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Freedom from want revisited from a local perspective: Evolution and challenges ahead
Abstract
I would like to start my contribution by paying tribute to the Universal Declaration of Human Rights (UDHR) on its sixtieth anniversary as the first universal instrument to incorporate economic, social and cultural rights (ESC rights) as an essential component of an integral and comprehensive notion of human rights. As stated in the very preamble of the UDHR, one of the goals of the peoples of the United Nations is ‘to promote social progress and better standards of life in larger freedom’, thus explicitly linking fundamental freedoms with the promotion of socio-economic rights. It cannot be said that in 1948 the UDHR responded to a localising paradigm, since its process of adoption was fully monopolised by nation states, particularly those that dominated the international scene after the Second World War, and did not take into consideration local realities, local needs and local ways of framing the protection of human dignity. The elaboration of the UDHR followed what can be considered as a top-down approach rather than a bottom-up approach. Basically, the seminal document of the human rights movement in the twentieth century sought to offer ‘universal legitimacy to a doctrine that is fundamentally Eurocentric […] Non-western philosophies and traditions were either unrepresented or marginalised, (and) most Asian and African societies were European colonies and not participants in the making of human rights law’. Along the same lines, David Kennedy has defined the origins of the human rights movement as ‘post-enlightenment, rationalist, secular, western, modern, and capitalist’.
... 50 The involvement of local NGOs and National Human Rights Institutions in interpretive communities, in particular those with links to the international sphere, is vital to 'navigate between the local and the global' in order to bridge the gap between the international regime and local application of human rights. 51 The Committee is distant from the sites where children and young people experience their rights, and any disconnect between local policy and the Committee's outputs has the potential to undermine the CRC's legitimacy at local level. 52 Localisation in the context of decentralisation is an obvious opportunity for 'transformation of the global discourse' of human rights, including under the CRC, to the local environment. ...
Despite decentralisation being a ubiquitous feature of human rights governance globally, the UN Committee on the Rights of the Child focuses primarily on the State as the locus for implementation of the UN Convention on the Rights of the Child (CRC). State control and a regulative approach prioritising justiciability of the CRC at national level are the Committee’s dominant responses to decentralisation. This paper introduces decentralisation, including the risks and potential gains for CRC implementation. It is contended that a regulative approach may prove particularly challenging in the context of decentralisation. It is suggested that a normative approach, in which legislation is used to promote compliance through cultural acceptance of the CRC, and to support localisation of rights, may be better suited to the contours of decentralised governance. Taking the example of Wales, a devolved territory in the United Kingdom, it will be shown how a primarily normative approach to legal integration can help mainstream international norms in policy, enhance accountability for rights, and provide opportunities for policy advocacy at local level. The paper is a contribution to the literature on the instrumental value of legislation to support the realisation of human rights, applicable to decentralised systems of governance.
... For example, they tend to discriminate on the basis of gender and apply corporal punishments (Wojkowska 2006). At the same time, these legal orders may also contain norms that protect human rights or that may allow their protection, such as in the area of access to livelihood resources (Gomez Isa 2011;Hellum 2007). However, the legitimacy of some human rights is often contested in this region as these norms contradict certain aspects of African cultural and religious traditions (An Na'Im 2003). ...
This dissertation examines the role of justice sector aid in sub-Saharan Africa regarding the relationship between human rights and local legal orders from a normative and empirical point of view. At the normative level, it explores how socio-legal theory on legal pluralism and human rights’ cross-contextual implementation may inform the practice of development actors in the justice sector. Based on case studies in Sierra Leone and Mozambique, the research applies this body of knowledge to the analysis of empirical data on development actors’ policies and interventions. The conclusion argues that the following issues deserve particular attention: the adoption of a users’ perspective regarding which local justice providers are targeted by policies and interventions, consideration of how different modes of dispute processing relate to the implementation of human rights, engagement with local knowledge and a critical approach to human rights cross- contextual application.
Key words: Justice sector aid, human rights, access to justice, legal pluralism, customary legal orders, Sierra Leone, Mozambique
... 50 The involvement of local NGOs and National Human Rights Institutions in interpretive communities, in particular those with links to the international sphere, is vital to 'navigate between the local and the global' in order to bridge the gap between the international regime and local application of human rights. 51 The Committee is distant from the sites where children and young people experience their rights, and any disconnect between local policy and the Committee's outputs has the potential to undermine the CRC's legitimacy at local level. 52 Localisation in the context of decentralisation is an obvious opportunity for 'transformation of the global discourse' of human rights, including under the CRC, to the local environment. ...
Purpose
The purpose of this paper is to investigate the impact of enforcement action on individuals and families living in social housing as a mode of intervention for dealing with anti‐social behaviour.
Design/methodology/approach
Relevant housing legislation and policy documents are reviewed. The paper then draws on empirical data from Shelter Cymru's case file records of households in social housing who have been subject to enforcement action following an allegation of anti‐social behaviour. Evidence obtained from other studies on housing intervention projects is used to contrast the position of the households studied with those in similar situations who have been provided with support as an alternative to enforcement action.
Findings
The legislative framework favours enforcement as a means of dealing with anti‐social behaviour. A number of remedies utilise the management role of social landlords, and the framework of housing tenure, to introduce the concept of “conditionality” into housing entitlement. This approach to the management of anti‐social behaviour compounds the social disadvantage of already vulnerable households by undermining long‐term security of tenure and thereby increasing the risk of homelessness and social exclusion. These outcomes contrast with those from studies of similar households in receipt of support within housing intervention projects which have been shown to deliver reductions in anti‐social behaviour and sustainable outcomes for families, communities, and landlords.
Social implications
The findings provide important lessons for the future direction of anti‐social behaviour policy throughout the UK and beyond. In the context of devolved polity in the UK the paper argues for the Welsh Assembly Government to take a lead in developing policies and legal responses which recognize the housing rights of marginalised groups, and for the introduction of support into social housing to counter the trend toward punitive treatment of social tenants as a response to anti‐social behaviour.
Originality/value
The unique nature of the empirical data set from Shelter Cymru's case file records provides an important insight into the social impact of anti‐social behaviour law and policy on some of the most vulnerable members of society.
This dissertation examines the role of justice sector aid in sub-Saharan Africa regarding the relationship between human rights and local legal orders from a normative and empirical point of view. At the normative level, it explores how socio-legal theory on legal pluralism and human rights’ cross-contextual implementation may inform the practice of development actors in the justice sector. Based on case studies in Sierra Leone and Mozambique, the research applies this body of knowledge to the analysis of empirical data on development actors' policies and interventions. The conclusion argues that the following issues deserve particular attention: the adoption of a users' perspective regarding which local justice providers are targeted by policies and interventions, consideration of how different modes of dispute processing relate to the implementation of human rights, engagement with local knowledge and a critical approach to human rights cross-contextual application.
Social movement organizations are increasingly developing human rights strategies at the municipal level, particularly in European urban contexts. Yet critical scholarly work on human rights has overlooked two related realities: non-state-centric, social movement use of the tools and discourses of rights, and the strategic participation of citizen groups in municipal urban policy spaces. This article builds on critical human rights theory through the experiences of three grassroots organizations claiming and exercising social rights in urban policy spaces of Barcelona, Valladolid, and London. It engages with a number of scholarly critiques of the state and human rights, particularly focusing on those critiques that question their compatibility with autonomy, democracy, and self-government at the local level. While the value of such critical literature is undeniable, we show how urban grassroots practices and experiences with social rights-based strategies in the context of housing, water, and participation can circumvent some of these critiques on the ground, pointing at new avenues for critical legal research when infused with other critical discourses, including urban politics.
Human rights are now the dominant approach to social justice globally. But how do human rights work? What do they do? Drawing on anthropological studies of human rights work from around the world, this book examines human rights in practice. It shows how groups and organizations mobilize human rights language in a variety of local settings, often differently from those imagined by human rights law itself. The case studies reveal the contradictions and ambiguities of human rights approaches to various forms of violence. They show that this openness is not a failure of universal human rights as a coherent legal or ethical framework but an essential element in the development of living and organic ideas of human rights in context. Studying human rights in practice means examining the channels of communication and institutional structures that mediate between global ideas and local situations. Suitable for use on inter-disciplinary courses globally.
Selected by Choice magazine as an Outstanding Academic Title Creating Human Rights
offers the first systematic study of a pioneering women's refugee movement and its
challenge, as an international trigger case, to more conventional paths toward the development of international human rights standards. Lisa S. Alfredson argues that such cases, which unfold in the context of a specific country and have profound impacts on international human rights efforts, have been neglected in research and pose a challenge to recent theorizing on human rights change. In the early 1990s, Canada witnessed the emergence of the world's first comprehensive refugee policy for women who were seeking protection from female-specific forms of violence—rape, domestic abuse, public stoning of adulterers, genital mutilation— while challenging a gender-biased system. Close examination of this novel movement provides crucial insights into why and how states may articulate new human rights that set international precedents.
International organizations like Human Rights Watch are legitimately
urged to pay more attention to economic, social and cultural rights. But
practical prescriptions are often simplistic—typically involving only
the rhetorical invocation of these rights. The strength of organizations
like Human Rights Watch is not their rhetorical voice but their shaming
methodology—their ability to investigate misconduct and expose it to
public opprobrium. That methodology is most effective when there is
relative clarity about violation, violator, and remedy. That clarity
is best achieved when misconduct can be portrayed as arbitrary or
discriminatory rather than a matter of purely distributive justice.
Human Rights Quarterly 18.1 (1996) 107-141
In February 1993, the United Nations' Economic and Social Council (ECOSOC) established an open-ended working group (OEWG) to update, if necessary, its arrangements for consultation with nongovernment organizations (NGOs) and to introduce coherent rules to regulate the participation of NGOs in international conferences organized by the United Nations (UN). The review provides an important opportunity to clarify the roles and functions of NGOs in the international community, issues which have always been controversial. The review also has the potential to contribute to current debates about the growing importance of civil society in international norm-setting, although this possibility seems, as yet, remote.
My aim is to foster connections between the related projects of the ECOSOC review and post-cold war reconceptualizations of international civil society and governance. Without linking with theoretical debates about the future shape of the international community, it is likely that the review will be narrow in its scope and reach myopic and pragmatic, rather than visionary, conclusions. Alternatively, as I will argue, the review could help to foster new forms of relationships between NGOs and states in the context of new understandings of international democracy.
My discussion is divided into two sections. Part I examines the history and context of the ECOSOC review and its likely outcomes, focussing on what principles should guide UN-NGO consultative relations. This examination reveals the tenacity of many of the issues which have precipitated the review and the likelihood that, like its forerunners, this review will leave these issues unresolved, resulting instead in piecemeal readjustments to the status quo. I argue that this would be a regressive outcome, muffling the innovative contributions of the more recently formed NGOs and ensuring a chaotic, rather than orderly, movement of civil society from the fringes to the center stage of the UN system.
Part II canvasses some of the theoretical debates about the growing importance of international civil society. The dominant realist view of international relations is contrasted with alternative liberal and postliberal paradigms which place importance on individuals and social movements as international actors. These perspectives present a challenge to the statist supremacy assumed by current international arrangements and provide an important context for the ECOSOC review by recognizing the crucial role of international civil society. I conclude that the potential for the ECOSOC review to fail to come to grips with the fundamental tensions of the historical relationship between states and NGOs could be reduced by situating its deliberations within the broader context of the future of international governance. If such a contextualization were achieved, the review could assist in the urgent task of reconceptualizing relations between states and nonstate entities and extending the discourse of international law beyond the interests of states to hear the many voices currently excluded.
The UN Charter makes one reference to NGOs, in Article 71, which allows that ECOSOC "may make suitable arrangements for consultation with nongovernmental organizations which are concerned with matters within its competence." The effect of this provision was unprecedented in that it formalized the extensive consultative relationships which had existed during the years of the League of Nations. But Article 71 also limited the earlier practices by confining mandated consultation to the areas covered by ECOSOC and by limiting involvement to "consultation" in contrast, for example, to the ability of representatives of UN specialized agencies and member states to "participate without vote" in ECOSOC deliberations. The present arrangements for consultation with NGOs, the subject of the review, are set out in ECOSOC Resolution 1296(XLIV) of 27 May 1968 (hereinafter Resolution 1296). By 1993, nearly 1000 NGOs had been granted formal consultative status with ECOSOC by way of these arrangements. There is no doubt that the extent of NGO involvement in UN activities has vastly exceeded the expectations of those who drafted the Charter and dramatically outstripped the scope of these legal provisions.
In this part of my article the primary focus is the principles which should guide UN-NGO relationships. I turn first to issues associated with defining international NGOs. Second, I briefly map a background to the current state of UN-NGO consultative arrangements...
The emergence of transnational social movements as major actors in international politics - as witnessed in Seattle in 1999 and elsewhere - has sent shockwaves through the international system. Many questions have arisen about the legitimacy, coherence and efficiency of the international order in the light of the challenges posed by social movements. This ground-breaking book offers a fundamental critique of twentieth-century international law from the perspective of Third World social movements - the first ever to do so. It examines in detail the growth of two key components of modern international law - international institutions and human rights - in the context of changing historical patterns of Third World resistance. Using a historical and interdisciplinary approach, Rajagopal presents compelling evidence challenging current debates on the evolution of norms and institutions, the meaning and nature of the Third World, as well as the political economy of its involvement in the international system.
World poverty represents a failure of the international community to see half of the global population secure their basic socio-economic rights. Yet international law establishes that cooperation is essential to the realisation of these human rights. In an era of considerable interdependence and marked economic and political advantage, the particular features of contemporary world poverty give rise to pressing questions about the scope, evolution, and application of the international law of human rights, and the attribution of global responsibility. This book considers the evolving nature of human rights and international cooperation in international law as a basis for addressing the role and responsibility of the international community in the creation of an environment conducive to a human-centred globalization. It offers a detailed examination of the historically controversial right to development and, through a careful consideration of its current significance and application, reflects the importance of the rationale of the right to development onto the critical challenge of poverty in the 21st century. Through doctrine and jurisprudence, this timely publication provides a systematic exposition of the legal responsibility of the powerful members of the international community to cooperate in addressing the structural obstacles that impact on the ability of states to develop and to fulfil their human rights obligations.
INTRODUCTION Elsewhere, I have argued that there are two forms of globalization: neoliberal globalization and what I call counter-hegemonic globalization, which has been challenging the former for some time (Santos 2002: Chapters 5, 9). Counter-hegemonic globalization I define as the vast set of networks, initiatives, organizations, and movements that fight against the economic, social, and political outcomes of hegemonic globalization, challenge the conceptions of world development underlying the latter, and propose alternative conceptions. Counter-hegemonic globalization is focused on the struggles against social exclusion. Since social exclusion is always the product of unequal power relations, counter-hegemonic globalization is animated by a redistributive ethos in its broadest sense, involving redistribution of material, social, political, cultural, and symbolic resources. In this sense, redistribution is based both on the principle of equality and on the principle of recognition of difference. At stake is the struggle for equal exchanges and authority (rather than power) relations. Because unequal exchanges and power relations are crystallized in politics and law, counter-hegemonic globalization unfolds as political and legal struggles guided by the idea that hegemonic legal and political structures and practices can be challenged by alternative principles of law and politics. These alternative principles and the struggles for them I have called subaltern cosmopolitan politics and legality (Santos 2002). © Cambridge University Press 2005 and Cambridge University Press, 2009.
Introduction Economic globalisation – understood as a process of breaking down State barriers in order to allow the free flow of finance, trade, production and at least in theory, labour – affects human rights. It affects the role of the main duty holder in human rights, the State, both in the world and the domestic economies. Globalism, the ideology supporting economic globalisation, favours the withdrawal of the State from the provision of many services essential to human rights, and its replacement by private actors. It also insists on opening up the economy to products, services and investments originating in countries that enjoy a competitive advantage, and on discipline in taking the advice of international trade and financial organisations. From a human rights perspective, economic globalisation raises questions about the human rights responsibilities of private actors, of intergovernmental organisations and of third States when their actions have extraterritorial effects. There is also an urgent need to rethink human rights obligations of States. This is often a very technical issue, requiring knowledge of the law of international contracts and arbitration and of domestic administrative law. Inevitably, a part of the human rights response to economic globalisation needs to take place at the global level – hence the discussions on the human rights accountability of the World Bank, the role of human rights in the World Trade Organization (WTO) dispute settlement system, or the efforts to codify the human rights responsibility of corporations.
The threats to human rights posed by non-state actors are of increasing concern. Multinational corporations, armed oppositions groups, and the activities of international organizations such as the United Nations, NATO, and the European Union are increasingly examined with recourse to a human rights lens. This book presents an approach to human rights that goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors and addresses some of the ways in which they can be held legally accountable in various jurisdictions. The political debate concerning the appropriateness of expanding human rights scrutiny to non-state actors is discussed and dissected. For some extending human rights into these spheres trivializes them and allows abusive governments to distract us from ongoing violations. For others such an extension is essential if human rights are properly to address the current concerns of women and workers. The main focus of the book, however, is on the legal obligations of non-state actors. The book discusses how developments in the fields of international responsibility and international criminal law have implications for building a framework for the human rights obligations of non-state actors in international law. In turn these international developments have drawn on the changing ways in which human rights are implemented in national law. A selection of national jurisdictions, including the United States, Canada, South Africa, and the United Kingdom is examined with regard to the application of human rights law to non-state actors.
Written by leading scholars, these case studies represent an unprecedented attempt to analyze the role of the law in the global movement for social justice. They combine empirical research with innovative sociolegal theory to shed new light on a wide array of topics. Among the issues examined are the role of law and politics in the World Social Forum; the struggle on the anti-sweeping movement for the protection of international labor rights; and the challenge to neoliberal globalization and liberal human rights raised by grassroots movements in India and indigenous peoples around the world. © Cambridge University Press 2005 and Cambridge University Press, 2009.
On the eve of the planned U.S. invasion of Haiti, responding to an appeal from the International Committee of the Red Cross to apply international humanitarian law, the United States stated that [i]f it becomes necessary to use force and engage in hostilities, the United States will, upon any engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict.
Further, the United States will accord prisoner of war treatment to any detained member of the Haitian armed forces. Any member of the U.S. armed forces who is detained by Haitian forces must be accorded prisoner of war treatment.
Within the past 30 years, indigenous peoples have emerged as legitimate subjects of international law with rights to exist as distinct peoples. This shift in international law is the result of activity over the last few decades that has involved hundreds of indigenous leaders, community representatives, and lawyers. Indigenous peoples have become actively engaged in efforts to transform the disposition and direction of international law in order that it might become a supportive force of change in the relations between indigenous peoples and the states in which they live. This article explores those efforts on the part of indigenous peoples. Specifically, it examines the ways in which indigenous peoples have articulated strategic ‘frames’ that engender support for their aspirations within the international legal system. In doing so, it contributes to an understanding of why and how these rights have emerged. It also contributes to the framing literature, which has not yet been used to explain social movements’ outcomes. In this article, however, I demonstrate that framing can also make an impact on the development of law and policy.1
The first World Social Forum, held in Porto Alegre in January 2001, illustrated the growing importance and breadth acquired by the movement protesting against neoliberal globalization. The authors analyse the genesis of this complex movement from the First International Encounter for Humanity and Against Neoliberalism (Chiapas, Mexico, 1996) to the recent Forum in Porto Alegre, describing the different social movements which, from a variety of perspectives, now converge in the international struggle against neoliberal policies. Particular interest is shown in the social protest experiences in Latin America during the 1990s, undertaken by numerous movements that actively participated in the Forum. A reflection is then put forward on the challenges this movement poses for the construction of a new internationalism which, acknowledging the far-reaching social transformations that have occurred in capitalism and on the international plane, will reflect and harbour the demands of a varied and heterogeneous group of social organizations and movements. The article also presents the core debates around which the discussions at Porto Alegre were structured.
This book arose from our puzzlement at the paradoxical state of sociolegal knowledge on globalization. The beginning of the new millennium has witnessed a ground swell of proposals for the transformation or replacement of the national and international legal institutions underpinning hegemonic, neoliberal globalization. Put forth by variegated counter-hegemonic movements and organizations and articulated through transnational networks, these proposals challenge our sociological and legal imagination and belie the fatalistic ideology that "there is no alternative" to neoliberal institutions. The initiatives are as diverse as the organizations and networks advocating them, as the case studies in this book lay bare. Impoverished women in Tanzania as well as marginalized communities and progressive parties in Brazil mobilize to change and democratize the national and international regulatory frameworks that effectively exclude them from key political arenas such as the process of allocating public budgets (see Rusimbi and Mbilinyi's and Santos' chapters on participatory budgeting). NGOs, unions, consumers, workers and other actors in the global North and South organize to challenge the market-friendly regulation of labor conditions, corporate accountability, intellectual property rights and the environment which fuels the spread of sweatshops in the Americas, the African AIDS pandemic, and environmental degradation in Europe (see Rodríguez-Garavito's, Shamir's, Klug's, and Arriscado, Matias and Costa's chapters). Progressive activist-researchers, people of faith and members of marginalized communities in the U.S. --the "inner Third World" of laid-off industrial workers, migrants and informal laborers— come together to collectively conceive cosmopolitan identities and legal rules in opposition to the exclusionary ideologies and laws of
Several provisions of the Convention on the Rights of the Child contain references to international cooperation, sometimes in combination with a reference to the needs of developing countries. This article explores whether these references, in light of the interpretation given by the Committee on the Rights of the Child and of other human rights treaties which contain similar wording (in particular the International Covenant on Economic, Social and Cultural Rights and the Disability Convention), amount to a legal obligation to cooperate internationally for development in the field of economic, social and cultural rights. While it is not possible to establish the existence of a legal obligation to provide development assistance in general - which would amount to an extraterritorial obligation to fulfil - legal obligations to respect and protect economic, social and cultural rights of children in third countries do apply. Moreover, the CRC Committee has clarified some specific obligations of fulfilment for donor countries, such as, amongst others, the allocation of 0,7 per cent of GDP to development assistance, and the adoption of a rights-based approach to development cooperation, in which children's rights are mainstreamed.
This article critically looks at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors (SVS) construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one that is multicultural, inclusive, and deeply political.
‘The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea’
- Glendon
‘La Distinction Juridique entre les Droits Civils et Politiques et les Droits Économiques, Sociaux et Culturels’
- Bossuyt