Increasingly, people of good will concerned about poverty are drawn into debate about a series of ultimately impossible legal quandaries—right of whom, against whom, remediable how, and so on — and into institutional projects of codification and reporting familiar from other human rights efforts, without evaluating how these might compare with other uses for this talent and these resources. (David Kennedy)
I argued in my previous post that the besetting weakness of the human rights community is our apparent inability to understand that human rights constitute only one possible lens for viewing a particular problem. To illustrate this, consider an issue that seems to belong indubitably within the human rights sphere: the prohibition of torture. Yet human rights do not constitute the only approach to this issue. For example, the laws of armed conflict contain a clear and absolute prohibition on torture, along with mechanisms to punish its perpetrators. It is not unreasonable to assume that in certain circumstances, that might be a more appropriate way to address torture.
Equally, the common law prohibition of torture has existed for centuries. Unlike the prohibition on torture in human rights law, which is founded upon respect for human dignity (and which leads to the notion that torture is itself a crime), the common law has dismissed torture and other forms of coercion as unreliable ways of discovering the truth. The claim that torture is not efficacious – that it does not do what it purports to do – is a persuasive one and is therefore often used by human rights advocates. Neuroscientific research has now explained the mechanisms whereby torture is likely to provide investigators with inaccurate information. One of the most promising contemporary initiatives against torture is the Méndez Principles, a set of guidelines for effective investigative interviewing by law enforcement officials, premised on the assumption that police investigators will be more effective if they use non-coercive techniques to interview suspects and witnesses. However, this is not a human rights-based argument, except in the rather broad sense that it will incidentally protect the human rights of suspects – and that many of its proponents, including the eponymous Professor Juan Méndez, are human rights practitioners. These arguments are all useful to human rights advocates but they are in no way essential to our opposition to torture, which is ethical not pragmatic.
It also happens that some of the most effective protections of persons in police custody against torture have the weakest basis as a matter of international human rights law. Safeguards such as notification of family or friends on arrest, prompt access to a lawyer, and the right to a medical examination do not have a strong status at the first level of binding human rights law, and are mainly derived from secondary “soft law” instruments. Slowly the scope of authoritative law is expanding on these issues, with the Convention on Disappearances playing an important part, along with the jurisprudence of the European Court of Human Rights on access to a lawyer.
The prohibition of torture is almost the quintessential human rights issue and yet it is not solely a human rights issue. When it comes to economic and social rights, human rights practitioners are in much more hotly contested territory. My concern here is not the challenge to economic and social rights, as rights. We have heard these arguments: economic and social rights have no clear content; civil and political rights are negative and cost-free, whereas economic and social rights are positive and costly; economic and social rights may encroach on democratic prerogatives in a way that civil and political rights supposedly do not. The only one of these arguments that seems to me to have any merit is the third, and that has been very effectively addressed in, for example, the jurisprudence of the South African Constitutional Court.
My concern is a different one. Just because an issue can be framed as a human rights issue, it does not mean that this is the only possible way of understanding it, still less that it will always be the most effective. Many advocates of “human rights-based approaches” take the opposite view. The UN Common Understanding on the Human Rights Based Approach states that “all programmes of development cooperation, policies and technical assistance should further the realisation of human rights” – a declaration that is probably vague enough not to be binding for any practical purposes. However, the document goes on to clarify that this does not include activities that “only incidentally” contribute to the realization of human rights, but rather requires that “the aim of all activities is to contribute directly to the realization of one or several human rights.” Either this means that the UN should not work to reduce or mitigate climate change, because this is not a human right. Or it means that reducing and mitigating climate change is a human right, which elevates human rights to such a level of generality that they cease to have meaning. It is on issues like this that David Kennedy’s critique hits home.
Actually, it is not just critical theorists like Kennedy who have problems with this stuff – so do many human rights lawyers. For example, the Common Understanding offers indivisibility as one of the principles that underpin all human rights programming. This it defines as meaning that all human rights “have equal status as rights, and cannot be ranked a priori in hierarchical order.” That is not in fact what indivisibility means, but perhaps what is intended is the helpful clarification that civil and political rights hold no higher rank than economic, social and cultural rights. But then, in the frequently asked questions drafted by the Office of the UN High Commissioner for Human Rights comes this: “The principle of their indivisibility recognizes that no human right is inherently inferior to any other.” This is self-evidently nonsensical. Some human rights (for example, the right not to be enslaved and the right not to be tortured) are jus cogens, peremptory norms of international law that override treaty law; most are not. Some human rights, specified in Article 4(2) of the International Covenant on Civil and Political Rights, are non-derogable in all circumstances; others are not. In other words, there is a quite explicit and inherent hierarchy in human rights. And much human rights jurisprudence is devoted to determining which, out of two or more rights, takes precedence in any given instance.
But you do not need to be a lawyer to understand that the right to life is a priori hierarchically superior to the right to choose your child’s education or that the right not to be a slave is more important than the right to intellectual property because, in each instance, the hierarchically superior is a precondition for the inferior. Yet, this is the intellectual edifice that has been constructed to ensure that all global problems can be defined in human rights terms and all desirable goals can be expressed as human rights objectives.
Yet this overreach is not inevitable and rights-based approaches may have something to offer. Paul Gready suggested four ways in which a rights-based approach to development can offer what he usefully calls “value-added.” This asks precisely the right question: what are human rights uniquely adding to any potential solution? Of his four types of value-added, I disagree with one – what he calls the politicization of development – which I will discuss in the next post. He talks about the application of the law in addressing development; the “re-centring of the state”; and the role of human rights in establishing accountability. He is talking specifically about development (and rights-based approaches rather than the right to development), but the value-added criterion seems to me more broadly appropriate in determining whether to conceptualize any given problem in human rights terms.
My own research on the right to adequate housing has focused on disaster settings. The UN Committee on Economic Social and Cultural Rights has developed a set of seven rather static criteria for meeting the right to adequate housing and has not really addressed how this might be practically realized in extreme situations where most people are rendered homeless. (The Special Rapporteur on the Right to Adequate Housing, Raquel Rolnik, did however produce a good report on the issue in 2011.) The logic of my own approach, rather like that of the South African Constitutional Court in the celebrated Grootboom case, was that to be at all meaningful the right to adequate housing had to be applicable and meet the needs of those whose rights were the furthest from fulfilment. A survey of past practice reveals, not surprisingly, that in such situations – including the Indian Ocean tsunami, the damage caused by Hurricane Katrina in New Orleans, and the Haiti earthquake of 2010 – human rights standards were seldom invoked. Most of the CESCR’s list of criteria – things like adequacy, affordability, accessibility – are generally superseded by bespoke standards specifically designed for disaster response, such as the Sphere standards and the Inter-Agency Guidelines on Shelter after Disaster. These sets of standards, of course, are designed for humanitarian actors rather than for the governments of the countries affected, which is indicative of the difficulties of “re-centring” the state. In an extreme case, such as Haiti, the government itself had been physically destroyed by the disaster.
Yet human rights principles do remain relevant in these contexts. Sometimes this is phrased as housing being made available on the basis of entitlement rather than need, which is a perfectly fine principle, but one that needs to be deployed carefully in contexts where operational decisions are made precisely on the basis of need. In practice, the principle is that needs are met on the basis of equality and non-discrimination – a core human rights standard that always bears re-emphasizing. Also, in line with Gready’s notion of strategic use of the law, human rights principles are particularly usefully deployed on issues of tenure (also one of the CESCR’s seven criteria). Land tenure issues arise in several ways in relation to post-disaster housing. Most often, governments and commercial interests will try to use the destruction of housing in order to permanently evict poor residents and repurpose land for commercial uses or for gentrification. This pattern can be observed in such otherwise diverse examples as New Orleans and post-tsunami Sri Lanka. Formal documents demonstrating tenure rights of the displaced may not be readily available. They may have been lost in the disaster, or they may have never existed because land was held under customary tenure. As a set of legal norms, human rights offer a basis for challenging national legal standards. The international human rights community has generated secondary normative standards that directly address the rights of people who find themselves dispossessed in this manner. And, very importantly, treating post-disaster housing as a human rights issue brings a new set of actors into play: human rights organizations that are not themselves engaged in delivering shelter can monitor how the rights of the displaced are being affected. This is a very practical way of realizing the accountability function as part of the value-added of human rights. Both national human rights institutions and non-governmental organizations have played important roles in this regard. The part played by the Sri Lanka Human Rights Commission in monitoring the rights of the displaced was mainly carried out by NGOs in the context of New Orleans. Elsewhere, in situations as far apart as Colombia and Georgia, NHRIs have been effective protectors of the housing rights of displaced persons.
This role is clearly not confined to post-disaster situations. The Scottish Human Rights Commission, for example, has been working for some years with tenants in poor quality social housing in Leith, organizing a resident survey as a way of articulating demands and training council officials in human rights standards. The outcome has been a programme of repairs and improvements. Once again, the role of an NHRI as monitor and facilitator has succeeded in holding a governmental body to account, with positive results.
David Kennedy’s criticism, the epigraph to this post, is all too accurate a summary of some “human rights-based approaches,” but fortunately does not describe all human rights interventions in the developmental and humanitarian fields. A more modest approach is likely to be more useful, one that does not assume that human rights offer all the answers, but nevertheless ensures that human rights principles of equality, non-discrimination, and accountability assume a central place.
1. What we talk about when we talk about human rights
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