Critics of government frequently complain that this or that government action was a violation of human rights. How do they know? Surely human rights must be interpreted, but how? And who gets to make authoritative interpretations? One of the most difficult aspects of human rights work is translating broadly stated human rights as described in the international human rights instruments into concrete forms in the local setting.
In the preceding section we said that human rights are concretized locally in the form of specific entitlements. What should be the content of these entitlements? The analysis must begin with the premise that people are entitled to the realization of their human rights. This means they must have the means needed to achieve the end, the required outcome, the realization of their rights. Thus, for any particular right, we have to make a means-ends analysis. This is a question of empirical and scientific knowledge. If people in a particular setting are to be well nourished, what would bring about that outcome on a sustainable basis?
It may be that in some places there is only one feasible means to that end, perhaps land ownership. Then in such a situation we can say that people must have a right to land. This would be a local right, an entitlement. The people in that locality could be described as having a compelling claim to land. To illustrate, article 11 of the International Covenant on Economic, Social and Cultural Rights says:
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
On the basis of this article--especially the reference to agrarian reform in paragraph 2(a)--the Foodfirst Information and Action Network (FIAN) argued:
. . . the duty to carry out an agrarian reform is obvious under the right to food in those situations where there is no ready alternative for the deprived population to have access to food and work, and in particular when the target group is a population of peasants, tenants and agricultural workers.
In such a situation, where agrarian reform is the only means for implementing the right to food for the landless, the refusal to carry out such a reform or gross irregularities in existing agrarian reform programmes are violations of the right to feed oneself (Foodfirst, p. 4).
FIAN then went on to argue that this described the situation in the Philippines. Their position is that peasants in the Philippines are entitled to land because of two things: the assertion of particular human rights in international human rights law, and the argument that in certain localities in the Philippines, that right can be achieved only with one particular course of action: land reform. That leads to a compelling claim that these people in this context are entitled to have the government take this action.
Take another example. Suppose someone says "people have a human right to iodized salt to protect them from iodine deficiency disease." That is incorrect. There is no assertion to this effect in international human rights law. However, one might make an argument saying that because of the assertions in international human rights law regarding nutrition and health, and the conditions currently prevailing in this particular country, people there (not people everywhere) should have an entitlement (a localized right) to iodized salt.
A compelling claim is a strong argument that people are entitled to something in the concrete local circumstances because of the existence of specific human rights. Compelling claims that apply everywhere could become human rights in themselves, since they are not merely local. Claims are weaker than rights precisely because their strength depends on the argument linking the universal human right and the local conditions. For most city dwellers there is no good argument for land rights, and in many countries there is no good reason to insist on iodized salt.
In many situations there are several possible means to any particular end. People might be helped to achieve good nutrition by having good jobs or by having good markets in which to sell their produce, etc. In such a situation, there is no compelling claim to any one means, and thus no specific entitlement in terms of services (or "inputs" in the language used in Subsection VI-d. Rights as Goals). If there are many possible paths to the goal, one's claims to any particular one of them is is diminished.
However, there is a compelling claim that something must be done to allow people to achieve good nutrition. If you are not getting enough food, government must do something to assure that you can get enough food. Of course your choices regarding how that food is to be obtained may be limited. You may be offered land, or a job, or money, or some kind of education. The options you are presented with must be reasonable and culturally sensitive, respecting all of your human rights. Any of these could fulfill the government's obligation if in the local circumstances it can reasonably be expected to allow you to achieve good nutrition on a sustained basis. In most cases you should not expect to have food provided to you directly, but you do have a right to expect reasonable opportunities to provide for yourself.
If the government, say, arranges for you to get a job, and you refuse, the government might say that in offering the job it has fulfilled its obligations. Obviously this would not be an acceptable option if it was a degrading job or if it paid very poorly, or if it was offered to a child or to someone who was severely disabled and incapable of carrying out the job.What is reasonable is a matter for judgment by the government and by those agencies that hold the government accountable for its human rights performance.
The entitlement is to whatever it takes to achieve the required outcome in a way that respects all other human rights. Government does not have to take every possible action, but it must take some action that can be expected to achieve the required outcome. In this situation the entitlement would be specified not in terms of a service (an input) but to a particular result or target or outcome. You are entitled to whatever it takes to reach the goal and stay there on a sustained basis.
If what the government is currently doing is not moving the population toward the goal of ending malnutrition, this is prima facie evidence of that action's inadequacy. Something else must be done, something that is likely to be effective in reaching the goal.
There must be action toward the goal at both individual and group levels. If an individual sees that nothing is being done that could reasonably be expected to move her or him toward ending her or his personal malnutrition, that would be a basis for challenging the government in relation to international human rights law. Similarly, if nothing was being done that could reasonably be expected to end malnutrition in one's particular group (e.g., a minority group), or in the population as a whole, that too would be a basis for challenging the government.
Of course we cannot expect instantaneous achievement of the goal. One can only expect progressive realization--steady and decisive movement--toward the goal, at a pace depending on local resources and local circumstances. However, zero movement is always an unacceptable pace.
Within broad limits, the primary source of authoritative interpretation of human rights is the national government. It is obligated to translate human rights into local entitlements and commitments through its executive, legislative, and judicial arms. The primary means for determining the entitlements and the corresponding commitments is national legislation. Of course the legislative process should be democratic, and it should be informed by the requirements of international human rights law and by relevant scientific information. The UN treaty bodies and other international human rights agencies, the civil society within the country, and specialists with expert knowledge in the technical field in question (e.g., nutritionists), should help to guide that legislative process to make sure that the local interpretation is faithful to the meaning of the human rights at issue.
Continue to VI-g. Having vs. Realizing Rights
Subsection VI-f last updated on October 27, 1999