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Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization

Authors:
  • Human Rights Watch

Abstract

International organizations like Human Rights Watch are legitimately urged to pay more attention to economic, social and cultural rights. But practical prescriptions are often simplistic—typically involving only the rhetorical invocation of these rights. The strength of organizations like Human Rights Watch is not their rhetorical voice but their shaming methodology—their ability to investigate misconduct and expose it to public opprobrium. That methodology is most effective when there is relative clarity about violation, violator, and remedy. That clarity is best achieved when misconduct can be portrayed as arbitrary or discriminatory rather than a matter of purely distributive justice.
Defending Economic, Social and Cultural Rights:
Practical Issues Faced by an International
Human Rights Organization
Kenneth Roth*
Abstract
International organizations like Human Rights Watch are
legitimately urged to pay more attention to economic, social and
cultural rights. But practical prescriptions are often
simplistic--typically involving only the rhetorical invocation
of these rights. The strength of organizations like Human Rights
Watch is not their rhetorical voice but their shaming
methodology--their ability to investigate misconduct and expose
it to public opprobrium. That methodology is most effective when
there is relative clarity about violation, violator, and remedy.
That clarity is best achieved when misconduct can be portrayed
as arbitrary or discriminatory rather than a matter of purely
distributive justice.
Over the last decade, many have urged international human rights
organizations to pay more attention to economic, social and
cultural (ESC) rights. I agree with this prescription, and for
several years Human Rights Watch has been doing significant work
in this realm.1 However, many who urge international groups to
take on ESC rights have a fairly simplistic sense of how this is
done. Human Rights Watch’s experience has led me to believe that
there are certain types of ESC rights issues for which our
methodology works well and others for which it does not.
Understanding this distinction is key, in my view, if an
international human rights organization such as Human Rights
Watch is to address ESC rights effectively. Other approaches may
work for other types of human rights groups, but organizations
such as Human Rights Watch that rely foremost on shaming to
generate public pressure in defense of rights should remain
attentive to this distinction.
During the Cold War, ESC rights tended to be debated in
ideological terms. This was not only a matter of the West
stressing civil and political rights while the Soviet bloc (in
principle if not in practice) stressed ESC rights. Many in the
West went so far as to deny the very legitimacy of ESC issues as
rights. Aryeh Neier, the former head of Human Rights Watch and
now the president of the Open Society Institute, is perhaps the
leading proponent of this view--most recently in his memoirs,
Taking Liberties.2 Certainly interesting philosophical debates
can be had about whether the concept of human rights should
embrace positive as well as negative rights.3 But since consensus
in such debates is probably unattainable, the international
human rights movement, in my view, has no choice but to rest on
a positive-law justification for its work. That is, unless there
are compelling reasons to deviate from human rights law, we must
defend it largely as written if we are to retain legitimacy and
effectiveness. That law, of course, codifies civil and political
as well as ESC rights.4
That said, I must admit to finding the typical discussion
of ESC rights rather sterile. I have been to countless
conferences and debates in which international human rights
organizations are advised to do more to protect ESC rights.
Fair enough. Usually, though, the advice reduces to little more
than sloganeering. People lack medical care; therefore, we
should say that their right to health has been violated. People
lack shelter; therefore, we should say that their right to
housing has been violated. People are hungry; therefore, we
should say that their right to food has been violated.
Such “analysis,” of course, wholly ignores such key
questions as: who is responsible for the impoverished state of a
population, is the government in question taking steps to
progressively realize the relevant rights on the basis of
available resources, and what should the remedy be for any
violation that is found. More to the point, for the purposes of
this chapter, it also ignores the question of which issues can
and cannot effectively be taken up by international human rights
organizations that rely on shaming to generate public pressure.
That is, for which kinds of ESC rights violations is the shaming
methodology best suited for generating pressure on relevant
actors to curb violations?
There are obviously various ways to promote ESC rights. One
is simply to mobilize people to insist on respect for these
rights. The language of rights can be a powerful organizing
tool. But given that respect for ESC rights often requires the
reallocation of resources, the people who have the clearest
standing to insist on a particular allocation are usually the
residents of the country in question. Outsiders such as
international human rights organizations are certainly free to
have a say in such matters, but when in all but the richest
countries the fulfillment of one ESC right is often at the
expense of another, outsiders’ insistence on a particular
tradeoff has less legitimacy than that of the country’s
residents. Why should outsiders be listened to when they
counsel, for example, that less be spent on health care and more
on education--or even that less be spent on roads, bridges or
other infrastructure deemed important for long-term economic
development, and more on immediate needs?
I am aware that similar tradeoffs of scarce resources can
arise in the realm of civil and political rights. Building
prisons or creating a judicial system can be expensive. However,
my experience has been that international human rights
organizations implicitly recognize these tradeoffs by avoiding
recommendations that are excessively costly. For example, Human
Rights Watch in its work on prison conditions routinely avoids
recommending large infrastructure investments. Instead, we focus
on improvements in the treatment of prisoners that would involve
relatively inexpensive policy changes.5 Similarly, our advocacy
of due process in places such as Rwanda with weak and
impoverished judicial systems implicitly takes account of the
practical limitations facing the country, leading us to be more
tolerant of prosecutorial compromises such as gacaca courts than
we would be in a richer country.6
A second way to promote ESC rights is through litigation--
or, of greater relevance to most countries, by promoting the
legislation that would make it possible to enforce ESC rights in
court. It is clearly in the interest of those who believe in ESC
rights that these rights be codified in enforceable national
law. Many countries have such laws in various forms--be they
guarantees of a minimum level of income (minimum wage or
welfare), food, housing, or health care--but too many countries
do not. International human rights organizations might usefully
press governments to adopt the legislation--the statutory
rights--needed to make litigation a meaningful tool to enforce
ESC rights. But that procedural device still falls significantly
short of actual implementation. When it comes to deciding which
ESC rights should be implemented first, or which tradeoffs among
competing economic demands should be made, the advocacy of
legislation doesn’t give international human rights
organizations any greater standing to address the concrete
realization of ESC rights.
Similar shortcomings plague efforts by international human
rights organizations to press governments to adopt national
plans to progressively realize ESC rights on the basis of
available resources.7 Even though such plans would facilitate
enforcement through public shaming for failure to live up to the
plan, the international human rights movement is poorly placed
to insist on the specifics of the plan or the priorities or
strategies for implementing it.
Another way to promote ESC rights is by providing technical
assistance to governments. Many development organizations
perform this service, and presumably international human rights
organizations could as well. But as in the realm of civil and
political rights, technical assistance works only when
governments have the will to respect ESC rights but lack the
means or know-how to do so. Technical assistance thus is ill-
suited to address the most egregious cases of ESC rights abuse--
the area where, as in the civil and political rights realm,
international human rights organizations would presumably want
to focus. Indeed, the provision of technical assistance to a
government that lacks a good-faith desire to respect rights can
be counterproductive, by providing a facade of conscientious
striving that enables a government to deflect pressure to end
abusive practices.8
In my view, the most productive way to address ESC rights
for international human rights organizations like Human Rights
Watch that use a shaming methodology is by building on the power
of that methodology. The essence of that methodology, as I’ve
suggested, is not the ability to mobilize people in the streets,
to engage in litigation, to press for broad national plans, or
to provide technical assistance. Rather, the core of the
methodology is the ability to investigate, expose, and shame.
Groups like Human Rights Watch are at our most effective when we
can hold governmental (or, in some cases, nongovernmental)
conduct up to a disapproving public. Of course, we don’t have to
wait passively for public morality to coalesce around a
particular issue; we can do much to shape public views by
exposing sympathetic cases of injustice and suggesting a
compelling analysis for understanding them. But in the end, the
principal power of groups like Human Rights Watch is our ability
to hold official conduct up to scrutiny and generate public
outrage. The relevant public is best when it is a local one--
that is, the public of the country in question. But surrogate
publics can also be used if they have the power to shape the
policies of a government or institution with influence over the
officials in question, such as by conditioning international
assistance or trade benefits, imposing sanctions, or pursuing
prosecution.
Although there are various forms of public outrage, only
certain types are sufficiently targeted to shame officials into
action. That is, the public might be outraged about a state of
affairs--for example, poverty in a region--but have no idea whom
to blame. Or it might feel that blame is dispersed among a wide
variety of actors. Because in such cases of diffuse
responsibility there is little if any stigma attached to any
particular person, government, or institution, international
human rights organizations that use shaming largely lack power
to effect change. Similarly, stigma weakens even in the case of
a single violator if the remedy to a violation--what the
government should do to correct it--is unclear.
In my view, to shame a government effectively--to maximize
the power of international human rights organizations like Human
Rights Watch to embarrass a government to change its policy--
clarity is needed around three issues: violation, violator, and
remedy. That is, we must be able to show persuasively that a
particular state of affairs amounts to a violation of human
rights standards, that a particular violator is principally or
significantly responsible, and that there is a widely accepted
remedy for the violation. If any of these three elements is
missing, the capacity to shame is greatly diminished.
We tend to take these conditions for granted in the realm
of civil and political rights because they usually coincide. For
example, one can quibble about whether a particular form of
mistreatment rises to the level of torture, but once a
reasonable case is made that torture has occurred, it is fairly
easy to determine the violator (the torturer as well as the
governments or institutions that permit the torturer to operate
with impunity) and the remedy (clear directions to stop torture,
prosecution to back these up, and various prophylactic measures,
such as ending incommunicado detention).
In the realm of ESC rights, the three preconditions for
effective shaming tend to operate more independently. (For these
purposes, I exclude the right to form labor unions and bargain
collectively, since while codified in the International Covenant
on Economic, Social, and Cultural Rights (ICESCR), this right
functions more as a subset of the civil and political right to
freedom of association.) I accept, for the sake of this
argument, that indicia have been developed for subsistence
levels of food, housing, medical care, education, etc.9 When
steady progress is not being made toward realizing these levels
on the basis of available resources, one might presumptively say
that a “violation” has occurred.
But who is responsible for the violation, and what is the
remedy? These answers flow less directly from the mere
documentation of an ESC rights violation than they do in the
civil and political rights realm. For example, does
responsibility for a substandard public health system lie with
the government (say, through its corruption or mismanagement) or
with the international community (through its stinginess or
indifference), and if the latter, which part of the
international community? The answer is usually all of the above,
which naturally reduces the potential to stigmatize any single
actor.
Similar confusion surrounds discussions of appropriate
remedies. The vigorously contested views about “structural
adjustment” are illustrative. Is structural adjustment the cause
of poverty, through its forced slashing of public investment in
basic needs, or is it the solution, by laying the groundwork for
economic development? Supporting evidence can be found on both
sides of this debate. When the target of a shaming effort can
marshal respectable arguments in its defense, shaming usually
fails.
The lesson I draw from these observations is that when
international human rights organizations that use a shaming
methodology take on ESC rights, we should look for situations in
which there is relative clarity about violation, violator, and
remedy. That is not to say that other types of ESC abuses should
be ignored, simply that a division of labor makes sense, with
local or national groups using their special strengths to
address ESC rights violations for which the shaming methodology
of international human rights organizations is less suited.10
Broadly speaking, I would suggest that the nature of the
violation, violator, and remedy is clearest when it is possible
to identify arbitrary or discriminatory governmental conduct
that causes or substantially contributes to an ESC rights
violation. These three dimensions are less clear when the ESC
shortcoming is largely a problem of distributive justice. That
is, if all an international human rights organization can do is
argue that more money be spent to uphold an ESC right--that a
fixed economic pie be divided differently--our voice is
relatively weak. Of course, we can argue that money should be
diverted from less acute needs to the fulfillment of more
pressing ESC rights, but there is little reason for a government
to give our voice greater weight than domestic voices. On the
other hand, if we can show that the government (or other
relevant actor) is contributing to the ESC shortfall through
arbitrary or discriminatory conduct, we are in a relatively
powerful position to shame: we can show a violation (the rights
shortfall), the violator (the government or other actor, through
its arbitrary or discriminatory conduct), and the remedy
(reversing that conduct).
What does this mean in practice? To illustrate, let’s
assume that we could show that a government was building medical
clinics only in areas populated by ethnic groups that tended to
vote for it, leaving other ethnic groups with substandard
medical care. In such a case, an international human rights
organization would be in a good position to argue that the
disfavored ethnic groups’ right to health care is being denied.
This argument doesn’t necessarily increase the resources being
made available for health care, but it at least ensures a more
equitable distribution. Since defenders of ESC rights should be
concerned foremost with the worst-off segments of society, that
redistribution would be an advance.
To cite another example, imagine a government that refuses
to apply available resources for the benefit of its population’s
health. (South African President Thebo Mbeki’s long refusal to
allow donated nevirapine or AZT to be given to HIV-infected
mothers to prevent mother-to-child transmission of the disease
comes to mind.) A credible case can be made that such a
government is acting arbitrarily--that it is not making a
sincere effort to deploy available resources to progressively
realize the ESC rights of its people. Again, by investigating
and exposing this arbitrary conduct, an international human
rights organization would have all the elements it needs to
maximize the impact of its shaming methodology--a violation (the
ESC shortcoming), a violator (the government acting
arbitrarily), and the remedy (end the arbitrary conduct). Once
more, there is no need to argue for more money to be spent or
for a different allocation of available money (areas where there
is little special power to the voice of international rights
organizations), since in the case of arbitrary conduct the money
is available but is clearly being misspent.
To cite yet another example, Human Rights Watch
investigated conditions facing child farm workers in the United
States. Had we been forced to delve into details about the
appropriate maximum level of danger or pesticide exposure, or
the appropriate number of working hours per day, we would have
been in the amorphous realm of costs and benefits and thus
lacked the clarity needed for effective shaming. However, we
were able to show that child farm workers stand virtually alone
in being excluded from the laws regulating working conditions
for children in the United States. In making this revelation, we
were able to demonstrate that US laws governing child farm
workers were both arbitrary (the exception was written in an era
when the family farm was predominant; it has little relevance to
the agribusiness that typifies the field today) and
discriminatory (most of the parents of today’s farmworker
children are immigrants, politically an easy category to
ignore).11
Education has been a productive area for this approach as
well. For example, Human Rights Watch has been able to show that
governments’ failure to address violence against certain
students (girls in South Africa, gays and lesbians in the United
States) or bonded child labor (in India and Egypt)
discriminatorily deprives these disfavored children of their
right to education.12
If one accepts that international human rights
organizations that rely on shaming are at our most powerful in
the realm of ESC rights when we focus on discriminatory or
arbitrary conduct rather than matters of purely distributive
justice, that provides guidance for our ESC work. That is, an
important part of our work should be to shape public opinion
gradually so that it tends to see ESC rights issues not only in
terms of distributive justice but also in terms of
discriminatory or arbitrary conduct—or, to put it simply, as a
matter of policy rather than resources. For example,
governments’ failure to provide universal free primary education
would seem to be a classic case of distributive justice--there
isn’t enough money to go around, so governments can’t provide
education to all children. However, if one were to focus on the
practice of funding education through school fees, one might
argue that this is a discriminatory and arbitrary way of funding
education because it has the foreseeable effect of excluding
children from poor families. If this perspective can be
promoted, it would transform the debate from one on which
international human rights organizations have had little if any
impact to one in which our ability to stigmatize and hence shape
public policy on education would be much enhanced.
Human Rights Watch used a similar approach to highlight the
neglect of “AIDS orphans” in Kenya. The provision of care for
children without parents, while classically a state
responsibility, is frequently limited by scarce resources. In
Kenya, as in many African countries, the responsibility was
typically delegated to, and accepted by, the extended family.
However, given the devastation caused by the AIDS crisis,
extended families increasingly are unable to bear this burden,
leaving many of these orphans destitute. By demonstrating that
the classic state approach to the problem had become arbitrary
(because it is no longer working in light of the AIDS pandemic)
and discriminatory (because it falls on a group of people who
are already stigmatized, AIDS-affected families), Human Rights
Watch succeeded in generating significant pressure on the Kenyan
government (and international organizations) to recognize and
address the problem.13
Similar efforts might be made to address issues of
corruption. For example, if it can be shown that government
officials are pocketing scarce public resources, or wasting them
on self-aggrandizing projects, rather than meeting ESC needs,
international human rights organizations can use our shaming
capacity to enlarge the size of the economic pie available to
fulfill ESC rights, without entering into more detailed
discussions about how that pie should be divided to realize
those rights. A good illustration is a Human Rights Watch report
on Angola, in which we showed that the US$4 billion in state oil
revenue that disappeared from Angolan government coffers from
1997 to 2002 roughly equaled the entire sum that the government
spent on social programs during the same period – hardly a
conscientious effort to progressively realize ESC rights on the
basis of available resources.14
In making these observations, I recognize that there are
certain realms where international human rights organizations
might be able to take on distributive justice questions more
directly. If the issue is not how a foreign government divides a
limited economic pie, but how much money a Northern government
or an international financial institution spends on
international assistance for the realization of ESC rights,
Northern-based international human rights organizations speak
less as an outside voice and more as a domestic constituency.
But even then, given our relative weakness at mobilizing large
numbers of people at this stage in our evolution, pressure
simply to spend more, rather than stigmatization over arbitrary
or discriminatory spending, is less likely to resonate with
decision makers.
It has been suggested that international human rights
organizations might be in a stronger position to insist on more
spending for ESC rights if we were to devote more resources to
building large constituencies in the West.15 That is, of course,
true, but it begs the question of whether the tradeoffs involved
would be wise, since even a relatively large organization such
as Human Rights Watch has finite resources, so devoting more of
them to constituency building would mean having fewer resources
available for research and advocacy. It is far from clear that
the tradeoff would be worthwhile.16
Still, the range of ESC rights violations that can be
characterized as arbitrary or discriminatory and thus lend
themselves to a shaming methodology is considerable. The
following list of recent Human Rights Watch on ESC rights is
illustrative:
A report arguing that California’s arbitrary restrictions
on needle-exchange programs (facilitating the spread of
HIV) impedes the right to health.17 Ukraine was similarly
criticized for the detrimental effect on the right to
health (again, the spread of HIV) of its arbitrary
decision, contradicting international health standards, not
to allow the use of methadone as a heroin substitution
therapy.18
A report arguing that South Africa’s ideological (and hence
arbitrary) refusal to provide post-exposure prophylactic
drugs for victims of sexual violence impedes the right to
health.19
A report arguing that the arbitrary mistreatment of Russian
conscripts violates the right to food and the right to
health.20
A report contending that Indonesia’s discriminatory refusal
to apply its labor code to domestic workers deprives them
of basic labor rights.21
A report arguing that rules requiring convicts in the
United States to be evicted from public housing is an
arbitrary deprivation of the right to housing.22
A report arguing that Uganda’s inadequate measures to
address sexual and domestic violence, with resulting
exposure of the victims to HIV, violates the right to
health.23
A report arguing that gross governmental negligence in the
Chinese province of Hennan regarding the re-injection of
blood into farmers violates the right to health.24 Another
report challenged China’s arbitrary and discriminatory
harassment of AIDS activists as undermining the right to
health.25
A report arguing that gender discrimination in Ukraine
violates the right to work.26
A report contending that Argentina’s discriminatory and
arbitrary restrictions on access to contraception and
abortion threaten women’s right to health.27
A report arguing that abuses in India against sex workers,
men who have sex with men, injection drug users, and HIV
peer educators--a form of discrimination--violate the right
to health.28
A report arguing that gender discrimination in inheritance
laws in Kenya violates, among other things, the right to
housing.29
Several reports criticizing unjustified and arbitrary
impediments on children’s right to education.30
To conclude, let me offer a hypothesis about the conduct of
international human rights organizations working on ESC rights.
It has been clear for many years that the movement would like to
do more in the ESC rights realm. Yet despite repeated
professions of interest, its work in this area remains limited.
Part of the reason, of course, is expertise; the movement must
staff itself somewhat differently to document shortfalls in such
matters as health or housing than to record instances of torture
or political imprisonment. But much of the reason, I suspect, is
a sense of futility. International human rights activists see
how little impact they have in taking on matters of pure
distributive justice, so they have a hard time justifying
devoting scarce institutional resources for such limited ends.
However, if we focus our attention on ESC rights policy that can
fairly be characterized as arbitrary or discriminatory, our
impact will be substantially larger. And there is nothing like
success to breed emulation.
Thus, when outsiders ask international human rights
organizations such as Human Rights Watch to expand our work on
ESC rights, we should insist on a more sophisticated, and
realistic, conversation than has been typical so far. It is not
enough, we should point out, to document ESC shortcomings and to
declare a rights violation. Rather, we should ask our
interlocutors to help us identify ESC rights shortcomings in
which there is relative clarity about the nature of the
violation, violator, and remedy, so that our shaming methodology
will be most effective. As we succeed in broadening the number
of governmental actions that can be seen in this way, we will go
a long way toward enhancing the ESC work of the international
human rights movement--work that, we all realize, is important
in its own right and essential to our credibility.
Coincidentally, international development and humanitarian
organizations are increasingly adopting the view that poverty
and severe deprivation are less products of a lack of public
goods than of officially promoted or tolerated policies of
social exclusion. That insight meshes well with the approach I
have outlined for promoting ESC rights. A lack of public goods
tends to be a matter of distributive justice. But policies of
social exclusion, in ESC rights terms, tend to have behind them
a relatively clear violation, violator, and remedy. If
development and humanitarian organizations indeed move in this
direction, it portends useful partnerships with international
human rights organizations such as Human Rights Watch that rely
primarily on shaming methodologies.
Response to Critique of Neera Chandhoke
In her separate chapter in this book, Neera Chandhoke takes
issue with my conclusions. Her argument is largely a handful of
non-controversial assertions. The only controversy in the
chapter stems from Ms. Chandhoke’s misreading of Human Rights
Watch’s policy on ESC rights.
According to Ms. Chandhoke’s summary of her argument, her
chapter demonstrates that: 1.) economic and social rights cannot
be reduced to civil and political rights; 2.) economic and
social rights enable people to access goods that are necessary
for a worthwhile life; and 3.) it is possible to enforce
economic and social rights without asking for redistributive
justice. I wouldn’t challenge any of these points.
However, Ms. Chandhoke goes on to mischaracterize my
chapter and Human Rights Watch’s policy to suggest that we
disagree with these straightforward propositions. For example,
she states: “Roth suggests that international organizations
should concentrate on the defence of civil rights, and leave
economic and social rights to domestic human rights
organisations.” In fact, as a closer reading would have
demonstrated, my chapter is devoted to outlining the
circumstances in which the shaming methodology of an
international human rights organization such as Human Rights
Watch can defend economic and social rights – the opposite of
what Ms. Chandhoke asserts. I conclude that such interventions
on behalf of ESC rights could be done most effectively in
situations in which relevant governmental conduct is arbitrary
or discriminatory.
Ms. Chandhoke’s belief that Human Rights Watch focuses only
on civil and political rights seems to be based on old and
outdated information. It is true that Human Rights Watch’s
first director was opposed to enforcing ESC rights; indeed, my
chapter quotes him to that effect at the outset. But that has
not been Human Rights Watch’s position for the eleven years that
I have been the organization’s director. Human Rights Watch
began by opposing ESC rights violations that were closely
related to civil and political rights violations – a policy that
Ms. Candhoke quotes. Even then her assertion that Human Rights
Watch eschewed the enforcement of ESC rights is false; we simply
limited that enforcement to rights that were intimately related
to our separate civil and political rights work.
Moreover, even that old policy has been superseded, as
should have been obvious from my chapter. Human Rights Watch’s
current policy, as quoted above, is the following:
HRW Policy on Economic, Social, and Cultural Rights
Human Rights Watch considers that economic, social, and
cultural rights are an integral part of the body of
international human rights law, with the same character and
standing as civil and political rights. We conduct research
and advocacy on economic, social, and cultural rights using
the same methodology that we use with respect to civil and
political rights and subject to the same criteria, namely,
the ability to identify a rights violation, a violator, and
a remedy to address the violation.
This policy is prominently displayed on the ESC rights page of
the Human Rights Watch website: <http://www.hrw.org/esc/>.
Ms. Chandhoke is thus wrong when she says that Human Rights
Watch “continues to see social and economic rights as
supervening onto civil and political rights and as not standing
on their own,” or that “the organization sees a violation of
these [ESC] rights as worth investigating only if such a
violation results from or will lead to a violation of civil
rights” (emphasis in original). Those are accurate descriptions
of our old policy, but inaccurate when it comes to our current
policy. As a plain reading of our current policy makes clear,
the only constraint on Human Rights Watch’s work in the area of
ESC rights today is methodological. Our shaming methodology,
regardless of the right involved, requires relative clarity as
to violation, violator, and remedy. When these are clear, we
are able to act effectively; when they are not, our methodology
tends not to work because it is too easy for the target
government to deflect criticism rather than face opprobrium.
As noted, in the case of ESC rights, these methodological
requirements tend to be met when governmental conduct (or
omission) can be characterized as arbitrary or discriminatory.31
If we cannot show that governmental behavior is arbitrary or
discriminatory, and are left to argue simply that we would
prefer a different distribution of resources, we tend to be
ineffective. That is because, as an international organization
addressing governments that are not our own, we have no special
standing to contend, for example, that a government should be
spending more on health care and less on education or more on
roads to market and less on housing.32 These judgment calls do
not lend themselves to the clarity of violation and remedy that
are necessary for our shaming methodology to work. Because even
a large organization such as Human Rights Watch has limited
resources and moral capital, we try not to act in situations in
which we know we will be ineffective. Nor should we.
One apparent reason for Ms. Chandhoke’s misreading of Human
Rights Watch’s policy is that she looks only at the part
addressed to discriminatory government conduct and not at the
part concerning arbitrary conduct. Insistence on discriminatory
conduct alone could be dismissed as requiring a violation of
civil and political rights – discrimination. However, the
option of denouncing arbitrary conduct allows Human Rights Watch
to condemn a range of activities that have nothing to do with a
violation of civil or political rights but instead reflect
governmental conduct that lacks a conscientious effort to
progressively realize ESC rights on the basis of available
resources.
This dual approach to the enforcement of ESC rights–-
addressing both discriminatory and arbitrary conduct--hardly
yields the null or sterile set of issues that Ms. Chandhoke
suggests. As demonstrated by the earlier chapter’s sampling of
Human Rights Watch’s recent work on ESC rights,33 this work has
been rich and extensive--far more than many other organizations
that tend to be vocal about the abstract need to enforce ESC
rights but do relatively little to realize this commitment in
practice. All of the projects mentioned in that chapter were
pursued under Human Rights Watch’s existing policy of focusing
on arbitrary or discriminatory governmental action or inaction.
Ms. Chandhoke concludes by citing the case of India’s hoarding
of food surpluses. The Indian government, she claims, prefers to
let its excess food rot than to give it to starving people. If
true, this awful situation would indeed warrant intervention by
Human Rights Watch. Ms. Chandhoke trumpets this fact as
supposed proof that Human Rights Watch’s current approach to ESC
rights is too narrow. In fact, such withholding of food
surpluses would be the epitome of the kind of arbitrary conduct
on which a closer reading of this chapter would have made clear
that Human Rights Watch can effectively intervene.
Apparently recognizing that this example hardly pushes the
limits of what Human Rights Watch can do, Ms. Chandhoke also
describes a situation in which people need health care but
cannot afford it. She posits no governmental policy that causes
this unfortunate situation other than the “failure to fulfil a
social right, the right to health” (emphasis in original). “If
the government does not heed the obligation placed upon it by
the corresponding right to say health,” she claims, “non-
fulfilment of an obligation can be considered a violation of a
right” (emphasis in original).
Ms. Chandhoke thus apparently believes that the right to
health is violated simply because some people do not have health
care – an example of the approach to ESC rights that I described
at the beginning of this chapter. One might indeed say that an
injustice in this case has occurred, but despite the outrage at
this fact that is justifiably felt at people lacking health
care, it does not make a violation of the right to health unless
the ICESCR is first rewritten. That is because under the
ICESCR, a violation occurs not simply when there is a
deprivation of a specified right but only when the government is
also not “tak[ing] steps” to secure that right “to the maximum
of its available resources, with a view to achieving
progressively the full realization” of the right (Article 2).
If a government is not conscientiously taking such steps to
progressively realize the right on the basis of available
resources, its conduct might be shown to be arbitrary and thus
subject to Human Rights Watch’s policy on ESC rights. But if
all that is shown is that the right is not fulfilled, only Ms.
Chandhoke’s wishful thinking yields a violation under the law as
written. One might still argue for redistribution of wealth to
rectify this injustice, but for the reasons explained above, the
shaming methodology of organizations like Human Rights Watch
does not lend itself to pressing this issue successfully.
Endnotes
* Kenneth Roth is the Executive Director of Human Rights Watch,
a post he has held since 1993. Human Rights Watch investigates,
reports on, and seeks to curb human rights abuses in some
seventy countries. From 1987 to 1993, Roth served as deputy
director of the organization. Previously, he was a federal
prosecutor in New York and Washington and a private litigator.
He has conducted human rights investigations around the globe,
devoting special attention to issues of justice and
accountability for gross abuses of human rights, standards
governing military conduct in time of war, the human rights
policies of the United States and the United Nations, and the
human rights responsibilities of multinational businesses. He
has written over eighty articles and chapters on a wide range of
human rights topics.
1 See Human Rights Watch, “Economic, Social and Cultural Rights,” http://www.hrw.org/esc/. See also list of selected
reports at the end of this chapter.
2 Aryeh Neier, Taking Liberties: Four Decades in the Struggle for Rights, (PublicAffairs, 2003), xxix-xxx.
3 See Isaiah Berlin, Four Essays on Liberty, (London, New York [etc.]: Oxford University Press, 1969), 122-134 for
more on the concepts on positive and negative freedom. See also, Amartya Sen, Development as Freedom (New York:
Anchor books, 1999); Martha Nussbaum, Women and Human Development: The Capabilities Approach (New York:
Cambridge University Press, 2000) (discussing this debate within a contemporary human rights framework).
4 See UN General Assembly, International Covenant on Civil and Political Rights, Resolution 2200 (XXI), UN Doc.
A/6316 (1966), 999 UNTS 171; UN General Assembly, International Covenant on Economic, Social and Cultural
Rights, Resolution 2200 (XXI), UN Doc. A/6316 (1966), 993 UNTS 3 (hereinafter ICESCR); See also UN General
Assembly, Universal Declaration of Human Rights, Resolution 217A (III), UN Doc. A/810 (1948), reprinted in
American Journal of International Law 43 (1949): Supp. 127.
5 See Human Rights Watch, Prison Conditions in South Africa. New York: Human Rights Watch, 1994. Also
available online at http://www.hrw.org/reports/1994/southafrica/; Human Rights Watch, Out of Sight: Super-
Maximum Security Confinement in the United States. New York: Human Rights Watch, 2000. Also available online at
http://www.hrw.org/reports/2000/supermax/; Human Rights Watch, Prison Conditions in Japan. New York: Human
Rights Watch, 1995. Also available online at http://www.hrw.org/reports/pdfs/j/japan/japan953.pdf; Human Rights
Watch, Prison Conditions in Czechoslovakia. New York: Human Rights Watch, 1989; Human Rights Watch, Prison
Conditions in Czechoslovakia: An Update . New York: Human Rights Watch, 1991; Human Rights Watch, Prison
Conditions in Poland. New York: Human Rights Watch, 1988; Human Rights Watch, Prison Conditions in Poland:
An Update. New York: Human Rights Watch, 1991.
6 See, Human Rights Watch, “Rwanda: Elections May Speed Genocide Trials, But New System Lacks Guarantees of
Rights,” October 4, 2001, http://www.hrw.org/press/2001/10/rwanda1004.htm.
7 See UN General Assembly, International Covenant on Economic, Social and Cultural Rights, supra note 4, art. 2.
“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance
and co-operation, especially economic and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.” See also UN Committee on Economic, Social and
Cultural Rights, Fifth Session, Annex III, General Comment No. 3, (1990) E/1991/23 (interpreting the meaning of the
progressive-realization requirement).
8 Leonard S. Rubenstein highlights another form of technical assistance that international human rights groups can
perform: helping local or national groups better advocate respect for ESC rights. Leonard S. Rubenstein, “How
International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights: A Response to
Kenneth Roth,” Human Rights Quarterly 845 (2004). Such work is certainly useful, but it doesn’t help to determine
how international human rights groups that use a shaming methodology can best speak in their own voices in defense
of ESC rights.
9 See, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted January 22-26 1997,
reprinted as “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights
Quarterly 20 (1998): 691; UN ESCOR, The Limburg Principles on the Implementation of the International Covenant
on Economic, Social and Cultural Rights, Commission on Human Rights, 43rd Sess., Agenda Item 8, U.N. Doc.
E/CN.4/1987/17/Annex (1987), reprinted as “The Limburg Principles on the Implementation of the International
Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9 (1987): 122; UN OHCHR, Draft
Guidelines: A Human Rights Approach to Poverty Reduction Strategies (October 10, 2002).
10 International human rights groups that do not rely on a shaming methodology might also productively address these
ESC rights violations.
11 Human Rights Watch, Fingers to the Bone: United States Failure to Protect Child Farmworkers. New York:
Human Rights Watch, 2000, 55-73. Also available online at http://www.hrw.org/reports/2000/frmwrkr/.
12
Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and
Transgender Students in U.S. Schools. New York: Human Rights Watch, 2001, 3-7. Also available online at
http://www.hrw.org/reports/2001/uslgbt/toc.htm; Human Rights Watch, “South Africa: Sexual Violence Rampant in
Schools: Harassment and Rape Hampering Girls' Education,” March 27, 2001, http://www.hrw.org/press/2001/03/sa-
0327.htm; Human Rights Watch, Underage and Unprotected: Child Labor in Egypt’s Cotton Fields. New York:
Human Rights Watch, 2001. Also available online at http://www.hrw.org/reports/2001/egypt/; Human Rights Watch,
The Small Hands of Slavery: Bonded Child Labor in India. New York: Human Rights Watch, 1996, 14-19. Also
available online at http://www.hrw.org/reports/1996/India3.htm.
13
Human Rights Watch, In the Shadow of Death: HIV/AIDS and Children’s Rights in Kenya. New York; Human Rights
Watch, 2001. Also available online at http://www.hrw.org/reports/2001/kenya/.
14
Human Rights Watch, Some Transparency, No Accountability: The Use of Oil Revenue in Angola and Its Impact on
Human Rights. New York: Human Rights Watch, 2004. Also available online at
http://www.hrw.org/reports/2004/angola0104/.
15 See Leonard S. Rubenstein, “How International Human Rights Organizations Can Advance Economic, Social, and
Cultural Rights: A Response to Kenneth Roth,” Human Rights Quarterly 859-61 (2004).
16 For example, Amnesty International, with a global budget roughly six times that of Human Rights Watch, devotes
an enormous percentage of its resources to public mobilization. Against that backdrop, it is unclear that anything
Human Rights Watch or other international human rights groups could contribute would be more than a drop in the
bucket. One prominent critic of the human rights movement suggested that international human rights groups should
spend more resources sending representatives to “churches and shopping malls in the Midwest.” David Rieff, “The
Precarious Triumph of Human Rights,” New York Times Magazine, August 8, 1999. Notably, he made no effort to
argue that the payoff of such community outreach would be worth the cost of diminished research, reporting, press
work, and targeted advocacy. Yet the tradeoff is real. Given Amnesty’s mobilizing role, and the enormous
expectations on Human Rights Watch for research and advocacy, we have decided to build public pressure less
through large constituency-building efforts than through the comparatively cost-effective use of the press and the
internet. Other strategies are certainly conceivable, but the burden is on proponents of greater attention to public
organizing to explain why their approach would have more impact in light of the diminished organizational resources
that, of necessity, would be available for other core aspects of our work.
17 Human Rights Watch, Injecting Reason: Human Rights and HIV Prevention for Injected Drug Users, California: A
Case Study. New York: Human Rights Watch, 2003. Also available online at
http://www.hrw.org/reports/2003/usa0903/ .
18 Human Rights Watch letter to Prime Minister Julia Timoshenko, July 15, 2005, available online at
http://hrw.org/english/docs/2005/07/20/ukrain11394.htm.
19
Human Rights Watch, Deadly Delay: South Africa’s Efforts to Prevent HIV in Survivors of Sexual Violence . New
York: Human Rights Watch, 2004. Also available online at http://hrw.org/reports/2004/southafrica0304/.
20
Human Rights Watch, To Serve without Health? Inadequate Nutrition and Health Care in the Russian Armed Forces.
New York: Human Rights Watch, 2003. Also available online at http://www.hrw.org/reports/2003/russia1103/.
21 Human Rights Watch, Always on Call: Abuse and Exploitation of Child Domestic Workers in Indonesia. New York:
Human Rights Watch, 2005. Also available online at http://hrw.org/reports/2005/indonesia0605/.
22
Human Rights Watch, No Second Chance: People with Criminal Records Denied Access to Public Housing. New
York: Human Rights Watch, 2004. Also available online at http://hrw.org/reports/2004/usa1104/.
23
Human Rights Watch, Just Die Quietly: Domestic Violence and Women’s Vulnerability to HIV in Uganda . New
York: Human Rights Watch, 2003. Also available online at http://www.hrw.org/reports/2003/uganda0803/. See also
Human Rights Watch, Uganda: Domestic Relations Bill Would Save Lives, available online at
http://hrw.org/english/docs/2005/05/31/uganda11051.htm.
24
Human Rights Watch, Locked Doors: The Human Rights of People Living with HIV/AIDS in China. New York:
Human Rights Watch, 2003. Also available online at http://www.hrw.org/reports/2003/china0803/.
25 Human Rights Watch, Restrictions on AIDS Activists in China. New York: Human Rights Watch, 2005. Also
available online at http://hrw.org/reports/2005/china0605/.
26
Human Rights Watch, Women’s Work: Discrimination Against Women in the Ukrainian Labor Force. New York:
Human Rights Watch, 2003. Also available online at http://www.hrw.org/reports/2003/ukraine0803/.
27 Human Rights Watch, Argentina: Limits on Birth Control Threaten Human Rights. New York: Human Rights
Watch, 2005. Also available online at http://hrw.org/english/docs/2005/06/15/argent11093.htm.
28
Human Rights Watch, Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India . New York:
Human Rights Watch, 2002. Also available online at http://www.hrw.org/reports/2002/india2/.
29
Human Rights Watch, Double Standards: Women’s Property Rights Violations in Kenya. New York: Human Rights
Watch, 2003. Also available online at http://www.hrw.org/reports/2003/kenya0303/.
30
Human Rights Watch, “Children’s Rights: Violence in Schools,” http://www.hrw.org/children/schools.htm.
31
Ms. Chandhoke claims that “HRW maintains that intervention is only possible when a right has been violated
intentionally, through an act of commission,” but this is false. Governmental omission, quite obviously, can be
arbitrary or discriminatory as well.
32 As noted above, this dynamic is different when members of an international organization address their own
government because then, as citizens of a state, they have as much right as anyone to advocate a particular
redistribution of resources. Of course, even in the case of governments that are not our own, some wholly
inappropriate allocations of resources can be effectively characterized as arbitrary, in which case our shaming
methodology will work.
33 Cite to my earlier chapter.
... By contrast, it is harder to frame around prevention or to demonize broadly defined economic forces. 10 Specific corporations represent an easier target, but the length of the causal chain between vaguely written labor laws, loose enforcement, and exploitation can be problematic. With this in mind, targeting corporations that can be shown to have used forced labor makes sense, and could in some cases serve as a wedge to encourage broader legal reform. ...
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In this paper, we explore the strategies utilized by civil society organizations to improve access to medicines during the HIV/AIDS and COVID-19 health crises. In particular, we seek to illuminate why some of the successful approaches for increasing access to antiretrovirals for HIV/AIDS in the early 2000s failed in creating equitable global access to COVID-19 vaccines. While civil society has historically mobilized human rights to facilitate greater access to essential medicines, we argue that earlier strategies were not always sustainable and that civil society is now mobilizing human rights in radically different ways than previously. Instead of focusing chiefly on securing an intellectual property waiver to the TRIPS Agreement, civil society organizations are now challenging vaccine injustice, rejecting the "charity discourse" that fuels Global South dependency on Global North actors in favor of scaling up manufacture in low- and middle-income countries, and moving to embed the right to access medicines in a new World Health Organization pandemic treaty with civil society organization participation and meaningful representation from low- and middle-income countries. Such approaches, we contend, will lead to more sustainable solutions in order to avert further health care disasters, like those seen with two distinct but related struggles-the fights for equitable access to essential medicines for HIV/AIDS and for COVID-19.
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Early and forced marriage (EFM) is an increasing focus of international organizations and local non-government organizations. This study assesses the extent to which attitudes and norms related to EFM can be changed by locally tailored media campaigns. A two-hour radio drama set in rural Tanzania was presented to Tanzanian villagers as part of a placebo-controlled experiment randomized at the village level. A random sample of 1200 villagers was interviewed at baseline and invited to a presentation of the radio drama, 83% of whom attended. 95% of baseline respondents were re-interviewed two weeks later, and 97% 15 months after that. The radio drama produced sizable and statistically significant effects on attitudes and perceived norms concerning forced marriage, which was the focus of the radio drama, as well as more general attitudes about gender equality. Fifteen months later, treatment effects diminished, but we continue to see evidence of EFM-related attitude change.
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International criminal justice is, at its core, an anti-atrocity project. Yet just what an 'atrocity' is remains undefined and undertheorized. This book examines how associations between atrocity commission and the production of horrific spectacles shape the processes through which international crimes are identified and conceptualized, leading to the foregrounding of certain forms of mass violence and the backgrounding or complete invisibilization of others. In doing so, it identifies various, seemingly banal ways through which international crimes may be committed and demonstrates how the criminality of such forms of violence and abuse tends to be obfuscated. This book suggests that the failure to address these 'invisible atrocities' represents a major flaw in the current international criminal justice system, one that produces a host of problematic repercussions and undermines the legal legitimacy of international criminal law itself.
Chapter
This portrait of the global debate over patent law and access to essential medicines focuses on public health concerns about HIV/AIDS, malaria, tuberculosis, the SARS virus, influenza, and diseases of poverty. The essays explore the diplomatic negotiations and disputes in key international fora, such as the World Trade Organization, the World Health Organization and the World Intellectual Property Organization. Drawing upon international trade law, innovation policy, intellectual property law, health law, human rights and philosophy, the authors seek to canvass policy solutions which encourage and reward worthwhile pharmaceutical innovation while ensuring affordable access to advanced medicines. A number of creative policy options are critically assessed, including the development of a Health Impact Fund, prizes for medical innovation, the use of patent pools, open-source drug development and forms of 'creative capitalism'.
Chapter
The Millennium Development Goals (MDGs) have generated tremendous discussion in global policy and academic circles. On the one hand, they have been hailed as the most important initiative ever in international development. On the other hand, they have been described as a great betrayal of human rights and universal values that has contributed to a depoliticization of development. With contributions from scholars from the fields of economics, law, politics, medicine and architecture, this volume sets out to disentangle this debate in both theory and practice. It critically examines the trajectory of the MDGs, the role of human rights in theory and practice, and what criteria might guide the framing of the post-2015 development agenda. The book is essential reading for anyone interested in global agreements on poverty and development.
Chapter
The Millennium Development Goals (MDGs) have generated tremendous discussion in global policy and academic circles. On the one hand, they have been hailed as the most important initiative ever in international development. On the other hand, they have been described as a great betrayal of human rights and universal values that has contributed to a depoliticization of development. With contributions from scholars from the fields of economics, law, politics, medicine and architecture, this volume sets out to disentangle this debate in both theory and practice. It critically examines the trajectory of the MDGs, the role of human rights in theory and practice, and what criteria might guide the framing of the post-2015 development agenda. The book is essential reading for anyone interested in global agreements on poverty and development.
Chapter
The Millennium Development Goals (MDGs) have generated tremendous discussion in global policy and academic circles. On the one hand, they have been hailed as the most important initiative ever in international development. On the other hand, they have been described as a great betrayal of human rights and universal values that has contributed to a depoliticization of development. With contributions from scholars from the fields of economics, law, politics, medicine and architecture, this volume sets out to disentangle this debate in both theory and practice. It critically examines the trajectory of the MDGs, the role of human rights in theory and practice, and what criteria might guide the framing of the post-2015 development agenda. The book is essential reading for anyone interested in global agreements on poverty and development.
Press Release, Human Rights Watch, South Africa: Sexual Violence Rampant in Schools: Harassment and Rape Hampering Girls' Education) available at www.hrw.org/press
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HUMAN RIGHTS WATCH, HATRED IN THE HALLWAYS: VIOLENCE AND DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, AND TRANSGENDER STUDENTS IN U.S. SCHOOLS 3–7 (2001); Press Release, Human Rights Watch, South Africa: Sexual Violence Rampant in Schools: Harassment and Rape Hampering Girls' Education (27 Mar. 2001) available at www.hrw.org/press/2001/03/sa– 0327; HUMAN RIGHTS WATCH, UNDERAGE AND UNPROTECTED: CHILD LABOR IN EGYPT'S COTTON FIELDS (2001); HUMAN RIGHTS WATCH, THE SMALL HANDS OF SLAVERY: BONDED CHILD LABOR IN INDIA 14–19 (1996).
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HUMAN RIGHTS WATCH, HATRED IN THE HALLWAYS: VIOLENCE AND DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, AND TRANSGENDER STUDENTS IN U.S. SCHOOLS 3-7 (2001); Press Release, Human Rights Watch, South Africa: Sexual Violence Rampant in Schools: Harassment and Rape Hampering Girls' Education (27 Mar. 2001) available at www.hrw.org/press/2001/03/sa-0327;