JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(15) Human Rights

  HR

'Human rights begin with breakfast': this quip from the former President of Senegal, Leopold Senghor, prompts many to react in alarm. Some see this assertion as part of an argument that certain rights, such as the right to food, need to be properly secured before one can turn to the luxury of the right to vote or to the privilege of freedom of expression. Indeed, many subscribe to a so-called 'full belly thesis', according to which subsistence rights to food and water have to be secured before turning to civil and political rights relating to political participation, arbitrary detention, freedom of expression, or privacy. Such argumentation is not as prevalent as it used to be (at least in government circles). Today all governments accept (most of the time) that there should be no prioritisation among different types of rights. Different types of rights are seen to be mutually reinforcing: better nutrition, health and education will lead to improvements in political freedoms and the rule of law; similarly, freedom of expression and association can ensure that the best decisions are taken to protect rights to food, health, and work. Despite the logic of such a desire to secure 'all rights for all people', traditional assumptions about what constitute 'proper' human rights still persist. One does not have to look very far to find voices claiming that the rights we are discussing in these texts are not really human rights. Such an approach probably conceals a sense that such rights get in the way of rational choice and economic efficiency. Alternatively, those who wish to confine human rights to issues such as torture and freedom of expression may have simply underestimated how much we now care about poverty and disease, not only when it affects us - but also when it affects other people.

The traditional narrow reading of human rights is, today, rarely explicitly defended in international relations. The expression 'human rights' covers not only civil and political rights such as freedom from torture, slavery, and arbitrary detention, but also economic, social, and cultural rights. In the words of the Universal Declaration: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

International disagreement now concerns, first, the appropriate mechanisms for the enforcement of such rights, and second, the exact scope of these rights. Before turning to the interpretation of the scope of these rights, let us consider the perceived problem of enforcement.

The main concern is that economic and social policy is best determined by policy makers who are democratically accountable, and not by unelected judges with no specialised knowledge of how to prioritise the distribution of limited resources. In a context such as health, it is clear that health authorities and hospitals may have to deny some people treatment when this represents an unreasonable strain on limited resources. Those who support increasing the judicial enforcement of economic, social, and cultural rights point out that protecting civil and political rights also involves deciding questions with resource implications: the provision of humane conditions for detainees has resource implications; establishing the pre-conditions for truly free and fair elections likewise costs money. But there remains a tension regarding the appropriateness of economic and social rights for judicial enforcement. The result is that in those instances when courts have adjudicated economic, social, and cultural rights, judges have been careful not to impinge overly on the roles of the legislature and executive. For example, the judiciary in South Africa has reminded the Government of its duty to justify restrictions on access to health care, and demanded that the Government develops policies to ensure housing for the most marginalised. As with civil and political rights, the judiciary may remind governments that they have duties to ensure that legislation is introduced to ensure that rights can be enjoyed and protected under an effective legal system. Let us now look at some economic and social rights in a little more detail.

 

The Economist, 18 August 2001, 'Righting Wrongs'

 

Designating a good as a universal human right means that reasonable people believe that under no jurisdiction, and under no circumstances, may that good be justly denied to anybody. Although freedom from torture certainly now falls into this category - arguably due to the efforts of groups like Amnesty -goods such as food and a decent home do not.

Governments may intentionally torture their citizens; they do not usually intentionally inflict on them poverty and ill-health. The moral imperative to stop poverty or disease is therefore not as convincing as the moral imperative to stop torture.

 

Food

The existence of the right to food does not mean that the government has to provide free food for all. The right to food is shorthand for a more complex set of obligations relating to 'food security' which involves ensuring access to food and planning for shortages and distribution problems. We can start with the immediate obligations. First, the government should avoid undermining food security and should plan for the needs of the population. In particular, there should be no violation of the right to food through the unjustified destruction of crops or evictions from land. Furthermore, there must be no discrimination with regard to access to food. These immediate obligations can be seen as part of a duty to respect the right to food. The second level of obligation concerns the duty to protect the right to food. Here we find obligations to protect individuals from interference with their right to food from other actors. So, for example, the state may have a duty to regulate with regard to food safety. In some contexts, this may require the state to guarantee that title to land is ensured to those who have a close cultural link to the land - such as indigenous peoples.

The third level is variously expressed as an obligation to fulfil, assist, facilitate, or provide. This means, on the one hand, strengthening access to food by ensuring that people have the resources for food security through stimulating employment, engaging in land reform, and developing transport and storage facilities. On the other hand, the state may have to provide food or social security to fulfill basic needs in the situations referred to in the Universal Declaration (cited above) in which the individual is subject to 'unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control'.

These international obligations have been developed in tandem with constitutional rights in some countries. Significant progress has been made through national civil society appeals to the right to food in public interest litigation before the Indian Supreme Court. Kamayani Bali Mahabal from the Centre for Enquiry into Health and Allied Themes (CEHAT, the acronym, is Hindi for health) explains: The Right to Food Campaign (the Campaign) operates on the premise that everyone has a fundamental right to be free from hunger and under-nutrition. Realising this right requires not only equitable and sustainable food systems, but also a guarantee of livelihood security such as the right to work, land and social security. The Campaign pursues its goals through a wide range of activities, including initiating public hearings, action-orientated research, and media advocacy and lobbying, as well as participating in public interest litigation on the right to food. In relation to the latter activity, the Campaign has a small 'legal support group' which handles Supreme Court hearings... Also, the 'mid-day meal movement' has continued to grow. According to official data, 50 million children now get a free school lunch, with another 50 million or so in the queue.

In recent years, considerable focus has been placed on the 'right to water' as water has come to be regarded as a part of a globalised services market. Often subsumed under the right to food, the right to water is increasingly raised in the context of privatisation of public utilities, and in particular with regard to multinational companies which have been accused of pricing parts of the population out of the market, resulting in a denial of the right to water.

 

J. Shultz, 'Bringing It All Back Home'

 

 

No example illustrates the enduring power of a good story better than Cochabamba, Bolivia's public revolt against privatisation of its water system. Here the evils of economic globalisation, and the valiant fight against them were played out in living colour. The World Bank used all the powers at its disposal to pressure the Bolivian Government to lease off its water system to a transnational corporation and it did so, to a subsidiary of the powerful US-based, Bechtel Corporation. Within weeks Bechtel had doubled and tripled people's water rates, sending a mass movement of urban and rural water users into the streets. This culminated in a weeklong general strike, the forced departure of the corporation and the return of the water system to public hands. In December 2001 Bechtal announced it was suing the Bolivian government for $25 million for breaking the water contract. During the water wars, Tanya Paredes, a mother who supports her four children by knitting baby clothes, became an international symbol after it was reported that her 300-per-cent water bill increase totalled more than what it cost to feed her family for a week. Even people who have never heard of the World Bank and don't have feelings one way or another towards Bechtel could grasp in an instant that something about globalisation had gone horribly wrong.

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