen Holmes and Cass Sunstein argue in their important study The Cost of Rights, it is a myth that civil and political rights come at no financial cost to taxpayers and states. "All rights are costly," Holmes and Sunstein contend, because all "presuppose taxpayer funding of effective supervisory machinery for monitoring and enforcement." Freedom from arbitrary arrest, for example, a classic "negative liberty," requires extensive positive action by the state, which must train police officers, fund monitoring agencies and maintain an independent judiciary. (The cost of providing clean drinking water and vaccines to the world's poorest children is comparatively modest.) Conducting free and fair elections, the quintessential political right, requires staffing of voter booths, monitoring of fraud and distribution of ballots. "Our freedom from government interference is no less budget-dependent than our entitlement to public assistance," Holmes and Sunstein conclude.

Ultimately, which rights are enforced-or not enforced-comes down to a question of priorities. And, of course, to international law. If economic and social rights are to achieve parity with civil and political rights, more cases must be brought before courts to establish legal precedents for their enforcement. Richard Wilson, a law professor at American University and director of the school's International Human Rights Law Clinic, says this is beginning to happen. "The European Social Charter recently added an optional protocol that allows certain social and economic rights to be litigated," he points out. In addition, many countries in Eastern Europe, and some in the developing world, like South Africa and India, actually recognize social and economic rights in their constitutions. In October South Africa's Constitutional Court ruled that the state "failed to make reasonable provision within its available resources" to provide housing for a group of squatters who had been evicted from their land.

While courts may differ in how to interpret these rights, the same is true of civil and political freedoms. "I'm very skeptical of the notion that these rights are too fuzzy" to ground in legal precedent, says Nussbaum. "Freedom of speech is also fuzzy, until over the years it gets increasingly refined and specified by judicial interpretation. When Eugene Debs went to jail [on sedition charges during World War 1], it was not yet established that freedom of speech encompasses the right to criticize one's country during wartime. Our understanding gets more refined over time, and I'm confident the same thing could happen with social and economic rights."

Still, real difficulties remain in pursuing legal remedies to violations of social and economic rights, in part because in many countries, including the United States, judges have held that issues such as healthcare and housing should be left to voters and their elected officials, not the courts. Given this, human rights organizations campaigning for change will need to rally support among ordinary citizens and grassroots groups, not just lawyers and elites. Roger Normand, one of the founders of the Center for Economic and Social Rights, explains, "If you're going to take economic and social rights seriously, you need to work with grassroots organizations that are calling for a redistribution of resources-indigenous groups, groups representing people who lack access to food, clothing, housing, education."

Too often in the past, Normand contends, human rights advocates have concentrated on influencing elites rather than building alliances with grassroots organizations that could help spearhead a movement. Normand questions whether the mainstream human rights organizations, which rely on foundations and, increasingly, on corporations for funding and support, are really willing to alter their orientation and place issues such as poverty and inequality at the forefront of their agendas.

Yet, as already mentioned, Amnesty International and Human Rights Watch have begun to incorporate social and economic rights into their campaigns. In its 1998 annual report, published on the fiftieth anniversary of the Universal Declaration, Amnesty acknowledged its past neglect of economic and social rights and vowed to draw more attention in the future to women's rights, the impact of globalization and the role of business and economic institutions in perpetuating human rights abuses. In 1993 Human Rights Watch began to investigate and monitor economic and social rights. The group has launched a project tracking the role of corporations in human rights abuses, and it has published recent reports on famine in Sudan, the trafficking of women in Asia and abuses in Mexico's maquiladora factories.

How far this commitment will go remains to be seen. "Even though the major international human rights groups accept the interdependence of economic rights and political rights," says Reed Brody, advocacy director of Human Rights Watch, "until we develop a methodology to report on government violations of economic rights, we risk reinforcing the attitude that these rights have second-class status. If we are serious about the violation of human dignity represented by issues like preventable disease, homelessness and poverty, we need to hold states accountable for these abuses just as we do for torture and murder."

It may be that the challenge of doing so falls to a new set of players. "The real push on economic and social rights is coming from a new generation of NGOs," says Larry Cox, senior program officer for international human rights at the Ford Foundation. "Many of these groups have a more grassroots orientation, and many are in developing countries, where it's simply unthinkable to separate civil and political rights from questions of economic and social justice." In recent years, notes Cox, countless groups have launched projects throughout the developing world on issues such as poverty, indigenous rights, gender equality and access to education.

Taking these issues seriously doesn't mean focusing exclusively on Africa or Asia. Some activists are beginning to draw attention to violations of economic and social rights in the United States. In 1999, Representative John Conyers and other members of the Congressional Progressive Caucus, along with Food First and the Institute for Policy Studies, launched an Economic Human Rights Bus Tour, which traveled across the country to highlight issues of poverty, substandard housing conditions and racial discrimination. At about the same time, the Kensington Welfare Rights Union (KWRU), a group based in Philadelphia that is made up largely of low-wage families, homeless workers and people on public assistance, organized a month-long march for economic human rights from Washington, DC, to the UN in New York City. "Seventy percent of the people in our community live below the poverty line," says Cheri Honkala of KWRU. The KWRU, with support from the Center for Constitutional Rights and the Urban Justice Center, submitted a petition before the Inter-American Commission on Human Rights charging that draconian provisions in the welfare reform law have led to human rights violations.

In the past, people like Honkala were not considered part of the human rights movement. In the future, they may be among its leaders.

Eyal Press is a New York-based journalist.

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