The articles ‘Misunderstanding our mission,’ (by Aryeh Neier, founder of Human Rights Watch) and ‘Human rights: past their sell-by date,’ (by Stephen Hopgood) unfortunately mischaracterize and misunderstand both the nature and the power of the modern human rights movement. Both articles, while taking very different views of the human rights movement, seem to align perfectly with respect to putting forward views about human rights which are outdated and which perpetuate myths about human rights, myths which have been discredited within the international community for decades now.
The article by Aryeh Neier equates the whole of the human rights framework with civil and political rights, setting forth a “series of limits on the exercise of [State] power” vis-à-vis, for example, freedom of expression, personal liberty and privacy. He goes on to say that social justice advocacy, focuses on “distribution, or redistribution of wealth and resources;” a mission which may get at the roots of poverty but which he sees as falling outside of the scope of human rights.
We now have an overwhelming body of evidence that refutes this archaic and culturally biased notion of human rights, evidenced by successful legal enforcement of economic, social and cultural rights at the international, regional and national levels and such rights increasingly given Constitutional protection.
To be more specific, Neier’s outdated notion of human rights has at least two problems with it. First, it draws an artificial line and pits civil and political rights (rights like freedom of expression, the right to life, and the right to a fair trial) against economic, social and cultural rights (rights like the right to the highest attainable standard of health, the right to adequate housing, and the right to water). In Aryeh Neier’s view, one is either a human rights advocate, or a social justice advocate, but not both. Second, it perpetuates the myth that civil and political rights are only about negative obligations (obligations which require the State to refrain from action, say, torture), while economic, social and cultural rights have only positive obligations (obligating the State to take action, say, to provide housing). In reality, both sets of rights entail both negative and positive obligations. For instance, the right to a fair trial would be meaningless without corresponding State expenditure to make the justice system functional and effective, and the right to water would be meaningless if States were allowed to cut off a community's water supply.
At times like this it’s important to recall that it was over 60 years ago now that the Universal Declaration of Human Rights was adopted, enshrining civil, cultural, economic, political and social rights as a comprehensive whole and side-by-side. 20 years ago, through the Vienna Declaration and Programme of Action, the international community reaffirmed that “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” And, just last month, at Vienna +20, representatives of the global community once again reiterated “the importance of affording the same standard of protection to economic, social and cultural rights and to civil and political rights.”
In reality, the interconnection and interdependence of all human rights is readily apparent. For example, one cannot effectively realize the right to participate in government without also effectively realizing the right to food or the right to education. Similarly, the right to adequate housing is compromised if the right to equality before the law is not ensured. One set of rights cannot be protected at the expense or ignorance of the others. The fact that close to one billion persons live without adequate housing, that over one billion persons lack access to clean water, that over 840 million persons are chronically hungry, and that there are more than 215 million child laborers throughout the world illustrates the human rights impact of economic, social, and cultural rights violations. These are human rights issues and no human right can be seen as superfluous or unnecessary.
Stephen Hopgood, in his essay, correctly critiques these kinds of ideas as alienating and culturally biased. But, he gets it wrong when he says that we live at the endtimes for universal human rights. In fact, we are no where near the end.
As human rights advocates know, with human rights come obligations, and when those rights and obligations are violated, the victims are due remedies and the perpetrators should be held accountable. This basic equation is part of the power of human rights and is one of the key strengths of the human rights framework as a means to achieve social justice. While economic, social and cultural rights are enshrined in the most foundational human rights documents, this antiquated notion that such rights are not really rights apparently is still alive and well for some. In fact, in apparent defiance of the principles of interdependence and universality, some detractors continue to propagate the myth that economic, social and cultural rights are merely aspirational and are somehow not legally enforceable – in other words, not justiciable.
But a closer look at the reality shatters that myth. As mentioned above, economic, social and cultural rights have been not only successfully adjudicated in domestic courts in countries in all parts of the world, they are part of many national Constitutions. They are addressed as a matter of course in all the major regional human rights tribunals. And UN judicial and quasi-judicial mechanisms such as the Human Rights Committee – which monitors the International Covenant on Civil and Political Rights – have taken on issues such as water and housing because the concept of ‘interdependent and interrelated’ is not just theoretical – there is no meaningful right to life without access to clean water, and there is no meaningful right to freedom from cruel and degrading treatment if one is forcibly evicted from one's home.
The Human Rights Committee is also clear that civil and political rights also entail positive obligations, meaning that countries must not just refrain from certain actions, but must undertake certain actions to achieve certain results. The body of jurisprudence which has been built over the past decade in this area is no longer an idea subject to debate; it is a reality. These judicial advancements have built a solid foundation upon which economic, social and cultural rights judicial advocacy can be successfully undertaken, and upon which persons and communities can rely in order to enforce (all of) their human rights. And, these advancements demonstrate that the human rights framework and human rights advocacy, including social movements using this framework in their advocacy, can move us all closer to social justice.
To cite just one example, only a few years ago, in South Africa hundreds of poor families were to be forcibly evicted from their homes to make way for upscale urban development in Johannesburg. While their housing was poor, and considered uninhabitable even by them, these families were to be forcibly displaced to the periphery of the city and thereby cut off from access to schools, health care facilities and livelihood opportunities. Using the human rights framework, however, these families and their allies in the NGO sector ultimately held powerful authorities accountable to human rights standards, including the right to adequate housing. At the end of the day, in 2008, the Constitutional Court of South Africa enforced their right to have human rights standards respected, protected and fulfilled, including not only the right to adequate housing, but also to benefit from development schemes and to participate meaningfully in all relevant decisions. In other words, human rights did what they were designed to do – to equalize power dynamics between poor families facing forced eviction and governmental authorities, so that the families could be the architects of their own solutions. Today, these families are living in improved housing near the same schools, health care facilities and the livelihood opportunities they came very near to losing. Participation, equality, inclusion and prioritization of the most marginalized are core human rights concepts.
This is what the future holds, and while there are many actors working in solidarity, and while it is healthy in any movement to have different points of view, there is still one human rights movement. We aren’t going anywhere. Without the human rights framework, these tools – rights with corresponding obligations set out in clearly articulated standards, accountability and remedies – would not be available to social justice movements of all kinds, in all parts of the world. The truth is that we need human rights now more than ever. While human rights advocates may not be able to take up the full spectrum of rights in all of our advocacy work, we must recognize and champion that spectrum, and the interrelatedness of rights.