Food for a thought that needs to be made legal
Human Rights Reader 52
THE LAW IS THE LAW...AND HUMAN RIGHTS ARE NOT YET THE LAW.
1. A neglected avenue is becoming increasingly important for human
rights activists to pursue in order to more effectively meet the
various Human Rights covenants' goals. The avenue: to more actively
propose/promote-new and/or amend-existing legislation --rather than
continue implementing traditional development projects which do not
necessarily address areas where the compliance with the respective
Human Rights conventions (e.g., the Convention on the Rights of the
Child -CRC- and the Convention to End All Forms of Discrimination
Against Women - CEDAW) is the weakest.
2. As a matter of priority, the traditional project approach has,
therefore, to be complemented (or replaced?) by a holistic, more le-
gal approach to struggle for Human Rights. This, since current, em-
bryonic rights-based programs are only a minor part of current devel-
opment agendas of UN, government and non-governmental organizations.
Moreover, they mostly promote 'rights-orientations' rather than more
explicitly seeking 'rights-improvements-as-an-outcome'.
3. So far, most UN agencies' and NGOs' new rights-based programs
mostly inform-about, train and disseminate, but do not seem to test-
rights-in-the-legal-arena (e.g., through legal challenges and/or
leading claim holders to get involved in pressing-on with their le-
gitimate demands using national and/or international legal channels).
[Note that many domestic legislatures give treaties precedence over
4. Unfortunately, many of these current rights-based programs also
often convey a message of powerlessness of the pertinent Human Rights
conventions, i.e., that they cannot really change the deeply en-
trenched attitudes of duty bearers that are causing harm, for in-
stance, to poor women and children.
5. There is thus a risk of using the concept of rights in ways that
have little to do with actual progress in the implementation of the
actual Human Rights conventions --or of promoting just ideas, and not
linking them to action.
6. [Because of this, someone even proposed that it would perhaps be
better to define 'the-inverse-of-rights', i.e., what duty bearers do
not do and what the penalties are].
7. That is why we, as rights activists, have to be part of the solu-
tion beyond pronouncements, by working with claim holders and getting
them actively involved in actions that will make their appeals heard
and acted upon.
8. But equally important is to give claim holders pointers of where
and who to turn to when their rights are being violated. Emphasis is
thus not only to be placed on poor women or children receiving par-
ticular benefits, but rather on achieving changes in processes-and-
9. We, therefore, need to come up with new capacity building projects
--understood as platforms-to-change-behaviors-on-rights-issues rather
than to foster career advancement of participants. These projects are
to include a whole new set of partners, e.g., parliamentary commit-
tees, political parties, labor and student unions.
10. Additionally, coming up with a framework for analyzing existing
laws and to understand their shortcomings (i.e., inconsistencies with
the Human Rights conventions or the fact that promoting equality is
not a feature in them) is also needed. Missing laws, failed implemen-
tation of existing laws, and ambiguities in current laws will all be-
come apparent from this analysis as well.
11. There is an easy test that can make the global Human Rights mis-
sion clear and that can be used to 'diagnose' any program's compli-
ance with the spirit of, let us say, the CRC and CEDAW. The test con-
sists in taking those programs in a country and replacing the word
'children' or 'women' with the word 'farm animals' raised for produc-
tive value and the word 'school' with training pen'. The proof of the
extent to which each of these programs (and the country's laws, for
that matter) reflect the goals of the CRC and CEDAW is in the number
of cases where these programs promote the essential rights and quali-
ties that are part of being human and that go beyond (farm animals ')
basic needs. If the score is low on this test, there is a problem
and, as activists, we need to engage in reorienting strategies in our
work with the Government.
12. The rights of claim holders (poor women and children in our exam-
ple) will ultimately have to be guaranteed by laws; this means that
the state (and not families or donors) has to assume the major role
of fostering equity and equality --and this has to be guaranteed by
law-- at a time when market forces are bringing about more and more
inequity and inequality.
13. The paradox is that while in some countries some development in-
dicators are looking better, the state's role in guaranteeing the
rights of all its citizens is getting weaker, at a time when the
risks to and needs of those individuals being left by the wayside by
economic growth are becoming greater.
14. For all of the above reasons, the reward system for project im-
plementers has to be changed as well. They have to be assured they
will not be penalized for vigorously pursuing claim holders' legally
recognized rights. We have to engage them in showing the claim-
holders-they-serve the bases of the conflict they have with whomever
is limiting or curtailing their rights: for sure, someone concrete is
holding back the actions that are needed, after claims have been
rightfully placed. If duty bearers do not act, approach them repeat-
edly; if they still do not act, expose them! This is pointed out
here, because information alone does not give project implementers
sufficient incentives; it often only adds to the frustration they
feel with their own powerlessness... and that is precisely what we
want to avoid.
15. Laws are not something abstract, 'probably useless' and un-
enforceable, just because few people are using them or are benefiting
from them. Widely disseminating information about pertinent laws cre-
ates awareness, but nothing else. There is this mythical belief that
awareness is the first step to achieve 'something', and that other
steps will automatically follow in due course; the reality is that
they do not. Without behavioral change, information can actually have
no effect (or completely opposite effects than those intended)...that
is why TV promotions offer discounts and free samples...
16. The big challenge ahead is for us to succeed in telling legiti-
mate claim holders what rights are and how they work; how, as claim
holders, they can exercise their given rights and how other coun-
tries' claim holders are successfully struggling for their rights.
Most important of all, we cannot convey a message of powerlessness.
17. An annual reporting on progress of each of the Human Rights con-
ventions to show progress article-by-article would thus seem to be
highly desirable. Civil society is best placed to do this. (We simply
have to make sure that certain groups are receiving particular bene-
fits due them --and that is so much easier with the law on our
Ho Chi Minh City, Vietnam
Mostly taken from D. Lempert, Assessment of Vietnamese national laws
and policies related to children and women, UNICEF mimeo, Hanoi,
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