Felix Morka, Executive Director of the Social and Economic Rights Action (SERAC)

Combating Poverty Through the International Human Rights Framework

by

Felix C. Morka Executive Director Social and Economic Rights Action Center (SERAC)

Introduction:

When the United Nations General Assembly (UNGA) resolved that extreme poverty and exclusion from society constituted a violation of human dignity, it was simply restating what is not only apparent but is indeed the existential and instrumental purpose of the International Bill of Rights to prevent. More than any tool fashioned by the world’s infamous dictators, poverty boasts to be and is undeniably the most potent single threat to the human rights, and survival of the greatest numbers of the human population. The UN human rights system’s growing interest and incipient efforts to isolate poverty and to examine its relationship and impact on the enjoyment of human rights represents a belated, albeit desirable, awakening to the decisive and devastating impact of poverty on human rights. But we cannot but question how poverty, a phenomenon of such debilitating capacity and universal spread, could have escaped earlier detection, isolation and vigorous treatment by the UN and other international and regional bodies charged with the promotion and protection of human rights.

This neglect or failure to act is due to the pervasive influence of dominant neo-liberal economic thought in the conception, management and application of the human rights enforcement system. In this tradition, poverty is seen essentially as an economic fact and signifying the failure of the poor to be productively engaged and to be an effective competitor in the market place. This view denies, or at least, fails to recognize poverty as a social phenomenon and as a specific human rights issue -- as an issue of unfairness, inequality, incapacity, and lack of access to opportunity and resources. The historical bifurcation of human rights between civil and political rights (C&P rights) on the one hand, and economic, social and cultural rights (ESC rights) on the other, has helped to reinforce this view of poverty as an extra-human right category consigned to be addressed by fate, market forces and the development process. It is in this sense that the human rights system can be said to have ignored the clarion call of the UDHR when it proclaimed the enjoyment of freedom of speech and belief, freedom from fear and want as the highest aspiration of the common people. It is also in this sense that the human rights system has indirectly contributed to disempowering the poor by its obsessive devotion to the promotion and protection of C&P rights and the neglect of ESC rights which are equally crucial and indispensable to the struggle of the poor for respect of their inherent human dignity.

Poverty as a Violation of Human Rights:

Poverty has been and remains a constructed social and economic reality. The poor are not poor simply because they are less human or because they are physiologically or mentally inferior to others whose conditions are better off. On the contrary, their poverty is often a direct or indirect consequence of society’s failure to establish equity and fairness as the basis of its social and economic relations.

A major obstacle to a more equitable realignment of socioeconomic relations is what a non-governmental organization, Jesuits for Debt Relief and Development (JDRD), termed society’s “subalternity” of the poor. On point, JDRD observed that, “under the present dispensation of neo-liberalism, ‘poverty’ and the ‘marginalized’ have no meaningful existence within the dominant discourse, or the dominant culture. ... [T]heir world of meaning ... [is] totally discredited.”

Poor people’s perspectives on poverty provide the most instructive key and valuable tool to achieving meaningful existence within the dominant discourse. When poor people are asked about their world of meaning, and in particular to identify what poverty means to them, their basic definitions vary insignificantly across countries and regions. In December 1999, the World Bank published a report, Voices of the Poor- Can Anyone Hear Us?, that in part captured what 60,000 impoverished persons living in forty-seven countries took poverty to mean. Their definitions of poverty essentially had five common features worldwide:

(1) poverty is a multidimensional social phenomenon, interlocking differing genders, ages, cultures and other social and economic contexts;

(2) poverty is the lack of multiple resources, leading to physical deprivations;

(3) important psychological aspects of poverty are that poor people lack voice, power and independence;

(4) basic infrastructure (e.g., roads, water and health facilities) are absent; and

(5) poor people’s lack of physical, human, social and environmental assets (as opposed to their lack of income) makes them vulnerable and heightens their exposure to risk.

Conventionally, extreme poverty (a term-of-art that is oftentimes used interchangeably with absolute poverty) is measured against the World Bank standard of living off of US$1 per day or less. Based on this parameter, in 1998, over 800 million people living in extreme poverty in South Asia and Sub-Saharan Africa alone. Among the most blighted subgroups are extremely poor children. Worldwide, nearly 8 million children die from diseases caused by dirty water or poisoned air each year, 150 million children under five years of age are gravely malnourished, with another 260 million suffering from maladies such as anemia that are associated with vitamin and mineral deficiencies.

As alarming as the foregoing figures are, it bears mentioning that these statistics are underestimations as they do not account for a sizeable number of the world’s poor. One factor that inhibits accurate accounting is the refusal of some countries to accord civil status to infants born toextremely poor families, to register the birth of an extremely poor infant, or to register an extremely poor person’s entry into a country.

Such denials of civil status reinforce the fact that the extreme poor have been relegated to a point of irrelevance, at best, and a state of sub-humanity, at worst. The international human rights framework is thus critical to rectifying this injustice as rights-based strategies promote the poor as humans holding inalienable, fundamental rights that must be protected and fulfilled. Noting this, the U.N. General Assembly recognized that “surmounting extreme poverty constitutes an essential means to the full enjoyment of political, civil, economic, social and cultural rights.”

Principal specific human rights violated by poverty include: the right to an adequate standard of living; the right to life; the right to participate; freedom of expression and association; the principle of non-discrimination; the right to health; the rights to food, clothing and housing; the right to education; the right to own land and other property; the right to water and sanitation; the right to a healthy environment; and labor rights.

From Functional Separatism to Functional Mutuality of all Human Rights:

Arguably, every state, irrespective of the nature of its political system, derives some legitimacy from its commitment to the fulfillment of certain fundamental obligations to its citizens. Indeed, the duty to ensure the provision of essential goods and services such as water, employment, healthcare, education, food, housing and environmental protection has traditionally been performed, or at least, closely regulated by the state. Invariably, the notion of the state as a “social contractor” is the crux on which many political party manifestoes are constructed and is often the basis upon which electoral choices among candidates and political parties are made. In recognition of their indispensability to the preservation and enhancement of human dignity, these economic and social services became concretized as rights chiefly by the UDHR, and were further entrenched by the International Covenant on Economic, Social and Cultural Rights (ICESCR). As with C&P rights, it was considered insufficient to entrust the satisfaction of these needs to the absolute discretion and whims of political leaders, thereby minimizing the potential for abuse. Their codification, meant to institute a system of legally recognized and enforceable minimum standards of expectations and achievements, also embodied a recognition of the enormous power of the state in relation to the poor and marginalized groups, and provided a basis for ensuring fairness and equity in the allocation and distribution of scare resources.

Economic, social and cultural rights are broadly of three kinds: (i) the right to work under just and favorable conditions and the right to social protection; (ii) to an adequate standard of living and to the highest attainable standards of physical and mental health; and (iii) the right to education and to enjoyment of the benefits of cultural freedom and scientific progress. Generally, ESC rights include the right to work, right to social security; the right to housing; food, education and the right to health and a healthy environment.

Nature of States Parties’ Obligations on ESC Rights:

The essential elements of the State’s obligation to implement all economic, social and cultural rights are encapsulated under Article 2 (1) of the ICESCR. It states: “each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (Italics added) While the exact scope of these legal obligations continues to be debated, there is an emerging consensus, forged by the clarifications offered by the UN Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No.3 on the Nature of States Parties Obligations (issued at its Fifth session in 1990).

Three key elements of Article 2(1) can be identified as follows:

“undertakes to take steps . . . by all appropriate means, including particularly the adoption of legislative measures”

The Committee has concluded that this provision requires States parties to take immediate steps to create the necessary conditions for the enjoyment of the rights by everyone. This duty is not limited or qualified by other considerations such as by the idea of “progressive realization”. Concrete steps must be seen to be taken immediately upon ratification of the Covenant by a State. For instance, effective legislative measures must be taken to enhance the implementation of the rights, including the repeal of pre-existing inconsistent laws or policies. What constitutes “all appropriate means” must be decided based on the right under consideration and within the particular context of each state. In relation to housing, it may include education, democratization of administrative procedures, and the establishment of support-based programs for enhancing access of low-income groups or individuals to credit or other economic opportunities for purposes of housing acquisition. In this respect, activist organizations can conduct periodic reviews or evaluations of existing housing policies and programs in order to identify other measures that may be taken to achieve the housing objective.

“to the maximum of its available resources”

Although by far the most important principle in considering states obligations, it is also the most controversial as the claim of lack of resources is often used by states to avoid responsibility for implementing the rights under the Covenant. However, according to the Committee, it requires that all available resources must be used equitably and judiciously used in the satisfaction of, at least, the minimum requirements of the rights, particularly to the advantage of the most vulnerable sections of the population. The burden of showing that available resources are being or have been utilized to the highest possible extent rests on the State party. This principle provides a basis for mobilizing efforts against pervasive corruption and theft of national resources by state officials that continues to hinder the capacity of many States to implement the rights under the Covenant. Concrete evidence of massive corruption or corrupt enrichment can and should be considered by the Committee in an assessment of a State party’s compliance with the Covenant.

“to [achieve] progressively the full realization of the rights”

This requires States to “move expeditiously and effectively as possible” towards the goal of full realization of the rights in the Covenant. It also disallows an indefinite postponement of action vital to the enjoyment of the rights. In addition, some provisions of the Covenant, for example the prohibition of discrimination, require immediate observance and are therefore not subject to the principle of “progressive realization.”

Equality and non-discrimination

Article 2(2) of the Covenant prohibits discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, in the exercise of the enunciated in the Covenant. This provision offers a crucial benchmark for monitoring compliance or violation of the Covenant. Its immediate and self- executing character proves to be an activist’s most ready and potent tool for action against violations of the rights contained in the Covenant.

Generic Obligations

In addition to the obligations created under art. 2(1) & (2), States Parties also bear generic obligations of conduct and obligations to respect, protect, promote, and fulfill economic, social and cultural rights. According to the Committee on Economic, Social and Cultural Rights (CESCR), the concept of a minimum core obligation denotes a duty to satisfy “at the very least, minimum essential levels” of the rights recognized in the Covenant. The core content of a right refers to its constitutive elements without which the right is hollow and meaningless. It represents the threshold or baseline entitlement of the right that must be fulfilled by all States parties irrespective of their peculiar economic, social, political or other factors. Satisfaction of the minimum core content of a right by itself does not equate to full compliance with the Covenant, rather, it triggers the obligation ensure the full satisfaction of the right in all its other aspects.

Obligation to Respect:

States assume an obligation to refrain from actions or conduct that contravene or are capable of impeding the enjoyment of economic, social and cultural rights. Essentially, the obligation is neither contingent on “availability of resources” nor subject to the notion of “progressive realization”. The obligation to respect is of an immediate nature and simply implies respect for the rule of law.

Obligation to Protect:

This duty pertains to the regulatory functions of the State to prevent encroachments on economic, social and cultural rights, primarily, by non-state actors. It also implies a duty to punish violators of those rights. This may necessitate the adoption of legislative, administrative or policy measures to ensure unwarranted interference in the enjoyment of ESC rights by quasi-government authorities and other powerful economic and political interests in society. For example, in relation to the right to education, the equality and nondiscrimination principle of the Covenant requires the State to intervene, as against parents and legal guardians, to ensure equal access of boys and girls to educational opportunities. In this respect, Article 2(2) of the Convention on the Rights of the Child, mandates States parties to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.” Similarly, it requires the government to protect its tenant population from the wanton infractions by landlords of the right to adequate housing. It also obligates the government to protect its citizens from the extreme human and environmental devastation wreaked by oil companies in Nigeria.

Obligation to Promote:

This requires States parties to ensure the widest possible knowledge and awareness of ESC rights. For example, its promotional obligation may require that steps be taken to counter traditional beliefs and practices which inhibit enrolment of girls in schools, thereby expanding access to education. It may also mean a review of existing official information disclosure policies or the adoption of “freedom of information” legislation that would guarantee citizens’ access to important information. Furthermore, the obligation to promote may extend to the development of coherent indicators and benchmarks for measuring the effectiveness of the government’s policies and measures to achieve the realization of economic, social and cultural rights.

Obligation to Fulfill:

Otherwise described as an ‘obligation of result’, the obligation to fulfill is easily the most problematic as it hinges on the identification of resources for the satisfaction of aspects of ESC rights. It is the responsibility of States to take steps towards the full implementation of all ESC rights. This obligation is said to be qualified by available resources and subject to progressive realization. But as the CESCR has explained, “available resources” must be equitably and judiciously used in the satisfaction of, at least, the minimum requirements of the rights, particularly to the advantage of the most vulnerable sections of the population. States parties bear the burden of showing that available resources are being or have been utilized to the highest possible extent in the fulfillment of the rights recognized under the Covenant. So it is simply not enough for a State to claim that it lacks the resources to achieve the fulfillment of ESC rights.

All human rights stem from the precept that there are fundamental principles which should be respected in the treatment of all human beings, regardless of race, gender, creed, ethnic or national origin, or religious affiliation. States owe a duty to protect the life, liberty and security of their citizens and must meet the basic human need to live in peace with dignity and security. The attainment of this ideal is dependent on the realization of basic C&P rights as well as ESC rights. The indivisibility and interdependence of all human rights is a firmly established principle of international law. The selective implementation of C&P rights over ESC rights is counter productive as you cannot fully achieve one without the other. In all countries of the world -- global north or south -- irrespective of levels of development, human needs and wants are fundamentally the same. It is absurd to speak of the right to life (a basic civil and political right) without the right to a means of livelihood, including the right to food, health, housing and work (ESC rights). Similarly, of what value is the right to political participation or the right to free expression (C&P rights) without the right to education?

Critics of ESC rights often do so from liberal economic and positivist legal perspectives. They hold that ESC rights constitute improper encroachment on individual economic freedom; that they lack key attributes of “law”; are not “rights” in the real sense; are aspirational in nature and fall in the political realm; are incapable of immediate realization; are non-justiciable; lack precise content; and are far too resource- intensive to be realizable. They insist that ESC rights are in a qualitatively different category from C&P rights which are said to constitute positive law, are determinate in nature, are not resource sensitive, and are capable of judicial enforcement. Some critics even argue that ESC rights are at best complementary, and at worst mere appendages of C&P rights.

These voices of dominant social and economic culture, have through the years, effectively drowned the voices of the poor, the dispossessed and the oppressed and maintained a state of functional separatism between C&P rights and ESC rights despite rhetorical consensus on the universality, indivisibility, and interdependence of all human rights. In this scheme, violation or threat of violation of human rights became circumscribed to and identified largely with physical violence -- what dictators did, who they arrested, tortured, detained without trial, as abhorrent as these practices are, became the only dominant paradigm of what human rights were, and it did not matter that the widespread conditions of social and economic depravity to which the people were subjected were just as abhorrent and even more devastating than the specific violations of civil and political nature. It also did not matter that struggles for social and economic justice were often at the roots of the underlying conflicts which produce violations of C&P rights.

Without delving into the polemics of the critique of ESC rights, it is sufficient to underline that virtually all legitimate questions and concerns raised regarding the validity and viability of ESC rights are, to varying degrees, apt and relevant to many traditionally held C&P rights. Every single human right has both its “negative” and “positive” aspects implying obligations of conduct and of result in relation to a given right. If this is the case, it is absurd to suggest that the points of criticism against ESC rights should count for their repudiation whereas they have not in the case of C&P rights. Further, that most critiques of ESC rights are located in the legal realm betrays the discomfort, even apprehension, of lawyers and legal scholars to engage a set of values not palpably suited to their preconceived notions of right and wrong.

Lack of a history interpretation and implementation of ESC rights is often mistaken for impossibility of meaningful conceptualization and application of those rights. If Dworkin is right in thinking of law as a ‘practice which is part of the ongoing, active life of a community’, it would seem plausible to suggest that every society invariably must decide for itself what rights (reinforced by laws) are legitimate to satisfy, and with what amount of resources and for whose benefit.

Arguably, all rights warrant differing levels of investment of collective resources to satisfy. Some societies invest more or less in a given right based on what choices it has made. It's all about relative investment in rights as ‘public goods’, as Holmes refers to it, “designed to improve collective and individual well being”. Granted that what choices are made may be dictated or conditioned by requisite resource capability (or lack of it) to meet the requirements entailed in that choice, they are also a statement of society’s preferences rooted in its historical traditions and may signify a consciousness (popular or not) for the preservation of that tradition. For example, whenever judges are called upon to decide in matters of rights and duties (whether of a C&P rights or ESC rights character) they are presumed to have and do in fact exercise their interpretive and other authority in ways that bear upon resource allocation (directly or indirectly). When a judge finds that certain prisoners are being held under inhuman and degrading conditions (in violation of a negative C&P right) due to overcrowding or other factors, no one would expect the judge to falter in giving either declaratory or injunctive reliefs. When this occurs, the judge is not seen as departing from or impermissibly enlarging his authority.

Why then should the prospect of judicial involvement in the adjudication of positive aspects of ESC rights rise to a specter so scary as to render them implausible or impracticable? Why is it so terribly problematic for a judge to direct attention to certain constitutional or legal imperatives evident in a situation of a human right violation which may implicate resource application? If the concern is that ESC rights warrant a disproportionately higher level of judicial engagement with matters which may potentially involve judges in questions of resources and policy choices, I think the anxiety is bloated because in many situations, all that the court may be required to do is to hold the government to justify its policies against a human rights standard. And in extreme cases where a more direct involvement in specifying resource application to remedy a violation is called for, the courts must be seen as acting in accordance with its primary concern for justice. This point was eloquently made by the South African Constitutional Court in Government of South Africa vs. Grootboom, when it stressed that ‘. . . many of the civil and political rights entrenched in the constitutional text will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion.”

The correlative duty to respect, promote, protect and fulfill human rights must be seen as attaching to government as a system, not simply to one particular department. In this sense, legislative and policy functions (on rights specification, policy directions and resource allocation) must be viewed as integral and crucial to a purposeful judicial involvement in the enforcement of rights. Otherwise, a view of rights simply based on what courts say rights are and to what extent they may be enjoyed distorts the whole idea and ends of ‘man in society’. And as courts and judges must function in society, their interpretive duties are performed largely in accordance with and in furtherance of society’s choosing and ordering of values. What sets South Africa apart from Nigeria, (as far as its Bill of Rights is concerned) is that South Africa has constitutionalized ESC rights making them co-equal with civil and political rights. By this singular act, historical quibbles regarding the justiciability of ESC rights have been put to rest. On this point, the Grootboom court stated that:

“while the justiciability of socio-economic rights has been the subject of considerable jurisprudential and political debate, the issue of whether socio-economic rights are justiciable at all in South Africa has been put beyond question by the text of our Constitution . . .”

Grootboom and the earlier case of Soobramoney vs. Minister of Health (Kwazulu-Natal) have helped to pierce the wall of presupposition that ESC rights are legally or judicially inscrutable.

Generally, both critics and supporters of ESC rights, like most citizens in society, can relate with the idea and purpose of taxation as an important source of revenue available to the government. From a liberal economic point of view, taxation constitutes a limitation on individual economic freedom. Understandably, this limitation is taken as necessary because tax revenues enable the provision and maintenance of the apparatus and system of government, which in turn ensures the enjoyment of other rights and freedoms. Payment of taxes also comes with implied consent to the government to apply collective revenues to certain ends imbedded in the purpose of government. These ends may be constituted, constructed, ascertained or even manipulated by those in whom governmental powers are invested. But the government is presumed to act rationally in the exercise of that power, to make critical decisions and to define and modulate societal priorities. In modern democratic societies, the presumption of behavioral rationality of government is further cemented by the officials’ election as representatives of the people. Therefore decisions as to what, why, how, when and for whose (general or particular interests) collective resources (from taxation and appropriation of common natural resources) are to be allocated are also imbued with legitimacy. This scheme is taken for granted as a prerequisite for ensuring society’s continued functioning and progress.

It would seem as though reference to ESC rights transforms this dynamic. Some critics see ESC rights as portending increased taxation to an extent as would constitute unacceptable encroachment on individual economic freedom, a view summed up by David Kelly (although his comments were aimed at welfare rights, it resonates in some respect with ESC rights) when he stated that “liberty rights reflect an individualist political philosophy that prizes freedom, welfare rights a communitarian or collectivist one that is willing to sacrifice freedom.” As it were, they question the justification for taking from one to satisfy the interests of another or the collective of which the one is a part. In this regard, individual economic freedom is equated with an untrammeled right to unlimited personal accumulation. Neither the implied consent to the government to manage and apply tax revenues nor a sense of fairness, justice and equality at the roots of liberal traditions seems sufficient to sway critics to recognize what is easily self evident – the intrinsically and mutually dependent nature of all rights.

I think that the controversy about ESC rights will continue in so far as divergent views are in some ways dictated, informed or conditioned by stark social, political and economic realities prevalent on the commentator’s radar. In real life, this radar, regrettably but understandably, has a North and South dimension, to put it generally. The welfare system as operates in nearly all industrialized countries spurns a different set of dynamics in social and economic determinism, whereas, its absence elsewhere reveals quite another set of realities. Absent welfare in industrialized western societies, would prevalent theories of individual rights, freedoms and duties hold well? To what extent are rejections of ESC rights by many in the North a reflection or expression of the comfort zone created or filled by the welfare system? The welfare system works where and when it does because all parts of government feel obliged (and are obligated by legislation) to perform the duties created under the welfare regime. Concomitantly, beneficiaries of that system expect (and are entitled to expect) the performance of those duties by relevant agencies of government, cogently summarized by Louis Henkins when he stated that in the United States the welfare system has become so “deeply imbedded as to have near-constitutional sturdiness.” Yet, the US remains one of the most acerbic opponents of ESC rights.

Making Human Dignity the Goal of Democracy and Development:

Classically, poverty is seen as the direct result of lack of economic development and the absence or failure of democratic governance. The creation of wealth, a prime objective of economic development activity, is taken as the natural healer of poverty. Individual and societal transformation is tied to the promotion and enhancement of productive capacities, expanded investment, increased efficiency in resource allocation and management, liberalization and deregulation of markets. In this calculus, the wealth generated would be applied towards improving living standards of the individual and the community as whole. Championed by the Bretton Woods institutions, now commonly referred to as the “Washington Consensus”, this model advocates market-led economic enterprise free from state intervention. It also advocates massive divestment in social spending on education, health and other public sector services while promoting capital mobility, deregulation and removal of trade barriers within and among nations. In many developing countries, these policy prescriptions have often entailed the implementation of the Structural Adjustment Programs (SAPs) with devastating adverse impact for local economies and the standard of living. The World Trade Organization (WTO) has since become the nucleus and vehicle for actualizing this recipe for economic growth and transformation. In the wake of this massive economic globalization, the majority of the world’s population has been afflicted with crippling poverty, huge foreign debts, destruction of local productive capacity, obscene exploitation of local labor, and polar inequalities, extreme dependency and powerlessness.

This economic approach to development overlooks the critical political dimension of development and poverty. Prototype development policies and projects are implemented in host countries without a corresponding investment in understanding and evaluating the host country’s political and cultural environment. Often, the absence of a compatible political structure, bureaucratic rationality and the lack of institutional transparency and accountability are decisive in the failure of development policies or projects. It also ignores the power dynamics inherent in control and utilization of economic and political power and its relationship to the preservation of prevalent social and economic inequalities. In addition, the nature of the political system in place in a given society is also closely associated with capacity or incapacity of individuals and their society to tackle poverty. Democratic governance is generally taken as providing a participatory framework for people to determine for themselves how they are to be governed and by who. In this system, selection of political leaders through periodic elections is an important hallmark. Since the end of the cold war with the collapse of former Soviet Union, democracy has become a celebrated preference in political ordering and many former authoritarian and dictatorial regimes have been replaced or are in the process of being replaced by elected “democratic” governments.

However, in many developing countries, democracy and development have not translated into an increased capacity to uplift the conditions of the poor. Similarly, the poor have not been afforded greater control of their own affairs and have remained idle spectators in the unraveling economic and political realities. Their poverty ensures that they are excluded from actively participating in the social, economic and political life of their communities. Dispossessed and disenfranchised, the poor are condemned to depending on the goodwill of their political leaders on whom they wait for the achievement of universal emancipation -- to create jobs for the unemployed, medicines for the sick, housing for the homeless and education for children - promises which have been made only with as much consistency as they have been broken. More often than not, project conception, planning and implementation are carried out by technical experts and advisers in Washington, D.C. and other foreign capitals, in collaboration with officials in government ministries without notice to or consultation with the local populations whose interests are directly at stake under the project. Their interests and welfare are sacrificed for economic and political expediencies.

There is growing convergence between human rights and development discourses on the point that the promotion of human dignity must be the goal of every economic or development activity. This trend towards evolving rights-based approaches to development is not unconnected with the heightened desperation and restiveness of the poor, as well as their determination to take their complaints to the door steps of the architects of their impoverishment as witnessed during the Seatle, Washington meetings of the WTO and several other protests since then. Following the prompts of influential development economists like Amartya Sen and Martha Nussbaum, institutions such as the Department for International Development (DFID), the United Nations Development Program (UNDP) have begun to take particular interests in exploring the potential for articulating development policies and priorities from a human rights perspective. The Sustainable Livelihoods (SL) approach, which is gaining increased recognition among development actors as an analytical framework for analyzing development and the role of ‘rights’ in the development process is an example of this paradigm shift. Even the World Bank has begun to grapple with the urgent necessity for a economic development policy that responds to the concerns of the poor. In its World Development Report 2000/2001 on Attacking Poverty, the Bank stated that “in a world where political power is unequally distributed and often mimics the distribution of economic power, the way state institutions operate may be particularly unfavourable to poor people”. The report states further that “facilitating the empowerment of poor people - by making the state and social institutions more responsive to tem - is also key to reducing poverty.”

However, it is still unclear how the emerging conceptualizations of the rights approach to development is helpful in aligning development to the essential goal of promoting human dignity and addressing the conditions of the poor. Reducing human rights concepts and entitlements as capital assets and stratifying rights into a variety of forms of capital (as proposed under the SL approach) would only serve to neutralize the core value of ‘rights’ as valid legal claims of a rights holder as against a duty holder as specified by a legal regime in existence locally or internationally. Further, it also remains to be seen whether or not, or the extent to which this rights-inspired development approaches are based on an economic efficiency calculation rather than a genuine commitment to justifying development based on a human rights standard.

ESC Rights Can Engender Inclusion of the Poor:

Tackling the structures that create and nurture poverty requires much more than the goodwill of the state and its officials, irrespective of whether or not the leadership was elected into office. Rather, poverty eradication warrants the evolution of processes that enable the poor and other marginalized groups, communities or nationalities to participate in both envisioning and shaping outcomes on matters that concern them. The task of eradicating poverty must entail building the capacity of the poor to gain a new conception of their security and well-being as the primary purpose of government and development. But the challenge is how the poor can overcome the powerlessness and dependency created by sustained alienation from effective participation in order for them to reclaim control and turn government’s attention to their own priorities. ESC rights offer a viable framework for recasting the basis of the relationship between the government, non-state actors and the poor. The ESC rights-approach can help to imbue a sense of popular ownership of governance and development. A rights-based conception of essential social and economic goods, including food, access to clean water, health care education, housing and social security which are provided or access to which are facilitated (through policy and budgetary applications) will shift the burden to the government to justify its failure to ensure their provision. It will also legitimize claims or agitations for their provision. My view is that by empowering the poor to engage the government and other economic, social and political actors in this manner, the space will become expanded for the inclusion of the poor in setting and modulating social and economic agendas. In many societies, poverty has as much to do with widespread corruption and brazen theft of state resources by its leaders as with lack of resources. The ESC rights approach can thus help to render the state’s planning, financial and budgetary system liable to higher levels of public scrutiny, yielding greater responsiveness and accountability.

It is my view that the poor bear a fundamental duty to claim their legal and moral entitlements. ESC rights denials often affect large sections of the population -- whether involving the failure to implement free and compulsory primary education, or the forced eviction of a community from their homes, ESC rights can be a powerful rallying influence for building viable social movements and promoting inter-sectoral communication, planning and action to address specific and systemic obstacles to the realization of human rights and development.

Human Rights Methodology Must be People-Centered:

An effective human rights strategy for combating poverty must be one that proceeds on the recognition that all human rights are intrinsically and instrumentally inseparable and mutually dependent if any one right is to be enjoyed to the fullest extent possible. We must shed our defensiveness about ESC rights and concern ourselves with exploring means for their realization.

It must also be a strategy that puts people first and consciously seeks to secure their involvement in the development of that strategy. It must also proceed on a recognition that the obligation of states to respect, promote, protect, and fulfill all human rights cannot be abandoned to government officials alone and that the poor must assume some responsibility for moving the state in the direction of compliance through a process of consistent dialogue, activism and rights claiming. The poor and their civil society representatives must cease the moment and reclaim their place of eminent priority to which the UDHR and the entire human rights corpus was dedicated to serve. The apparent lack of political will and resources on the part the UN human rights system to address the challenges facing the poor is not accidental or benign but a reflection of dominant member states’ view of poverty not a human rights question. The UN treaty monitoring bodies must reinvent their operating procedures to confront these challenges through expanded dialogue with citizens’ group, community based organizations and other civil society formations.

Further, such strategy must also take cognizance of the multi-disciplinary nature of both human rights and poverty. The traditional conception of rights and rights enforcement as strictly a field of law and for activist lawyers must be abandoned in favor of a robust and integrated strategy that brings to human rights advocacy the benefit of diverse disciplines and experience. For example, litigation which is a long established tool of human rights enforcement must be seen as more than a tool for wining court judgments, but also as an important tool for mobilizing and focusing the struggle of the poor for justice. ESC rights can also found the basis for the poor to engage the government in the final frontier -- the budget and expenditure process through the use of budget analysis as an advocacy and mobilizing tool.

This approach has proven to be extremely valuable in the experience of the Social and Economic Rights Action Center (SERAC). Founded in May 1995, SERAC is concerned with the promotion and protection of economic, social and cultural rights in Nigeria. Through its three standing programs – the Monitoring and Advocacy Program (MAP), the Community Action Program (CAP), and the Legal Action Program (LAP) – SERAC seeks to build awareness about economic, social and cultural rights and explore strategies for securing their realization. In addition, SERAC aims at broadening the access of individuals and communities, and strengthening their participation in the design and implementation of social and economic policies and programs which affect them. Together, its research, education, litigation and mobilization initiatives are aimed at strengthening the capacity of marginalized individuals, groups and communities to demand their social and economic rights, rights that are essential to poverty eradication.

SERAC’s work in Nigeria with the poor provides evidence that rights-based strategies can be effective and make a difference. Under the banner of development projects and urban beautification, the Nigerian government routinely demolishes communities without adequately compensating, rehabilitating, or resettling evicted persons. For example, in July 1990, the military government in Lagos State evicted 300,000 persons from their homes in Maroko without adequate notice, compensation or resettlement. Since its founding, SERAC has reinvigorated the Maroko people’s struggle for adequate compensation and rehabilitation by constructing a Maroko Information Center (that serves to broaden the community’s assess to information and as a meeting hall), launching a micro-credit initiative that provides soft loans to support Maroko women’s small businesses so as to enable them to play more active roles in the community’s leadership, and has filed legal actions that place into issue the disruption of evicted children’s formal education and the insecurity of the community’s tenure. Remarkably, SERAC’s efforts at the grassroots level have fueled people-driven interventions and have led the Lagos State government to officially accept full legal responsibility for the Maroko demolitions, and therefore a corresponding duty to provide adequate resettlement and compensation.

SERAC has been similarly instrumental to other forcibly evicted communities’ struggles for remedies for ESC rights violations. Under the World Bank-assisted Lagos Drainage and Sanitation Project (LDSP), over 2000 persons lost their homes in Ijora Badiya and Ijora Oloye, just two of the nearly fifteen slums underlying the project. During the demolitions, heavily armed security forces beat slum residents and extorted money from people who tried to salvage their personal properties.

In close collaboration with the communities, SERAC triggered an exacting review of the LDSP by filing a Request for Inspection in 1998 before the World Bank’s independent Inspection Panel that challenged a myriad of human rights abuses and Bank operational policy breaches. Based in large part on SERAC’s carefully articulated arguments on the Bank’s ESC rights violations, the LDSP was not fully implemented, thereby averting the threatened forced eviction of an estimated 1.2 million people resident in fifteen major slum communities in Lagos. Finding that the World Bank had “failed to provide for the resettlement and compensation of some affected people”, the Inspection Panel concurrently “acknowledge[d] the concerns and efforts of SERAC for exhibiting such courage in defending the rights of the affected people”, adding that “[SERAC’s] presence in the equation has made it possible for the Requesters to develop better dialogue ...”

SERAC has also initiated many other projects that seek to promote and protect individual and collective ESC rights. For example, SERAC’s work with People Living with HIV/AIDS (PLWHA), in promotion of the right to health has brought into focus the human rights dimensions of the epidemic. Following its nationwide research into the human rights denials experienced by PLWHA in Nigeria and its corresponding national workshop on HIV/AIDS and human rights, SERAC filed a landmark case, Georgiana Ahamefule vs. Imperial Medical Center & Another, to challenge the non-consensual HIV testing, unfair dismissal and denial of medical care on the basis of the plaintiff’s HIV-positive status. The lawsuit rests on violations of the right to work, right to health, and right to equality and non-discrimination. In a brazen violation of constitutional guarantees of fair hearing and access to justice, the court refused the plaintiff entry based upon its unfounded fear that the presiding judge and others in attendance might become infected with HIV by the plaintiff’s mere physical presence in the room. SERAC has appealed that decision amidst widespread condemnation of the ruling in light of its far-reaching public interest dimensions.

Conclusion:

The international human rights framework presents the most formidable and objective tool available to alter the social, economic and political power relations that promote and preserve inequality. By debasing the poor, society diminishes humanity. The rich are not so rich as long as the poor are so poor. The poor can, should, and will reclaim their place as coequal in their humanity. There is no greater commitment for the human rights system than to seek and secure the dignity of all.

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