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1Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Changing perspectives on human rights
Can human rights
bring social justice?
Twelve essays
Edited by Doutje Lettinga & Lars van Troost
Strategic Studies initiated by Amnesty International Netherlands
illustratie?
2Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Published in October 2015 by
Amnesty International Netherlands
ISBN: 978-90-6463-370-6
Cover image: Spanish protest against the Euro zone leaders, agreed Pact for the Euro,
the cutbacks in the social policy and the economic crisis in Barcelona on 19 June 2011.
© Peter Scholz/Shutterstock.com
3Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Changing perspectives on human rights
Can human rights
bring social justice?
Twelve essays
Edited by Doutje Lettinga & Lars van Troost
4Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Also in this series:
Doutje Lettinga and Lars van Troost (eds), Debating The
Endtimes of Human Rights. Activism and Institutions in a
Neo-Westphalian World, July 2014.
www.amnesty.nl/endtimes
Thijs van Lindert and Doutje Lettinga (eds), The future of
human rights in an urban world. Exploring opportunities,
threats and challenges, September 2014.
www.amnesty.nl/urbanworld
Other publications by Strategic Studies:
Thijs van Lindert and Lars van Troost (eds), Shifting power
and human rights diplomacy: Brazil, November 2014.
www.amnesty.nl/RisingPowerBrazil
Doutje Lettinga and Lars van Troost (eds), Shifting power
and human rights diplomacy: India, March 2015.
www.amnesty.nl/RisingPowerIndia
Doutje Lettinga and Lars van Troost (eds), Shifting Power
and Human Rights Diplomacy: South Africa (forthcoming)
Strategic Studies is an initiative of Amnesty International Netherlands. Since 2013 Strategic Studies has been mapping out
national and international social, political and legal developments which can affect the future of human rights and the work of
Amnesty International in particular. Contact: StrategischeVerkenningen@amnesty.nl.
5Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Table of Contents
List of authors and editors 7
Introduction 9
Human rights and the age of inequality 13
Samuel Moyn
How human rights can address socioeconomic inequality 19
Dan Chong
Seeking socioeconomic justice 27
Widney Brown
Dear fellow jurists, human rights are about politics,
and that’s perfectly ne 35
Koldo Casla
Back to the future: human rights protection beyond
the rights approach 41
Eduardo Salvador Arenas Catalán
Human rights and social justice: separate causes 47
Aryeh Neier
Against a human rights-based approach to social justice 53
Jacob Mchangama
Will human rights help us get social justice? 59
Sara Burke
How are social justice and human rights related?
Four traps to avoid 65
Rolf Künnemann
Justice over rights? 71
Doutje Lettinga and Lars van Troost
Advancing social justice through human rights:
the experience of Amnesty International 79
Ashfaq Khalfan and Iain Byrne
Human rights and social justice – a false dichotomy? 89
David Petrasek
References 95
6Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
7Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
List of Authors and Editors
Eduardo Salvador Arenas Catalán (LLM) is a PhD candidate
at the Montaigne Center for Judicial Administration at
the Law Department of the University of Utrecht. He also
co-chairs both the PhD Council and the Working Group on
Economic, Social and Cultural Rights of the Netherlands
School of Human Rights Research.
Widney Brown is the Director of Programs for Physicians
for Human Rights (PHR), an NGO that brings the disciplines
of medicine, forensics, public health, and science to the
documentation of human rights abuses. Prior to joining PHR
in 2014, Brown was Senior Director of Law and Policy at the
International Secretariat of Amnesty International for eight
years. Brown also served a variety of roles at Human Rights
Watch including as Deputy Program Director, where she was
responsible for overseeing the work of both regional and
thematic programs.
Sara Burke researches and writes on US domestic and
international politics and economics. Recent areas of interest
include human rights, inequality, social justice movements
and the reform of monetary, nancial and scal policies.
Burke is a Senior expert in charge of global economic and
social policy issues at the Friedrich-Ebert-Stiftung (FES) New
York ofce, the Foundation’s liaison to the United Nations,
International Monetary Fund, and World Bank.
Iain Byrne is acting Head of the ESCR team within
the Global Thematics Programme at the International
Secretariat (IS) of Amnesty International. Previously he
held various positions at the International Centre for the
Legal Protection of Human Rights (INTERIGHTS), including
acting Legal Practice Director and Senior Lawyer with
lead responsibility for litigation work on economic and
social rights. Since 2000 he has been a Fellow of the
Human Rights Centre at the University of Essex. He has
been involved in litigation in domestic fora across the
Commonwealth and beyond, and before the European
Committee of Social Rights, the European Court of Human
Rights and the UN Human Rights Committee.
Koldo Casla is a Doctoral candidate at King’s College
London, studying why Western European states promote
international human rights law from the combined
perspectives of Critical Legal Studies and the English
School of International Relations. He is also a freelance
human rights consultant, blogger at RIGHTS in context,
and active member of Amnesty International since 2001.
Dan Chong is Associate Professor of Political Science at
Rollins College (USA). His rst book, Freedom from Poverty
(University of Pennsylvania Press, 2010), examines the
methods that NGOs use to advocate for economic and
social rights. His recent book, Debating Human Rights
(Lynne Rienner, 2014), explores major controversies in
international human rights.
Ashfaq Khalfan is the Director of Law and Policy at Amnesty
International’s International Secretariat (IS). He was a
member of the ESCR Team at the IS from November 2009
to July 2015, rst as a Policy Coordinator focusing on
legal enforcement and then as a Researcher/Adviser on
obligations beyond borders. He has previously directed
the Right to Water Programme at the Centre on Housing
Rights and Evictions and worked for the Canadian Federal
Department of Justice and the Canadian Human Rights
8Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
List of Authors and Editors
Commission. He holds a doctoral degree in law from Oxford
University, and law degrees in common and civil law and a
degree in political science and international development
from McGill University.
Rolf Künnemann is Human Rights Director at FIAN
International’s secretariat. Since 2007 he has been
coordinating the Consortium on Extraterritorial Obligations
(ETO-Consortium). In this context he was co-editor (with
Fons Coomans) of Cases and Concepts on Extraterritorial
Obligations in the Area of Economic, Social and Cultual
Rights (Intersentia, 2012). He authored Food and Freedom,
a Textbook on Human Rights Education (Progress Trust,
Madurai, 1999). Rolf Künnemann was Secretary General of
FIAN International between 1986 and 2004.
Doutje Lettinga is an analyst at Strategic Studies, an
initiative of Amnesty International Netherlands. She holds
a doctorate in Sociology at the VU University Amsterdam
and has master’s degrees in History and Political Science.
Prior to joining Amnesty, Lettinga worked as a researcher
and consultant, including for Human Rights Watch, the EU
Fundamental Rights Agency, and the European Commission.
Jacob Mchangama is the founder and executive director
of Justitia, a think tank in Copenhagen focusing on human
rights and the rule of law. He is also co-founder and
director of the Freedom Rights Project, an international
human rights research project. Since 2005 Mchangama
teaches International Human Rights at the University of
Copenhagen.
Samuel Moyn is Professor of Law and History at Harvard
University. He is the author of several books about human
rights, including The Last Utopia: Human Rights in History
(Harvard University Press, 2010) and the forthcoming
Christian Human Rights (University of Pennsylvania Press,
2015) on Western European and transatlantic Christianity
and the origins of human rights before, during, and after
World War II.
Aryeh Neier is President Emeritus of the Open Society
Foundations and Distinguished Visiting Professor at
the Paris School of International Affairs of Sciences Po.
Previously he was Executive Director of Human Rights
Watch and Executive Director of the American Civil
Liberties Union. A contributor to many publications, his
most recent book is The International Human Rights
Movement: A History (Princeton University Press, 2012).
David Petrasek is Associate Professor at the Graduate
School of Public and International Affairs, University
of Ottawa and was formerly Special Adviser to the
Secretary General of Amnesty International. He has worked
extensively on human rights, humanitarian and conict
resolution issues, including for Amnesty International
(1990-96), the Ofce of the UN High Commissioner for
Human Rights (1997-98), the International Council on
Human Rights Policy (1998-2002), and as Director of Policy
at the HD Centre (2003-07). He has taught international
human rights and/or humanitarian law courses at the
Osgoode Hall Law School, the Raoul Wallenberg Institute at
Lund University, Sweden, and at Oxford University. He has
also worked as a consultant or adviser to several NGOs and
UN agencies.
Lars van Troost is Senior Policy and Strategy Adviser at
Amnesty International Netherlands (AINL), where he leads
Strategic Studies. He worked before at AINL as International
Criminal Law project ofcer, coordinator for Political Affairs,
head of the Refugee Department and head of Political Affairs
and Press Ofce. He is chair of the Advisory Council of the
Netherlands Institute for Human Rights.
9Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Introduction
Many years ago the philosopher Friedrich Hayek wrote that
it took him a decade to acknowledge that there is no such
thing as social justice. It is just a mirage (Hayek 1978: 57).
Nonetheless, almost forty years later social justice is one
of the ‘buzz words’ in the human rights arena. This does
not mean that by now it is a neatly dened, uncontested
concept. Actually, social justice means different things even
to people with relatively similar backgrounds, including the
contributors to this essay volume. Nonetheless, often the term
covers “the relative distribution of rights, opportunities and
resources within a given society, and whether it deserves to
be regarded as fair and just” (Cramme & Diamond 2009: 3).
Generally, that’s how we have used the term in this volume
of essays.
Human rights isn’t an uncontested concept either.
Sometimes the concept refers to legal rights under
national or international law, sometimes to moral rights.
When human rights are seen as legal rights they have
the authority of the law which then also reects on the
activists, organizations and movements claiming to protect
and promote them. The human rights activists defend the
law, a higher international law if necessary, not just their
own moral or political preferences. (This, of course, does not
mean that the content and scope of human rights as legal
rights are completely xed. It does mean, however, that
there are agreed methods of interpretation to determine
content and scope.)
If, on the other hand, human rights are conceptualized
as moral rights, their content and scope become more
exible. The move towards or, as David Petrasek writes in
his reection on the other contributions to this volume,
the move back to a moral understanding of human rights
seems to t well with a simultaneous instrumentalization
of human rights. For a long time the realization of human
rights was not just the mission but also the vision
(the desired end-state) for organizations like Amnesty
International and Human Rights Watch. In other words,
human rights were their goal, their instrument and their
language, whether they focused on civil and political
rights or on the realization of the full spectrum of human
rights. Nowadays human rights are (again) more and more
considered to be instruments for attaining other goals,
such as dignity, equality, or social justice.
It were exactly these goals that came under pressure
when in 2008 the world was hit by a nancial crisis which
was soon followed by an economic one. Unexpectedly, the
world economy was full of bailouts and other government
interventions followed by austerity measures and citizens’
protests against and resistance to such measures under
the banners of justice, democracy and dignity. The Occupy
movement, the Greek and Spanish Indignados – what did
human rights have to offer to their resistance to austerity
measures in times of economic stagnation? The Arab
uprisings – what did human rights have to offer those
calling for “bread, freedom, social justice, and dignity”,
apart from defending the public space for peaceful protest
and political dissent? A lot, according to some; almost
nothing, according to others. Both the human rights
movement and the social justice movement have been
deeply divided about the value of human rights in the ght
against economic injustice.
Issues of distributive justice, especially in times of austerity,
and a growing or resurgent understanding of human rights
as a moral or political concept and not merely or mainly a
10Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Introduction
legal one, also seem to have led some to call for rethinking
the concept – or was it a strategy? – of political and economic
impartiality of human rights and human rights organizations.
These interrelated issues led the Strategic Studies team at
Amnesty International’s Dutch section to invite academics
and practitioners in the eld of human rights and social
justice to reect on conceptual and strategic issues related
to the link between these two agenda’s. This collection
of twelve essays does not aim to re-enact earlier debates
about the differences and similarities of rights categories or
generations of rights. Whether economic, social and cultural
rights are really human rights is not the issue. That question
has been answered long ago. What do human rights actually
have to offer in the struggle for social justice? That’s the
issue we try to address in this volume. The views expressed
in the contributions that follow are those of the authors and
do not necessarily reect positions of Amnesty International,
its Dutch section or Strategic Studies.
Almost all authors in this volume agree that both pursuits
are different but that there is conceptual and strategic
overlap between them. At the most basic level, as Sara
Burke argues, social justice and human rights activists
both aspire to a better world based upon peace, justice
and other moral values like equality. Both consider poverty,
hunger and marginalization as an affront to human dignity
and, when it is the result of unwillingness, negligence or
discrimination on the part of the state, as a violation of
human rights too. Both would agree that the state has
a responsibility to provide social welfare, at least to the
most marginalized and vulnerable in society, and to offer
an adequate remedy when inequality impedes people’s
livelihood. For Dan Chong and many other contributors,
therefore, social justice issues, such as access to food,
adequate housing, and health care, are part of the canon of
‘core’ human rights.
However, sometimes even the most human rights-friendly
government in the world will be unable to prevent hunger
or homelessness. If it cannot be shown that deprivation is
the result of the (in)action of the state, as Rolf Künnemann
of FIAN explains in his contribution, one cannot speak
of a human rights violation in the legal sense of the
word. Consequently, for organizations like FIAN that use
arguments that nd support in human rights treaties, it can
be difcult to cooperate with the social justice movement.
The alternative, delegalizing human rights, might be a trap
to avoid, because, according to Künnemann, it leads to the
trivialization of human rights and “plays in the hands of
socially oppressive elites” who can shun away from their
legal obligations if these become moral duties only.
Moreover, Samuel Moyn and Aryeh Neier contend that
social justice often articulates a vision that goes beyond
the obligations of states to protect the poor, with activists
ghting for the equal or equitable distribution of resources
and wealth. Human rights are not that ambitious in theory,
offering a minimal oor of protection at best. Although
there is divergence on Moyn’s (and Neier’s even more)
minimalist interpretation, most contributors agree that
human rights, even if understood more progressively, may
not satisfy the more radical social justice activist.
The potential of human rights to
deliver social justice
Authors are more divergent on the question whether the
law-based understanding of human rights is, or can be,
effective to deliver social justice. This divergence is partly
related to their different understandings of social justice,
as discussed by David Petrasek.
Many argue that human rights advocacy can help improve
the fate of the poor and marginalized. Ashfaq Khalfan and
Iain Byrne, for example, argue that Amnesty International
has indirectly helped advancing and promoting social
justice by focusing its economic and social rights work on
the most marginalized and disadvantaged groups. But,
Khalfan and Byrne concede, in order ‘to shift the needle’,
Amnesty must devote more attention to redistribution of
resources – including through tax policies – to help realize
the full enjoyment of human rights by all.
For them and other authors, the work of human rights
organizations can and should become complementary to
that of social justice groups. Dan Chong, for instance,
11Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Introduction
argues that “advocating for human rights can help
overcome the narrow identity politics and selective outrage
that often inicts social movements” while “at the same
time excluding methods of achieving social justice that fail
to meet human rights standards [e.g. violent revolutions]”.
Sara Burke too argues in favour of enhanced cooperation
between the two groups, but warns that this requires
a deeper shift of discourse as well as the creation of
platforms for activists to speak for themselves.
But many authors also point at the limitations of human
rights to pursue social justice, at least when conceived
as purely legal instruments. Eduardo Catalán, Koldo
Casla, Dan Chong, and others believe that, although some
measure of social justice can be achieved, ultimately
a legal rights approach to social justice is too limited
for ghting deeper forms of economic inequality. Apart
from the vagueness and indeterminacy of international
law with regard to specic (economic) policy solutions,
and the inherent shortcomings of court-based methods
like litigation (expensive, technical, relatively narrow in
scope), the legal rights approach is seen as falling short
to address systemic government failings and structural
factors underlying violations and abuse. According to
Eduardo Catalán, who sees global capitalism as the main
cause for today’s social rights degradation, a legal rights
approach fails to grant any serious protection and has “in
some cases [even] become instrumental to legitimizing and
guaranteeing capitalist expansion”.
From here, authors reach different conclusions. In order
to become effective in the social and economic realm,
a rst group of authors suggests that human rights
advocates must (re-)enter the political arena. They cannot
afford to provide only ideologically neutral, technocratic
solutions to politically-charged problems but must take
these head-on. Dan Chong, for instance, writes that “the
only way forward for human rights is to engage directly in
political, economic, and cultural debates”. Widney Brown
too, writes, that human rights organizations or advocates
“must address deeper structural causes of human rights
violations by revising their notion of impartiality” and
challenge economic systems and actors. Koldo Casla,
pleads for an explicitly ‘political’ approach to human
rights, i.e. constructing human rights politically “as a
set of guidelines for political action” and by “playing the
game of politics”. For him and other authors, such political
advocacy can improve upon some of the limitations to
achieve social justice that are inherent in strictly legal
approaches to human rights.
A second group of authors disagrees that human rights
can be effective tools to reduce or eliminate inequality and
oppose the politicization of human rights in this way. Jacob
Mchangama’s research suggests that the introduction and
judicialization of social rights do not have any positive
effects on people’s long-term social development and
can even have negative consequences. Like Aryeh Neier,
he believes that social justice issues require a balancing
of different interests and that subjecting human rights
issues to such a balancing act is not the right way to
go. Samuel Moyn situates the problem in human rights
norms themselves, which are in his view “compatible with
inequality, even radical inequality”, because they don’t
place any limits on the accumulation of wealth.
Paradoxically, the latter three authors seem to agree with
the rst group that, ultimately, social justice requires
political mobilization but they believe that political
parties and other social movements, not human rights
organizations, must full this task. Human rights groups
are seen as ill-suited to resolve the inevitable trade-
offs and priorities involved in matters of economic and
social policy, which ought to be part of the democratic
political process. There is the risk of human rights
ination and trivialization if human rights law is stretched
or delegalized to circumvent the indeterminism of
international human rights law in providing clear-cut policy
directions. There is also the probability that human rights
organizations which defend the rights of all, including
of unpopular groups, will nd it difcult to mobilize the
required large constituencies. For Samuel Moyn, the human
rights movement simply “has neither the tools nor really
the desire to bring the egalitarian task to the globe or
even specic nations” and may not be “fearful enough to
provoke redistribution”.
12Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Introduction
What role for human rights groups in
the pursuit for social justice?
So what role is there for human rights organizations like
Amnesty International? In their essay Doutje Lettinga and
Lars van Troost suggest that there are four approaches:
Justice over rights; Justice through rights; Rights over
justice; and Justice for rights.
Those authors who reject the moralization and potential
politicization of human rights to pursue social justice believe
that human rights organizations must do their utmost to be
(seen as) politically impartial in order to remain effective.
One author concludes from there that these organizations
must thus work on civil and political rights only, including
the rights of peaceful assembly, freedom of speech and
fair trials. Any suggestion that human rights organizations
are involved in the political process of (re)distributing
society’s resources, as an ostensible means of protecting
social and economic rights, will undermine their political
neutrality, and thereby their credibility to criticize oppressive
governments that fare well on economic development.
Others too believe that human rights organizations can play
an effective role without necessarily taking on social justice
causes. By defending civil and political rights of activists,
they can help securing the space to mobilize public support
for social justice causes, which may ultimately crystallize
into the necessary political power to build a (global)
welfare state. But they believe that this line of work can
be accompanied with limited work on economic and social
rights, although this will be of limited use for more radical
social justice agendas.
Still others believe that time is long overdue for human
rights organizations and advocates to deepen their
engagement with social justice. They suggest that
organizations like Amnesty International must start
analysing the economic and political structures underlying
rights violations and addressing these with political
solutions that are system-oriented. Although these
authors differ in the extent to which they believe that
such organizations must conduct advocacy regarding
allocation of resources or take positions that are only
weakly supported in international law, they seem to agree
that human rights groups can and should engage in
advocacy on social and economic policies. According to
some, identifying from a human rights law point of view
which policies are best suited to achieve social justice
is possible, compatible with impartiality, and helpful if
accompanied with an investment in the required expertise,
use of new methods (including quantitative methods)
and partnerships. Such work is seen as contributing to
making human rights more effective and locally relevant,
by providing real solutions to denials of rights that are
grounded in the lived experience, needs and wishes of
marginalized groups rather than simply dealing with
violations of human rights law.
With this essay volume we hope to contribute to the
thinking on the relationship between human rights and
social justice, two agendas that seem to converge while
at least the rst one may also be changing itself in that
convergence.
Doutje Lettinga and Lars van Troost
13Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Samuel Moyn
Human rights and the age of inequality
Given how difcult it is for the regimes and movements that
have been established around human rights to protect basic
values – including now economic and social rights – what
are the prospects that they might also respond to widening
inequality of income and wealth locally and globally?
Introduction
Start with a parable: Imagine that one man owned
everything. Call him Croesus, after the king of ancient
lore who, Herodotus says, was so “wonderfully rich” that
he “thought himself the happiest of mortals”. Impossibly
elevated above his fellow men and women though he
is, however, this modern Croesus is also remarkably
magnanimous. With his global realm, the modern Croesus
outstrips the already fabulous wealth of his predecessor by
a long shot. But he does not want everyone else to starve,
and not only because he needs some of them for the upkeep
of his global estate. Instead, Croesus insists on a oor of
protection, so that everyone living under his benevolent but
total ascendancy can escape utter destitution. Health, food,
water, even paid vacations – Croesus funds them all.
In comparison to the world in which we live today, where
few enjoy these benets, Croesus offers a kind of utopia.
It is the utopia foreseen in the Universal Declaration of
Human Rights (1948)1, whose goal is to provide a list of
the most basic entitlements that humans deserve thanks
to being human itself. This utopia is one that, though
little known in its own time, has become our own, with the
rise in the last half century of the international human
1 United Nations General Assembly (UNGA) (1948),
Universal Declaration of Human Rights, 10 December, UNGA
Res 217 A(III).
rights movement – especially now that this movement has
belatedly turned to mobilization for the economic and social
rights that the Universal Declaration promised from the
start.
We increasingly live in Croesus’s world. It now goes without
saying that any enlightened regime respects basic civil
liberties, though the struggle to provide them is compelling
and unending. Croesus hates repression and not merely
indigence. He would never consent to a police state; he
views the atrocities of war and occupation with horror; he
glows with outrage when the word ‘torture’ is mentioned;
he agrees cruelty is the worst thing we can do. But he also
considers it outrageous, even as the sole inhabitant of
the top, to live in a world of socioeconomic destitution at
the bottom. So-called ‘social rights’ matter deeply to him.
Croesus’s generosity, then, is as unprecedented as his
wealth is. How could anyone trivialize what Croesus has to
offer?
Let me try. For the value of distributive equality – any
ceiling on the wealth gap between rich and poor – is as
absent from the Universal Declaration, as well as from
the legal regimes and social movements that take it as
their polestar, as it is far from Croesus’s mind. True, the
founding document of human rights announced status
equality: according to its rst article, all human beings
are born free and equal in dignity and rights. It may be
true that, in a world devastated by the evils of racism and
genocide, the assertion of bare status equality was itself
a revolutionary act. Yet this same status equality implies
nothing more. Nothing in the scheme of human rights rules
out Croesus’s world, with its absolute overlordship, so long
as it features that oor of protection.
14Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Human rights and the age of inequality
In itself, Croesus’ willing provision of a oor of protection
seems deeply awed – immoral even – if it comes together
with the most massive inequality ever seen. This is the
point of the thought experiment: to remind us that human
rights, even perfectly realized human rights, are compatible
with inequality, even radical inequality. Staggeringly, we
could live in a situation of absolute hierarchy like Croesus’s
world, with human rights norms as they have been
canonically formulated perfectly respected. Our question is
whether we should continue to idealize Croesus’s world as
we continue to make our world more like it every day.
Human rights in the age of national
welfare
Writing the history of human rights in relation to that of
political economy would involve two big stages – with a
possible missed opportunity in between. The rst, clearly,
was the heroic age of the national welfare states after World
War II. At that time, human rights reected a small part of
a larger and universal welfarist consensus that united the
otherwise bitter enemies of the new cold war in 1948 and
for two decades after. Contrary to stereotype, the ‘West’ for a
long moment agreed about the importance of socioeconomic
rights. Indeed, it was in part out of their own experience
of socioeconomic misery, and not only the threatening
communist insistence on an absolute ceiling on inequality,
that the capitalist nations signed on so enthusiastically to
welfarism. Of course, America never got as far in answering
the welfarist imperative as those European nations that
chose Christian Democracy, social democracy, or (in the
east) communist egalitarianism. But the reigning consensus
even in the capitalist nations in that lost age went far
beyond a basic oor of protection to include its own exacting
ideal of a ceiling on inequality, which to a remarkable extent
they succeeded (like the communist nations) in building
to accompany their new oor of entitlements. Indeed, it is
perhaps because human rights offered a modest rst step
rather than a grand nal hope that they were broadly ignored
or rejected in the 1940s as the ultimate formulation of the
good life.
The assertion of human rights in the 1940s, in other
words, is best understood as one version of the update to
the entitlements of citizenship on whose desirability and
necessity almost everyone agreed after depression and war.
Franklin Roosevelt issued his famous call for a “second
Bill of Rights” that included socioeconomic protections in
his State of the Union address the year before his death,
but the most important three facts about that call have
been almost entirely missed. One is that it marked a
characteristically provincial America’s late and ginger entry
into an already foreordained North Atlantic consensus.
A second is that in promising “freedom from want” and
envisioning it “everywhere in the world”, Roosevelt in fact
understated the actually egalitarian aspirations that every
version of welfarism proclaimed, which went far beyond
a low bar against indigence so as to guarantee a more
equal society than before (or since). His highest promise,
in his speech, was not a oor of protection for the masses
but the end of “special privileges for the few” – a ceiling
on inequality. The last is that though Roosevelt certainly
hoped it would span the globe, it was to be nationally
rather than internationally organized – in stark contrast
to the assumptions of both political economy and human
rights as they have prevailed in our time.
The most interesting truth about human rights in the
1940s, indeed, is not that they were an optional and
normally ignored synonym for a consensus welfarism
but that they still portended a fully national project of
reconstruction – just like all other reigning versions of
welfarism. Everywhere in the world, and not least in
Roosevelt’s America itself, welfarism was both announced
and achieved on a national basis. The minor exception
of the International Labour Organization to one side,
in the 1940s, neither socioeconomic rights nor a more
ambitious welfarism were international projects, except
insofar as modular nation-states experimenting with their
own arrangements were supposed to answer to higher
values of morality. Of course the Universal Declaration
is international in source and form, but essentially as a
template for nations – “a high standard of achievement for
all peoples and nations”, as its own preamble tells us.
This ought to be unsurprising. Welfarism had been national
ever since the crisis between the world wars prompted
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state-led reconstruction. If ‘national socialism’ did not
triumph as a slogan or a programme after World War II,
it was in part because the name was taken but mainly
because a more ecumenical national welfarism – my
label – structured a debate about how far (not whether)
the state would intervene into economic affairs to plan
and manage growth, with a range of options from tweaked
capitalism to full-blown communism. Indeed, a once more
internationalist socialism had been reduced to the scale of
the nation. Having never ascended above it, ‘welfarism in
one country’ was the rule where full-blown socialism did
not obtain, like various places in Western and everywhere in
Eastern Europe.
Political economy ascended beyond the nation in the 1940s
only for the sake of avoiding catastrophe if individual states
failed in their obligation of countercyclical management of
their own economies, never for the sake of either a global
oor of protection, let alone a global ceiling on inequality.
As economist and Nobel laureate Gunnar Myrdal explained
laconically, looking back at this consensus about the
geographical limits but relative generosity of post-war
distributive justice, “the welfare state is nationalistic”
(Myrdal 1960). The original relation of the Universal
Declaration to political economy was thus the lowest set
of guarantees for which the national welfarist experiment
should strive, when conducted in the modular boxes
provided – and divided –by political borders.
The harmony of ideals between the campaign against
abjection and the demand for equality succeeded only
nationally, and in mostly North Atlantic states, and then
only partially. Whatever success occurred on both fronts
thus came with sharp limitations –and especially the
geographical modesty that the human rights idiom has
successfully transcended. It is, indeed, as if globalization of
the norms of basic protection were a kind of reward for the
relinquishment of the imperative of local equality.
Even the decolonization of the world, though unforeseen at
the time of the Universal Declaration that accommodated
itself to the empires of the day,hardly changed this
relationship, since the new states themselves adopted the
national welfarist resolve. The burning question was what
would happen after, especially in the face of the inability of
the Global South to transplant national welfarism and the
wealth gap that endures to this day between two sorts of
countries: rich and poor.
From national welfare to neoliberal
globalization
There was, some hoped, the possibility of globalizing
welfarism, so as to seek the oor of protection and
ceiling on inequality globally that some nations achieved
internally. The aforementioned Myrdal, for example, held out
this possibility. But his aspirations, like those of the Global
South’s ‘New International Economic Order’ (NIEO) that
followed, did not survive. (The neglected NIEO was a set of
proposals from the Global South that focused on income
and wealth inequality among nations rather than aversive
economic and social rights protection for individuals.2)
Instead what historian Mark Mazower has mordantly
dubbed “the real new international economic order”
of global market fundamentalism did. In the ultimate
compromise vote, the Nobel prize for economics for 1974
was won together by Myrdal and his ideological opponent
Friedrich Hayek – but where one of them was forgotten,
the other saw his fondest wishes come true. In the 1970s,
starting in the United Kingdom and the United States –
and in the Latin American southern cone just before and
in authoritarian form –states retrenched from social
provision, and politicians were elected (or, in Latin America,
took power) who set out to destroy the national welfarist
consensus for which human rights had offered a modest
and optional synonym three decades earlier.
Why the practical victory of that ‘neoliberalism’ occurred
when and how it did is currently a topic of heated debate.
After the 1970s, Croesus’s world came closer and closer to
being a reality, for his dreams became ours. To the extent
that a utopia of justice survived, it was global but minimal,
2 See ‘Towards a history of the New International
Economic Order’ (2015), special issue of Humanity: An
International Journal of Human Rights, Humanitarianism, and
Development 6(1).
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Human rights and the age of inequality
allowing for the worst state abuses to be decried, while in
the socioeconomic domain it pictured a oor of protection
without a ceiling on inequality.
Whatever its potential in theory, the human rights regime
and movement adapted in practice to the new ambiance.
For one thing, the idea of human rights in its heroic age
followed the transformation of political economy in its
scalar leap beyond the nation and towards the globe.
Further, it prioritized not the agency of states to launch and
manage national welfare but the rights of individuals to be
free from harm and to enjoy a rudimentary government that
at best averted disaster and abjection, especially in the
socioeconomic realm, where a measure of social equality
was simultaneously forsaken by faltering welfare states
as an ideal. The basis in national and frequently ethnic
solidarity that had allowed for higher levels of redistribution
within national settings had admittedly come along with
built-in exclusions. But in exchange for its inclusion and
even cosmopolitanism, the rise of human rights abandoned
any egalitarian pressure in theory and practice.
Consider the parallels between market fundamentalism
and international human rights, to see if they go beyond
their bare simultaneity. Both have some relationship to
earlier liberalism that they intentionally revived in the
face of twentieth century threats, both totalitarian and
merely socialistic. Both contemplated an individualistic
and globalizing remedy to what they regarded as the
pathologies of a national welfarism too committed to the
values of collectivity and sovereignty, and not least when it
came to the postcolonial developmentalist state. Both fell
on deaf ears in the 1940s –with the refugees of economic
liberalism seeking asylum in the altitudes of Mont Pèlerin
to ride out the storm of national welfarist victory, and a tiny
band of international lawyers interested in activating the
role of human rights across borders postponing their plans
to a later era. Then both, in a remarkable and unexpected
reversal of fortune, experienced a moment of breakthrough
in the mid-1970s: Milton Friedman –Hayek’s successor as
worldwide champion of free markets and small government
–was given the Nobel prize for economics in 1976, while
Amnesty International won the Nobel prize for peace in
1977. Both, nally, have dened the decades since in
their respective domains of international economics and
international ethics.
In spite of the obvious objection that the Universal
Declaration – like our generous Croesus – offers a oor of
protection against the worst miseries of free markets, the
apparently tight chronological relationship between the
twinned rise of human rights and of ‘neoliberalism’ is so
tantalizing that it has provoked a range of responses. Could
the rise of human rights really have nothing to do with the
rise of market fundamentalism –or at least the decline of
national welfarism? This question drives the third stage of
the history of human rights told in connection with political
economy. The answer I would give – others are available –
takes a middle way between those who claim that human
rights escape scot-free from the charge that they abet
market fundamentalism, and those Marxists who reply
that they are nothing but an apology for it. Attention to this
problem has generally remained stuck at the threshold:
broad chronological and substantive parallels between
human rights and market fundamentalism. Naomi Klein’s
folkloristic history of the ‘shock doctrine’ rightly dates the
possible connection to the 1970s, but wrongly focuses
on authoritarian violence as the most important thing to
consider, in the laboratory that Augusto Pinochet’s Chile
provided to free market experiments, before Ronald Reagan
and Margaret Thatcher even came to power.
In my view, the real trouble about human rights when
historically correlated with market fundamentalism is
not that they promote it but that they are unambitious
in theory and ineffectual in practice in the face of its
success.3 Against more conspiratorial accounts that
view human rights as a dastardly accomplice of shifts in
global political economy, I would emphasize the simple
failures of human rights regimes and movements in the
socioeconomic domain. For there is this extraordinary
difference that divides the otherwise companionable
3 For helpful guides to debates about the effects of
economic and social rights protection, see Bjørnskov &
Mchangama (2013) and Landau (2012).
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Human rights and the age of inequality
pair of market fundamentalism and human rights: the
one has massively transformed the world, whereas the
other has been condemned merely to watch. In a vulgar
formula, neoliberalism, not human rights, is to blame
for neoliberalism. The real trouble is that those systems
of law and programmes of action that have so far been
established around socioeconomic rights have made of
them neither an enabling tool, nor a threatening enemy,
but a helpless bystander of market fundamentalism. At
most, their tragedy is that they have occupied the global
imagination among those committed to genuine reform, but
have so far contributed little of note, merely nipping at the
heels of a giant whose path goes unaltered and unresisted.
In the end, the biggest reason that human rights have
been a powerless companion of market fundamentalism
is that they simply have nothing to say about inequality,
which we now know to be the central achievement, locally
and globally, of the new political economy. The chief worry
about the established idealism of our age is not that it
destroys the very socioeconomic oors it wants to build,
let alone abets “disaster capitalism” (in Klein’s phrase)
whose primary form is repression or violence. In too many
places, those oors never existed in the rst place, and
global capitalism is hardly the only or even the main
source of state abuses. Indeed, there is no denying that
after 1970s, mainly thanks to Chinese marketization, more
humans were brought out of poverty –and thus above
a basic threshold of socioeconomic protection –than by
any prior force in history. Rather, the problem is the one
Croesus’s example is supposed to illustrate: even were
all the dreams of international human rights movements
to be fullled, it is as much low ambitions as failures to
realize them that made human rights companions of market
fundamentalism.
In short, the chief connection between human rights and
market fundamentalism is a missed connection: precisely
because the human rights revolution that has focused so
intently on state abuses and has at its most ambitious
dedicated itself to establishing a normative and actual
oor for protection in the socioeconomic domain, it has
failed to respond to – or even allowed for recognizing –
neoliberalism’s obliteration of the ceiling on distributional
inequality. Our world has come to resemble Croesus’s world
more and more, since humanity has so far only found a way
to embed the demand for a modicum of social equality in
the form of a national welfarism now superannuated and
irretrievable, while the human rights movement has neither
the tools, nor really the desire, to bring the egalitarian task
to the globe, or even specic nations.
Another human rights movement?
Could a different form of human rights than the regimes
and movements spawned so far correct this mistake? I
doubt it. To be absolutely clear, this is not to contradict the
moral signicance and possibly even historical success
of human rights when it comes to their core uses in
combating political repression and restraining excessive
violence. But when inequality has been contained in human
affairs, it was never on the sort of individualistic, and often
antistatist, basis that human rights do indeed share with
their market fundamentalist Doppelgänger.
And when it comes to the necessary mobilizational
complement to any programme, the chief tools of the
human rights movements in its most renowned and
possibly successful campaigns –the critique of state
repression and the melioration of disasters of war –are
simply not t for use in the socioeconomic domain. It is
in part because the human rights movement is not up
to the challenge when it comes to each and every of its
self-assigned tasks that it has been condemned to offer
no meaningful alternative, and certainly no serious threat,
to market fundamentalism. The success and prestige
of human rights in our day –and the absence of other
political approaches – has bred the mistake of the man
who, lacking anything but a hammer, then treats everything
like a nail. Croesus’s world is safe from the drastic
mismatch between need and remedy as human rights
regimes and movements so far can present it.
In Herodotus’s Histories, Solon’s shaming of Croesus
merely took him down a peg. It was only Persian armies
that toppled him. The truth is that global socioeconomic
justice, like local socioeconomic justice, would require
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Can human rights bring social justice? Twelve essays
Human rights and the age of inequality
redistribution under pressure from the rich to the poor,
something naming and shaming is never likely to achieve,
even when supplemented by novel forms of legal activism.
Thinking historically, it can be no accident that the era of
the moderation of inequality in the mid-twentieth century
was also the age of both totalitarian regimes and a cold
war that exacted an appalling toll on the world, including
at the hands of the ultimate victor. At the zenith of national
welfare, a oor of protection came linked to a ceiling on
inequality, and both were built together, only in the presence
of frightening internal and external threats – a workers’
movement and a communist menace. In response to those
dangers, change came thanks to a ‘reformism of fear’ – the
working class was placated and untold violence was brought
against enemies, often at home and always abroad.
Yet if the human rights movement at its most inspiring
has stigmatized such repression and violence, it has never
offered a functional replacement for the sense of fear that
led to both protection and redistribution for those who were
left alive by twentieth century horror. If a global welfarism
is ever to be brought out the realm of the ideal where it is
currently exiled, it will need to be championed not only as a
programme but also by a movement. But it will not look like
our human rights movement, which has become prominent
as our world has become more like Croesus’s world each day.
None of this is to say that human rights activism, to which
Amnesty International made such an epoch-making and
dening contribution in the last century, is irrelevant.
The stigmatization of states and communities that fail to
protect basic values is –so long as it is not selective and
a smokescreen for great power politics – a tremendous
contribution. But human rights advocates in their current
guises do not know how to stigmatize inequality, and
not principles but a new political economy would have to
be invented to actually moderate it. Most of all, history
suggests that they are the wrong kind of agent: not fearful
enough to provoke redistribution. Could a new form of
human rights mount such a challenge? Possibly, but it
would need to be so different as to be unrecognizable, and
threaten the power to stigmatize in the face of the violation
of basic values that activists have carefully and with much
hard work learned to achieve. If this is correct, human
rights movements face a deeply strategic choice about
whether to try to reinvent themselves – or whether to stand
aside on the assumption that as inequality grows, someday
its opponent will arise. Until then, Croesus’s world is our
common fate.
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
While human rights do not provide any magic bullet to
solving social and economic injustices, the framework of
human rights can channel social justice activism in ways
that are benecial to alleviating unnecessary suffering.
Economic and social rights can guide efforts to reform
international, state, and corporate actors in ways that
remedy but do not necessarily end social inequality.
Introduction
By now, we should all be familiar with statistics describing
the extent of global economic inequality. According to
Oxfam International, the wealthiest 85 people on the planet
own as much as the poorest 3.5 billion people, or 50 per
cent of humanity (Hardoon 2015). By 2016, the richest 1 per
cent of the world’s population will likely own more than the
other 99 per cent combined.
Some people actually applaud these facts. For example,
multimillionaire Kevin O’Leary (2015), a panellist on the
popular US television show Shark Tank, stated that “this is
fantastic news… because it inspires everybody, gives them
motivation to look up to the 1 per cent and say, ‘I want to
become one of those people’”. However, many others believe
that this is an absurd level of inequality that represents a
profound injustice.
How does the global human rights movement respond to
this sense of injustice? Do human rights laws and norms
provide concrete guidance in dealing with socioeconomic
inequalities? Do human rights NGOs have the tools and
capabilities to contribute meaningfully to efforts to achieve
social justice? I believe that they do. While human rights
do not provide any magic bullet to solving social and
economic injustices, the framework of human rights can
channel social justice activism in ways that are benecial
to alleviating unnecessary suffering.
When considering the intersection between human rights
and social justice, it is important at the outset to dene our
terms. Different people have somewhat different denitions
and approaches in mind when they use the terms ‘human
rights’ and ‘social justice’. There is no monolithic set of
ideas, institutions, or methods that encapsulates either
the project of human rights or that of social justice. As
evidenced by the debates in a recent essay volume of
Strategic Studies (Lettinga & Van Troost 2014), ‘human
rights’ can variously refer to the international laws and
norms arising from the Universal Declaration of Human
Rights, or the activities of national and international
institutions designed to uphold those norms, or the myriad
local struggles that communities around the world wage
for their livelihoods. Although local efforts may not be
explicitly connected to national and international laws
and norms, it is clear that in some sense, ‘human rights’
refers to all of these things. There are diverse methods to
advocating, enforcing, and achieving human rights, from
international courts to national policy making to local
cultural change, and everything in between. Despite the
diversity in denitions and approaches, at its core, the idea
of human rights represents the claim that all people, based
on universally shared qualities, deserve a certain threshold
of equitable treatment that upholds their human dignity.
Likewise, ‘social justice’ advocacy does not lend itself to
a single approach. As global health advocate Paul Farmer
(2005: 157) explains, “People who work for social justice,
regardless of their own station in life, tend to see the world
Dan Chong
How human rights can address
socioeconomic inequality
20Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
How human rights can address socioeconomic inequality
as deeply awed. They see the conditions of the poor not
only as unacceptable but as the result of structural violence
that is human-made.” Thus, social justice work involves
addressing economic inequality and social marginalization
as if they were – in some sense – human rights violations,
rather than unfortunate or inevitable consequences of
history. However, beyond that core denition, approaches to
social justice can vary widely. At one end of the spectrum,
liberals seek to achieve social justice by having marginalized
groups gain access to the institutions (e.g., corporations,
the military, government, etc.) that have excluded or
discriminated against them. At the other end of the spectrum,
radical or Marxist activists seek to remedy social inequalities
by overturning or revolutionizing those very institutions that
they deem unjust. As a result, social justice work could range
from promoting female CEOs, to ghting against the very
corporations that those CEOs may lead.
Given these broad denitions, there is clearly some overlap in
goals and methods between human rights and social justice
work, but there is also some divergence. At the most basic
level, when poverty and social marginalization are the result
of a discrete act of discrimination, it is clearly identiable as
a human rights violation. Today, human rights activists also
tend to address many other instances of economic inequality
through the language of economic and social rights. But we
should remember that this was not always the case. I will
discuss some of the divergences between human rights and
social justice later, but rst it is important to establish the
compatibility of these two approaches through the framework
of economic and social rights.
The legitimacy of economic and
social rights
The Universal Declaration of Human Rights in 1948
unambiguously spelled out a list of economic and social
rights that included basic livelihood needs such as
adequate food, housing, health care, and education.
However, it took another half-century before human rights
organizations in the West – who proclaimed themselves as
global human rights advocates – actually began to ght for
these rights (Chong 2010; Nelson & Dorsey 2008).
Some prominent gures in the eld of human rights
continue to question the legitimacy of economic and social
rights. For example, a founding father of Western human
rights activism, Aryeh Neier (2006) stated:
“From my standpoint, if one is to talk meaningfully
of rights, one has to discuss what can be enforced
through the judicial process. The concern I have about
economic and social rights is when there are broad
assertions which broadly speak of the right to shelter,
education, social security, jobs, health care... then
I think we get into territory that is unmanageable
through the rights process or the judicial process...
So I think it’s dangerous to the idea of civil and
political rights to allow this idea of economic and
social rights to ourish.”
Under this formulation, human rights are primarily legal
instruments, and because advocacy for food, health
care, and education often requires non-judicial methods
and positive governmental duties, these are not valid
human rights. This has been the ofcial position of the
US government since at least 1948. Similarly, leaders like
Kenneth Roth (2004a), director of Human Rights Watch,
have argued that economic and social rights do not t
the ‘naming and shaming’ methodologies that human
rights NGOs have long mastered. The implementation
of economic and social rights requires the delicate
balancing of government budgets, rather than absolute
claims to non-negotiable rights. According to Roth,
NGOs would be better off limiting their work to those
cases in which inequality results from a concrete act
of discrimination, rather than a systemic injustice. Due
to objections like these, when NGOs such as Amnesty
International began to work on a range of social justice
issues through the framework of economic and social
rights, the move was met with much controversy.
Are economic and social rights truly legitimate human
rights, and are they appropriate instruments for NGO work?
Recent experience has proven that the answer to both
questions is yes, for two reasons.
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First, there is nothing inherent about civil and political
rights that makes their judicial enforcement uniquely
effective in a way that is different from economic and
social rights. As a recent Lettinga and Van Troost (2014)
volume makes clear, the global human rights regime has
suffered some setbacks in enforcing civil and political
rights in recent years. Whether it is the failure of the R2P
doctrine to result in a meaningful response to the Syrian
civil war, or the questions about the ICC as a legitimate
and effective global court, it is clear that global legal and
political institutions are not especially reliable mechanisms
to enforce civil and political rights. The so-called war on
terrorism has also shown that Western societies have been
willing to scrap even the most well-established rights, such
as the prohibition against torture and illegal detention,
when they perceive that their security is threatened. The
lack of any effective judicial remedy for the most agrant
cases of rendition and torture by the United States – the
self-proclaimed global leader in human rights – should
demonstrate that even courts in liberal democracies provide
no guarantee for the protection of civil and political rights.
Second, contrary to Neier’s concerns above, campaigners
for economic and social rights have been able to achieve
a measure of social justice through the process of judicial
enforcement in recent years. They have successfully
litigated economic and social rights around the world, when
national governments have been able to craft and interpret
these rights as justiciable instruments (ESCR-Net 2015).
National courts have even reviewed some notable cases
that involve the positive duty of the state to redistribute
scarce resources. For example, in the landmark Grootboom
case,1 a community of landless squatters without access
to basic public services sued the South African government
for violating their right to housing. The Constitutional
Court of South Africa found in favour of the claimants,
stating that the government must implement a reasonable
policy to allocate housing resources toward the neediest
1 South African Constitutional Court (2000), Government
of the Republic of South Africa and Others v. Grootboom and
Others, Ruling of 4 October.Available at: http://www.escr-net.
org/docs/i/401409.
populations, with a view toward progressively achieving
universal access to housing. Similarly, in the Treatment
Action Campaign case,2 the Constitutional Court of South
Africa interpreted their right to health care as requiring
that the government provide anti-retroviral drugs to all
HIV-infected pregnant women, and to take reasonable
measures to improve the public health system to prevent
HIV transmission. This lawsuit, and the public pressure
that built around it, led to a dramatic increase in the
distribution of HIV-Aids medication in South Africa in
the ensuing years, which has saved literally hundreds of
thousands of lives (AVERT 2015).
So it is clear that food, housing, and health care can be
valid human rights, even when human rights are conceived
narrowly as legal instruments. When a state makes a
commitment to embedding these rights in its constitution,
and progressive courts are willing to review the
reasonableness of government policies in upholding these
rights, then economic and social rights are potentially just
as enforceable through the judicial system as civil and
political rights. Social justice issues that involve material
livelihood and economic redistribution are part of the
canon of ‘core’ human rights, despite what some prominent
human rights activists have proclaimed (Neier 2013).
The effectiveness of economic and
social rights
However, the question remains: Are economic and social
rights particularly effective mechanisms for ghting
economic inequality and achieving broad-based social
justice? Efforts to achieve the implementation of economic
and social rights in legal and judicial arenas face some
signicant limitations (Chong 2010). First, international
law on economic and social rights is underdeveloped. In
particular, the language of Article 2.1 of the International
Covenant on Economic, Social, and Cultural Rights, which
requires states to “take steps… to the maximum of its
available resources, with a view to achieving progressively
2 South African Constitutional Court (2002), Minister of
Health v. Treatment Action Campaign, Ruling of 5 July. Available
How human rights can address socioeconomic inequality
22Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
the full realization” of these rights, opens itself to a wide
range of interpretations.
At the national level, many states do not have as progressive
a constitution as South Africa, and many national courts
are unwilling to review social and economic policy (Piovesan
2002). This is particularly true in the United States, the world’s
largest economy, which remains opposed to legal protections
against poverty at both the national and international levels.
The United States justies its position based on libertarian
notions of democratic capitalism, arguing that the best way
to progressively realize an end to poverty is for the government
to shift responsibility for social welfare onto private actors.
Under this laissez-faire economic ideology, any attempt by
government to enforce legal rights to food, housing, and health
care calls up the dreaded labels of socialism and tyranny.
Inequality is therefore a natural and benign consequence of
capitalist economic growth, as Mr. O’Leary claimed above.
Given the vagueness of international law and the ideological
controversies surrounding economic policy, it can be difcult
to come to a consensus on what constitutes a violation of
economic and social rights. Policy makers can make the see-
mingly reasonable – even if inaccurate – claim that signing
free trade agreements, passing tax cuts for the wealthy, and
eliminating labour and environmental regulations will lead to
economic growth, thereby eliminating poverty and achieving
social justice. Holding such a government legally accountable
for social justice obligations is a major challenge.
Another limitation in judicial approaches to economic
and social rights is the fact that litigation is typically
an expensive and relatively inaccessible form of social
activism. Defending legal rights requires a level of legal
expertise that the vast majority of poor and marginalized
people cannot easily obtain. Even when cases are litigated
successfully, as in the examples from South Africa, court
rulings can be limited in scope to a particular population in
unique circumstances, and can be difcult to enforce upon
intransigent governments.
Therefore, it is not sufcient merely to demonstrate that
social justice concerns are legitimate targets of human
rights activism. The human rights community must
continue to develop effective methods for advancing these
concerns, and a purely legalistic approach to social justice
is inherently limited.
But economic and social rights are not unique in this
respect. Many of these same challenges – inaccessible
legal processes, ideological resistance, and ineffective
institutions – are also found in approaches to civil and
political rights. From torture in the United States, to war
crimes in Syria, to female circumcision in Egypt, the law
has not adequately protected some of the most basic civil
and political rights. The major international human rights
organizations, predominantly staffed by legal experts, have
often hoped that the technical language of the law and
the routinized processes of judicial systems would allow
them to advance human rights in a non-ideological and
politically neutral manner. However, human rights have
always been politically controversial, and an orientation
toward a narrow set of legally enforceable civil and political
rights has never fully protected human rights NGOs
from criticisms of partiality or bias. When NGOs identify
violations by their own governments, they are accused of
political partisanship; when they criticize the practices
of other states, they are accused of foreign interference
and Western bias. As long as human rights organizations
consistently apply international standards, an embrace of
social justice issues should not substantially change this
calculus. Whether it is social justice or criminal justice, the
only way forward for human rights is to engage directly in
political, economic, and cultural debates.
What human rights bring to social
justice work
Social and political activism, from demonstrating outside
a World Bank meeting, to boycotting a fast food restaurant,
to organizing a social media campaign for a living wage, is
the bread and butter of social justice work. Social justice
organizations, from the global to the local, are renowned
for addressing the systemic causes of social inequality
and confronting directly the institutions and ideologies
that perpetuate this inequality. The opportunity for synergy
between human rights and social justice work is signicant
How human rights can address socioeconomic inequality
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
here. When dened sufciently broadly, both human
rights and social justice advocacy involve empowering
disenfranchised people to achieve an adequate livelihood,
a sense of personal dignity, and a level of social equality.
Human rights organizations such as Amnesty International
can continue to partner with and support myriad social
justice organizations around the world that are working to
uphold human dignity. Many of the methods they employ
will be the same ones they have used for decades to defend
civil and political rights – documenting and publicizing
abuses, comparing state practices to international laws and
norms, and using mechanisms at the national, regional,
and global levels to change behaviour. Some NGO methods
may need to be adapted to social justice concerns, as when
human rights organizations target shaming campaigns
and shareholder actions directly at corporations rather than
states. Some new methods may need to be employed, such
as creating quantitative indicators to measure performance,
or expanding tools for analysing national budgets, or
developing enforceable international standards for corporate
accountability (Corkery 2012). But as Saiz and Ely Yamin
(2013) argue, methods of advocacy should adapt to meet an
organization’s mission, and not vice versa.
This kind of advocacy often involves legal and judicial
methods, but “the most durable and transformative change
comes about when judicial challenges and policy advocacy
aimed at decision-making elites has been part of a broader
strategy enabling social justice movements to deploy the
tools of human rights advocacy in ways adapted to their
particular context” (Saiz & Ely Yamin 2013). This pairing of
legal strategies and mass mobilization is what made the
Treatment Action Campaign in South Africa so successful a
decade ago (Young 2012: 251).
In doing so, human rights organizations do not have any
kind of magic formula that would make social justice
work more effective. However, I do believe that the human
rights movement can channel social justice work in useful
ways, to ensure maximum convergence between the two
approaches. As I mentioned above, while there is signicant
overlap in how human rights and social justice groups work
for dignity and equality, there is also some divergence.
Social justice activism can involve a wide range of methods
and ideological commitments, from lobbying for equal
pay in the workplace, to fomenting a violent revolution.
Not all of these methods and commitments are consistent
with human rights. A human rights framework therefore
has the potential to unify diverse movements around a
single theme, while at the same time excluding methods
of achieving social justice that fail to meet human rights
standards.
One of the dening characteristics of the human rights
framework is its inherent universalism. Human rights
applies to all humans equally, regardless of membership
in any gender, ethnic, religious, or economic group. In
this way, advocating for human rights can help overcome
the narrow identity politics and selective outrage that
often inicts social movements. Social justice work is
often identity-specic: Christians are concerned about
the persecution of Christians, workers ght against the
outsourcing of their own jobs to foreign countries, and
racial minorities struggle against discrimination and
prejudice. Group identity can be a strong motivator to
mobilize social justice activists, but it is also inherently
limited insofar as it excludes other like-minded allies.
Indeed, group identity has often become the basis by which
self-proclaimed social justice movements violate the
rights of others in pursuing their goals. One group that has
endured discrimination ends up attacking or competing
against another group that has experienced its own share
of discrimination.
In response, the human rights framework argues in
favour of social justice for people qua humans, which can
build the politics of solidarity rather than identity. This
universalism is what has helped make human rights the
“lingua franca of global moral thought”, imbuing it with a
sense of global legitimacy (Ignatieff 2001: 53). Rather than
resorting to identity politics, the human rights framework
identies areas of principled overlap between the claims
of various marginalized groups. It holds the potential to
create alliances within social movements, whose success
often depends upon mass mobilization. The added value of
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24Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
human rights to social justice movements is not only in the
new tools and mechanisms that activists might access, but
in the unifying framework that adds voices, numbers, and
leverage to the movement.
The human rights framework also requires that actions to
remedy injustice are consistent with respecting the rights of
others. Many so-called social justice movements in history
have resulted in bloody civil wars, violent revolutions, or
oppression by the formerly oppressed (Neier 2013). In these
cases, efforts to achieve social justice can clearly diverge from
human rights. Human rights do not call for the radical equality
of social and economic outcomes that must be achieved
through violent revolution and imposed by an authoritarian
government. Instead, human rights arise from a “morality of
the depths”, requiring states to ensure that all people receive
at least minimally adequate treatment that respects their
basic dignity (Shue 1996). Human rights do not advocate for
an end to all economic inequality, but for an adequate remedy
when inequality impedes the livelihood of the poorest and
most marginalized. This minimalist focus on state institutions
following the rule of law makes human rights activists tend
to support non-violent reformist solutions rather than violent
revolutionary ones. The reformist ethos of human rights may
not satisfy more radical social justice activists, but moderate
activists should embrace this approach. History has shown
that violent revolutions in the name of social equality have
often failed to achieve either peace or justice, whereas non-
violent movements have been found to accomplish their goals
more effectively (Chenoweth & Stephan 2012). Reformist
approaches also have a better chance of attracting public
support in ideologically conservative nations like the United
States, where more radical approaches to social justice are
considered anti-democratic.
Thus, in its universalist and minimalist incarnation, human
rights proclaim that states have legal and moral obligations
to implement reasonable policies that would create solutions
to extreme forms of economic and social inequality. When
applied to social justice work, economic and social rights
dene poverty and marginalization as human-made
institutional failures that require a remedy, rather than
accidents of history or unfortunate circumstances.
Limitations and ways forward
Due to the reformist nature of the current human rights
framework, it should also be clear what it cannot
accomplish for social justice activists. Although it demands
remedies for radical inequalities, it cannot justify a Marxist
revolution or a state that seeks to achieve an equality of
economic outcomes through oppressive means. Although it
can condemn certain state practices, it cannot prescribe a
single appropriate set of political institutions and economic
policies. Although it can remain impartial with respect
to any government afliation or political party, it cannot
provide ideologically neutral, technocratic solutions to
politically-charged problems. And although it can provide
remedies for the worst effects of neoliberal globalization,
it has not yet created enforceable standards that would
regulate the global marketplace or reverse the spread of
corporate power.
Given these limitations, the international norms of human
rights still provide some minimal policy guidelines for
states and other actors to achieve social justice. This
would involve, rst, doing no harm. States, international
organizations, and corporate actors must implement
development policies that do not discriminate against
disenfranchised groups, displace local communities, or
deny people a right to a basic livelihood. Second, when
economic policies create trade-offs or result in loss and
displacement, poor communities must receive adequate
compensation. States must administer at least a minimally
adequate and progressively improving social safety net for
people who cannot fend for themselves. This includes basic
income, nutrition, shelter, access to health care, and other
public goods that are required for maintaining personal
dignity. As such, the human rights framework explicitly
rejects libertarian arguments for trickle-down economics
that absolve the government from responsibility for social
welfare. Third, human rights assume that states’ social
justice obligations do not end at their national borders.
International cooperation and assistance is required to
achieve social and economic justice, whether it be in the
form of humanitarian aid, preferential trade policies,
support for migrants, or help with conict prevention.
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
These obligations are obviously difcult to enforce through
national judiciaries and international institutions, but that
is not the main goal. A major advantage in connecting
human rights and social justice work is in the political
advocacy and cultural change that can result from the
overlap between these two movements. This advocacy can
improve upon some of the limitations that are inherent
in judicial approaches to human rights. When judicial
remedies are not available or accessible to marginalized
communities, human rights and social justice activists can
build social movements that pressure governments to enact
effective policies, and pressure courts to reinterpret the law
(Balkin 2005). Social movements in many countries have
achieved widespread cultural acceptance of LGBT rights
many years before any legal or policy changes were enacted.
Working together, human rights and social justice groups
have pressured multinational corporations to adopt social
responsibility codes and join the UN Global Compact in
order to voluntarily regulate their practices.
Ultimately, a human rights organization’s decision about
which campaigns to pursue, which partners to join, and
which methods to employ are dependent upon its local
context as much as upon global trends. But we should
be clear that the global human rights movement would
be woefully inadequate and incomplete if it failed to
incorporate social justice concerns.
Human rights and social justice organizations have the
opportunity to build effective social movements in areas
where their values, goals, and methods converge. This
does not guarantee success, but it does take advantage
of the philosophical and strategic overlap between these
two arenas of activism. It does not promise an end to
all economic and social inequality, but it does hold the
potential to mitigate the most pernicious effects of extreme
inequality.
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27Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Widney Brown
Seeking socioeconomic justice
The divide between civil and political rights and economic,
social and cultural rights has undermined the realization of
all human rights by effectively giving cover to governments
that want to ignore their human rights obligations. The
international human rights movement must challenge
economic actors and systems and recognize that it has to
rethink its Western construct of impartiality.
Introduction
The long-running debate within the human rights
movement on the differences between civil and political
rights and economic, social, and cultural rights has too
often led to an assumption that the traditional tools of
human rights activists, such as documentation, naming
and shaming, standard setting, and litigation, are
unhelpful in campaigning for the realization of economic,
social and cultural rights.
Inherent in this assumption is the belief that realization of
these rights is primarily related to resources. How a state
allocates its resources is seen as primarily a political not
a human rights question. Complicating this debate has
been the deliberate conation by many developed countries
of democracy with capitalism and open markets. States
are pressured not just to respect civil and political rights
but also to dismantle protective economic policies such as
trade tariffs, and to allow the market to determine the price
of food, health care, school fees, and housing rather than to
provide subsidies that ensure people can enjoy the rights to
food, health, education, and shelter.
In a long-running debate between Leonard Rubenstein and
Kenneth Roth published in the Human Rights Quarterly
(Roth 2004b), Roth said that human rights organizations
can only do effective work on violations when there is a
clear violation, a clear violator, and a clear remedy. This
model, Roth argues, is effective in addressing violations of
civil and political rights, and is applicable to violations of
economic, social and cultural rights only when they can be
forced into this analytic framework.
Many violations of economic, social, and cultural rights
do t within this framework. Both de jure and de facto
discrimination by states is one of the largest drivers
of violations of economic, social, and cultural rights.
Similarly, failure to prevent or at a minimum ensure an
effective remedy for discrimination by non-state actors also
drives these violations.
I would like to explore the assumptions behind the
violation, violator, and remedy model as it applies to
civil, cultural, economic, political and social rights, and
explore how the persistent treatment of economic, social
and cultural rights as signicantly different from civil and
political rights undermines fullment of all rights. I want
to then examine how the assessment that economic, social
and cultural rights being primarily a resource question
raises the issue of the human rights system’s silence on
political, economic or religious structures. I will argue
that although human rights organizations or advocates
should not be conducting advocacy regarding allocation
of resources except in some specic circumstances, they
must address deeper structural causes of human rights
violations by revising their notion of impartiality.
Let’s explore China and the US. Although the famous ‘iron
rice bowl’ which supposedly provided cradle to grave
economic security for the people of China has long been
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Can human rights bring social justice? Twelve essays
broken, the Chinese government proclaims that it respects
economic, social and cultural rights. China produces
approximately one-third of the global annual output of coal,
but it accounts for more than two-thirds of the world’s
mining-related deaths (Mining Technology 2014). Miners
in China do not have the right to organize. This makes it
impossible for people working in the mines to collectively
demand safer working conditions.
The US claims to be a leader in its respect for civil and
political rights. The government leaves realization of
economic, social, and cultural rights to the market.
According to the National Coalition for the Homeless, the
leading causes of homelessness in the US are lack of
affordable health care, mental illness, drug addiction, and
domestic violence.1
Many homeless people are disenfranchised. Homelessness
is criminalized in the US (Cantú 2014) and homeless people
face incarceration because they violate laws which prohibit
things such as ‘urban camping’ or public urination. If
homeless people cannot vote, they cannot inuence policy
makers to implement programmes for housing for all. Civil
and political rights fail to protect economically and socially
marginalized people in the US.
Violator or system?
When documenting human rights violations, it is easy to
focus on the individual actor – the bad cop, the corrupt
bureaucrat, the brutal predatory military commander.
Individuals, acting under the colour of state law, are
relatively easy to identify, to get evidence against, and
to demand accountability of. But sometimes it is easier
to focus on the individual while ignoring the ways that
systems either allow for these individual ‘bad actors’ or
actually create them. Additionally, focusing on individual
violators allows the state to claim that the bad cop was
‘rogue’, the corrupt bureaucrat an ‘exception’, or the brutal
military commander was acting beyond his authority.
1 See: http://nationalhomeless.org/about-homelessness/.
Sometimes the failure of the system is relatively easy to
analyse and to x. Human rights activists know how to
prevent torture. Torture must be clearly dened as a crime
within the penal code. Rules of evidence must ensure that
the testimony of a person claiming that s/he has been
tortured is not weighted as inherently less credible than
that of the person accused of committing torture. Police and
prison guards must all be trained about their obligation to
refrain from committing or tolerating acts of torture. They
should understand additionally that any ‘confession’ or
evidence obtained through torture cannot be used in a court
of law except as evidence that torture occurred.
Most safeguards against torture are procedural. A
person must only be detained after the authorities haves
established probable cause; the detainee must be informed
of why s/he is being detained, be apprised of where s/he
will be held, have immediate access to a lawyer, and be
brought before a judge within a reasonable time to hear the
charges. Should a detainee report torture, either to judicial
or police authorities, an independent investigation should
be undertaken – including an assessment of the detainee
by trained clinicians to document evidence of torture.
Finally, any individual found to have committed torture
should be held accountable for the crime of torture.
Governments can and should prevent torture by putting
clearly dened systems in place and monitor the
effectiveness of such systems. Documenting individual
incidents of violations and identifying violators are
primarily effective in exposing the problems and failures
with the systems. Preventing torture requires the state to
invest in its criminal justice and policing systems. It is an
ongoing investment.
The need for that ongoing investment becomes apparent
when addressing discriminatory application of the criminal
law and the impact on marginalized communities. The
fastest way to understand the political and social fault
lines in any society is to visit its prisons. Not only can one
see who gets caught up in the criminal justice system
but also what laws are used to drive marginalization of
disempowered communities through that system.
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Seeking socioeconomic justice
In Afghanistan, the only women’s prison houses women
and girls, many of whom are facing charges of committing
“moral crimes”, i.e., having sexual relations outside
of marriage (Khamoosh 2014). Others are being held
without charge because their ‘crime’ is eeing an abusive
relationship. That women are charged with moral crimes
based on pseudo-scientic ‘virginity tests’ demonstrates
the systematic bias against women that permeates the
criminal justice system and the larger society. Reforming
the criminal justice system to bring it into compliance
with international standards would require signicant
investment in reform effort but also in gender equality and
women’s rights.
Afghanistan is not unique. Roma in Europe, African-
Americans in the US, Indigenous Peoples in Australia,
immigrants in South Africa, Palestinians in Israel… The
list goes on. The scourge of discrimination and disparate
treatment is a powerful lens in understanding how all
human rights are inextricably linked.
Of the rights enumerated in the Covenant on Economic,
Social and Cultural Rights (ICESCR), education is the most
well-articulated. State parties are required to ensure that:
“Primary education shall be compulsory and available free to
all…” While all the rights in the ICESCR must be progressively
realized, the right to universal primary education must be
implemented pursuant to a plan within two years.
As with the criminal justice system, documenting violations
of the right to education can focus on individuals: the
administrator who demands bribes from parents, the
teacher who demands sexual favours from his students,
a school governing board that excludes girls from the
classroom. But an exclusive focus on individual bad actors
can obscure the failure of the government to put in place
the systems needed to realize the right to education.
The criminal justice system and an education system may
seem worlds apart. However, both must be established in
law because they must be established and administered
consistent with the obligations of international human
rights laws. Both must be regulated to ensure that the
people who work within these systems are qualied and
overseen. Both must be accessible to all. The content that
drives their work is different – but as police must work with
a well-articulated penal code, so teachers must work with
well-developed and comprehensive curricula. Once the two
systems are subject to comparison, it is obvious that both
require signicant resources.
Resource allocation and human rights
That being acknowledged, what is a subject of great debate
is who makes the decisions about allocation of resources
– either within the criminal justice or education systems
or between these and many other systems? And does the
human rights framework provide guidance or principles
that inform how those resource decisions are made?
Roth argues that international human rights actors are
ill-placed to make these decisions and therefore cannot
work on issues of resource allocation. While it is true that
human rights organizations or advocates working at the
global or regional level should not advocate on allocation
of resources except in some specic circumstances, it does
not mean that human rights advocates cannot engage in
meaningful advocacy about decision-making.
Which brings us to the role of democratic societies in
the human rights framework and the role of the justice
system: many human rights organizations avoid the
question of political systems, preferring to focus on
whether a government respects rights. The International
Covenant on Civil and Political Rights (ICCPR) tries to avoid
calling explicitly for specic political or legal systems as
fundamental to the realization of human rights, yet it is
implied within the Covenant that the system is democratic
(“The right of peaceful assembly shall be recognized. No
restrictions may be placed on the exercise of this right other
than those that are imposed in conformity with the law and
which are necessary in a democratic society” (emphasis
added)).2 Article 26 of the ICCPR further assumes the
existence of a justice system that ensures equal protection
2 ICCPR, Article 21. See also Article 22.
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Can human rights bring social justice? Twelve essays
of the law (“All persons are equal before the law and are
entitled without any discrimination to the equal protection
of the law”). This article is broader than Article 2, which
prohibits discrimination with regard to the laws enumerated
within the ICCPR because equal protection of the law would
cover all laws.
The question of democracy and the role of the justice
system were highlighted during the uprisings in the Middle
East and North Africa and the subsequent protests that
swept around the world. Starting in Tunisia, these protests
were a cry for “bread, freedom, social justice, and dignity”
(“aysh, hurriya, adala ijtima’ia, karama”). There was no
attempt to separate out the desire for economic security
and opportunity from an end to repression and access to
justice. People living at the intersection of repression and
corruption know full well that the two go hand in hand.
Thus the debate is not how civil and political rights are
different from economic, social and cultural rights but
rather how to build a participatory system of government
and a justice system that are designed to ensure respect for
all human rights for all people.
Illusion of impartiality
Human rights activists who have maintained impartiality
with regard to political or economic systems must ask
themselves some hard questions in the wake of the popular
uprisings that were born in the Middle East and North Africa.
For example: “Did refraining from calling Zine el-Abidine Ben
Ali a dictator protect the rights of people living in Tunisia?”
“Does remaining agnostic on the free ow of capital while
restricting the ow of labour provide protection for migrant
labourers in Abu Dhabi?” “Does remaining silent on issues
of trade barriers support the rights of farmers in Senegal
and food security for people living there?”
And perhaps the most painful question is: “Does impartiality
fail people in developing countries who see the silence not
as a core value but rather as a betrayal of their rights?”
Behind this assessment is the perception that human
rights advocates working at the global level have largely
been privileged, and that this privilege has owed directly
from their citizenship of countries with long histories of
exploitation of the people and resources in developing
countries. The impartiality, when analysed through this lens,
seems more self-interested than principled.
Which brings us to the issue of democracy and human
rights. It is widely accepted that resource decisions have
a huge impact on all human rights. Underpaid police
often rely on bribes to feed their families and in doing so
undermine the integrity of the justice system and people’s
trust in the police. Marginalized communities, even in the
wealthiest countries, are often underserved because their
voice is stied with regard to the allocation of resources.
So democracy is a necessary, though not sufcient
element of a rights respecting society. How does / should
this work? In democracies, people regularly vote either
directly on propositions related to resources or for people to
represent their interests in these debates. For a democracy
to be functional within a state, arguably all those who
are subject to the government must have the right to
participate in the democratic processes. This includes all
people. Some, such as infants and young children, may
be represented through their families – but their interests
must be represented. Others who have traditionally been
excluded should be represented, e.g., residents who are not
citizens as well as migrants and their families in irregular
situations. I will address the latter in the context of the
open markets issue.
I am focusing less on elections and more on being able
to engage in the political debate, whether it is about if
drugs laws should be reformed to end criminalization or
whether drugs should be made available for the purposes
of palliative care. I use this example specically because
the issue of a state’s drug policy may be about the criminal
justice system or the right to health, demonstrating that
the silos governments have attempted to build around
different rights simply cannot withstand interrogation.
This is not to say that elections of representatives are
not important. But voting every few years for members of
parliament without the ability to both demand political
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debate and participate in it, means that democracy is largely
constructed as a single act every few years, not a participatory
process. In addition to electing representatives, people should
be able to directly inuence government policies. Doing
so effectively implicates the exercise of myriad rights. For
example, for an indigenous family in rural Guatemala, the
ability to participate in debates about access to education
for children is critical. But to be able to participate in a
meaningful way, that family needs to have information in a
timely and accessible form, and a seat at the table. The right
to information must be buttressed by freedom of expression
and assembly and the equal protection of the law.
A true democracy thrives on transparency. A government
may argue that it is too expensive to build schools for
children in rural areas where indigenous peoples primarily
live – a classic defence that progressive realization requires
resources. But what is cast as a resource issue can only
be properly analysed if the government discloses how its
education system is designed, accessed, and funded.
Analysis of the allocation of resources may reveal that the
state either directly distributes more resources to those
who are powerful or indirectly subsidizes education for the
privileged – not those with the greatest need. Global human
rights organizations should advocate for the conditions of
meaningful participation in democratic processes and can
do so without having to advocate for any specic position.
Limitations of democratic systems and
the subversion of democracy
While a democratic system as referenced in the ICCPR is
arguably necessary for the realization of the full array of hu-
man rights, it is not sufcient. The risk of a purely democratic
system is that majoritarian rule will lead to the deprivation
or under-resourcing of rights of those who are politically or
economically marginalized. An independent judiciary working
within the human rights framework is a counterbalance to
such majoritarian impulses. If domestic legal systems fail to
provide this counterbalance to protect those who are either
marginalized or outnumbered from the tyranny of the majority
or the self-serving policies of the privileged, regional and
international human rights mechanisms come into play. With
access to information and understanding of their rights and
the human rights system, those whose rights are under re
by majoritarian or discriminatory systems can turn to region-
al and global mechanisms.
We have seen persistent undermining of both democracy
and decisions regarding equitable allocation of resources
by international nancial institutions and private economic
actors. The structural adjustment policies imposed by
international and regional nancial institutions and other
governments on many developing countries in the 1980s
have been resurrected most recently to address economic
turmoil in the Eurozone.
These policies are based on an assumption that austerely
focusing on cutting the provision of services by the state
is the answer. In many cases it means that people will be
deprived of health care, education, etc. These completely
foreseeable consequences are not analysed as violations
of the right to health and education. Human rights are
dismissed as an expensive externality. These policies are
not just undermining human rights, but they have long-
term consequences as under-educated children grow up to
have limited opportunities and therefore may become just
single individuals in the vast pool of cheap labour.
Besides international nancial institutions, other key
actors that may subvert democracy and undermine
rights in a country are private economic actors. Some
powerful corporations have revenue that exceeds the GDP
of the majority of countries in the world (Trivett 2011).
Corporations are accountable to their shareholders and the
duciary duty of the Board is to maximize prots. Although
the Ruggie principles3 proclaim that corporations and other
economic actors have a responsibility to “at a minimum,
3 The United Nations Guiding Principles on Business and
Human Rights (also ‘Ruggie Principles’) are non-binding
requirements for companies to respect human rights, and
proactively take steps to prevent, mitigate and, where
appropriate, remediate, their adverse human rights impacts.
The Principles were developed by John Ruggie as the UN
Special Representative for Business and Human Rights, who
presented them to the UN Human Rights Council in June
2011. See: http://www.ohchr.org/Documents/Publications/
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Can human rights bring social justice? Twelve essays
respect human rights”, this respect is subjugated to the
prot motive. Despite attempts to prevent corruption, many
companies see corruption as the price of doing business
and have little regard for how it undermines human rights
and destroys any system of accountability.
This dynamic of corporations undermining democracy
and human rights is most apparent in the arena of trade.
Developed countries and corporations are the champions of
‘free trade’ and ‘open markets’ which are often touted as a
silver bullet to cure poverty. Scant attention is paid to either
the historical reality of how developed economies were
able to build sustainability through protectionist practices.
Instead, developing countries are effectively corralled
into opening their markets and dismantling any trade
tariff even when such action will destroy a sector such as
domestic agriculture. These policies put people within these
countries at risks when uctuations in the market mean
that instead of dumping cheap food into these markets,
trade is restricted and there is no ability to support food
sustainability at the domestic level.
For example, investment in bio-fuels led to shortages
of food staples, spikes in the prices of food staples,
and unrest in many countries in the mid to late 2000s
(Chakrabortty 2008). If developing countries had the space
to put in place even temporary trade tariffs on foods, they
could support the growth of domestic agriculture and
ensure food sustainability for the people they govern. As the
US Supreme Court decision in Citizens United demonstrates,
the subversion of democracy by corporate interests is not
limited to developing countries.4
Finally, I would be remiss if I did not note that religious
4 Supreme Court of the United States (2010) Citizens United
v. Federal Election Commission, Appeal from the United States
district court for the district of Columbia, 21 January, No. 08-
205, 558 U.S. 310. The court held that the First Amendment
prohibited the government from restricting corporations
expenditures, e.i. political campaign communications. The
institutions also often undermine both human rights
and democracy. Besides the obvious examples of many
religions in their fundamentalist form disempowering
women in order to ‘protect’ them, religious intolerance often
expresses itself in the discrimination and persecution of
other religious groups. The systematic persecution of the
Rohingya both by the Burmese government and by groups
of radical Buddhists has driven them into IDP camps where
they have suffered immense deprivation and exploitation
and into an apparently hopeless quest to see refuge in
Southeast Asia.
Looking forward
The dashed hopes and aspirations of the protestors who
took to the streets starting in Tunisia and sweeping rst
through the Middle East and North Africa as part of what
was dubbed the ‘Arab Spring’ and which then caught on
in protests in many developed countries in the ‘Occupy
Movements’, are evidence of how far we are from having
rights-respecting societies across the world.
These failures point to the need for the human rights move-
ment – in all of its diversity – to rethink how to make change.
While legal standards, like democracy, are necessary, they
are not sufcient. The challenge is meaningful implemen-
tation of those standards and dismantling the rampant
inequalities that drive human rights violations.
Human rights abuses are a function of abuse of power.
While traditionally human rights organizations have tended
to focus on abuse of power by agents of the state in the
exercise of their policing and security powers, in fact, it is
abuse of all types of power – the power of male privilege, of
the gun, of hetero-normativity, of the dollar – that deserve
our attention.
In short, both human rights and democracy are under
attack on myriad fronts. The human rights movement
cannot retain legitimacy and credibility if it does not take
a lesson from its history and document, expose, name and
shame those actors and sectors that are denying people
dignity and equality. The most effective mode of exposing
may be to nd the case of the individual ‘bad actor’ but
Seeking socioeconomic justice
33Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
the solutions must be systems-oriented. For human rights
to work, the political and economic systems must be
scrutinized for how they undermine the full array of civil,
cultural, economic, political and social rights.
Some thoughts on implementation and
conclusion
There are two fundamental principles that inform the
implementation of human rights standards. The rst is that
a state may not choose which people enjoy their rights. All
people are born free and equal in dignity and rights. There
are no allowances for exclusion of people because they are
‘different’. The other principle is that a state may not decide
which rights to full. A state may not legitimately claim, for
example, that it recognizes the right to work,5 but not the
right to freedom of association.6
It is only when states adhere to the principle of the
universality of rights and the interdependences of rights
that the promise of human rights will be fullled.
5 IESCR, Article 6.
6 ICCPR, Article 22.
Human rights activists and organizations must proactively
demand that governments recognize the interdependence
of all human rights and campaign to end the ways that
governments set up rights in opposition to each other as
opposed to treating them as mutually reinforcing.
But the human rights movement must also challenge
actors and systems beyond the control of a single state
and recognize that the concept of impartiality – the
basis for not taking on these actors and systems – is
indefensible in light of how they are destroying people’s
rights. While human rights organizations may focus on
building expertise on specic rights, all organizations can
make the case that the rights-respecting world envisioned
in the Universal Declaration of Human Rights was built on
the understanding that all people deserve to live free from
want and free from fear.
Seeking socioeconomic justice
34Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
35Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
For decades, the global human rights community has seen
human rights as a matter of law, mostly international law.
Economic, social and cultural rights, however, are meant
to be progressively realized making use of all available
resources. The violations approach and the work on their
justiciability do not address the structural factors that
constrain the enjoyment of these rights. Human rights are
about policy and politics as much as about law. There is
room for human rights advocacy outside and beyond the
limits of the law.
Introduction
“It is politically important that human rights have been
codied in international and national law, but it is a
mistake to believe that the legalization of human rights
takes the concept out of politics” (Freeman 2002:10).
In 2013, I attended a book launch: Failing to protect:
The UN and the politicisation of human rights, by Rosa
Freedman. The book is based on a series of interviews
with UN ofcials and, according to the author, it gives
explanations about how and why the UN is unable or
unwilling to protect human rights. In her view, this is the
result of the “politicization” of the international human
rights machinery. I remember thinking that human rights
institutions must be political by denition, insofar as they
are the outcome of difcult political dialogues, lobbying
and diplomatic tension. Why are we surprised? What is
so wrong about the idea that human rights are a political
notion subject to political negotiation, just like anything
1 I am indebted to Doutje Lettinga, Lars van Troost and
Angelos Kontogiannis-Mandros for their valuable comments.
Opinions and mistakes are only my own.
Koldo Casla1
Dear fellow jurists, human rights are about
else in international affairs? Unfortunately, I did not get
the chance to ask my question. Luckily, I have now been
given the opportunity to reect on it in this paper.
Human rights are often conceived as moral claims written
in legal terms. In this sense, they would be somewhere
prior and above the political discourse. Against this
assumption, I hereby argue that defending human rights
effectively requires understanding and working with policy
and politics, not only law. International human rights are
essentially what human rights advocates make of the
pledges taken by states when endorsing human rights
documents and ratifying treaties. The framing, allocation
and construction of meaning is a political process that
transcends the limits of the law. This paper builds the
argument in relation to economic, social and cultural rights
(ESCR) in opposition to the violations approach and the
work limited to making the case of their justiciability.
Beyond the violations approach
to ESCR
Nearly three decades ago, in one of the earliest attempts to
conceptualize the meaning of ESCR in international law,
Philip Alston (1987: 372) wrote that “for a variety of histor-
ical, ideological, pragmatic, and other reasons, there re-
mains a considerable reluctance on the part of many, if not
most, human rights NGOs to become involved in the eld of
ESCR”. A few years later, Alston (1990: 9) criticized Amnes-
ty International for its then reductionist conception of
rights, one which “mirror(s) more closely values associated
with the Western liberal tradition”, namely, civil and politi-
cal rights. Since the mid-1990s and principally during the
decade of the 2000s, however, the power of human rights
has extended to an area that had remained unexplored
36Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
thus far. Human rights organizations have nally integrated
ESCR in their mission statements and strategic and opera-
tional plans.
In 1996, Human Rights Watch adopted an interim policy on
ESCR (Mutua 1996: 619), and in 2001, Amnesty Interna-
tional incorporated these rights into its mission, launching
a global campaign in May 2008 that linked poverty and
human rights: ‘Demand Dignity’. It is fair to say that, while
the largest human rights organizations struggled with the
challenge of ESCR, a number of smaller groups (Centre on
Housing Rights and Evictions, COHRE; the Center for Eco-
nomic and Social Rights, CESR; FoodFirst Information and
Action Network, FIAN; the International Commission of Ju-
rists, ICJ) had already started making important contribu-
tions to the interdependency of all human rights.
At the same time, some groups outside the traditional
sphere of human rights, such as indigenous peoples, femi-
nist organizations, trade unions and development NGOs,
have also started to speak the language of human rights.
This form of rapprochement opened the door to what Nelson
and Dorsey (2008) call “new rights advocacy”, that looks at
issues traditionally perceived as belonging to the realm of
social justice (housing, health, work, education, minimum
standards of living etc.) from the perspective of human
rights and human rights law. Nelson and Dorsey rightly
observe that the ‘newness’ of the “new rights advocacy”
refers to the ‘advocacy’ and not to the word ‘rights’,
because, in fact, standards themselves are far from new.
The 1948 Universal Declaration of Human Rights enshrines
several ESCR, and the 1966 International Covenant on
ESCR entered into force in 1976. In other words, law and
international law do not explain why it took so long for
human rights organizations to accept the challenge of
defending ESCR.
While it is true that the number of human rights groups
working on ESCR has mushroomed in the last two decades,
there is still a great deal of confusion about the implica-
tions of working for these rights, and I believe that the very
legalistic violations approach adopted by most NGOs does
not sufciently address the challenges posed by the recog-
nition of ESCR as human rights.
The “violations approach”, initially formulated by Audrey
Chapman (1996) and subsequently endorsed in the 1997
Maastricht Guidelines on Violations of ESCR, is broadly
based on the identication of laws, policies and actions
that have a direct causal relationship with infringement of
the principle of non-discrimination and the minimum core
content of the ESCR recognized in the relevant treaties.
More recently, Chapman (2007: 156) wrote that the viola-
tions approach was meant to be “a supplementary and not
a sole strategy for monitoring” ESCR and that her motiva-
tion “was to overcome some of the limitations of the pro-
gressive realization formula and to deal more meaningfully
with the most agrant abuses of these rights”. Nonethe-
less, the violations approach had already received a lot of
attention among human rights practitioners, very much
accustomed to the victim-aggressor juridical lens of civil
and political rights. For example, Kenneth Roth (2004a),
Executive Director of Human Rights Watch, famously argued
that international human rights organizations are best at
“naming and shaming”, and that they can effectively do so
only when there is relative clarity about violation, violator
and remedy.2 Therefore, they should restrict their work on
ESCR to cases where governments are guilty of arbitrary or
discriminatory conduct. Roth’s article hardly went unno-
ticed and received critiques (Rubenstein 2004; Robinson
2004; Nelson & Dorsey 2008) arguing that human rights
organizations must devise additional strategies to the con-
ventional “naming and shaming”, and try to inuence poli-
cy and social services, making proposals for the most ef-
fective allocation of resources.
Chapman’s “violations approach” and Roth’s “naming and
shaming” attempt to operationalize the meaning of ESCR,
but they do so at the expense of the progressive realization
of ESCR, proclaimed in Article 2(1) of the International
2 It is important to note that the minimum core content of
is missing in Roth’s framework. This would be an important
distinction between Chapman and Roth.
37Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Covenant on ESCR.3 This sacrice is probably made in the
name of causality and responsibility, because it is too
difcult to nd out the direct cause of hunger, maternal
mortality or poor housing, and therefore it is also too
difcult to determine who must be held responsible.
However, we must remember, as Deborah Stone (1989: 292)
does, that “complex cause is sometimes used as a strategy
to avoid blame and the burdens of reform”.
Attempting to understand the complex causal relationships
behind the lack of satisfaction of human rights is an ambi-
tious project that would require working with tools in budget
analysis, socioeconomic policy and taxation. Yet, human
rights groups often feel more comfortable working with tra-
ditional legal tools, particularly the demand for the justicia-
bility of ESCR.4 Generally, there are fewer accountability
mechanisms for ESCR than for civil and political rights. In
order to erase this gap, human rights practitioners have
advocated the recognition of these rights into domestic and
international legal texts and the creation of independent
monitoring mechanisms to examine violations on a case-
by-case basis. To this end, the International Network for
Economic, Social and Cultural Rights hosts a very extensive
database of domestic and international case-law,5 the In-
ternational Commission of Jurists (2008 and 2014) has
issued two wide-ranging analyses of comparative experi-
ences of justiciability of ESCR in different countries, and
researchers have studied with remarkable interest the op-
3 Article 2(1) ICESCR, surely one of the most widely
vivisected clauses in international human rights law, says
that “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
the present Covenant by all appropriate means, including
particularly the adoption of legislative measures” (italics are
mine).
4 “The term ‘justiciability’ refers to the ability to claim
a remedy before an independent and impartial body when
a violation of a right has occurred or is likely to occur.
Justiciability implies access to mechanisms that guarantee
course of action to enforce them, whenever the duty-bearer
does not comply with his or her duties” (ICJ 2008: 6).
5 See: http://www.escr-net.org/caselaw.
portunities offered by regional systems of protection of hu-
man rights in the Inter-American (Feria-Tinta 2007), Euro-
pean (Leijten 2014) and African systems (Ssenyonjo 2011).
At rst, the placement of the law at the centre of the dis-
cussion makes sense, bearing in mind that ESCR have his-
torically been neglected in the conventional legal discourse.
The open question, though, is whether the judicial recogni-
tion of ESCR is the most effective way to improve people’s
enjoyment of these rights. The dataset of the Toronto Initia-
tive for Economic and Social Rights tells us that more than
90 per cent of the Constitutions in the world recognize at
least one socioeconomic right, and 75 per cent of them
make at least one of them justiciable.6 However, no clear
correlation has been identied between an increase in
terms of social justice and the recognition of ESCR as justi-
ciable rights. “Litigation necessarily resolves relatively nar-
row issues; underlying structural factors are generally left
unaddressed” (Yamin 2005: 1220). I believe it is time to
accept that these factors can only be understood by policy
analysis and tackled by political means.
The excessive focus on justiciability is one of the reasons why
the element of the progressive realization has been insuf-
ciently attended thus far. Too many human rights practi-
tioners still see human rights as a matter of contention but
only in court. In the name of impartiality and the alleged su-
pra-political nature of the law, they do not want to be seen as
entering uninvited into the political arena, which in their view
belongs to political institutions and perhaps also to other
organizations and social movements, but not to human rights
groups, which must stay away from politics.
Human rights practitioners and organizations are spot on
when they defend the justiciability of ESCR as a matter of
principles, because this is probably the longest degree of sep-
aration between these rights and the traditional civil and po-
litical ones. However, they (we) should remain alert because,
by focusing too much on the violations approach and the need
for judicial or quasi-judicial accountability mechanisms,
6 See: http://www.tiesr.org
38Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
we may be missing important political opportunities to strive
for the progressive realization of ESCR. Doing so effectively
will denitely require us to play the game of politics, and we
need to assess whether we are ready for that.7
Playing the politics of human rights
One of the rst measures adopted by the new Greek
government after Syriza’s victory in January 2015 was
to prohibit mortgage evictions of rst homes up to
€ 300,000, and to prevent banks from reselling the
mortgages to third parties.8 A similar but more moderate
measure had been in place before with a right-wing party
in power. International legal standards on the right to
housing do not impose a measure of this kind. Based on
General Comment No. 7 of the UN Committee on ESCR
(1997),9 we can argue that Greek authorities must ensure
that evictions are the last resort, and when domestic
law does not provide legal remedies or procedures to
challenge them, evictions are considered to infringe the
right to housing.
Going a bit further, we may recall that it is the standing
position of the European Court of Human Rights that, given
the extent of the interference with the right to respect
for the home and private and family life, an independent
tribunal must be allowed to examine the proportionality
of the eviction on a case-by-case basis.10 However, these
are very important but essentially procedural points. In
principle, as long as there are independent mechanisms
7 Find a very thought-provoking discussion about
the limits and opportunities of legal mechanisms
for the enforcement of ESCR at openGlobalRights on
openDemocracy. Available at: https://www.opendemocracy.
net/openglobalrights/debating-economic-and-social-rights.
8 The suspension of evictions will have to be lifted as a
result of the third economic adjustment program between
the EU and Greece (July 2015).
9 UN Committee on Economic, Social and Cultural
Rights (CESCR) (1997), General Comment No. 7: The right
to adequate housing: forced eviction (Art. 11, Para.1, of the
Covenant), 20 May, E/1998/22.
10 European Court of Human Rights (ECtHR) (2012),
Buckland v. UK, 18 September (App. No. 40060/08), para. 65,
and the case law mentioned therein.
to assess the particularities of the case, it is not possible
to say that Greece has violated the right to housing by
conducting or allowing mortgage evictions.
This would be the conclusion, of course, unless we accepted
the challenge of the progressive realization of ESCR and the
resulting general principle of the prohibition of deliberate
retrogressive measures. If we accept this challenge, we
will have to explore to what extent Greek public authorities
have been allocating the necessary resources to achieve
progressively the full satisfaction of the right to housing.
Furthermore, just like the UN Independent Expert on Foreign
Debt and Human Rights (UNHRC 2014), we will have to pay
attention to the multiple layers of responsibility, considering
the pressure exercised over Greece by the European Commis-
sion, the European Central Bank, the IMF and other European
countries, and taking into account the large sums of money
received by banks from European taxpayers under the as-
sumption that this would prevent the system from collapse.
The measure adopted by the Greek Syriza government may
not technically be required by international human rights
law, in the sense that not doing so would not constitute an
infringement of international legal standards. Nonetheless,
preventing the eviction of families who cannot make
their mortgage payments as a result of unemployment
derived from the economic crisis may be a very reasonable
measure that takes the Greek people just a bit closer to
the full satisfaction of the right to housing. Note that the
government bears the burden to prove that this is the right
policy to that end. The policy may very well be ill-founded
and disoriented, but taking human rights seriously means
that we must address this dilemma from the starting point
that all public policy ought to be inspired by the ultimate
goal of making human rights real. And human rights
organizations have a contribution to make in this regard.
Human rights advocates must dare to overcome the
traditional liberal notion that sees human rights only as
the shield with which individuals protect themselves from
Leviathan. Human rights are indeed shields, but they can
also be constructed politically as a set of guidelines for
39Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
political action. This is the reason why advocates must
move on from the very limited violations approach and
learn and apply the rules of the political game to get the
most out of the principle of the progressive realization
of ESCR. The power of human rights is not so much
their moral superiority, but their political force and their
ultimate transformative potential for society.
Even within the limits of legal acceptability of state
behaviour, some policies are better placed than others to
maximize the resources to full ESCR. The identication of
the actual policies that are best suited to achieve this goal
is a technical issue as much as it is political. Governments
bear the burden of proof and the role of opposition groups
and civil society organizations is to hold them to account
and also to propose alternative ways of achieving the
progressive realization of all human rights. The time of
ESCR will come not when policy A trumps the alternative
policy B, but when both A and B are set out with the goal of
achieving these rights progressively. Then it is up to politics
to choose between them.
Not exempt of risks: implications for
human rights organizations
I have argued that taking ESCR seriously requires moving
beyond the limits of the law and accepting the political
nature of these rights. In fact, I would extend this claim to
all human rights, not only the socioeconomic ones, but I will
leave this discussion for another paper.
I guess human rights advocates could pretend that human
rights belong to the realm of law and morality, not politics,
but this would not only be a strategic mistake, it would also
be a fallacy. International human rights are recognized in
international treaties, but the actual meaning of each right
very much depends on the framing and constructive work of
human rights groups and defenders.
The politicization of human rights is of course not exempt of
risks. Firstly, by stretching the limits of human rights, we may
be accused of human rights ination, that is, of expanding
the idea of human rights to an ill-dened and potentially
unlimited number of policy areas. It was Giovanni Sartori
(1970: 1035) who taught us that the net result of conceptual
stretching can be that “our gains in extensional coverage tend
to be matched by losses in connotative precision”. Secondly,
extending human rights beyond more or less manageable legal
limits may give the impression that human rights advocates
are promising more than they can actually deliver, which is
one of the reasons why Kennedy (2002) wondered if the human
rights movement itself is not “part of the problem”. And thirdly
and perhaps more pressingly, human rights groups could also
be blamed for lack of impartiality, inasmuch as accepting
and embracing the politicization of ESCR may force them to
reject the traditional “agnosticism” (Saiz 2009: 287) about the
compatibility between human rights and different economic
and political systems.
These are risks that we should not take lightly. Yet, accepting
the political nature of human rights, apart from being a
more accurate description of their real nature, offers some
important lessons and political opportunities as well.
If human rights in general and ESCR in particular are
about politics, this means that by denition they cannot
be totally satised. The full realization Article 2(1) ICESCR
speaks about is an unattainable goal. Therefore, if a given
human rights organization decides not to work on ESCR
in one country or region, this cannot be because ESCR
are fully realized there but because the organization has
made the strategic decision to focus elsewhere, a strategic
decision that can only be justied in political terms, not in
legal or moral ones.
Sceptics have historically dismissed human rights
because they were either “too abstract to be real or too
concrete to be universal” (Douzinas 2000: 200). Yet, a
political approach to human rights like the one suggested
in this paper may help us “localize human rights”
(Acharya 2004; De Feyter 2007), that is, adopting a
bottom-up approach to the construction of the idea(s) of
human rights. Localizing rights means taking the needs
and wishes of local people as the starting point for the
interpretation of existing norms and for the construction
and consolidation of new ones, while respecting the
universal reach of human rights.
40Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
The violations approach does not take us very far, or at the
very least there is room for human rights action beyond
the language of this approach. Human rights scholars
and practitioners must explore other areas, such as scal
policy.11 That said, this does not mean that strategic
litigation and the violations approach must be struck
down completely. The world needs judges that are willing
and able to apply the rights recognized in the law. The
world also needs human rights groups that focus on this
particular area of work. In other words, this is not an
attempt to nd fault with Audrey Chapman or Kenneth
Roth or even to suggest that Amnesty International must
either change or perish. To the contrary, I believe the global
human rights community must be open and diverse enough
to embrace different approaches and strategies.
11 See ‘Human Rights in Tax Policy’ at the website of the
Center for Economic and Social Rights. Available at:
http://www.cesr.org/article.php?id=1622.
The politicization of human rights in general and of ESCR
in particular is not exempt of risks but it also offers
opportunities that can make human rights advocates more
effective and more locally relevant in improving people’s
lives. Taking ESCR seriously and responding adequately to
some of the key challenges of our time demand audacious
strategic decisions. Just like with other ideas before, the
time of human rights may pass and new utopias may
replace them. If that were the case, I would personally
prefer to believe that we did our best to extract all the
juices out of it while we could rather than regretting than
we did not go far enough.
41Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
This essay recognizes human rights as something
more profound than legal rights. In the context of the
rise of global capitalism, being faithful to human
rights’ intrinsic counter-hegemonic nature requires
contemplating a picture larger than rights litigation.
This involves reassessing the efcacy of human rights
instruments in order to address the structural causes
impairing human rights.
Introduction
This essay critically assesses the assumption that a so-
called ‘rights-based’ approach should be the primary way
of pursuing justice through the law. While not sceptical
about the fact that human rights have an emancipatory
dimension, in this essay I argue that resorting to an approach
exclusively or mostly based on legal rights is not likely to
unfold it. Human rights make a meaningful contribution to
emancipation whenever they recouple with their counter-
hegemonic nature. The structural sources of exclusion,
indignity and environmental damage – today’s hegemony –
are connected to one phenomenon: the rise of global
capitalism. Hence, the question of whether human rights are
tools at the service of human emancipation requires asking if
human rights are meaningfully engaging in the enterprise of
domesticating the global capitalist economy.
This short essay deals with that question. It does so on
the one hand by taking the view that the rights approach
fails to seriously confront the human rights encroachments
deriving from global capitalism. On the other, the essay
explores avenues that could restore human rights’
counterhegemonic nature. This plan could be summarized
in the following points. Due to space constraints I will deal
only with the rst two of them. a) At the conceptual level I
suggest restructuring the interplay between human rights
and democracy, so that people reappropriate human rights.
b) With respect to social rights, I propose reorienting both
its normative content and redress mechanisms. These
should shift back from their present individual-centred
focus towards their truly social and more duty-oriented
nature. c) Internationally, and in line with the opinion of
the Independent Expert on the Promotion of a Democratic
and Equitable Order (OHCHR 2015), ‘the human rights
regime’, should more actively prevent the harmful effects
derived from free trade agreements (such as the TRIPS
Agreement, or the still in negotiation TPP and TTIP) from
limiting or in any way conditioning international human
rights law. d) Regionally – in a proposal directed primarily
at the governments and human rights movements of the
Global South – I suggest strengthening peoples’ right to
self-determination in the economic domain by supporting
human rights grassroots organizations reclaiming concepts
such as ‘food sovereignty’ (De Schutter 2015), notion that
involves breaking up with fundamental aspects of the
heterodoxy of global capitalism.
The rights approach
Why a vast majority of peoples are deprived of development
dynamics in the 21st century has a number of reasons.
Human rights’ inability to inuence the global economy
is a crucial one. Linked to this phenomenon, the relative
indifference that the human rights academia pays to
this interaction should be noted. That sophisticated
jurisprudential developments are more frequently discussed
than the interplay between global capitalism and human
rights is not due to a circumstantial predilection from legal
agents. It obeys to a more fundamental canon: the idea
that addressing those interactions would entail mixing law
Eduardo Salvador Arenas Catalán
Back to the future: human rights
protection beyond the rights approach
42Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Back to the future: human rights protection beyond the rights approach
and politics, thus going beyond the scope of what human
rights are or what they do.
By a ‘rights-based’ or ‘rights’ approach, I mean something
that has both substantive and procedural implications.
Content-wise a rights approach is individualistic. So
prevalent is this emphasis that even in the case of social
rights the receptor of a legal case is either an individual or
a group of individuals, but not the community as a whole.
This is problematic because the core aspect of social rights
does not consist in granting entitlements to those capable of
articulating them in legally sound ways (Ferraz 2011: 1660).
As I shall further explain, the distinctive element of social
rights lies in its communitarian and democratic normative
dimension. With respect to procedure, a rights approach
is, as a matter of principle, alien to political contestation
(Petrova 2004: 188; Waldron 1999: 12). The problem here
is that disjointing human rights from democracy impedes
people from modulating human rights in line with their
reality. A shift in this respect could be signicant in
articulating a whole spectrum of alternatives capable of
opposing capitalist practices impairing human rights.
Three other features characterize the rights approach:
trivialization, technicality and elitism. Trivialization is
linked to the point of departure of the rights approach – the
correct premise that human rights are important. However,
from such a premise often follows the less convincing
assumption that whatever the issue at stake (health,
mining activities, the Internet, climate change) it should
be looked at primarily under the purview of legal rights.
This over-abundance trivializes human rights’ importance
(Petrova 2004: 203).
Moreover, as rights emerge from a specic place and
have their specic techniques, they involve a great deal of
technicality and elitism. Technicality is connected to the
necessary legal expertise required for rights problems, what
normally leads to their bureaucratization. With regard to
elitism, this problem relates both to its Western origins,
and to the fact that rights have become the well-paid job of
expert lawyers and international bureaucracies. These two
phenomena have led to a dismissive attitude towards the
voice of indigenous communities, student organizations,
workers unions, grassroots movements of farmers, and
human rights activists gathered at the World Social Forum.
In this context, the counter-hegemonic nature of human
rights unsurprisingly fades away.
The critical tenor of this essay does not seek to demerit the
valuable contributions of the rights approach with respect
to, for example, governmental accountability. However, as
today’s human rights challenges are located far beyond
those infringements, the scope of that accountability
should be re-examined.
Adapting the approach of P. Jha (2006: 15), I think that the
emancipatory goal of human rights I mentioned must be
carried out with deliberate intent. This does not mean getting
rid of the rights approach but it requires supplementing it
with a reappropriation of human rights by human rights
movements. This reappropriation requires, rstly, the
recoupling of human rights to democracy. Secondly, to
shift towards a truly social - and not merely a legal rights
oriented - denition of social rights. Naomi Klein’s (2007:
119) criticism of Amnesty International illustrates the
rst point. Klein criticized Amnesty’s aseptic approach in
relation to the human rights violations that occurred in Chile
during the dictatorship. She stated that the violations were
only quantied, devoid of any analysis of “why” they had
occurred. No mention was made of the fact that the junta
was remaking the country “along radically capitalist lines”.
The omission produces the effect of presenting the violations
as “random” violence. Nonetheless, it is only by examining
the junta’s “revolutionary economic project” that one can
make sense of why, how and against whom such extreme
repression was used.
While the accountability aim of the rights approach
should be welcomed, I do not think that the context should
have been underemphasized. Moreover, it is incorrect
to exclusively identify human rights with combatting
impunity. Crucially, human rights have also to do with the
very content of the struggles of those attempting to build
alternatives to capitalism.
43Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Yet, the question remains: can human rights law embrace
this perspective?
The forgotten radical mandate of
human rights
I shall begin with the critical book by Stephen Hopgood,
The endtimes of human rights (2013), and the publication
that the Dutch section of Amnesty International devoted
to the discussion of Hopgood’s contribution: Debating The
endtimes of human rights (Lettinga & Van Troost 2014).
In this latter publication, Frank Johansson (2014: 53)
stated: “[T]he big issues of social and economic justice
cannot be solved through the human rights paradigm, as
it doesn’t confront economic power.” Although I think that
the challenges faced by human rights are not limited to
distributive justice, I agree with Johansson’s statement.
Actually, I think Hopgood’s critique fails capturing these
challenges. I believe that what should really create concern
about ‘the human rights regime’ is how ill-equipped it is
to contribute to domesticating the capitalism that impairs
human rights. About that, Hopgood does not say much.
Today, global capitalism challenges all human rights
dimensions including the very conditions of life on the
planet, at least the way we know it. At the same time, in its
fast economic makeover of the world, capitalism impacted
both the political structure of the nation state (Jha 2006:
82) as well as human rights’ substantive meaning and
redress mechanisms. Worse, as I will show later on,
legal rights have in some cases become instrumental
to legitimizing and guaranteeing capitalist expansion.
Furthermore, ‘the human rights regime’ lacks the capacity
to hold to account the transnational compound of political
and economic elites steering these negative shifts.
Climate change impacts the Earth’s limited and fragile
macrosystem. Scientists speak of “defaunation” in order to
signify the acute loss of biodiversity as a result of human
behaviour (Dirzo et al. 2014: 401). While our ecosystem
has already been reacting to the rise of CO2 emissions,
estimates of the rise in temperature by 2100 are around 4
degrees Celsius. The consequential rise in sea levels that
would follow threatens with inundating “many coastal
areas from Ecuador and Brazil to the Netherlands to much
of California and the northeastern United States, as well
as huge swaths of South and Southeast Asia” (Klein
2014: 13). A threat against life at this level leaves the
conceptualization of the right to life falling short. This is
an example of why human rights advocates should not only
think of human rights violations; they should also reect
on the ability of human rights instruments to target the
structural causes of those problems.
Slavoj Žižek (2011: 363), in a predicament that we could
describe as apocalyptically pragmatic, states that “the
true utopia is the belief that the existing global system can
reproduce itself indenitely”. Are human rights embedded
in the utopia Žižek reproaches? Interestingly, both the UN
Charter and the Universal Declaration of Human Rights
(UDHR), core instruments of our discipline, did not. What
lay at their core was a radical and comprehensive view to
which both great powers and small countries committed
themselves after World War Two. Both instruments
legitimized themselves because after Hiroshima and the
sobering realization of the possibility of the extinction of
humankind in a nuclear holocaust, the victorious central
powers accepted that the world could simply not do without
a platform for international dialogue in the elds of
security, cooperation, and human rights.
Moreover, the central powers’ attitude with respect to the
UN Charter and the UDHR was shared by non-industrialized
nations. These smaller countries believed that peaceful
dialogue and cooperation would give them an opportunity
to attain social and economic development. Later on,
great powers would often instrumentalize human rights
by scornfully addressing small countries’ claims of
respect for their sovereignty and self-determination. Yet,
small countries never understood human rights as a top-
down, externally imposed process. The relentless claims
from organizations such as the Non-Aligned Movement
exemplies this (Prashad 2014: 26-27).
All the previous shows that the UDHR is incorrectly
interpreted under the narrative of the rights approach
advocated by organizations such as the International
Back to the future: human rights protection beyond the rights approach
44Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Back to the future: human rights protection beyond the rights approach
Commission of Jurists where, apparently, all it takes for
the splendorous realization of human rights consists in
improving access to justice and rights protection in court
(ICJ 2008). If, as I believe, the challenges faced by human
rights today are taking place at a more structural scale, the
bad news is that the greatest challenge to human rights
lies not in becoming more effective, but exactly its opposite
– the human rights movement must become self-aware of
the inefcacy of its mechanisms (human rights litigation
in the rst place) as a pre-requisite to its reinvention. The
encouraging news is that if in 1948 the world accepted that
business-as-usual would not do the job in the international
arena, we may well accept that once again.
In the coming sections I will do the following: Firstly I shall
illustrate a normative shift derived from the rights approach
in the eld of social rights. Second, I shall get back to the
point of recoupling human rights with democracy.
Capitalism’s erosion of social rights
Processes of privatization, marketization and liberalization
contracted the extension and quality of social services.
This has happened because of another, more important
shift. Capitalism has changed our understanding of what
rights are and of how to guarantee them. When William
Henry Beveridge (1870-1963) in 1942 delivered the report
that served to establish the National Health Service (NHS)
in the United Kingdom, he did so on the understanding
that social rights consisted in granting access to health
care to everyone irrespective of their ability to pay. That
understanding is reected in the NHS’ founding principles
of comprehensiveness, universality and equity (Pollock
2005: 83). Some of us still think that it is this perspective
of social citizenship that informs social rights such as the
right of access to health.
But it was when capitalism in its perpetual hunt for
niche markets (Crouch 2004: 83) expanded to health care
that our understanding of social citizenship - which in
the words of T.H. Marshall (1950: 28) had to be directed
“towards a fuller measure of equality” - found itself in need
of adjustment. From a focus on affordability we shifted
towards choice protection (Lister 2013: 31). Choices in
health care attract consumerist sympathy, but in doing
so they legitimized the appropriation of health care by
business and with that, the loss of the ideas of citizenship
and solidarity informing social rights.
This change of paradigm had an institutional parallel.
From single-tiered health care systems we moved towards
the complex structure of insurance companies, regulators,
private, and semi-private providers. So strong has been the
pressure to extend capitalist appropriation in the protable
domain of health care (health-related needs are both
perpetual and urgent) that not even ideological consistency
has been respected – allegedly neoliberal principles such
as efciency have been ignored.
Take Canada, as an example. In spite of the fact that “in
terms of ratio of productivity to administrative costs” the
Canadian single-tiered health care system was regarded by
a series of legislative reports “as one of the most efcient
[…] in the world”,1 Canada began a path towards the
gradual commercialization of its health care. Interestingly,
the decisive blow to Quebec’s noble egalitarian tradition
came not from the political arena but from human rights’
alleged allies – rights and courts. The 2005 Chaoulli ruling
(ibid 2005: 860), struck down acts of parliament impeding
health care commercialization under a reasoning based
on the rights to life, liberty and security. As a perceptive
analysis has revealed (Hirschl 2007: 60-65, 77, 83, 92),
court activism, far from the elevated reasons often pled
in its favour, contributes decisively to the entrenchment
of a legal and institutional setting favourable to the
perpetuation of capitalism.
In the developing world, excessive emphasis on a legal
rights approach has brought health care systems not only
not to focus on the most vulnerable (Mchangama: 2014),
but also to be run in an economically unsustainable way
(Gouvêa 2013: 466). In the case of Brazil for example, since
middle and upper classes are more likely to have their
voice heard in court, their more exclusive and expensive
1 The Supreme Court of Canada (2005) Chaoulli v. Quebec
(AG), SCC 35, Ruling of 9 June.
45Changing perspectives on human rights
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Back to the future: human rights protection beyond the rights approach
health care needs have been prioritized to the detriment
of the vast majority of impoverished people in one of the
most unequal countries in the world (Gouvêa 2013: 463;
Ferraz 2011: 1660; Wang & Ferraz 2013: 165). And focusing
scarce resources on less cost-effective interventions is
an approach that has been advised against by the World
Health Organization (2014: xi).
Purposeful action in line with the 1978 Alma-Ata
Declaration needs to be adopted. This would allow
to emphasize the importance of health planning,
comprehensiveness, affordability, and universality, in line
with the World Health Organization’s goal of “health for all”
(WHO 1978: paras. 6, 7.8, 8). Critically, it is this approach
too that would have been vital in addressing contemporary
crises, such as the Ebola crisis (Brown 2014; Kieny 2014;
Zinzombe 2014).
This analysis explains why under the rights approach social
rights have been inhibited to reconnect with its genuinely
social origins. It is imperative to shift back towards the
historical and teleological routes of social rights. Namely,
to re-emphasize the importance of the duties necessary
to guaranteeing them. Paraphrasing García Manrique
(2013: 34) social rights denote the democratic standards a
community gives to itself in order to specify the distribution
of wealth and opportunities necessary to satisfy everyone’s
needs of assistance, education and labour. Hence, as
much as the challenge for the right to vote demanded
the political defeat of census suffrage, we must come
to terms with the idea that what social rights primarily
demand is the de-commodication of key areas such as
the provision of healthcare, education and other essential
social services. Also – as some human rights NGOs have
started to acknowledge – tax systems must be restructured
with a view of redistribution (CESR 2015). It is this trend,
and not the privatization of social rights’ legal nature, what
truly reects commitment towards the challenge posed by
the 1993 Human Rights Vienna Conference (OHCHR, 1993:
para. 5). It is in the acceptation of a plural legal response
that the goal (not the means) of universality, indivisibility,
interdependency and interrelatedness of all human rights
will be attained.
Recoupling human rights and
democracy
Shifting back towards new visions of human rights such
as the abovementioned, as well as others promoted by
human rights grassroots organizations such as the claim
for ‘food sovereignty’, demands a different interrelation
between law and politics. One, that opens the door to see in
human rights something more than legal rights, along with
re-emphasizing the importance of duties and collective
instruments such as the right to development.2 This would
upscale human rights from a friendly conscious reminder,
into an irritating stone in the shoes of capitalism.
These issues involve a number of practical shifts. Yet, this
transformation also requires a review of the theoretical
framework of human rights. Reappropriating human rights
requires altering the predominant understanding of the
relation between constitutionalism and democracy. Against
Dworkin, who thought that if the majority and not judges
set the standard of restraint with respect to individual
rights “the majority [would be] judge in its own cause”
(1977: 142), it must be highlighted how such a mistrust for
self-government is based on a naive thought: the idea that
“the minority is no longer synonymous with the oppressor”
(Rosanvallon 2008: 116). To be sure, democracy is precisely
about making the majority a judge in its own cause (Atria
2006: 85; Waldron 1999: 265, 297) and, unless we shift
towards a government of enlightened despots, human
rights advancements should be mainly conceived as
advancements that a majority supports.3 This does not
mean that I consider law and politics the same thing. On
the contrary, following Fernando Atria (2004: 150), I believe
that legal reasoning should be able to claim a position of
relative autonomy with respect to the political. Judicializing
attempt of disjointing the right from its collective dimension
and reduce it to another individual legal right (Bunn
2012: 109). Bunn, I. (2012) The Right to Development and
International Economic Law. Legal and Moral Dimensions,
Oxford: Hart
3 This is without prejudice of admitting the intrinsic
fallibility and precariousness of democratic arrangements, as
46Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Back to the future: human rights protection beyond the rights approach
politics in contrast, not only denies any legal autonomy,
it also threatens de-legitimizing the legal expertise of the
judiciary, arguably, one of its mayor social capitals.
Moreover, tactically speaking, I think that well-inspired-
left-wing-legal-scholars have overestimated the counter-
hegemonic potential of judicializing politics (Langford 2008:
42; Uprimny & García Villegas 2005: 255). Can pro-bono or
NGO litigation be equated to the power of corporate law rms
expending their immense resources in articulating every
possible legal avenue to defending the interests of capital
against state’s social budget (Eberhardt & Olivet 2012)?
The points raised so far are not to deny the soundness
of many judicial rulings. But even good rulings can be
counterproductive if their effect is to persuade us of the
idea that human rights are the stuff of expert lawyers and
that ordinary citizens should not have much of a say in that
process. Pushed forward by global capitalism, the great
enterprise of human rights has entered a critical stage. One
where what is at stake is nothing less than the extinction of
human rights. Not because an authoritarian leader will ban
them – sooner or later human rights nd their way through
that. The real challenge lies in seriously addressing the
structural sources of human rights degradation by carefully
evaluating the effectiveness of our legal response. In this
sense, as Jeremy Waldron (1999: 304) critically reminds us,
we must overcome our fear of shaping the architecture of
human rights, purely on the basis of the contempt towards
legislative politics.
Conclusion
In this essay, I have argued against the arrogance toward
politics and the business-as-usual-attitude of many
human rights advocates who, in contrast to the founders
of the UN system, believe that human rights are not more
than individual legal rights. I believe that we require
both a sense of urgency, and an acknowledgment of the
limitations of our legal instruments in confronting the
challenges posed by global capitalism. Moving beyond the
rights approach does not mean leaving legal rights behind.
The accountability aim is still valuable albeit too limited
in scope for coping with transnational dimensions and
conceptual paradigm shifts catalysed by global capitalism.
Moving beyond the rights approach entails asking what
human rights could do to inuence the global economy,
especially how to address the structural causes of abuse
and injustice derived from it. In doing so, I have suggested
a strategy that requires peoples to reappropriate human
rights through democracy, while restoring a truly social
comprehension of social rights.
47Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Promoting social justice is different from protecting
human rights and should be separate. Social justice
requires economic trade-offs through the political process.
Human rights organizations are ill-suited to be effective
in promoting social justice and would damage their own
legitimacy by the politicization needed to be effective.
Introduction
The protection of human rights and the promotion of social
justice are both important causes. They are also different.
Though the effort to promote social justice can encompass
the protection of human rights, the reverse does not seem
to be true. Organized efforts to protect human rights are
most likely to be effective when the focus is limited and
does not embrace other important concerns such as social
justice, or protection of the environment or the promotion of
international peace.
A couple of denitions are in order. It is useful to think
of the protection of human rights as the imposition of
restraints on the exercise of state power or on the power of
other institutions that have taken over the powers of the
state. Restraint on power is required because each human
being is entitled to certain rights that are embraced by the
concepts of liberty, dignity, equality and justice. The state
should not use its power to interfere with freedom of inquiry
or expression. It should not deprive anyone of due process
of law, or of fairness, in any proceeding that may lead to
signicant harm. No one should be deprived of the equal
protection of the laws on the basis of race, religion, gender,
or other aspects of status. The state may not engage in
cruelty. It should respect a zone of privacy for all persons.
In circumstances of armed conict, the state must take
all feasible measures to avoid harm to non-combatants
and those who are hors de combat. Certain afrmative
measures – such as providing free legal representation to
defendants in criminal cases who cannot afford the cost
of counsel – may be needed to meet the state’s obligations
to place restraints on the exercise of its power. Yet
carrying out such measures does not require a substantial
redistribution of the resources of a society.
A characteristic of these requirements is that they take
precedence over contrary concerns. Even if a speaker voices
a dangerous idea or opinion, the state should be restrained
from interfering. Even a person who seems obviously
culpable for an horrendous crime should have the benet of
a fair proceeding to determine actual guilt. Even if it seems
likely that torture would succeed in extracting crucial
information, such practices should be prohibited. And so
on. Human rights are not bargaining chips to be traded
away when they clash with other social interests. Each
person is entitled to assert her or his human rights in all
circumstances and to insist that they should be honoured.
Social justice may be dened primarily as distributive
justice. That is, it embraces the concept of social and
economic rights but carries it to a different level. It is a
vision that goes beyond assurance for every person of the
minimum benets that are required to sustain life. It is
a concern that the benets of society, such as education
or health care, or the burdens of society, such as taxes,
should be distributed equitably or equally. Though income
inequality on a worldwide basis has declined in recent
years because of the emergence from poverty of hundreds
of millions of persons in such giant countries as China
and India, it is growing in many Western countries.
Also, the persistence of widespread extreme poverty in
Aryeh Neier
Human rights and social justice:
separate causes
48Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Human rights and social justice: separate causes
many countries in other parts of the world highlights the
urgency of addressing economic inequality. Yet it seems
impossible to argue that contrary interests may never
impose limits. Where economic issues are concerned, some
balance must be maintained. The destitute should be
fed, clothed, housed, educated and provided with health
care without eliminating incentives for economic success
and without preventing the accumulation of the capital
needed for investment and innovation. Different economic
circumstances at different times and places make it
impossible to set a formula or establish a standard that
is universally applicable. How to strike the appropriate
balance is a matter that should be determined on an
ongoing basis through the political process – preferably
a democratic political process – in which competing
interests may be considered. Indeed, this is probably the
most important role of the political process in a democratic
society. The political process is also the arena in which
societies should determine what balance to strike between
economic development and protecting the environment; and
between maintaining security and promoting peace. None
of these issues can be addressed usefully by asserting
that only one set of considerations, such as rights, takes
precedence over all other concerns. Government policies
that have a substantial impact on issues such as social
justice, and that involve the signicant redistribution of
resources, derive their legitimacy in a democratic society
from their thorough consideration in the political process.
If they were imposed solely on the basis of assertions of
rights, they could not gain widespread acceptance.
Trade-offs between social justice and
other concerns
How to strike the right balance in addressing the question
of social justice is a matter that has been disputed for
a long time. It was debated nearly 2500 years ago, in
Aristotle’s day. In the Nicomachean Ethics, the Greek
philosopher pointed out that “the cause of strife and
complaints is either that people who are equal are given
unequal shares or that people who are not equal are given
equal shares”. Many of the proponents of social justice
start from the standpoint that those who are equal are
given unequal shares. Indeed, where equal treatment is
denied on the basis of such criteria as race or gender, it is
appropriate to address such issues on the basis of rights.
An example would be the absence of municipal services
such as sanitation or utilities, in a neighbourhood of a city
populated by members of a racial minority. Yet probably
few proponents of social justice would carry that argument
to the extreme of saying that, regardless of whether there
has been any showing of invidious discrimination, all
must be given equal shares of all the benets of society.
They recognize that there are competing considerations.
Determining where the balance is appropriate is not
something that can be done by invoking rights.
To illustrate the argument that promoting social justice
requires striking a balance, it may be useful to revert to
the reference to the great achievements of China and India
in recent years in lifting great numbers of persons out of
poverty. These achievements were made possible by the
industrialization that took place in these two countries.
In turn, that industrialization required the production
of an immense amount of energy. In both countries,
but especially in China, a great deal of the energy was
produced by the burning of coal. Yet, this has also had
certain costs. Air pollution became an immense problem
in both countries and, of course, there have been severe
health consequences. The number of persons affected by
heart diseases and pulmonary diseases has increased
greatly, particularly in a region such as Northern China
where the air pollution and water pollution are much more
severe than in the Southern part of the country.
Again, from the standpoint of social justice, lifting
hundreds of millions of persons out of poverty is a great
achievement. On the other hand, causing severe damage
to the health of large numbers of persons is a blow to
social justice. It does little good to improve their ability to
afford health care by means that do severe damage to their
health. If one limits oneself to a concern that everybody
is entitled to a level of income which will ensure that they
are fed and housed adequately, can afford health care and
obtain a measure of income security, what was done in
China and India seems wholly admirable. By contrast, if
one were to focus solely on the right to health, the effects
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Human rights and social justice: separate causes
of industrialization in some parts of China and India are
disastrous. One might argue, of course, that if China and
India had industrialized using only renewable sources of
energy such as solar power and wind power, the health
consequences would not have been those that resulted from
the use of fossil fuels. Yet it is apparent that it was only
the availability of coal that made possible the tremendous
industrial development that took place in those countries
during the past quarter of a century. Without burning coal,
many persons would have been spared deadly diseases, but
great numbers now enjoying signicant economic benets
would remain impoverished.
The experience of China and India demonstrates that it is
often not possible to deal simultaneously with economic
security and health from a rights standpoint. Yet both are
essential components of social justice. What is required
is striking a balance between these two concerns, each of
them of crucial signicance, by adopting policies that try to
maximize benets and minimize harms. It is sound policy
rather than rights that should be our focus in dealing with
the components of social justice.
human rights
One of the concerns of those wanting to keep the protection
of human rights separate from the promotion of social
justice is that failure to do this would subject human rights
issues to the balancing that is required when addressing
social justice. Where rights are at stake – such as freedom
of speech or the right not to be tortured – any suggestion
that a balance should be struck on the basis of competing
considerations should be rejected. A closely related concern
is that it should be possible to look to the courts as a
component of government in which rights can be protected.
The nature of courts is that they should render judgments
that uphold the law regardless of political considerations.
Protecting rights such as freedom of expression or equal
protection of the laws is often deeply unpopular. As bodies
that do not or should not consider themselves bound by
the popular will, they are generally in a better position
to safeguard rights than the legislative and executive
branches of government. In a democratic society, the
members of the legislative branch are expected to reect
the will of the constituents they represent. The executive
branch is expected to be concerned with the well-being of
the whole society. Accordingly, it may be difcult for them
to give primacy to the rights of a particular person whose
views, or whose membership in a despised minority, are
anathema to most others. Such persons often must look to
the courts if their rights are to be protected.
On the other hand, courts are poorly situated to deal with
issues that require political balancing. The parties that
appear before them generally do not include all those
whose interests may be at stake. Moreover the questions
presented in a particular court case may not reect the
essential issues that are involved. Judges are not chosen
for their ability to establish public policy. For all its
shortcomings in particular circumstances, the best system
we have devised for public policy making is the democratic
political process. It should be the means through
which proponents attempt to promote social justice.
Alexander Hamilton, one of the founders of the American
constitutional system, famously wrote in the Federalist
Papers, that “the executive not only dispenses the honours
but holds the sword of the community. The legislature
not only commands the purse, but prescribes the rules by
which the duties of every citizen are to be regulated. The
judiciary, on the contrary, has no inuence over either the
sword or the purse; no direction either of the strength or of
the wealth of the society, and can take no active resolution
whatever. It may truly be said to have neither FORCE nor
WILL but merely judgment.” To this, it could be added
that the highest calling of the judiciary is to exercise that
judgment in a manner that upholds rights even while it
refrains from trying to address questions that involve
the sword (that is, the war-making power) or the wealth
(that is, the collection or the distribution of resources)
of the society. If the judiciary were to get involved in the
balancing that is needed in distributing society’s wealth as
a supposed means of protecting rights, it seems likely that
a balancing approach would carry over to civil and political
rights. The result, of course, is that civil and political rights
would suffer great damage.
50Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Another concern of many of those opposing efforts to link
the protection of human rights to social justice is that
states that purport to promote social justice may attempt to
use this as a means of explaining away their abuses of civil
and political rights. This is hardly speculative. Long ago,
in the era of the Soviet Union, Moscow regularly pointed
to its purported accomplishments with respect to social
and economic rights as a means to counter criticism of its
denials of civil liberties. More recently, a similar approach
was espoused by some countries of Southeast Asia, led
by the late Lee Kuan Yew, the former Prime Minister of
Singapore. In our time, it is an approach followed by the
current government of China. That country’s success in
fending off criticism of its violations of civil and political
rights seems to have inspired other governments in
different parts of the world to follow in its footsteps. Giving
credence to such a government’s claim that its economic
development policies have fostered human rights by lifting
a signicant number of its citizens out of poverty is to do
a great disservice to many millions of victims of political
oppression.
Social justice through human rights
not effective
A contradiction that emerges in the arguments of those
who want the international human rights movement to
embrace the cause of social justice is that they point to
an increasing number of constitutional provisions and
court decisions embracing economic and social rights,
and to commitments to the promotion of economic and
social rights by leading human rights organizations, and
at the same time they deplore the fact that this has had
virtually no impact in reducing income inequality or in
overcoming deprivation. This disjunction should have been
anticipated. It seems more likely that the way that social
justice can be promoted is by the adoption of economic
policies that promote growth, as in China or India, and
by political mobilization, as took place in the period
subsequent to World War II in some countries of Western
Europe. It is difcult to identify situations in which a rights
approach had a substantial impact in promoting social
justice. A rights approach has had barely any impact in
addressing even the most minimal economic and social
rights. The most signicant exception that comes to
mind is the decision of the South African Constitutional
Court in 2002 in the Treatment Action Campaign case
invalidating that government’s failure to provide nevirapine
in public hospitals to prevent the transmission of HIV from
mothers to their new-born children. That case became
the exception that seems to prove the rule because the
Mbeki government’s policies with respect to prevention
and treatment of HIV were bizarre, and because the cost of
nevirapine was not a factor. The treatment was inexpensive
and the South African government had been offered a ve-
year supply of nevirapine free of charge.
Though it seems appropriate to applaud the result in the
Treatment Action Campaign case, it is difcult to imagine
that the conuence of such circumstances will occur often.
Accordingly, the case does not provide a foundation for
those who expect that dealing with social justice from
a rights standpoint will bring about signicant results.
With so little to show for the effort that has been made to
address even minimal economic benets through a social
and economic rights approach, it seems preposterous to
contend that a rights approach to social justice will have
much impact. Rather, it seems possible that focusing on
efforts to secure social justice by invoking rights will divert
attention and energy away from the political mobilization
that is required in most circumstances to be effective.
Why human rights organizations are
not suitable for political mobilization
Upholding civil and political rights is especially important
in circumstances when the victims of abuses are resented
or looked down upon by the societies in which their
rights may be violated. It is essential that human rights
organizations should try to offer protection to minorities
such as the Roma in Eastern Europe, to the Rohingyas in
Burma, and to the Pygmies in the Democratic Republic
of the Congo. Human rights organizations should uphold
the rights of the migrants crossing the Mediterranean to
Europe and the rights of the detainees at Guantánamo.
When challenging the death penalty, human rights
organizations may be required to try to spare the lives of
those who are widely hated because they have committed
Human rights and social justice: separate causes
51Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
horrendous crimes. Because they should take up such
unpopular causes, human rights defenders should
recognize that they are likely to be members of a minority.
They are not well situated to lead struggles which are likely
to depend on political mobilization of large constituencies.
Such mobilization as does occasionally take place on
human rights issues tends to be effective because of
the moral clarity of the issues that are addressed. The
opportunity of human rights advocates to prevail in the
causes they espouse depends on their adherence to moral
norms, such as those embodied in the prohibition of torture,
that are codied in legal precepts that have gained wide
acceptance.
Because political mobilization is generally required to
advance social justice, those individuals and organizations
leading such a struggle have to be concerned with their
own capacity to win public support. Their effectiveness in
political mobilization may be impaired by their identication
with unpopular causes such as the fairness of legal
proceedings for terrorism suspects. For this reason, human
rights organizations that defend the rights of all, including
even the most marginalized or despised members of society,
are probably not in a good position to be public advocates
of social justice. If they were to take on a leadership role in
such struggles, some organizations might be tempted to
avoid cases in which defending the rights of the unpopular
would undercut their effectiveness in political mobilization.
If that were to happen, of course, the impact on the
protection of civil and political rights would run counter
to the rationale for the formation of such organizations.
On such grounds alone, it seems best to separate the
effort to protect human rights from the promotion of social
justice. Combining the two concerns is unlikely to serve the
interests of social justice and is potentially harmful to the
protection of human rights.
The dangers of a politicized human
rights movement
A nal reason for maintaining a separation is that some
governments have engaged in the extensive redistribution
of resources and, therefore, may make a credible claim
to be promoting social justice. An example of such a
government that has held on to power for an extended
period is Cuba under the Castro brothers. The Cuban
government has provided its citizens with such benets
as education and health care for all and has done much
better than many other governments in promoting income
equality. At the same time, however, it has engaged in
severe abuses of human rights. In the more than a half
century that the Castro brothers have held power, there
has been almost complete denial of freedom of expression.
In the early years of Fidel Castro’s ascendancy, many
thousands of peaceful dissenters were imprisoned and
a few thousand were executed. Over time, the number of
those imprisoned for such reasons declined greatly, but
mainly because dissent was largely wiped out.
Cuba is just one country that could be cited to illustrate the
point that the protection of human rights and the promotion
of social justice do not necessarily go hand in hand. That
poses a danger that a politicized human rights movement
– and it would have to be politicized to be effective in
promoting social justice – could become an apologist for
governments that engage in gross abuses of human rights.
The fact that some proponents of social justice would like
to see international human rights organizations take on
the role of a political movement on behalf of their cause
suggests that those organizations enjoy public credibility
that might make them effective in that role. If human rights
organizations such as Amnesty International and Human
Rights Watch have such credibility, however, it is because,
by and large, they are seen as defenders of civil and
political rights. Amnesty International, which was founded
at a relatively early point during the cold war, and Human
Rights Watch which was also established during the cold
war but at a somewhat later point, established their bona
des by criticizing the states aligned with the Soviet Union,
the states aligned with the United States and non-aligned
states in accordance with the same standards. They
acquired their reputations by documenting such civil and
political rights abuses as attacks on dissenters, torture,
the persecution of ethnic minorities, and the use of rape as
a weapon of war, and advocating on behalf of the victims.
Any deviation from political neutrality will be quickly noted
Human rights and social justice: separate causes
52Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
and used by the targets of their criticism to detract from
their legitimacy. Converting them into lobbies focused on
national budgets, taxes and corporate prots would be a
distortion of their mission and a disservice to the cause of
human rights.
Human rights and social justice: separate causes
53Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Jacob Mchangama
Against a human rights-based
approach to social justice
Human rights activists are increasingly expanding human
rights advocacy into the realm of social justice. Yet there is
no evidence that an increased judicialization of economic,
social and cultural rights delivers better outcomes when it
comes to health, education and living standards. Moreover,
a brief survey of Amnesty International’s reporting on a
number of countries shows an overwhelming focus on
an abuse-based approach favouring civil and political
rights. These ndings suggest that a human rights-based
approach to social justice is misguided and that human
rights activists should resist such a scope creep in their
mission.
Introduction
Increasingly the quest for social justice has become
interwoven with human rights discourse and advocacy. Since
the mid-nineties, the United Nations Human Rights Council
(and its predecessor the Commission on Human Rights)
has established a number of thematic special procedure
mandates related to social justice. These include one on
extreme poverty and human rights, which states that:
“The elimination of extreme poverty should thus not
be seen as a question of charity, but as a pressing
human rights issue. Its persistence in countries that
can afford to eliminate it amounts to a clear violation
of fundamental human rights.”1
1 See statement of the Special Rapporteur on extreme
the High Commissioner for Human Rights (OHCHR) (date
unknown): http://www.ohchr.org/EN/Issues/Poverty/
Pages/SRExtremePovertyIndex.aspx
Amnesty International’s annual report from 2010
emphasizes that:
“Increased accountability for the denial of basic
economic, social and cultural rights has become ever
more important in view of the combined effects of the
food, energy, and nancial crises which are estimated
to have pushed many million more people into poverty.
The respect for all human rights, including economic,
social and cultural rights, must be an integral part of
all national and international responses to the crises.”2
The pursuit of social justice through human rights ts
well with one of the central tenets of international human
rights, namely the ‘Indivisibility’ of all human rights as
afrmed by the Vienna Declaration at the 1993 World
Conference on human rights. The concept of indivisibility
was particularly aimed at improving the standing of
economic, social and cultural rights (ESCR), long the poor
relation of civil and political rights (CPR) despite their
inclusion in both the Universal Declaration of Human
Rights and the International Covenant on Economic, Social
and Cultural Rights (ICESCR).
One of the impediments to indivisibility has been the
perception that social and economic rights are not
justiciable, meaning that they cannot be enforced as
individual rights in the same manner as CPR. This
perception has been challenged in recent decades as ever
2 Amnesty International (2010), Amnesty International
Report 2010: The state of the world’s human rights, London:
Amnesty International Publications. Available at: https://
www.amnesty.org/en/documents/pol10/001/2010/en/
54Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Against a human rights-based approach to social justice
more states adopted and enforced social and economic
rights in their constitutions, as has been the case in South
Africa, Brazil, Colombia and elsewhere.
The EU Charter on Fundamental Rights also includes
a number of social and economic rights, which can be
invoked before the European Court of Justice. Several
decisions by the European Court of Human Rights and the
Inter-American Court of Human rights have blurred the lines
between CPR and social and economic rights.3 The most
striking development at the international level was the entry
into force of the Optional Protocol to the ICESCR in 2013,
which allows for individual complaints against ratifying
states, prompting former UN High Commissioner for Human
Rights Navi Pillay to state in 2007 that “an optional
protocol would help reinforce social justice as a value of the
international community”.4
Understandably, proponents of indivisibility and social
justice have trumpeted this development as evidence that
it is perfectly possible to enforce social and economic
rights as individual rights, just as is the case with freedom
of expression, fair trial etc. And while not all sceptics of
justiciability have been swayed, this development has
certainly introduced a much less abstract element into the
ongoing discussion.
The limited effectiveness of
judicializing social rights
Yet while social and economic rights are increasingly being
judicialized, very little research has been dedicated to the
actual effects of constitutionalizing social rights; in other
words does the judicialization of social and economic rights
deliver the goods promised by their wording? Do enforceable
3 See for instance the European Court of Human rights
case, Kjartan Ásmundsson v. Iceland, 12 October 2004
(App. No. 60669/00), and the Inter-American Court of
Human rights Case, Children’s rehabilitation vs. Paraguay
2 September 2004, [Ser. C] No. 112.
4 OHCHR (2007) ‘High Commissioner backs work on
mechanisms to consider complaints of breaches of economic,
social and cultural rights’, Geneva, 16 July. Available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=6155&LangID=E
social and economic rights deliver social justice? This is a
crucial question because despite the heated nature of the
debate over social rights, the real question is not whether
health, education and adequate living standards are
supremely important goods essential for human ourishing,
but whether these goods are apt to be realized through the
matrix of (justiciable) human rights.
Human rights organizations, in other words, when deciding
on whether to dedicate more of their already scarce
resources towards the pursuit of social justice, should
take into account whether their expertise based on the
framework of human rights is likely to help advance the
plight of the poor. The absence of robust research prompted
this author and Danish economist Christian Bjørnskov to
examine this question in-depth. We did so by surveying the
constitutions of 188 countries and identifying those states
that included social rights in their constitutions (75 at
the time of the survey) as well as those countries in which
these rights had been made justiciable (37).5
Doing so allowed us to build a unique dataset covering
the years between 1960 and 2010, where we traced the
constitutional status of three main social rights: the right
to health, education and social security (which are also
protected at the international level in the ICESCR). By
statistically comparing the evolution of health, education
and relative income differences across countries that have
or have not introduced social rights (taking into account a
wide range of factors such as national income, democracy
and regime type) our ndings suggest that the introduction
of social and economic rights do not, in general, have
robustly positive effects on the population’s long-term
social development. We, for example, nd no effects of
health rights on immunization rates or life expectancy,
regardless of whether they are justiciable or not. Even more
surprising, we found that the legalization of economic and
social rights had a strongly negative medium-term effect
5 A working paper is available here: http://papers.ssrn.
com/sol3/papers.cfm?abstract_id=2323539. An updated
version is forthcoming in The American Journal of Political
Science.
55Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Against a human rights-based approach to social justice
on education, as well as a robustly negative medium-term
increase of ination and detrimental effects of the right to
health on child mortality.
Why does the legalization of economic and social rights
have negative consequences? Our hypothesis is that the
introduction of these new rights cause disruptions, most of
which are borne by those already in the education system,
and by those least likely to have access to the legal and
political system, i.e., the poor. Since the rights do not give
governments or private actors more resources, what is
likely to occur is simply that governments reallocate scarce
resources towards those more likely to claim their newly
given rights, whether they are individuals or identiable
groups.6 Of course, one can point to people whose lives
have been saved by courts ordering expensive treatments,
as has happened in Colombia, or people escaping abject
poverty based on a right to a certain level of income. But
these individual examples obscure our study’s broader,
macro-level ndings.
One might object to such a seemingly cold and calculated
‘spreadsheet approach’ to human rights, and insist that
the individual’s human rights should not be subjected to a
utilitarian calculus. But in the domain of social rights, one
can only do this by turning a blind eye to the effects on real
people that are not immediately apparent from the numbers
and graphs of our study. The Colombian courts may have
saved the lives of a few, but we must ask ourselves: how
many died, or were forced to live with a disease that could
have been cured, because of resources diverted from them
to others who were lucky enough to have access to a good
lawyer?
And what about the people whose access to education,
housing or social security is affected by the diversion of
funds to health, or vice versa, depending on the outcome
of cases that appear before courts in no particular order?
By denition, resources are scarce, and governments must
prioritize. This sits uneasily with the notion of human rights
6 Ibid.
as a ‘trump card’ taking priority over other considerations.
So while the constitutionalization of social and economic
rights has been a victory for human rights activists, it is
not clear that it has done very much for the people who
were supposed to benet. These ndings are in line with
studies on the efcacy of international human rights
conventions that generally nd very little relation between
ratication and improvement (across the whole board of
rights) and even less so when it comes to social rights
(Hafner-Burton 2013: 79).
It is true that the provision of civil and political rights is
not cost-free and also involves priorities and trade-offs.
An independent and well-educated judiciary, a civil service
committed to the rule of impersonal laws rather than
clientelism and corruption, prisons free from torture and
a police force protecting the people rather than a regime
are all goods that require means. But the level of resources
needed to realize social rights are far higher than those
needed to ensure a basic system of justice. Moreover, the
core content of a number of fundamental freedoms, the
absence of censorship, torture, arbitrary arrests and wilful
killings, can be achieved by even very poor countries. For
instance abolishing censorship does not require signicant
resources and in most instances the enjoyment of freedom
of expression, privacy etc. does not affect other citizens’
ability to do the same.
The Danish case
When looking at the relationship between social rights and
social justice it is interesting to take the case of Denmark,
a well-functioning liberal democracy that combines
universal welfare with a deeply entrenched commitment to
the rule of law and civil liberties (though a certain erosion
of civil liberties has been apparent since the turn of the
millennium). Denmark commits some 57 per cent of its GDP
to government spending, 32 per cent to social protection,
but merely 0,9 per cent to its courts, police, prisons and
prosecution services.7 It is also interesting that with a few
7 Data retrieved from Statistics Denmark:
www.statistikbanken.dk/OFF29 and www.statistikbanken.dk/
UDG11.
56Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
minor exceptions, the Danish constitution does not protect
social rights. Moreover, both center-right and center-left
governments have rejected incorporating human rights
conventions with social and economic rights into national
law, whereas the European Convention on Human Rights
has played an ever more important part in Danish law since
1992, ensuring a stronger protection of, inter alia, press
freedom, private and family life, and against arbitrary
deprivations of liberty. During the adoption of the Optional
Protocol to the ICESCR, the Danish government explicitly
rejected ratication thereof:
“Denmark rmly believes that the majority of the rights
in the ICESCR is insufciently judiciable and therefore
less suited to form the basis of an individual complaints
mechanism. Moreover, due to the vague and broad
nature of the rights in the covenant, Denmark fears that
there is a serious risk that the Committee on Economic,
Social and Cultural Rights will end up both functioning
as a legislator in the area of economic, social and
cultural rights and determining the allocation of
state parties’ resources within this sphere. Denmark
nds both scenarios unacceptable, as we place great
importance on the fact that the allocation of resources
within the economic, social and cultural sphere is
a national matter, which is the responsibility and
prerogative of national, democratic institutions with
direct, popular legitimacy.8”
The Danish position demonstrates that a rejection of
justiciable social and economic rights does not necessarily
entail a rejection of the underlying ideal of social justice
based on a universalist welfare state, and that in fact the
divisibility of human rights is perfectly compatible with the
achievement of this ideal. The Danish welfare state has
been built and maintained by various governments with
different ideological positions. Some of these governments
have sometimes felt compelled to adopt reforms such
as increasing the retirement age, lowering and limiting
accessibility to certain benets, slashing spending on
8 Explanation of Position of Denmark at the 63th session
of the United Nations General Assembly, 16 September 2008.
vulnerable groups and numerous other pragmatic policies
that are difcult to square with a human rights-based
approach to social justice. What has been crucial for the
development of the welfare state, however, has been the
ability for civil society and mass movements to mobilize
public support that would ultimately crystallize into
political power.
This struggle for a social welfare state was intimately
interwoven with the ght for civil and political rights, as
the founding members of the Danish labour movement
were frequently arrested, imprisoned, harassed and sent
into exile in the late 19th century, due to their political
views which were regarded as seditious (Engberg 1975).
Accordingly, the rst manifesto of the Danish Social
Democratic Party demanded: “The abolishment of all press
laws, association- and assembly laws, and all other laws
whereby a People can be restricted from manifesting its
thoughts in word and writing”.9 Only when these basic
freedoms were ensured were its members able to create the
platform that would catapult that movement into power,
making the Social Democratic Party the most successful
party in Danish political history, measured by the number
of terms in power.
Limited usefulness of legalizing
economic and social rights to pursue
social justice
The difculties of applying a human rights approach to
social justice in practice, rather than in mere rhetoric,
is also demonstrated by an, admittedly, brief and non-
exhaustive, overview of Amnesty’s actual reporting on
twenty countries from 2005-2015. The overview focuses on
ten ‘Global Players’ (US, UK, France, Brazil, Russia, China,
South Africa, Argentina, India and Saudi Arabia) and the
ten least developed countries in the world (Congo, Niger,
Mozambique, Chad, Burkina Faso, Mali, Eritrea, Central
African Republic, Guinea and Burundi).
9 The ’Gimle programme’, paragraph 4 adopted
on 6-8 June 1976. Available (in Danish) at http://
www.historiefaget.dk/typo3temp/tx_cliopdfprint/
KildeopgaveomSocialdemokratiet_685002_jesp476b.pdf
Against a human rights-based approach to social justice
57Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
The brief overview suggests that Amnesty continues to
prioritize work on classic civil and political rights: 80 per
cent of the rights violations identied in Amnesty’s reports
on what I label ‘Global Players’ related to civil and political
rights, 12 per cent related to ‘hybrid rights’ (such as rights
of migrants that include both elements of CPR and social
and economic rights) and a mere 8 per cent of the rights
identied were social and economic rights. For the least
developed states the corresponding numbers were 86, 10
and 4 per cent respectively.
Even when the reports focus on social and economic rights,
the criticism is often aimed at abuses (such as forced
evictions and discrimination), rather than more general
criticisms of economic policy or scal priorities such as the
lack of provisions of public goods such as housing, jobs or
social security. While these ndings are only indicative and
should be followed up by a more comprehensive study, they
strongly suggest that Amnesty’s country-specic research
overwhelmingly reects an ‘abuse-based approach’, that
naturally favours a predominant, but not exclusive, focus
on CPR, that protect individuals against such readily
identiable abuses by state authorities.
Global players
Table 1: Rights violations mentioned in Amnesty’s annual
reports (2005-2015) forUS, UK, France, Brazil, Russia,
China, South Africa, Argentina, India and Saudi Arabia
Least developed countries
Table 2: Rights violations mentioned in Amnesty’s annual
reports (2005-2015) forCongo, Niger, Mozambique, Chad,
Burkina Faso, Mali, Eritrea, Central African Republic,
Guinea and Burundi
Amnesty’s apparent bias towards CPR, it is submitted,
reects that when moving from rhetoric to concrete action,
social justice is an elusive concept that cannot be neatly
captured by the limited and simplistic language and
framework of human rights. Questions of social justice are
innitely more complicated and complex than instances
of censorship, torture or arbitrary arrests that can readily
be identied as human rights abuses. There is no set and
agreed upon universal formula for alleviating poverty, and
in democracies political parties and the electorate will have
legitimate differences of opinion on how to achieve social
justice and how to resolve the inevitable trade-offs and
priorities involved in matters of economic and social policy.
Amnesty’s approach thus seems to prove right veteran
human rights defender (and contributor to this essay
volume) Aryeh Neier (2013), who recently argued against
social justice, insisting instead that:
“Human rights, in my understanding of the concept,
are a series of limits on the exercise of power. The
state and those holding the power of states are
forbidden to interfere with freedom of inquiry or
expression. They may not deprive anyone of liberty
CPR 86%
ESCR 4% Hybrids 10%
CPR 80%
ESCR 8%
Hybrids 12%
Against a human rights-based approach to social justice
58Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
arbitrarily. They are prohibited from denying each
person the right to count equally and to obtain the
equal protection of the laws. They are denied the
power to inict cruelty. And they must respect a zone
of privacy.”
The way forward
The lesson of these ndings is not that we should be
indifferent to the plight of the poor or abandon the quest
for social justice, but rather that human rights are a
blunt and ineffective instrument for alleviating poverty,
or securing access to health and education. Human rights
can help shine a light on, and remedy, instances of clear
abuse, including in the economic and social domain such
as large-scale forced evictions, policies of deliberate
food deprivation (think North Korea and Ethiopia), or
discrimination in access to health and education. They
cannot, however, deal efciently with the complexities of
general policies on health, education and poverty.
However, it would be mistaken to conclude that turning our
backs on a rights-based approach to health, education and
poverty also means turning our backs on the sick, illiterate
and poor. It is not that these goods are any less important
than free speech or the prohibition against torture. But the
inherent complexity of these goods makes human rights
ill-suited to provide them for those in need.
What the human rights movement has succeeded
spectacularly in, is to provide the basic framework that
allow those in civil society who care about poverty, health
and education to campaign, disseminate ideas, hold
political leaders accountable and ultimately achieve
political change. As such, human rights activists help
provide the platform for social justice activists, who can
then use their skills and expertise campaigning for their
vision of the good global society. But by using ‘human
rights’ to solve other vital policy questions, those who care
most about the poor may actually be making things worse.
Against a human rights-based approach to social justice
59Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Will human rights help us get social justice? Since the
world in recent years has been shaken by protests, this
question is on the minds of activists. But is it on the
agendas of human rights institutions? This essay looks at
contradictions between human rights and social justice
frameworks and offers perspectives on possible synergies.
Introduction
Is the pursuit of human rights an effective way to achieve
social justice? This important question is on the minds of
forward-looking activists. After all, in recent years the world
has been shaken by protests demanding real democracy and
justice for socioeconomic grievances. Research I have been
involved with on protests and political participation has
examined the grievances and demands expressed in almost
nine hundred protests between 2006-2013 in countries
representing more than 90 per cent of world population
and encompassing a wide spectrum of governments, from
centralized, authoritarian regimes to democracies, both old
and new (Ortiz et al. 2013, Burke, 2014). Protests against
antisocial economic policies and for meaningful democracy
topped the ndings (See Fig. 1). These protests came in
many forms: the violent (riots for safe and affordable food,
water and fuel), the traditional (campaigns to reform
public services and pensions, create good jobs and better
labour conditions, enact progressive taxation and scal
spending, undertake land reform), and the innovative (mass
occupations of civic spaces demanding regime change and
the elimination of inequality).
While a number of protests framed grievances as at least
partly rights-based, the majority, and especially those
aimed at changing the economic system and its policies,
have not pursued their aims in terms of human rights
mechanisms, but instead with direct demands in the
streets and on the Internet for better wages, good and
affordable housing, fuel, transportation, education, health
care, food, water and other needs. In addition to numerous
practical demands on the economic system, many of
these protests also voice overarching grievances against
that very system, and in particular its production and
reproduction of debt and inequality. Social movements for
economic justice have demanded real democracy alongside
almost every economic demand, recognizing that without
meaningful political participation they will not have a say
in the economic decisions that affect their lives. Without
a system of meaningful political representation, there is
little incentive for them to undertake the difcult process of
legal redress because the very governments that carry out
antisocial economic policies are the same ones entrusted
with guaranteeing rights, and this would often have to
be done against the wishes of powerful private interests.
Consequently, not only those living in poverty, but even the
middle classes increasingly take direct action for economic
justice. If we are interested in learning how to achieve
social justice in everyday life and not only in norms, we
should grapple with this wave of direct action and what it
says about the relationship between formal human rights
and social justice.
Conditions for social justice
The dominant approaches to human rights from the
elds of law and political science emphasize formal
legal mechanisms and norms embodied in the system of
sovereign states and voluntary institutions of international
cooperation, beginning with the United Nations and
including its various agencies, committees and regional
bodies. Legal experts in these institutions write the human
Sara Burke
Will human rights help us get social justice?
60Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Will human rights help us get social justice?
rights laws, treaties, charters and conventions and
diplomats in governments negotiate them. It is then up
to national states – on the presumption that they are the
legitimate bodies to mediate and regulate citizen’s affairs
– to guarantee and enforce them. The problem is, efforts
to realize specic human rights are frequently propelled by
social movements in opposition to the very states charged
with safeguarding rights, often with powerful private
interests in the background. In such a scenario, social
justice remains elusive.
The term ‘justice’ appears just once in the Universal
Declaration of Human Rights, in the preamble, where
it is deemed – along with freedom and peace – to be
the foundation of human dignity and equal rights.
Contemporary debates about global justice begin with John
Rawls’ A theory of justice, which assumes the existence of
a market economy and takes as given the possibility for
stable economic equilibria in a capitalist system (Rawls
1971). In a critique and extension of Rawls’ theory, Thomas
Pogge argues that global justice must be understood as
social justice, meaning it is an assessment of the social
impact of institutions and rules rather than a judgement of
individual behaviour (Pogge 2010). To assess the conditions
and prospects for social justice we need to ask whether the
system and institutions presently in place are providing –
or are capable of providing – social justice for the world’s
people. Pogge claims the current global institutional
arrangements actually cause harm because they perpetuate
rules whose foreseeable and avoidable results produce
poverty and result in the deaths of innocent people (Pogge
2002). This claim is bolstered by the heterodox economic
literature – from Epstein and Axtell’s computational, agent-
based “Sugarscape” models to Duménil and Lévy’s analysis
of the rise of nance within neoliberal arrangements –
which challenges notions that a deregulated, prot-based
economic system, embedded in a complex society, can
reliably produce a stable economic order (Epstein & Axtell
1996; Duménil & Lévy 2011). Indeed, falling wages and
shrinking pensions in many countries have led to decades
of rising inequalities and fewer opportunities for decent
work and full engagement in society, especially for youth.
Protests against economic policies in recent years have
been most numerous in relation to subsidies, especially
threats to remove food or fuel subsidies, although a great
number also relate to labour compensation and safety
regulations in the workplace, to taxes and nancial
regulation, and to scal and social security policies (Burke
2014). Chief among the institutional targets of these
protests are the International Monetary Fund and European
Central Bank, widely perceived as the chief architects and
advocates of scal austerity since 2010. Societal targets
include corporations and elites, including the nancial
sector, whose privilege and inuence they widely denounce
(Ortiz et al. 2013).
A number of scholars have noted that while the human
rights framework has near universal acceptance by states,
those very states – especially powerful ones like the US,
Russia and China – have poor rates of compliance with
international law. A political economy of human rights that
analyses rights violations under economic neoliberalism
can offer some explanation why this is so. Viewing human
rights as a dynamic eld of social struggle rather than
a static, legal construct, a critical perspective reveals
that globalization since the 1970s has produced a deep
restructuring of the international economic system in line
with the needs of powerful corporate actors, resulting in
vastly increased nancialization and rising income and
wealth disparities (Duménil & Lévy 2011; Stiglitz 2012).
The inuence that international economic restructuring
has had on the eld of human rights should not be
underestimated. In their book, Human rights enterprise,
critical sociologists Armaline, Glasberg and Purkayastha
(2015: 72) argue that the process of actually realizing
human rights is a dialectic between formal mechanisms
and movements, acting not only against violations by
the state but also by the private sector: “[H]uman rights
violations resulting from the Great Recession were not
simply or even primarily violations by the state … but
rather violations prompted by private economic actors
(corporations) alone and in concert with or enabled by the
state and its policymaking power.” Can human rights be
effective against such adversaries when their economic
interests are on the line? Advancing an analysis of the
political economy against the ideology of economic
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orthodoxy – with its imperatives that take on the patina of
natural law: to prioritize growth, deregulate, maintain low
debt-to-GDP ratios, and uphold the rights of creditors and
the privileges of private interests in the global and national
economies.
The connection between human rights
and social justice
Despite the fact that human rights and social justice have
similar goals, since both advance a critical/aspirational
vision for a better world based upon peace and justice,
there are numerous problems with framing the link between
them as causal, implying that human rights is a language,
or mechanism, for achieving social justice. First of all, in
spite of the principle that all human rights are indivisible
and interdependent, the human rights eld does not have a
unied approach. Progress in civil and political rights, the
so-called ‘rst-generation’ human rights, such as rights to
assembly, speech and religion, is based upon monitoring
the presence or absence of negative outcomes like wrongful
incarceration and censorship (OHCHR 2012). Determining
whether civil or political rights have been violated is a
relatively unambiguous process compared to making that
determination with regard to economic, social and cultural
rights, the ‘second-generation’ of human rights. Second-
generation rights are seen in the dominant framework as
following the rst in progressive realization over time. In
the case of economic rights in particular, the indicators of
progress can be exceedingly technical – the antithesis of
language used by protesters demanding economic justice –
and its practitioners, embedded in and therefore inevitably
prone to blind spots in their analysis of the very institutions,
policies and practices that make up their work.
The historical roots of this bifurcated vision of human rights
lie in the cold war. Early on in the development of human
rights principles and instruments, sharp disagreements
arose between the United States and the Soviet Union.
The US promoted as human rights the very political
rights enshrined in the US constitution and by liberal
democracy, such as the right to vote and freedom of speech
and religion, whereas the Soviet Union promoted social
and economic rights central to a socialist organization
of society, such as the rights to health care, work and
education (Posner 2014). The historical disagreement over
the relationship between rights and justice is reected
today in the contradictory perspectives on social and
economic institutions held by the activists for human
rights and social justice, on the one hand – let’s call them
participatistas – and the institutional representatives of
human rights bodies and organizations – institutionalists –
on the other hand (Heller 2012).
Unlike institutionalists, participatistas value the ‘expertise’
of life-experience over technical mastery, which gives them
greater legitimacy to voice the grievances and aspirations
of social movements than institutional representatives, who
are unable to account for the historical lack of progress in
achieving universal human rights. Coming from decentralized
groups of citizens, non-citizens, even whole communities
with shared grievances, activists operate in a political
space more liquid than the system of sovereign states
and international organizations. While they do sometimes
petition nation states and intergovernmental bodies, they
also embrace direct action within and across borders and in
confrontation with non-state actors to attain social justice.
Recent examples include the Summer of Rights in Brazil
(2013), Istanbul’s Right to the City movement around Gezi
Park in Turkey (2013), the Pro-Democracy movement in Hong
Kong (2014), and Black Lives Matter, opposing structural
violence against black men in the United States (2014-15).
Inuential human rights groups walk a ne line with regard
to their ‘street credibility’ among such activists, and their
perceived legitimacy rises and falls to the degree that these
actors are predominantly seen supporting activism or being
xtures in the apparatus of human rights.
Since 2001, the World Social Forum, the quintessential
vision of international social movements in action, has
proclaimed “another world is possible”. But ‘no justice,
no peace’ has emerged as the means for extracting
accountability from individual governments, international
nancial institutions, powerful corporations, and even the
system as a whole. Activists for human rights and social
justice do not necessarily accept the need for a capitalist
market economy – although the international system on
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which human rights is built takes that as a given. Those
who allow for a market or mixed economy assume it has
to be regulated and supervised to produce socially just
outcomes. Since orthodox economics promotes imperatives
like the need for economic growth, for deep involvement
of the private sector in development, and for discounting
the social outcomes of increased nancialization, it also
remains unchallenged in the dominant discourse on human
rights. It is therefore necessary to take a different approach
to link with social movements, which have long attributed
economic injustice to the concentration of corporate power
and the inequality it generates. Rather than an externality
or aberration, it is seen as a logical outcome of the way a
global, capitalist economy works.
Rights + riots: toward synergy?
In November 2014 I had the opportunity to organize
a workshop with strategists from social and political
movements, social and political scientists in academia,
and government representatives and their advisers on
internal and external conicts and democratic dialogue.
All were invited because of their work on protests or protest
movements; all were appreciated for speaking their minds
on several occasions in which the discussion became
heated. The idea we wrestled with in the workshop can be
summed up in the following question: “Is this phenomenon
in the streets a protest to express aspirations, grievances
and demands, or is it conict to be managed or subdued?”
Because the agency of the one considering the question
strongly conditions the answer, we were largely in agreement
that institutional frameworks for conict resolution and
democratic dialogue often answer differently than protesters
themselves. The framework for institutions presupposed
external agents – experts – who managed episodes of
protest in order to achieve a state of security and stability.
The case for protesters, and those of us in the meeting
with one foot in an institution and one in the streets, was
different. We discussed how protesters act as ‘experts’ on
their own behalf and for the transformation of their own
reality, even in the case of riots and violent protests, which
can be understood as expressions of injustice and demands
for its reversal (Burke 2014).
The Institute of Development Studies (IDS) in the UK, along
with academic and activist partners in India and Africa,
completed a fascinating report in late 2014 on “Food Riots
and Food Rights” which Naomi Hossain presented at the
workshop (Hossain et al. 2014). The two-year study on which
the report was based started by looking at the year 2007,
when global food prices began to rise sharply after having
been low for twenty to thirty years, and ended in 2012, a
six-year period that produced a number of food-related
struggles around the world. On average food prices have
been high ever since 2007, and volatile, provoking riots
linked to higher food prices in more than thirty countries.
The IDS research was in part a response to media and
academic bias in the coverage and analysis of food protests.
An interesting revelation provided by the political event-
catalogues compiled by the research team from local,
national and international newspapers was that food riots
almost always happened somewhere else. In other words,
the Indian press found food riots in Bangladesh, Pakistan
and Nepal, but none in India. Or when the international
press reported food riots in Bangladesh, none were noted
in the Bangladeshi press, and so on. They found that both
journalists and researchers tended either to focus in an
unbalanced way on the violence associated with the riots
or to vilify the protesters and caricature their demands.
The problem with this, as the report’s lead author Naomi
Hossain (2015) put it: “People don’t just go out and riot
because prices are high and they want the government to
do something. They do it because they think they have some
moral justication.” During this time period there was also a
growing global movement on the right to food, so in addition
to analysing the different ideas, ideologies, motivations and
meanings of the riots, researchers wanted to compare the
two phenomena. Riots are ostensibly spontaneous, violent
and unruly, while the right to food movement uses legal
instruments and more polite civil-society discourse, but both
have an ethical and moral underpinning.
Their ndings showed that these episodes of struggle to
secure basic economic goods – especially food and water
– are almost always going on around what historians
call the ‘politics of provision’, but are only visible when
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Will human rights help us get social justice?
there are protests. Protests invoke the ‘moral economy’,
a common, strongly-felt sense that states are ultimately
responsible for protecting the right to fundamental needs
like food, however that ‘right’ is conceived, since it is not
only in the legal but also in the moral sense that this is
a shared expectation. The study revealed that during a
food price spike, people share an understanding that the
system is unfair and rigged in favour of the biggest market
participants, so the government must come in to protect
ordinary people. Because of this, while demands advanced
in the heat of a food riot may not be sophisticated or
articulate, they nevertheless communicate the grievance
well enough to get action from governments. This was one
of the surprising outcomes of the study: that riots work. But
if rioting is seen as a way to hold governments accountable
for a morally charged issue like hunger and food security,
what role do, can, and should human rights play?
A new agenda for human rights
institutions?
Since the economic crisis of 2007-2008, social movements
have signicantly shifted the discourse on social justice
issues: consider the effect the Occupy movement had on the
public discussion of inequality. Better synergy between the
institutions of human rights and activists would require a
deeper shift of discourse, something able to be translated
into new institutional designs. According to sociologist
Patrick Heller, who also participated in the workshop on
protest and conict, this is what European social democracy
forged during decades of working-class mobilization, war
and revolutionary moments, resulting in an institutionalized
but fairly effective welfare state (Heller 2015).
Clearly the present situation – especially for developing
countries – does not mirror the historical/political setting
of Europe in this era of worker-led struggles, so the process
to create new and reformed institutions would be different,
but it would benet from the cooperation of the institutions
of human rights and activists in social movements. Heller
offers a view of how such collaboration might look via the
experience of the Sanitaristas, a contentious, grassroots
movement of doctors and nurses in Brazil who set out to
penetrate state institutions in order to solve the seemingly
intractable problem of health care delivery in their country.
Through their participatory process and militancy, they
were able to establish universal primary health care, a
goal that still eludes the US (Heller 2013). This experience
shows that movements can scale up their work and create
new institutions for the provision of social justice, but to do
so they need platforms for action and organization, which
the larger movement for participatory governance in Brazil
since the end of authoritarian rule in 1985 provided. This is
also where the human rights movement can play a critical
role in helping movements to achieve social justice in
everyday life, by challenging the global human rights regime,
especially big NGOs and the intergovernmental bodies for
human rights, to attune their agendas to the issues from the
streets. Institutional change will require a new era, beyond
representation for those whose rights are denied, and toward
the creation of more democratic platforms, in which people
and communities speak for themselves.
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Can human rights bring social justice? Twelve essays
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05 0 100 150 200 250 300
Economic justice and austerity
Reform of public services
Tax/Fiscal justice
Jobs/Higher wages/Labour conditions
Inequality
Low living standards
Agrarian/Land reform
Pension reform
Fuel and energy prices
Food prices
Housing
Failure of political representation
Democracy
Corporate inuence/Deregulation/Privatization
Corruption
Justice
Transparency and accountability
Surveillance
Anti-war/Military-Industrial Complex
Sovereignty
Global justice
Anti-IMF/ECB/Other IFIs
Environmental justice
Anti-imperialism
Anti-free trade
Global commons
Anti-G20
Rights
Ethnic/Indigenous/Racial justice
Environment and the commons
Labour
Women
Freedom of assembly/Speech/Press
LGBT
Religious
Denial of rights
Immigrant
Prisoner
271
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90
63
53
30
30
32
30
10
234
124
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79
23
34
13
23
17
234
0
64
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17
12
7
190
55
41
36
27
23
12
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13
9
0 50 100 150 200 250 300
Figure 1: Grievances and demands driving world protests, 2006-2013
Source: Author’s own graph of data from the 2014 research and update to data set conducted by Burke S., M. Berrada, V. Rubio, Y. Cai,
for Policy Dialogue and Friedrich-Ebert-Stiftung New York.
65Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Rolf Künnemann
How are social justice and human
rights related? Four traps to avoid
How are social justice and human rights related? I share
reections on the cooperation between FIAN International,
as a human rights organization, and social justice
movements. I draw attention to four traps, how human
rights can be misunderstood or misused and then serve
as obstacles to social justice. Moreover I suggest some
directions to how human rights organizations can overcome
such obstacles to pursue social justice.
The struggle for agrarian reform as a
struggle for social justice and human
rights
A classical social justice issue has been redistributive
agrarian reform – at least in the world of the peasants
and landless people. Some of the rst cases of FIAN
International back in 1986, when this human rights
organization was founded, dealt with landless peasants in
Brazil struggling for agrarian reform through occupation
of large vacant estates. Agrarian reform can be seen
as an emblematic social justice policy: Overcoming an
unacceptable distribution of productive resources and
control in the hands of the few – and addressing an
unsustainable mode of production. How can a human rights
organization work for agrarian reform – and how can it
relate to the social movements that are the protagonists in
the related land struggles?
In Brazil the Landless Peasants’ Movement – in order
to speed up the Brazilian government’s agrarian reform
programme – had developed a method of “ocupar-resistir-
producir”: (i) Identifying an idle estate fullling the criteria
for expropriation in the context of the agrarian reform
programme, occupying this estate with a large number of
peasant families, successfully; (ii) resisting attempts of
the landlords/speculators and their paramilitary forces (or
sometimes the police) to regain control over the estate;
and (iii) starting to produce food on the estate. These
cases raised human rights issues across the board – from
economic and social rights to civil rights and the right to
property (see below – Trap 4).
In 1996 La Via Campesina (LVC) and FIAN International
launched a joint Global Campaign for Agrarian Reform. LVC
and FIAN have been two rather unequal partners. LVC is
a coalition of mass-based organizations of peasants and
other rural people – meanwhile the biggest rural social
movement in the world. FIAN International is a medium
size membership based human rights organization – with
no ambition to organize the affected people as social
movements do. As a human rights organization, FIAN
International has been using the concept of human rights
and – as far as possible – human rights law (and fora)
to address cases in a large variety of contexts where and
when the right to adequate food gets violated. Moreover,
FIAN has been involved in bringing about new instruments
related to the human right to adequate food (the Optional
Protocol to the ICESCR, the FAO Right to Food Guidelines,
the FAO Tenure Guidelines).
How has FIAN been working with human rights in the
context of agrarian reform? The answer to this question
is reected in a wealth of literature that you will nd
on www.an.org searching for ‘agrarian reform’. In a
nutshell: FIAN looked at the human right to adequate
food always in the sense of the interrelatedness of all
human rights – holistically. The term ‘right to feed
oneself’ was coined by FIAN as a combination of the
rights to adequate food and freedom from hunger (art.
66Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
How are social justice and human rights related? Four traps to avoid
11 ICESCR) and the right to earn one’s living by freely
chosen work (art. 6 ICESCR). Aspects of the right to health
(art. 12 ICESCR) (with a view to unhealthy industry food)
was also brought to bear for agrarian reform. So was
sustainability as non-discrimination of future generations
(in line with art. 2(2) ICESCR). People’s right to self-
determination was brought in from art. 1 of the ICESCR
to underline that food dependency undermines peoples’
self-determination. FIAN has been emphasizing the rights
of women – agrarian reform must not mean patriarchal
forms of traditional European peasant agriculture. FIAN
drew from the mentioned human rights its analysis of the
states’ obligations for the cases at hand. FIAN used not only
international law, but also obligations of Brazil in national
law along with evidence why agrarian reform measures are
an obligatory policy for Brazil.
FIAN did its human rights advocacy mainly in the ‘resistir’
part of the movement’s strategy. These were situations
of conict where human rights and constitutional rights
were important both in the political struggles and in the
negotiations between the peasants and the state. Besides
defending the civil rights of persecuted peasant activists,
FIAN provided human rights arguments that allowed
to judge whether state policies and measures in these
agrarian reform conicts were appropriate or not. The fact
that such analysis of human rights law came from on
international organization without a direct stake in these
conicts added to the strength of these arguments.
FIAN is not a solidarity organization, but a human rights
organization. It cooperates with La Via Campesina and
other movements, because FIAN believes that they address
key issues from its mandate and are involved in conicts
that are relevant for the realization of human rights. I am
inclined to consider social movements as some sort of
human rights organizations in a broad sense – at least to
the extent that these movements base their struggle not
(alone) on the legitimate interests of their constituencies,
but on human rights values. Human rights organizations
in the narrow sense, like FIAN or Habitat International
Coalition (HIC), for example, are organizations that seek to
develop and implement human rights law and contribute to
its enforcement and thereby contribute – in this example
– to the advancement of the human right to adequate food
or housing. Social justice movements and human rights
organizations are complementary.
FIAN’s basic solidarity with oppressed groups is not put
in question by the fact that FIAN does not support all their
demands. The call for the resignation of an agrarian reform
minister, for example, would be a demand that FIAN would
not necessarily support. Not because FIAN considers such de-
mands unjustied, but because it may have no human rights
law argument to support these demands in the case at hand.
The crucial issue with human rights advocacy in social
justice contexts is to identify states’ obligations in human
rights that support demands of the social movements at
this moment. The states’ obligation to reform agrarian
systems so that they provide an adequate standard of living
for local populations while at the same time ensuring that
people can earn their living in dignity, can be derived from
the ICESCR and supports landless peasants’ demands for
land and suitable agrarian policies. When demands get
very specic, however, in a concrete case of land occupation
or agrarian reform legislation, the problem can be in the
details. Human rights are no mechanism that can replace
political discussion, public debate and parliament. States
do have a considerable ‘level of discretion’, in particular in
their obligations to full, for example around agrarian reform.
This level of discretion has its limits. Human rights provide
a ‘corridor’ for agrarian policies; if agrarian policies imply
that large parts of the rural population are without land,
and without work in dignity, such policies breach states’
obligations under human rights.
Human rights organizations in the eld of social justice do
‘advocacy’ with human rights. Like all ‘advocates’ they are
not meant to be impartial – they are not judges. Human
rights organizations use human rights and human rights
law to serve the cause of the oppressed groups and persons
they cooperate with – and in this manner advance the
realization of human rights. Investors sometimes also use
human rights arguments – mostly related to the human
right to property.
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
How are social justice and human rights related? Four traps to avoid
human rights documents of the 18th century in France (and
America). The Preamble of the 1948 Universal Declaration
of Human Rights retains that: “... it is essential, if man
is not to be compelled to have recourse, as a last resort,
to rebellion against tyranny and oppression, that humans
rights should be protected by the rule of law.” Human
rights – as criteria for legitimacy of states – are superior
to states. Therefore state-made law (positive law) – be it
through constitution, national legislation or international
treaty – is at best a means to protect human rights, but
does not generate them.
Human rights are constitutional for setting up a legitimate
state – and for replacing a state by a new one, if it turns
illegitimate. Human rights are meant to ensure that states
meet the related obligations. This implies that human
rights obligations are to be enforced, hence they are law.1
As human rights are law, but not positive law, and they
are superior to positive law, human rights obligations are
‘supra-positive law’ with human rights inherent in people.
The related philosophical, spiritual and religious questions
are interesting, but beyond the scope of this essay.
Moreover, we should recall that it was not the philosophers,
or lawyers for that matter, who were vital for putting
human rights on the political agenda. It was political
activists, people like Lafayette, Jefferson, Paine. Economic,
social and cultural human rights in particular have to re-
enter the political agendas. And for this to occur, human
rights organizations should move such debates forward.
Portraying human rights as non-political misses the point,
both conceptually and historically. This can turn social
justice movements away from human rights.
1
should be enforced (while moral duties do not). A legal
obligation linked to a right should not only be enforced,
but provide for mechanisms for rights-holders to enforce
them. Therefore it is already clear from the observation that
morals are built on duties and that ‘moral rights’ is a self-
contradicting term.
Making an analysis of the related human rights obligations
of states can be of value for social movements to
advance their cause – for example when it comes to the
expropriations of a large estate. Landowners can ght
such expropriations usually before the courts. Courts have
to interpret national law with a view to the international
(and national) human rights obligations of their state –
where the human right to property of the landowner could
stand against the human right to an adequate standard of
living of the landless peasants. If the case makes it to the
Supreme Court, this can be crucial. This legal background
has its parallels in the political struggles going on in the
media and in negotiations. Judges and movements can
benet from arguments that clarify the states’ obligations
linked to the human rights of landless peasants.
As a social movement, LVC struggles on the basis of its
own concepts, strategies and demands growing out of
the experience of its members, its internal political and
policy debates, and the needs of the hour. The key concept
developed by LVC is food sovereignty. It includes the human
right to adequate food, but only as one of several elements.
Human rights are important for LVC, but not the main plank
of its struggles.
Human right advocacy has to shape up in order to improve its
value for the struggle for social justice. I address a few pro-
blematic developments in the human rights community that
can hamper the efciency of human rights and the work of
human rights organizations. These developments pose traps
for social movements, and for human rights themselves.
Trap 1: Depolitization
Human rights legitimize, instruct and limit the powers
of the state. They are highly political and give rise to
fundamental questions about society. Human rights
organizations should be open to such debates as long as
human rights provide the key terms of reference. What is
essential about human rights is primarily not the right, but
the related states’ obligations. If states breach their related
obligations beyond a certain threshold, they have forgone
their legitimacy and are ripe for revolution (or secession).
These were essentially the arguments of the revolutionary
68Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
How are social justice and human rights related? Four traps to avoid
Trap 2: Mistaking human rights law for
human rights
Another reason why social movements may have doubts
about making human rights the main plank of their
struggles has to do with the fact that human rights
organizations and human rights lawyers very often refer
to positive law – the law made by states. Undernourished
landless peasants in front of fences that excluded them
from vast stretches of idle lands in the hands of an
absentee landlord do not feel they need the state to tell
them what their human rights are – and whether they have
a right to land to feed themselves or not. The constant
reference of human rights organizations and lawyers to
human rights law (treaties, legislation, mechanisms etc.)
can create the false impression that human rights were
granted or agreed by states. In reality the key feature of
human rights is that they are ‘supra-positive’ law – i.e. law
that is not made by states, but emanates from the people
and has to shape the state. Human rights law is positive
law meant to make states’ human rights obligations (in
the sense of supra-positive law) enforceable through legal
mechanisms. In this process a written interpretation of
human rights (human rights law) can facilitate the work
of judges, police and administration. These interpretations
under human rights law can be incomplete, biased or
misleading. Even parliamentary states can fail to properly
implement human rights in positive law – and/or to enforce
the related law. This is a painful experience of many social
justice movements.
It is not unusual that human rights are identied with
human rights law. Such identication coincides with an
ideological position that sees only positive law as law. Legal
positivism is a deadly threat for human rights themselves.
As legal positivism claims that there is no law beyond
positive law, it claims that there is no supra-positive law.
It therefore claims that there are no human rights – or that
human rights are only ‘language’ and the related states’
obligations only moral.
Trap 3: Reducing rights to morals
Social justice includes the full realization of economic,
social and cultural rights. One of the standard attacks
by privileged elites on these human rights has been to
avoid taking them seriously as rights, and see them only
as morally laudable aspirations: The idea that the poor
landless peasants should have access to ‘excess lands’ is
shared even by the Brazilian upper landowning class. The
landlords would certainly agree to some moral duty of the
state to provide such access. (In fact, one reaction of the
Brazilian government to the landless peasants’ call for
land redistribution was to set up colonization programmes
for them in the Amazone.) The landlords had great difculty
understanding that their own land was ‘excess land’ and
that Brazil had a legal obligation to expropriate and (re)
distribute. The landlords saw ‘their’ right to property as
law – as something that needs to get enforced. When the
Brazilian state advanced its agrarian reform policies, the
landlords organized rural militia to exercise force to protect
their property, where the state did not exercise it. On the
contrary, the exercise of force against landlords resisting
agrarian reform has been very rare, even though such use
of force would have been legitimate to protect a human
right. It surely makes a difference whether a state action is
a moral duty or a legal obligation.
Unfortunately, the human rights community itself
contributes to the undermining of human rights as rights.
The term human right is a homonym – one word with
two meanings. It describes both the object of the human
right, also called the human rights value (say – access
to adequate food), and the right itself (the totality of
all state obligations related to access to adequate food
and to the mechanisms for the rights-holder to obtain
remedy in case these obligations are breached). Human
rights obligations are binding rules for states to avoid
and prevent harm to human rights values (respect- and
protect-obligations) and to put an end to deciencies in
human rights values (via full-obligations).2 In normal
language we use human rights both for the human rights
values and for the right itself. We can go on using human
rights as a homonym, but we should know what we are
2 These obligations being rules entails that human rights
obligations can be breached even if no damage will be
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How are social justice and human rights related? Four traps to avoid
doing: When are we talking about a right and when about
a value?
A violation of a human right is a breach of a human rights
obligation. A violation is therefore always an act or omis-
sion by a state – not a situation of deciency in a human
rights value. Nevertheless a decient human rights value is
sometimes called a violation of human rights. Hunger, for
example, indicates a decient human rights value (lacking
freedom from hunger), but is not necessarily a human rights
violation. Of course, hunger can be the result of violations
(and very often is), but sometimes even the best governments
in the world will be unable to prevent hunger. Then there is
no human rights violation involved here. The identication of
a violation therefore requires an analysis of state obligations
and action or inaction in the respective case – a political and
legal analysis. This, however, is what social justice move-
ments (and human rights organizations) have to do anyways.
As a consequence of using ‘human right’ where ‘human
rights value’ is meant, ‘violation’ is used, where ‘deciency’
of a human rights value is meant. With this language,
human rights violations ‘lead to’ violations. This is not only
confusing, but counterproductive, as it trivializes human
rights and distracts from the real issue: An analysis of
states’ breaches of obligations – and how these obligations
can be enforced by the rights holder. Otherwise we are not
talking any longer about rights and law, but about morals
in a ‘rights language’. Human rights, however, are not a
language to talk about something that could also be talked
about in different terms (social justice, ‘development’, ethics
etc.). Reducing rights (in particular the underdeveloped
economic, social and cultural rights) to a language on
morals, plays in the hands of socially oppressive elites.
Trap 4: Misusing the human right to
property
Previous sections already touched upon the use – or rather
misuse – of the human right to property as an obstacle to
social justice. The right to property does not seem to be
very prominent as a human right. It was not even included
in the international human rights covenants of 1966, even
though it was mentioned in the Universal Declaration.
Nevertheless, the right to property has become one of the
best implemented human rights in positive law – at least
when it comes to the protection of rich people’s formalized
property. Property is not an absolute value, but receives its
legitimacy and its limits from its usefulness for the other
‘absolute’ human rights values such as access to food
and water, physical integrity, political participation etc.
Accordingly, property can be dealt with very differently in
different societies. The capitalist concept of property is just
one mode of property – and its coherence with absolute
human rights values remains questionable.
States are duty-bound by human rights obligations to
respect, protect and full the right to property as long as it
is coherent with absolute human rights values. What is all
too often overlooked is the States’ human rights obligation
to full poor people’s access to property, in particular
property to feed themselves, to house themselves, to enjoy
an adequate standard of living, and to participate in the
political life of their communities. Agrarian reform in Brazil
could be seen as a fullment programme under the right to
property for landless peasants.
The human right to property with its biased interpretation
has been one of the reasons why considerable parts of the
socialist movement have been remained skeptical about
human rights and their positive role in promoting social
justice.
Conclusion
Economic, social and cultural human rights provide a
legal framework for states obligations on social justice
issues. Social justice needs to get institutionalized and this
requires properly functioning states and their cooperation,
based on human rights.
Human rights are of considerable value for social (justice)
movements: When confronting states’ authorities, they also
confront their interpretations of law. In such situations it
helps to point to states’ human rights obligations, codied
or not, for example concerning the validity or legitimacy
of certain policy measures or interventions in areas of
social justice. Using human rights is not ‘legalistic’ – even
70Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
How are social justice and human rights related? Four traps to avoid
though human rights are rights in law not in ‘language’.
Human rights can be an important element to strengthen
the position of a struggling movement.
A number of traps, such as depolitization, legal positivism,
moralization, and a misunderstood right to property can be
important obstacles for social justice and the effectiveness
of human rights. Human rights organizations and social
justice movements should be aware of these traps.
Human rights organizations engaging in social justice
issues should clearly see their role and limitations.
They can provide advocacy and advance human rights law
and the implementation of human rights, but must never
speak in the name of affected people or social movements.
Each human rights organization stands for all human
rights, even if it has – for practical purposes – only
a limited mandate. The indivisibility of human rights
translates into the indivisibility of human rights discourses.
The related political debates should therefore be a matter of
interest for all human rights organizations.
71Changing perspectives on human rights
Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Doutje Lettinga and Lars van Troost
Justice over rights?
Over time, Amnesty International has increasingly used
social justice language and methods in its work on
social and economic rights. Should social justice, the fair
distribution of wealth, resources and power, become its
goal? And what are the potentials and pitfalls of different
approaches to social justice?
Introduction
In 2009, the then Secretary General of Amnesty International
wrote: “[b]illions of people are suffering from insecurity,
injustice and indignity. This is a human rights crisis… The
world needs a different kind of leadership, a different kind
of politics as well as economics – something that works
for all and not just for a favoured few” (Khan 2009a: 5). In
her essay, the opening contribution to Amnesty’s annual
report in 2009, Irene Khan disapproved strongly of “the
collusion between business and state to deprive people of
their land and natural resources and impoverish them” (ibid:
8). Although the essay was not particularly clear about the
nature of the changes Khan was advocating, human rights
were certainly a central part of them. In a press release rich
in eschatological language (“the world is sitting on a social,
political and economic time bomb”) that accompanied
Amnesty’s annual report, the Secretary General warned that
“the world needs a new global deal on human rights – not
paper promises”, after which she called on the US to ratify
the International Covenant on Economic, Social and Cultural
Rights, and on China to ratify the International Covenant on
Civil and Political Rights (Amnesty International 2009). Khan
might have been convinced of the need for radical changes to
the economic and political structures of the world, but for the
moment Amnesty had little that was revolutionary or, for that
matter, even reformist to offer.
Although Amnesty has been working for more than a
decade on economic, social and cultural rights (ESCR),
we believe that Khan’s call for structural political and
economic changes is a far cry from the minimalistic,
anti-utopian anti-politics that is characteristic of much
of the human rights activism since the 1970s (Moyn
2010). Regardless of whether one supports or disagrees
with the idea that Amnesty should start tackling the
root causes of human rights abuse and engaging with
distributive questions, assuming that social justice
issues and human rights are one and the same thing
ignores some of the conceptual and strategic differences
between both concepts, which are described by other
authors in this volume (see in particular the essays of
Sara Burke, Dan Chong, Jacob Mchangama, Samuel Moyn
and Aryeh Neier).
In this essay, we will show that, over time, Amnesty has
tended to ‘delegalize’ human rights discourse, seemingly
preferring a moral and increasingly political understanding
of human rights over a strictly legal approach. The
organization has also adopted new methods that focus
on the empowerment and participation of rights holders,
a move that correlates with an increasing interest in
social justice through its work on social and economic
rights. We will argue that if Amnesty chooses to work
more progressively on social justice issues, it needs to
take account of and openly discuss the trade-offs and
consequences of such a decision – as well as of a decision
not to do so. We end the essay by sketching four possible
approaches to social justice, describing in broad outlines
the potential and pitfalls of each approach.
72Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
Amnesty and social justice language
and methods
For a long time, leading international human rights
organizations prioritized civil and political rights over ESCR.
Social justice groups and local rights groups have equally
long pushed them to start working on poverty, economic
inequality and access to services. During the late 1980s and
the 1990s, international human rights organizations started
to respond to these calls by expanding their mandates
to include ESCR. During the same period, a rights-based
approach to development became popular within certain
social justice and humanitarian organizations. Consequently,
strategies and methods used by social justice and human
rights groups have merged over time (Bob 2008; Nelson &
Dorsey 2007). The alter-globalization movement and the
human rights movement, however, have largely moved in
parallel circuits and continue to view each other with mutual
scepticism (Glasius 2012).
More recently, human rights groups have made it their
priority to forge links with social movements and grassroots
groups in their work on ESCR. Amnesty International is an
interesting case in point. Its ofcial vision and mission
make it an archetypical human rights organization, while
its stated strategy of grassroots activism, participatory
processes, and its current ‘move closer to the ground’
suggest a resemblance with social justice groups.
In preparation for the 28th International Council Meeting
(ICM) in 2007, the International Executive Committee of
Amnesty distributed a circular entitled ‘From adoption
to agency’.1 The document signals a fundamental
reorientation of the organization towards rights holders,
who were no longer ‘adopted’ as ‘victims’ of human rights
violations but seen as agents shaping their own future.
Amnesty would not only work for but also with rights
1 Amnesty International, ‘From adoption to agency.
Preparing Amnesty to be a healthy 50 year old, 28th
International Council Meeting Circular 41’. Internal
document. The International Council, composed of
representatives of national sections and structures of the
Amnesty International.
holders in order to keep pace with changes in human rights
activism and in line with its aspirations to build a greater
constituency in the Global South and East by moving closer
to the ground.2
Two years later, in 2009, Amnesty launched its global
‘Demand Dignity’ campaign. The aim of this campaign
was to make ESCR a reality. It presented poverty and
exclusion as human rights issues. Empowerment of the
poor was considered as being key to break the vicious circle
of poverty, and therefore Amnesty started emphasizing
the need to enhance participation of rights holders in its
strategies. In her book, The unheard truth. Poverty and
human rights (Khan 2009b), published as part of the
campaign launch, Secretary General Irene Khan advocated
using human rights to challenge the system of (social)
injustice. She promoted the end of ‘voicelessness’.
Participatory and empowerment approaches are now
clearly embedded in Amnesty’s activism and campaigning
strategies.
In preparation of subsequent International Council
Meetings, it has been suggested within Amnesty to adopt
social justice as one of the values that the organization
should work for, alongside other values such as human
dignity and equality.3 Although up until now Amnesty
has chosen not to change its mission, the ght against
socioeconomic inequality and poverty has regularly been
articulated as being a core human rights concern for the
organization in both internal and public documents.
Preceding a UN meeting on the post-2015 Development
Framework, Amnesty released a joint statement together
with more than 350 other organizations. In ’Human rights
2 See: http://www.amnesty.ie/content/moving-closer-
ground. See also blog by AI’s Secretary General Salil Shetty
(2015), ‘Moving Amnesty closer to the ground is necessary,
not simple’, openGlobalRights, 20 January. Available at: https://
www.opendemocracy.net/openglobalrights/salil-shetty/
moving-amnesty-closer-to-ground-is-necessary-not-simple
3 As evidenced by internal documents distributed by the
International Secretariat (IS) to national Amnesty sections
and structures in preparation of Amnesty’s Strategic Plan
2010-2016.
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
for all post-2015’ it is suggested that a certain measure of
equality is a condition for human rights. According to the
signatories of the statement,4 their vision of the preferred
post-2015 framework is one that:
“Eliminates all forms of discrimination and diminishes
inequalities, including socioeconomic inequalities.
Human rights can only be realized within socio-
economic and environmental boundaries if we also
reduce inequalities of wealth, power and resources.”
In 2013 a vacancy announcement for posts of directors of
Amnesty’s new regional ofces in Africa and Asia listed
among the job requirements that the ideal candidate ought
to be “personally engaged with human rights and social
justice” [italics DL & LvT].5
Amnesty International is present at important venues
where social justice groups gather to confront economic
globalization, such as the World Social Forum (WSF)
and the G8 alternative summits. The WSF rejects a
representative role, and it makes no recommendations or
formal statements on behalf of participants.6 Nonetheless,
it does require that participants adopt a general opposition
to neoliberal globalization and a commitment to nonviolent
struggle. The rst article of the WSF ‘Charter of Principles’
species the aims of the WSF in the following words:
“The World Social Forum is an open meeting place
for reective thinking, democratic debate of ideas,
formulation of proposals, free exchange of experiences
and interlinking for effective action, by groups and
movements of civil society that are opposed to neo-
4 Joint statement (2013), ‘Human rights for all post-2015’,
across the world. Available at: http://www.cesr.org/article.
php?id=1532.
5 The vacancy was posted at: https://careers.amnesty.org.
6 See the WSF ‘Charter of Principles’ which states that:
“The meetings of the World Social Forum do not deliberate on
behalf of the World Social Forum as a body. No-one, therefore,
Forum, to express positions claiming to be those of all its
participants...” (Article 6)
liberalism and to domination of the world by capital
and any form of imperialism [italics DL & LvT], and
are committed to building a planetary society directed
towards fruitful relationships among Mankind and
between it and the Earth.”7
Amnesty International has participated in the WSF
since 2003, as well as in the World Economic Forum at
Davos itself. It uses the forums to build partnerships
and to campaign in collaboration with other grassroots
organizations on specic human rights issues. Ten years
later, Amnesty still uses the summits to place human rights
on the agenda, but now also expresses its concern about
inequality and related economic policy. In a press release
issued around Davos 2012,8 Amnesty’s Secretary General
Salil Shetty was quoted as follows:
“Business and political leaders need to recognize the
need for a new approach that is fair and inclusive.
Instead of entrenching the divide between rich and
poor, they need to adopt growth plans that address
this divide. They must place people’s rights at the
heart of any solutions. Otherwise, the recent social
unrest unfolding in countries across the world could
only be the beginning.”
In a more recent blog posted at the start of the regional
World Economic Forum in Mexico in May 2015, Shetty wrote
that (income) inequality is a source of many human rights
problems in the Latin American continent, which is “home
to 10 of the 15 most unequal countries in the world (…).
Tackling inequality with sustained concrete action is the
only way for the region to truly move forward.”9
7 ‘The Charter of Principles’, World Social Forum India,
org/?q=node/3.
8 Amnesty International (2012) ‘Davos: World leaders
protecting business over rights in economic crisis’, Amnesty
International news, 24 January. Available at: http://www.
amnesty.org/en/news/davos-world-leaders-protecting-
business-over-rights-economic-crisis-2012-01-24.
9 Shetty, S. (2015) ‘The business of human rights in the
America’s: no money, no justice’, Amnesty International
blogs, 6 May. Available at: https://www.amnesty.org/en/
Justice over rights?
74Changing perspectives on human rights
Can human rights bring social justice? Twelve essays
In their campaigning, staff members of local Amnesty
sections likewise suggest that the organization strives for
the reduction of inequality, and for many other values. In a
speech delivered on the occasion of the 2013 Lough Erne G8
summit, Patrick Corrigan of Amnesty United Kingdom stated:
“This is our message – we want a world without war,
without repression, without environmental degradation.
We want a world without poverty, without hunger, without
the inequality which divides us. The G8 leaders say
they want free trade. We say we want fair trade and
free speech. The G8 leaders say they want globalization
of business. We say we want to globalize peace and
globalize justice. They say they want to tinker with the tax
havens. We say we want a world where no longer will 800
million people go to bed hungry every night and where
every 5 seconds a child dies from extreme poverty.”10
Different approaches to human rights
These examples demonstrate that increasingly Amnesty
International understands human rights as a tool for
attaining social justice. This points to a related but hardly
debated or articulated difference of opinion within the
human rights community itself. Human rights can be seen
as an instrument for attaining higher goals, or as a goal
in and of themselves. In an instrumental view of human
rights, other goals or values like social justice may take
priority over these rights.
In this process, the gap between Amnesty’s statutory
mission (human rights for all as its end goal) and its
practices seems to be growing while at the same time its
understanding of human rights seems to be changing from
a legal to a moral one, interchangeable with broad notions
of justice, dignity and equality and more or less detached
from the international legal standards embedded in
treaties, laws, and declarations.
latest/news/2015/05/the-business-of-human-rights-in-the-
americas-no-money-no-justice/.
10 Corrigan, P. (2013) ‘G8 must put rights at hearts of
decisions’, Amnesty International UK blogs, 17 January.
Available at: http://www.amnesty.org.uk/blogs/belfast-and-
beyond/g8-must-put-rights-heart-decisions.
The above examples also demonstrate a third possible
relationship between human rights and social justice, in
addition to the instrumental and end goal approaches to
human rights. In this third, conditional understanding of
human rights, only a certain measure of inequality in the
distribution of other goods is deemed compatible with the
realization of human rights. It suggests that human rights
are only compatible with limited differences in income,
capital or wealth.
What the instrumental and conditional approach to human
rights have in common is an emphasis on the political
character of human rights. Political in the sense that
human rights are seen as prescribing a single appropriate
set of guidelines for political or economic policy, even
though these nd only weak support in international
human rights law. This all brings Amnesty much closer to
being an organization or movement that engages in public
policymaking processes, by advocating for or against
particular political or economic arrangements to realize
justice or for the allocation of resources to certain policies
(e.g. welfare and health) at the expense of others (e.g.
military and defence).
Some would argue that Amnesty’s original power was its
non-partisan character, putting people’s basic rights rst,
whatever the political or economic system under which they
lived and regardless of the ideology of the perpetrators of
human rights violations and abuses. They might claim that
the organization should refrain from providing opinions on
resource allocation and policy prioritization, because this may
take it into the terrain of the executive or other public policy
makers and disregard that states have a considerable “level
of discretion” in their human rights obligations.
Others would contend that the more Amnesty moves
into discourses around scarce resource trade-offs and
distributive justice, the less comfortable a strictly legal
rights language – framed as politically neutral – becomes.
They argue that a pursuit for social justice eventually
requires a more outspoken stance on particular economic
arrangements and a revision of dominant notions of
impartiality (see, for instance, Saiz 2009: 287). They
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
might claim that the organization’s work will ultimately be
ineffective to help realize the enjoyment of rights by the
most marginalized and deprived if it does not get engaged
in economic, political and cultural debates and offer
system-oriented solutions.
Trade-offs and choices for Amnesty
International
What are the potential and pitfalls of adopting a broad,
moral understanding of human rights or seeing them
as political instruments to promote social justice for an
organization like Amnesty International?
Adopting social justice language allows groups to
circumvent the indeterminacies in international human
rights law on issues of distributive justice (see Chong
2010). It will help draw attention to the structural and
historical causes and processes underlying inequality
and injustice, including relationships of power. It opens
up possibilities to come up with solutions not dictated by
international law, including localized interventions that,
according to some, will have more concrete results for
individuals and groups.
It also allows Amnesty to get (more) involved in political
debates about resource redistribution, and to overcome
frustrations that the specialized debates of human rights
practitioners about the interpretation of legal texts obscure
the larger moral and ideological issues at stake. This can
enhance its role in developing an effective response to the
challenge of social and economic inequality within and
between states and the impact of scal and economic
policy on human rights enjoyment.
From a strategic point of view, social justice language has
the potential to resonate among large segments of the po-
pulation, particularly poor and marginalized groups (see Sara
Burke’s essay in this volume). Social justice language is less
technical, more accessible and more politically malleable than
human rights language. This offers potential to organizations
like Amnesty International to rally new activists, supporters
and members, nd new donors and build new partnerships
and alliances with deprived groups and individuals.
There are also potential pitfalls when human rights are
equated with or instrumentalized for social justice, or
when the realization of human rights is regarded as being
conditional on a just distribution of goods, wealth and
power. By detaching human rights from the international
legal instruments in which they are anchored, there will
be a much wider range of possible interpretations of
what they mean, what their corresponding duties are and
who the duty-bearers are. Because values like human
dignity or social justice are broad and vague, they can be
interpreted in many different and possibly contradictory
ways. The analytical rigour and discipline of the dominant
legal approach will get lost, and with it a specic kind of
authority that the ostensible objectivity and authority of law
brings with it.
Engaging with social justice can also create tension
between Amnesty’s emphasis on impartiality on the one
hand and the pressure to take a stance on the alleged
underlying causes of human rights violations on the
other. Amnesty may no longer be considered independent
or impartial if it starts denouncing certain political or
economic systems or commits to anti-neoliberal agendas.
This may undermine its credibility and legitimacy,
particularly among the political elites that it aims to
inuence and among some of its donors.
Finally, moving too close to the ground may result in
Amnesty associating itself with agendas that are not
necessarily aimed at furthering human rights. Amnesty’s
emphasis on empowering marginal groups presumes
that they will use their power to defend human rights.
But the values and aspirations of local grassroots groups
and movements may actually be different from those of
Amnesty, and their preferred methods to challenge the
system perceived as unjust may be more radical, even
violent, than Amnesty can afford.
Four approaches to social justice
We want to conclude by briey sketching four theoretical,
broad and partly overlapping approaches to social justice,
each of which has different implications for Amnesty’s
strategies. For the sake of argument we chose clear, short
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Can human rights bring social justice? Twelve essays
and provocative names for these approaches: ‘Justice over
rights’; ‘Justice through rights’; ‘Rights over justice’; and
‘Justice for rights’.
Justice over rights
In this approach, Amnesty International adopts social
justice as at least part of its mission and develops a
position on what this entails in terms of policies and
campaigning. Amnesty will probably strive for a more
ambitious egalitarian agenda than its current economic
and social rights agenda, and consequently will, if
legalistic strategies do not sufce, develop non-rights-
based policies and strategies to attain social justice.
In this approach, realizing human rights for all is not
the (only) end goal of the organization. Human rights are
instruments for reaching a different, possibly higher goal,
notably distributional or even substantive equality, and not
merely goals in and of themselves.
In the Justice over rights approach, Amnesty will probably
work with a (broad) moral concept of human rights to
circumvent the limitations and indeterminacies of law, but
also with other values such as dignity, justice and equality.
The exibility that this might entail will be benecial for its
work with rights-holders and with other movements and
activists. Social justice issues might thereby invigorate
Amnesty’s campaigning and mobilization capacities.
A Justice over rights approach might be less benecial for
the consistency and coherence of policies and practices.
Due to its more politically outspoken and confrontational
nature, it may also alienate some supporters in those parts
of the world where Amnesty traditionally has a strong
presence, who have found Amnesty’s prole attractive
because of its ostensibly non-political or non-partisan
character.
Justice through rights
In this approach, Amnesty International contributes to
attaining social justice insofar as realizing human rights
contributes to it. Its campaigning for social justice is limited
by widely shared interpretations of legal human rights
obligations and duties. It monitors compliance of states
with their international legal obligations in relation to ESCR
and develops the appropriate methods for doing so.
In this approach, human rights are the legal framework
within which other values, such as social justice or
dignity, are promoted. Amnesty views human rights law
as a framework that guides the design of economic and
social policy(making) and narrows the range of policy
options a state may pursue. However, when realizing
human rights does not sufce to attain other values,
Amnesty is silent.
This approach would imply continuity in Amnesty’s mission
in at least those parts of the world where the organization
traditionally has a strong presence, and hence ensures its
activism and income base. It also signals a development
in Amnesty’s thinking and practices related to inequality
and poverty which might attract new audiences.
At the same time, in using social justice language
for what is, in the end, a more limited rights agenda,
Amnesty risks disappointing activists seeking radical
systemic changes to reduce the gap between the rich and
poor. It might paralyse rather than stimulate Amnesty’s
campaigning when the organization tries to cater to both
revolutionary activists and moderate supporters with
divergent expectations.
Rights over justice
In a Rights over justice approach, Amnesty also works
from a legal notion of human rights but only aims for the
realization of human rights for all, not for other values
such as social justice or dignity. It monitors states’
compliance with their international legal human rights
obligations and conceptualizes equality in a procedural
sense, notably: people deserve equal protection under the
law and equal protection against discrimination in their
access to services.
Amnesty tends to avoid debates about the creation and
distribution of wealth necessary to full rights, believing
that these involve choices that belong more to the political
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
community rather than to the realm of law. However,
Amnesty will emphasize people’s rights to participation
and information to ensure transparency in public decision-
making and the inclusion of affected groups in social and
economic policy deliberations.
In this approach, Amnesty risks being viewed as typically
‘Western’ and thus harming its perception of impartiality
in the Global South and East. This approach will not
resonate with, and probably disappoint, marginalized or
needy rights-holders and groups aimed at transforming the
economic and political system.
However, by continuing to full its watchdog function,
Amnesty can remain an important protector for social
justice activists. It can continue to advocate for their
rights to freedom of expression and peaceful assembly or
access to justice and remedy, and to monitor human rights
compliance by law enforcement agencies in demonstrations
by social justice activists. Amnesty’s critical distance
from these movements’ redistributive claims ensures an
independence and neutrality that enhances its credibility
among the policy elites it engages and its recognizability
among traditional constituencies.
Justice for rights
A Justice for rights approach emphasizes that realizing
human rights, which continues to be the end goal,
presupposes a certain measure of social justice. In this
approach, large differences in income, wealth and primary
goods are considered to be incompatible with the full
realization of human rights, hence Amnesty would not only
plead for a minimal oor of basic rights, but also adhere to
the idea that there is a maximum ceiling of inequality that
the realization of human rights can afford.
Making a meaningful contribution to this debate might
presuppose that Amnesty formulates how much inequality
is compatible with realizing human rights or that Amnesty
has at least an internally agreed and externally convincing
method or standard to decide this issue, whether in general
or in specic situations.
Conclusion
This essay illustrates that there are indications that
preferences and tendencies exist within Amnesty
International to expand its mission to include social justice
as a goal, just as there is probably a broad movement
that opposes this move. While not taking a position in
this debate, we have discussed some challenges that
the organization needs to confront and openly discuss
when it does change its mission according to these lines.
We’ve described four theoretical ideal-type approaches to
social justice that the organization could follow. In reality,
Amnesty is internally heterogeneous and already moves
back and forth between these different approaches with one
being dominant over others at different times or different
places. Considering the internal and external pressure on
Amnesty to engage with persistent inequality and related
political and economic system aws, it might be time to
bring these internal contestations to the fore and choose a
direction the movement can agree on.
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A legal approach to economic, social and cultural rights
(ESCR) not only allows, but in fact requires signicant
changes in the distribution of rights and resources within
and between societies. Amnesty’s work on ESCR has thus far
addressed only some of the necessary changes. This was a
transitional step and Amnesty’s ESCR work is steadily moving
in the direction of applying human rights law to grapple with
issues of resource distribution. This essay discusses what
Amnesty will need to do to succeed in this area and why it
may not be able to fully satisfy all social justice advocates.
Introduction
As with all of its human rights work, in its work on economic,
social and cultural rights (ESCR), Amnesty has focused on
ensuring accountability for both state and non-state actors
based on the relevant international human rights frameworks.
It has called for new standards where necessary to achieve
the objectives set out in the Universal Declaration of Human
Rights (UDHR) and international human rights treaties. This
framework guides and limits the extent to which Amnesty
can advance social justice claims and in this respect it is not
surprising that the words ‘social justice’ did not feature when
Amnesty elaborated its aims for engaging on ESCR.2 The
Amnesty framework also requires strict adherence to
impartiality rather than seeking, or (perhaps more crucially)
1 This essay represents the personal views of the authors
and does not necessarily represent the views of all colleagues
at Amnesty. We thank Avner Gidron, Meghna Abraham and
Maggie Maloney for input on Amnesty’s early engagement
with ESCR.
distribution of rights, opportunities and resources within a
given society, and whether it deserves to be regarded as fair
and just’ (Cramme & Diamond 2009), as used by the editors
of this volume in the introduction.
Ashfaq Khalfan and Iain Byrne1
Advancing social justice through human rights:
the experience of Amnesty International
being perceived to advance, a particular political or
economic agenda, or both.
Amnesty’s approach aligns with that of the UN Committee
on Economic, Social and Cultural Rights, which has stated
that: “[I]n terms of political and economic systems the
Covenant [on Economic, Social and Cultural Rights] is
neutral and its principles cannot accurately be described
as being predicated exclusively upon the need for, or the
desirability of a socialist or a capitalist system, or a mixed,
centrally planned, or laisser-faire economy, or upon any
other particular approach.”3This is not to say, however,
that a government has carte blanche in regard to the
covenant’s interpretation, only that it may have to adjust
policies and practices to meet its duties under the treaty,
rather than their ideological underpinning.
In this essay, we not are addressing how Amnesty would
work on social justice per se, but rather how its work on
ESCR can help achieve many, although not all, aspects of
social justice. For example, Amnesty calls for provision of
essential services for all to realize rights such as those
to education and health, and for continually improving
them over time. Such provision normally requires a net
redistribution of resources from upper-income groups to
lower-income groups through taxation and, in regard to
low-income countries, through changes to national and
international regulation, taxation and, in regard to low-
income countries, through international assistance. In
3 UN Committee on Economic, Social and Cultural Rights
(CESCR) (1990) General Comment No. 3: The Nature of States
Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14
December, E/1991/23.
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Can human rights bring social justice? Twelve essays
our view, the rights and obligations in the UDHR and the
International Covenant on Economic, Social and Cultural
Rights (ICESCR) and other international human rights
treaties necessarily require states to carry out major
political, social and economic changes in societies in order
to full their human rights duties. These would achieve
signicant elements of social justice, as described below.
Article 28 of the UDHR is particularly strong in this
respect, stating that: “Everyone is entitled to a social and
international order in which the rights and freedoms set
forth in this Declaration can be fully realized.” The rights in
the UDHR are so far-ranging that they require signicant
structural changes to national and international rules, if one
takes this commitment seriously. Unfortunately, many do not.
Article 2.1 of the ICESCR, similarly, requires states to take
all feasible steps, to the maximum of available resources, to
realize ESCR and – and this part of it is often forgotten – to
continuously improve living conditions. In many situations,
this language is dismissed as being too vague or offering
governments an opt-out, reecting either cynicism on the
part of progressive thinkers or a conservative approach which
holds that governments alone determine what is feasible to
implement their ICESCR commitment, rather than being held
to an objective standard. Yet, a correct legal approach, based
on proper treaty interpretation, reads the words of a treaty
in light of its object and purpose, which is to realize ESCR
for all. The exible nature of Article 2.1 does not weaken the
government’s obligation, but rather it makes clear that the
government must do everything it takes to ensure ESCR. This
includes ensuring that it mobilizes sufcient resources, uses
them effectively for the realization of rights, and targets them
effectively on the most disadvantaged.
However, much lies in interpretation. Many governments,
legal experts and even people in human rights NGOs
narrowly interpret human rights law to apply only those
parts of it that explicitly set out precise and clear duties
on government. However, law should be interpreted in good
faith, in accordance with its object and purpose, and if this
is done, then it is clear that human rights law is – or at
least can be – a powerful tool for advancing social justice.
A radical shift but not far enough?
Amnesty International has been working on ESCR for
nearly fteen years. During this time it has issued over two
hundred major outputs on ESCR violations across more
than forty countries in every region. It has carried out global
and regional campaigns on housing, health, corporate
accountability and legal enforcement of ESCR and worked
in partnerships with communities in slums and informal
settlements to prevent and challenge forced evictions
and obtain better access to services. It has played a key
role in helping a new dedicated international complaints
mechanism – the Optional Protocol to the ICESCR – come
into force and made vital contributions to standard setting
in areas such as extra-territorial obligations and the rights
to water and sanitation.
In sum, ESCR have become a core part of Amnesty’s work.
However, it took nearly forty years before the organization
decided in 2001 that it wanted to commit to this work,
and inside and outside the movement, the extension of
Amnesty’s mandate beyond civil and political rights remains
problematic for some (although increasingly less so).4 Prior to
that, Amnesty would not address ESCR violations, although
some of its work on civil and political rights contained in its
mandate in effect addressed violations of both sets of rights,
for example punitive house demolitions or state failure to
take steps to prevent female genital mutilation.
In this respect, Amnesty’s late arrival to ESCR was part
of the problem – many people continued to identify
human rights with those civil and political rights that
the organisation had traditionally worked on such as the
prohibition of torture, and the rights to life (the death
penalty), a fair trial and freedom of expression. This
is despite the fact that for the vast majority of people
on the planet, denials of ESCR are the human rights
violations that most directly face them in their daily lives.
Consequently, by the millennium it became increasingly
on anyone’s behalf’, The Guardian, 11 November. Available at:
http://www.theguardian.com/commentisfree/2012/nov/11/
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
clear that Amnesty could no longer ignore ESCR and the
need to give true meaning to the principle of indivisibility as
afrmed in the Universal Declaration of Human Rights.
Amnesty began work on ESCR after 2001, documenting and
responding to violations mainly concerning the rights to
housing, food and health, as well as carrying out advocacy
for the development of an Optional Protocol to the ICESCR.5
Its Operational Plans for 2004-2010 aimed to promote
ESCR as enforceable human rights, focusing on excluded or
marginalized people who suffer systematic or grave abuses
of these rights. However, it was not until 2009 that Amnesty
devoted a major campaign (the ‘Demand Dignity’ campaign)
to ESCR. The Campaign included work on four broad areas:
slums; maternal health and sexual and reproductive rights;
corporate accountability; and legal enforcement of rights.
Most work focused on state obligations to respect ESCR
(particularly in the case of forced evictions) and to protect
them (regulating corporate actors) rather than full. That
being said, a small but signicant portion of Amnesty’s ESCR
output did grapple with issues of fullment of ESCR, in par-
ticular research that called on the state to provide maternal
health services to women.6 In Burkina Faso, our research
pointed to the imposition of irregular charges for health ser-
vices, creating a barrier to access to low-income households.
One of Amnesty’s rst outputs focused on state interferences
with the right to food in North Korea, but also called on the
international community to provide food assistance.7
Amnesty has often called on states to provide international
assistance where required to full ESCR, for example for
slum upgrading and to assist states such as Lebanon to
5 Amnesty International (2004) An overview of work at
the International Secretariat on Economic, Social and Cultural
Rights (ESCR),
6 Amnesty International (2009) Sierra Leone: Out of Reach:
The cost of maternal health in Sierra Leone, 22 September, Index
Number: AFR 51/005/2009; Amnesty International (2009)
Burkina Faso: Giving life, risking death: Maternal mortality in
Burkina Faso, 31 December, Index Number: AFR 60/001/2009.
7 Amnesty International (2004) Starved of Rights: Human
Rights and the Food Crisis in the Democratic People’s Republic
of Korea (North Korea), 17 January, Index Number: ASA
24/003/2004.
provide basic services to refugees from Syria. Amnesty’s
work on slums focused not only on forced evictions and
security of tenure, but also equal access to services, calling
on states to provide services to a consistently marginalized
group. This work addressed one of the largest social justice
issues in developing countries: the gaps in access to goods
and services (and by implication rights enjoyment) between
those living in the formal and informal sectors.
Why has Amnesty done comparatively less work on fullment
of rights, outside of the area of non-discrimination? It is
certainly not as a result of any high-level strategic decision
being taken to block work in this area: indeed, Amnesty’s
Strategic Plan for 2010-2016 stated that one of its change
objectives at the local, national and international level was
to secure: “Investment of human and nancial resources
in the rights to health, housing, decent livelihood and
education.”8 It is important to note that decisions on the
particular type of research projects that are carried out are
distributed across the organization in that each programme
or team normally decides on the type of issues it takes up, as
long as it falls within the parameters of Amnesty’s Strategic
Plan. However, three factors appear to have led to a tendency
across Amnesty to focus on respect and protect aspects of
ESCR. These point to the work that Amnesty will need to do to
meet its aspiration to increase focus on fullment of ESCR.
The rst is the immediacy of such violations. For example,
when a community is threatened by a forced eviction, their
priority and that of human rights groups is to carry out
‘reghting’ rather than work for longer-term realisation
of rights. Furthermore, because Amnesty focused on the
most marginalized groups, overt discrimination is and
was often the greatest contributing factor to the denial
of rights of that group. It was therefore logical to focus
on discrimination rst rather than a broad failure by the
government to ensure adequate services for all.
8 Amnesty International (2010), Amnesty International’s
Integrated Strategic Plan 2010 to 2016, Index Number:
POL/50/002/2010, C1.
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The second is the difculty of the investing of time and
expertise required to document and advocate for changes
with signicant resource and policy implications, and to
develop methodologies for doing so. In work on fullment
of ESCR, it is insufcient to simply show a lack of exercise
of the rights. It has to be shown that the state has clearly
failed to take the necessary steps within its power. This
requires at least an analysis of government policies and
practise, which can take a signicant amount of time,
particularly where the researcher is not familiar with the
particular sector. In contrast, work on ‘respect and protect
violations’ drew on Amnesty’s strengths in legal analysis
and casework, and did not require detailed expertise in, for
example, economic analysis or urban planning. In addition,
given the concerns expressed by many that Amnesty was
‘aping’ or duplicating the work of development NGOs,
it made sense to self-consciously focus on the type of
research and campaigning that such organizations were not
known for, in particular work to document harms affecting
particular individuals.
The third is the work on respecting and protection of rights
aligned with Amnesty’s strengths in campaigning on cases
where states and other actors were directly interfering
with people’s civil and political rights. Amnesty’s civil and
political rights work predominantly focuses on negative
obligations rather than on positive obligations such as
levels and quality of training of public security ofcials or
the efcacy of justice systems. Thus, to build on Amnesty’s
‘comfort level’ of campaigning and mobilization, it made
sense to focus on negative obligations, particularly at the
commencement of work on ESCR.
Speaking out on issues of resource
distribution while retaining
impartiality
One concern often expressed in the internal debates within
Amnesty was that the organization would end up becoming
(or at least being seen to be) an organization identied with
the leftist end of the political spectrum. Such a concern is
only valid to the extent that it addresses the danger that
the organization’s approach departs from one that analyses
and explains its recommendations in terms of human rights
law. To put it another way, Amnesty would certainly not shy
away from calling for dissidents in undemocratic countries
to be accorded, for example, their civil and political rights.
However, it would be careful to demand only what is due
to them from a human rights point of view – for example,
if dissidents are detained on suspicion of spying for a
foreign power, our call would be for due process rather than
unconditional release (unless the suspicion was manifestly
unfounded). Nevertheless, the impartiality concern weighed
in favour of moving slowly in regard to issues of resource
distribution outside clear-cut cases of discrimination
to ensure that Amnesty can make a solid case for its
recommendations.
In calling upon states to treat ESCR as legally enforceable
rights and to remove barriers to remedy, one of the
arguments Amnesty made was that public interest
litigation can lead to changes in government policy that
lead to signicant improvements in the fullment of rights.
Amnesty referred to litigation by other NGOs that has led
to signicant redistribution of resources within society. Its
materials highlight two cases. First, right to food litigation
in India, which, together with associated mobilization, led
to an expansion and improvement in the provision of school
meals in some parts of the country. In those states where the
school meals programme was implemented, enrolment rates
among girls in the rst year increased by 10 per cent with
an increased 350,000 girls a year entering school. Second,
litigation in South Africa which led to the establishment and
provision of drugs to prevent mother to child transmission of
HIV (Amnesty International 2010: 13).9
Amnesty recognized that many legal systems have a range
of barriers to effective remedy. One of these is that some
legal systems do not adequately provide remedies that
address systemic government failings. For example, Brazil’s
courts are often willing to require the state to provide
Gauri (2008): 327-8. These cases were also featured in a
campaign digest: Amnesty International (2010) Make Our
Rights Law: Enforce Economic, Social and Cultural Rights,
Index Number: ACT 35/002/2010.
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health care to individuals who have been denied it and who
seek remedy before them, but, in contrast to South Africa,
collective litigation to address systemic government failings
to ensure the right to health has been far less successful.10
In such cases, Amnesty therefore can, depending on
capacity, carry out campaigning and advocacy both for
changes to guarantee the substantive right at issue as well
as for reforms to the justice system to remove barriers to
remedy.
Thus, it is important to make clear that Amnesty had no
principled objection to grappling with issues of resource
allocation. During the authors’ time in the ESCR team, it is
difcult to recall any instance where it has held back from
making any references to resources or allocation of power in
society as a matter of principle. Rather, the factor holding
back strong recommendations, for example in regard to
the austerity crisis in parts of Europe, has been the lack
of research projects to document the specic impact on
human rights of government scal policies and budgetary
allocations. Hence Amnesty has typically been able to make
only general calls that reiterate government’s commitments
set out in international law.11 That being said, Amnesty’s
Strategic Plans for 2016 onwards aim to devote more
time to engaging with issues of resource distribution, as
described below in under the heading ‘Looking forward’.
It would be a mistake to assume that Amnesty’s ESCR
work began with a focus on low-hanging fruit. Although
its work commenced on conceptually easier and more
familiar approaches, Amnesty took on some incredibly
challenging goals in terms of political and cultural
change. It has concentrated its resources on some of the
most disadvantaged and marginalized individuals and
10 Amnesty International (2010) Make Our Rights Law:
Enforce Economic, Social and Cultural Rights, Index number:
ACT 35/002/2010: 7.
11 One exception was a report by Amnesty International
Spain, Evicted Rights: Right to housing and mortgage evictions
in Spain (June 2015). The report pointed to the government’s
failure to explore the possibility of using the more than 3
million houses left empty in the private market and in the
hands of the State’s asset management company in order to
meet housing needs.
communities. Amnesty’s work has involved challenging,
among other things: deep-seated racism against the
Roma in Europe and Indigenous Peoples globally; denials
of sexual and reproductive rights due to underlying
and systemic gender discrimination and (in regard to
contraception and access to abortion), deep-seated
religious and cultural beliefs as well as disdain for the
rights of people in informal settlements, often derided
as ‘illegal’ people who should have stayed in their rural
birthplace if they could not afford to secure legal housing.
These are some of the most signicant social justice
challenges of our times.
However, bearing in mind the guiding principles for
Amnesty’s work – impartiality and focusing on legal
standards rather than advancing a particular economic
or political agenda – can we still point to achievements in
Amnesty’s work where it has shifted the social justice needle,
and in so doing accommodated it and human rights?
Have we shifted the needle?
As with all its activities, Amnesty is spending an
increasing amount of resources assessing the impact of its
ESCR work. The results indicate some signicant results
both in terms of securing better human rights protection
and enjoyment whilst also indirectly advancing and
promoting social justice.
By focusing on some of the most marginalized and
disadvantaged people, we continue to set ourselves major
challenges in advancing their human rights, let alone
social justice. Those who are economically and socially
excluded tend to be those who are also the most politically
disenfranchised, nding it often impossible to participate
in decision-making which affects their lives, and to seek
justice for the wrongs perpetrated against them.
Yet Amnesty has made some progress. In housing, it
has worked with communities in slums and informal
settlements, in some cases for a number of years, helping
to prevent forced evictions, build capacity and enhance
their ability to hold state actors (especially at the local
level) accountable. Successes include the establishment
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and strengthening of community-based organizations
among residents of Nairobi’s informal settlements who carry
out ongoing work to oppose forced evictions. In Slovenia,
some Roma communities were able to secure access to
publicly provided water services. One of the main planks
of the work has involved advancing the right to a remedy
not only to address wrongs for past violations and support
accountability, but also to act as a deterrent against future
abuses. Some of the key achievements have included
securing unprecedented Race Equality Directive infringement
proceedings against the Czech Republic and Slovakia for
discrimination suffered by Roma school children, and the
implementation of the Sawhoyamaxa v. Paraguay Inter-
American Court of Human Rights decision which restored to
an Indigenous People their ancestral lands.12
It may be noted that most of these successes relate to
‘traditional’ areas of obligations to respect rights and non-
discrimination. This reects the fact that, as explained
above, Amnesty’s campaigning and sustained advocacy
has hitherto mostly focused on these areas, rather than in
regard to obligations to full rights.
Conversely some of the main external obstacles we face are
those that frequently confront us across all our work: the
lack of political will or technical capacity by state actors
at the national and local level, or both; vested political and
economic interests; and cultural and societal conservatism.
To comprehensively address these adverse forces would
often require fundamental political and economic reform
combined with a cultural shift in society. This is regardless
of whether Amnesty was wedded to the international legal
framework or not. Amnesty can and does call for such
reforms on the basis of international human rights law,
even if some of them may be unpopular in society. How
one ensures such changes can happen is an ongoing
discussion. One of the key factors in shifting the needle is
12 Inter-American Court of Human Rights (2006), Case of
the Sawhoyamaxa Indigenous Community v. Paraguay, March
29. The latter occurred due to sustained lobbying by the
Sawhoyamaxa people with the assistance over a decade of a
the fact that the organization, unlike many other NGOs,
has deep roots in many societies around the world and can
mobilize potentially millions of members worldwide.
However, the obstacles to change are also compounded
by internal constraints. When Amnesty took up ESCR as
a new issue, it added these rights to many other areas of
ongoing work and therefore could not allocate extensive new
resources. In addition, project cycles do not neatly conform to
the long-term commitment required to delivering meaningful
change, and there is insufcient technical expertise across
the whole organization on the issue of ESCR.
These constraints might raise the question of whether
Amnesty should seriously expand its focus to issues of
fullment of rights, given the difculties it has faced
in regard to conceptually easier cases. To this loaded
question, one response might be: how much more difcult
could it get? It would seem that Amnesty has focused on
conceptually simple but politically difcult challenges. For
example it can be argued that demanding greater levels of
state spending on Roma communities is no more politically
challenging than demanding their rights to be educated
within mainstream and non-segregated education.
Looking forward… what will we do?
Amnesty’s Strategic Plans for 2016 onwards aim to
devote more attention to issues of resource distribution,
in particular fullment of rights. One area is in regard to
barriers to access to essential services, such as lack of
affordable housing, lack of free access to essential sexual
and reproductive health services including post-rape
health care and emergency contraception, and the impact
of privatization of public services.
Amnesty’s future work on ESCR aims to examine the role of
international nancial institutions and the corporate sector
in inuencing state policy to the detriment of rights.13
13 In the context of the preparatory negotiations for the
UN Conference on Financing for Development, Amnesty
contacted several key governments to request information
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Amnesty will also extend its engagement on the issue
of climate change, calling upon states, as it has in the
past, to take all feasible steps to reduce the emissions of
greenhouse gases and to ensure the protection of affected
people, within and outside their borders. Climate change
has a particularly negative impact on disadvantaged
groups in societies, even though they are generally the least
responsible for the problem.
When Amnesty engages with issues relating to the
distribution of resources, what would be the basis for it to
do so? We suggest a few situations where Amnesty could
carry out such analysis to distinguish between real lack of
resources and gaps in political will to realize rights. First,
it could identify situations where a government has clearly
failed to address the needs of disadvantaged groups in
its plans and in practice, for example, failure to address
palliative care for those suffering untreatable conditions.14
Second, it could expose a distribution of services that show
a failure to prioritize the needs of disadvantaged groups,
such as provision of a disproportionately high amount of
public funds to wealthier areas within in a city (Amnesty
International is currently preparing to intervene as an
amicus curiae in an ongoing court case on this issue).
A variant of this form of analysis is to analyse pricing
structures to examine whether they take affordability into
account. For example, tariffs for water and sanitation
are often regressive, providing subsidies only to those
connected to water systems (i.e. excluding the poorest).
Third, it could assess whether a government has set out
a plan to progressively realize ESCR, to cost them and to
demonstrate an analysis of possible sources of funding.
by lobbying of corporate actors. Amnesty will also examine
institutions is coupled with conditions, or softer forms
(without adequate human rights safeguards) and weaken
regulation of natural resource exploitation.
14 See, for instance, Human Rights Watch (2009) “Please,
do not make us suffer any more…”: Access to Pain Treatment as
a Human Right.
Fourth, Amnesty could ask the government to show that
regressions or failure to provide minimum core obligations
are unavoidable and that it has fully used and tried to
mobilize available resources, in other words, relying on
the CESCR’s statement that in such circumstances, the
state is held to have infringed its obligations under the
ICESCR unless it can demonstrate that its resources were
inadequate and that it had prioritized those resources
available to it for essential levels of ESCR.15 In this respect,
Amnesty also plans to commence work on tax justice,
addressing situations in which foreign corporations evade
the payment of taxes, thus negatively impacting on the
ability of the state to maximize revenue to pay for services
for those in most need (Gaughran 2015). Such work would
point to the need for governments to x loopholes in their
taxation rules that facilitate tax evasion and aggressive tax
avoidance either domestically or in other countries.
Fifth, and linked to the fourth point, Amnesty could query
the government’s conduct by examining whether it has
taken the steps that would be reasonable to take in light
of the rights decits in question. For example, has the
government allocated public land for low-cost housing and
where they exist, are such allocations respected? Has the
government sought international assistance to meet these
rights? Has the government taken adequate steps to curb
tax evasion? Are mining concession offers and tenders for
public services advertised in a transparent way?
Sixth, Amnesty could assess whether a country has
adequately mobilized resources for public services by
comparing it to its peers. For example, it could assess how
much of a country’s Gross Domestic Product is taxed and
what is the per capita expenditure on public services in
comparison to peer states. This type of analysis, routinely
used by the Centre for Economic and Social Rights,16
does not, on its own, prove a human rights violation, but
does put the onus on a government to demonstrate why it
allocates much less resources than its peer countries.
15 CESCR (1990) General Comment No. 3, paras. 9 and 10.
16 See for example, Centre for Economic and Social Rights
(2012), Visualising Rights: Fact Sheet No. 12: Spain: 6-7.
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The above six analytical methods can, with some
adaptation, also be applied to assess steps a state
takes to full rights extraterritorially, not only through
international development assistance, but also in other
domains such as trade.17
The methods discussed above would therefore focus on
concrete, specic changes, justied by the realization of
specic rights rather than ideology, and which in principle
are consistent with both leftist and right (or at least centre-
right) ends of the political spectrum. Nor would this work
require Amnesty to necessarily advocate for the realization
of one right over others in the abstract, or for the realization
of ESCR at the expense of other public goods (e.g. protection
of the environment, legitimate public security). Rather, it
involves a call for redistribution of services and resources
from privileged groups to disadvantaged groups or for
change in the manner such services are provided in order
to meet the needs of disadvantaged groups, in line with the
obligations set in international human rights law.
In order to carry out this kind of work, Amnesty will need a
couple of ingredients. One key one is the investment of time
both by its policy experts as well as regional country teams
to carry out detailed law and policy analysis, to be able to
critically assess government reforms and – crucially – to
take up a seat at the policy-making table if it is offered.
One method to expand our capacity may be partnerships
with specialized NGOs.18
17 These are set out in detail in Khalfan, A. (2013): 324-28.
18 A good example is the ground-breaking report by
Centre for Economic and Social Rights (CESR) and Instituto
Centroamericano de Estudios Fiscales (ICEFI) (2009) which
fund ESCR programmes. That report was the subject of a well-
received presentation at Amnesty’s International Secretariat
of Policy at Amnesty International). Amnesty and CESR have
discussed the possibility of joint research in this domain in
the future.
Accepting that you cannot please
everybody…
Some traditional constituencies may be disappointed at
Amnesty’s focus on social justice – this will be a function
of the extent to which Amnesty’s work on ESCR makes solid
arguments based on law. This requires responsibility from
all parts of the movement to ensure that campaigns clearly
refer to human rights terms and analysis, and to use political
terminology in a cautious manner. For example, it makes a
difference whether we refer to people whose concrete rights
are being violated rather than to ‘the dispossessed’.
Can Amnesty satisfy a broader constituency of social justice
activists? We consider two groups who may appreciate
Amnesty’s focus on the disadvantaged, but who may not
consider Amnesty to be addressing their most deeply felt
concerns.
The rst are those focusing on broader forms of inequality
within society – the distribution of wealth within society.
Amnesty would oppose such forms of inequality only when
it involves discrimination or where it is clear that such
inequality leads to denial of ESCR, including when the
state is failing to adequately fund public services and
social welfare through taxation, and there is a failure to
progressively increase the levels of enjoyment of ESCR.
In addition, Amnesty would generally focus on the most
marginalized sectors of society, rather than addressing the
distribution of resources between the upper and middle
classes or issues of equity between countries. Perhaps
the latter types of concern are best dealt with by other
organizations than Amnesty.
The rst would be those fundamentally opposed to greater
involvement of the private sector in economic life. Amnesty,
like the UN Committee on ESCR,19 would not take a principled
position against privatization, but would rather oppose it
only in cases when independent regulatory processes were
19 UN Committee on Economic, Social and Cultural Rights
(2003), General Comment, The Right to Water (Art. 15, para
24, of the Covenant), 20 January, E/C.12/2002/11.
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not in place, including mechanisms to ensure public control
of terms of service and to guarantee access to information
(thus precluding any denial of information to the public on
the grounds of commercial condentiality).
Human rights groups will also tend to react slower than
other groups to new and emerging issues as they need
to develop sufcient evidence to sustain their claims.
However, as they become better at such work, they will be
better placed to respond to new challenges, such as a newly
announced austerity measure or a new taxation policy, on
the basis of evidence in other situations.
The two constituencies mentioned above would generally
nd that Amnesty’s objectives fall within part of their
agenda, and this could lead to useful and signicant
collaboration. For example, groups opposing privatization
of water services, such as the Council of Canadians, have
together with Amnesty been at the forefront of advocacy for
recognition of the right to water, even though Amnesty has
not engaged with them in anti-privatization struggles.
Conclusions
This essay has shown that Amnesty’s existing work
on ESCR has addressed social justice concerns to a
signicant degree, albeit on issues that relate to the
respect and protection of rights and on non-discrimination.
Amnesty’s relatively limited engagement on broader issues
of fullment of rights reects an initial preference for
ESCR work in areas where legal obligations of states were
relatively clear-cut, the need to react to reversal of rights,
such as forced evictions, and the relatively limited level
of expertise and time required to carry out an analysis
of relevant social and economic policies and practice.
The essay has shown that the time is ripe for Amnesty to
deepen its engagement in social justice issues, building
on its existing work. However, Amnesty’s work has focused
and will generally focus on the most marginalized sectors
of society, rather than address the distribution of resources
between the upper and middle classes or issues of equity
between countries. In that sense, Amnesty may be able to
appeal to some but not all of the constituencies aiming at
social justice.
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Can human rights bring social justice? Twelve essays
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Even a narrow view of human rights would necessarily
overlap to at least some degree with social justice concerns
that, erroneously, are too often viewed as only being related
to economic and social rights.
Introduction
Should human rights NGOs work on social justice issues?
Can human rights principles redress socioeconomic
inequalities? Can human rights activists work with the
global social justice movement?
The contributions to this volume of essays grapple with
these and related questions, showing various degrees of
enthusiasm, or none at all, for the proposition that human
rights principles can advance social justice goals. At one
end of the spectrum, there is the insistence that human
rights advocates must tackle problems of global wealth
inequalities, and at the other the warning that to do so
will fatally weaken and compromise their core task of
defending civil and political rights. In the middle ground,
several contributors sketch out the prospects for using
human rights advocacy to improve the lot of the poor and
marginalized. Standing somewhat apart, Samuel Moyn
makes an eloquent case that gross wealth inequalities do
not offend human rights principles, provided that core,
minimum needs are met and basic freedoms respected.
This, he suggests, may spell waning interest in human
rights as the downtrodden seek a more substantive justice
in other forms of struggle.
Yet fundamentally, although many of the papers provide
a stimulating read, one is left feeling that none grapple
successfully with a core denitional problem. To contrast
‘human rights’ or ‘human rights advocacy’ or the ‘human
David Petrasek
Human rights and social justice –
a false dichotomy?
rights movement’, to ‘social justice’ or ‘social justice
activism’ or the ‘global social justice movement’ is to
presuppose these are denable categories; or at least
denable in ways that garner broad agreement.
But they are not. Indeed, the range of perspectives taken
on these terms by even the small group of authors in this
volume is proof of that. For some, speaking of human rights
necessarily includes all those rights found in the Universal
Declaration of Human Rights (UDHR), thus including the
right to an adequate standard of living, to education and
health. To others, these economic and social rights (ESR)
are not human rights, or if they are, they should not be the
subjects of human rights advocacy (and that term itself is
interpreted differently).
Similarly, for some of the authors, the discussion of social
justice focuses on the fulllment of basic human rights
including ESR, and/or removing inequities in access to
basic rights (Khalfan & Byrne). Others dene social justice
more broadly as “… the relative distribution of rights,
opportunities and resources within a given society and
whether it deserves to be regarded as fair and just” (Lettinga
& Van Troost). And for others, it means a fundamental re-
ordering and democratizing of the global order, to remove
not just inequities but gross wealth inequalities (Moyn).
Also in dispute is whether such a re-ordering is in fact a
pre-condition for the full realization of ESR.
Simply put, it is hard to follow a debate when there is
little clarity concerning the terms on which it is being
waged. Indeed, several contributors focus on the question
of the justiciability of ESR or the relative priority these
rights deserve vis-à-vis civil and political rights. Their
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Can human rights bring social justice? Twelve essays
Human rights and social justice – a false dichotomy?
assumption seems to be that the success of human rights
activism in achieving social justice will depend almost
entirely on ESR advocacy. But that, as we will see, is itself
a debatable point.
This short article aims to make three points. First the
content of human rights and of social justice is not xed;
opinions will vary. Therefore, the degree of overlap between
these two concepts is bound to vary as well. Second, both
civil and political and economic and social rights might be
relevant in struggles for social justice. And third, human
rights advocacy is as varied as the aims of those who
practice it – there is nothing inherently difcult about
pursuing at least some social justice goals in the language
of human rights.
Overlapping concerns
Can human rights principles advance demands for social
justice? The answer is deceptively simple. Demands for
human rights and demands for social justice are distinct
but overlapping. The degree to which they overlap will
depend on the denitional limits given to both concepts;
and this in turn will depend on who is dening these
concepts. Consider the following table:
Human rights Social justice demands
Right to political participation Real democracy (“We are the 99%”); democratize and make
accountable global nancial institutions
Right to information Restrict corporate power; eliminate corruption; tax justice
Equality and non-discrimination guarantees Women, caste, and class emancipation; abolish anti-poor
laws; land redistribution
Freedom of association and assembly Democratize the workplace
Freedom of expression Break-up media monopolies
Right to privacy, and property No seed monopolies; protect local bio-heritage against outside
ownership
Right to food, water and an adequate standard of living Living wage; no water privatization; climate justice
Right to education and health Abolish school and tuition fees; equal access to medications
Right to self-determination No foreign ownership of farmland; restrict foreign TNCs
Indigenous rights Stop dams; indigenous veto on development
Right to peace End militarism and the arms race
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Can human rights bring social justice? Twelve essays Can human rights bring social justice? Twelve essays
Human rights and social justice – a false dichotomy?
The table lists a set of human rights in the left hand
column, each of which nds support in the UDHR or other
UN human rights standards. In the right-hand column
there is a set of demands that are commonly put forward
by those said to be pursuing social justice or “global social
justice”.1 The alignment of the social justice demand to the
corresponding human right is simply meant to indicate that
the human right in question provides some (even if limited)
degree of support to the social justice demand. Further,
social justice movements making such demands have
sometimes cited that particular right in support.
Thus, for those who would include in the idea of social
justice that there must be an end to corporate and elite
control of democratic institutions, the right to political
participation in the UDHR (and related rights to freedom
of association, to information and to equality) provides
a principled basis for such a demand (and the extent to
which the right supports the demand in full will depend
on a variety of factors). Similarly, equality and non-
discrimination guarantees in the UDHR and other standards
provide a principled basis for many social justice demands
regarding the emancipation of women, downtrodden castes
or for ending discrimination against the poor qua poor.
The rights listed in the table begin at the top with
classic civil and political rights but as one moves down
include ESR and then more controversial collective and
solidarity rights. But, to be clear, each of the rights listed
is supported in one or more UN standards. It follows that
if one agrees that all of the rights listed are properly
considered human rights – and are properly the subject of
human rights advocacy – then one will see a fair degree
of overlap between the human rights canon and social
justice demands. If, on the other hand, one would consider
only the rst ve or six rights as properly within the scope
of human rights advocacy, then there will be much less
overlap between the human rights canon and social justice
demands. But, and this cannot be stressed enough, even
1 Many of these claims can be found in Figure 1
“Grievances and demands driving world protests, 2006-
2013”, in the paper by Sara Burke in this volume.
for those who choose to take a very limited approach to
dening the content of human rights (for example, Aryeh
Neier’s contribution to this volume), there will still be some
overlap with social justice demands.
This brings us to the issue of the indivisible nature of
rights. The demands formulated by oppressed peoples
may not divide neatly into cold war categories of rights.
Persistent and severe malnutrition among a marginalized
ethnic group may be conceived of as a right to life issue
or an issue of equality and non-discrimination; it might
also be framed as a right to food or right to health issue.
Most likely, it touches on all these rights. Thus, the relative
strengths and weaknesses of ESR, or ESR advocacy efforts,
tells us little about whether human rights principles and
advocacy can support social justice claims.
Consider what might be achieved for ‘social justice’ if
we only sought to apply the rights in the International
Covenant on Civil and Political Rights (ICCPR). It’s explicit
promises of equality, non-discrimination, protection of
minority rights, and freedom of association (including
for workers), alongside its implicit rights to information,
to equal access to government services and to full
participation in political life – if fully respected and
protected – provide a useful set of tools for any movement
ghting for greater socioeconomic equality, or challenging
economic and social marginalization.
This would result even before one applied a more progressive
reading of the ICCPR; for example, one that would interpret
its right to life and security of the person guarantees
as extending to a concern for government policies that
failed to avert famine or persistent hunger, or to exercise
due diligence to tackle preventable disease, or to prevent
dangerously unhealthy work environments. Indeed, a
progressive reading of the ICCPR’s prohibitions on servitude
might extend to prohibiting grossly underpaid work or the
exploitation of migrant and temporary labour. Similarly,
what might be achieved for global social justice if key
ICCPR rights were held to create extra-territorial obligations
on states, whereby the impact of their foreign trade, aid,
security, and investment policies on the enjoyment of these
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Can human rights bring social justice? Twelve essays
Human rights and social justice – a false dichotomy?
rights in other countries was assessed? Controversial, to
be sure, yet this is an interpretation that is already being
advanced in some instances by the UN’s expert bodies.
In short, there is necessarily some overlap between
the content of human rights and that of social justice,
and the degree of overlap will very much depend on the
relative breadth one gives to these terms. The authors in
this volume disagree about the relative priority or weight
given to ESR, or the usefulness of this category of rights
in tackling social justice issues. Certainly, the fact that
ESR as guaranteed in the International Covenant on
Economic, Social and Cultural Rights (ICESCR) are subject
to temporal and resource limitations (they can be achieved
progressively and within the bounds of available resources)
poses unique difculties. So too the question of determining
how much resources ought to be spent to fulll these rights
– not always easy to answer without appearing to abandon
principle for preference. But the fact is that these rights
are being used by thousands of advocates and in diverse
settings (well beyond the one or two ‘exceptional’ cases
cited by Aryeh Neier in this volume), and not just in courts.
In any event, as the argument above makes clear, the ESR
issue is not determinative on the question before us – since
many civil and political rights principles might be used to
support social justice demands.
Shared activism
For some of the authors, the fact that there might be some
overlap in content between social justice and human
rights (however broadly or narrowly dened) is not the real
problem; rather, as they see it the problem is in adapting
human rights methodology or forms of advocacy to social
justice demands. Some papers argue it cannot or should
not be done, others that there are risks in doing so, and
still others that human rights advocacy should adapt to be
successful in pursuing social justice goals.
But again, underlying these arguments is the assumption
that there is already a specic human rights methodology or
form of advocacy. In fact, a wide variety of techniques are
used. Several of the authors accept uncritically, for example,
that ‘traditional’ human rights advocacy is grounded in
legal standards and that it privileges advancing reform
through legal or at least formal institutions. Chong for
example argues that “… [t]he major international human
rights organizations, predominantly staffed by legal experts,
have often hoped that the technical language of the law
and the routinized processes of judicial systems would
allow them to advance human rights in a non-ideological
manner”. Although he’s correct that major INGOs aim to be
non-partisan, he overstates the role of the law and ‘legal
experts’ in these organizations. Amnesty International
(AI), for example, has relatively few lawyers on staff and it
would be a mistake to consider that their opinions alone
shape campaigning or advocacy. All the complaints one
might imagine against campaigns based on the “technical
language of the law” are very much a part of the internal
debate within large INGOs like Amnesty.
Similarly, Lettinga and Van Troost argue that the tendency
of AI in recent years to make broad, sweeping critiques
of an unjust global order suggests that “… [Amnesty
International’s] understanding of human rights seems to
be changing from a legal to a moral one, interchangeable
with broad notions of justice, dignity and equality and more
or less detached from the international legal standards
embedded in treaties, laws, and declarations”.
While it’s a fair point as regards AI’s changing discourse,
they might more correctly have said the organization is
changing back to articulating a moral understanding of
rights. The embedding of AI’s demands in international
legal standards was far from central to its work in the
organization’s formative years. Although basing its work
in the UDHR, in its rst decade Amnesty saw itself as
making a moral claim – an appeal to conscience. Where
international treaties were supportive they would be used,
but AI would not be constrained by them. Indeed, when
AI adopted its campaign against the death penalty, the
punishment was expressly permitted in the ICCPR and no
international treaty prohibited it. The organization only set
up a legal ofce halfway into its second decade.
But crucially, as regards the supposed continuity of
international legal standards and the positions taken by
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Human rights and social justice – a false dichotomy?
human rights NGOs, many of these groups take policy
and advocacy positions that are only weakly supported in
international law (though they might claim otherwise). For
example, demanding that no forms of conditional amnesties
can be given to war criminals, even if it means a failure to
do so will obstruct a peace negotiation; that sex work be
legalized; that hate speech be permitted; or that women may
wear the burkha in public spaces in deeply secular countries.
The notion that international law provides clear answers in
the area of civil and political rights, thus making advocacy
in this area less ‘political’, and less indeterminate, in itself
betrays an ideological positioning; one that privileges the law
and those who interpret it.
In this context, Burke’s argument that “…[d]etermining
whether civil and political rights have been violated is a
relatively unambiguous process compared to making that
determination with regard to economic, social and cultural
rights”, is illustrative. Clearly misinformed (consider only
the difculty of judging the limits of free expression, or
religious practice), it in any case speaks only to a certain
style of advocacy, namely that practiced by groups like
Amnesty and Human Rights Watch who routinely make
authoritative pronouncements on what international
standards do and do not protect. But this is only one form
of human rights advocacy; there are a myriad of others,
some of which use the law very sparingly, or not at all.
Perhaps to illustrate the dangers of assuming a certain
form for human rights advocacy in contrast to social justice
activism, consider two of the great, dening struggles for
justice of past decades: the anti-apartheid movement and
the civil rights campaign in the US.
Was the campaign against apartheid in South Africa a
human rights struggle, a battle for social justice or both?
Bear in mind that some of the grievances which led to key
turning points in that struggle were matters of economic and
social justice – the Sharpeville Massacre in 1960, over pass
laws restricting residence and employment, and the Soweto
Uprising in 1976, protesting controls on education. Similarly,
the ‘civil rights’ struggle in the US – is this a human rights
campaign or a ght for social justice or both? Human rights
principles – and litigation – were certainly at the core of the
campaign, yet at the same time many of the rights African-
Americans were ghting for were matters of socioeconomic
justice (desegregated schools, improved housing, fair
employment standards, equal access to and use of public
services, etc). It would be odd if the human rights aspect
of either campaign were limited to being a description of
litigation in the courts, or the publication of UN reports. Why
wouldn’t human rights activism include civil disobedience,
strikes, sanctions, disinvestment, political organizing and so
many other tactics used in these struggles?
Burke argues that orthodox economics, including the
growth imperative, private sector-driven development,
and blindness to the “social outcomes of increased
nancialization” is “unchallenged in the dominant discourse
on human rights”. But again, this ignores the actual work
of many self-described human rights groups who work
on precisely these issues. Moreover, although “dominant”
is itself ambiguous, one would hardly call the UN Human
Rights Council marginal. Yet it has appointed rapporteurs
on all key economic and social rights, many of whom have
written prominent reports, widely debated, on the impact
of privatization, austerity, or market fundamentalism
on the effort to fulll ESR. Moreover, the Council has
appointed experts to study and report on “the promotion of
ademocratic and equitable international order”; on “extreme
poverty and human rights”; on the “effects of foreign debt
on the fullment of human rights”; “on human rights and
international solidarity” and others. The issue of subjecting
transnational corporations to greater human rights scrutiny
has been prominent on the Council’s agenda for over a
decade. The Council also convened in special, emergency
session to debate the impact of the 2008-09 nancial crisis
on human rights. Whether any of this activity has much
impact is a fair question, but it’s not as if human rights
actors – even mainstream ones – are ignoring the perverse
effects of market fundamentalism.
It is true, to a Western audience at least, a dominant – or
more visible – form of human rights advocacy is focused
on invoking international legal standards and seeking
legal reform and accountability. Similarly, where those
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Human rights and social justice – a false dichotomy?
standards prescribe a clear course of action, simply
demanding that government’s follow it does insulate (at
least somewhat) that advocacy from the charge of political
bias or preference. But as many of the articles point out,
many ESR claims can be advanced strictly within the
framework of obligations established in international law –
there should be no debate on the issue of free, universally
accessible primary education. And, as argued above, some
positi