Closing the Rights Gap: From Human Rights to Social Transformation 9780520958920

Citation preview

Closing the Rights Gap

Closing the Rights Gap From Human Rights to Social Transformation

Edited by

LaDawn Haglund and Robin Stryker

UNIVERSIT Y OF CALIFORNIA PRESS

University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit www.ucpress.edu. University of California Press Oakland, California ©2015 by The Regents of the University of California

Library of Congress Cataloging-in-Publication Data Closing the rights gap : from human rights to social transformation / edited by LaDawn Haglund and Robin Stryker. pages cm From human rights to social transformation Includes bibliographical references and index. isbn 978-0-520-28309-1 (cloth : alk. paper)—isbn 0-520-28309-0 (cloth : alk. paper)—isbn 978-0-520-95892-0 (ebook)—isbn (invalid) 0-52095892-6 (ebook) 1. Human rights and globalization. 2. Social justice. 3. Human rights. 4. International Covenant on Economic, Social, and Cultural Rights (1966) I. Haglund, LaDawn, 1968- editor. II. Stryker, Robin, editor. III. Title: From human rights to social transformation. jc571.c61444 2015 [hm671] 323--dc23 2014023209

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In keeping with a commitment to support environmentally responsible and sustainable printing practices, UC Press has printed this book on Natures Natural, a fiber that contains 30% post-consumer waste and meets the minimum requirements of ansi/niso z39.48–1992 (r 1997) (Permanence of Paper).

For our parents, Mavis Haglund and Alyce and Sheldon Stryker

contents

List of Figures List of Maps List of Tables and Boxes List of Contributors Preface Introduction: Making Sense of the Multiple and Complex Pathways by which Human Rights Are Realized

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1

LaDawn Haglund and Robin Stryker

part one: promises and challenges of economic, social, and cultural rights (escr) realization at the international level 1. Do Non–Human Rights Regimes Undermine the Achievement of Economic and Social Rights?

29

M. Rodwan Abouharb, David L. Cingranelli, and Mikhail Filippov

2. Linking Law and Economics: Translating Economic and Social Human Rights Norms into Public Policy

49

William F. Felice

3. Advances and Ongoing Challenges in the Protection of Indigenous Peoples’ Rights within the Inter-American System and the United Nations Special Procedures System Leonardo J. Alvarado

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part two: the role of domestic law and courts in escr realization 4. The Impact of Legal Strategies for Claiming Economic and Social Rights

87

Varun Gauri and Daniel Brinks

5. The Role of Human Rights Law in Protecting Environmental Rights in South Asia

105

Sumudu Atapattu

6. The Morality of Law: The Case against Deportation of Settled Immigrants

127

Doris Marie Provine

part three: beyond judicial mechanisms as means to escr realization 7. Social Movements and the Expansion of Economic and Social Human Rights Advocacy among International NGOs

149

Paul J. Nelson

8. The Challenge of Ensuring Food Security: Global Perspectives and Evidence from India

171

Shareen Hertel and Susan Randolph

9. Achieving Rights to Land, Water, and Health in Post-Apartheid South Africa

199

Heinz Klug

10. Social Accountability in the World Bank: How Does It Overlap with Human Rights?

219

Hans-Otto Sano

part four: measuring escr realization 11. Making the Principle of Progressive Realization Operational: The SERF Index, an Index for Monitoring State Fulfillment of Economic and Social Rights Obligations

239

Sakiko Fukuda-Parr, Terra Lawson-Remer, and Susan Randolph

12. Deepening Our Understanding of Rights Realization through Disaggregation and Mapping: Integrating Census Data and Participatory GIS Rimjhim Aggarwal and LaDawn Haglund

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13. Studying Courts in Context: The Role of Nonjudicial Institutional and Socio-Political Realities

ix

291

Siri Gloppen

Conclusion: Emerging Possibilities for Social Transformation

319

Robin Stryker and LaDawn Haglund

Index

355

list of figures

Figure 0.1 Figure 8.1 Figure 8.2 Figure 10.1 Figure 10.2 Figure 10.3 Figure 11.1 Figure 11.2 Figure 11.3 Figure 11.4 Figure A11.1 Figure A11.2 Figure 13.1a Figure 13.1b Figure 13.2 Figure 13.3

“Moments” of social transformation 4 FAO Food Price Index, 1990 to 2012 177 Recursive pathway to social transformation (right to food) 185 The evolution of social accountability 221 Long and short routes to accountability 225 Citizens and service providers: the human rights analysis 226 Accountability using the Social and Economic Rights Fulfillment (SERF) Index 240 How the SERF Index can promote social transformation 241 Achievement possibility frontier for child survival rate 248 Penalty for different scaled indicator values 251 SERF Index for core countries 263 SERF Index for high-income OECD countries 264 The anatomy of the litigation process 293 The anatomy of the litigation process: actors and factors 293 Litigants’ opportunity structure 294 The anatomy of the litigation process: international context 295

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list of maps

Map 12.1 Spatial distribution of access to piped water in São Paulo 271 Map 12.2 Spatial distribution of access to piped water in Delhi 272 Map 12.3 Spatial distribution of access to piped water and sanitation in São Paulo 274 Map 12.4 Spatial distribution of access to piped water and sanitation in Delhi 275 Map 12.5 Distribution of extreme poverty and access to water and sanitation in São Paulo 276 Map 12.6 Distribution of slum households and access to piped water in Delhi 278 Map 12.7 Population density and access to piped water and sanitation in São Paulo 279 Map 12.8 Population density and access to piped water in Delhi 280

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list of tables and b oxes

Table 1.1 Generalized Least Squares Model: IGO Membership, ICESCR Ratification, World Bank and IMF Program Lending, and Their Impact on Physical Quality of Life Index (PQLI), 1981–2007, All Developing Countries 41 Table 7.1 NGO Sectors and Their Core Characteristics 153 Table 7.2 International Economic, Social, and Cultural Rights (ESCR) NGOs 160 Table 8.1 Right to Food Determinants and Measures 175 Table 8.2 Number of Undernourished People (millions) 178 Table 8.3 Percentage Not-Poor Relative to Feasible Rate Given Best Practices 179 Table 8.4 Percentage with Access to Improved Water and Sanitation Relative to Feasible Rates Given Best Practices 180 Table 8.5 Percentage of Children Not Malnourished (Height for Age) Relative to Feasible Rate Given Best Practices 181 Table 8.6 SERF Right to Food Index by Indian State 182 Table A8.1 National Food Distribution Programs of India 197 Box 10.1 Explanations of Social Accountability Tools 223 Table 10.1 Characteristics of Social Accountability Tools 223 Table 10.2 The ARVIN Framework: A Way to Assess the Enabling Environment for Civic Engagement 228 Table 11.1 Economic and Social Rights Indicator Sets 247 Table A11.1 SERF Index Indicator Definitions 256

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List of Tables and Boxes

Table A11.2 Observations Defining Frontiers 260 Table A11.3 Frontier Equations, Peak Values, and Minimum Values 261 Table 13.1 Legal Mobilization for Transformation and Accountability: Processes of Change and Forms of Impact (Intermediary and Outcome Variables) 295

contribu tors

m. rodwan abouharb is a senior lecturer on international relations and director of the MSc International Public Policy Program in the Department of Political Science at University College London. His research examines domestic economic and political change, international economic integration, and how the types of international governance regimes affect the likelihood of civil war, repression, or the promotion of economic development. His book Structural Adjustment and Human Rights, co-authored with David Cingranelli and published by Cambridge University Press in 2007, examines the impact of World Bank and IMF structural adjustment agreements on government respect for a variety of human rights. It was named the Choice Outstanding Academic Title in 2009. He and Cingranelli also examine the impact of the World Bank and IMF programs on human rights (published in International Studies Quarterly and Review of International Organisations). Research coauthored with Susan Aaronson examines how the norms the WTO promotes may improve some democratic rights (published in International Studies Quarterly) and good governance (published in World Trade Review). With Laura Moyer and Megan Schmidt, they examine how greater levels of de facto judicial independence improve government respect for physical-integrity rights (published in Journal of Human Rights). rimjhim aggarwal is an associate professor and senior sustainability scientist at Arizona State University. A central focus of her research has been on examining the links between globalization, the resilience of social-ecological systems, and human well-being. In current research she is examining the emerging conflicts in the framing of water as a human right as well as an economic, ecological, and social good in rapidly urbanizing regions, with focus on Delhi, São Paulo, and Johannesburg. She is also currently engaged in research projects examining the impacts of globalization and climate change on agricultural and water governance, farm livelihoods, and food security in India, Nepal, Thailand, and Arizona. Her work has been published in Journal of Human Rights, World Development, International Journal of Urban and Regional Research, and Population and Environment, among xvii

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others. Dr. Aggarwal has also worked as a senior consultant for the United Nations University’s World Institute for Development Economics Research and the World Bank. In recognition of her efforts in “use-inspired research” and “community outreach,” Dr. Aggarwal received the Arizona State University President’s Award for Sustainability in 2010. She holds a PhD in economics from Cornell University. leonardo j. alvarado is an adjunct instructor at the University of Arizona College of Law and an independent legal consultant. He was previously a legal advisor to former United Nations Special Rapporteur on the Rights of Indigenous Peoples, professor James Anaya. He also previously worked as a human rights specialist and staff attorney at the Inter-American Commission on Human Rights of the Organization of American States. Previous publications include “Prospects and Challenges in the Implementation of Indigenous Peoples’ Human Rights under International Law: Lessons from the Case of Awas Tingni v. Nicaragua,” Arizona Journal of International and Comparative Law, Vol. 24, Number 3 (2007). sumudu atapattu is associate director of the Global Legal Studies Center at the University of Wisconsin Law School and lead counsel for human rights at the Center for International Sustainable Development Law, Canada. Her publications include Emerging Principles of International Environmental Law (2006), as well as numerous articles and chapters on human rights and sustainable development. daniel brinks is an associate professor of government in the fields of comparative politics and public law at the University of Texas at Austin. His research focuses on the role of the law and courts in supporting or extending human rights and many of the basic rights associated with democracy, with a primary regional interest in Latin America. He has published in journals such as Comparative Politics, Studies in Comparative International Development, Comparative Political Studies, Journal of Democracy en Español, and the Texas International Law Journal. His books Courting Social Justice: The Judicial Enforcement of Social and Economic Rights in the Developing World (co-edited with Varun Gauri) and The Judicial Response to Police Violence in Latin America: Inequality and the Rule of Law are both published by Cambridge University Press. david cingranelli is a professor of political science at Binghamton University, State University of New York. He is a former president of the Human Rights Section of the American Political Science Association. For the past ten years, he has served as co-director of the Cingranelli and Richards (CIRI) Human Rights Data Project. He conducts global comparative econometric research examining the causes and consequences of variation in government respect for various types of human rights. His most recent book, with Rodwan Abouharb, Human Rights and Structural Adjustment (Cambridge University Press), examined the human rights impacts of World Bank and IMF structural adjustment programs in less developed countries. His current book project, with Mikhail Filippov, Institutions, Incentives and Human Rights, examines how constitutional design and other factors can provide incentives to politicians to enact policies protecting human rights and to monitor the implementation of those policies. He is also conducting research on human trafficking and labor standards. william f. felice is associate dean of general education and a professor of political science at Eckerd College. He is the author of The Global New Deal: Economic and Social

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Human Rights in World Politics (second edition, 2010), How Do I Save My Honor? War, Moral Integrity and Principled Resignation (2009), Taking Suffering Seriously: The Importance of Collective Human Rights (1996), and numerous articles on the theory and practice of human rights. He has published articles in the Cambridge Review of International Affairs, Ethics and International Affairs, Human Rights Quarterly, International Affairs, Social Justice, and other journals. mikhail filippov is an associate professor in the Department of Political Science at Binghamton University, State University of New York. He holds a PhD in economics and political science from the California Institute of Technology. His work has appeared in Public Choice, Communist and Post-Communist Studies, Constitutional Political Economy, and other journals. His book Designing Federalism: A Theory of Self-Sustainable Federal Institutions, co-authored with Peter Ordeshook and Olga Shvetsova, was published by Cambridge University Press and received an honorable mention for the William H. Riker Prize of the Political Economy Section of the American Political Science Association in 2005. sakiko fukuda-parr is a professor of international affairs at the New School in New York. She is best known for her work as the director and lead author of the UNDP Human Development Reports of 1995–2004. Her current research focuses on economic and social rights and public policy, and on global goals and international political economy. She is vice chair of the UN Committee on Development Policy. Her recent publications include Human Rights and the Capabilities Approach: An Interdisciplinary Dialogue (co-edited with Diane Elson and Polly Vizard, Routledge, 2012); A Handbook on Human Development (with A. K. Shivakumar, third edition, Oxford University Press, 2010); and numerous articles on the Millennium Development Goals, human rights measurement, and economic and social rights. varun gauri is a senior economist in the Development Research Group of the World Bank, and co-director of the World Development Report 2015: Mind and Culture. His current research examines how legal institutions and conceptions of justice and human rights affect human welfare. He has published articles in leading journals on topics that include the enforcement of social and economic rights, the political economy of responses to HIV/ AIDS, the strategic choices of development NGOs, customary legal systems, and health care and education governance. He is the author of School Choice in Chile, co-editor of Courting Social Justice: The Judicial Enforcement of Social and Economics Rights in the Developing World, and co-author of the World Development Report 2007. siri gloppen is a professor of comparative politics at the University of Bergen, Norway, a senior researcher at the Chr. Michelsen Institute, and research coordinator at PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of Oslo). Recent publications include Courts and Power in Latin America and Africa (Palgrave, 2010) and Litigating Health Rights: Can Courts Bring More Justice to Health? (Harvard, 2011). ladawn haglund is an associate professor of justice and social inquiry and a fellow in human rights and sustainability at the Lincoln Center for Applied Ethics at Arizona State University. Her book Limiting Resources: Market-Led Reform and the Transformation of Public Goods was published by Pennsylvania State University Press in 2010. Her articles

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have been published in Latin American Perspectives, Journal of Human Rights, Water Policy, and European Journal of Sociology. Her most recent research, analyzing courts as mechanisms for adjudicating the human right to water and sustainability, has been supported by the National Science Foundation, the J. William Fulbright Foreign Scholarship Board, and the Brazilian Fulbright Commission. She holds a PhD in sociology from New York University. shareen hertel is an associate professor of political science at the University of Connecticut and holds a joint appointment with the university’s Human Rights Institute. She has served as a consultant to foundations, NGOs, and United Nations agencies in the United States, Latin America, and South Asia. She is the author of Unexpected Power: Conflict and Change among Transnational Activists (Cornell, 2006), the co-editor of Economic Rights: Conceptual, Measurement, and Policy Issues (Cambridge, 2007), and the co-editor of Human Rights in the United States: Beyond Exceptionalism (Cambridge, 2011), and has published numerous scholarly articles. She is also the editor of the Journal of Human Rights. heinz klug is a professor of law at the University of Wisconsin–Madison and an honorary senior research associate in the School of Law at the University of the Witwatersrand, Johannesburg, South Africa. Growing up in Durban, South Africa, he participated in the anti-apartheid struggle, spent eleven years in exile, and returned to South Africa in 1990 as a member of the ANC Land Commission and a researcher for the chair of the ANC Constitutional Committee. He published Constituting Democracy: Law, Globalism, and South Africa’s Political Reconstruction with Cambridge University Press in 2000. His most recent book, The Constitution of South Africa: A Contextual Analysis, was published by Hart Publishing in July 2010. terra lawson-remer is legal director and campaigns director at Avaaz and fellow in global economy and development at the Brookings Institution. She was previously assistant professor at The New School and fellow at the Council on Foreign Relations. She served as senior advisor for international affairs at the U.S. Department of the Treasury, and has held positions at Amnesty International, the United Nations University World Institute for Development Economics Research, the American Civil Liberties Union, and the Ethical Globalization Initiative, and she consulted for the World Bank and United Nations. Dr. Lawson-Remer previously worked as an organizer and strategist for a variety of grassroots organizations, including Students Transforming and Resisting Corporations and the Ruckus Society. Dr. Lawson-Remer’s research addresses the institutional determinants and political-economic effects of opportunity and exclusion in the global economy. paul nelson is an associate professor in the Graduate School of Public and International Affairs, University of Pittsburgh, where he directs the Master of International Development program. He teaches and conducts research on international development policy, human rights, NGOs, and religion and development. He is the author, with Ellen Dorsey, of New Rights Advocacy (Georgetown University Press, 2008). doris marie provine is a professor emerita in the School of Social Transformation at Arizona State University. Her current research centers on immigration outside the law and the response of local communities and local law enforcement agencies to this phenomenon. Much of this work has been supported by two grants from the National Science Foundation, with a variety of publications emerging from this research.

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susan randolph is an associate professor in the Department of Economics and the Department of Agricultural and Resource Economics at the University of Connecticut and co-director of the Economic and Social Rights Initiative. She has served as a short-term consultant to the Office of the High Commissioner for Human Rights, the World Bank, and the U.S. Agency for International Development. Prior to coming to the University of Connecticut, she worked for four years as head of the program development division of Turkiye Kalkinma Vakfi, a grass-roots development organization that enables poor, landless households to establish viable, self-sustaining economic enterprises. Dr. Randolph’s research has focused on a broad range of issues in development economics, including poverty, inequality, food security, and economic and social rights, and has been published in numerous refereed multidisciplinary and economic journals. She holds a doctorate in economics from Cornell University. hans-otto sano is a senior research fellow at the Danish Institute for Human Rights. He worked as a senior program officer at the World Bank until September 2013. His work comprises subjects like human rights indicators, human rights–based approaches, governance, and livelihoods. He is presently involved in a larger research project on human rights and extreme poverty. robin stryker is a professor of sociology, affiliated professor of government and public policy, affiliated professor of law, and the director of research of the National Institute for Civil Discourse, at the University of Arizona. Her work focuses on rights, law, politics, inequality, and social change, and on the nature, causes, and consequences of political incivility. She has written extensively on sociological theory and methods and on a variety of substantive topics, including organizations and institutional change; law’s legitimacy; globalization and the welfare state; cross-national family policy and gendered labor markets; law, science, and public policy; the political economy and culture of labor, antitrust, and employment regulation; affirmative action and pay equity; the National Labor Relations Board; the Equal Employment Opportunity Commission; and U.S. political culture and welfare reform. Supported by National Science Foundation grants (2005–09; 2010–12) and a John Simon Guggenheim Foundation Fellowship (2008–09), she is completing a book on the role of economic, sociological, psychological, and statistical expertise in equal employment opportunity law and politics, 1965 to the present. She also is undertaking comparative research on strategic litigation and the politics and judicial doctrine of nondiscrimination law in the United States and France.

pre fac e

The editors of this volume have long sought to understand the causes and consequences of injustice, especially for poor, marginalized, or otherwise vulnerable populations. LaDawn Haglund’s focus on essential goods and services in developing countries and Robin Stryker’s emphasis on antidiscrimination legislation in the United States have relied on distinct empirical foundations, yet both are centrally concerned with analyzing the ways our social institutions have failed the “have-nots” and with specifying and evaluating possible remedies. LaDawn’s attraction to human rights as a promising avenue for social transformation evolved through conversations with Rimjhim Aggarwal, an economist and sustainable-development scholar at Arizona State University (and co-author with LaDawn of chapter 12, this volume). Both noted the disappointing results of previous development efforts, and the accelerated turn to human rights by the development community as a possible solution. They also observed, however, that few systematic examinations existed regarding the analytic and practical advantages of human rights framings for developmental ends, or of the complex means by which human rights promote (or do not promote) economic and social justice. LaDawn and Rimjhim were able to cultivate, vet, and specify these ideas further through a series of research clusters in 2007–2010, sponsored by Arizona State University’s Institute for Humanities Research: first, Gender and Sustainable Development (under the direction of María Luz Cruz-Torres and Angelita Reyes), and then, Interdisciplinary Perspectives on Human Rights and Social Justice (cofacilitated by LaDawn, Stephen Batalden, Margaret Walker, and Roxanne Doty). LaDawn is grateful to these facilitators and cluster participants, as well as to Anu Kulkarni for her intellectual contributions and to the Institute for Humanities xxiii

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Research for providing opportunities for faculty and graduate students from disparate units and disciplines to tackle problems thematically. As the human rights research cluster proposal stated, “It is difficult to imagine that the challenges presented by the field of human rights, broadly construed, and the pursuit of an equitable and dignified global existence could be achieved if scholars remain in their disciplinary enclaves.” In early 2010, LaDawn participated in two interdisciplinary workshops that helped to crystallize further some key questions about the realization of economic and social rights. The first, International Law Compliance and Human Rights Indicators, sponsored by the Center for Law and Global Affairs of the Sandra Day O’Connor College of Law at Arizona State University, and hosted by Laura Dickinson and Paul Berman, drew specific attention to the role of indicators in compliance, accountability, effectiveness, and, in the words of participant Sally Merry Engle, “creating the reality” of human rights. At this workshop LaDawn was also fortunate to meet Hans-Otto Sano, who subsequently agreed to contribute a chapter on social accountability to this volume. The second workshop, Normative Implications of Recent Empirical Research on Human Rights, was sponsored primarily by the Rogers Program in Law and Society of the James E. Rogers College of Law, University of Arizona, and organized by Kathie Barnes and Tom Christiano. Robin Stryker and Tom Christiano secured a small grant from the American Bar Foundation to further support this workshop. The workshop reinforced the idea that, though there is well-developed scholarship on identifying and measuring state compliance with political and civil rights, strategies for ensuring economic and social rights realization were still in their infancy. This conference afforded Robin and LaDawn, who both attended, an opportunity to deepen conversations regarding their shared scholarly interests. Robin’s 2007 article in the Annual Review of Law and Social Science on law, inequality, and social change in capitalist democracies had provided partial inspiration for LaDawn and Rimjhim’s 2011 paper, published in the Journal of Human Rights, analyzing the application of human rights language to the economic and social conditions of the world’s poor. Utilizing a framework called MAPs (mechanisms, actors, and pathways), the latter article compared several models for assessing the impact that economic and social rights—in law and practice—seemed to have on compliance and implementation. At the same time, Robin recognized that she was learning much from the extensive scholarship on global human rights that she had recently begun to tap. Having always worked on political, civil, and social rights in the United States and Europe, she wanted to learn more about all types of rights, both “on the books” and “in action,” in Asia, Africa, and Latin America. As someone who studied U.S. antidiscrimination law “in action,” she saw numerous parallels between her work and that of scholars studying economic and social rights in, say, India or South Africa.

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To Robin, it seemed a wasted opportunity for potential bridge building, clarification, specification, and generalization to keep each specific research niche tightly cordoned off from the others and to overlook potential cross-fertilization. From 2008 to 2010, Robin had been a member of the review panel for the Law and Social Science Program of the National Science Foundation (NSF), where she had noticed a large number of proposals pertaining to the topic of rights. Relevant research projects were being proposed by scholars of law and anthropology, law and economics, law and sociology, law and political science, and law and history. But all the proposals tended to be rooted in literatures that were discipline specific, rights specific, and/or geographically specific. Robin began to share some thoughts about the potential for various interdisciplinary and geographical cross-fertilizations with Wendy Martinek, who was then director of the Law and Social Science Program of the NSF; she encouraged Robin to consider submitting a workshop proposal. Robin and LaDawn subsequently applied for and received a grant from the NSF to develop a two-conference series exploring, first, theoretical and empirical approaches to the study of economic, social, and cultural rights (ESCR), with civil and political rights (CPR) scholars as commentators; and second, exploring the study of CPR, with ESCR scholars and commentators. From the beginning, the intent was to build up to, and on, these conferences in a sustained way to produce a volume that could testify strongly to the gains to be had from conceptual and empirical integration and synthesis. As the editors began to work toward the first conference, it also became increasingly clear that there were important parallels between the developing MAPs framework—as it was then being articulated by LaDawn and Rimjhim in the above-mentioned Journal of Human Rights article and further refined in the classroom—and the framework of mechanisms that Robin had elaborated in the review article mentioned above on law, inequality, and social change. The revised and clarified MAPs framework as it appears in this volume emerged from this synthesis. The editors would like to emphasize that putting the volume together was highly labor-intensive and iterative, and could never have happened without guidance and enthusiastic, sustained collaboration from all of the contributing authors, from those scholars and practitioners who participated in the 2011 conference as commentators, and from those who participated in the 2012 follow-up conference. These scholars—both junior and senior—invited us into their own networks, including those that bridged research and advocacy, and helped us grope slowly toward a common language and framework that on the one hand could push empirical cross-fertilization, and on the other hand would itself be further specified and enhanced by such fertilization. As editors, we owe a debt of gratitude to all of our collaborators, and we want to express to all of them our deep appreciation and respect. We have been fortunate to develop a profound sense of having coalesced into a new and encompassing

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research community. We understand how much they gave of their talents, time, and energy to this long-term collaborative project, in order to bring it to fruition in what we have endeavored to make a coherent volume. We hope we are providing a volume that not only charts our own synthetic progress in ways that others find useful but also provides a measure of inspiration and an open invitation to other scholars and practitioners as we go forward in doing what each of us can to inch toward more adequate rights provision and social justice. The concluding chapter to the volume provides a fuller statement of what is unique about the volume and the “value-added” it provides. To preview, we emphasize here just how much we think we have gained by engaging in dialogue scholars from different disciplines who work on different kinds of rights, in very different geographic, political, economic, social, cultural, and legal contexts. We think that the MAPs-guided comparative analysis of rights-translation pathways specifies well the larger socio-political and economic context within which the litigation and court enforcement mechanisms that have previously been theorized and researched reside. This means we can specify combinations of mechanisms, legal and nonlegal, that work to reinforce or to undermine the efficacy of judicialization of both ESCR and CPR. Because the MAPs framework explicitly moves beyond judicial mechanisms to consider whether and how any concrete pathway involves a variety of non-judicial actors and mechanisms in addition to or instead of judicialization, we are able to raise the key question of alternative mechanisms and pathways. This question is of enormous practical importance to rights holders, duty bearers, and rights advocates because, depending on context, some routes to rights realization are likely to be more feasible than others, and the legal route may not be viable. Our emphasis on constraints and limits, as well as opportunities, for progressive social transformation makes this volume ideally suited to inform practitioners as they make strategic choices—and confront trade-offs—in mobilizing one or another set of actors and mechanisms within a concrete pathway. This volume develops the MAPs framework explicitly to apply to both CPR and to ESCR, encouraging empirical integration and theoretical synthesis across the two domains. The volume also systematically considers a variety of interconnections among CPR on the one hand and ESCR on the other. Without the assurance of personal-integrity rights or of such key CPR as freedom of expression, freedom of association, and voting rights, ESCR activists will not be able to combine legal mechanisms with the political, informational, symbolic, and cooperative mechanisms that can make mobilizing law more effective. Without freedom from discrimination in the enjoyment of social and economic rights—whether discrimination is based on race or ethnicity, gender, age, disability, religion, sexuality, union membership, nationality, or something else—CPR achievement will be thwarted, empty, or inadequate.

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The editors and authors can now provide a better sense of what is specific and particular to given contexts and rights as they also work toward the kind of limited, empirically based conditional generalizations that are warranted as a “state of the art” synthesis resulting from the institutional and discursive intersections they have promoted. The forty limited generalizations offered in the concluding chapter are intended to summarize how the editors read the current state of knowledge and also to push toward further discovery in this newly emergent cross-disciplinary, cross-regional, cross-rights discursive field. The final chapter, in venturing out on a limb of predictions, surely includes propositions that will turn out to be wrong. But hopefully, when they are wrong, they will be wrong in the kind of informed and useful ways that promote further cumulative and collaborative learning. The editors are also aware that one set of conferences and a collaborative volume do not fully institutionalize the new networks required to sustain this interconnected broader field of collective inquiry. We provide this volume as a first step, and as an invitation to others to join in building more sustained, collaborative, and cumulative research efforts. The editors also hope that their associates will continue to build on the researcher–practitioner networks initiated through the NSF conferences. Just as we hope to see more MAPs-oriented comparative pathway research, we also hope that practitioners will be able to use the multiple mechanisms and pathways laid out herein to improve accountability, as well as to promote positive ESCR and CPR outcomes in their on-the-ground struggles. The editors would like to underline one final contribution of this volume. As scholars and teachers of law and society, we are well attuned to foundational debates about the nature and role of law in the economy, polity, culture, and society. For the editors, law is not completely homologous with “prior” economic or social structure; nor, however (despite the tenets of liberal legalism), can it ever be completely autonomous from its economic and social context. This betwixt-andbetween state—and the fact that, as one of the editors puts it in her undergraduate classes, there is a “two-way street” between law and society—means that the jurisprudence of law in action does matter for the transformative impact of law on society. A contribution of this volume is to suggest how and why some types of doctrine are more likely than others to be positively associated with more egalitarian and socially just outcomes. On the other hand, progressive social transformation cannot be promoted by putting our hopes in legal doctrine or legal institutions alone. That is why the interdisciplinary combination of law with sociology, anthropology, economics, psychology, history, and political science has been so important. And that is the point of highlighting—as the MAPs framework and this volume as a whole do— how legal mechanisms can provide alternatives to and/or combine with all the other actors, strategies, processes, and institutions that social scientists study to

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transform the social world in its interrelated material, power-relational, and ideational components. The editors are very grateful to the NSF’s Law and Social Science Program for the workshop support grant that we received (SES No. 105134, October 2010– August 2013). We also are grateful to Kathie Barnes and the University of Arizona’s interdisciplinary Rogers Program in Law and Society for additional support resources for the two workshops, which took place in April 2011 and November 2012. Substantially revised papers that were presented at the April 2011 workshop make up the bulk of empirical chapters in this volume. Those who presented papers in 2011 included Rimjhim Aggarwal, Leonardo Alvarado, Sumudu Atapattu, David Cingranelli (via Skype), William F. Felice, Varun Gauri, LaDawn Haglund, Shareen Hertel, Heinz Klug, Paul J. Nelson, Marie Provine, Susan Randolph, Hans-Otto Sano (via Skype), and Rebecca Tsosie. Discussants included Kathie Barnes, William Bielby, Suzanne Dovi, Gary Geortz, Faten Ghosn, Barry Goldstein, John Hagan, Lane Kenworthy, Louise Roth, Daniel Rothenberg, John Sutton, and Marjorie Zatz. We are grateful to you all for your intellectual engagement with our project! The editors owe a special debt of gratitude to Kate Gunby, who was the NSFsupported graduate assistant for both the 2011 and 2012 conferences. With Kate’s help, all the logistics went like clockwork. Other University of Arizona graduate students who volunteered to help out with logistics during the conferences themselves—and who, along with Kate, were participants in the 2011 conference— include Jenny Miller, Heidi Reynolds-Stenson, and J. Taylor Danielson. The editors also would like to thank the Rogers College of Law, former University of Arizona provost Meredith Hay, former Rogers College of Law deans Toni Massaro and Laurence Ponoroff, School of Sociology director Albert Bergesen, and John Paul Jones III, dean of the University of Arizona College of Social and Behavioral Sciences, for their enthusiastic intellectual support of the 2011 and 2012 conferences. And we thank the Rogers College of Law and its superb administrative staff, including especially the incomparable Nancy Stanley, for providing the venue and physical and technical resources for the conference. Robin would also like to acknowledge the University of Arizona College of Social and Behavioral Sciences Research Professorship that, in 2011–12, allowed her to devote substantial time to her research and writing and to the preparation of the NSF-funded conferences that helped us complete this volume. In addition to the colleagues discussed above, LaDawn would like to acknowledge her special debt to Rimjhim Aggarwal for helping her to navigate the rocky shoals of interdisciplinarity. She would also like to thank her home department, Justice and Social Inquiry, and in particular former faculty head Marjorie Zatz, for her untiring support of and enthusiasm for her junior colleagues’ professional development. LaDawn would also like to acknowledge the support of Mary Mar-

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garet Fonow and the staff of the School of Social Transformation for providing the support that was so necessary for us to carry this project through to completion. Beyond this, the editors would like to acknowledge that writing a book requires the good will and support of family and friends. In this regard, Robin would especially like to thank Scott Eliason, Sheldon Stryker, and Jane Zavisca for their encouragement and support. LaDawn would especially like to thank Cameron Thomas for providing a delightful place to rest at the end of a long day. LaDawn Haglund April 24, 2014 Phoenix, Arizona Robin Stryker April 24, 2014 Tucson, Arizona REFERENCES Haglund, LaDawn, and Rimjhim Aggarwal. 2011. “Test of Our Progress: The Translation of Economic and Social Rights Norms into Practices.” Journal of Human Rights 10:1–27. Stryker, Robin. 2007. “Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies.” Annual Review of Law and Social Science 3:69–97.

Introduction Making Sense of the Multiple and Complex Pathways by which Human Rights Are Realized LaDawn Haglund and Robin Stryker Some 1,600 families [were] made homeless by a forced eviction in a settlement in São Paulo state, Brazil [on January 22, 2012]. Police descended on the area without warning at 6am on Sunday in riot gear, backed up by armoured cars and helicopters and using tear gas and rubber bullets. The authorities cut electricity, gas and telephone lines and cordoned off the area, restricting access to homes. . . . A number of residents have gone to stay with relatives, while others—around 350 families—have been housed in a gymnasium with inadequate sanitation. Some have been allowed back into the evicted area to collect belongings before houses are demolished. The Pinheirinho settlement was formed in 2004, when groups of homeless people occupied abandoned land belonging to a bankrupt investment firm. Churches, football pitches, libraries and shops have sprung up in the area and local residents have been trying to legalize the situation through a state government programme called Cidade Legal, but without success. The residents association are [sic] now appealing to the Superior Federal Court (STF) for the eviction order to be overturned. . . . Despite considerable investment by the federal government, Brazil struggles with a huge housing deficit and millions of people across the country live in irregular settlements. Under international law, including the International Covenant on Economic, Social and Cultural rights (ICESCR), Brazil is prohibited from carrying out forced evictions, and must protect people from [them]. —amnesty international (2012)

The U.S. has recognized the human right to housing in the Universal Declaration of Human Rights as well as a number of other international covenants and declarations. The U.S. has received findings and recommendations on its failure to uphold the right to housing from numerous UN human rights monitors over the past four years, including a comprehensive report from the Special Rapporteur on the Right to Adequate Housing in 2010. Although the U.S. has developed some laws and policies which assist with housing, housing is 1

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Introduction viewed primarily as a commodity, and there is no entitlement to any housing assistance or even to basic shelter. Many homeless children are removed from their families into foster care when providing housing could have saved the whole family. Thousands of federal, state, and local government-owned properties remain vacant even as families are forced onto the streets. . . . In no U.S. jurisdiction can a person working full time at the federal minimum wage afford a one-bedroom apartment, according to federal guidelines. Yet there are no binding requirements on jurisdictions to plan for and create incentives for the production of sufficient adequate, affordable housing for low-income persons and families, or to require employers to raise wages to a level sufficient to pay for housing. Despite the growing number of homeless families and the lack of affordable housing, the federal budget for developing and maintaining public housing and providing for low-income housing subsidies has decreased. Laws requiring the participation of public housing tenants in decisions affecting them have been under-implemented. Governments participate in the forced evictions of homeowners and renters, often using safety concerns as a guise for quickly and brutally evicting families from their homes. —us human rights network (2010)

These cases illustrate just two of the multiple fronts on which contentious questions of economic, social, and cultural rights (ESCR) are being disputed. In recent years, the increasing adoption of human rights discourses and their embodiment in international and national law to address seemingly intractable problems of poverty and deprivation have sparked new hopes for social transformation. But uncertainty remains. Can the reframing of economic, social, and cultural marginalization as human rights deficits—and the often corresponding adoption of ESCR norms into national and international law—bring about social transformation “on the ground”? And if so, what kind of transformation? How, and under what conditions? Can ESCR succeed in altering global, national, and local resource distributions so that all people can enjoy access to at least the basic requirements for human well-being, autonomy, and empowerment? This volume contributes to current discussions among scholars, policy makers, human rights advocates, and skeptics about how effective ESCR have been, or can be, in improving the lives of marginalized populations. Though ESCR have been criticized from multiple, sometimes contradictory vantage points (Kirkpatrick 1981; Anghie 2004; Neier 2006), this has not dampened enthusiasm for—or progress in—their promotion. Interest in the transformative potential of ESCR is strong among academics (Hertel and Minkler 2007; Young 2009; Haglund and Aggarwal 2011; Gauri and Gloppen 2012), lawyers and judges (Gauri and Brinks

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2010a; Yamin and Gloppen 2011), NGOs (Nelson and Dorsey 2003; Roth 2004; Chong 2010; Khan 2009), social workers (Reichert 2001), and even indigenous groups (Anaya 2004, 2009; Xanthaki 2007). We seek to contribute to this literature, taking as our point of departure the assumption that ESCR realization in practice confronts numerous barriers that are very difficult to surmount (Stryker 2007; Gauri and Brinks 2010a; Haglund and Aggarwal 2011; Yamin and Gloppen 2011). We also presume that there is no magic bullet—no single path—that takes us from ESCR discourses or legal norms to their full realization (Haglund and Aggarwal 2011). The reports on housing rights reproduced above highlight two interesting questions regarding rights realization. First, are violations of ESCR, and the steps needed to ameliorate them, incomparable in very different settings, or is there something to be gained from analyzing ESCR comparatively in multiple contexts? Second, what role do civil and political rights (CPR) play in efforts to realize ESCR? What analogous and complementary processes might be at work in these often separated areas of human rights? We believe that, indeed, there is much to be gained from comparative analysis, both across countries and across areas of human rights. In the sections that follow, we outline our approach to this crossfertilization. G L O BA L R IG H T S R E A L I Z AT IO N : M A P P I N G T H E TERRAIN

Despite the affirmation of the inherent dignity and inalienable rights of all humans in the UN’s 1948 Universal Declaration of Human Rights, rights realization— political, civil, economic, social, and cultural—has proven over the last six decades to be fraught and fragile. Though a great deal of progress has unquestionably been made, the full achievement of basic human rights is far from a reality in today’s world. From extrajudicial killings, torture, disappearances, systemic rape, and police brutality to a chronic lack of access to very basic needs like water, food, housing, and health care, the evidence of our failures as a global community are apparent. This cannot be simply attributed to a lack of legal recognition of these norms; in fact, there is almost universal agreement, at least rhetorically, with the principles embodied in the 1948 declaration and its main follow-up conventions. What, then, explains progress, or lack of progress, on these widely accepted norms? We understand progress in human rights as a process whereby norms are iteratively adopted and embodied in new forms that, under certain conditions, lead to social transformation. We suggest three “analytic moments” that work together in dynamic dialogue to shape the beliefs and behaviors of actors implicated in this gradual process of institutionalization and enactment (see also Hedström and Swedberg 1998; Haglund and Aggarwal 2011). The first moment is one in which

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figure 0.1 “Moments” of social transformation. Note: this is an iterative rather than a stage-based model, with continual feedback among the various mechanisms and processes.

factors such as cultural beliefs, memory, social structures, and information shape actors’ perceptions and desires regarding new normative frames. The second analytic moment involves the translation of beliefs and desires into action. In the third moment, actions and interactions coalesce to generate broader social change reflecting the new normative principles. At each of these moments, a variety of contextual factors, mechanisms, and strategies utilized by actors pursuing change (for better or worse) influence the speed, direction, and type of social transformation. Concrete pathways for rights realization involve all three moments in contingent and iterative interaction, rather than in any predetermined sequence (see figure 0.1). A simple example, consumer recycling, can illustrate the utility of this heuristic tool for focusing our attention on “moments” of change. Before the 1970s, recycling as we know it today in Europe and the United States was nothing more than a noble but idealistic vision held by a handful of environmentalists. Even if they knew about recycling, few people believed that it was something they, personally, should do. Gradually—as a result of consciousness-raising through events such as Earth Day and the development of a recognizable Möbius-style recycling symbol—greater numbers of people began to think about recycling, and to consider it something they could (and maybe should) do. However, belief did not always lead to action, as recycling was still expensive, and mechanisms like curbside pickup and legal penalties did not yet exist. Where these supporting mechanisms were implemented and when it became more economically feasible, recycling took off. Today, we hardly remember the time when otherwise conscientious people

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tossed soda cans and recyclable waste out of car windows without a second thought. The over-simplicity of this example should not detract from the framework’s usefulness as a starting-point for understanding more complex phenomena, such as the struggle to realize human rights. The framework directs our attention to several key questions regarding social transformation. How is it that individuals and institutions come to accept a new set of norms or principles? When and why do they begin to act in ways that support these principles? How and when do these changing beliefs and actions cumulate to meaningful social change in which the norms are largely actualized? How does this vary by institutional, spatial, or temporal context? Implicit in this model are mechanisms and strategies used by various actors to effect or prevent change, as well as contingent spatial and temporal factors, all of which affect outcomes. In order to make these elements of social transformation explicit, this volume further develops the “MAPs framework” proposed by Haglund and Aggarwal (2011). The framework gets its abbreviation from its three constitutive elements—mechanisms, actors and pathways—using these to characterize and compare models and empirical cases of rights construction and translation. Mechanisms comprise meso-level processes and their constitutive elements that can produce (or prevent) social transformation. They are “the cogs and wheels of the causal process” that may be generalized across empirical cases (Hedström and Ylikoski 2010, 50). While mechanisms are not restricted to fully institutionalized patterns of action, they do often involve institutions—formal or informal rules and routines of action—and the organizations that embody them. Actors work through institutions and also use institutions strategically in ways that both enable and constrain their capacity to reach their goals (Haglund and Aggarwal 2011). The MAPs framework thus incorporates into its concept of mechanisms both strategies of action and the institutions that serve as resources to undertake them. Actors—individuals, groups, and organizations such as the United Nations or World Bank that are implicated in processes of rights realization (or violation)— are the second key element of the MAPs framework. Actors may attempt to influence the beliefs or actions of others, or alter the context surrounding rights realization. The identification of specific actors underscores the importance of agency, social position, and power relations in analyzing dynamics of accountability and social change. The third element—pathways—concretizes and specifies rightstranslation processes by spatially and temporally locating the relevant actors and mechanisms in distinct contexts, outlining the particularities of opportunity and constraint presented by those contexts. The full analysis of pathways, including critical accountability relationships (or lack thereof) that facilitate (or hinder) rights realization, will be covered in more depth through comparative analysis of

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this volume’s empirical cases. It is this pathway analysis that demonstrates the added value of this framework: it draws attention to general types of mechanisms that might be brought to bear on rights-translation problems across cases while allowing for a precise analysis of how the location, character, and timing of interventions affect outcomes in particular cases. As we identify mechanisms present or absent in different cases and at distinct moments of rights translation, we begin to see regularities and patterns that operate more generally, allowing conclusions to be drawn about common patterns, without, however, making universalistic claims. In this way, we can craft limited and conditional explanations for how, when, and what type of social transformation may occur as a function of human rights norms. Common mechanisms mentioned in the ESCR literature, the parallel CPR literature, or both correspond to a finite number of identifiable categories: informational, symbolic, power-based, legal, and cooperative mechanisms.1 Informational approaches are geared toward providing facts and data to strengthen arguments for change, while symbolic approaches use discursive framing and symbolism to inspire people to support a particular position. Power-based approaches involve mobilizing strong actors to pressure others to respect, protect, or fulfill human rights. This is distinct from legal approaches, which specifically utilize courts and law to uphold legal commitments to human rights. Finally, cooperative approaches rely on mechanisms such as dialogue, participatory spaces, and collaborative reviews to reach agreement regarding how to achieve rights. It should be noted that most of these mechanisms can also be used to prevent transformative change. E M P L OY I N G M A P S O N T H E R O C K Y R OA D T O R E A L I Z AT IO N

Existing empirical literatures on human rights, law and society, and development, as well as the cases in this volume, shed a great deal of light on processes of social transformation when analyzed according to the MAPs framework outlined above. They document how various actors choose to mobilize a range of mechanisms, alone or in combination, to shape the perceptions and beliefs of others; encourage, compel, or force new behaviors; mold contexts to be more facilitative to rights and justice; and broaden the impact of their interventions. This analysis also draws our attention to mechanisms that are not used in particular cases, as well as to missing or dysfunctional pathways of accountability between rights advocates or claimants and rights targets (those who are obligated to ensure that rights are respected, protected, or fulfilled). To illuminate these processes at various “moments” on the road to rights fulfillment, as well as to begin to pinpoint how context matters, we now take a closer look at the empirical evidence. We begin with a very brief overview of four models

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for bringing human rights norms to fruition evaluated by Haglund and Aggarwal, and then analyze them in the context of the broader literatures mentioned above in terms of shared characteristics, divergences, and key lessons for social transformation. This is not meant to be a comprehensive review but an initial inquiry into the kinds of mechanisms different approaches highlight as important for rights realization. One of these, the spiral model (Risse, Ropp, and Sikkink 1999; Sikkink 2011), was developed to understand and explain adoption and implementation of human-integrity rights (rights to be free in one’s person of torture, extrajudicial killing, political imprisonment, or disappearance). Three more—policy legalization and court enforcement (Gauri and Brinks 2010b), mobilization of the Millennium Development Goals (see e.g. Nelson and Dorsey 2003; Dorsey et al. 2010), and the Social Guarantees Model (World Bank 2007)—were developed for economic and social rights (ESR) in particular.2 Four Models for Economic and Social Rights Realization The multistage spiral model (Risse et al. 1999; Sikkink 2011) demonstrates how human rights activists, both domestic and transnational, strategically raise global awareness of human rights violations, then use that heightened awareness to mobilize public opinion and create political pressure to change the behavior of violating governments. These pressures may not immediately elicit conformity from repressive states, and states may adopt their own push-back strategies to quiet critics, but they are soon forced into dialogue with opponents. Over time, targeted states became “trapped by their own engagement, as they make small concessions that implicitly legitimate the rhetoric of human rights and empower actors making human rights claims” (Haglund and Aggarwal 2011, 505). Risse et al. argue that it is not simply ratification of rights treaties that leads to greater protection of human-integrity rights; it is awareness and engagement by transnational networks and the iterative use of multiple strategies that drive the gradual incorporation of human rights norms into state practices and structures. When institutions themselves begin to reflect the new logics as “taken for granted,” independent of the beliefs of any individual within those institutions, social transformation can be said to occur. Gauri and Brinks’s (2010b) policy legalization model examines the role of law and courts in ensuring the accountability of those charged with designing, implementing, and regulating rights-responsive social policy.3 They underscore the importance of perceptions (of litigants, judges, and government bureaucrats alike), support structures, and legal strategies for explaining the extent to which courts are utilized to ensure ESR compliance (Gauri and Brinks 2010c). In terms of perception, there must be at least minimal awareness of rights as legitimate claims on the state. Claimants must also believe that litigation is worthwhile; they are more likely to do so if there is evidence that courts are receptive and will ultimately

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follow through. Judges are more likely to be receptive when they believe that courts are legitimate sites for social policy adjudication and that their judgments will be respected. Belief alone is not usually enough to facilitate action, however. Litigation is found to be more likely in the presence of a well-coordinated and organized civil society and/or state support for litigation, as well as preexisting policy structures for addressing social rights. When ESR are implemented through existing policy frameworks in which expectations are embedded, litigation targets are also less resistant to compliance. Dialogue and negotiation among all relevant parties seem to produce more compliance as well, and thus more real social and economic impact. Finally, the evidence in the Gauri and Brinks (2010a) volume indicates that the indirect effects of collective or “diffuse” cases often have a far more transformative effect for the poor than direct effects for individual claimants, in part because they seek to remedy shortcomings in public policy. The UN’s Millennium Development Goals (MDGs) present a rather different approach to securing ESR for the world’s poor. Though they are not explicitly about human rights, “the wide-ranging commitments made by world leaders in the September 2000 Millennium Declaration had strong human rights underpinnings” (Haglund and Aggarwal 2011, 510). Mobilizing the MDGs as rights rather than merely development goals became viable because it was prefaced by a more general rightsbased reframing of development itself, by rights consciousness-raising, and by efforts to create rights-sensitive, participatory programs that could ensure greater levels of donor, development agency, and NGO buy-in and accountability to local inhabitants (Nelson and Dorsey 2003; OHCHR 2008).4 These cognitive and practical framings were accompanied by country-specific measuring rods and timetables for progress on quality-of-life indicators, which have guided the actions of rich-country donors and poor-country aid recipients alike. When seriously engaged by countries, these activities “have been instrumental in initiating policy reforms, institutional change, and reallocation of resources” (Haglund and Aggarwal 2011, 510). Though there are serious questions about how much direct accountability the MDGs create for the world’s poor, they nevertheless underscore important channels of responsibility, especially for financing, that are missing in many other development approaches. Clear goals and accountability, albeit of different types, are also elements of the social guarantees model. But in contrast to the MDGs, social guarantees explicitly link development and human rights at the national and local levels, focusing on dramatic inequalities in access to water, housing, employment, education, and health. The model emphasizes the importance of consensus-based participatory processes that include development organizations, NGOs, rights advocates, and civil society groups in the creation of rights-related aspirations and policies.5 It obliges states to help in this process of defining rights, entitlements, and standards clearly and to communicate them widely. States also must commit to universal and equitable delivery, and provide mechanisms of redress. Obligations are democrati-

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cally operationalized as mechanisms designed to achieve them, while the movement from setting norms to realizing rights is seen as a process mediated by these mechanisms (rather than simply an outcome). The difference between a right and a guarantee, then, is that a right “has an abstract and ethical content,” while a guarantee “complements this abstract content with specific mechanisms that governments can put into place to realize a right” (World Bank 2007, 6–7). Mechanisms, Actors, and Pathways in ESCR and CPR Scholarship This brief overview suggests that it is possible to identify multiple mechanisms— with analogous counterparts in other fields of scholarship—that may contribute to the transformation of global human rights norms into practice, and in some cases into social transformation. Taken as a whole, the cases above and in the volume as a whole illuminate the realization of not only ESCR, but also CPR. With respect to shaping actors’ beliefs and constraining or enabling norm adoption, both contextual and strategic factors play important roles. In the policy legalization model, the receptivity of judges to rights claims, the beliefs of litigants about their likelihood of legal victory, and the beliefs of litigation targets about the viability of courtordered solutions are important determinants of levels of court involvement in public policy. These beliefs in turn are shaped by preexisting historical, ideological, and societal orientation toward ESR, rights-related public policies, and state capacity (Gauri and Brinks, 2010c). The prevalence of rights discourses may influence judicial action, but their absence need not prevent rights-entrepreneurial courts from entertaining claims and providing remedies if they believe they are justified (see also Epp 1998). Similarly, Pedriana and Stryker (2012) find in the U.S. context that preexisting institutions and capacities, as well as political pressure and entrepreneurship, influence judicial receptivity to substantive orientations to human rights (“group-centered effects,” in their terminology). The context within which people come to accept the legitimacy and feasibility of human rights claims is not static. It is itself shaped strategically, as our examples demonstrate. The MDGs, for example, create new opportunities for rights claims by mobilizing the commitment and resources of rich countries and thereby alleviating some of the resource constraints that have stymied poor-country governments in their attempts to meet development objectives. The mobilization of the MDGs in the service of human rights itself was made possible by a reframing of “needs” as “rights” in earlier struggles by dedicated development NGOs and organizations (Nelson and Dorsey 2003). The social guarantees approach is just the latest effort to foster awareness and social consensus by framing public policy as a human rights issue. Studies in the anthropology of human rights (Goodale and Merry 2007), social movements (Pedriana and Stryker 2004; Keck and Sikkink 1998; Amenta et al. 2010), law and organizations (Edelman 1992; Pedriana and Stryker 1997; Dobbin 2009; Edelman et al. 2011), and sociology (Somers and

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Roberts 2008; Haglund 2010) identify similar mechanisms of norm adoption, including political, cultural, and legal framing and reframing, institutional diffusion across states and organizations, and the cultural translation required to adapt rights norms to different times and places. Dialogue, persuasion, and moral consciousness-raising are also key elements in facilitating the adoption of human rights by both states and social movements, as shown in the spiral model. Consistent with key elements of this model, HafnerBurton and Tsutsui (2005) find that the ratification of more international human rights treaties alone does not translate to protection for human-integrity rights; indeed, at times, ratification is associated with greater abuses. Yet states with stronger connections to international civil society have better human rights practices, in part because domestic constituents “tend to have greater awareness of the rights they are entitled to and are more likely to find ways to publicize their problems and pressure the government to address them” (2005, 1386). The normative orientation of the population thus can strengthen state commitment to global human rights norms, and subsequently alter government behavior. To the extent that any of these mechanisms work to promote social transformation, they typically are presumed to do so through altering actors’ meanings, norms, and values or interests (see Stryker 2007). Yet all of these mechanisms are prone to “symbolic compliance” (Edelman 1992, Edelman et al. 2011), wherein rights norms are embraced as a matter of “window dressing” (Hafner-Burton and Tsutsui 2005) to deflect criticism but decoupled from the very practices that must be changed if these norms are to improve the well-being of the deeply disadvantaged or marginalized (Stryker 2007; Haglund and Aggarwal 2011). Thus, with respect to the second analytic moment—inducing actors to take meaningful steps toward rights realization—both context and strategy remain significant. In the policy legalization model, court cases become key “mechanisms to adjudicate among conflicting courses of action, influence decisions, and create opportunities for exchange of information and dialogue among competing parties” (Haglund and Aggarwal 2011, 514). These observations find their analogue in strategies of negotiated compliance embodied in the consent decrees that may result from complex civil rights litigation involving workplace sex and race discrimination in the United States (Institute for Women’s Policy Research 2010). Enhanced accountability for leaders responsible for abuses can also be a powerful motivating force. Sikkink (2011) finds that countries with human rights prosecutions have lower repression levels than countries lacking such prosecutions, and transitional societies that combine prosecutions with truth commissions evidence fewer abuses. Prosecutions also seem to have the effect of diminishing repression in neighboring countries, creating something of a positive contagion. Meanwhile, legal mobilization itself is shaped by the available litigation support structure, including the existence of a diversified, well-networked, and rights-

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supportive bar; ways to collectivize the costs of litigation, such as public interest advocacy organizations; state or foundation funding; government enforcement; and class action lawsuits, public or private (Epp 1998; Stryker 2007). Indeed, empirical studies on the effectiveness of antidiscrimination law in the United States converge to suggest that collective legal mobilization is an important component of any law enforcement model that seeks to translate legal rights to be free of discrimination into a diminution in inequalities based on race, national origin, ethnicity, or gender with respect to voting, education, employment, income, and housing (Stryker 2007; Pedriana and Stryker 2012). Networks and organizations that link political and legal advocates and their respective advocacy strategies may also shape legal mobilization (McCann 1994; Keck and Sikkink 1998; Scheingold 2004). But legal strategies alone do not necessarily translate to rights-responsive action. Courts may work to fill gaps in existing policy structures, but court orders are not self-enforcing (Rosenberg 1991), and judges are not likely to intervene if there is little state capacity to tackle the problem at hand (Gauri and Brinks 2010c). In the MDGs model, the formal process of goal-setting itself creates incentives and impetus for action, and directs attention to existing critical deficiencies. In the social guarantees model, the underlying mechanisms for creating state capacity and holding states accountable are more clearly specified, including processes of social consensus that facilitate budgetary allocations, monitoring, oversight, and appeals. Cooperative dialogue and agreements are central to many collective and multilateral processes of rights fulfillment (Gaer 2007, World Bank 2007). Avoiding the trap of symbolic compliance requires capacity building on multiple fronts. The ability to gather relevant data, to measure and evaluate systematically, and to publicize progress or the lack thereof are central to accountability (Hertel and Minkler 2007; Felner 2009; Cingranelli and Richards 2010; Haglund and Aggarwal 2011; Pedriana and Stryker 2012). Without proactive data gathering and monitoring, none of the causal factors and mechanisms, or of the extant models of ESCR creation and realization in which these are incorporated, can bolster responsibility and hold the relevant actors’ feet to the proverbial fire to ensure that rights norms translate into desired actions. When states are not responsive, rights advocates have the option of reaching deeper into their toolkits. The spiral model shows how states and rights advocates use information, political leverage points, and symbolism as strategy and counterstrategy at successive stages to push for desired outcomes (Risse et al. 1999; Sikkink 2011). Krain (2012) finds that naming and shaming by transnational advocacy groups, including Amnesty International, North American and European media and the now-defunct United Nations Commission on Human Rights, reduced the severity of genocides and politicides from 1976 to 2008 (see also Roth 2004; Hafner-Burton 2008). Outside the human rights arena, “social movements seek to

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influence states by mobilizing people, resources, and claims around lines of action” (Amenta et al. 2010, 289). State structures and actions, likewise, “influence lines of organization and action among movements” (289). We see similar recursive processes for social movements promoting human and civil rights (Keck and Sikkink 1998; Stainback, Robinson, and Tomaskovic-Devey 2005; Hertel 2006). With respect to the third moment—in which actions taken by individuals, groups, and organizations cumulate into meaningful social transformation— empirical research also suggests numerous mechanisms. However, there is less research on the short- and long-term empirical impacts of rights norms and practices than there is on constructing and implementing the rights norms themselves. With respect to the spiral model, we do know that a combination of naming and shaming, truth commissions, and human rights prosecutions have led to measurable positive results, including broader structural changes that emerge iteratively from social struggles. The policy legalization model also has iterative effects, where outcomes at one stage (e.g., successful legal actions) may influence conditions for further policy legalization at another stage (e.g., perceived utility of litigation strategies). Gauri and Brinks (2010c) assess the broader impacts of policy legalization by evaluating both direct effects (on litigants) and indirect effects (on possible beneficiaries in a policy arena). The empirical evidence in their volume confirms the positive impact of cumulative and collective judgments that require broader shifts in public policy. When these shifts emerge as a result of dialogue and negotiation between branches of government—rather than strictly adversarial rulings—the likelihood of compliance, and thus broader impact, increases. This work validates the role of courts in enforcing a unifying framework of law that limits discrimination and in exposing politicians who would subordinate substantive equality to partisan or local concerns. Similarly, in their comparative study of the effectiveness of U.S. voting rights, equal employment opportunity and fair housing legislation, Pedriana and Stryker (2012) emphasize the importance of results-oriented judicial approaches to legal liability and remedy, that is, the achievement of substantive rather than procedural justice (see also Institute for Women’s Policy Research 2010). To explain the variable impacts of laws conferring new rights, these authors build on a substantial intellectual tradition contrasting “formal-rational” and “substantively rational” law (Weber 1978; Lempert and Sanders 1986; Sutton 2001) to propose a “groupcentered effects test” framework. This framework understands rights deficits as pertaining to groups rather than to individuals, and as caused by routine and systemic features of social life that create institutionalized patterns of marginalization and disadvantage rather than by isolated acts of malice against particular individuals. Consequently, group-based statistical disparities are key elements of proof of rights violations. Liability is established based on consequences rather than intent, and remedies are focused on achieving substantive group-based results rather

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than formal procedural justice or narrowly tailored compensation for individual victims. Research on civil rights suggests that the more legislation, court enforcement, and compliance strategies incorporate a group-centered effects test approach, the more transformative impact policy legalization can have on economic resource distributions, patterns of political representation, and social inclusion (Stryker 2007; Pedriana and Stryker 2012). Consistent with these principles, class actions (whether public or private) are promising avenues for promoting social transformation (Pedriana and Stryker 2012). Class actions are a form of collective legal mobilization that consolidates many similar claims into a single lawsuit ordinarily involving large stakes in terms of legal precedent, monetary awards, and/or injunctive relief (Stryker 2007). Targets of litigation, however, are substantially more resistant to substantive (as opposed to formal and procedural) interpretations of all rights (Pedriana and Stryker 2012). This draws attention to the fact that judicialization can lose its edge when courts become a complete substitute for broader political and social struggles, resulting in less aggressive law enforcement and a greater likelihood of symbolic rather than substantive compliance (Stryker 2007). Using a different approach to social transformation, proponents of the Millennium Development Goals hoped that regular monitoring based on clear targets would eventually reduce poverty substantially. Similarly, CPR research on the impact of affirmative action remedies for employment discrimination against minorities and women in the United States shows that these remedies do the most to desegregate the workplace and reduce disparities when they incorporate specific hiring and promotion goals, timetables for achieving these goals, sustained monitoring, and established pathways of responsibility and accountability within firms (Stryker 2001; Pedriana and Stryker 2012). But clear goals and monitoring are not, in themselves, sufficient; they must be combined with accountability mechanisms and often with sustained political and social pressure on their behalf (Stryker 2007). Rights translation and at least limited social transformation may be aided when relatively resource-rich professional groups find that their own interests in expanding their professional status and influence can be served by implementing newly enunciated rights norms (Dobbin 2009). But accountability deficits and the absence of other mechanisms of social change can limit progress, as they have with the MDGs (Haglund and Aggarwal 2011). In the social guarantees model, social transformation is promoted through official acceptance of rights claims across society, establishment of entitlements, and a gradual empowerment of citizens to hold their governments accountable. In the rich world, the universal and somewhat redistributive social programs for publicly financed health care, pensions, unemployment benefits, and social assistance adopted by Scandinavian-style social democracies in the so-called “Golden Age of welfare capitalism” provide a partial analogue to social guarantees in the developing

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world (Korpi 1989; Huber, Ragin, and Stephens 1993; Huber and Stephens 2001). The greater belief in and acceptance of social safety nets following the Great Depression and World War II led to the gradual build-up of disparate but analogous institutional regimes in wealthy (and some middle-income) countries until the mid1970s. These regimes were variably effective in reducing levels of economic insecurity and inequality, depending in large part on the degree to which they incorporated institutional principles of universalism, generosity, and again, substantive equality (Esping-Andersen 1990; Huber and Stephens 2001). Empirical research on such provisions suggests that maintaining broad support for rights claims and the social programs that fulfill them may require universalizing benefits (Korpi and Palme 1998). But universalization creates a potential dilemma: maintaining broad societal support may interfere with targeting social and economic provision where it is needed most. Safety nets of virtually all sorts, along with the more substantial provisioning provided through the “social democratic model,” diminished coincident with the politics of targeting, austerity, and neoliberalism that has flourished globally from the 1980s to today (Pierson, 1994; Hicks 1999; Huber and Stephens 2001; Korpi and Palme 2003). Not just in the United States but also more generally, albeit unevenly, economic inequality has risen in the advanced capitalist democracies (see e.g. Kenworthy and Pontusson 2005). Even absolute poverty has not been vanquished—though again it is unequally distributed among rich countries, depending in substantial part on the institutionalized regime of social provision (Kenworthy 1999, 2011). Ironically, just as “social guarantees” have been rolled out as a legitimate response to poverty and marginalization in poorer countries, social entitlements have been delegitimized and rolled back in rich countries. This underscores the reality that realization of basic economic and social rights is neither inevitable nor irreversible. It also draws our attention to how economic systems and property-rights regimes influence the context within which beliefs and capacities for action on behalf of the poor and excluded are formed. O R G A N I Z AT IO N O F T H E VO LUM E A N D C O N T R I BU T IO N S O F T H E E M P I R IC A L C HA P T E R S

As the last observation indicates, there are plenty of reasons not to be overly sanguine about the prospects of fully and finally realizing human rights, and in particular economic and social rights. Rights realization continues to confront a number of obstacles involving failures of belief, concern, action, and vision. Moreover, structural obstacles to change—including postcolonial legacies and global, national, and local structures of power and inequality—threaten to derail progress at every turn. Accountability to the poor and marginalized members of our human community evidences seemingly overwhelming deficits. And the mechanisms dis-

Introduction

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cussed above have their own inherent shortcomings. For example, how can shaming strategies address poverty if the targets of that shaming and the constituents to which they are accountable are not outraged by the deprivations suffered by others? How can states be compelled to act on behalf of the poor within their borders when they are beholden by international rules to prioritize debt owed to creditors abroad? How can the state capacities necessary for comprehensive public policy of the sort required for social transformation be built when the prevailing economic logic calls for limited government and market solutions? Ultimately, these are empirical questions that will be answered in particular times and places. The ideas and cases discussed in subsequent chapters in this volume allow us to recognize a wide diversity of challenges, as well as to identify mechanisms that have been instantiated along concrete pathways to help shift beliefs about rights, spur action in their defense, and produce social transformation. The MAPs approach provides us with a comprehensive framework that transcends time and place to analyze more general conditions for progress in human rights realization. Because similar mechanisms can have very different impacts across different political-economic, social, and cultural contexts (Haglund and Aggarwal 2011), we need careful cross-case comparisons of the sort this volume undertakes to specify concrete pathways that have—or have not—yielded substantial rights realization. These comparisons are also useful for identifying key gaps in institutional capacities and accountability that may hinder rights realization. Our main goal in this volume is to gain a comparative understanding of how ESCR norms and discourses are adopted and adapted by a range of actors who espouse, promote, or resist them, the ways these norms and discourses are acted upon and embodied in institutions and practices, and whether and how these actors and practices contribute to social transformations in which rights are widely realized. The volume is interdisciplinary, including work by scholars and practitioners in the fields of law, economics, political science, international affairs, and sociology. Its chapters are substantially revised versions of papers presented at an April 2011 workshop-style conference focusing on global ESCR. Because scholars and practitioners of CPR served as commentators, all chapters in this volume benefitted from cross-fertilization of ideas and insights across the ESCR and CPR communities (see Stryker and Haglund 2010). In editing this volume, we combined Haglund’s knowledge of development and global ESCR with Stryker’s expertise in social rights in rich capitalist democracies and CPR. We have been fortunate to draw on rich networks of expertise among colleagues in all these communities. The chapters address a range of substantive issues, from international regimes, to indigenous claims, to environmental rights, to food security. They are analyzed using the aforementioned MAPs framework to highlight the unique contributions of different mechanisms, actors, and strategies; the main accountability relationships at work in each context; and the manner in which processes of ESCR realization occur

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in specific times and places. They shed additional light on how, and under what conditions, a human rights framing can help empower the poor and marginalized, provide them with material benefits, and/or otherwise promote equity-enhancing social change. The remainder of this volume proceeds in four parts, followed by a concluding chapter that compares the cases and synthesizes the insights provided by the empirical chapters. Part 1 of the volume focuses on the pursuit of ESCR on the international level, and includes chapters by M. Rodwan Abouharb, David L. Cingranelli, and Mikhail Filippov; William Felice; and Leonardo Alvarado. The Abouhard-CingranelliFilippov chapter, “Do Non–Human Rights Regimes Undermine the Achievement of Economic and Social Rights?” explores the relationship between commitment to international human rights (IHR) regimes and non-IHR regimes, on the one hand, and respect for ESCR, on the other. The authors show that the number and type of commitments to different multilateral regimes shapes adherence to the goals espoused by each, which in turn shapes decisions among different rightsrelevant policy options. In particular, commitment to non-IHR regimes is associated with weaker state accountability to citizens and worse ESCR outcomes, while long-term commitment to the International Covenant on Economic, Social and Cultural Rights is associated with better outcomes. Their analysis demonstrates how international commitments and agreements shape the degree to which domestic resources are mobilized toward ESCR goals, and how these can influence human rights indicators. Felice’s chapter, “Linking Law and Economics: Translating Economic and Social Rights Norms into Public Policy,” also focuses on the relation between international agreements and the mobilization of resources, but brings the strategy of discursive framing to the fore. Felice notes that despite widespread agreement regarding IHR, including a right to health care and sanitation, as well as global environmental norms in both hard and soft law, disputes endure regarding which policies will bring these norms to fruition. These conflicting beliefs, coupled with weak accountability mechanisms for IHR, result in non-implementation of even established norms. As a way through this stalemate, Felice proposes reframing economic and social human and environmental rights as “global public goods,” which by definition are not achievable through markets alone. This would free institutional actors to create state-led mechanisms of enforcement and accountability, and ultimately reverse the long-standing neglect of these widely held norms. Alvarado’s chapter, “Advances and Ongoing Challenges in the Protection of Indigenous Peoples’ Rights within the Inter-American System and the United Nations Special Procedures System,” sketches both achievements and challenges that indigenous peoples have had in using international human rights institutions to defend their rights. The analysis is based on experiences from key international cases such as the Awas Tingni v. Nicaragua case before the Inter-American Court

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17

of Human Rights and the work of the United Nations Special Rapporteur on the Rights of Indigenous Peoples. Alvarado shows how indigenous peoples have used some of the same reframing strategies—as well as legal mobilization, moral persuasion, and transnational advocacy—to bring indigenous rights issues front and center in international and national debates and legal reforms. However, although international diplomatic discourse now is more favorable toward indigenous rights, there are few resources or mechanisms for enforcing international standards protecting indigenous rights. Accountability deficits and enduring political and economic inequalities provide substantial challenges to full indigenous-rights realization. Alvarado’s chapter raises an interesting question: What can we learn about the realization of collective and group rights (which tend to have demonstrably wider impacts than individualized rights) from the experiences of indigenous-rights activists? Proponents of indigenous rights already have a head start on framing and political strategies in struggles for collective rights, and the possibility that these strategies could be adapted to promote other group-based rights is intriguing. Many U.S. analysts currently witness the dismal evidence on social justice outcomes for individual rights and abandon hope of achieving broader-scale change. This volume, and Alvarado’s contribution in particular, provide evidence that focusing on group-based outcomes can be a fruitful strategy, and that scholars have reason to look globally for such lessons. Similarly, the study of CPR could certainly benefit from engagement with evidence emerging from indigenous struggles. Part 2 of the volume focuses on the role of domestic law, courts, and legal norms in realizing ESCR, and includes chapters by Varun Gauri and Daniel Brinks, Sumudu Atapattu, and Doris Marie Provine. The Gauri-Brinks chapter, “The Impact of Legal Strategies for Claiming Economic and Social Rights,” reviews the legal adjudication of constitutionally protected social rights in Nigeria, Indonesia, South Africa, India, and Brazil, with an explicit focus on explaining variation among countries, and between rights to education and health care. They show how litigants, judicial actors, and nonjudicial government agents navigate existing political and institutional contexts to turn rights into responsive public policies. These accountability pathways, when successful, entail improving goods and services provision, bolstering regulation, and enforcing obligations between private actors and claimants. Atapattu’s chapter, “The Role of Human Rights Law in Protecting Environmental Rights in South Asia,” reveals the dynamic and emergent character of law by showing how superior courts in South Asia reframed existing constitutional provisions to encompass environmental rights. The creative linking of IHR principles (for example, the right to life and equality) with environmental “soft law” led to the adoption of important environmental law principles, such as “polluter pays,” diffuse rights (rights that potentially affect society as a whole), and the precautionary

18

Introduction

principle. This “cross-fertilization” has allowed for the translation of “soft law” into judgments, the utilization of human rights redress mechanisms, and the promotion of information and education, which in turn have led to wider legitimacy of environmental human rights. The cumulative effect of favorable rulings and education has been a larger role for law in environmental protection in previously unprotected areas. The Supreme Court of India has played the pioneering role in the region by supporting redress for environmental problems using human rights law as a basis. But other actors, including lawyers and civil society groups, have played important roles as well, not only through litigation but also through education, information dissemination, and political pressure. Atapattu concludes that, despite accusations of judicial activism, legal developments and public interest litigation have advanced both human rights and environmental protection in this region. The Provine chapter, “The Morality of Law: The Case against Deportation of Settled Immigrants,” takes a similar approach by urging the application of principles in one area of law to a new context. Because settled but undocumented immigrants have no protection against deportation under international law, regardless of time spent in the receiving country, they are sometimes subjects of egregious cases of removal that offend established norms of human dignity. Provine argues that alternative reframings from outside human rights law could be applied to improve outcomes for these immigrants. Familiar common law principles, including estoppel and balancing of equities, are used in settling disputes in contract, tort, and bankruptcy law in order to give offenders a chance at redemption and closure. Statutes of limitations and alternative sentencing options are based on similar principles. If these ideas were applied to immigration, there would be far fewer deportations. Because Provine’s innovative reframing shows that immigration law’s harshness is in fact inconsistent with taken-for-granted principles that operate in central areas of law governing the U.S. marketplace, she pushes us to reflect further on whether and why the United States singles out immigrants for more severe treatment. Part 3 of the volume includes chapters by Paul Nelson, Shareen Hertel and Susan Randolph, Heinz Klug, and Hans-Otto Sano, and moves beyond courts to incorporate nonjudicial mechanisms in ESCR realization. Nelson’s chapter, “Social Movements and the Expansion of Economic and Social Human Rights Advocacy among International NGOs,” specifies how and the extent to which human rights discourses have been internalized, diffused, and advanced across an organizational field that includes social-movement organizations and international NGOs. Increasing engagement with economic and social rights, explicable with reference to both internal (organizational) and external (political) reasons, has led these groups into new relationships with each other and the state. Spurred on by social movements in the Global South, human rights organizations and development NGOs are moving beyond traditional strategies toward advocacy for specific

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rights issues, creating new nodes of accountability for development agencies and stronger incentives to work closely with social movements. These broader agendas are potentially transformative, but may also become unwieldy for international NGOs in balancing their old and new agendas. Hertel and Randolph’s chapter, “The Challenge of Ensuring Food Security: Global Perspectives and Evidence from India,” elaborates on what the concept of food security involves, and uses available internationally comparable measures to address the status of global food security. The authors then present a comparative sub-national study of India to offer insight into the potential for grass-roots movements to foster institutional changes that promote food security, specifying the strengths and limits of alternative institutions, policies, and programs. Perception of the constitutional “right to life” and access to information about food security has spurred successful legal and popular mobilization in some locations in India. Social movements have sought to utilize their small victories to raise awareness further and create pressure for parliamentary action in support of food rights through lobbying and direct negotiation with political parties. The Indian judiciary has strengthened accountability for food security by “deputizing” NGOs and assigning commissioners to monitor the implementation of food programs, as well as issuing rulings in favor of the right to food. All of these actions in turn shape perceptions and awareness in an iterative fashion. This top-down, bottomup structure and its concomitant accountability mechanisms help explain variation in food security across the country. While the Nelson and Hertel-Randolph chapters give more specificity to the actors and mechanisms involved in human rights struggles, Klug’s chapter, “Achieving Rights to Land, Water, and Health in Post-Apartheid South Africa,” specifies how rights-specific historical legacies, legal contexts, and material realities shaped the differential success of implementation in these three policy domains guaranteed by the South African constitution. The Klug chapter nicely complements Gauri and Brinks (in part 2), also emphasizing that the success of law pertaining to ESCR depends profoundly on economic and political context, but going further to elucidate the “multilayered strategy of appeals to government, public mobilization, and diverse legal strategies” that characterize ESCR struggles. He shows how judicial and social-movement orientations to ESCR in the postapartheid era emerged from anti-apartheid struggles. Coupled with constitutional recognition of global ESCR, these orientations influenced the types of demands and strategies—legal, political, and popular—adopted by different networks of actors. Like Atapattu, Hertel and Randolph, and the scholars cited earlier in this introduction, Klug finds that sustained social-movement pressure could be an effective force in ensuring compliance with legal rulings; like Gauri and Brinks, however, he finds impacts to be limited when courts are used as a singular strategy for individual rights.

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Sano’s chapter, “Social Accountability in the World Bank: How Does It Overlap with Human Rights?” takes a somewhat different approach to analyzing the range of factors, beyond courts, that influence rights outcomes. Sano shows how an emphasis by the World Bank, starting in the late 1990s, on combating corruption, promoting good governance, and providing services for the poor led to an “empowerment framework” for development. In this framing, civil society groups were seen as “stakeholders,” and service beneficiaries as “citizens.” This framework, in turn, fostered the development of new accountability mechanisms and relationships for CPR (agency, voice, information, association, and participation) as well as for ESCR (service-related information, transparency, monitoring instruments and indicators, participatory decision making, and grievance procedures). Sano finds synergies between social accountability and ESCR; however, social-accountability practices still suffer from a lack of attention to issues of discrimination, a lack of operational association with the international human rights regime, and a vision of persons as consumers rather than rights holders. More synergy between development and human rights approaches would be needed to strengthen the transformational impact of social accountability. Still, the approach can be used to promote rights, and especially to strengthen CPR, as well as other nonjudicial capacities important to the realization of ESCR. Part 4 of the volume focuses on measurement and indicators of ESCR, and includes chapters by Sakiko Fukuda-Parr, Terra Lawson-Remer, and Susan Randolph; Rimjhim Aggarwal and LaDawn Haglund; and Siri Gloppen. The FukudaParr, Lawson-Remer, and Randolph chapter, “Making the Principle of Progressive Realization Operational: The SERF Index, an Index for Monitoring State Fulfillment of Economic and Social Rights Obligations,” draws by permission from the Social and Economic Rights Empowerment Initiative (www.serfindex.org). This chapter describes a new measuring rod that improves collective capacity to promote and evaluate state efforts to meet their obligations under the International Covenant on ESCR for “progressive realization” utilizing “maximum available resources.” Created through a three-year consultative process, the SERF (Social and Economic Rights Fulfillment) Index specifies states’ obligations at any given time by mapping an “achievement possibilities frontier” for different levels of state resource capacity. The composite SERF Index includes separate scores for each core economic and social right, and uses survey-based data published by national and international bodies to specify both the level of a state’s obligations and the level of rights enjoyment that exist under its jurisdiction. Human rights advocates at the domestic and international levels can use this index to create awareness and information (and possibly outrage) that could in turn be directed toward holding states accountable to their ESCR commitments. Another relatively new tool (at least in the field of human rights) for measurement, accountability, and public awareness is geographic information systems

Introduction

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(GIS) mapping, described by Aggarwal and Haglund in their chapter, “Deepening Our Understanding of Rights Realization through Disaggregation and Mapping: Integrating Census Data and Participatory GIS.” Innovations and the increasing availability of GIS technology have created new possibilities for applying participatory GIS in the area of human rights. The authors compare Delhi and São Paulo to show how detailed GIS data and mapping allow identification of deprivation hotspots, even where aggregate human rights indicators might show improvement. This gives service providers, courts, advocates, and activists better monitoring and evaluation capacities. Direct community engagement in data collection, monitoring, and reporting has meant improved local understanding of patterns of exclusion and stronger relations of accountability. Although more research is needed on the overall impact of GIS on community knowledge and empowerment, contributions to natural resources management, transportation, health and education, and development planning show promise. Rather than presenting a particular tool for research, the Gloppen chapter, “Studying Courts in Context: The Role of Nonjudicial Institutional and SocioPolitical Realities,” proposes a research strategy suited to contextualizing legal struggles for human rights within a wider temporal, socio-political, and institutional context. We chose Gloppen’s chapter as the final contribution because, like the volume as a whole, it presents a framework for analyzing a range of key actors and contextually determined pathways, though with a focus on the effectiveness of one key mechanism: litigation. Similarly to Gauri and Brinks, Gloppen suggests that the beliefs of litigants, judges, and respondents—which partly determine whether and how litigation occurs and whether it is successfully implemented— are shaped by facilitating factors such as the existing institutional capacities and resources of both states and rights organizations; the availability of information; and doctrinal elements of the legal system (for example standing, requirements for filing complaints, and possibilities for collective litigation). These expectations and opportunity structures are iteratively shaped over time by litigation and by actors’ experiences. Attention by researchers to this dynamic process can shed light on how norms become internalized (what Gloppen calls symbolic or ideational transformation). Actions—decisions by litigants to turn to courts, by judges to accept or rule in favor of a case, and by authorities to comply with the terms of the judgment or propose new policies—are also shaped by a range of factors, including legal support structures (legal aid, public interest advocacy); judges’ backgrounds, career ambitions, expectations regarding compliance and public support, and interpretations of human rights; judicial independence; professional norms; and political advocacy and mobilization outside of court. Whether litigation results in more comprehensive institutional reforms, policy changes, or improvements in services may also depend on social mobilization outside of courts, as well as collective,

22

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rather than individual, cases. A low “threshold for legal action” that makes it easy for individuals to file cases may thus undermine efforts at broader social transformation, while a higher threshold may encourage collective efforts likely to lead to greater impact. Gloppen stresses the need for direct measures of impact if we are to assess the utility of litigation. Her analysis urges the inclusion or development of indicators measuring material benefits (policy changes, services provided, services utilized, and resulting well-being); political empowerment (changes in power relations and decision making); ideational effects (changes in goals, attitudes, and conceptualizations, either individual or collective); number of people affected directly and indirectly; and unintended consequences. In the volume’s concluding chapter, “Emerging Possibilities for Social Transformation,” volume editors Stryker and Haglund conduct a MAPs-guided comparative analysis of ideas and cases offered in the empirical chapters, incorporating the multiscalar and multi-institutional spheres within which rights struggles occur and mining the comparisons for additional empirical insights and theoretical contributions. We highlight multiple concrete pathways that have led to more or less rights realization and social transformation, and suggest conditional generalizations that advance the frontiers of what we know while inviting and guiding future empirical research. First, a combination of mechanisms, including reframing, court enforcement, political mobilization, dialogue and consensus building, and naming and shaming can promote social transformation, but only where there are strong accountability pathways and where the needed extrajudicial capacities exist or can be built. Second, where maintaining a substantive approach to rights tends to enhance on-the-ground impact, this must be balanced against legal, political, and cultural resistance. Encouraging buy-in through dialogue and consensus building among all relevant parties, as well as ensuring the requisite time and motivation for needed capacity building, are two possible ways to bolster substantive approaches to rights realization. In short, the chapters in this volume and our MAPS-guided comparative analysis suggest that neither naive optimism nor crippling pessimism are warranted when it comes to the full realization of ESCR. The challenges are daunting, to be sure, especially given the forces behind the dramatic contemporary increases in socioeconomic and political inequality. Yet, somewhere between the Scylla of purely symbolic compliance and the Charybdis of promoting backlash and entrenched resistance, we must find sweet spots that promote an iterative dynamic of “progressive realization.” For millions around the world, this is truly a matter of life or death. NOTES 1. These categories are akin to those outlined in the social-movements literature. For example, Keck and Sikkink (1998) use the word “politics” to describe similar strategies,

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presumably to emphasize the political nature of mobilization: “information politics,” “symbolic politics,” “leverage politics,” and “accountability politics.” We use different terminology to allow for a wider range of actors who may use similar strategies, but not for the purpose of mobilization (for example, information routinely provided by official UN monitoring bodies). We also specify two additional categories (legal and cooperative) that are central to human rights realization, but that are not explicitly reflected in social-movement terminology. Finally, it is our view that any of these approaches can be used to hold actors accountable for promises they or their institutions have made in regard to human rights, and thus a separate category of “accountability politics” is unwarranted for this discussion. 2. Though the current volume deals with economic, social, and cultural rights, the authors discussed in this section do not include cultural rights in their analyses. Thus, the acronym ESR is used to describe their focus. 3. See also Gauri and Brinks, this volume. 4. See also Nelson, this volume. 5. See Sano, this volume.

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1965–80.” Paper presented at the conference, “L’Etat des droits. Pratiques des droits dans l’action publique,” Université de Paris, Villetaneuse, and Sciences Po, Paris, June 25–26. Pierson, Paul. 1994. Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment. Cambridge: Cambridge University Press. Reichert, Elisabeth. 2001. “Move from Social Justice to Human Rights Provides New Perspective.” Professional Development 4(1):5–13. Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink, eds. 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press. Roth, Kenneth. 2004. “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization.” Human Rights Quarterly 26:63–73. Scheingold, Stuart. 2004 [1974]. The Politics of Rights: Lawyers, Public Policy and Political Change. Ann Arbor: University of Michigan Press. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton. Somers, Margaret R., and Christopher N. J. Roberts. 2008. “Toward a New Sociology of Rights: A Genealogy of ‘Buried Bodies’ of Citizenship and Human Rights.” Annual Review of Law and Social Science 4:385–425. Stainback, Kevin, Corre L. Robinson, and Don Tomaskovic-Devey. 2005. “Race and Workplace Integration: A Politically Mediated Process?” American Behavioral Scientist 48:200–228. Stryker, Robin. 2001. “Disparate Impact and the Quota Debates: Law, Labor Market Sociology and Equal Employment Policies.” Sociological Quarterly 42:13–46. . 2007. “Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies.” Annual Review of Law and Social Science 3:69–97. Stryker, Robin, and LaDawn Haglund. 2010. “Rights and Their Translation into Practice: Toward a Synthetic Framework.” National Science Foundation, Law and Social Sciences Program Grant #SES-1051374, awarded for 2010–13. Sutton, John R. 2001. Law and Society: Origins, Interactions, and Change. Thousand Oaks, CA: Pine Forge/Sage. US Human Rights Network. 2010. “Joint Reports: United States of America.” Submitted in anticipation of the Ninth Session of the Universal Periodic Review (UPR) Working Group on the United Nations Human Rights Council. November. Weber, Max. 1978. Economy and Society: An Outline of Interpretive Sociology (vols. 1 and 2), edited by Gunther Roth and Claus Wittich. Berkeley: University of California Press. World Bank. 2007. Realizing Rights through Social Guarantees: An Analysis of New Approaches to Social Policy in Latin America and South Africa. Social Development Department, Report #40047. Washington, DC: World Bank Group. Xanthaki, Alexandra. 2007. Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land. Cambridge: Cambridge University Press. Yamin, Alicia Ely, and Siri Gloppen. 2011. Litigating Health Rights: Can Courts Bring More Justice to Health? Cambridge, MA: Harvard University Press. Young, Katharine. 2009. “Freedom, Want and Economic and Social Rights: Frame and Law.” Maryland Journal of International Law 24:182–208.

part one

Promises and Challenges of Economic, Social, and Cultural Rights (ESCR) Realization at the International Level

Chapter 1

Do Non–Human Rights Regimes Undermine the Achievement of Economic and Social Rights? M. Rodwan Abouharb, David L. Cingranelli, and Mikhail Filippov

There is little systematic research examining the international factors that make governments more or less willing to make efforts to protect the economic and social rights (ESR) of their citizens (Cardenas 2007; Bauhr and Nasiritousi 2012; Hafner-Burton 2012; Goodman and Jinks 2013; Minkler 2013). In this chapter we demonstrate for the first time that the longer a government’s participation in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (United Nations 1966), the greater its level of respect for ESR. This finding is consistent with the “mechanisms, actors, and pathways” (MAPs) framework of human rights realization outlined in the introduction of this book. That model emphasizes that a variety of domestic and international forces help hold states accountable for their violations of human rights norms. Participation in the ICESCR engages states in a give-and-take process that promotes human rights accountability. However, it is not simply ratification of human rights treaties that leads to greater protection of human rights; it is engagement with transnational networks and the iterative use of both instrumental and communicative strategies that drives the gradual incorporation of human rights norms into state practices and structures. Consistent with our previous research (Abouharb and Cingranelli 2006, 2007, 2009), statistical analysis confirms that the longer a government’s participation in International Monetary Fund (IMF) and World Bank program lending, the worse its record of respect for ESR. Moreover, we find that the greater the number of international regimes in which a government participates, the worse its respect for ESR.1 In order to explain theoretically the difference in the effects of participation in different international regimes, we adopt a principal–agent approach, focusing on 29

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the accountability of politicians to citizens (Haglund and Aggarwal 2011; Cingranelli, Fajardo-Hayward, and Filippov, 2014). We emphasize the agency losses that can occur when international regimes compete with citizens for the attention of policy makers. As national governments become responsible to more international regimes they sometimes become less accountable to their own populations. This is particularly damaging to human rights realization when some of these international regimes, like the program-lending regime, ask governments to prioritize policies which come at the expense of domestic demands to realize ESR.2 In contrast, membership in other international regimes like the ICESCR reinforces domestic demands for better realization of ESR by increasing international pressure on governments to realize these rights.3 Our argument contrasts with the traditional account and underlying assumption in much of the international relations literature that participation in international regimes is only beneficial to national governments and that they serve various purposes which improve governance, lock in good behavior, and advance economic and social outcomes. We argue that the ESR benefits of international regimes are far more conditional on the mix of international regimes that countries join, that is, whether these regimes help reinforce domestic preferences for better ESR outcomes or divert governments to prioritize other goals instead. One of the implications of our research is that membership in multiple regimes has contrasting and often contradictory effects on the domestic realization of ESR. Our account of the problems created when multiple principals direct the activities of a single agent is consistent with a growing literature that points to similar problems in many substantive policy areas—especially environmental and economic development policy (Oberthür and Gehring 2006; McNeill and St. Clair 2009). States are joining intergovernmental organizations (IGOs) at an increasing rate. Each organization joined has its own set of norms and rules. Governments that participate in many IGOs can choose how to allocate their attention among the demands of their citizens, the demands of particular international regimes, and among the various tasks required by any particular international regime. They can play one regime off against another, and they can also choose to interpret particular regime norms in a variety of ways (Raustiala and Victor 2004). Such choices maximize the discretion of agents, increase agency loss from citizen preferences to politicians, and, in general, lead to less-than-optimal social and economic outcomes. An important lesson that emerges from the study of the interplay of international regimes, therefore, is that international regimes are not self-contained entities (Young et al. 2008). The effectiveness of a specific regime such as the ICESCR in producing compliance usually depends not only on its own features but also on its interactions with other regimes.

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The Mechanisms, Actors, and Pathways Framework Actors. Our research also highlights the MAPs framework described in the introduction of this volume. At the international level, the actors in our analysis include the organizations that we collectively label the international financial regime. These organizations include the World Bank and the IMF. In comparison, the organizations that we collectively label the international human rights regime include the United Nations and could also include regional human rights organizations. Both sets of organizations play an important role in the realization of ESR. The World Bank highlights the need to reduce poverty, an important aspect of realizing ESR. A previous director of the IMF, Michael Camdessus (1990), noted that the fund should enable “high quality” economic growth, which benefits the majority of citizens. In comparison, the United Nations, especially the UN Human Rights Council, regularly reviews member states’ progress in the realization of different economic and social rights. At the domestic level, the actors in our analysis are decision makers and those employed by the state who are key in implementing decisions about where to focus state resources in the realization of ESR. Mechanisms. We argue that both international and domestic mechanisms are important in our analysis. For the international financial regimes we examine, their “routine of action”4 is neoliberal economics which underpins the international financial institutions’ (IFIs’) promotion of program lending. This routine of action manifests itself through legal agreements between these organizations and loanreceiving states. The IFIs enforce their routines of action through legal means. They threaten to withhold monies from loan-receiving states that do not sufficiently implement their loan conditions. In comparison, the mechanisms available to the United Nations are much more subtle. Our analysis suggests that member-state representatives use a variety of approaches to improve the ESR outcomes of other member states. First is the collaborative approach, which conveys the process of member states reviewing other member states’ progress in the realization of particular economic and social rights. As part of this broad collaborative approach, state representatives on these bodies will often also use informational approaches, which typically highlight the facts and figures about the ESR conditions in the member states under scrutiny. Member states on the Human Rights Council and the Council on Economic, Social and Cultural Rights can publicize a member state’s progress (or lack of progress). Finally, they may also use symbolic approaches in their discussions by using language that conveys emotions such as “disappointment” or “congratulations” when other states have made less or more progress than otherwise expected. Pathways. Two different pathways exist in our narrative that link international financial regimes and international human rights regimes to more or less progress

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in the domestic realization of ESR. The first pathway is the legal (judicial and quasi-judicial) route. International financial regimes utilize legal mechanisms to impose their policy preferences on loan-receiving states. The agreements between states requesting assistance and the international financial regimes require legal assent, typically through agreement of the executive branch of government and sometimes the agreement of domestic legislatures as well. International financial regimes enforce their agreements by threatening to withhold monies from often cash-strapped governments in return for domestic policy changes. At the domestic level, judicial and quasi-judicial processes are becoming increasingly important in holding states to account in the realization of ESR by making the realization of these rights justiciable. The second pathway highlights how repeated interactions between member-state representatives at forums like the Human Rights Council and the Committee on Economic, Social and Cultural Rights can slowly change the preferences of member-state representatives in ways that encourage them to improve realization of ESR at home. In the sections that follow, we elaborate on the multiple-principals problem, which is the basis of our theoretical argument. We then review the literature on the human rights effects of participation in human rights treaties and participation in IMF and World Bank program lending. From that discussion, we derive hypotheses about the human rights effects of each regime and present results showing the substantive effect of participation in each regime on the physical quality of life index. We discuss some alternative explanations for the positive effects of participation in some regimes but not others. We end with discussion of the theoretical and empirical contribution of our work. T H E O R E T IC A L F R A M EWO R K

The Multiple-Principals Problem The principal–agent problem or agency dilemma refers to the difficulties that arise when a principal relies upon an agent to pursue the principal’s interests. The principal compensates the agent for performing certain acts that are useful to the principal and costly to the agent. However, since there are elements of performance that are costly to observe and because there are uncertainty and risk, there is imperfect monitoring of the contract by the principal. As a result, principals always get an sub-optimal outcome. This difference between what the principal demands and what the principal gets under conditions of incomplete and asymmetric information is referred to as agency loss (Dixit 1996). Principal–agent analysis can be directly and most easily applied to the study of human rights if we assume that citizens as principals demand that politicians maximize their effort to protect human rights. Participation or nonparticipation in particular international regimes can amplify or reduce inevitable agency loss in

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the relationship between citizens as principals and politicians as agents. Citizens compensate politicians who comply with their human rights preferences by providing them with political or economic support (Cingranelli, Fajardo-Hayward, and Filippov, 2014). However, few politicians make a maximum effort to protect human rights. Instead, because citizens face the agency problem, politicians strategically choose a level of effort that is lower than the maximum possible. Unless kept accountable by citizens, politicians will tend to ignore the violation of human rights. Protection of human rights is directly and indirectly costly for politicians. First, increasing efforts to improve ESR such as lowering the infant mortality rate, increasing the literacy rate, or raising life expectancy requires significant expenditure of state resources and personal effort, which politicians may prefer to use in pursuit of other objectives. Second, politicians prefer greater autonomy, and human rights are tools that could be used to constrain their autonomy. We assume that politicians face different tasks and that they are accountable to multiple principals. While only citizens select national incumbents, the citizens often must share the right to define politicians’ priorities with other actors, both domestic and international. Those other actors and the citizens are like multiple principals contracting with a common agent (a politician), in a setting similar to the multi-task principal–agent model (Holmstrom and Milgrom 1991). In other words, politicians may be agents for other principals besides the people, and those other principals may have different expectations for their performance. In a modern state, politicians might also be accountable to the monitors of international regimes, foreign-aid providers, commodity traders, international financial institutions, commercial banks, and resource-extraction companies. With some exceptions, these other potential principals will be less concerned with the issues of concern to the citizenry. Thus, when politicians respond to the preferences of principals other than their own citizens, they will make policy decisions that lead to less accountability to the ultimate principal—the people. When states participate in multiple international regimes, additional agency loss is generated, because participation in each new regime brings with it a new principal with different preferences and a new contract with politicians. Most additional principals care less about human rights than citizens do. Thus, with the addition of new principals, the preferences of citizens are less salient for the agent because the compensation citizens might offer now weighs less in the overall contract. While, in general, the involvement of more principals leads to greater agency losses, adding particular additional principals could give politicians incentives to pay more attention to certain tasks also demanded by citizens. We assume that citizens as principals want their politicians, the agents, to make the maximum effort to protect their internationally recognized human rights. If politicians are accountable to citizens, they will. When governments participate in an international regime with explicit human rights goals, such as a human rights treaty

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regime, the goals and rules of the regimes reinforce the demands of citizens for better human rights practices. When governments participate in international regimes without explicit human rights goals, participation diverts the attention of politicians away from their citizens, making the politicians more attentive to the goals of other principals. Participation in an international regime that reinforces citizen demands for human rights protection, such as a human rights treaty regime, will tend to reduce agency loss for citizens who prefer their politicians to exert higher levels of effort to improve human rights performance. Regime monitors will provide politicians with additional incentives to increase their level of effort toward human rights protection. Participation in an international regime that does not reinforce citizen demands for human rights protection, such as the program-lending regime, will tend to increase agency loss in the principal–agent relationship between citizens and politicians, because the human rights priorities of citizens are not reinforced by the norms of the program-lending regime. The ICESCR Regime The decision to take part in the human rights regime begins with a government signing a human rights covenant or treaty—in this case the ICESCR—signifying the willingness of the executive branch to comply with its provisions. For most governments, however, full participation in the regime requires a two-step process. The second step is ratification, requiring the consent of the members of another government institution—usually the legislature. In the United States, for example, President Carter signed the ICESCR, but the Senate never ratified it. Thus, the United States does not participate in the ICESCR, and, according to most interpretations of international law, is not bound to follow its provisions. Once the agreement is signed and ratified, there is a process supervised by the United Nations designed to promote compliance by the participating country. Economic and social human rights refer to internationally recognized human rights to a government that makes efforts to provide a minimal standard of living for its citizens. These rights were first recognized in the most basic of all international agreements, the UN’s Universal Declaration of Human Rights. Similarly, the subsequent and more authoritative ICESCR recognized rights to a decent standard of living, to adequate food, clothing, and housing, to continuous improvement of living conditions (Article 11), to medical care (Article 12), and to education (Articles 13 and 14). According to Article 2(1) of the ICESCR, each state party is obligated to “take steps, . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized . . . including particularly the adoption of legislative measures.” Consistent with these provisions, we conceptualize “poor performers” as states that have achieved lower levels of basic needs satisfaction for their citizens relative to states with similar resources.

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Governments that ratify the ICESCR sincerely must develop institutions and procedures; must plan; and must mobilize resources as necessary to meet citizen claims. To comply with the ICESCR, governments must adjust taxing and spending plans and establish a network of agencies for social welfare. They must also provide some system of remedies to which individuals may resort to obtain the benefits to which they are entitled or to be compensated for their loss. Governments have considerable discretion in choosing how to achieve the objectives outlined in the ICESCR, but government efforts should result in the “progressive realization” of the good economic and social outcomes outlined in the covenant, such as higher literacy rates, longer life expectancy, and lower infant mortality rates—the outcomes we focus on in this research. The principal mechanism of supervision outlined in the ICESCR is a requirement that each ratifying party report periodically to a UN committee on its compliance with covenant provisions. The relevant UN committee then issues a public final report including its principal concerns and recommendations. A negative report is the only sanction the regime can impose. A positive report is the only reward the regime has at its disposal (Chapman and Carbonetti 2011). This method of ensuring compliance to regime norms has been called “naming and shaming,” and scholars disagree about its effectiveness. Principal–agent analysis suggests that naming and shaming can be effective even though the UN can only rarely apply punishments or provide rewards. As Mulgan (2003, 10) notes, “In many contexts, the mere expectation of disclosure of an improper action is sufficient to induce the offender to repent and to seek to repair any damage without any need to resort to formal penalties.” Moreover, sometimes the negative consequences may only be implicit or informal, but “even without (formal) sanctions, processes of calling to account can be meaningful and produce learning effects” (Bovens 1998, 39). The argument that naming and shaming produces positive human rights effects emphasizes that improvements in human rights practices result from interactions between state-level politicians and UN specialized bodies such as the Office of the High Commissioner for Human Rights and other treaty-monitoring bodies. Improvements also result from the mandated procedures established by those bodies such as the universal periodic review (UPR). The naming-and-shaming procedure outlined in the ICESCR is a requirement that each ratifying party report periodically to the Economic and Social Council (ECOSOC) on its compliance with ICESCR provisions. ECOSOC then issues a public report including its principal concerns and recommendations. Since 2006, members of the UN also have been required to submit to UPR, which involves a review of the human rights records of all UN member states every four years by the Human Rights Council. The UPR requires each state to declare what actions it has taken to fulfill its human rights obligations, including those of the ICESCR. The Human Rights Council also issues a report of its findings.

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There is qualitative evidence that naming and shaming has led to improvements in government efforts to protect the human rights of their citizens.5 For example, Heyns and Viljoen (2001) highlight the success of the Convention on the Rights of the Child in encouraging participating states to respect children’s rights. These improvements may well be reflected quantitatively in our measures of infant mortality rates, one of the core measures of the well-being of children. In another study, Chapman and Carbonetti (2011) comment on the strong emphasis of the UN Committee on Economic, Social and Cultural Rights on protecting the most vulnerable citizens during times of economic crisis. If member states take this advice seriously there should be some improvements over time in the indicators of rights realization used in this study—adult literacy rate, infant mortality rate, and life expectancy. A second perspective on why human rights treaty participation matters for accountability emphasizes that treaty language and the commitment of domestic politicians to it provide civil society groups with new tools that can be used to influence domestic politicians (Hafner-Burton and Tsutsui 2005; Hathaway 2002, 2007; Landman 2005; Neumeyer 2005; Simmons 2009). Domestic factors such as the presence of strong civil society groups, adequate protections of freedom of speech and the press, and the existence of enabling institutions—especially an independent judiciary—make it more likely that citizens can hold politicians accountable. In states where some or all of these factors are present, treaty participation will give politicians additional incentives to produce human rights improvements. These explanations emphasize that improvements in human rights result primarily from interactions between civil society groups and politicians (including judges) or from interactions among domestic institutions such as the executive and the judiciary. Heyns and Viljoen (2001, 502) note that the judiciary has frequently used various human rights conventions as interpretive guides to clarify legislative provisions such as those in the national bill of rights, especially in places like Australia and South Africa and to a lesser extent in the Philippines, Czech Republic, India, and Romania. There have also been numerous instances of legislative reform linked to the ICESCR. For example, in Australia, a number of acts have referenced the ICESCR. These include the Native Titles Act of 1993, the Torres Strait Islander Commission Act of 1989, the Workplace Relations Act of 1996, and the Industrial Relations Reform act 1993. Similarly, India’s government referenced the ICESCR when it passed the Protection of Human Rights Act in 1993 (501). Emboldened by their government’s ratification of a human rights treaty, civil society groups can lobby for new laws or for amending or repealing existing laws to better reflect the norms prescribed by the treaty. They can help frame issues for legislative bodies, monitor executive implementation, and stimulate judicial interventions. They can ask domestic courts to apply the language of the international

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human rights treaty in domestic judicial contexts (Gauri and Brinks 2008; Simmons 2009). A variety of countries have also undertaken national action plans on human rights, which typically focus on particular interest groups highlighted by these conventions. For example, the South African Human Rights Commission has a particular mandate to monitor the socioeconomic rights described in the ICESCR (Heyns and Viljoen 2001, 503), while the Indonesian Human Rights Commission noted that almost half its case load related to “violations of the rights to welfare” (Tomasevski 2006). The domestic effects of state–regime interactions would include introducing, repealing, or amending legislation, the creation of national human rights institutions, and usage of the language of international treaties by domestic courts as binding on domestic politicians (Tomasevski 2006; Gauri and Brinks 2008). Some states that ratified the ICESCR subsequently even changed their national constitutions to be consistent with ICESCR treaty norms. The impact of the ICESCR was especially strong during the constitution-drafting processes in Brazil and South Africa (Heyns and Viljoen 2001). The provisions of the ICESCR also played a large role in the drafting of the Philippines’ 1987 bill of rights, the Colombian and Romanian constitutions in 1991, and the Czech Republic’s constitution in 1993 (Heyns and Viljoen 2001, 500–501). Finally, the “spiral model” of international regime influence on human rights (Risse and Sikkink 1999; Haglund and Aggarwal 2011) highlights a series of linkages and feedback loops between domestic and transnational groups. The premise of the spiral model is that domestic NGOs, especially in developing countries, appeal to transnational NGOs to highlight the plight of citizens in these countries. These transnational NGOs promote human rights norms and pressure Western governments to utilize a variety of mechanisms, including IGOs as well as their own policy choices, to persuade developing countries’ governments, especially where rights realization is not a priority, to change their behavior. In particularly tough cases this process takes a series of turns which may well start with governments’ denying any problems, followed by a process of justification whereby they become “trapped” in the language of rights (Risse and Sikkink 1999). This leads to changes in their behavior, and eventually politicians come to recognize the legitimacy of rights. The Program-Lending Regime Since the 1980s, the leaders of the World Bank and the IMF have negotiated agreements with various states requiring loan recipients to liberalize and privatize their economies in the context of strict budget discipline. We refer to these arrangements as program lending. Such measures were intended to jump-start economic growth and free up resources for debt service. It is unlikely that bad outcomes for ESR were intended by the designers of the program-lending regime. More likely, a shift in power from the state to the

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market may cause worsened human rights practices by governments mainly because a strong state and substantial government intervention in the market are essential for the progressive realization of ESR (Donnelly 2003; Stiglitz 2002). The IMF and the World Bank have enacted a broad set of policies designed to carefully regulate the behavior of borrower states. These policies are incorporated into loan agreements. They include environmental impact statements, regulations on the treatment of indigenous peoples, the participation of NGOs in project planning, cooperation with technical assistance programs, and performance ratings of governments according to the criteria in the country policy and institutional assessments. Neither institution is hostile to the progressive realization of ESR in the countries that participate in program lending. Both institutions have endorsed the Millennium Development Goals and are concerned with poverty reduction, which implies greater enjoyment of internationally recognized ESR (Haglund and Aggarwal 2011). The directors of the IMF and the World Bank expect that program lending will stimulate economic development, and thereby improve respect for a wide variety of human rights, including ESR (Blackmon 2008). The bank and the fund have consistently emphasized the importance of improving the accountability of governments to their citizens. Still, we think it is important that the advancement of human rights is not explicitly part of the charter of either international financial institution. Until the 1990s, leaders of the bank and the fund worried, sometimes publicly, that an emphasis on human rights when negotiating loans would allow politics to enter into decisions that should be purely economic. Neither institution wanted to encroach too much on the sovereignty of the governments they were trying to help. As an illustration of this position, during the 1960s, the UN General Assembly passed a series of resolutions urging the bank not to provide loans to Portugal or South Africa because of their colonial and apartheid policies, respectively. The bank, preferring to maintain its apolitical character, ignored the resolutions and continued lending to both countries (Bleicher 1970). The bank now acknowledges its responsibilities for advancing human rights, but the IMF has been unwilling to do so (Blackmon 2008). As recently as 2001, responding to criticism that the IMF was ignoring the human rights consequences of its activities, an IMF spokesperson declared that it was not obligated to promote human rights around the world. Grant B. Taplin, assistant director in the IMF’s Geneva office, stated before the UN Sub-Commission on the Promotion and Protection of Human Rights that the fund, in a strict sense, does not have a mandate to promote human rights. Taplin also stressed that the IMF is not “bound by various human rights declarations and conventions” (Capdevila 2001). Several members of the sub-commission expressed their disappointment. Yozo Yokota, of Japan, noted that human rights are “peremptory norms” that cannot be ignored in

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agreements between states or in the operations of international financial institutions (Capdevila 2001). Beginning in the mid-1990s, the leaders of the World Bank issued a series of statements acknowledging that the advancement of at least some human rights was part of its mission. The bank issued its clearest statement in commemoration of the fiftieth anniversary of the Universal Declaration of Human Rights. The statement was titled Development and Human Rights: The Role of the World Bank (World Bank 1998). It describes the bank’s view of its role in promoting respect for human rights around the world. First, it says that the bank must be concerned about the advancement of human rights around the world, because, as a creation of the United Nations, the World Bank must advance the human rights goals of the parent organization. Second, the bank acknowledges that it should be measuring its progress not just by how much economic growth it helps produce but also by the extent to which growth is accompanied by increased enjoyment of economic and social human rights by the citizenry of these countries. Economic growth, which does increase enjoyment of ESR, should be accompanied by significant reductions in poverty and advances in standards of living for the masses. In other words, the growth should be equitable. Finally, the bank acknowledges that respect for some human rights might be necessary preconditions for growth to occur. Subsequent to the issuance of this report, James Wolfensohn, then president of the bank, started to redefine its operational procedures to be consistent with the human rights statement. His new development paradigm was called the Comprehensive Development Framework.6 In it, the bank acknowledges (see World Bank 2003) that without the protection of human and property rights, and a comprehensive framework of laws, no equitable development is possible. The emphasis of the World Bank on promoting respect for ESR continues today. Despite the human rights neutrality of the IMF and the advocacy of the World Bank, most quantitative studies of the human rights effects of the programlending regime report negative effects on various types of human rights (Abouharb and Cingranelli 2006, 2007, 2009; Keith and Poe 2000; Franklin 1997; SAPRIN 2004; Vreeland 2003). However, the empirical issue is not settled; Eriksen and de Soysa (2009) find that participation in program lending led to improvements in government respect for personal-security rights. Research Design These arguments about the likely direction of regime impacts and previous research provide the foundation for three hypotheses. First, the longer a government’s participation in the ICESCR, the greater its respect for ESR. Second, the longer a government’s participation in program lending, the worse its respect for

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ESR. Third, the greater the number of international organizations in which a government participates, the worse its respect for ESR. We examined the 131 developing economies that existed as independent states from 1981 to 2007. Following Milner, Poe, and Leblang (1999), Milner et al. (2004), Moon and Dixon (1985), and Callaway and Harrelson-Stephens (2004), we used Morris’s (1979) physical quality of life index (PQLI) and its individual components as our measures of ESR outcomes. The PQLI is a composite of three indicators: infant mortality per thousand live births, life expectancy at age one, and the adult literacy rate. The three independent variables of chief theoretical interest are the measures of participation in the human rights regime, international finance regime, and other regimes. Consistent with the multistage spiral model of human rights realization outlined in the introduction of this book, we measured participation in the human rights regime as the number of years since ratification.7 Similarly, we measured participation in the program-lending regime as the cumulative number of years countries had participated in program lending over the period of our study. The third independent variable of theoretical interest is the total number of IGOs in which each country participated in a particular year. Findings We present only a brief summary of our findings here, because of space limitations. As shown in table 1.1, countries that had participated in the ICESCR for longer periods of time (ICESCR ratification) had higher scores on the PQLI, our measure of respect for ESR. Countries that had participated in program lending for greater periods of time (World Bank & IMF program lending) had lower scores on the PQLI. Finally, countries that participated in a larger number of intergovernmental organizations (IGOs joined) also had lower scores on the PQLI. The second column in the table (Model 2) includes the usual control variables, all of which produced results consistent with the literature. The detailed tables containing the results of the statistical analysis and the robustness tests are available from the authors by request. Discussion Our theory suggests that the positive contribution of the ESR regime and the negative contribution of the program-lending regime can be best explained by the multiple-principal problem, which leads to less accountability by politicians to citizens’ demands. The exception, we claim, occurs when additional principals reinforce citizen demands for human rights. The literature on regime influence suggests other possibilities for explanations of why participation in some regimes would matter while participation in others would not. We reject them all, and here we explain why. The literature suggests two attributes of regimes that might explain their relative influence over domestic human rights practices: the degree of support

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table 1.1 Generalized Least Squares Model: IGO Membership, ICESCR Ratification, World Bank & IMF Program Lending and Their Impact on Physical Quality of Life Index (PQLI), 1981–2007, All Developing Countries Model 1 PQLI (no control Model 2 PQLI (with control variables) variables) ICESCR ratification World Bank and IMF program lending IGOs joined

1.085*** (0.0285) −0.922*** (0.0420) −0.0337*** (0.00898)

Control variables Level of democracy Log of population Log of GDP per capita Incidence of interstate war Incidence of civil war UK colonial heritage International NGOs in country Government respect for workers’ rights Trade as percentage of GDP Year Constant Observations

65.24*** (0.499) 3,198

0.597*** (0.0240) −0.231*** (0.0397) −0.0510*** (0.00793) 0.766*** (0.0454) 2.595*** (0.114) 12.20*** (0.156) –3.290* (1.531) –0.982** (0.364) 2.122*** (0.279) 0.00262*** (0.000283) 0.993*** (0.202) 0.0662*** (0.00459) –0.438*** (0.0324) 790.2*** (64.20) 2,188

NOTE: Standard errors in parentheses *** p < .001 ** p < .01 * p < .05 ^ p < .1

a particular regime receives from powerful governments in the world and their relative degrees of legalization. Neither explanation helps explain the findings described above. First, realist theorists have argued that regimes are likely to exert greater influence in changing the behavior of participants if they have the strong support of the

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most powerful states in the international system (see e.g. Krasner 1983). These would be the industrialized democracies, especially the United States. Those governments, along with the private international banks, have assigned the IMF and the World Bank the responsibility for establishing the system of rules and decision-making procedures that determine which developing countries receive capital and under what conditions. When the IMF and the World Bank declare that a government’s economic reform program is “off track,” governments and banks usually also withhold most financing (Stiglitz 2002). To emphasize the leadership role played by the U.S. government, many observers have referred to the norms and principles of the international finance regime as representing the “Washington consensus.” In contrast, the U.S. government is not a strong supporter of the ICESCR regime. This difference led us to expect that participation in program lending would exert a stronger human rights influence than would participation in the ICESCR. However, we found the opposite. The literature also suggests that regimes also are likely to exert greater influence in changing the behavior of participants if their norms are legalized. “Legalization” of regime norms refers to properties that the institution governing regime compliance may or may not possess—obligation, delegation, and precision (Abbott et al. 2000). On all three dimensions, the program-lending regime is more legalized than the human rights treaty regime. Regarding the degree of obligation of participants to follow regime norms, the directors of the bank and the fund can reduce, increase, or terminate financing to governments that do not comply with their conditions (Stiglitz 2002); while, other than “naming and shaming,” the UN committee has no mechanisms at its disposal to punish defectors (Hafner-Burton 2008; Hafner-Burton and Tsutsui 2005). Program-lending rules are also more precise, because the expected conduct is spelled out in negotiated program-lending agreements. By contrast, the “progressive realization” principle for compliance with the ICESCR is vague and, perhaps for this reason, overall compliance is not measured. The more legalized relationship that characterizes program lending is demonstrated by the broader set of policies designed to carefully regulate the behavior of borrower states. These differences in degree of regime legalization also led us to expect that program lending would exert a stronger influence on the human rights practices of its participants than would the ICESCR regime, but we found the opposite. We argue instead that regimes are more likely to exert greater and more positive influence over participant human rights practices if human rights improvement is an explicit part of their mandates. Regimes without explicit human rights mandates may exert human rights effects but these effects are likely to be unintended, indirect, unmonitored, and unrewarded. Therefore, they are likely to be weaker in size and less positive. For this reason one would expect the effects of participation in the human rights regime to be larger and more positive, and they are.

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Conclusion This chapter offers a new theoretical framework to analyze the influence of international regimes on the domestic politics of human rights protection. We argue that the influence of international regimes arises as an outcome in a multipleprincipal problem. Each international regime is a new principal for the national government, and all such new principals compete with each other and with the ultimate principal, the citizens of the nation-state, for influence on the national government, their common agent. The longer the government participates in an international regime without explicit human rights goals, the less accountable to citizens the national politicians become, and therefore one can expect more human rights violations. On the other hand, participation in an international regime aimed at promoting human rights can improve the accountability of politicians jointly to international bodies and to citizens, since these two principals share similar goals, and therefore one can expect fewer human rights violations. Our illustrative examples suggest that participation in international regimes can substantially affect the motivations of state-level politicians to devote their efforts to protecting human rights. We assess the effect of the International Covenant on Economic, Social and Cultural Rights. Participation in the covenant encourages politicians to make more efforts to protect ESR. In comparison, participation in program lending discourages politicians from making strong efforts to protect ESR. Our arguments also demonstrate the application of the multiple-principals problem within the MAPs framework of this volume. We highlight the importance of the MAPs framework’s focus on actors and motivations. In particular we find, somewhat ironically, that as the number of pathways to hold leaders accountable increases, so does the agency loss. This agency loss occurs as political leaders navigate strategically between their international obligations in ways that require less effort from them in realizing ESR. Only when pathways explicitly demand better human rights outcomes, as with the ICESCR, do we find improvement on our metrics of ESR. Our study of the multiple-principals problem within the MAPs framework can apply to all human rights, not just the realization of ESR. Where greater agency loss occurs and political leaders become less accountable for their actions, we expect that human rights outcomes will worsen. For example, we find that ratifying more international covenants worsens ESR outcomes, a good example of agency loss. ESR outcomes worsen because political leaders face more demands to focus their efforts in other areas of policy and place less importance on human rights. Human rights outcomes improve the most when states ratify conventions that explicitly mention human rights. Generally, our findings indicate that research seeking to build theories of why governments respect human rights should give greater attention to the human rights consequences of participation in international regimes. Our research has taken some tentative first steps by emphasizing how the multiple-principals

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problem created by regime participation affects the incentives of politicians to protect human rights. We do not argue that the worse outcomes associated with long participation in such regimes as program lending were due to bad motives on the part of the leaders of the IMF or the World Bank. Rather, we emphasize that additional agency loss is generated in the principal–agent relationship between citizens and politicians simply because nation-states participate in multiple international regimes, each bringing with it a new principal with different preferences and a new contract with politicians. Most of those principals care less about human rights than citizens do. These principals expect politicians to devote effort to other tasks besides making stronger policies protecting human rights and monitoring their implementation, and with the addition of new principals, the preferences of the citizens are less salient for the agent. Our arguments also link to the broader themes of this volume by illustrating how the number and type of regimes that countries join can strengthen or weaken the possibility of positive social transformation enabling the realization of ESR within states. An important practical implication of our findings is that increasing national participation in international organizations and regimes should be complemented by corresponding and purposeful efforts to promote government accountability to citizens, and most importantly to safeguard various human rights. Without such efforts, more active participation in international regimes that do not emphasize human rights promotion is likely to be associated with less effort by national-level politicians to protect human rights—an important indicator of the accountability of politicians to their citizens. NOTES 1. We use the term international regime to refer to a set of explicit or implicit principles, norms, rules, and decision-making procedures created by international governmental organizations to constrain the behavior of regime participants in a particular issue area (Koremenos, Lipson, and Snidal 2001). A single international governmental organization can create hundreds of different international regimes, and every national government participates in many international regimes. When a national government decides to join a particular regime, national politicians agree to comply with its norms. 2. In contrast, Sano in this volume notes the social accountability model developed at the World Bank in the mid-1990s to improve ESR outcomes. However, as Sano notes, there is little evidence that the model improves realization of these rights. From our perspective, any positive aspects of the social accountability model are outweighed by the negative ESR consequences of World Bank program lending. 3. See Felice in this volume for a supportive view. See also Nelson in this volume for a discussion of how international NGOs incorporate economic, social, and cultural rights into their day-to-day workings. 4. Described by Haglund and Stryker in the introduction to this volume.

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5. But for a counterargument and evidence to the contrary, see Hafner-Burton (2008). 6. A number of documents and other resources on the Comprehensive Development Framework are available on the bank’s website (www.worldbank.org). 7. Most studies have used a dichotomous measure of participation, assigning a government a score of 1 if it had ratified the convention and 0 if it had not (but see Landman 2005).

REFERENCES Abbott, Kenneth W., Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. 2000. “The Concept of Legalization.” International Organization 54(3):401–19. Abouharb, M. Rodwan, and David Cingranelli. 2006. “The Human Rights Effects of World Bank Structural Adjustment, 1981–2000.” International Studies Quarterly 50(2):233–62. . 2007. Human Rights and Structural Adjustment. Cambridge: Cambridge University Press. . 2009. “IMF Programs and Human Rights, 1981–2003.” Review of International Organizations 4(1):41–72. Bauhr, Monika, and Naghmeh Nasiritousi. 2012. “How Do International Organizations Promote Quality of Government? Contestation, Integration, and the Limits of IO Power.” International Studies Review 14(4):541–66. Blackmon, Pamela. 2008. “Rethinking Poverty through the Eyes of the International Monetary Fund and the World Bank.” International Studies Review 10:179–202. Bleicher, Samuel. 1970. “UN v. IBRD: A Dilemma of Functionalism.” International Organization 24(1):31–47. Bovens, Mark. 1998. The Quest for Responsibility: Accountability and Citizenship in Complex Organisations. Cambridge: Cambridge University Press. Callaway, Rhonda L., and Julie Harrelson-Stephens. 2004. “The Path from Trade to Human Rights: The Democracy and Development Detour.” In The Systematic Study of Human Rights, edited by Sabine Carey and Steven C. Poe, 87–109. Aldershot: Ashgate. Camdessus, M., 1990. Statement before the United Nations Economic and Social Council in Geneva, July 11. IMF Survey 19(15):235. Capdevila, Gustavo. 2001. “IMF Not Taking into Account Human Rights Issues.” Global Policy Forum, August 13. https://www.globalpolicy.org/component/content/article /209/42944.html. Cardenas, Sonia. 2007. Conflict and Compliance: State Responses to International Human Rights Pressure. Philadelphia: University of Pennsylvania Press. Chapman, Audrey R., and Benjamin Carbonetti. 2011. “Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights.” Human Rights Quarterly 33:682–732. Cingranelli, David, Paola Fajardo-Hayward, and Mikhail Filippov. 2014. “Principals, Agents and Human Rights.” British Journal of Political Science 44(3):605–630. Dixit, Avinash. 1996. The Making of Economic Policy. Cambridge, MA: MIT Press. Donnelly, Jack. 2003. Universal Human Rights in Theory and Practice. 2nd ed. Ithaca, NY: Cornell University Press.

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Eriksen, Silja, and Indra de Soysa. 2009. “A Fate Worse Than Debt? International Financial Institutions and Human Rights, 1981–2003.” Journal of Peace Research 46(4):485–503. Franklin, James. 1997. “IMF Conditionality, Threat Perception, and Political Repression: A Cross-National Analysis.” Comparative Political Studies 30:576–606. Gauri, Varun, and Daniel M. Brinks. 2008. “A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World.” In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, edited by Varun Gauri and Daniel M. Brinks, 303–52. New York: Cambridge University Press. Goodman, Ryan, and Derek Jinks. 2013. “Social Mechanisms to Promote International Human Rights: Complementary or Contradictory?” In The Persistent Power of Human Rights: From Commitment to Compliance, edited by Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, 103–122. Cambridge: Cambridge University Press. Hafner-Burton, Emilie M. 2008. “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem.” International Organization 62(4):689–716. . 2012. “International Regimes for Human Rights.” Annual Review of Political Science 15:265–86. Hafner-Burton, Emilie M., and Kiyoteru Tsutsui. 2005. “Human Rights in a Globalizing World: The Paradox of Empty Promises.” American Journal of Sociology 110(5):1373–1411. Haglund, LaDawn, and Rimjhim Aggarwal. 2011. “Test of Our Progress: The Translation of Economic and Social Rights Norms into Practice.” Journal of Human Rights 10(4):494–520. Hathaway, Oona. 2002. “Do Human Rights Treaties Make a Difference?” Yale Law Journal 111(8):1935–2042. . 2007. “Why Do Countries Commit to Human Rights Treaties?” Journal of Conflict Resolution 51(4):588–621.Heyns, Christof, and Frans Viljoen. 2001. “The Impact of the United Nations Human Rights Treaties on the Domestic Level.” Human Rights Quarterly 23(3):483–535. Holmstrom, Bengt, and Paul Milgrom. 1991. “Multitask Principal Agent Analyses: Incentive Contracts, Asset Ownership, and Job Design.” Journal of Law, Economics, and Organization 7:24–52. Keith, Linda, and Steven C. Poe. 2000. “The United States, the IMF, and Human Rights.” In The United States and Human Rights, edited by David F. Forsythe, 273–99. Lincoln: University of Nebraska Press. Koremenos, Barbara, Charles Lipson, and Duncan Snidal. 2001. “The Rational Design of International Institutions.” International Organization 55(4):761–800. Krasner, Stephen D., ed. 1983. International Regimes. Ithaca, NY: Cornell University Press. Landman, Todd. 2005. Protecting Human Rights: A Global Comparative Study. Washington, DC: Georgetown University Press. McNeill, Desmond, and Asunción Lera St. Clair. 2009. Global Poverty, Ethics and Human Rights. Abingdon: Routledge. Milner, Wesley T., David Leblang, Steven C. Poe, and Kara Smith. 2004. “Providing Subsistence Rights: Do States Make a Difference?” In The Systematic Study of Human Rights, edited by Sabine Carey and Steven C. Poe, 110–24. Aldershot: Ashgate. Milner, Wesley T., Steven C. Poe, and David Leblang. 1999. “Security Rights, Subsistence Rights, and Liberties: A Theoretical Survey of the Landscape.” Human Rights Quarterly 21(2):403–44.

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Minkler, L. 2013. The State of Economic and Social Human Rights: A Global Overview. Cambridge: Cambridge University Press. Moon, Bruce E., and William J. Dixon. 1985. “Politics, the State, and Basic Human Needs: A Cross-National Study.” American Journal of Political Science 29:661–94. Morris, Morris David. 1979. Measuring the Condition of the World’s Poor: The Physical Quality of Life Index. New York: Pergamon. Mulgan, Richard. 2003. Holding Power to Account: Accountability in Modern Democracies. Houndmills: Palgrave Macmillan. Neumayer, Eric. 2005. “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution 49(6):925–53. Oberthür, Sebastian, and Thomas Gehring. 2006. Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies. Cambridge, MA: MIT Press. Raustiala, Kal, and David G. Victor. 2004. “The Regime Complex for Plant Genetic Resources.” International Organization 58(2):277–309. Risse, Thomas, and Kathryn Sikkink. 1999. “The Socialization of International Human Rights Norms into Domestic Practices: Introduction.” In The Power of Human Rights: International Norms and Domestic Change, edited by Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, 1–38. Cambridge: Cambridge University Press. SAPRIN (Structural Adjustment Participatory Review International Network). 2004. Structural Adjustment: The SAPRIN Report: The Policy Roots of Economic Crisis, Poverty, and Inequality. London: Zed Books. Simmons, Beth. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press. Stiglitz, Joseph. 2002. Globalization and Its Discontents. New York: W. W. Norton. United Nations. 1966. International Covenant on Economic, Social and Cultural Rights. www.ohchr.org/EN/ProfessionalInterest/Pages/cescr.aspx. Tomasevski, Katarina. 2006. “Strengthening Pro-Poor law: Legal Enforcement of Economic and Social Rights.” www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinionfiles/2398.pdf. Vreeland, James Raymond. 2003. The IMF and Economic Development. Cambridge: Cambridge University Press. World Bank. 1998. Development and Human Rights: The Role of the World Bank. Washington, DC: World Bank. . 2003. Toward Country-Led Development: A Multi-Partner Evaluation of the Comprehensive Development Framework. Washington, DC: World Bank. Young, Oran R., W. Bradnee Chambers, Joy A. Kim, and Claudia ten Have, eds. 2008. Institutional Interplay: Biosafety and Trade. Tokyo: United Nations University.

Chapter 2

Linking Law and Economics Translating Economic and Social Human Rights Norms into Public Policy William F. Felice

Central to the successful translation of economic and social human rights norms into public policy is the clear articulation of the nexus between law and economics. Scholars have inadequately elaborated the critical links between international political economy and international human rights law. This chapter begins to fill this gap by exploring the ways in which the integration of legal and economic approaches can help states more fully articulate avenues to meet their duties to respect, protect, and fulfill economic and social human rights. After clarifying the basic definitions of central concepts, including economic and social human rights, global public goods, and common resources, I explore two concrete economic and social human rights claims, a right to health and a right to a healthy environment. My central argument is that the linkage of the economic concepts of global public goods and common resources to the legal obligations of states under human rights law helps states formulate effective policies to actualize these rights. On the one hand, the economic classifications of global public goods and common resources provide clear economic justification for government intervention in the market to ensure their adequate provision. On the other hand, the legal duty of states under economic and human rights law provides clear legal justification for government action to protect the vulnerable. Pieces of this chapter on defining economic and social human rights, global public goods, and the economic justifications for state intervention are taken directly from parts of my book The Global New Deal: Economic and Social Human Rights in World Politics (2nd ed., Lanham, MD: Rowman & Littlefield, 2010), chapters 2 and 3, 27–123. Diana Fuguitt, professor of economics at Eckerd College, is the coauthor of chapter 2 of The Global New Deal. I am grateful to Rowman & Littlefield Publishers for permission to draw on this previously published work.

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For example, the UN Committee on Economic, Social and Cultural Rights (CESCR) has clarified a minimum core obligation of states to meet their legal duties regarding the “right to health” of their citizens (CESCR 2000). Yet, the actual policies that states should adopt to meet these legal obligations remain vague. The law does not clarify the public policies that give states the best means to provide for equal access to adequate and affordable health care. Here lies the link to economics. The economic categories of global public goods and common resources provide a framework useful to states in the development of effective public policy to safeguard the right to health. In pursuing this direction, Barrett (2007, 20) articulates a “simple taxonomy of global public goods” which outlines a framework to more fully articulate state policy in relation to the fulfillment of these goods. Barrett’s proposal is utilized below in relation to the development of global and national public policy to provide for health care as a public good. The linkage between law and economics is also critical in regard to the right to a healthy environment. As outlined below, a convincing legal case can be made to justify strong state action to protect the environment. Yet it is only by combining this legal argument with the economic understanding of the environment as a common resource and a global public good that effective public policy making in this area emerges. In regard to the right to a healthy environment, I explore the work of Elinor Ostrom, 2009 Nobel laureate in economics. Ostrom (1990) has compiled substantial evidence of institutional and community arrangements that effectively manage common resources and avoid the “tragedy of the commons.” Her work offers lessons to guide international common resource management. Her ideas are applied below to the development of public policy to protect common resources and respect the right to a healthy environment. In the introduction to this volume, Haglund and Stryker describe a “process whereby norms are iteratively adopted and embodied in new forms that, under certain conditions, lead to social transformation.” After suggesting three “analytic moments” (belief formation, action formation, and transformational mechanisms), Haglund and Stryker propose a sequence of mechanisms, actors, and pathways (MAPs) central to the process of human rights realization. The alternative framing of human rights as global public goods described in this chapter reflects Haglund and Stryker’s depiction of the central processes of social transformation. Consider, for example, Haglund and Stryker’s three analytic moments in relation to the human rights discussed in this chapter: the right to health and the right to a healthy environment. Both rights are clearly articulated in international human rights law, and thus belief formation is well advanced. However, action formation is stymied by differences in perceived solutions (the states-versus-markets debate) and weak accountability mechanisms. As a result, even when these human rights norms are adopted, the protection and provision of the rights remain

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weak. I therefore argue in this chapter that the transformational mechanisms to realize these human rights depend upon an alternative framing of economic, social, and environmental rights as global public goods, which by definition are not achievable through market mechanisms alone. This reframing opens up political space for the articulation of public policy, new mechanisms of enforcement, and subsequently more favorable human rights outcomes. The mechanisms, actors and pathways central to this transformative approach are explicated in detail throughout this chapter. Defining Economic and Social Human Rights Economic and social human rights are fully defined and codified in international law. Economic rights include the right to property, the right to work, and the right to social security. Social rights include those rights necessary for an adequate standard of living, including rights to food, health, shelter, and education. This body of international law holds the state responsible to respect, protect, and fulfill these international economic and social human rights. A state violates this law if it fails to satisfy a core obligation to ensure the satisfaction of a minimum essential level of these rights.1 International human rights law gives states flexibility regarding how they are to go about fulfilling these legal obligations, but steps must be taken within a reasonably short time after the covenant’s entry into force to meet the recognized duties. The CESCR (1990) attempts to establish a “minimum core obligation” that each state must achieve. Yet, the policies that states should implement to guarantee these rights (including essential primary health care, basic shelter, and basic education) are often controversial, and consequently unclear. These rights claims often lead to a contentious debate over the proper relationship between the state and the market. Some economists and politicians seek market-based solutions with minimal state intervention; others argue for state intervention in the face of the market’s failure to provide these goods; while still others want these economic goods taken out of the market altogether, with the state providing guarantees for their provision. To address these issues it is necessary to link the legal economic and social human rights claims to the field of economics and the economic categories of “global public goods” and “common resources.” Defining Global Public Goods and Common Resources Samuelson (1954, 387) defines a public good as a product “which all enjoy in common in the sense that each individual’s consumption of that good leads to no subtraction from any other individual’s consumption of that good.”2 A clean and healthy environment is a pure public good. Individual enjoyment of the environment does not distract from the pleasure of others in clean air and water. Yet, as the

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environmental crisis so tragically illustrates, public goods are often neglected and suffer from underprovision. To set up a business, an entrepreneur depends on critical factors such as a peaceful society, clean air, clean water, and so on. A businessperson’s ability to produce “private goods” or services to sell in the market depends on these other “public goods” being provided. The benefits of these public goods are clearly not limited to a single producer or buyer; once they are provided for a single individual, many others can enjoy the benefits without payment. Market mechanisms have historically failed to provide these types of goods. There are two qualities of public goods and services that are recognized as limiting financial incentives and contributing to market failure: nonrivalry in consumption and nonexcludability. Nonrivalry in consumption refers to those goods that any number of consumers may enjoy without detracting from the enjoyment of others (Samuelson 1958, 335).3 Nonexcludability and nonrivalrous consumption mean that there are insufficient market incentives to provide allocatively efficient quantities of public goods like peace or clean air. Why? Because nonexcludability results in what is called the “free-rider problem.” A free rider is someone who benefits from a good without paying to support the good’s production. It is not possible to charge the occupants of one household for the clean air they breathe if their neighbors breathe it for free. The pure public good characterized by nonrivalry and nonexcludability is one polar case. And at the other end of the spectrum are pure private goods that are both rivalrous and exclusionary. In between these pure polar ends is a wide continuum for what Samuelson (1958, 335) identifies as the “mixed case [that] has elements of both in it.” Indeed, there are a relatively small number of pure public goods. Many more goods combine a mixture of public and private good characteristics. In addition, common resources are defined as resources characterized by nonexcludability (that is, it is prohibitively expensive if not impossible to exclude others from access to the resource) yet rivalry (one person’s use of the resource detracts from the quantity or quality available to others; Ostrom et al. 1999, 278– 82). For example, fishing on the high seas outside territorial limits is characterized by open access, but catching a fish is rivalrous, reducing the stock available to others—and, as rapidly declining fish populations suggest, not only for current but also future generations of fishers.4 As the discussion so far suggests, a range of goods classifications (i.e., pure public goods, mixed goods, common resources) entail some degree of nonrivalry and/ or nonexcludability. Goods fitting these categories either are entirely public or have elements of public characteristics. But what makes any of these goods with public characteristics global is their universal dimensions and the global reach of their positive or negative externalities. In our interdependent world, many public

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goods have these universal and global aspects and thus can no longer be seen as only national in character. Kaul, Grunberg, and Stern (1999, 509–510) define a global public good as “a public good with benefits that are strongly universal in terms of countries (covering more than one group of countries), people (accruing to several, preferably all, population groups) and generations (extending to both current and future generations, or at least meeting the needs of current generations without foreclosing development options for future generations).” Economic and Social Human Rights as Global Public Goods In many cases, the fulfillment of economic and social human rights at the national level depends on the protection and promotion of global public goods internationally. There is a class of goods and services to which all people in all countries can make human rights claims, including basic education; a healthy environment; food and water; primary health care and sanitation; and housing. If our concern is avoiding destitution and achieving equality based on the freedom to achieve and the capability to function (as developed by Amartya Sen), access to these goods should be guaranteed by state and international actors (Sen 1992, 4–5, 39). This category of economic and social human rights thus deserves special attention in public policy making (Dasgupta 1993, 149). It is useful to classify these fundamental economic and social human needs as global public goods, because aspects of these goods are nonexcludable and/or nonrivalrous. This classification provides a clear economic justification for government intervention in the market to ensure their provision. The satisfaction of these public goods makes life possible. The needs these public goods fulfill are universal to all humanity. Economic and social human rights are in essence claims for the fulfillment of these human needs, which are global public goods. It is true that there is a difference in excludability between, for example, health care and clean air. It is impossible to withhold clean air from the rich and the poor alike. Health care, on the other hand, can be provided only to those with money. But there are more similarities than differences between these goods in their many public good characteristics. They are essential for the well-being of the individual, the stability of society, and the efficient functioning of the economy overall. Their consumption generates social (global) benefits far greater than the private benefits to the individual consumer. Classifying these basic human needs (basic education; a healthy environment; food and water; primary health care and sanitation; and housing) as global public goods clarifies their central importance. While economic and social human rights claims have been clearly articulated in international law, the economic justification for government intervention to promote and protect these public goods too often remains obscure. A discussion of the public goods component to the human right to health and the human right to a healthy environment will hopefully help clarify these issues.

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The public in the United States is engaged in a wide-ranging and spirited debate on the obligations of the state in regard to the health of its citizens. There are conflicting views, for example, on whether a “human right” to health care exists. Even those who are in favor of such a right often have difficulty clarifying the ways in which the state must act to respect, protect, and fulfill an individual’s right to health. Central to this conceptual fog is a polarization of views on the proper relationship between the state and the market in the efficient provision of health services. At one pole, individuals argue for “privatization” and minimal state interference in a market-incentive-based health system. Those at the opposite pole seek a “single payer” framework, with the federal government guaranteeing access to health care for all citizens. As these positions have rigidified, effective progress has stalled. It is unfortunate that the work of the United Nations agencies and human rights treaty bodies on human rights implementation has not been utilized in the U.S. national dialogue on health care. For example, through its “general comments,” the CESCR has clarified state obligations regarding a human right to health that flow from existing human rights law. Not only has this human rights framework been ignored in the U.S. debate on health care; the global dimensions to effective U.S. health protection and health care have also not been a part of the national debate. This section reviews: • •

•

the legal claims in human rights law to primary health care and sanitation the economic justification of health as a global public good requiring government intervention the symbiotic relationship between national public goods and global public goods, clarifying directions for effective health public policy. Legal Claim: Primary Health Care = Equal Access to Adequate and Affordable Health Care and Sanitation

The “right to health” is found in the International Covenant on Economic, Social and Cultural Rights (ICESCR 1996), which recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (Article 12.1). The CESCR (2000) asserts that this right hinges on availability and accessibility. Functioning public health facilities, goods and services, and programs are to be available in sufficient quantity. These include safe and potable drinking water and adequate sanitation facilities; hospitals, clinics and other health-related buildings; trained medical and professional personnel receiving domestically competitive salaries; and essential drugs. These health facilities, goods, and services have

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to be accessible to everyone within the jurisdiction of the state, without discrimination. Accessibility has four overlapping dimensions: nondiscrimination, physical accessibility, economic accessibility (affordability), and information accessibility (3–4). As can be seen, the CESCR and other legal experts have provided state and nonstate actors with a clearly defined understanding of the obligations and duties to uphold the human right to health. It is thus no longer credible to argue that the right to adequate and affordable health care is too vague to implement and enforce. The minimum core legal content of this right has been clarified by the CESCR. It is now the legal duty of states, regardless of their political and social systems, to respect, protect, and fulfill this core right for all citizens. Yet, the economic argument remains unresolved. State leaders could still argue that a market-incentives-based system with minimal government involvement is the most efficient means to fulfill these legal duties. The “necessary steps” to implement the ICESCR would then involve “privatization” of hospitals, health insurance, and health care overall. Yet, historically, the welfare of the poor and working class has not been well served by such privatization schemes. The market fails to provide an adequate provision of health services to the population as a whole. One approach to addressing this dilemma is to link the legal/human rights arguments for a right to health to the idea of health as a global public good. Such an approach provides a clear economic justification for government intervention in the market to overcome “market failure” and assure access to adequate and affordable health care for all. Economic Justification for Government Intervention: Health as a Global Public Good Globalization has had a profound impact on many aspects of life, including health. The massive movements of people across borders (refugees, immigrants, international travelers), combined with new linkages in trade, have created new global health vulnerabilities and raised global health risks; and the revolution in information technology has enabled rapid dissemination and sharing of health information globally. As H1N1 (swine flu), avian flu, HIV/AIDS, ebola virus, and smallpox demonstrate, health risks emanating from one country can create threats and dangers to populations around the world (Zacher 1999, 266–67). The human right to health contains characteristics of public goods. For example, the benefits from immunizations against contagious diseases, and the establishment of sewage systems, sanitation, and global epidemiological surveillance, are essentially nonrivalrous and nonexcludable. A person can enjoy a sanitary, disease-free environment without infringing upon another person’s enjoyment of this clean environment. Everyone can benefit from knowledge about the world’s health and awareness of foreign outbreaks of infectious diseases. Upon receiving a

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health alert, individual nations can prepare their people to respond and cope with the disease. However, the provision of these goods will fall short of social efficiency without government action. For example, state involvement is necessary to coordinate and implement society-wide immunization and disease-monitoring programs (Zacher 1999, 268). Given the global nature of the new health threats, close international cooperation and coordination are necessary to guarantee the provision of these goods for all. The effort of the World Health Organization (WHO) to eradicate smallpox exemplifies the global nature of these public goods. One nation acting alone was unable to defeat smallpox; yet the eradication of smallpox offered benefits to all countries, in the form of reduced health risks and reduced allocation of resources toward smallpox precautions, prevention, and treatment. The WHO’s coordination of a worldwide system of disease control, health improvements, and immunizations is essential in our modern world. It is in the interests of all nations to help poor countries succeed in the provision of basic health care and sanitation (Mendez 1992, 63). The Symbiotic Relationship between National and Global Public Goods Recognizing the global dimension to public goods does not necessarily imply the need for a world government to regulate laws at the local level to assure the adequate provision of these goods. Rather, there is a need for new forms of global governance to emerge which incorporate national institutions into a global network of support and coordination. Global governance refers to the formal and informal development of rules and institutions among state and nonstate actors in a particular issue area, such as the protection of human health. Such health “regimes” would establish common rules, norms, and procedures which all states would follow.5 These governance arrangements reflect the reality of the symbiotic relationship between national and global public goods. The differences in the global approach of the world community in the fight against the spread of polio versus that of malaria demonstrate both this symbiotic relationship and the difficulty of creating national incentives for adequate public policy to protect global public goods. Polio. Scholars note that the polio epidemic peaked in the United States in 1952, when 57,000 cases were recorded, 21,000 people suffered permanent paralysis, and about 3,000 people died. This scale of suffering stimulated a race to develop a means to control the disease and, in only a short time, Jonas Salk discovered and tested an effective vaccine. The polio vaccine was a global public good and, in Oshinksy’s words, “America’s gift to the world” (2005, 215; see also Barrett 2007, 45). Barrett (2007, 22) argues that some global public goods can be supplied by a “single best effort”; “the knowledge of how to stimulate the human immune system

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to protect against polioviruses is an example.” While the polio vaccine was discovered in the United States, it was transferred for use around the world. The United States did not undertake the research to benefit other countries but to stop the epidemic raging inside its own country. Yet, the U.S. population was better protected if other nations helped eradicate the disease. The vaccine thus became available to others and became a global public good. Yet, while the knowledge to prevent polio (e.g., the vaccine) is a global public good, whether it serves to benefit people everywhere depends upon the provision of complementary national public goods. Whether the vaccination undertaken within a nation is at a sufficient rate to eliminate polio depends upon a country’s being capable of delivering minimal basic public services. Despite the “single best effort” by the United States, the effort toward global immunization against polio can be sabotaged at the national level. Unfortunately, this disruption has occurred. It appeared for a short time that the UN-led effort to totally eradicate polio might succeed. After Somalia was removed from the list in 2004, the number of polio-endemic countries was reduced to zero. UNICEF declared the achievement a “miraculous victory for children over conflict and devastation.” Yet, tragically, this announcement proved premature. A few months later, in Mogadishu, a 15-month-old girl was diagnosed with polio. Later, more cases were confirmed, and by March 2006, a total of 200 polio cases had been identified. Barrett notes (2007, 54–55): “Only about one in 200 persons infected with polio suffer paralysis, and so an outbreak of this magnitude implies around 40,000 infections. Even more worryingly, the disease had spread into outlying regions. An epidemic was underway.” Somalia was not the only “weakest link” in the initiative to eradicate poliomyelitis. Somalia’s first new case of polio was traced, through genomic sequencing, to Yemen—a county, like Somalia, previously declared to be polio free. Yemen’s case was traced to Chad, and from there to Nigeria. In 2003 Nigerian politicians had suspended mass vaccinations, “claiming that polio eradication was a Western plot, intended to sterilize Muslim girls and spread HIV” (Barrett 2007, 55). This action allowed the disease to spread, putting at risk not only Nigeria but the entire global initiative to eradicate polio. To a large degree, the poorest polio immunization coverage has occurred in “failed states.” Successful immunization campaigns depend upon many factors, with good governance (a national public good) a crucial component. A nation’s leaders need to embrace the necessity of the provision of public health systems and basic health care for all their citizens. If national leaders do not accept the responsibility to respect, protect, and fulfill human rights obligations, global efforts will fail. Malaria. The United States today has little incentive to develop a malaria vaccine. Only a handful of deaths from malaria occur in the United States, and those

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are almost always a result of people traveling abroad and failing to take anti-malarial chemoprophylaxis as recommended. The situation globally is very different. The WHO’s World Malaria Report 2010 reported that in 2009 there were 225 million cases of malaria worldwide, with 781,000 deaths from the disease in that year alone (16). Approximately 90 percent of these deaths occur among those who live in Africa, and approximately 85 percent of the deaths are in children under five years of age. The ecology of Africa—tropical atmosphere, high temperatures—creates plenty of mosquito breeding sites. The disease can be controlled (if not eliminated) in Africa through household spraying, insecticide-treated bed nets, and anti-malarial medicines. Yet, these low-cost treatments often fail to reach the poor. Sachs (2005, 196–99) argues that “no children need to die [of malaria], and none will if they have access to all of the modern tools of disease prevention and treatment! Yet malaria sets the perfect trap: it impoverishes a country, making it too expensive to prevent and treat the disease. Thus malaria continues and poverty deepens in a truly vicious circle.” Sachs and others have called for billions of dollars to be invested toward the development of a malaria vaccine. Yet there is no incentive for the United States or the European Union to make the “single best effort” to provide this global public good, as there was with the polio vaccine. As Barrett (2007, 45) notes: “If malaria were as big a problem for the United States today as polio was in the 1950s, the U.S. would be investing much more money in malaria vaccine R&D. Similarly, if the countries most burdened by malaria responded in the same way as the United States did to polio, they would be investing much more in malaria R&D. Sadly— no, tragically—no country is responding in this way. Diseases like malaria that primarily affect poor countries are largely being neglected by science.” While global public goods (like a malaria vaccine) are nonexcludable and nonrivalrous in consumption, this does not mean or imply that all enjoy the good in the same way. Kaul and Conceição (2006, 57) explain: “It only means that many, sometimes all, are affected by the good’s costs or benefits. But they may be affected in different ways. The vast differences and disparities that exist in the world mean that preferences for global public goods are likely to vary considerably.” How can the incentives be created to stimulate development of a public good that would primarily benefit the poorest countries? If the big, rich countries won’t take the lead, since they remain for the most part unaffected by the dangers of malaria, how can a regime of cooperation emerge among all countries to tackle this issue? The WHO should not be forced to beg for contributions to move forward on an agenda to eliminate or eradicate malaria.6 Horton notes that while the Gates Foundation has billions of dollars at its disposal, the WHO ran a deficit in 2009 for the first time in its history. The WHO remains the only intergovernmental agency with the mandate to work at a country-by-country level to address this disease. Yet, with-

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out more global support, the WHO will be unable to lead, innovate, and harness the expertise necessary for malaria elimination or eradication (Horton 2011, 31). H UM A N R IG H T T O A H E A LT H Y E N V I R O N M E N T: G OV E R NA N C E SYS T E M S T O M A NAG E A C OM M O N RESOURCE

Legal Claim: A Human Right to a Clean, Ecologically Sound and Sustainable Environment A strong legal case can be made for a human right to a healthy environment. In “hard law” (treaties, customary law, and general principles), the right to a healthy environment is affirmed in both the African Charter on Human and Peoples’ Rights (African Charter) and the San Salvador Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Protocol). In addition, the linkages between fundamental human rights, such as the right to life and the right to health, and a healthy environment can be drawn directly from the International Covenant on Civil and Political Rights and the ICESCR. Furthermore, individual countries have expressed concern for the protection of the environment in their national laws and constitutions. In “soft law” (state recommendations, declarations, clarifications, directives, etc.), the international community has also endorsed a general right to a healthy environment. Since the 1972 Stockholm Conference on the Human Environment, there have been over a dozen global affirmations of this right in soft law instruments. For example, the UN’s special rapporteur on human rights and the environment, Fatma Zohra Ksentini, argues that there has been “a shift from environmental law to the right to a healthy and decent environment,” and proposes a set of Draft Principles on Human Rights and the Environment, calling on all states to “adopt administrative, legislative and other measures necessary to effectively implement the rights in this Declaration” (UN Commission on Human Rights 1994). These soft and hard law instruments can potentially be effective in the struggle for ecological balance. International law provides a standard from which it is possible to judge the behavior not only of states but of all economic organizations and actors. This legal approach clarifies the minimal claims for environmental protection central to basic human survival. The legal case for government action to protect the environment is clear. What about the economic justification for governmental intervention in the economy to promote ecological balance? Economic Justification for Government Intervention: The Environment as a Common Resource and a Global Public Good Many components of the environment can be considered pure public goods. Clean air, for example, is nonrivalrous and nonexcludable. An individual’s consumption

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of a unit of clean air does not subtract from any other individual enjoying a similar amount of fresh, healthy air. Protecting the stratospheric ozone layer (which acts as a protective shield for the earth against harmful ultraviolet radiation) also provides a global public good. All of us enjoy, and no one can be excluded from, the benefits of this protection. Likewise, the troposphere (the lower portion of the atmosphere) is a global public good; protecting this realm from an accelerated greenhouse effect leading to global warming provides nonrivalrous and nonexcludable benefits to all. In contrast, the dramatic changes in the world’s temperature and precipitation from a thermal expansion of the oceans caused by a melting of snow and ice in the polar regions would be extremely disruptive to the vast majority of the world’s peoples and probably devastating to coastal cities and countries on all continents (Mendez 1992, 66–69). Biodiversity can also be considered a public good in the sense that its conservation offers benefits that are largely nonexcludable and nonrival. The Convention on Biological Diversity (1992) defines biodiversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” Protecting and preserving biodiversity serves to maintain the information contained in the global gene pool, which, according to Perrings and Gadgil (2003), is a pure public good. In addition, biodiversity sustains the world’s ecosystems, the loss of which would cause long-term damage to all people’s health and food security (532–533). Unpolluted oceans and transnational lakes, rivers, and seas have also been identified as global public goods. As with air, these bodies of water cross borders and their benefits are nonrivalrous and nonexcludable. Common Resources. Many components of the environment can be considered common resources, characterized by nonexcludable yet rivalrous use. Over half of the world’s surface is outside the national borders of any one state and thus beyond national jurisdiction. Common resource areas, which include the high seas, the sea-bed, Antarctica, and outer space, have been termed the “common heritage of humankind” in international environmental law. In view of the free-rider problem, described earlier, there is a strong argument for global government regulation and intervention to protect these common resources. Open access can lead to the tragedy of the commons and overexploitation and depletion, as the example of overfishing so dramatically demonstrates. Due to ecological interdependence, there are also common resources within the borders of sovereign nations. All of humanity may have a collective interest in actions that take place within a given country. Biodiversity preservation, for example, is of interest to all even though the resources that need protection may be located within a particular national jurisdiction. This high level of ecological inter-

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dependence led to the formation of the concept of a “common concern for humankind” in international environmental law. The preamble of the Convention on Biological Diversity (1992) affirms that “the conservation of biological diversity is a common concern of humankind,” even though, as noted by Hunter, Salzman, and Zaelke (2007, 489–90), most terrestrial biodiversity is found within sovereign states. Global regulation, again through international law, is often needed to protect and restore these common resources. Aggregate Efforts: The Example of Overfishing Barrett (2007, 74) asks us to “imagine a group of rowers trying to propel a boat. Their speed depends not on the weakest rower, nor on the strongest, but on the efforts of all the rowers. Some global public goods likewise depend on the total efforts of all countries. Environmental issues are typically of this type. Pollution is determined by aggregate emissions, overfishing by the fishing efforts of all countries.” Can the international community “row” together to prevent overfishing? Unfortunately, progress in this direction has been slow. For example, nothing has come of various proposals over many years for the establishment of a World Fisheries Organization. Instead, the world community has created a diffuse and cumbersome international legal regime to govern the conservation of living marine resources. The most important legal documents in this regime are the 1982 UN Convention on the Law of the Seas (UNCLOS) and the 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. Yet, despite this legal regime, global fish populations are in extreme danger. In 2010 the Food and Agriculture Organization (FAO) reported that 32 percent of the world’s fish stocks were estimated to be overexploited, depleted, and needing to be rebuilt. Further, since over half of the world’s fisheries were already at “maximum sustainable production,” there was no room for further expansion. Under UNCLOS, coastal states are given a 200-nautical-mile exclusive economic zone (EEZ) for fishing. Coastal states are to ensure “through proper conservation and management measures” that the living resources in the EEZ are maintained and not threatened with over-exploitation. Yet Birnie, Boyle, and Redgwell note that this conservation aim is “offset by the need to promote ‘optimum utilization’” (2009, 715). This has led to some states’ giving more weight to economic rather than environmental considerations in the determination of the short-term national interest. One study of these issues concluded that the failures of the EEZ regime “render the conservation obligations of States largely illusory” (718). Beyond the EEZ, UNCLOS recognizes the right of all states to engage in fishing on the high seas. There are at least 400 species found outside the 200-mile zone. New fishing technologies have greatly expanded the range of fishing operations in the high seas and put pressure on these fish stocks. There are currently no harmonized standards of conservation for these fish stocks on the high seas (720).

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Barrett (2007) argues that this treaty approach to the conservation of the world’s fish stocks is misguided. He notes that treaties are only binding on those countries that ratify them. (The United States, for example, has still not ratified UNCLOS.) Protecting these global public goods depends upon the full participation of all states. Thus, if nations bow out by not signing the treaty, the regime will fail. “The weakest link can make cooperation by all the other countries pointless” (72). Protecting the world’s fish stocks will require fundamental institutional change. “Fisheries conservation is different. If some states limit their harvests, others have an incentive to take their place. Enforcement is essential to the supply of many weakest link global public goods” (72). If access to the world’s fisheries must be restricted, how are we to do that? Governance Systems to Manage Common Resources. As previously noted, common resources are defined as resources characterized by nonexcludability (that is, it is prohibitively expensive if not impossible to exclude others from access to the resources), yet rivalry (one person’s use of the resource detracts from the quantity or quality available to others; Ostrom et al. 1999, 278–82). Hardin’s (1968) treatise on “The Tragedy of the Commons” demonstrates the problem for common resources. He considered the example of “a pasture open to all.” As Hardin described, under open access each rational herdsman will see it as in his interest to graze as many cattle as possible on the pasture, given the increased private return he will receive from each additional well-fed cow, while not taking into account the full social costs incurred by all the herdsmen (from the environmental destruction rendered by his cattle’s consumption in the overgrazed pasture). Hardin wrote, “this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons.” Extending this analogy to an international regional common resource, Mendez (1992, 55) notes, “this is essentially the tragedy of the Sahel, where the overgrazing of rangelands had contributed to the desertification of the region.” Likewise, the global “commons”—the oceans, air, and outer space—are used without regard to the full social costs imposed. No one is excluded from utilizing these natural resources. Although regulatory progress has been made in international environmental law, the global commons remains threatened and endangered. The right to a healthy environment is jeopardized. Ostrom (1990), Bromley (1992), and others (see e.g. Dietz, Ostrom, and Stern 2003) have compiled substantial evidence of alternative institutional arrangements and governance systems that can effectively manage the use of a common resource and successfully avoid a tragedy of the commons. These experiences offer lessons

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that can guide international common resource management. With careful thought and international cooperation, proper and effective management of the global commons is feasible. What is needed is the international political commitment and action to implement effective systems. Ostrom and her colleagues (1999) challenge Hardin’s stark conclusions as unduly pessimistic and disempowering. Individuals are not “trapped in a situation they cannot change,” these scholars believe. “Although tragedies have undoubtedly occurred, it is also obvious that for thousands of years people have self-organized to manage common-pool resources, and users often do devise long-term, sustainable institutions for governing these resources.” Ostrom’s scholarship demonstrates through empirical studies that more solutions exist for the sustainable use of common resources than Hardin proposed. Ostrom and her colleagues conclude: The prediction that resource users are led inevitably to destroy CPRs [common-pool resources] is based on a model that assumes all individuals are selfish, norm-free, and maximizers of short-run results. This model explains why market institutions facilitate an efficient allocation of private goods and services. . . . However, predictions based on this model are not supported in field research or in laboratory experiments in which individuals face a public good or a CPR problem and are able to communicate, sanction one another, or make new rules. Humans adopt a narrow, self-interested perspective in many settings, but can also use reciprocity to overcome social dilemmas.

In just one of her many examples, Ostrom points to the farmer-managed irrigation systems of Nepal, where strong, locally crafted norms and rules emerged to protect the water and land. Farmers saw the value in respecting this local regime. Government efforts to replace these farmer-constructed systems reduced rather than improved performance, because the government did not respect the evolved normative framework. National governments can thus help or hinder this process. Ostrom’s research documents how individuals in all walks of life and all parts of the world have organized themselves to create and enforce rules that protect natural resources and common resources. Yet, her research “also confirms that the temptation to free ride on the provision of collective benefits is a universal problem. In all known self-organized resource governance regimes that have survived for multiple generations, participants invest resources in monitoring and sanctioning the actions of each other so as to reduce the probability of free riding” (Ostrom 2000, 138). Dietz, Ostrom and Stern (2003) identify the conditions in Nepal and elsewhere that were most likely to stimulate successful self-organized processes for the sustainable use of common resources. Key elements to such successful governance

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systems included: (a) accurate and up-to-date information; (b) methods for conflict resolution; (c) inducements for rule compliance; and (d) mechanisms for adaptation and change. These lessons in successful local governance of the commons can be applied at the global level. Our modern environmental challenges are intrinsically global and require governance and cooperation from global to local levels. The trick is in applying these local lessons to the challenges of the global commons to effectively manage biodiversity, climate change, and so on. How do global actions enhance (rather than frustrate) individual efforts to protect the global commons? What types of sanctions and monitoring are most effective globally in lowering the high probability of free-riding? Strengthening the United Nations Environment Programme. Just as a strengthened WHO is needed to lead the efforts to combat malaria and polio, so is a strengthened UN Environment Programme (UNEP) necessary for the development of global governance to protect the global commons. Global coordination and intervention are needed to respect, protect, and fulfill the human rights to both health and a healthy environment. Lessons from the successful local efforts to protect common resources can be incorporated into the functioning of a revitalized UNEP. UNEP could serve as a body that creates incentive systems for global cooperation to protect the global commons by working with local actors to develop a framework for local monitoring and local enforcement. A strengthened UNEP could help facilitate this level of global cooperation to protect the biosphere, oceans, and all common environmental resources. It is often noted that effective enforcement of environmental law is difficult. There is no central authority to administer and execute either criminal sanctions and fines, or disincentives and incentives. An enhanced UNEP could be a critical step toward improving the effectiveness of international environmental standards and regulations. States have voluntarily signed significant global legislation to protect the environment. Their ratification indicates that they see the enforcement of these treaties as in their individual national interest and thus should support strengthening the UNEP to achieve these goals. The elements Dietz, Ostrom, and Stern identify for successful governance of common resources (accurate information; methods for dealing with conflict; inducing rule compliance; and preparing for change) can perhaps serve as the basic organizational principles around which to structure planning at UNEP. Many existing international organizations, including the International Labour Organization, the Office of the High Commissioner for Refugees, and the WHO, have successfully incorporated some of these guidelines into their work. In particular, these organizations have been helpful in the establishment of regimes of cooperation regarding the sharing of accurate information and providing infrastructure

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and assistance to less developed countries. These successful approaches can also inform the work and approach of UNEP. C O N C LU SIO N : F I NA N C I N G G L O BA L P U B L IC G O O D S

While the suggestions presented above to strengthen the WHO and UNEP may seem ambitious, the protection and provision of global public goods ultimately depends upon such a robust global regulatory framework. A focus on strengthening international organization is essential to the success of local strategies to respect, protect, and fulfill economic and social human rights for all. As we have seen, addressing the global and local challenges in the areas of health and the environment demands concerted cross-border cooperation. Yet, financing and establishing this global framework remains difficult. One problem is that the benefits of the protection of global public goods will differ from country to country. While all citizens in all countries will profit when these global public goods are protected, the type and amount of benefit may differ from country to country. The example of a malaria vaccine makes this point clear. While all of humanity would benefit from the elimination of this disease, such a vaccine is a much higher priority to certain poorer states in Africa as opposed to the richer states in the Northern Hemisphere. In a world of vast economic disparities, different preferences will exist over which public good has the highest priority and should be funded. Thus, gaining the cooperation of the rich countries (single best effort) and the poorer countries (weakest link) becomes central to the successful provision of global public goods. International organizations, like the WHO and UNEP, are forums through which such cooperation can be created and nurtured. In addition, further problems exist in establishing “just” and equitable funding mechanisms for global public goods. Debates often revolve around “ability to pay” versus “beneficiary pay” principles. Some contend that the rich northern industrialized countries have a moral duty to finance these public goods, based on principles of “charity” to help those less fortunate. It is clearly complicated to determine a “just” system of financing for global public goods. Conceição and Mendoza (2006) point to further difficulties in gaining support for the financing of global public goods. At a local level, policy makers may be able to determine the community’s willingness to pay for public goods, like a local school. But “trying to ascertain this information worldwide for a global public good, such as ensuring international financial stability or preserving climate stability is another matter.” Global preferences are “difficult to identify and difficult, if not impossible, to aggregate. In addition, people may express preferences without having full information—a particular risk for global public goods, which are often complex and hard to understand” (330).

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To overcome these conundrums, Conceição and Mendoza developed a “net benefit” approach to assess “sensitive global public goods.” These scholars acknowledge the difference in net outcomes between the industrialized and developing countries in the provision of key global public goods, and believe that it is only by taking this difference into account that it becomes possible to establish successful regimes of cooperation in the areas of health and the environment. International cooperation to ensure global public goods is partially dependent upon industrialized and developing states’ perceiving that the costs and benefits of the regime are fair. To achieve the perception of fairness on all sides, Conceição and Mendoza argue that “net benefit seems to be a more appropriate measure for determining what burden-sharing principle applies.” This “distribution-sensitive assessment methodology” leads to “a switch from an ability-to-pay to a beneficiary-pays principle in many cases of international cooperation. This switch could refine how policymakers and, more important, the general public (notably in donor countries) think about burden-sharing arrangements in international cooperation” (343). In other words, the financing of global public goods would be seen less as an act of charity and good will on the part of those who have the ability to give, and more as a good investment that yields significantly high dividends. Perhaps the financial resources for a strengthened WHO and UNEP can be found through such a “net benefit” approach. The MAPs (mechanisms, actors, and pathways) framework utilized by Haglund and Stryker in the introduction to this volume points to the challenges in mobilizing the international community to fortify the WHO, UNEP, and other central international organizations. Unfortunately, the accountability mechanisms established in the WHO and UNEP, designed to protect economic and social human rights, are weak. The key actors determining the priorities of these international organizations are the powerful states, often acting on narrow self-interest. To achieve more balanced accountability, the pathway forward involves the creation of a more robust global regulatory framework governing health and the environment that privileges global public goods as economic and social human rights. As this chapter demonstrates, such an approach can help to overcome the free-rider problem, prevent the tragedy of the commons, and facilitate the realization of basic human rights claims to health care and a healthy environment. NOTES 1. Abouharb, Cingranelli, and Filippov demonstrate in chapter 1 of this volume the importance of state ratification of the CESCR. As documented in their research, the longer states participate in the legal CESCR regime, the greater their level of respect for economic and social human rights.

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2. Here, “good” refers to good or service. 3. For clear explanations of “nonexcludability” and “nonrivalrous consumption,” see also Mendez (1992, 53–66) and Kaul, Grunberg, and Stern (1999, 2–16). 4. For the classic analysis of a fishery as a common resource, see Gordon (1954). 5. “Regimes are principles, norms, rules, and decision-making procedures around which actor expectations converge” (Krasner 1985, 4). 6. According to Richard Horton (2011, 30), “Eradication is the permanent reduction to zero of the worldwide incidence of malaria—the parasite will disappear from the planet. Elimination is the interruption of malaria transmission so that in a given geographic area there will be no locally contracted cases.”

REFERENCES Barrett, Scott. 2007. Why Cooperate? The Incentive to Supply Global Public Goods. Oxford: Oxford University Press. Birnie, Patricia, Alan Boyle, and Catherine Redgwell. 2009. International Law and the Environment. 3rd ed. Oxford: Oxford University Press. Bromley, Daniel W., ed. 1992. Making the Commons Work: Theory, Practice, and Policy. San Francisco: Institute for Contemporary Policy. Committee on Economic, Social and Cultural Rights. 1990. General Comment No. 3. UN Doc.E/1991/23, Annex III. United Nations. . 2000. “The Right to the Highest Attainable Standard of Health.” General Comment No. 14. UN Doc.E/C.12.2000/4. United Nations. Conceição, Pedro, and Ronald Mendoza. 2006. “Identifying High-Return Investments: A Methodology for Assessing when International Cooperation Pays—and for Whom.” In The New Public Finance: Responding to Global Challenges, edited by Inge Kaul and Pedro Conceição, 327–56. New York: Oxford University Press. Convention on Biological Diversity. 1992. www.cbd.int/convention/text/. Dasgupta, Partha. 1993. An Inquiry into Well-Being and Destitution. New York: Oxford University Press. Dietz, Thomas, Elinor Ostrom, and Paul C. Stern. 2003. “The Struggle to Govern the Commons.” Science 302(5652):1907–1912. Felice, William. 2010. The Global New Deal: Economic and Social Human Rights in World Politics. 2nd ed. Lanham, MD: Rowman & Littlefield. Food and Agriculture Organization. 2010. State of the World’s Fisheries and Aquaculture 2010. www.fao.org/docrep/013/i1820e/i1820e00.htm. Gordon, H. Scott. 1954. “The Economic Theory of a Common-Property Resource: The Fishery.” Journal of Political Economy 62(2):124–42. Hardin, Garrett. 1968. “The Tragedy of the Commons.” Science 162:1243–48. Horton, Richard. 2011. “Stopping Malaria: The Wrong Road.” New York Review of Books, February 24. www.nybooks.com/articles/archives/2011/feb/24/stopping-malariawrong-road. Hunter, David, James Salzman, and Durwood Zaelke. 2007. International Environmental Law and Policy. New York: Foundation Press.

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International Covenant on Economic, Social and Cultural Rights. 1966 [entered into force January 3, 1976]. 993 U.N.T.S.3. Kaul, Inge, Isabelle Grunberg, and Marc A. Stern, eds. 1999. Global Public Goods: International Cooperation in the 21st Century. New York: Oxford University Press. Kaul, Inge, and Pedro Conceicão. 2006. “The Changes Under Way: Financing Global Challenges through International Cooperation behind and beyond Borders.” In The New Public Finance: Responding to Global Challenges, edited by Inge Kaul and Pedro Conceição, 28–70. New York: Oxford University Press. Krasner, Stephen D. 1985. Structural Conflict: The Third World against Global Liberalism. Berkeley: University of California Press. Mendez, Ruben P. 1992. International Public Finance: A New Perspective on Global Relations. New York: Oxford University Press. Oshinsky, David. 2005. Polio: An American Story. New York: Oxford University Press. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. . 2000. “Collective Action and the Evolution of Social Norms.” Journal of Economic Perspectives 14(3):137–58. Ostrom, Elinor, Joanna Burger, Christopher B. Field, Richard B. Norgaard, and David Policansky. 1999. “Revisiting the Commons: Local Lessons, Global Challenges.” Science 284:278–82. www.sciencemag.org/content/284/5412/278. Perrings, Charles, and Madhav Gadgil. 2003. “Conserving Biodiversity: Reconciling Local and Global Public Benefits.” In Providing Global Public Goods: Managing Globalization, edited by Inge Kaul, Pedro Conceicao, Katell Le Goulven, and Ronald U. Mendoza, 532– 55. New York: Oxford University Press. Sachs, Jeffrey D. 2005. The End of Poverty: Economic Possibilities for Our Time. New York: Penguin. Samuelson, Paul A. 1954. “The Pure Theory of Public Expenditure.” Review of Economics and Statistics 36(4):387–89. . 1958. “Aspects of Public Expenditure Theories.” Review of Economics and Statistics 40(4):335. Sen, Amartya. 1992. Inequality Reexamined. Cambridge, MA: Harvard University Press. UN Commission on Human Rights. 1994. “Draft Principles on Human Rights and the Environment.” Subcommission on Prevention of Discrimination and Protection of Minorities, Final Report of the Special Rapporteur. UN Doc. E/CN.4/Sub.2/1994/9. World Health Organization. 2010. World Malaria Report 2010. http://whqlibdoc.who.int /publications/2010/9789241564106_eng.pdf. Zacher, Mark W. 1999. “Global Epidemiological Surveillance: International Cooperation to Monitor Infectious Diseases.” In Providing Global Public Goods: Managing Globalization, edited by Inge Kaul, Pedro Conceicao, Katell Le Goulven, and Ronald U. Mendoza, 266–68. New York: Oxford University Press.

Chapter 3

Advances and Ongoing Challenges in the Protection of Indigenous Peoples’ Rights within the Inter-American System and the United Nations Special Procedures System Leonardo J. Alvarado

Development of international legal norms and standards pertaining to indigenous peoples is not a new subject in the academic legal or social science literature (see Anaya 2004). The notion of human rights pertaining to indigenous peoples within their particular historical, contemporary, social, and political circumstances has gained a very high level of recognition not just academically but within the human rights machinery of international organizations such as the United Nations (UN) and the Organization of American States (OAS). From the standpoint of the MAPs framework (described in the introduction to this volume), indigenous peoples, individuals, and organizations have emerged as pivotal actors utilizing the mechanisms of international law and international legal institutions to create greater awareness of their rights at the national and international levels. In that way, and at times along with the international legal institutions themselves, indigenous peoples are actively attempting to secure pathways of state accountability to their historical and current grievances while still facing deeply entrenched social, political, and economic obstacles. Their experiences provide a fertile testing ground for what it is possible to achieve through international litigation and other forms of advocacy before international forums, substantial resistance notwithstanding. Worldwide recognition of the rights of indigenous peoples was most effectively symbolized in 2007, through the General Assembly’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples. The declaration, which received a favorable vote from the vast majority of the world’s member states, was the product 69

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of over two decades of debates and negotiations between indigenous peoples and state governments within the UN (Charters, 280–303). As an aspirational international instrument, the declaration has moral, political, and legal legitimacy and represents the highest expression of the global community’s acknowledgement of indigenous peoples’ rights in terms of lands, natural resources, environmental protection, language and cultural preservation, traditional knowledge, and spiritual practices. As this declaration and the international instruments and jurisprudence mentioned in this chapter demonstrate, discussion of the human rights of indigenous peoples cannot be divorced from an inherent acknowledgement of the links indigenous peoples worldwide have to the traditional territories, languages, cultures, spiritual traditions, and social and political institutions which define their existence and identity. These rights are understood to pertain not only to indigenous individuals but most importantly to collectivities, including indigenous communities, nations or “nationalities,” and peoples. Therefore, a major significance of global developments in the area of indigenous rights lies in the effective articulation by indigenous peoples of the collective nature of the rights, issues, and interests they advocate. And because of the linkages among territories, culture, identities, and self-determination, indigenous peoples’ rights necessarily bring together civil and political rights with economic, social, and cultural rights. But have international documents like the Declaration on the Rights of Indigenous Peoples, and litigation and other advocacy efforts by indigenous peoples, had any import for the lives of indigenous peoples? As one example of what has been possible, and through what mechanisms and pathways, this chapter draws on a landmark 2001 judicial decision: the ruling of the Inter-American Court of Human Rights in Mayagna (Sumo) Community of Awas Tingni v. Nicaragua. This was the first ruling by an international tribunal upholding the collective land and natural resource rights of indigenous peoples, and it helped open the door for numerous other cases brought before the inter-American human rights system by indigenous peoples. I also explore other facets of the work of the inter-American human rights system, as well as the UN “special procedures” system, particularly the UN special rapporteur on the rights of indigenous peoples. These examples are used to chart both accomplishments and limits in the process of making indigenous peoples’ rights real. As the examples demonstrate, litigation and other advocacy based on international law has had an impact on domestic politics and policies, but additional work is needed to make positive legal developments more meaningful to the daily lives of the world’s indigenous peoples. The observations in this chapter derive mostly from my previous work as an advocate for indigenous peoples before the inter-American human rights system—particularly as one of the attorneys assisting during the implementation phase of the Awas Tingni decision, a staff attorney within the Inter-American Commission on Human Rights, and a legal advisor to the former UN special rap-

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porteur on the rights of indigenous peoples, James Anaya. While my work, and thus the observations in this chapter, pertain to Latin America, the dynamics I discuss hold lessons for indigenous peoples and other human rights plaintiffs throughout the world who are seeking legal, political, and social transformation through use of international human rights instruments and institutions. I N D IG E N OU S P E O P L E S’ U T I L I Z AT IO N O F T H E I N T E RA M E R IC A N H UM A N R IG H T S SYST E M

The 2001 decision in Awas Tingni v. Nicaragua marked a watershed moment for the recognition of the unique collective land rights of indigenous peoples. It was the first instance that an international tribunal found a state government responsible for not resolving the ancestral land claims of an indigenous community and ordered the government to officially recognize that community’s territory (InterAmerican Court of Human Rights 2001). The favorable ruling in the case encouraged further use of international complaint mechanisms, particularly within the inter-American human rights system, as a legal pathway to hold states accountable for recognizing the rights of indigenous people within their territories. This was not the first time the inter-American human rights system dealt with an indigenousrights issue, but it was the first case developing inter-American jurisprudence on the collective aspects of the right to property and access to justice of indigenous peoples. The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are the two concrete inter-American institutions that monitor compliance with the human rights treaties subscribed to by members of the OAS. Both these institutions examine complaints presented by or on behalf of individuals or collectivities such as indigenous peoples against states for alleged violations of rights protected under the American Convention on Human Rights (American Convention) or the American Declaration on the Rights and Duties of Man (American Declaration). Complaints are presented initially to the commission, which determines whether a violation of the American Convention or American Declaration has occurred and issues non-binding recommendations to the pertinent state about how to remedy the violation. If the violation persists, and the state in question is a party to the American Convention and has accepted the jurisdiction of the court, then the case is heard by the court. The court makes its own findings of facts and law and issues judgments that are binding on the state involved. Court decisions provide specific remedies for the rights violated. Remedies may include restitution, moral and monetary reparations, and/or a call for systematic legal, administrative, or other types of reform to ensure that the particular human rights involved are legally protected in the future (for more information, see Inter-American Commission on Human Rights 2010).

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Subsequent cases brought before the court have generated decisions that elaborated more on the collective rights of indigenous peoples to their traditional lands, restitution to lands that they had involuntarily lost, access to justice, political participation, and consultation regarding development projects affecting their lands (Pasqualucci 2006; Inter-American Commission on Human Rights 2009b). This has created a body of international case law that serves as a concrete pathway for influencing the policy behavior of states and the legal decisions of domestic courts in countries across the region. For example, in Colombia and Belize, inter-American indigenous rights jurisprudence influenced interpretations of domestic constitutional rights and also of obligations deriving from international treaties or instruments that had been ratified or otherwise supported by those countries (see Constitutional Court of Colombia 2009, 2011; Supreme Court of Belize 2007). Inter-American case law has also diffused to influence the African human rights system. In 2010, the African Commission on Human and Peoples’ Rights issued its first decision on indigenous rights in a case dealing with the Endorois people, who were evicted from their ancestral lands by the government of Kenya to make way for tourism development activities. Drawing extensively from the inter-American jurisprudence and other international human rights instruments and resolutions, the African commission found that Kenya had violated provisions of the African Charter on Human and Peoples’ Rights related to property, culture, natural resources, and development (African Commission on Human and Peoples' Rights 2010). In addition to the growing number of human rights complaints or “petitions” it receives regarding specific cases of alleged human rights violations, the InterAmerican Commission also conducts country visits and annual monitoring of specific countries’ human rights situations, and prepares thematic reports. The commission’s annual examination of the human rights situation of countries of particular concern, such as Colombia, features a yearly chapter devoted specifically to Colombia’s indigenous peoples (see for example, Inter-American Commission on Human Rights 2011, 374). An additional example of issues addressed by the commission is the thematic report it issued on the situation of Guarani indigenous communities living and working in slavery-like conditions in the Chaco region of Bolivia (Inter-American Commission on Human Rights 2009a). This not only highlighted the need to end slavery-like conditions but also drew attention to the land, natural resource, and autonomy rights of those communities. The commission has also issued a comprehensive report serving as a compendium of the inter-American system’s jurisprudence and doctrinal developments in the area of land and natural resource rights of indigenous peoples (Inter-American Commission on Human Rights 2009b). This creates a doctrinal resource applicable to many areas of indigenous rights, including indigenous peoples’ rights to environmental protection, management, and consultation. Additionally, the commission issued a report concerning indigenous peoples in voluntary isolation and initial

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contact which addresses the applicable human rights legal framework that should apply to the particular situation and circumstances of these specific indigenous groups (Inter-American Commission 2013). Finally, the commission holds case hearings that deal with specific petitions, as well as thematic hearings that serve to inform the commission about general areas of human rights concern within a particular country or region in the continent. Indigenous peoples figure prominently within the case and thematic hearings held by the commission during their regular sessions, held twice a year.1 Both case and thematic hearings afford time for petitioners to present on their case or particular theme, for representatives of the national governments to respond or present arguments, and for a question-and-answer period during which members of the commission ask both parties questions. Case and thematic hearings provide key pathways by which indigenous peoples can publicize and perhaps resolve issues stemming from national governments’ actions in violation of—or failures to act to protect—indigenous peoples’ rights. Social transformation may or may not ensue, but at least on this highly visible occasion, the national government must respond before an international forum on a particular issue related to its treatment of indigenous peoples. This pathway has had a strong symbolic and perhaps a somewhat therapeutic effect on indigenous peoples, who for the most part have been excluded from legal, political, and economic institutions and the decision-making structures of the state. Not only can the symbolism inherent in the commission’s cases and thematic hearings promote a sense of empowerment and further activism among indigenous peoples, it also can provide additional resources that third parties, including national and international NGOs, can use for “naming and shaming.” T H E R O L E O F T H E U N SP E C IA L R A P P O RT E U R O N T H E R IG H T S O F I N D IG E N OU S P E O P L E S

The special rapporteur on the rights of indigenous peoples is part of the “special procedures” within the UN Human Rights Council, comprising independent experts who monitor the human rights situation of a particular country or a particular thematic issue.2 The special rapporteur can proactively attend to issues of concern to indigenous peoples; at the same time, indigenous peoples can call on the special rapporteur to address specific issues they face. Under the specific mandate given by the Human Rights Council, the special rapporteur is to “gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people and their communities and organizations, on alleged violations of their human rights and fundamental freedoms” and to “formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations” (United Nations Human

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Rights Council 2010). This particular post was held by Rodolfo Stavenhagen of Mexico from 2002 until 2008; James Anaya of the United States from 2008 until 2014; and is currently held by Victoria Tauli Corpuz of the Philippines. Typically, the special rapporteur examines cases of alleged human rights violations brought to his or her attention. This may result in an “allegation” or “urgent action” letter sent to the government concerned inquiring about the alleged situation or urging attention on a matter of pressing concern. Based on the subsequent exchange of information with the relevant national government(s), the special rapporteur may make specific observations and recommendations on how to address the issue in accord with international human rights standards. At times, specific case examinations have led to brief country visits that provide an opportunity for a more in-depth analysis of the situation. The special rapporteur also undertakes country visits that lead to reports analyzing the general human rights situation of the indigenous peoples in a specific country. These have included reports on indigenous peoples in Nepal, Brazil, Republic of Congo, Australia, Argentina, the United States, Namibia, El Salvador, Canada, Panama, and Peru. The rapporteur also prepares thematic reports on particular areas of recurring concern to indigenous peoples worldwide. These have included reports on the content and significance of the UN Declaration on the Rights of Indigenous Peoples, the duty of national governments to consult with indigenous peoples, the responsibilities of corporations to respect indigenous peoples’ rights, and human rights concerns related to the effects of extractive resource industries on indigenous peoples. The rapporteur is also involved in the “promotion of good practices.” Typically this involves providing technical expert assistance, normally at the request of governments or international intergovernmental, financial, and development institutions, on matters of legal, policy, and programmatic reforms involving the rights of indigenous peoples. In the case of former Special Rapporteur Anaya, such areas of assistance have included for example technical advisory assistance to the governments of Ecuador and Chile on national constitutional reform processes, assistance to the governments of Colombia, Guatemala, and Peru on the development of laws and regulations on consultation with indigenous peoples, the legal recognition of indigenous customary justice systems in Ecuador, and the development of indigenous-specific policies by the Pan-American Health Organization and UNESCO. The various reports, press releases, and statements issued by the rapporteur provide an opportunity to interpret and thereby further develop and promote international human rights standards contained in the UN Declaration on the Rights of Indigenous Peoples, the International Labour Organization’s Indigenous and Tribal Peoples Convention, and the domestic and regional jurisprudence on indigenous rights. This promotion of human rights is based on a process of “con-

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structive dialogue” that the special rapporteur seeks to have with governments, indigenous peoples, and other interested parties. Recommendations made by the rapporteur stem from this process of constructive dialogue, creating an additional or alternative mechanism to litigation that is part of the petition process within the inter-American system for promoting national government accountability in respecting the rights of indigenous peoples.3 Although implementation of court judgments and recommendations based on constructive dialogue with governments may not result in major social transformations in the near term, it does ensure that indigenous rights receive sustained attention and achieve sustained visibility, the better to push for incremental changes that may have substantial “real-life” import over the years. At the same time, indigenous peoples face ongoing major challenges in ensuring that the rights they possess on paper are realized in practice. Identification of these challenges is essential to fully assess the nature of the concrete pathways pursued for the realization of indigenous rights and to assess the efficacy and limits of advocacy methods employed by indigenous peoples within the inter-American and UN human rights systems. O N G O I N G C HA L L E N G E S T O T H E I M P L E M E N TAT IO N O F I N D IG E N OU S P E O P L E S’ R IG H T S

Despite the major advances discussed in this chapter, consideration must be given to limitations still present due to the nature of international human rights norms and institutions as well as structural problems within individual countries. International human rights resolutions and court decisions lack a police force or comparable enforcement mechanism to ensure compliance on the ground. Also, the international principle of nonintervention in the internal affairs of states has been a formidable barrier, although it has weakened in recent years with greater international scrutiny of how states treat their citizens (Anaya 2004, 217). In many ways, compliance may depend on whatever moral and diplomatic persuasion can be exerted on individual states by international human rights bodies or intergovernmental organizations. As Koh (1999) has stated, the best chance for enforcement of international human rights law is through its internalization by states. This involves a “transnational legal process” (1399) whereby external pressures, international sanctions, self-interest, and a sense of seeking to be part of the international community by states can gradually lead to the state’s acceptance of international human rights principles. Clearly, compliance is likely to increase to the extent that international human rights bodies supervise and monitor nationalgovernment compliance with their case decisions and resolutions and also to the extent that international political institutions, including the general assemblies of both the UN and the OAS, can be compelled to bring pressure for compliance.

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However, in the absence of sustained and consistent oversight, monitoring, and pressure by international human rights institutions, compliance by states is likely to be lessened, and to the extent it occurs, substantially slower to manifest. In the case of the Awas Tingni decision, several years went by before the Nicaraguan state was in full compliance with the reparations ordered by the court. The court in this case ordered monetary reparations to cover legal costs and for investment in community needs; the enactment of legislation that would allow indigenous peoples generally to apply for and obtain the delimitation, demarcation, and titling of their lands; and finally, for the Awas Tingni community specifically to obtain the delimitation, demarcation, and titling of its traditional lands. Nicaragua paid the monetary reparations and enacted land-demarcation legislation within the fifteen-month deadline provided in the court’s judgment. However, the land demarcation and titling of the Awas Tingni community itself took more than eight years. During that time, the Awas Tingni experienced many setbacks, some due to lack of political will by the Nicaraguan government in the period following the judgment. There were also problems of administrative capacity because Nicaragua did not adequately fund or provide technical support to the institutions its domestic legislation created to execute the judicially ordered land demarcation and titling. Also, there were territorial disputes between the Awas Tingni and neighboring indigenous communities. Indeed, conflict among indigenous communities was the principal obstacle faced by the Awas Tingni community in getting legal recognition of its lands, in part because this conflict served as pretext for Nicaragua to withhold recognition of the full extent of the territory claimed by the community. Newly created administrative bodies were supposed to assess the total extension of claimed lands and resolve existing overlapping claims between indigenous communities. Since these new administrative institutions were created only in the aftermath of the 2001 court judgment in the Awas Tingni case itself, there were many delays in the dispute resolution that had to occur before the Awas Tingni lands could be delimited, demarcated, and titled (Alvarado 2007, 618–32). In early 2008, the Inter-American Court convened a special hearing in which the Awas Tingni community, its legal representatives, and the Nicaraguan government reported on the implementation of the decision and agreed upon a deadline for resolution of the remaining land disputes with neighboring communities and for the definitive titling of the community’s territory (Inter-American Court of Human Rights 2008). In December of that year, the Awas Tingni community received its long-awaited title, closing the chapter on this particular case before the Inter-American Court of Human Rights. The experience of the Awas Tingni during the years before full implementation of the court’s ruling raised concerns about the effectiveness of the inter-American human rights system. Such concerns likewise are present for situations in which

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other judgments of this court await implementation. Beyond combining periodic submission of updated information on implementation of judgments by states with hearings that may be convened by the court to supervise implementation, there currently are no other mechanisms to ensure compliance. Although mobilizing the political organs of the inter-American system, particularly the General Assembly of the OAS, to exert diplomatic pressure on a particular government to comply with decisions on specific cases by the inter-American commission and court is a conceivable option, it is an option that has not been used (Alvarado 2007, 634–36). In the case of UN special rapporteurs, there is also an absence of an effective follow-up procedure within the UN system to the recommendations rapporteurs make to national governments within their specific case communications and country reports (Subedi 2011, 216). Beyond the dialogue that occurs with national governments during the presentation of annual reports by special rapporteurs to the Human Rights Council and the General Assembly, there are not many opportunities to follow up on case or country-visit findings on a consistent basis. Special rapporteurs have limited resources from the UN to carry out effective oversight (216–17). Therefore, at the institutional level, the different organs of the UN, particularly the Human Rights Council, the Office of the High Commissioner on Human Rights, and regional and national country offices, could provide greater resources to improve national-level implementation of recommendations by UN special rapporteurs. In addition, indigenous peoples still contend with deeply entrenched social, economic, and political barriers. This has led to their exclusion and marginalization from the dominant sectors of the national societies in which they live, which has translated into slow or even zero national-level progress in realizing indigenous rights. Exclusion and isolation also often mean that local, municipal, and even national government officials and judges are ignorant of international and even domestic legal norms pertaining to indigenous rights. In addition, indigenous peoples have to contend with ongoing prejudicial attitudes in national and local government representatives and the nonindigenous public. A state’s adoption of international human rights instruments or its obligation to comply with binding international judgments will not resolve all historical and contemporary discrimination or all inequalities faced by indigenous peoples. For example, even as the Awas Tingni community awaited land demarcation and titling, it had to contend with the presence of colonists from the interior of the country who over the years have been encouraged by the national government to settle vast expanses of the “agricultural frontier” within areas of the Nicaraguan Atlantic Coast inhabited by the Awas Tingni and other indigenous communities. The community also faced depredation of forest resources by illegal operations in the lands that awaited demarcation.

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More generally, the presence of illegal settlers or loggers on indigenous lands throughout Latin America presents significant challenges, even in cases of indigenous communities that have received official land recognition and titling by states. Internalization of international human rights norms by national regimes requires education and consciousness-raising at the local level to address indifference or lack of knowledge among the general population that might undermine important legal and political gains made by indigenous peoples at the national and international levels. These strategies could usefully be prioritized to improve concrete rights-realization pathways internal to states. A major challenge for Latin American states, as for much of the developing world, is building confidence among the general population and the international community that those states are committed to the rule of law. Certainly for many states that went through stages of dictatorial regimes and grave internal conflicts, the ratification of international human rights treaties is representative of this commitment. Yet the ability to achieve a society based on the rule of law, where justice is impartial and equally applicable to all, is made difficult by the structural inequalities and extreme poverty and discrimination faced by many societal groups, including indigenous peoples. Formal recognition of equal rights has not fully translated into equal access to justice or to the impartial application of law. For indigenous peoples, as for other disadvantaged populations, it is possible to have legal rights but lack the resources needed to ensure their realization (Vilhena Vieira 2011, 29). For cultural, economic, and geographic reasons, indigenous peoples still face many obstacles in accessing the national legal systems of the countries in which they live. Many indigenous peoples, communities, and individuals cannot obtain legal representation to bring forth cases internally; on the other hand, many domestic legal tribunals are not readily accessible geographically or are not responsive or knowledgeable about the collective demands of indigenous peoples for protection of their lands, cultures, and their own legal, social, and political institutions. Additionally, some indigenous peoples may not be familiar with the dominant language and cultural norms that are used within national justice systems. Thus, the legal system can many times seem alien and unreachable for many indigenous peoples. Unequal application of the law for indigenous peoples can also arise in contexts in which a state might have recognized and incorporated international indigenous rights into its constitution or into indigenous-specific legislation, yet has not engaged in cross-harmonization of those rights with other legislation or policies. A case in point would be legislation related to mining, oil, hydroelectric, and other types of development projects. Indigenous peoples still face threats from development projects proposed on or around their territories without their consultation and consent. Such development projects violate their right to consultation, yet

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were designed and approved fully in accord with domestic law and regulations pertaining to the mining, oil, and energy sector. In many countries around the world, including in Latin America, Africa, and Asia, subsurface resources and often water resources are considered to be property of the state. This means that regardless of the recognition of land rights an indigenous community might have, the resources under the soil stand to be taken if the state has sufficient interest, for example under notions of “national interest” or eminent domain. Therefore, indigenous peoples and organizations and their supporters must still work to ensure that the legislation and policies regulating the granting of extraction permits for industrial or extractive development projects will conform to international human rights standards of prior consultation with the affected indigenous peoples. Due consideration must be given to the substantial negative effects those operations can have on lands, resources, cultures, and the economic subsistence of indigenous peoples. R O OM F O R O P T I M I SM : W HAT HA S B E E N AC H I EV E D

Notwithstanding the challenges and ongoing delays of the full realization of indigenous peoples’ internationally recognized human rights, international human rights institutions within the UN and regional systems like the OAS have become important mechanisms by which indigenous peoples can begin to press state governments to attend to their issues and enact legal, administrative, and political reform. Indigenous peoples have sought to invoke formal international legal instruments, complaint procedures, and human rights monitoring bodies as accountability mechanisms. The visibility and publicity that can be generated by indigenous peoples’ use of these accountability mechanisms can elicit positive government response through moral suasion, diplomacy, and naming and shaming. All these mechanisms have been incorporated into concrete pathways designed to bring greater government responsiveness to and accountability for ensuring the collective rights of indigenous peoples. In Latin America, indigenous peoples’ mobilization to promote their rights has increased political awareness and stimulated legislative reform. The series of international declarations, treaties, and tribunal decisions on indigenous issues have generated attention within national governments and civil society in general. This in itself is substantial social transformation. Within Latin America, particularly since the early 1990s, important constitutional and legislative reforms began to be instituted, many of them modeled on language contained in the International Labour Organization’s (ILO) 1989 Indigenous and Tribal Peoples Convention (Convention 169). This international treaty specific to indigenous peoples has been ratified by most Latin American countries. Ratification itself was precipitated in part by the political mobilization of indigenous peoples. Convention 169 also

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has helped prompt domestic jurisprudence upholding indigenous peoples’ rights in specific cases (International Labour Organization 2009). Also noteworthy is how indigenous peoples, along with other actors, have contributed to the incorporation of regional human rights institutions into concrete pathways for rights realization at the domestic level. Indigenous peoples and organizations, along with other sectors of civil society within Latin America, have been able to use the inter-American system as a forum not only to present specific human rights complaints but also to achieve a greater level of dialogue with and direct access to government representatives. Indigenous groups are using this access to try to mitigate structural inequalities at the domestic level. This in turn has helped push domestic policy reform. And by employing the language and principles established within the jurisprudence of the inter-American system, indigenous groups are better able to monitor government action or inaction and challenge it before domestic tribunals or before local or international opinion (Abramovich 2011, 215–16). The rights-realization pathways so far traveled have prompted a growing number of academic institutions, NGOs, and indigenous professionals to assist indigenous peoples in presenting cases before the inter-American system and other international judicial and political venues. Given jurisprudential advances within the inter-American system, indigenous peoples and supportive NGOs have found that submitting a human rights petition is a useful strategy to generate attention to their cause, and, in the most successful litigations, to obtain a favorable judgment followed by specific reparations to be given by the state. In short, the inter-American system has become an open “legal opportunity structure” which, as Gloppen explains in chapter 13 of this volume, promotes legal mobilization. When national political authorities initially are unresponsive, international legal action becomes a worthwhile option, and it has achieved some measure of success. Also, use of the inter-American and UN human rights systems by indigenous peoples and other actors helps establish accountability objectives as well as enabling citizen monitoring and citizen engagement, as discussed by Sano in chapter 10. In the Awas Tingni case, even during the years when full compliance with the court’s judgment seemed far away, the court decision helped give more prominence to the question of indigenous land demarcation within domestic political discussions and in the national media in Nicaragua, and did result in important legislative and institutional reforms in the area of indigenous peoples’ rights. The issue of demarcation and titling of indigenous lands in Nicaragua’s Atlantic Coast in accordance with the Awas Tingni decision was one of the conditions (along with several others dealing with the land, resource, and self-determination rights of indigenous peoples in general) included in a political accord between the principal political party of the Nicaraguan Atlantic Coast, YATAMA, and the Sandinista

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National Liberation Front (FSLN) (Alvarado 2007, 640–42). This occurred in 2006, when the FSLN was garnering support for the presidential elections it eventually won that year. Thus, domestic politics and contingent political events helped create the conditions for Nicaragua’s eventual compliance with the court’s judgment in the Awas Tingni litigation. The attention given to indigenous peoples’ rights in the international arena generated interest in the use of regional and UN human rights institutions not only by indigenous peoples and organizations and their supporters, but also by states. The Ecuadorean government approached the then special rapporteur on the rights of indigenous peoples, James Anaya, for advice and commentary on its 2008 constitutional reform process. This resulted in the incorporation of important indigenous-rights provisions. Similarly, the special rapporteur was also consulted regarding efforts in Ecuador to enact a law promoting the recognition and functioning of indigenous customary justice systems within the national legal framework. Suriname, too, asked the special rapporteur for assistance in developing indigenous and tribal peoples’ land rights legislation pursuant to a court order involving the Maroon people of Saramaka (Inter-American Court of Human Rights 2007).4 Assistance from the rapporteur may involve travel to the countries concerned (e.g., in Surinanme and Chile). Additionally, live-stream web conferencing by the rapporteur during a 2011 Ecuadorean National Assembly debate over customary justice legislation helped address the concerns of legislators and substantially bolstered the ongoing efforts by indigenous peoples in Ecuador to have their forms of justice recognized on par with the predominant Western-based legal system. In March 2012, the special rapporteur visited Costa Rica to help the government and the indigenous Terraba communities, potentially affected by the El Diquís hydroelectric project, undertake a dialogue and consultation process to ensure that the project conforms to international indigenous rights standards (Support Project 2012). If successful, this effort may create a more general template for future use in similar situations. Use of the special rapporteur for technical assistance has also been incorporated into concrete pathways of rights realization achieved through the reform initiatives of state governments. Many requests for assistance by governments and indigenous peoples involve difficult, complex, and controversial topics such as the right of indigenous peoples to be consulted regarding any measures that affect their rights, and to have their right to free, prior, and informed consent be respected. The content and extent of consultation rights is hotly contested among governments, private companies, and indigenous peoples themselves. At this point, there is little agreement on the practical meaning and content of this right. Still, it constitutes progress that numerous governments have paid attention to the issue and are seeking assistance from international human rights institutions.

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Even if initial government intention is mostly symbolic, continued demands by indigenous peoples at the national level, combined with sustained legal, normative, and political pressures from the international community are likely to lead to incremental improvements. Indeed, though state governments might prefer to give very narrow interpretations to indigenous peoples’ rights of consultation and consent to national economic development, these governments certainly do not want to give the appearance that, as a matter of national policy and law, they wantonly disregard the rights of indigenous peoples or that they advocate their cultural and physical disappearance, as in centuries past. It is a small but at the same time significant step forward that the historical, social, political, economic, and legal justifications used in the past to deprive indigenous peoples of their lands, resources, and their own cultural, social, and political institutions are being rejected. Significant structural obstacles within national governments, legal systems, and societies still need to be overcome to reverse the historical and contemporary forms of discrimination and other human rights violations faced by indigenous peoples and for indigenous peoples to enjoy the full realization of rights provided in the UN Declaration on the Rights of Indigenous Peoples and other international instruments. Significant obstacles also persist within the international accountability mechanisms utilized by indigenous peoples. These include limited enforcement capability and insufficient resources for monitoring compliance with international standards, resolutions, and judgments. Nonetheless, the series of small but growing international court decisions, hearings, reports and recommendations by UN and regional human rights bodies, and the domestic legislative and institutional reforms that have been undertaken in response to these international efforts have been important vehicles for social transformation. The foothold that indigenous peoples have secured in the international arena (and in many domestic legal and political arenas) cannot be ignored and would be difficult to scale back. At the very least, there has been substantial ideational transformation, through for example a change in the official discourse within the international community and in many domestic arenas as well. That discourse unequivocally calls for transformation in the legal treatment of indigenous communities and of the social, economic, and political realities that indigenous peoples have faced after centuries of human rights violations. This in turn lends legitimacy to regional and universal human rights institutions as mechanisms for rights realization and for the empowerment of indigenous peoples. Enhanced legitimacy in turn bolsters belief in efficacy by indigenous peoples, advocates, and state governments. There is room for optimism that over time, all this will translate into improving the everyday lives of indigenous peoples. Developments in Latin America highlight the potential importance, in the case of Asia, of the absence of a regional human rights supervisory institution. Attapatu’s chapter in this book shows that at least in the area of environmental rights, domestic

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jurisprudence in countries such as India has led to a type of regional jurisprudence influencing other Asian states in the absence of regional human rights institutions. Future research could usefully engage in systematic comparison among systems of regional inter-American and African jurisprudence as well as the jurisprudence of individual Asian countries to assess more fully the implications of the presence or absence of regional supervisory human rights institutions. More generally, similarities and differences in outcomes for indigenous peoples throughout the world will depend not just on the existence of international human rights instruments and international and/or regional implementing institutions, but also on domestic political, social, and legal factors that will shape the degree of state government resistance or compliance with international rights norms and international court judgments. NOTES 1. Information on hearings held by the Inter-American Commission on Human Rights during its ordinary period of sessions can be found on the commission’s website, at www. oas.org/en/iachr/. 2. For a description of the institution of special rapporteurs within the UN human rights system, see Subedi (2011). 3. For more information on the work of the special rapporteur, see the website maintained by the current special rapporteur Victoria Tauli-Corpuz, at http://unsr.vtaulicorpuz .org/site/, as well as the website maintained by the former special rapporteur, James Anaya, at www.unsr.jamesanaya.org. 4. For information on these specific activities and related reports, consult the Special Reports section within the website of the former special rapporteur: www.unsr.jamesanaya .org/list/special-reports/.

REFERENCES Abramovich, Victor. 2011. “Autonomía y subsidiaridad. El Sistema Interamericano de Derechos Humanos frente a los sistemas de justicia nacionales.” In El derecho en América Latina: Un mapa para el pensamiento jurídico del siglo XXI, edited by César Rodríguez Garavito, 211–30. Buenos Aires: Siglo Veintuno Editores. African Commission on Human and Peoples’ Rights. 2010. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003. Alvarado, Leonardo. 2007. “Prospects and Challenges in the Implementation of Indigenous Peoples’ Human Rights under International Law: Lessons from the Case of Awas Tingni v. Nicaragua.” Arizona Journal of International and Comparative Law 24(3):609–43. Anaya, S. James. 2004. Indigenous Peoples in International Law. 2nd ed. New York: Oxford University Press. Charters, Claire. 2009. “The Legitimacy of the UN Declaration on the Rights of Indigenous Peoples.” In Making the Declaration Work: The United Nations Declaration on the Rights

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of Indigenous Peoples, edited by Claire Charters and Rodolfo Stavenagen, 280–303. Copenhagen: IWGIA. Constitutional Court of Colombia, Sentencia T-769 (2009). , Sentencia T-129 (2011). Inter-American Commission on Human Rights. 2009a. Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, OEA/Ser.L/V/II. Doc. 58, December 24. . 2009b. Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA /Ser.L/V/II.Doc. 56/09, December 30. . 2010. Petition and Case System: Informational Brochure. https://www.cidh.oas.org /cidh_apps/manual_pdf/MANUAL2010_E.pdf. . 2011. Annual Report 2010, OEA/Ser.L/V/II., Doc. 5, rev. 1, March 7. . 2013. Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas: Recommendations for the Full Respect of Their Human Rights, OEA/Ser.L/V/II.Doc. 47/13, December 30. Inter-American Court of Human Rights. 2001. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs, Judgment of August 31, 2001, Series C No. 79. . 2007. Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs, Judgment of November 28, 2007, Series C No. 172. . 2008. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Monitoring Compliance with Judgment, Order of the President of the Inter-American Court of Human Rights of March 14. International Labour Organization. 2009. Application of Convention No. 169 by Domestic and International Courts in Latin America: A Casebook. www.ilo.org/indigenous /Resources/Publications/WCMS_123946/lang--en/index.htm. Koh, Harold. 1999. “How is International Human Rights Law Enforced?” Indiana Law Journal 74:1397–1417. Pasqualucci, Jo M. 2006. “The Evolution of International Indigenous Rights in the InterAmerican Human Rights System.” Human Rights Law Review 6:281–322. Subedi, Surya P. 2011. “Protection of Human Rights through the Mechanism of UN Special Rapporteurs.” Human Rights Quarterly 33(1):201–28. Supreme Court of Belize. 2007. Maya Village of Santa Cruz v. Attorney General of Belize. Consolidated Claims Nos. 171 & 172. United Nations Human Rights Council. 2010. Resolution 15/14, A/HRC/RES/15/14, October 6. Support Project for the United Nations Special Rapporteur on the Rights of Indigenous Peoples, University of Arizona. 2012. “Consultation with Indigenous Peoples in Costa Rica Could Be an Opportunity and Good Example for Other Countries.” http://www. unsr.jamesanaya.org/statements/consultation-with-indigenous-peoples-in-costa-ricacould-be-an-opportunity-and-good-example-for-other-countries. Vilhena Vieira, Oscar. 2011. “Desigualdad estructural y Estado de derecho.” In El derecho en América Latina: Un mapa para el pensamiento jurídico del siglo XXI, edited by César Rodríguez Garavito, 25–46. Buenos Aires: Siglo Veintuno Editores.

PA RT T WO

The Role of Domestic Law and Courts in ESCR Realization

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The Impact of Legal Strategies for Claiming Economic and Social Rights Varun Gauri and Daniel M. Brinks

There exist several pathways through which economic and social (ES) rights can mitigate world poverty, each entailing different but overlapping constellations of mechanisms and actors. A recent review distinguishes legal from extralegal pathways (Gauri and Gloppen 2012); the latter include efforts to change norms and discourses. For instance, human rights norms, such as those embodied in the UN’s Universal Declaration of Human Rights, might directly influence developingcountry officials and politicians when they formulate and implement government policies on topics such as school fees, child labor, taxation, and social assistance. They might also influence governments in rich countries to increase development assistance, or to change rules that govern the cross-national flows of goods, services, capital, and people. Human rights norms have encouraged the formation and probably promoted the effectiveness of civil society organizations, both in developing and rich countries; and the civil society organizations have in turn both pressured governments and provided direct services to poor people. Human rights norms can change the practices of multinational firms, making them more responsive to the needs of poor people in developing countries. Indeed, some of the most interesting developments in human rights are related to the scrutiny that some multinational corporations now give to labor standards at all stages of their supply chains. Finally, human rights norms can raise the expectations of citizens regarding that to which they are entitled. This chapter presents a synopsis of findings from Gauri and Brinks (2008). Contributors to that book, from whose work the country sections of this chapter draw, included Chidi Anselm Odinkalu (Nigeria), Bivitri Susanti (Indonesia), Jonathan Berger (South Africa), Shylashri Shankar and Pratap Bhanu Mehta (India), and Florian Hoffmann (Brazil).

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There are also legal pathways through which human rights could address poverty. Applicants have used international human rights principles to argue for social entitlements and to defend themselves against state actions in international, regional, and national courts. It is in national courts where human rights norms, understood as legal principles, currently exhibit the most power to address poverty. Constitutionally incorporated and judicially enforced ES rights have, for instance, allowed poor people to claim medications that are essential for life but are not available from government facilities and are too expensive in private pharmacies. They have compelled governments to implement a plan to enhance dilapidated and poorly managed schools in which textbooks and even teachers are often missing. They have blocked governments and landlords from evicting families who live in informal settlements, and have prevented companies from using common law employment contracts to dismiss workers engaged in a collective job action. Because of instances such as these, many international and national-level human rights advocates and civil society organizations support the incorporation of judicially enforceable ES rights. But is this a good idea? Not everyone thinks so. For some time, in fact, many if not most constitutional legal theorists have been skeptical. Mark Tushnet (2004) notes that “the conventional wisdom among scholars of U.S. constitutional law is that the Constitution—and indeed constitutions more generally—should not recognize, or be interpreted to recognize, so-called second generational social welfare rights, such as the right to shelter or to a minimum subsistence.” The debate on this question has been extensive. Without reviewing it in detail, it is possible to summarize the arguments in the broadest terms.1 In one line of argument, ES rights are not rights at all because, unlike civil and political rights, ES rights do not refer to a single duty-holder, require actions and not restraints, or require action on the part of nonstate actors. Other critics focus less on the character of the ES rights and more on their review by courts or quasi-judicial institutions (though, of course, there is overlap with the prior set of arguments concerning the nature of ES rights). These critics have argued that the judicial enforcement of ES rights could be enormously costly and could involve judges in policy questions, such as pharmaceutical research, the benefits of privatization, taxation, and economic productivity, on which they have little expertise. Moreover, when judges substitute their own judgments on budgetary questions for those of a democratically elected legislature—the branch of government explicitly designed both to represent the policy preferences of citizens and to make the political deals necessary to win public support for policies—then the ensuing policy trajectories could be less legitimate and less politically sustainable. A different group of critics have worried that because judges typically represent elite and business interests, granting courts power over economic and social decision making could only make matters worse for poor people.

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Others have responded that there is little difference between civil/political rights and ES rights: the fulfillment of either set of rights requires positive action in addition to forbearance and requires active support from nonstate actors whose identities cannot always be specified in advance. In addition, when judges enforce civil and political rights, such as to physical security, and in rulings on prison systems, voting procedures, and law enforcement methods, their judgments lead to significant budgetary outlays. The same is true of high-stakes and often very technical judicial rulings in the areas of bankruptcy, antitrust, and patents, all of which can have significant economic consequences. To address complex subject areas, courts have already developed a repertoire of procedures and techniques that include the use of expert witnesses and the appointment of special masters or technical organizations to oversee implementation orders. And concerns related to the separation of powers should not be considered in the abstract: the legitimacy of judicial involvement is related to the responsiveness of the other branches of government, which in many instances is demonstrably low. Finally, the point about the regressive character of courts also needs to be considered in perspective; in some instances, courts have promoted redistributive causes, and in any case this is a context-specific issue. Alongside (and often quite apart from) these theoretical debates, courts have in fact begun to enforce constitutionally incorporated ES rights. To begin with, more and more constitutions recognize or establish the existence of ES rights, particularly the more recent ones. Gauri (2004, 465) reports: “A review conducted for this paper assessed constitutional rights to education and health care in 187 countries. Of the 165 countries with available written constitutions, 116 made reference to a right to education and 73 to a right to health care. Ninety-five, moreover, stipulated free education and 29 free health care for at least some population subgroups and services.” At the same time, these rights are increasingly being used to justify claims against the state and other entities; and courts and other quasi-judicial entities (such as human rights commissions) are increasingly the venues in which these claims are being made. Any number of examples could be given, but here, for illustrative purposes, are a few. (A number of other cases will be cited below.) The inclusion of ES rights provisions in the constitutions of Hungary and Russia, and their invocation by constitutional courts, strengthened the hand of national governments when negotiating austerity programs with the IMF (Scheppele 2004). An NGO in Colombia filed a series of cases from 1997 to 2001 on the right to AIDS treatment, with the result that highly active antiretroviral treatment was extended to a broad class of individuals (Hogerzeil 2006). Perhaps most famously, the Grootboom decision of the South African Constitutional Court in 2000, finding a right to housing on behalf of impoverished squatters, raised the hopes of housing and antipoverty activists around the world, and changed the way that constitutional theorists approach ES rights (Sunstein 2004).

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An empirical study of the politics and impact of these cases would address many of the theoretical controversies surrounding ES rights. Given the extent and range of ES rights litigation now going on throughout the world, it should be able to answer a number of questions. Are courts actually becoming more involved in economic and social policy, or is the “judicialization” phenomenon (Tate and Vallinder 1995) a mirage? Are their interventions meaningful for policy making, or just so much window dressing? If they are becoming more important, why? Why do judicial decisions seem so frequent and prominent in some countries and in some issue areas but not in others? Perhaps more importantly, what are the consequences of giving courts a more prominent role in economic and social policy making? Do legal processes inevitably favor the “haves,” so that more judicial involvement will benefit those who are already better-off ? Do courts usurp the policy-making power of more representative branches of government? There do exist a few comparative and empirical studies of the role of courts in supporting basic rights. Some accounts are generally optimistic about the impact of litigation on ES rights. A review of leading case studies (COHRE 2006), for instance, suggests that given enough resources and guided by the right legal strategies, activists can use courts to promote ES rights in the same way that they have used them to enhance civil and political liberties in many contexts. A prominent and generally sanguine study of the role of courts in promoting women’s rights and criminal justice in the United States, Canada, and India emphasizes the importance of legal resources and legal support networks in creating “rights revolutions” (Epp 1998). On the other hand, Hirschl (2000) argues that courts, in interpreting constitutional rights, will advance “a predominantly neo-liberal conception of rights that reflects and promotes the ideological premises of the new ‘global economic order’—social atomism, anti-unionism, formal equality, and ‘minimal state’ policies.” In his view, placing public policy in the hands of courts is inimical to social justice and equality, redistributive policies, and more democratic majoritarian politics, a position inconsistent with a finding that courts are promoting significant extensions of ES rights anywhere in the world. Drawing on the U.S. experience, Rosenberg (1993) similarly argues that a litigation strategy for social change is not merely ineffective but a dangerous diversion of resources from other, potentially more productive, policy-making venues. The courts, in his view, are “flypaper” for would-be social reformers who have succumbed to the lure of litigation. The idea implicit in Hirschl’s and Rosenberg’s arguments is that the exercise of juridical rights does little to resolve, and perhaps is a distraction from, more important battles regarding social relations and raw political power, a notion with roots in Marx’s analysis of civil rights in On the Jewish Question (1994 [1844]). In this chapter, we examine the mechanisms, actors, and pathways involved in litigation for constitutional ES rights in five middle-income countries. We argue

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that the key mechanisms in this process are: a) the writing and interpretation of constitutions in which economic rights are justiciable; b) the belief that courts will enforce those rights and that the targets of litigation will comply; and c) the existence of not unreasonably high barriers to filing claims in courts. The key actors in this process are: a) the individuals who file constitutional claims and the NGOs and civil society organizations acting on their behalf; b) the judiciary; and c) government agencies and the other litigation targets. As we discuss below, the pathways entail three different kinds of litigation claims: for the provision of goods and services, the regulation of private actors, and the enforcement of horizontal obligations between private actors and claimants. Our chapter differs from Gloppen’s and from Klug’s (both in this volume) by focusing on the legal pathways. We do not here characterize the dynamic processes through which beliefs are formed, aspirations raised, and opportunity structures changed. But our outlook is compatible with the approaches they take, as well as those described in the chapters by Hertel and Randolph and by Atapattu. FIVE COUNTRIES

We compare the extent and forms of litigation on ES rights, and explain the reasons for variation, in five countries: Nigeria, Indonesia, South Africa, India, and Brazil. These include common law countries (India, Nigeria), civil law countries (Brazil and Indonesia), and a mixed one (South Africa). In some countries the constitutions are relatively old (by global standards), and in others, quite recent. Judicial review is abstract and centralized in Indonesia, concrete and diffuse in India and Nigeria, and a blend in Brazil and South Africa. The countries also vary in levels of national income and state capacity. The chapter focuses on two principal rights, the rights to health and to education. Health and education are almost always considered basic ES rights. These two policy areas also exhibit important differences, with a generally larger private sector for health care in most countries, and wider use of public-sector health facilities than of public schools on the part of the middle and upper classes. Nigeria Nigeria’s constitution of 1999 delineates ES rights but recognizes them as “fundamental objectives and directive principles of state,” which has motivated the opinion, widely held in Nigerian courts, that ES rights are not justiciable. The constitution does not by itself, however, determine the extent or nature of litigation in a country, because judges do not, we believe, mechanistically apply written texts to legal disputes. Rather, judges are strategic actors: although basing their opinions on written law, they of necessity rely on the other branches of government to execute their judgments, and therefore craft their rulings so as not to entirely alienate

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politicians and government officials. The Indian constitution, for example, similarly presents ES rights as explicitly nonjusticiable directives of state policy; but the Indian judiciary, in a series of opinions beginning in the early 1980s, nevertheless decided to enforce them, basing their doctrinal move on the idea that ES rights are implicit in “the right to life,” which is enforceable. A similar move has always been available to the Nigerian courts. For instance, the African Charter on Human and Peoples’ Rights is domestic law in Nigeria, and includes enforceable ES rights. The Nigerian Supreme Court might have used this to introduce a degree of justiciability to ES rights in Nigeria; it opted instead to use the nonjusticability of those rights under the Nigerian constitution to render inoperable cognate aspects of the charter (Chief Gani Fawehinmi vs. Sani Abacha [2000] Nig. Weekly L. Reps. (Pt. 660) 228). The Nigerian courts might also have opted to use equality provisions to begin enforcing ES rights, a strategy employed in other common law countries. An examination of the case law in three Nigerian states over the past decade found no more than a few dozen cases dealing with rights to health or education. Almost all of the education cases that reached the courts concerned university education. The Nigerian courts have supported the right to establish and maintain private schools and universities on the basis of the rights to property and free expression, but have maintained that the state can license and accredit private educational institutions. Nigerian courts have also issued opinions that universities must grant due-process rights to students before expelling them or withdrawing certifications or degrees. No challenges to the government’s education policies, such as cases questioning educational financing, structure, or quality, have reached the Nigerian courts. There have been no cases demanding greater or wider provision of education services. The majority of health care cases that have reached the Nigerian courts have involved the right to bail so as to obtain health care. Generally speaking, the Nigerian courts have ruled that detained individuals should be temporarily released or transferred so that they can obtain appropriate health care, though at least one High Court has ruled that general ill health (not characterized by a sudden attack or emergency) is not sufficient to grant bail on health grounds. The African Commission on Human and Peoples’ Rights found that hazardous oil-field operations in the Niger Delta violated the rights to health and a clean environment of the Ogoni community; but this opinion was not binding under Nigerian law (SERAC v. Nigeria, Africa Human Rights Law Reports 60, 2001). There have been no cases challenging the extent, quality, or financing of primary or hospital-based care in Nigeria. Overall, there have been few ES rights cases in Nigeria. In two circumscribed areas—the rights of university students against arbitrary expulsion, and the rights of prisoners to medical treatment—Nigerian courts have been willing to support petitioners.

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Indonesia The Indonesian constitution, essentially rewritten in a series of amendments from 1999 to 2002, includes ES rights that mirror the rights contained in the three principal international human rights treaties: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. When Indonesia’s Constitutional Court was established in 2003, this opened for the first time the possibility of petitions for the judicial review of legislation that might violate the constitutional rights of individuals. Previously, ES rights cases had been premised on administrative law or the incompatibility of regulations with their enabling legislation. A review of case law from 1995 to 2005 identified seven court cases related to the right to health care. Three involved medical malpractice, a kind of legal claim not typically analyzed under the rubric of the right to health, but which, when enforced by courts, can have a significant effect on health care quality, and which can shade into a more typical right-to-health claim, as in an Indonesian case in which a two-year-old boy was paralyzed after allegedly receiving poorly produced polio vaccine during an immunization drive in a rural area (Opik v. Republic of Indonesia Government, Civil Court, Cibadak, West Java, Case No.13/Pdt.G/2005/ Pn.Cbd). In that case, as is common for all categories of legal disputes in Indonesia, the plaintiff withdrew his claim and negotiated a settlement with the defendant under secret terms. In two cases, communities claimed that the central government failed to protect them from industrial pollution. In neither case did the plaintiffs succeed in obtaining a judgment against the government; but the government did issue a policy change in one of them (notably, the case in Jakarta, not the one in rural areas). In another case, a group of NGOs, including the Jakarta Legal Aid Bureau, sued the government when it failed to provide health care, sanitation, nutrition, and housing to Indonesian migrants forced to return from Malaysia. In the case, which was founded on the new constitution and the human rights law of 1999, the court ordered the government to take steps to provide relief to the returning migrants; but it declined to order the government to pass general legislation to protect migrant workers. Nevertheless, the government did pass such a law two years later. In one education case, university students who had been suspended for protesting new fee policies at their school successfully argued that they should be reinstated. In another, a group of parents and teachers challenged a land-swap deal in which a middle school would be relocated to accommodate new shopping areas, but lost the case. The broadest ES claims in Indonesia involved a series of three cases challenging the constitutionality of the central government’s budgets of 2005 and 2006 on the grounds that they did not allocate 20 percent to (non-salary) educational expenditures, as required in the constitution and in the basic law

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organizing the education sector. The Constitutional Court agreed that the budget law was unconstitutional, but chose not to declare it null and void because of the resulting policy consequences. The central government non-salary education budget has increased in recent years despite the lack of a remedy offered by the Constitutional Court, and some portion of this increase could be attributable to legal pressure (World Bank 2007; Jakarta Post, “No More Money for Education, Government Tells Court,” May 2, 2007). Three patterns emerge regarding litigation for ES rights in Indonesia. First, although in the past there have been no cases challenging the extent and financing of government obligations, cases like those seem to be emerging. Second, legal claims are often settled during the course of (and even more frequently, prior to) litigation; and claimants can receive some benefits, and occasionally even a policy change, despite formally losing the case. Third, in some instances there appear to be conflicts between the interests of appellants, who seek basic compensation, and their legal representation, such as NGOs, who seek broader policy changes. South Africa South Africa’s post-apartheid constitution of 1996 explicitly includes rights to housing, health care, food and water, education, and social security. South Africa’s Constitutional Court argued early on, during the certification of the new constitution, that these rights are justiciable: These rights are, at least to some extent, justiciable. . . . Many of the civil and political rights entrenched in the [text before the Constitutional Court for certification] 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 a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion. (Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), September 6, 1996)

Given the predisposition of the courts to enforce ES rights, the broad social consensus in support of social transformation and a redress of the social inequities from previous decades, and the significant influence of the South African courts on constitutional theories in other countries, one might have expected the range and impact of South African ES rights cases to be more robust. A review of cases in nonspecialized courts, at the level of the High Court and above, found thirtyseven ES rights cases dealing with health, education, water, social security, and housing since 1996. A few cases have had significant effects on government policies, particularly those involving the failure of the government to provide antiretroviral treatment to AIDS patients in prison, to pregnant women so as to prevent the transmission of HIV to their children, and to the general population with clin-

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ical AIDS. In other cases, such as a frequently cited case involving the right to housing (Government of the Republic of South Africa and Others v. Grootboom and Others 2001 (1) SA 46 (CC), October 4, 2000) and a series of cases involving the arbitrary suspension of social-grants programs or the arbitrary exclusion of potential beneficiaries in the Eastern Cape, Limpopo Province, and elsewhere, supportive judicial opinions have had mixed or little impact on government policies or even, in some cases, for the applicants themselves. In other cases, South African courts have taken the side of businesses and against applicants claiming ES rights. For instance, in one case in the Supreme Court of Appeal, the second-most influential court in the country, a private hospital successfully argued that it was not liable for negligence on the part of a nurse it employed because of an exemption clause the patient had seen in pre-admission paperwork (Afrox Healthcare Bpk v. Strydom 2002 (6) SA 21 (SCA), May 31, 2002). Two themes stand out in the South African case law on ES rights. First, the large majority of the cases have used ES rights in a defensive manner. This is particularly true of the housing-rights cases, which largely focus on unlawful evictions, but also of the social security cases, which have generally involved individuals or classes of individuals in certain provinces wrongfully excluded from some legislatively enacted program that functions tolerably well elsewhere in the country (though not funded at high enough levels, many have argued). A theme in the education cases involves efforts to resist government orders, such as administrative actions taken to close down single-language schools. The one water-rights case involved a government decision to disconnect a community from the water supply. Second, despite relatively strong constitutional language, many South African courts have exhibited substantial deference toward the government. In many cases, they have avoided ES rights as much as possible, preferring to ground their judgments on the constitutional right to just administrative action, constitutional provisions regarding fairness and equality, and other concerns. India Starting in the early 1980s, India’s Supreme Court began to take the position that ES rights are judicially enforceable. But perhaps as important was a significant expansion in access to the courts that occurred in the same era. The Indian courts established a category of claims, called Public Interest Litigation, in which applicants to courts need not demonstrate that they themselves have suffered harm to have standing; the courts lowered the standard for a writ petition, so that even letters to the court could qualify; and the Supreme Court itself began to examine social concerns on its own initiative. Some have doubted whether the legal resources have been available to trigger a “rights revolution” in India (Epp 1998), and poverty obviously remains an enormous problem in India despite the exaggerated expectations that some have placed on courts (Hirschl 2000). It also appears

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that Indian judges may have grown less receptive to individualized claims from disadvantaged litigants (Gauri 2011). Nonetheless, the Indian courts have taken a large number of cases, and resultant changes in government policy are visible in several policy areas. A review of cases since the early 1980s found 209 cases involving the right to health and 173 involving the right to education. Cases reached courts in all regions of India, but it is noteworthy that only 14 percent of those cases originated in the poor BIMARU states (Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh), which together account for about 40 percent of India’s population. Nationwide, applicants won 81 percent of the cases. Major areas of litigation included reimbursement for medical expenses on the part of government employees, public health (including industrial pollution, sanitation, and potable water), HIV prevention and AIDS treatment, medical negligence, university admissions and fees, and the establishment of private schools. Indian courts are known for their sweeping judgments, and in many instances it appeared that supervision of court orders was difficult and enforcement lax. But in establishing new rules that enable patients to claim medical negligence or misconduct, help create a reliable blood bank, provoke some states to establish midday meal programs in schools (for more on the right-to-food cases, see Hertel and Randolph in this volume), clarify rules regarding university fees and set-asides for the so-called “scheduled and other backward castes and tribes,” and limit air and water pollution, the Indian courts have used ES rights to change government policies. Two themes stand out in the Indian cases. First, most cases in India concerned government regulation of health care facilities or schools, or the relative liberties and obligations of service providers and service recipients; most did not involve claims for government provision in areas where the government was not already acting. Second, the majority of cases concerned the interests of the lower-middle or middle classes, not the interests of the extremely poor. There were more cases related to university than to primary education, and more cases per capita in rich than in poor states. Brazil Brazil’s constitution of 1988 is a programmatic document that puts significant emphasis on social rights. It holds that education is a “subjective” right of all persons and a duty of the state and the family (the word subjective suggests that the entitlement can be claimed in courts); that all public education, basic and higher, should be provided for free; and that the federal government should spend 18 percent of its resources on education while states and municipalities should spent 25 percent (Schwartzmann 2003). The constitution also holds that health care is “a right of all persons and a duty of the state” (Article 196), and legislation establishing the government health care system, the Sistema Único de Saúde, similarly pro-

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vides for all necessary health care services to be provided to the public without charge. Constitutional amendment 29, of September 2000, established minimal expenditures on health, as a share of revenues, for the federal, state, and municipal governments. Since 1996, thousands of Brazilian claimants have filed largely successful court cases involving the rights to health care and education. Most of these have been demands for medications either not regularly provided by governments or provided in theory but not available in practice. Several states, including Rio de Janeiro, São Paulo, and Rio Grande do Sul, have each witnessed thousands of court cases of this kind; but numbers of cases have been dramatically lower in some parts of Brazil, such as the poorer and more rural Northeast. There have also been a large number of cases invoking the right to health against private health insurance companies, arguing that a specific procedure should be reimbursable in spite of contractual language. Right-to-education cases at the basic and secondary levels have been far less numerous, but still number in the hundreds. Significant themes in right-to-education cases have been the mainstreaming of disabled children, and school repair in rural and urban areas. The large majority of court cases on the rights to health and education, over 90 percent, have been decided in favor of the applicants. Some of the cases, particularly those related to medications, have had significant budgetary consequences. For instance, in São Paulo State, it has been estimated that expenditures related to judicially awarded medications constitute 5 to 10 percent of the state health budget. These medication cases now serve as an informal feedback mechanism for the official government pharmaceutical formulary, providing information to governments when formulary revisions are being demanded. Several patterns stand out in the Brazilian court cases related to ES rights. First, unlike all the other countries discussed here, the great majority of cases have involved claims for direct state provision of services, particularly medications. There have been other kinds of cases as well, but it is only in Brazil that the classic understanding of ES rights claims—demands on the state for financing and/or provision—have formed the majority of cases. Second, most of the cases have been individual cases, in which claims are usually conceded. A legal institution relatively unique in its influence and autonomy, the Brazilian Ministério Público, has brought a number of the collective cases that seek to change policy. Generally speaking, courts have been far more reluctant to challenge government policies than to award medications or other social services that the government has already committed itself to providing. The highest Brazilian court, the Supremo Tribunal Federal, has explicitly stated that it will not find government programs unconstitutional for policy omissions. But the Ministério Público, even by initiating an inquiry into a potential legal action, has been successful in spurring new policy initiatives in some states; and the relative independence of Brazilian courts has led

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some courts to challenge state policies more directly. Third, Brazilian courts have usually relied on a variety of constitutional provisions, particularly the right to life, as well as the existence of legislation implementing the constitutional provisions on the right to health care, when requiring the state to provide medications. T H E C AU SE S A N D C O N SE QU E N C E S O F T H E L E G A L I Z AT IO N O F E C O N OM IC A N D S O C IA L R IG H T S

To analyze the conditions under which demands for ES rights take a legal form, and the impact of legalizing ES rights, it is useful to conceptualize the pathways involved in legal strategies as a four-step process. The first of these steps is the legal mobilization of demands. That is, actors choose to take demands to courts and not (merely) to political authorities, social contacts, NGOs, family members, or some other channel. In the second step, the court makes a consequential statement about this demand, often a substantive negative or positive decision though sometimes a decision to abstain. The third step is the response by the target of the demand to the court’s decision. This is often characterized as a dichotomous decision to comply or not, but it often has a more intermediate or iterative quality, in which the target must return to the court to show some progress, or to ask for further instructions. Even when the target chooses to comply, it has the option of limiting the demand to the specific litigant or of extending it to others who might be similarly situated. The fourth step, which can trigger a whole new round, is the observation of compliance and impact resulting from the litigation and a new decision by the original litigants, or by people who for one reason or another perceive themselves to be potential beneficiaries of the process, to follow up on the initial judicial statement in light of the target’s response. We view these four decisions as interdependent. They are best understood, we believe, as decisions made by strategic actors, albeit with limited capabilities and limited information about what will happen once they make their choices. The decision at each step is the product of factors directly related to the decision at hand and to some consideration of what will happen at the next stages. The first question to present itself involves the causes of the legalization of ES rights. Under what conditions do actors, individuals, and groups use courts to claim ES rights? Some analysts have argued for the existence of a key necessary and sufficient condition, such as the availability of a legal support structure, that is, organized, well-funded legal organizations oriented toward the advancement of the public interest, to explain where human rights litigation arises. We think that the answer is more complex. The level of legal mobilization—the first step and the original decision to legalize ES rights—is a function of demand-, supply-, and response-side variables.2 On the demand side are the capabilities and strategic calculations of those mobilizing around a particular issue. These include, in Haglund

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and Stryker’s terminology, two “analytic moments,” in which key actors first acquire desires and beliefs about what they are entitled to, and then utilize legal channels to press their claims. On the supply side are the features of the legal system, with which they must interact if they press a legal claim, including the likely judicial response. On the response side are the characteristics of the targets of potential demands, including their likely level of resistance, their latent capacity, and their organizational development. By including supply- and response-side variables in the litigant calculus, we are arguing, then, that what Haglund and Stryker refer to as “mechanisms” and “pathways” not only channel and constrain the likely effects of actions stemming from ES rights litigation, but that they affect the very formation of desires, beliefs, and actions on the part of the key actors. Reviewing the country experiences in light of this (very brief) account, it is apparent that in Brazil a favorable demand structure, a hospitable judiciary, and a state disposed to comply with judicial requests all contributed to the large number of ES rights cases documented in the country. Following the movement that precipitated the return to democracy in the late 1980s, and the mobilization surrounding HIV/AIDS policies that began around the same time, the demands for health rights are relatively well organized in Brazil (Gauri and Lieberman 2006). At the same time, the judiciary can employ legal principles clearly based in the widely accepted constitution of 1988, and the state is generally supportive of health care rights. (Indeed, appeals of lower-court judgments are usually based not on resistance to the court order but on disputes about which entity—federal, state, or municipal government—is responsible for providing the medication in question.) In India, it seems that supply-side changes, particularly looser rules on standing and a court-led effort to refocus the judiciary on issues of poverty (motivated, many argue, by remorse over the judiciary’s own role in supporting Indira Gandhi’s Emergency), circumvented what at the time was a relatively weak demand for judicial services and eventually led to an active docket on ES rights (Sathe 2002). In South Africa, mobilization on the part of AIDS activists has led to a series of important cases in that policy area; but demand-side mobilization in other policy areas has not been sufficient to overcome traditional rules of standing and a cautious judiciary. In Nigeria and Indonesia, the courts are socially (and in the case of Indonesia, geographically) remote from poor people; and organized civil society remains incipient outside of major cities. What factors explain judicial support? The content of national constitutions and legislation is important, but not determinative, as the contrasting interpretations of similarly structured ES rights in Nigeria and India reveal. Judicial attitudes are important, as well. Probably most important are the positions of respondents to legal claims. It is practically impossible for courts to enforce judgments in the face of determined political resistance (Rosenberg 1993). With the possible exception of a few judgments in India, in no case did courts require a government to

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formulate and implement an entirely new social program in an area in which none existed. Rather, even the most aggressive court decisions have tended to justify their rulings with the observation that the governments have already committed themselves to the policy directive being ordered. The observed behavior of courts is very far from a story of antidemocratic judicial usurpation. Rather, courts have been extremely cognizant, perhaps to a fault, of the likely government, elite, and popular support for their rulings. In other words, as Haglund and Stryker put it, the actors involved and the pathways of potential change loom large in judicial decision making. When do the benefits of legal strategies generalize? Legal strategies, especially when they are successful but even when they are not, can lead to legislated policy changes that benefit all similarly situated individuals, regardless of their access to legal channels of demand. A relatively small, predominantly urban NGO such as the Treatment Action Campaign in South Africa can trigger a nationwide change in policy regarding the free provision of antiretrovirals that benefits poor rural women in rural provinces. The accumulation of individual demands for the supply of particular new medications at government expense in Brazil have led to their inclusion in public health posts and their routine dispensing even to those who do not file lawsuits. Even unsuccessful litigation, such as the case involving the Nunukan refugees in Indonesia, can pressure the government to provide services to the litigants and to all those who are in a similar situation. The movement from policy action to outcomes (from moment 2 to moment 3, in Haglund and Stryker’s terminology) appears, in the case of legal mobilization, usually to be mediated through judicial alliances with the organized public. Finally, when does a course of litigation promote the interests of the poor? A priori, one might have reason to believe that this happens rarely, if ever. After all, it is the rich and upper-middle classes who have access to the legal resources to initiate litigation, and one would presume that the judiciary would be most responsive to the concerns of people like themselves. There is confirmatory evidence for this proposition in the cases we study. For instance, there are more cases originating in urban than rural areas, more cases per capita in the rich than in the poor states of India, more cases on university education than on basic education, and more cases in health care (because the middle classes tend to use public health facilities) than in education (because the middle classes have typically exited the public schools). Nevertheless, there are at least three pathways by which a course of litigation can benefit poor people. First, the state can finance organizations whose objective is to promote the interests of poor people and of society as a whole, such as the Brazilian Ministério Público or certain capable NGOs in India. Second, after the middle-class patients have blazed the way in litigation, subsequent and similar cases are less costly to mount, and can fall within the budget constraints of groups of poor people. Something like this appears to have happened with the medications

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cases in Brazil. Third, where the middle classes and the poor have overlapping interests, as is the case with public goods, such as infectious diseases and industrial pollution, poor people can benefit from litigation for ES rights. In general, the principal driver of pro-poor impact appears to be the existence of legal mechanisms, such as precedent or abstract constitutional review, that facilitate the generalization of the benefits of a court ruling from the litigants to other similarly situated individuals (Brinks and Gauri 2014). C O N C LU S I O N

Constitutions and courts are crucial, and in some ways even paradigmatic, means by which economic and social rights can mitigate poverty. The debate over the role of courts in promoting “positive” rights has occurred largely in the abstract. A number of courts in developing countries have been ruling on and enforcing ES rights for over a decade, and it is possible to examine that historical record to determine whether the critics or the supporters of the judicial enforcement of ES rights have been more accurate. An examination of five countries finds that alleged problems relating to judicial expertise, separation of powers, and usurpation of the other branches of government have not been significant consequences of or impediments to judicial activity. On the other hand, there appear to be grounds for the concern that the legalization of ES rights might not benefit the poorest and most destitute individuals, at least not initially. There appear to be conditions under which legal strategies for enforcing ES rights will benefit poor people, but the conditions are not universal and are often embedded in long-standing legal traditions that are not easy to change in the short run. NOTES 1. For a review from advocates, see Scott and Macklem (1992); for a review from the point of view of skeptics, see Dennis and Stewart (2004); for recent assessments see Langford (2009) and Abramovich (2005). For the philosophical debate, see Shue (1996), Pogge (2002), and Sen (2004). 2. Supply and demand in this formulation refer to the supply of and demand for judicial services. The response side refers to the target of the demand, to whom a judicial order would be addressed.

REFERENCES Abramovich, Víctor. 2005. “Courses of Action in Economic, Social and Cultural Rights: Instruments and Allies.” Sur—International Journal on Human Rights 2:180–216. Brinks, Daniel M., and Varun Gauri. 2012. The Law’s Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights. Perspectives on Politics 12(2):375–93.

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Centre on Housing Rights and Evictions. 2006. Leading Cases on Economic and Social, and Cultural Rights: Summaries. Working Paper No. 3. Dennis, Michael J., and David P. Stewart. 2004. “Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?” American Journal of International Law 98:462–515. Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press. Gauri, Varun. 2004. “Social Rights and Economics: Claims to Health Care and Education in Development Countries.” World Development 32:465–77. . 2011. “Fundamental Rights and Public Interest Litigation in India: Overreaching or Underachieving?” Indian Journal of Law and Economics 1:71–93. Gauri, Varun, and Daniel M. Brinks, eds. 2008. Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. Cambridge: Cambridge University Press. Gauri, Varun, and Siri Gloppen. 2012. “Human Rights-Based Approaches to Development: Concepts, Evidence, and Policy.” Polity 44:485–503. Gauri, Varun, and Evan S. Lieberman. 2006. “Boundary Institutions and HIV/AIDS Policy in Brazil and South Africa.” Studies in Comparative International Development 41:47–73. Hirschl, Ran. 2000. “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions.” Law and Social Inquiry 25:91–149. Hogerzeil, Hans V., Melanie Samson, Jaume Vidal Casanovas, and Ladan Rahmani-Ocora. 2006. “Is Access to Essential Medicines as Part of the Fulfillment of the Right to Health Enforceable through the Courts?” The Lancet 368:305–11. Langford, Malcolm, ed. 2009. Socio-Economic Rights Jurisprudence: Emerging Trends in International and Comparative Law. New York: Cambridge University Press. Marx, Karl. 1844 [1994]. Marx: Early Political Writings, edited by Joseph O’Malley. New York: Cambridge University Press. Pogge, Thomas W. 2002. World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms. Cambridge: Polity Press. Rosenberg, Gerald N. 1993, The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press. Sathe, S. P. 2002. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Delhi: Oxford University Press. Scheppele, Kim. 2004. “A Realpolitik Defense of Social Rights.” University of Texas Law Review 82(7):1921–61. Schwartzmann, Simon. 2003. The Challenges of Education in Brazil. Working Paper No. CBS 38–2003, University of Oxford Centre for Brazilian Studies. Scott, Craig, and Patrick Macklem. 1992. “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution.” University of Pennsylvania Law Review 141:1–148. Sen, Amartya. 2004. “Elements of a Theory of Human Rights.” Philosophy & Public Affairs 32: 315–56.Shue, Henry. 1996. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy. Princeton: Princeton University Press.

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Sunstein, Cass. 2004. The Second Bill of Rights : FDR’s Unfinished Revolution and Why We Need it More Than Ever. New York: Basic Books. Tate, C. Neal, and Torbjorn Vallinder. 1995. “The Global Expansion of Judicial Power: The Judicialization of Politics.” in The Global Expansion of Judicial Power, edited by C. Neal Tate and Torbjorn Vallinder, 1–24. New York: New York University Press. Tushnet, Mark. 2004. “Social Welfare Rights and Forms of Judicial Review.” Texas Law Review 82:1895–1920. World Bank. 2007. Investing in Indonesia’s Education: Allocation, Equity and Efficiency of Public Expenditures. Jakarta: World Bank.

Chapter 5

The Role of Human Rights Law in Protecting Environmental Rights in South Asia Sumudu Atapattu

The convergence between the human rights movement and the environmental movement is an important feature of recent times. This convergence can be seen at national, regional, and to a lesser extent, international levels (Hunter, Salzman, and Zaelke 2011); and, as the introduction points out, this cross-fertilization can be seen in other areas discussed in this volume (the chapters by Alvarado, Klug, and Gauri and Brinks are good examples) and forms one of its principal approaches. Using one legal framework in relation to another field can be seen as an efficient use of the existing legal framework, although, as discussed later, the existing legal framework may not be able to provide all the answers necessary or cover all situations that may arise. The relationship between environmental issues and the enjoyment of protected rights needs no emphasis; it is obvious that many of the protected rights, if not all, can be jeopardized as a result of environmental damage. Despite this close link, contemporary international law does not recognize a specific right to a healthy environment, although some contend that such a right is emerging (Boyle and Anderson 1995). The recent appointment by the UN Human Rights Council of an independent expert on human rights and environment (Resolution A/HRC/19/ L.8/Rev.1) is a welcome development which we hope will lead to significant A preliminary version of this chapter was presented at the annual meeting of the Law and Society Association in Chicago in May 2010. It was revised and presented at a conference, Rights and Their Translation into Practice, at the University of Arizona in April 2011. I thank the conference organizers for inviting me to the conference and the editors of this volume for their helpful suggestions in revising the material. Parts are also drawn from Atapattu (forthcoming).

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advancements in this area. The independent expert’s mandate, which includes a study of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment and making a compendium of best practices, reflects this cross-fertilization. Environmental law lacks the sophisticated redress mechanisms that the human rights framework has, and not surprisingly, victims of environmental harm have begun to use the latter framework to seek redress. Both civil and political rights and economic, social, and cultural rights, as well as procedural rights, have been invoked to seek redress for damage caused by environmental harm. Thus, rights to life (X. v. Austria; The Yanomani Case), to health (Arrondell v. United Kingdom), to privacy (Powell v. Rayner; Lopez Ostra v. Spain), and to an adequate standard of living (S. v. France) have all been invoked in relation to environmental issues. The latest in this line of cases is the Inuit petition filed before the Inter-American Commission on Human Rights against the United States by the Inuit Circumpolar Conference. It was brought in relation to the damage caused to the Inuit by climate change—the first time that the human rights framework was invoked in relation to a global environmental problem. The right to a healthy environment, inter alia, was specifically invoked in The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria (2001). Of course this case can be distinguished from other cases because the African Charter on Human and Peoples’ Rights specifically embodies a peoples’ right to environment as a substantive right (Article 24). I have written elsewhere about the pros and cons of a human rights approach to environmental protection as well as the jurisprudential foundation of “environmental rights” (Atapattu 2002, 2005, 2006). I will summarize the salient points here. Environmental issues encompass a much broader category of species than would be covered by a human rights approach. Species other than human beings obviously do not enjoy human rights, although it can be argued that by protecting the environment we are indirectly protecting other species. Secondly, environmental problems often affect a large number of people, whereas human rights violations are generally individual in nature (except, of course, massive violations of human rights such as genocide, apartheid, and war crimes, and rights which can only be exercised collectively, such as the freedom of association). Moreover, environmental issues often affect future generations and are sometimes transboundary in nature. Furthermore, human rights claims usually require a prior violation, whereas the main focus of environmental protection regimes is to prevent environmental degradation. This may be one of the reasons why the environmental regimes lack the sophisticated remedial machinery that the human rights regime has. Environmental issues do not fall neatly within the existing generations of rights; civil and political rights, as well as economic, social, and cultural rights, and procedural rights have been invoked in relation to environmental issues, while

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some contend that environmental rights are better categorized as third-generation rights (Marks 1980–81; cf. Alston, 1982). The blurring of the traditional distinction between civil and political rights and economic, social, and cultural rights is another significant feature of the chapters in this volume. Finally, in the absence of a specific right to a clean environment, the claimants have to establish a causal link between the environmental issue and the protected right. If this link cannot be established, the claim will fail. The Inuit case is a good example. The claimants had to establish that the U.S. emissions of greenhouse gasses contributed to climate change, which led to environmental changes in the Arctic, which in turn resulted in the violation of protected rights of Inuit people. Given these drawbacks, it can be argued that a human rights approach may not be best suited for many kinds of environmental issues. Despite the drawbacks, the human rights approach holds a certain appeal for environmental victims. It gives a human face to environmental issues and draws attention to the victims (many people consider environmental issues to affect only unborn generations in the distant future). The Inuit petition, for example, highlighted that climate change is real, that it is causing actual damage, and that real people are being affected right now. Moreover, victims of environmental damage have the opportunity to obtain relief for the harm they suffered. In addition, such litigation strategies can draw political attention to the issue in question, leading to action at the domestic level and further negotiations at the international level (Hunter 2009). However, it must be stressed that adopting a human rights approach to environmental issues should not be taken as endorsing an anthropocentric approach to environmental issues. Human rights should complement the ecocentric approach, not supplant it. The jurisprudential bases for a human rights approach to environmental issues have been articulated as follows (Burger 2003). First, it is a norm that is already embedded in legal systems through common law, through concepts such as nuisance and the principle of good-neighborliness. Therefore, the right to environment should be considered a general principle of international law under Article 38(1)(c) of the Statute of the International Court of Justice. Secondly, it can be argued that the right to environment is a logical outcome of other human rights, such as the right to life and the right to property. Thirdly, it can be contended that it is emerging as a customary international law principle as a result of the increasing number of national constitutions guaranteeing a right to environment as well as the increasing number of treaties on environmental protection. Finally, an argument can be made that given its importance such a right should be created through treaty. Despite its increasing importance, its inclusion in regional treaties, pronouncements by national and regional courts, and several attempts at articulating such a right at the international level, the international community has yet to proclaim a substantive right to a healthy environment. In 1990 the UN Sub-Commission on

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Prevention of Discrimination and Protection of Minorities (as it was then called) appointed a special rapporteur to study the relationship between human rights and the environment. The special rapporteur submitted four reports to the subcommission, and the final report included a set of draft articles on human rights and the environment (Economic and Social Council 1994). To date, these articles have not been adopted. This apathy could be due to several reasons (Atapattu 2005) and merits further analysis but is beyond the scope of this chapter. It is no secret, however, that environmental issues have resulted in violations of human rights, and given the lack of remedial machinery in the environmental field, victims of environmental abuse have increasingly turned to the human rights framework to seek redress. Thus, the human rights machinery has succeeded in providing remedies to the victims of pollution and other environmental degradation in many instances. This is particularly prevalent in South Asia, where a vibrant civil society and an equally active judiciary have helped create a robust body of “environmental rights” derived from existing rights. The constitution and other laws of these countries do not embody “environmental rights.” Provisions relating to the environment are usually relegated to the section on directive principles of state policy and are typically non-justiciable. This chapter looks at the link between human rights and environmental issues as articulated by the superior courts in South Asia, in seminal cases from India, Pakistan, Bangladesh, Nepal, and Sri Lanka. The trend set by the Supreme Court of India in Subhash Kumar v. State of Bihar in 1991, where the court observed that the right to life enshrined in Article 21 of the Indian Constitution includes the right to enjoyment of pollution-free water and air for the full enjoyment of life, has been followed by courts in South Asia. This chapter will discuss the jurisprudence of these courts in light of the influence that both international human rights law and international environmental law had on these cases.1 In addition, another development seems to be emerging—an aspect that has not been fully explored in literature—using the human rights machinery to prevent environmental damage. Human rights law is generally used as a tool to seek redress for violations of rights by state authorities. However, in some instances this framework has been used to seek redress for an imminent infringement of rights, so that actual environmental damage would be prevented. I will discuss the preventive aspect of the human rights framework through a discussion of Bulankulama and Others v. Secretary, Ministry of Industrial Development and Others (generally referred to as the Eppawala phosphate mining case), decided by the Supreme Court of Sri Lanka in 2000. It is refreshing to see how the legal framework in relation to one subject area has been used successfully in relation to another. There are many examples of cross-fertilization of legal norms in international law (Sands 1998), and the use of redress mechanisms in the human rights field in relation to environmental issues

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is quite prevalent in many parts of the world. Thus, in the seminal case of Minors Oposa v. Secretary of the Department of Environment and Natural Resources, which involved a challenge by a group of minors to timber license agreements on the ground that deforestation is causing environmental damage to them as well as to future generations, the Supreme Court of the Philippines noted (emphasis added): While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation—aptly and fittingly stressed by the petitioners—the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.

This chapter uses the MAPs framework adopted in this volume (see the introduction by Haglund and Stryker). It discusses the various mechanisms and strategies (such as public interest litigation and applying international law principles, including those in soft law instruments, in relation to domestic issues) used by various actors (including victims, NGOs, the legal profession, and the judiciary) in the pursuit of change, with the ultimate goal of achieving social change. Concrete pathways for rights realization relate to these actors and mechanisms spatially and temporally, identifying both opportunities for and constraints to rights realization. Thus, the chapter looks at how rights were realized in the judicial context. In addition, extralegal pathways such as mobilization by civil society groups have also been successful (Gauri and Brinks, chapter 4, this volume). However, many constraints still remain. As identified by Gauri and Brinks, legal pathways are predominantly used by the elite, leaving the poorest of the poor behind. Moreover, not all instances of legal action lead to social transformation, and not all instances of action by various actors lead to legal recognition. The temporal element of social change as well as the particular context within which such change takes place should also be taken into account. The emphasis in this chapter on cases of the Supreme Court of India should not be taken to imply that cases from other countries are not important or that the former are superior. It is simply an acknowledgement of the pioneering role the Indian Supreme Court has played in this field and the sheer number of cases it has decided.

C A SE S D E C I D E D B Y T H E SU P R E M E C OU RT O F I N D IA

The Supreme Court of India is considered the pioneer in the field of environmental protection in South Asia, interpreting the right-to-life clause in the Indian Constitution (Article 21) in an expansive manner to include the right to be free

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from pollution, the right to a clean environment, and other procedural rights relating to the environment. The court has further imported principles from international environmental law, articulating that the polluter-pays principle, sustainable development, and the precautionary principle are all applicable in India. In M. C. Mehta v. Kamal Nath2 the court extended the public-trust doctrine to cover all ecologically important lands, including freshwater, wetlands, and riparian forests, not just navigable waters. As noted above, in the Subhash Kumar case, the court articulated: “The right to life is a fundamental right under article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.” In many of these cases, the court had to strike a balance between economic development, on the one hand, and the right of people to live in a clean environment, on the other. Vellore Citizens Welfare Forum v. Union of India (1996) involved environmental damage and the public health hazard caused by tanneries in the state of Tamil Nadu. The court noted that while these tanneries brought in considerable revenue and generated employment, the industry had no right to destroy the ecology and create a health hazard: “Sustainable development, and in particular the polluter pays principle and the precautionary principle, have become part of customary international law.” In Karnataka Industrial Areas Development Board v. Sri C. Kenchappa and Others (2006), the court reiterated the principle of sustainable development and referred to the Stockholm Declaration as the “Magna Carta of our environment.” The court further discussed the history of international environmental law, paying extensive attention to the provisions of the Rio Declaration. It noted that in keeping with the principle of sustainable development, a serious effort has been made “to strike a golden balance between industrial development and ecological preservation.” The court referred to its decision in AP Pollution Control Board II v. M. V. Nayudu (2001), where the court observed that the right to access drinking water is fundamental to life and it is the duty of the state under Article 21 of the Constitution to provide clean drinking water to its citizens. The court further noted that there is a need to balance the right to a healthy environment and the right to sustainable development. Similarly, in Narmada Bachao Andolan v. Union of India 2002, the court noted that water is a basic human need and is part of the right to life and human rights enshrined in Article 21. The court reiterated the importance of the precautionary principle, sustainable development, and the polluter-pays principle, as well as the public-trust doctrine. The importance of procedural rights was discussed in the case of People’s Union for Civil Liberties & Another v. UOI & Others (2005). The court noted that the right

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to information is a facet of “speech and expression” enshrined in Article 19 and thus, the right to information is indisputably a fundamental right. The importance of environmental education prompted the decision of the Supreme Court of India in M. C. Mehta v. Union of India and Others (1991). This is one in a long line of cases in India that used the human rights framework to seek redress for environmental damage as well as to prevent further damage to the environment. The petitioner in this case relied on Article 51A(g) of the Constitution of India, which requires every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures. The petitioner argued that to fulfill this obligation, people would need to be better educated about the environment. The court pointed out that although law is a regulator of human conduct, no law can effectively work unless it is accepted by people in society: No law works out smoothly unless the interaction is voluntary in order that human conduct may be in accordance with the prescription of law it is necessary that there should be appropriate awareness about what the law requires and there is an element of acceptance that the requirement of law is grounded upon philosophy which should be followed. This would be possible only when steps are taken in an adequate measure to make people aware of the indispensable necessity of their conduct being oriented in accordance with the requirements of law.

Noting that in a democratic polity dissemination of information is the foundation of the system, and that there is a general acceptance that protection of environment is an indispensable necessity for life to survive on earth, the court made the following directions: (a) cinema halls, touring cinemas, and video parlors are to exhibit free of charge at least two slides/messages on the environment in each show (the Ministry of Environment should prepare appropriate slide material for this purpose); (b) the Ministry of Information and Broadcasting should produce short information films on the environment; and (c) the University Grants Commission shall take steps to prescribe a course on the environment and every Education Board shall take steps to enforce compulsory education on the environment. This case highlights the important role played by information and education in protecting the environment and synthesizes two streams of law, providing yet another example of cross-fertilization—the enjoyment of human rights, indeed the very survival of people, with the protection of the environment—and demonstrates how one framework can be used to seek redress in relation to another, to further articulate its parameters and even to define new rights through the expansive interpretation of existing rights. As Jona Razzaque (2002) correctly points out, the Supreme Court of India has used the right-to-life clause in a diversified and creative manner. First, it has been

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interpreted to include a right to a wholesome environment (starting with the Charan Lal case). Secondly, it has been interpreted as including rights to a livelihood, a better standard of living, hygienic conditions in the workplace, and leisure. Thirdly, the public-trust doctrine that has been used to protect and preserve public land was extended to all natural resources in the M. C. Mehta v. Kamal Nath case, discussed above. C A SE S F R OM BA N G L A D E SH

As in India, the Constitution of Bangladesh does not embody a right to environment. Unlike India, it does not refer to the environment in its directive principles. However, this has not stopped its judiciary from interpreting the right-to-life clause in an expansive manner. In Dr Mohiuddin Farooque v. Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control (1996), the Supreme Court of Bangladesh considered whether the “fundamental right to life included the protection and preservation of the environment, the ecological balance and an environment free from pollution essential for the enjoyment of the right to life.” While the court noted that the Bangladeshi Constitution does not contain a provision akin to Article 48A of the Indian Constitution (which imposes a duty on citizens to protect the environment), it interpreted Articles 31 and 32, on the right to life, expansively: “Articles 31 and 32 of our constitution protect right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of environment, ecology free from pollution of air and water, sanitation without which life can hardly be enjoyed and omission contrary thereto will be violative of the said right to life.” Relaxing the requirements relating to standing, the court noted: The expression ‘any person aggrieved’ [within the meaning of Article 102 of the Bangladeshi Constitution] is not confined to individually affected persons only but it extends to the people in general, as a collective and consolidated personality. If an applicant bonafide espouses a public cause in the public interest he acquires the competency to claim hearing from the court. . . . Being a public sector subject, flood control and control of river and channel flows is a matter of public concern (quoted in Hassan and Azfar 2004)

This trend has been followed in subsequent cases. The space given by the court in this case has opened the door to similar litigation in Bangladesh, and the courts have developed a robust body of law on environmental issues. As Hassan and Azfar note, “The success of the Bangladesh Environmental Lawyers Association in this case shows that the opening it achieved for public interest litigation in Farooq has led to effective advances. It is apparent that the linkage between human rights and environmental concerns seen elsewhere in the subcontinent also exists in

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Bangladesh, where the superior courts are planning a similar role in keeping the judicial avenue open where the executive route has been blocked.” C A SE S F R OM PA K I S TA N

A similar trend can be seen in Pakistan. Pakistan’s Constitution does not contain any reference to the environment, either in the bill of rights (which is rarely seen in constitutions adopted in the 1970s) or in the directive principles chapter (which seems to be the situation in countries discussed here). Hassan and Azfar note that the only reference to the environment is in a schedule to the Constitution which says that ecology may be the subject of legislation by both the provinces and the federation. Undeterred by the silence in the Constitution, the lawyers for the petitioners in Shehla Zia and Others v. WAPDA relied on the extensive jurisprudence in India that recognized that the right to life included the right to a quality of life. They also relied on the constitutionally guaranteed right to dignity under Article 14 of the Pakistani Constitution. The Pakistani Supreme Court rose to the occasion and held that a wide meaning should be given to the word “life” to enable a person not only to sustain life but also to enjoy it: “The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person in a free country is entitled to enjoy with dignity, legally and constitutionally.” It further noted that where the life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people. With regard to scientific uncertainty, the court noted that the precautionary principle should be applied and that a balance should be struck between economic progress and prosperity, and the need to minimize possible environmental hazards. Thus, the court confirmed that a policy of sustainable development should be adopted. With regard to the Rio Declaration, the court noted that it “would serve as a great binding force and to create discipline among the nations while dealing with environmental problems.” The decision in the Shehla Zia case has been cited with approval in many subsequent cases. In Salt Miners Labor Union v. Industries & Mineral Development, the Supreme Court, citing Shehla Zia, articulated that “the right to have unpolluted water is the right of every person wherever he lives.” Hassan and Azfar (2004) summarize the reach and the significance of the Shehla Zia case: Perhaps the most important legacy of Shehla Zia to date is that it has provided the public with an almost unfettered right to bring environmentally-related grievances to the superior and subordinate courts. Prior to Shehla Zia, and particularly because

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C A SE S F R OM N E PA L

Nepal, one of the poorest countries in the world yet rich in culture, diversity and tradition, has not been immune to the legal developments in the region. In the landmark case of Suray Prasad Sharma Dhungel v. Godavari Marble Industries and Others, the Supreme Court of Nepal held that a clean and healthy environment is part of the right-to-life clause under Article 12(1) of the Nepali Constitution. The court noted in this case: Good environment is one of the prerequisites for a personal life. But the dust, minerals, smoke and sands emitted by the said factory have excessively polluted the springs water and nearby water bodies, land and atmosphere of the said area, thus continuously deteriorating the health, life, education and profession of the research experts of the petitioner institute, the students of St. Xaviers school, the laborers working in the industry and their family members and ultimately the local inhabitants. While blasting dynamites, crushing stones and transporting boulders and marble, even the minimum security measures have not been adopted or granted either by the industry or the government. No measure has been adopted to halt the negative impact and loss on the environment. The respondent industry has no constitutional and legal right to endanger others’ life. The local Panchayat including all the respondents are equally responsible for keeping quiet and not implementing any legal measure to thwart this type of unauthorized activity of the industry.

The Court further articulated in this case: Since clean and healthy environment is an indispensable part of a human life, right to a clean, healthy environment is undoubtedly, embedded within the Right to Life. It is clear that the constitutional perimeter in which the applicant had filed the writ petition, has been substantively changed form [sic] the commencement of Article 26(4) of the Constitution of the Kingdom of Nepal 1990, because this Article has taken environmental conservation as one of the basic Directive Principles of the State.

The court also acknowledged the importance of sustainable development, stating that while industry is the foundation of development of a country, it is essential to maintain environmental balance along with industry:

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It is essential to establish balance between the need to provide continuity to developmental activities and priority to the protection of the environment. . . . Development is for the interest, prosperity of human being. Therefore, life of human being is the end. Development is the means to live happily; human being cannot live [sic] clean and healthy life without clean and healthy environment. Therefore, safety of the environment is the means. Environment protection measures should be initiated taking into account this fact.

In a more recent case, the Supreme Court of Nepal elaborated on the significance of drinking water for the purpose of maintaining public health. In Prakash Mani Sharma and Others v. Nepal Drinking Water Corporation and Others, the court, while not explicitly recognizing that drinking water is a fundamental right, nonetheless held that providing pure drinking water is the responsibility of the welfare state. In Prakash Mani Sharma v. His Majesty’s Government Cabinet Secretariat and Others, the court held that a healthy environment is a prerequisite for the protection of personal freedoms under the Constitution. Relying on the concept of sustainable development, the court acknowledged that environment and development should proceed harmoniously and environmental protection cannot be ignored for the sake of development: The freedom of personal liberty to every citizen is constitutionally guaranteed under the Article 12(1) of the Constitution of the Kingdom of Nepal 1990. Henceforth, citizens are no doubt entitled to enjoy this fundamental right to the greatest extent. Personal freedoms at large can only be protected by a healthy environment and it is an unquestionable fact that a polluted environment deprives the right to life protected under the constitution and the laws. That is why the state has a primary obligation to protect the right to personal liberty by mitigating environmental pollution as much as possible. As Article 26(4) of the Constitution provides that the state shall give priority to the protection of the environment and also to prevent its further damage due to development activities by increasing the awareness of the general public about environmental cleanliness, the state is responsible to continue implementing the right to personal liberty under Art 12(1) of the Constitution. In addition, the respondent government is also charged with an obligation under Section 9(2) of the Treaty Act 1990 to implement provisions of international conventions concerning environment those, which are already ratified. Additionally, the present world community has deemed the right to development as a third generation right. The demand for rapid development also cannot be ignored. Especially a country left behind by the wave of development like Nepal requires an accelerated development process. At the same time, the state also has an obligation to protect the environment taking into account the negative impact of development upon the environment. Therefore, development and environment should proceed harmoniously. This court is also aware of the respondent’s inability to launch environmental protection programs as per the demand of the petitioner due to the constraints of resources and

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Again, similarly to the cases in India, Nepalese courts have expanded the rightto-life clause as well as the right to personal liberty. They have also expanded the traditional notions of locus standi and relied on international environmental concepts such as sustainable development and the precautionary principle to support their novel interpretation of protected rights. C A SE S F R OM SR I L A N KA

While there have been several important judgments of the Supreme Court of Sri Lanka articulating environmental rights, the Eppawala phosphate mining case is by far the farthest-reaching case in terms of its vision, the use of international environmental law, and the discussion of the importance of environmental impact assessment process and public participation. It is also important for its preventive aspect. Given the far-reaching nature of the judgment, considerable attention will be paid to this case, even if it seems disproportionate to the survey of cases from other countries. One distinguishing feature of the Sri Lankan Constitution must be pointed out at the outset. Unlike in other countries in the region, the current Sri Lankan Constitution does not contain a right-to-life clause. It may be recalled that the judiciaries in India, Bangladesh, Nepal, and Pakistan used the right-to-life clause to articulate environmental rights, expanding it to encompass many other rights within its ambit, including the right to be free from pollution, the right to a decent standard of living, the right to be free from contamination, the right to water, and the right to a healthy environment. In contrast, the Sri Lankan judiciary has used the right-to-equality clause embodied in Article 12(1) of the Constitution to articulate environmental rights. This deserves scrutiny and analysis in its own right. The court has also been receptive to the use of international environmental law principles in adjudicating national cases. Thus, in Gunaratne v. Homagama Pradeshiya Sabha, the Supreme Court noted that public participation and transparency are essential if sustainable development is to be achieved. These principles have since gained ground internationally. The Eppawala phosphate mining case arose out of a proposed agreement between the government of Sri Lanka and Freeport McMoran, USA (hereinafter, “the Company”) with respect to developing a deposit of phosphate rock at Eppawala, in the North Central Province of Sri Lanka. This agreement granted, among others, the sole and exclusive right to the Company to search and explore for phosphate and other minerals. The petitioners in this case were residents of Eppawala who were engaged in cultivation and owned land there. They alleged that several of their rights guaranteed under the Constitution would be violated if the pro-

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posed agreement were to be implemented. The rights invoked were: right to equality (Article 12(1) of the Constitution); the freedom to engage in a lawful occupation, profession, trade, or business (Article 14(1)(g)); and the freedom of movement and of choosing one’s residence within Sri Lanka (Article 14(1)(h)). They further alleged, relying on the analysis of several reports and experts, that the proposed project would be an environmental and economic disaster. Justice Amerasinghe, writing the opinion of the court, noted that “the organs of the state are guardians to whom the people have committed the care and preservation of the resources of the people.” He said, referring to the Indian Supreme Court judgment in M. C. Mehta v. Kamal Nath, that the natural resources of people are held in trust for them by the government, but this did not mean that the court had no role to play. Justice Amerasinghe noted that the public-trust doctrine is rather restrictive in scope and that the principle of shared responsibility is better suited to apply to natural resources and the environment. While the court indicated that it is the responsibility of everybody, not just the government, to protect the environment, it unfortunately did not further elaborate on the principle of shared responsibility—it seems to have originated from Article 27(14) of the Constitution, which imposes a duty on the state to “protect, preserve and improve the environment for the benefit of the community.” Moreover, Article 28(f) places a duty on the people of Sri Lanka to protect nature and conserve its riches. The proposed agreement acknowledged that some residents presently living in the exploration area might have to be relocated in order to proceed with mining if the company determined so, and that the company would pay the costs of relocation. At no point, however, were these residents consulted or this plan of possible relocation divulged. While it was argued on behalf of the respondents that the proposed agreement related only to feasibility studies and not to mining itself, the court took the view that the totality of the agreement had to be considered in order to decide whether there was imminent infringement of the petitioners’ protected rights. Relying on Principle 2 of the Rio Declaration and Principle 21 of the Stockholm Declaration, Justice Amerasinghe agreed that the state has the right to exploit its own resources pursuant to its own environmental and development policies. Referring to Principle 14 (rational planning) of the Stockholm Declaration and Principles 1 (human beings are at the center of concerns for sustainable development) and 4 (environmental protection shall constitute an integral part of the developmental process) of the Rio Declaration, the court held that the proposed agreement must be considered in the light of these principles. The fact that these are non-binding instruments did not deter the court: Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally binding in the way in which an Act of our Parliament would be. It may be regarded merely as “soft law.” Nonetheless, as a Member of the United Nations,

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Chapter five they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions.

The court noted that while the petitioners did not oppose the utilization of the deposit, they feared that the scale of exploitation envisaged under the proposed agreement could lead to the supplies being exhausted too quickly and that it would cause serious environmental harm affecting the health, safety, livelihood, and cultural heritage of the petitioners. They further submitted that “the phosphate deposit is a non-renewable natural resource that should be developed in a prudent and sustainable manner in order to strike an equitable balance between the needs of the present and future generations of Sri Lankans.” Justice Amerasinghe relied extensively on international environmental law principles in elucidating the meaning of sustainable development. Drawing inspiration from Judge Weeramantry’s separate opinion in the Case Concerning the Gabcikovo Nagymaros Project (Hungary v. Slovakia), Justice Amerasinghe referred to the need to balance the needs of the present generation with those of posterity. Sustainable development does not mean that further development must be halted: In my view, the human development paradigm needs to be placed within the context of our finite environment, so as to ensure the future sustainability of the mineral resources and of the water and soil conservation ecosystems of the Eppawala region. . . . Due account must also be taken of our unrenewable cultural heritage. Decisions with regard to the nature and scale of activity require the most anxious consideration from the point of view of safeguarding the health and safety of the people, naturally, including the petitioners, ensuring the viability of their occupations, and protecting the rights of future generations of Sri Lankans.

The petitioners also alleged that if the proposed mining activity were to proceed, it could affect many historic temples and other monuments of archaeological value, as well as ancient irrigation networks of the North Central Province. This is in an area of historical significance, which has been acknowledged by the National Science Foundation as well as the National Academy of Sciences. Moreover, establishing a factory for the production of phosphoric acid and sulfuric acid in this historic area has the potential to cause considerable environmental damage. The court drew attention to Principle 17 of the Rio Declaration, which embodies provisions on environmental impact assessments (EIAs) and articulated the importance of the EIA process as follows: This is an important procedural rule designed to facilitate the preventive (Principles 6 and 7 of Stockholm) and precautionary (Principle 15 of Rio) principle already mentioned above. I would like to remind the persons concerned, especially the Central

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Environmental Authority, that an environmental impact assessment exercise can identify the potential threats of a proposed activity or project, and that this information can then be used to modify the proposed activity in order to take these threats into account. Remedial measures can also be introduced in order to mitigate or reduce any perceived detrimental impacts of the project. In this sense, therefore, an environmental Act can be instrumental in establishing exactly which areas of the proposed project, or activity require precautionary or preventive measures in order to ensure the overall environmental viability of the project.

Justice Amerasinghe noted that in this case the salutary provisions of the law relating to notification and publication of EIAs had not been observed. He further noted that the provision in the proposed agreement that the law of the country would be complied with was superfluous given the fact that every person, whether natural or corporate, must comply with the laws of the republic as they are governed by the rule of law. What was attempted was to contract out of the obligation to comply with the law: What was being attempted by the proposed agreement was to substitute a procedure for that laid down by the law. It was assumed that by a contractual arrangement between the executive branch of the government and the Company, the laws of the country could be avoided. That is an obviously erroneous assumption, for no organ of Government, no person whomsoever, is above the law [emphasis added].

Noting that the proposed agreement sought to circumvent the safeguards in the National Environmental Act, the court was of the view that: There is no way under the proposed agreement to ensure a consideration of development options that were environmentally sound and sustainable at an early stage in fairness both to the project proponent and the public. Moreover, the safeguards ensured by the National Environmental Act and the regulations framed thereunder with regard to publicity have been virtually negated by the provision in the proposed agreement regarding confidentiality. I would reiterate what was said by this Court in Gunaratne v. Homagagma Pradeshiya Sabha (1998) namely, that publicity, transparency and fairness are essential if the goal of sustainable development is to be achieved.

The court thus essentially rejected the confidentiality provisions in the proposed agreement as being contrary to the goal of sustainable development. It stressed the importance of procedural principles and referred to Principle 10 of the Rio Declaration, which embodies the principles of access to information, public participation, and access to remedies. The court noted that Principle 10 calls for better citizen participation in environmental decision making and access to environmental information, “for they can help to ensure greater compliance by States of international environmental standards through the accountability of their governments.” The court further noted that, in this case, the proposed agreement made no reference to an EIA. The law prescribes the procedure to be followed and when it

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should be followed, for good reason. Project proponents cannot decide when to comply with the law. The proposed agreement sought to substitute an extraordinary procedure for the proposed project which contravened the provisions of the National Environmental Act and its regulations, and in turn effectively excluded public awareness and participation as embodied in the law, as well as in Principle 10 of the Rio Declaration. Thus, the court declared that an imminent infringement of the fundamental rights of the petitioners embodied in Articles 12(1) (right to equality), 14(1)(g) (freedom to engage in a lawful occupation, trade or business), and 14(1)(h) (the freedom of movement and of choosing one’s residence within Sri Lanka) had been established. The court directed the respondents to desist from entering into any contract relating to the Eppawala phosphate deposit. It directed the third respondent (Geological Survey and Mines Bureau) to do a comprehensive study relating to the locations, quantity, and quality of the deposit in consultation with the National Academy of Sciences of Sri Lanka and the National Science Foundation, and to publish the results of this study. The court further directed the project proponent to obtain the approval of the Central Environmental Authority according to law. This judgment is fascinating in many respects: the extensive use of international environmental law principles in the judgment, including those that are embodied in soft law instruments; the use of existing rights in an expansive manner in articulating environmental rights; and the use of the fundamental rights machinery in relation to an imminent infringement of a right, thereby averting a possible future environmental disaster. This case is a classic example of the use of multiple disciplines to support the creative interpretation of existing rights. C O N C LU S I O N

The far-reaching nature of environmental jurisprudence in South Asia has prompted some scholars to advance the critique that judges are engaged in judicial activism, usurping the functions of the legislature (and the executive in some instances), particularly in India (Gauri 2010; Rajamani 2007). There may be some truth in this argument; however, it can also be argued that a directive from the Supreme Court is exactly what is needed in situations where government agencies are ineffective or inefficient or simply do not care about the plight of people. While it is beyond the scope of this chapter to debate the pros and cons of public interest litigation in depth, the advantages have been summed up by Puvimanasinghe (2009): “In the South Asian region as a whole, public interest litigation has been useful in injecting an informed, participatory, and transparent approach to the processes of development, and to governmental and private sector actions involving public resources. It has provided a voice to persons who would otherwise be

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unheard. Through PIL, multiple sectors and stakeholders become involved in the development process, as envisaged in the idea of sustainable development.” This chapter has showed how, as recognized in the introduction to this volume, public interest litigation has reaped beneficial results for the litigants, often resulting in directives being issued to relevant state authorities to remedy the situation. While it has been articulated that, generally, “courts are not likely to intervene if they perceive a complete absence of state capacity to tackle the problem litigants want addressed” (Gauri and Brinks 2010), the cases discussed here demonstrate a bold approach by the judiciary, often interpreting existing rights expansively to include economic, social, and cultural rights and environmental rights, thereby earning the somewhat unjust title of judicial activism. This creativity, cross-fertilization of norms, translation of soft law norms into hard law principles, greater role of law in relation to environmental protection (including the articulation of environmental rights), and the participation in this process by various stakeholders have all contributed to a slow social transformation in these societies. While there is still a long way to go, there is no doubt that a multitude of actors and the complementary strategies and mechanisms they have used have contributed to this development. The mechanisms discussed in this chapter are mostly legal, but as Gauri and Brinks note in chapter 4 of this volume, extralegal mechanisms have also been successful. The times and places that these actors and mechanisms operate vary, but they mostly point to instances where a large group of people are being or are about to be affected by a rights violation of a fairly significant magnitude. Undoubtedly, the Indian Supreme Court has been the pioneer in this field without which developments in other countries in South Asia might not have been possible. This de facto regional influence is another interesting development and prompts the question as to whether the absence of a regional human rights system in Asia led to the Indian Supreme Court’s unwittingly assuming the role that would traditionally be played by a regional court or commission. This development, too, merits further analysis. However, the courts in the region could not have engaged in this uphill struggle alone. It is the combination of several factors that led to the ground-breaking judgments that were given birth to in this region—a vibrant civil society, a far-sighted legal profession willing to take chances, and a judiciary willing to relax rigid legal principles and incorporate international law in their judgments have all contributed to this success. It is no secret that relaxing the principles relating to locus standi to facilitate public interest litigation has contributed significantly to these developments. It is noteworthy that these judges have been bold enough to incorporate international law principles into their judgments (including those in soft law instruments), adopt expansive interpretations to existing rights, and like magicians, seemingly pluck rights out of thin air. In this regard it is interesting to note what the Supreme Court of the Philippines articulated in the Minors Oposa case in

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relation to environmental rights: “These basic rights need not even be written in the Constitution for they are assumed to exist from the inception of mankind.” In addition, the preventive aspect of the human rights machinery should be better utilized to prevent environmental and human rights violations, as demonstrated by the Eppawala phosphate mining case in Sri Lanka. Of course, this requires a very receptive and open-minded judiciary willing to expand the scope of the fundamental rights machinery. It is encouraging to see the innovative approach adopted by countries in South Asia (this includes the legal profession, the judiciary, and civil society) in using an existing legal framework creatively to seek redress in another area of law and to articulate rights that are not mentioned in the bill of rights. Despite criticisms of judicial activism, there is no doubt that these cases have significantly contributed to the development of law in this area. The chapter has highlighted how the basic framework used in the volume—mechanisms, actors and pathways (MAPs)—has contributed to rights realization in South Asia, including the recognition of new rights. The various actors identified in the chapter have used existing institutions (the judiciary) creatively, which enabled them to achieve their goals. The institution, in turn, facilitated this process by relaxing existing principles relating to standing (also discussed by Gauri and Brinks in chapter 4) and applying the existing law creatively and expansively in order to create new (environmental) rights, blurring the traditional distinction between civil and political rights and economic, social, and cultural rights. This phenomenon is also observed by Alvarado (chapter 3) in relation to indigenous rights, as well as the creative use of international law in articulating environmental principles and indigenous rights. Another important feature is using international human rights principles as a yardstick to interpret constitutional provisions. However, as Klug points out (chapter 9), national courts sometimes deviate from international human rights standards (the minimum-core approach in relation to economic, social, and cultural rights) and adopt their own standards (for example, a reasonableness standard). The topdown/bottom-up strategy identified by Hertel and Randolph (chapter 8) is a useful typology to apply to the cases discussed in this chapter. While the decisions handed down by courts reflect a top-down approach, many of these cases would not have reached the courts if not for bottom-up actions by victims and civil society groups. The popularization of public interest litigation (Gauri and Brinks, chapter 4) and the relaxing of locus standi principles have enabled many victims to approach the court who would not have been able to otherwise. Many of the chapters in this volume suggest that struggles over environmental rights, human rights (civil, political, economic, social, and cultural rights), and indigenous rights are intertwined and that the strategies used are very similar. However, the political and social context within which these struggles take place plays an important role which may affect the outcome. (For example, Klug refers to the

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apartheid legacy of South Africa which has a bearing on land rights there.) Provine (chapter 6) proposes the use of law in new and uncharted ways in relation to immigration reform in the United States. This chapter discussed how law can be interpreted creatively to articulate new rights. Despite the innovative role played by the judiciary, what ultimately matters is the effectiveness of these judgments and their impact on the ground. Did these cases lead to tangible results? While this chapter did not specifically address this issue, the general view seems to be that the results are mixed in relation to judicialization of rights; as Gauri and Brinks point out (chapter 4), while constitutions and courts are crucial, legalization of economic, social, and cultural rights may not necessarily benefit the poor. Moreover, in many societies social, political, and economic transformation is a rather slow process. Thus, Gloppen’s model (chapter 13) of evaluating when court-centered legal struggles are effective, both in relation to the output side and in relation to the input side, becomes relevant. While judges cannot, in principle, deviate from the confines of constitutional provisions, these cases have amply demonstrated how existing rights can be creatively and expansively interpreted to encompass rights that were not envisaged by the framers of the original document, thereby making it a truly living document. NOTES 1. Most of the cases referred to in this paper are available at eLaw (Environmental Law Alliance Worldwide, www.elaw.org). 2. A few committed Individual lawyers and a few NGOs have played the role of watchdog in these countries, often sacrificing their lucrative law practices—M. C. Mehta of India, Dr. Mohideen Farooque of Bangladesh, Lalanath de Silva of Sri Lanka, and Prakash Mani Sharma of Nepal are some examples. The NGOs include the Environmental Foundation (Sri Lanka) and the Bangladeshi Environmental Lawyers Association. REFERENCES African Charter on Human and Peoples’ Rights. 1982. OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58. www.achpr.org/files/instruments/achpr/banjul_charter.pdf. Alston, Philipp. 1982. “A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?” Netherlands International Law Review 29:307–22. Atapattu, Sumudu. 2002. “The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Human Right to a Healthy Environment under International Law.” Tulane Environmental Law Journal 16:65–126. . 2005. Sustainable Development, Environmental Protection, and Human Rights: A Necessary Linkage? Proceedings of the Canadian Council on International Law Annual Conference, “Fragmentation: Diversification and Expansion of International Law.” . 2006. Emerging Principles of International Environmental Law. New York: Transnational.

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. Forthcoming. “Whither Sustainable Development in South Asia? The Emergence of Sustainable Development Jurisprudence in South Asia.” In Sustainable Development Principles in the Decisions of International Courts and Tribunals 1992–2012, edited by M. C. Cordonnier Segger. Oxford University Press. Boyle, Alan, and Michael Anderson, eds. 1996. Human Rights Approaches to Environmental Protection. Oxford: Oxford University Press. Burger, Michael. 2003. “Bipolar and Polycentric Approaches to Human Rights and the Environment.” Columbia Journal of Environmental Law 28:371–93. Constitution of India. http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm. Constitution of the Democratic Socialist Republic of Sri Lanka. 1978. www.priu.gov.lk/Con s/1978Constitution/1978ConstitutionWithoutAmendments.pdf. Constitution of the Kingdom of Nepal. 1990. VS 2047. http://digitalcommons.macalester .edu/cgi/viewcontent.cgi?article=1272&context=himalaya. Constitution of the Islamic Republic of Pakistan. 2013. www.pakistani.org/pakistan/constitution/. Constitution of the People’s Republic of Bangladesh. 1972. http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf. Economic and Social Council of the United Nations. 1994. Review of Further Development in Fields With Which the Sub-Commission Has Been Concerned: Human Rights and the Environment. Final Report Prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur. E/CN.4/Sub.2/1994/9. http://www1.umn.edu/humanrts/demo/HRandEnvironment_ Ksentini.pdf. Gauri, Varun. 2010. “Fundamental Rights and Public Interest Litigation in India: Overarching or Underachieving?” Indian Journal of Law & Economics 1:71–93. Gauri, Varun, and Daniel M. Brinks. 2010a. “A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World.” In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, edited by Varun Gauri and Daniel M. Brinks, 303–352. New York: Cambridge University Press. Hassan, Parvez, and Azim Azfar. 2004. “Securing Environmental Rights through Public Interest Litigation in South Asia.” Virginia Environmental Law Journal 22:215–47. Hunter, David. 2009. “The Implications of Climate Change Litigation: Litigation for International Environmental Law-Making.” In Adjudicating Climate Change: State, National, and International Approaches, edited by William Burns and Hari Osofsky, 357–74. Cambridge: Cambridge University Press. Hunter, David, James Salzman, and Durwood Zaelke. 2011. International Environmental Law and Policy. New York: Foundation Press. Marks, Stephen. 1980–81. “Emerging Human Rights: A New Generation for the 1980s?” Rutgers Law Review 33:435–43. Puvimanasinghe, Shyami Fernando. 2009. “Sustainable Development in the Courts: Towards a Jurisprudence of Sustainable Development in South Asia: Litigation in the Public Interest.” Sustainable Development Law & Policy 10: 41–49, 86–87. Rajamani, Lavanya. 2007. “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability.” Journal of Environmental Law 19:293–321. http://jel.oxfordjournals.org/content/19/3/293.full.

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Razzaque, Jona. 2002. Human Rights and the Environment: The National Experience in South Asia and Africa. Background Paper No. 4, Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, Geneva. http://www2.ohchr.org/english/issues /environment/environ/bp4.htm. Rio Declaration on Environment and Development. 1992. www.un.org/documents/ga /conf151/aconf15126–1annex1.htm. Sands, Philippe. 1998. “Treaty, Custom and Cross-Fertilization of International Law.” Yale Human Rights & Developmental Law Journal 1:85–105. Stockholm Declaration on the Human Environment. 1972. www.unep.org/Documents. Multilingual/Default.asp?documentid=97&articleid=1503.

Cases AP Pollution Control Board II v. M. V. Nayudu (2001), decided January 27, 1999. Summary at http://indiankanoon.org/doc/764031/. Arrondell v. United Kingdom, 1980, Y.B. Eur. Convention on Human Rights 166. Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997) 7. Charan Lal case, AIR 1990 SC 1480. Dr Mohiuddin Farooque v. Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control (1996), 49 Dhaka Law Reports (AD) p 1 (1997). Gunaratne v. Homagama Pradeshiya Sabha, 2 Sri LR 11 (April 3, 1998). Inuit petition: www.inuitcircumpolar.com/uploads/3/0/5/4/30542564/finalpetitionsummary .pdf. Karnataka Industrial Areas Development Board v. Sri C. Kenchappa and others (2006), AIR 2006 SC 2038, decided December 5, 2006. Lopez Ostra v. Spain, App. No. 16798/90, 20 Eur. H.R. Rep. 277 (1994) (Eur. Ct. H.R.). M. C. Mehta v. Kamal Nath, WP (C) No. 182 of 1996. M. C. Mehta v. Union of India and others (1991), WP 860/1009 (decision, November 22, 1991). Minors Oposa v. Secretary of the Department of Environment and Natural Resources (July 30, 1993, 33 ILM 173). Narmada Bachao Andolan v. Union of India, 10 SCC 664 (2002). People’s Union for Civil Liberties & another v. UOI & others (2005), case no. appeal (civil) 4294, date of judgment January 6, 2004. Powell v. Rayner, 172 Eur. Ct. H. R. (Ser. A) (1990). Prakash Mani Sharma and others v. Nepal Drinking Water Corporation and others, 2237/1990 (July 10, 2001). Summary at www.elaw.org/node/1383. Prakash Mani Sharma v. His Majesty’s Government Cabinet Secretariat and Others, WP 2237/1990 (March 11, 2003), summary at www.elaw.org/node/1594. S. v. France, 172 Eur. Ct. H.R. (Ser. A) (1990). Salt Miners Labor Union v. Industries & Mineral Development (1994) SCMR 2061. Shehla Zia and others v. WAPDA, PLD (1994) SC 693. Shubash Kumar v. State of Bihar, AIR 1991 SC 420.

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The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96 (2001). http://www1.umn.edu/humanrts/africa /comcases/155–96.html. Suray Prasad Sharma Dhungel v. Godavari Marble Industries and others, WP 35/1992 (October 31, 1995). Summary at www.elaw.org/node/1849. Tikiri Banka Bulankulame and others v. Secretary, Ministry of Industries and others [“Eppawala phosphate mining case”], 3 Sri LR 243 (June 2, 2000). Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 (1996). The Yanomani case: Report on the situation of human rights in Brazil, OEA/Ser.L/V/II.97, Doc. 29 rev. 1 (1997). X. v. Austria, 2676/65, ECHR 27 (1967).

Chapter 6

The Morality of Law The Case against Deportation of Settled Immigrants Doris Marie Provine

Saad Nabeel came to the United States from Bangladesh when he was three. He was in college in Texas on full scholarship to study electrical engineering in 2009 when his father was deported. The family followed. Saad found it hard to live in Bangladesh, where he doesn’t know the language or culture, so he moved to Malaysia, where he encountered other problems that he has shared with his large Facebook following. He is desperate to return to the United States. A Dallas businessman, Ralph Eisenberg, has made it his mission to bring Nabeel back because Nabeel is “as American as anyone else . . . and we have an obligation to protect our own.” (Preston 2011) Dorentinya and Daniela Komani, eight-year-old twin sisters, lived with their parents in Steyr, Upper Austria after fleeing from Kosovo six years ago. They received their first communion in the local parish. Their father, a skilled electrician, found work as a gardener. The family’s application for permanent residence, however, was denied and they now face deportation. The children’s mother suffered a nervous breakdown when she heard this news and had to be hospitalized. Interior Minister Maria Fekter came under intense pressure for this decision, which she described as “correct.” The president of the Federal Constitutional Court, Gerhart Holzinger, called the deportation “sad and worrying.” (Gowell 2010) In January, 2011, the United States deported to Haiti 27 men with minor criminal convictions, including a 20-year-old man, born in the Bahamas to Haitian parents but living in the U.S. since then. He had been convicted of selling $20 worth of cocaine to an undercover cop. “Fred” had never been to Haiti before. His entire family lives in the US. One of the deportees died of cholera-like symptoms after being denied medical care there. Petitions are circulating to revise U.S. policy in light of the hardships deportees face in Haiti at this time. (Warren 2011) North Miami high school valedictorian Daniela Pelaez and her sister were issued a final deportation order for March 28, 2012. Daniela and her family came to the United 127

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Deportation stories are newsworthy and controversial because, to many people, deportation feels arbitrary and unfair. At an intuitive level, it seems as if being rooted in a place should count for something. That intuitive sense of injustice animates protests, even by strangers, against deportation of settled immigrants, especially youths, who often arrive as infants or young children. Protesters typically push for exceptions to rules that prescribe deportation, for example the DREAM Act,1 which makes an exception for young people who came to the U.S. as children and are attending or have finished high school and have no criminal record. The sense of injustice provoked by egregious cases of deportation can also be an important impetus for reform. The issues around deportation of settled but unauthorized immigrants tend to be conceptualized in terms of civil or political rights. But immigrants fear deportation not so much as a violation of their political rights but more pragmatically as a social and economic disaster in their lives. Deportation’s disruption of family and working life typically creates enormous economic and personal hardships for deported individuals and their families, and sometimes for the communities and organizations they serve. Ironically, however, the economic consequences of deportation for the individual, family, employer, and community have no place in our policies. Immigration policies are also silent on the huge role of economic deprivation in provoking migration. What is needed is a transformation of immigration law that acknowledges the importance of social and economic justice for immigrants, including those who arrive or stay without legal authorization. The seeds for such a transformation are present in existing perceptions of fairness and behavior toward citizens, which, if applied to immigrants, could provide new “pathways for rights realization,” in the words of Haglund and Stryker (in the introduction to this volume). For citizens, the law protects these vital interests affirmatively, and through policies of forgiveness and repair for minor deviations and errors. The current immigration regime offers no similar safety net to protect economic, social, and cultural rights in the multidimensional immigrant experience. Immigration law must respect the dignity of the whole immigrant person, as modern legal systems do for citizens.

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If deportation policy is to be transformed, it will be through political channels. Currently, immigration laws typically provide no right to exempt oneself from deportation; exceptions are a matter for executive discretion. The courts have deemed immigration a complex policy arena in which they are not equipped to intervene. Nor are there treaties or international agreements that would permit immigrant-sending countries or international agencies to intervene effectively. Pathways to accountability, in other words, are virtually absent as long as the federal government follows its own deportation protocols. There is, however, potential for change arising out of the federal government’s highly public use of its deportation power against settled residents. Heart-rending cases of deportation of long-settled people offend many people, particularly those who have developed links to these immigrants. A model for reform exists in familiar principles of domestic law, with its strong principle of forgiveness. This principle, which pervades all areas of domestic civil and criminal law, exists because forgiveness for wrongdoing is a practical necessity in a dynamic economy and vibrant society. The economic and social rights of citizens rest on a principle of measured response to deviations from the norm. This same logic could be applied to immigration violations that currently lead to deportation. BAC KG R O U N D

In the United States, the contours of the government’s deportation power became clear in the late nineteenth century, when Congress began adopting restrictive immigration laws in the wake of nativist fears of the “Yellow Peril” of Asian immigration. Soon the Supreme Court was asked to weigh in on the issue of the scope of the government’s exclusionary authority under the Constitution. A team of distinguished New York City lawyers brought a series of test suits, serving as legal counsel for the Chinese immigrants (and their employers) affected by these early laws (Martin and Schuck 2005, 9–10). In a series of cases that became known as the Chinese Exclusion cases, the court addressed various aspects of the government’s removal power, including its power to deport even domiciled residents. The Geary Act, for example, required every Chinese laborer in the country to obtain a certificate of residence or face deportation. In Fong Yue Ting v. United States, a case brought on behalf of two noncompliant New York City laundrymen, the majority explicitly rejected the petitioner’s argument that residents enjoy constitutional protection against deportation. The government, the majority held, has virtually unlimited power over immigration policy: “aliens . . . remain subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public interest” (Fong Yue Ting v. United States, 724). The power of deportation, in other words, is a necessary and fundamental aspect of “the inherent and

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inalienable right of every sovereign and independent nation” to “exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace” (698). Three justices disagreed in separate opinions. Justice Field called deportation of a settled resident a form of “exile” that had no grounding in American law: “As to its cruelty, nothing can exceed a forcible deportation from a country of one’s residence and the breaking up of all the relations of friendship, family, and business there contracted” (759). The majority’s view, however, carried the day and eventually became the basis for the elaborate network of federal immigration law and administrative rules that prevails today. If rootedness in a place is to be recognized by government, as it sometimes has been, it is an act of grace, and that favor can be withdrawn without legal recourse. The mentioned case of Daniela Palaez illustrates how this principle works. She received a two-year reprieve because the federal government chose to provide it, not as a matter of right. For Americans, the best-known example of governmental grace in the face of illegal residence is the 1986 Immigration Reform and Control Act. This legislation, adopted after lengthy debate, attempted to restrict unauthorized immigration through the imposition of employer sanctions, more money for immigration enforcement, and an expanded temporary-foreign-worker program. It also contained a two-tier amnesty (or temporary regularization) program. One tier offered permanent legal resident status to persons who could show they had been living in the United States at least four years before the passage of the act; almost all of the 1.7 million people who applied were approved (Levinson 2005a, 2). The second tier, also known as SAW or the Special Agricultural Workers Act, required only ninety days of U.S. residence prior to May 1, 1986, for those engaged in agricultural work; nearly all of its 1.3 million applicants also gained permanent residence. Approximately two-thirds of those regularized through both programs were originally from Mexico (Orrenius and Zovodny 2001). The 1986 legislation had profound effects for immigrants and for American politics. It eased access to the labor market, raised migrant wages, and increased accessibility to training programs (Levinson 2005a, 8); but it did not reduce or eliminate unauthorized immigration through employer sanctions as had been promised—quite the reverse. Most studies, as Levinson notes, “show that the large-scale amnesty implemented in 1986 has not reduced, but rather increased undocumented migration to the US, since it established new migration flows due to networks and family ties” (2005a, 7). The failure of the 1986 law to stem unauthorized immigration underlies some of the anti-immigrant rhetoric that characterizes contemporary political debate. The idea of another massive amnesty that would address the approximately 11 million people currently living in the United States without legal status is, at this writing, not on the table. Deportation of settled immigrants is the order of the day,

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and is justified as the majority justified it in Fong Yue Ting v. United States—as if immigrants are not part of the social contract and have no respect-worthy stake in remaining. Record numbers are being deported—nearly 400,000 per year— because of past criminal convictions or lack of legal residence. Some states and municipalities are backing up this approach, using the powers within their domain to discourage unauthorized immigrants from settling or staying. Fong Yue Ting, having never been overruled, is still what lawyers call “good law.” But does this case represent law that is good? The discomfort that many people feel with deportation of settled immigrants is a reminder that law—even long-established law—does not necessarily convince everyone of its rightness. Scholars have contributed their own critiques, typically framing their arguments in terms of the injustice and impracticality of deporting settled residents (see e.g. Carens 1987, 2010; Hing 2006; Johnson 2007). This chapter takes a slightly different perspective, describing two legal bases for criticizing current practice, one lying in human rights law and the other in domestic law and practice. Reframing the argument against deportation in terms of law, I suggest, adds power to the argument for reform. Law performs a subtly constitutive function in societies like the United States that rely heavily upon their norms. Linking concerns about deportation to familiar legal principles can be a first step in changing perspectives (Mather 1998; McCann 1994). The visceral sense of injustice that permeates news stories like those described at the beginning of this chapter can easily be linked to human rights principles. Human rights appeals to the desire humans have to live a dignified life undisturbed by violence or arbitrary detrimental government action. Staying where one has set down roots certainly comes within this ambit, and human rights instruments reflect this, speaking in terms of rights to remain undisturbed by government in the enjoyment of work and family life, rights that are clearly infringed in deportation decisions. These rights are specifically designed to erect barriers against the arbitrary exercise of sovereign power. Deportation of settled residents also offends the values of forgiveness and closure that have been inscribed into domestic law. Forgiveness and closure are more than norms that lubricate social and economic relations—they have also been incorporated into the legal system in multiple and important ways. Given the pervasiveness of these principles in civil and criminal law, their absence in immigration law is notable. The cognitive dissonance between how Americans treat each other in law and how we treat immigrants, this chapter argues, helps explain why many people are uncomfortable with the deportation of settled immigrants. After a first section that briefly outlines the history of deportation practice in the United States and the extent of current deportations, I consider human rights and domestic-rights frameworks as potential sources of restraints on the deportation of settled immigrants. I begin by considering the applicability of human rights

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law. The primary stumbling block, it will be shown, is not the relevance of these principles to deportation decisions but their reach to noncitizens without legal status to remain. At this point the discussion turns to domestic law and its wellestablished principles of closure and forgiveness, which currently apply only to citizens. A concluding section considers the justifiability of such a thick line of separation between citizens and noncitizens. NAT IO NA L S OV E R E IG N T Y A N D T H E D E P O RTAT IO N O F SE T T L E D R E SI D E N T S

Exclusion and forced removal have a long history in the United States. In the colonial era, towns and villages adopted legislation to exclude paupers and foreigners from their jurisdictions (Kanstroom 2007; Neuman 1996). Exclusion of unwanted residents continued as state governments were formed. Racial, ethnic, and religious prejudices were relevant in determining who should be rejected and who should be offered incentives to settle. Attracting white Christian settlers, for example, was a goal of the European Americans who were early settlers in what are now the Western states. Until early in the nineteenth century, states and territories in these less settled areas sometimes sought to attract European immigrants by treating them like citizens, even allowing them to vote in local and state elections (Raskin 1993, 1403–1416; Keyssar 2000, 138, 168–69). Forced removal also has a long and racialized history. The nineteenth-century Fugitive Slave Act provided judicial procedures to return to their Southern masters slaves who had fled their captivity. Nor in this period did other nonwhite immigrants enjoy the protections of citizenship, including protection from removal. The 1790 Naturalization Act limited national citizenship to “free white persons” of “good moral character” (Chap. III, Sec. 1). Racial barriers to citizenship were removed only gradually, beginning with citizenship for African Americans in the wake of the Civil War. These changes came not through court decisions based on civil rights principles but through Congressional legislation. The Immigration and Nationality Act of 1965, for example, abolished the “national origins formula” that had prevailed since the Immigration Act of 1924, replacing it with a skill- and family-relationship-based system. While federal immigration law remains virtually impermeable to legal challenge, state and local laws that discriminate against immigrants have evoked critical judicial attention. The Fourteenth Amendment, which prohibits discrimination based on national origin, has been the basis for most of these decisions. While cases in this vein offer some relief to immigrants in dealing with local governments, they also reinforce the federal government’s dominant and uncompromising role in setting immigration policy. The federal government has, in essence, protected its sovereignty both against the claims of immigrants seeking its assist-

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ance and against local governments seeking to develop their own approaches. The upshot is that noncitizens now, just as in the era of Fong Yue Ting over a hundred years ago, enjoy no constitutional protection against deportation for even the smallest misstep, or no misstep at all. In the words of Daniel Kanstroom (2007, 2): “Buried within the proud history of our nation of immigrants, shrouded but always present, there exists a distinct system. From its early, decentralized, and inefficient beginnings, this system has grown steadily.” Kanstroom estimates that from 1925 until 2005, at least 44 million people were ordered to leave. He calculates the number of formal removals between 2001 and 2004 at 720,000, and “voluntary departures” at over 4 million (3). Deportations, now euphemistically called “removals,” are currently at an all-time high, nearly 400,000 people a year. Some are legal permanent residents who are deported after a criminal conviction. The list of deportable offenses has been growing, and now includes crimes that almost no one would consider serious, like shoplifting. Deportation can be imposed years after a conviction, and can even be applied to cases of convictions in which no punishment was imposed. At the same time, many deportations from the interior of the United States involve immigrants who have committed no crime. Some have overstayed a tourist visa, and some have entered illegally. People with long-term residence in the United States and no criminal record get caught in the deportation net through traffic stops by local police cooperating with federal authorities, through efforts to track down those who have not responded to hearing dates, and through other types of encounters with officials. The fact that unauthorized immigrants have families with American children often makes no difference (Rabin 2011). A 2011 report by the Applied Research Center found that about 5,100 children in 22 states were living in foster care because their immigrant parents had been detained or deported. The government does not keep statistics on the number of such separations, and Immigration and Customs Enforcement does not consider contacting child welfare officials to be part of its job when it detains a parent. In this environment it is reasonable to ask whether there is any hope at all of achieving some semblance of a right of repose for settled immigrants. Could the principles of human rights law be enlisted to provide some protection against deportation, at least for those who have set down roots in their adopted home? The section that follows explores that possibility. H UM A N R IG H T S F O R SE T T L E D I M M IG R A N T S ?

The era since World War II has witnessed a tremendous growth of interest in human rights and an impressive institutionalization of the idea that all people have certain basic rights by virtue of their common humanity. Human rights provide a moral baseline to critique all forms of harsh treatment by governments, including

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detention practices and human trafficking. The human rights framework can be applied to some administrative practices without much threatening national sovereignty in setting immigration policy, for example conditions in detention centers. But where the basic rules of removal are in play, the limits are clear. The growing worldwide engagement with the ideals of universal human rights, as this section demonstrates, sits uncomfortably astride the venerable principle of national sovereignty. Governments that may be induced to clean up their enforcement practices are not necessarily willing to limit their authority over who may and may not live in their territories. As Seyla Benhabib (2005, 2) notes, “There is not only a tension, but often an outright contradiction, between human rights declarations and states’ sovereign claims to control their borders as well as to monitor the quality and quantity of their admittees.” Though some of the old rules of unchecked state power are eroding under the pressure of genocidal violence and natural disasters, Benhabib observes, human rights guarantees still offer relatively few protections concerning rights of entry and access to citizenship or other forms of permanent membership (9—11). The one significant exception to sovereignty in matters of entry control and deportation occurs when people flee lethal violence or persecution. Refugees are protected under the 1951 United Nations Convention Relating to the Status of Refugees and Stateless Persons. The convention defines who is a refugee and requires the states that receive them to provide basic assistance in their temporary or permanent settlement. Most relevant for this discussion is the requirement of nonrefoulement, which bars nations from putting refugees back in harm’s way through deportation. States retain authority, however, to deport refugees to a safe location. This convention, developed in the aftermath of World War II and amended several times since its original adoption, has been signed by 147 nations, including the United States. It is an important, but limited, exception to the rule of sovereign authority in matters of immigration and deportation. The limits that national sovereignty puts on immigrants who do not qualify as refugees are clear in the venerable Universal Declaration of Human Rights, the oldest and most widely accepted standard of human rights. The declaration— which is over sixty years old—protects the right of individuals to freedom of movement (Art. 13), but in deference to national sovereignty, it limits that right to travel within one’s nation and in and out of one’s home nation. The declaration provides no right to be accepted in a new nation. Similarly, it provides a right to the quiet enjoyment of one’s home (Art. 12) and to an undisturbed family life (Art. 16), and not to be exiled from that home (Art. 9), but only for people with legal status to remain. Other relevant rights—to enjoyment of one’s property, to social security, to work—are similar in extending only to residents whom the state accepts as their own. Exile is forbidden (Art. 9), but not deportation of people who, under domestic law, lack the legal right to remain.

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Other conventions are similar in silently bypassing the issue of deportation of noncitizen residents. The Convention on the Rights of the Child might seem the most likely place for sheltering language. Children, after all, are in no position to make immigration choices, and their interests are severely affected by any action the government takes against their parents. The problem of child deportation is real. Of the 2,199,138 removals that the United States conducted between 1998 and 2007, 108,434 involved alien parents of U.S.-citizen children (Department of Homeland Security 2009). In 2009 more than 100 children sued the federal government over its decision to remove their parents (Wides-Munoz 2009). The Convention on the Rights of the Child entered into force in 1990. Currently all nations that make up the United Nations are parties except the United States, South Sudan, and Somalia, though some nations have ratified with significant reservations. The convention contains strong language giving primacy to a child’s concerns: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (Art. 3, Sec. 1). A federal appellate court considered the applicability of this language to Edmer Rogelio Cabrera-Alvarez’s effort to seek cancellation of a removal order that would have separated him from his two young American-born children and his wife. Edmer, a Mexican citizen, had lived in the United States for thirteen years and had had steady employment as an agricultural worker before being apprehended for driving under the influence of alcohol. The court considered the convention as if it had attained the status of “customary international law,” thus bypassing the failure of the United States to ratify. The court nevertheless decided against Cabrera-Alvarez. At most, the court held, the convention requires that a child’s interests be “a” primary consideration. Nor does U.S. immigration law provide an exception that would assist the Cabrera-Alvarez family. The statutory framework sets a very high standard for relief from removal: “exceptional and extremely unusual” circumstances that affect, not the immigrant, but American citizens (Edmer Rogelio Cabrera-Alvarez v. Alberto Gonzales, 2005). There was only one recorded case at the time, Judge Harry Pregerson complained in dissent, in which this hardship exemption had actually been granted. Judge Pregerson called for Congress to “ameliorate the plight of families like the CabreraAlvarezes and give us humane laws that will not cause the disintegration of such families” (1015). Another potentially relevant document in this discussion is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force on July 1, 2003. This convention, despite its universalizing title, addresses only persons legally admitted to work. Unauthorized immigrants who may have actually have worked in a nation for years are not covered, an exclusion that signals the continuing significance of national

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sovereignty in determining the reach of human rights. Only those workers who have legal status enjoy some protection against arbitrary expulsion, but it is noteworthy that one of the criteria for relief is length of residence: “In considering whether to expel a migrant worker or a member of his or her family, account should be taken of humanitarian considerations and of the length of time that the person concerned has already resided in the State of employment” (Art. 56, Para. 3, emphasis added). The United States has not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, nor have most other nations. The convention was drafted and made available for ratification in 1990, but a decade passed before it reached the minimum of twenty ratifying states to go into force. Forty states have now taken that step, and a few more have expressed their intention to adhere to it by signing on. Most are small nations, and many are states of emigration; none are major migrant-receiving nations. The lack of enthusiasm among powerful migrant-sending governments means that this convention cannot be considered part of customary international law as the Convention on the Rights of the Child was in the Cabrera-Alvarez case discussed above. The lack of signatures, despite the huge and growing number of migrant workers, also illustrates the continuing power of the sovereignty principle. The International Labour Organization (n. d.) estimates that there are more than 175 million migrants around the world, about half of whom are workers; of this group, 15 percent are estimated to be undocumented. It should by now be clear that undocumented immigrants and temporary workers face almost impossible odds in seeking human rights protection against deportation through international human rights agreements. Despite the growth of human rights concerns around the world and the dense web of international and national organizations committed to improving the human condition through rights strategies, the approach ultimately relies on nation-states to embrace and implement protections they themselves have agreed to promote. The argument for a right of repose for settled immigrants runs counter to the tradition of national sovereignty in matters of membership, and to growing concerns about national security and control over who enters and dwells within national borders. One must conclude that the problem for unauthorized immigrants who seek to avoid deportation by showing peaceful residence of long standing is not that human rights instruments ignore the interests associated with family rootedness, privacy, and the right to employment. Those rights are addressed for some, but not all, residents of contemporary nation-states. The problem is that not all human rights are in fact universal human rights. There is a hierarchy of rights holders, in which citizens enjoy the most human rights, while legal entrants enjoy fewer, and those who lack legal status enjoy the fewest protections, regardless of their contributions or their vulnerability. Protection for refugees is the only exception to this

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framing. The venerable idea of national sovereignty in matters of membership is thus almost as powerful as it was in the days of Fong Yue Ting v. United States. This is unfortunate. Nation-states would hardly cease to exist if they were forced to take more seriously the interests of noncitizens with strong ties to their communities. Support for this claim comes from experience with the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights). The convention established a European Court of Human Rights to consider claims by individuals against their member states. Under the convention, anyone who feels his or her human rights have been violated by their own government can bring a claim. Judgments are binding, and member states are obliged to execute them. All forty-seven members of the Council of Europe are parties to the convention. The convention includes rights similar to those in the Declaration of Human Rights, and they apply to all residents in a nation, including those without legal status to remain. Some of these residents have brought claims against deportation orders, typically claiming violation of Article 8, which requires “respect” for private and family life. While it is true, as Bhabha (1998) notes, th the court tends to defer to the state’s claims based on sovereignty principles, it has sometimes found that the interests of the immigrant and his or her family in remaining outweigh the state’s interests in expulsion (Mehemi v. France; Boultif v. Switzerland; Maslov v. Austria). These cases suggest that in the United States, too, it would be possible to accommodate some immigrants who lack legal status without threatening national interests. The accommodation would not necessarily have to be made through a human rights instrument as it is in Europe. Settled, but unauthorized, immigrants could be accommodated by expanding the coverage of existing statutory law or through a regularization program. Making such an adjustment would build upon and extend a well-established tradition of flexibility in domestic law that allows for minor violations to be forgiven and for closure after significant time has passed. This tradition and its potential application to immigration law are considered in the next section. U. S . D OM E S T IC L AW A N D T H E N O R M S O F C L O SU R E AND FORGIVENESS

Amnesty or regularization, as noted earlier, is the most common and consequential legal tool that nations use to forgive breaches of their entry and residence rules. France designed the first formal regularization program in the 1930s (Miller 2002); by the 1970s such programs had become common throughout Europe (Papadopoulou 2005, 3).2 In Mexico, adjustment of status is an established policy, and the government advertises its availability. Amnesties are compatible with the sovereignty principle articulated in Fong Yue Ting. Governments adopt these

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programs in light of their own self-interest: to clear processing queues, to bring migrants into the formal sector so that they can be protected and taxed, and to improve employment opportunities for the nation as a whole (Levinson 2005a, 3, 2005b; Sunderhaus 2006). Can the issue be framed in a way that is more favorable to settled but unauthorized immigrants? The challenge is formidable, particularly in the United States, where unauthorized immigration has become an issue almost too hot to handle. Human rights principles have made only limited inroads into exclusionary thinking, and, as we have seen, their applicability to unauthorized immigrants is somewhat problematic in any case. There may be more potential for changing American attitudes by appealing to the nation’s strong reliance on forgiveness and closure in its own domestic law. The only obstacle lies in the distinction nation-states have drawn between immigrants and citizens. The thickness of this line was at the heart of the disagreement among the justices in Fong Yue Ting v. United States. The government’s insistence on maintaining this sharp distinction in a more egalitarian age may help explain why deportation of settled immigrants seems contrary to the American system of justice. There are many examples of statutory law that incorporate forgiveness principles. The right to declare bankruptcy, which is provided under federal legislation, is perhaps the best-known example. Bankruptcy allows citizens to wipe the slate clean of most debts, even if they arose from reckless overspending.3 This legislation reflects a policy decision to forgive debtors in order to restore them to productive lives. Bankruptcies are common in the United States and are socially acceptable. There were nearly 1.6 million bankruptcies in 2010, most of them awarded to individuals. That was a high-water mark brought about by the Recession, but the number has dropped only slightly since then (BankruptcyAction. com 2014). Settlements in commercial cases often employ forgiveness principles. Sometimes these programs are institutionalized and recognized as “amnesty” opportunities for tax evaders and others who would otherwise be subject to criminal penalties. Clients of the wealthy Swiss bank UBS, for example, took advantage of a voluntary disclosure program offered by the Internal Revenue Service (Mollenkamp 2008). The program allows U.S. citizens to avoid criminal prosecution if they acknowledge evasion and agree to pay taxes and penalties. There is an obvious parallel here with forgiveness of immigrants for illegal entry, visa overstays, or working without permission. Statutes of limitation exemplify the principle of closure, and in effect, forgiveness. Statutes of limitation are an essential part of laws that give people the right to sue for their injuries. They provide the injured party only a limited time to sue because, with the passage of time, the injurer becomes less and less able to respond with an adequate defense. Statutes of limitation apply to all injurers, whether they

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caused damage intentionally or through negligence. The time limits vary from one type of injury to another and from state to state, but they are universally present in personal-injury law. Arizona prescribes that claims of medical malpractice must be filed within two years; the same for injury to personal property or a product liability claim. Residents who believe they have been defrauded have three years to bring suit. Injured parties who do not file suit within these time periods are forever barred from seeking relief. Real property law has its own version of closure and forgiveness for wrongdoers. Disputes about title to property and borders may be settled, not on the merits, but by the principle of “adverse possession.” The open possession of property for a period of years, for example by means of a fence that includes part of a neighbor’s land, allows a court to award title to the one who wrongfully took that land. When a title is cloudy, laws in most states provide for a suit to “quiet title” in order to eliminate the possibility of future litigation. The result may be the dispossession of property from its original owner, but the law’s interest in having certainty in possessory interests has been deemed more important. Business law also limits the rights of injured parties, essentially forgiving injurers some of the damage they have caused. If a contract is not fulfilled as agreed, the one whose rights are breached, for example to receive a shipment on time or a sought-after product, must make every attempt to reduce the damage the breacher caused. If the victim of a breach of contract fails to attempt to “cover” the damage the other party caused, he or she will not get relief from a court. Legislatures include this requirement in the interests of good business and the nation’s overall prosperity. Criminal law offers many routes to both forgiveness and closure. Adjournments in contemplation of dismissal are one example. If the matter is not gravely serious, the judge may have discretion to leave the case open for a period of time— say six months—to see whether the defendant behaves; if no further problems are reported, the case is dismissed. Or, the case may be dropped before it is prosecuted. Prosecutors can recommend “dismissal in the interests of justice” or simply fail to move a case forward. Even when people are sentenced, the penalty is often probation or a warning. Sometimes convicted defendants have the opportunity to expunge their conviction through judicial action. Forgiveness can come from the executive branch as well. Governors and even the president of the United States sometimes issue pardons, erasing criminal convictions. New York’s Governor Paterson, for example, recently pardoned six immigrants facing deportation because of old criminal convictions (Semple 2010). These principles of forgiveness and closure have endured because they allow the system to save its resources for more serious misbehavior and because it seems unjust to apply the heavy hand of law in cases where the defendant poses no threat to society. The issue of threat is crucial. Criminal background checks, felony

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disenfranchisement, and various forms of state-mandated and private discrimination against convicted felons illustrate the power of fear to mute the forgiveness principle (Blumstein and Nakamura 2009). Given the fact that the vast majority of immigrants who have settled without authorization have committed no crime, one might expect some carry-over of the forgiveness principle into the enforcement of immigration law, but in fact the opposite prevails. Immigration law does not acknowledge the reduction or elimination of sentences that occur in cases involving immigrants, creating a clear double standard for those convicted of crimes. As Congress has increased the number of criminal acts that can lead to deportation upon conviction, particularly since legislative changes in 1996, this problem has grown more severe. The list now includes some minor misdemeanors, including shoplifting. Hagan, Levi, and Dinovitzer (2008, 97) note that Americans tend to distrust immigration as a threat to the national order, and to consider any legal offense by an immigrant as more serious than if it had been committed by a nativeborn citizen. The concept of forgiveness is not entirely absent from immigration law. Before adoption of the Immigration and Nationality Act of 1996, immigration law did offer a “waiver of grounds of inadmissibility” on the grounds of strong ties to the local community and good behavior. Currently, however, the only way to avoid deportation through legal action is either to claim asylum or to show that a U.S. citizen relative will suffer “extreme hardship” if the deportation occurs. It is still possible, of course, to use publicity to pressure the executive for discretionary relief from deportation, as exemplified by the cases noted in cameo at the beginning of this chapter and the actions of students and their supporters favoring the DREAM Act. The Obama administration has attempted to respond to these concerns, most recently in providing a two-year reprieve to young people who are enrolled in school. Critics claim that such temporary restraint amounts to an “amnesty,” but in fact no new rights are created by such initiatives (see e.g. Carroll 2010). In addition to these statutory and administrative examples of forgiveness policy, there are at least two relevant broader principles of legal interpretation that merit brief consideration. One is the U.S. Constitution’s promise of “equal protection of the laws” and other, basic guarantees to persons. This principle is honored in the context of criminal law, where citizens, legal permanent residents, and unauthorized residents enjoy many of the same protections against overreaching by the state. The Supreme Court has also extended this principle to public education at the primary and secondary levels. In 1982, in Plyler v. Doe, a sharply divided court overturned a Texas law that closed these schools to children without legal status. The court has also made some tentative inroads in providing due-process protection in the context of deportation (e.g. in Landon v. Plasencia, 1982).

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The venerable legal principle of “clean hands” is also relevant, though unacknowledged in immigration law. The idea is that the party seeking a court’s assistance should come to the case with clean hands, that is, with no entangling wrongdoing on its part. Clean hands is an ancient concept that grew up in the time of British chancery courts to avoid some of the strictures of English common law. Contemporary courts still expect plaintiffs to respect this principle. In efforts to remove immigrants, the government is the moving party, and therefore the one with the responsibility to approach adjudicators with clean hands. It can hardly be said that the United States has clean hands when it exercises unilateral power to deport settled residents. The nation has long relied on unauthorized immigrants to perform hard and dangerous work. It collects taxes and social security payments from these residents and benefits from other contributions to communities. Exploitation of the vulnerability of immigrants is frequent, and has a long history in the United States. Nor has enforcement policy been consistent—there have been lengthy periods of recruitment of labor from Mexico and other places with little concern about legal status. The adoption of the 1986 Immigration Reform and Control Act is instructive in this regard. Agricultural interests demanded and got concessions to keep their low-wage, unauthorized labor through a weakening of the enforcement machinery and, later, the allocation of few federal agents to interior enforcement (Joppke, 1998; Tichenor, 2002). C O N C LU S I O N

Over a century ago, the Fong Yue Ting case effectively foreclosed legal challenges to the trauma of deportation. This decision occurred in a period of blatant racism. The dominant view was that the Chinese were profoundly different from American citizens and morally, culturally, socially, and intellectually inferior (Calavita 2006). The government’s briefs in the case, according to legal scholar Gabriel Chin, made a “frank appeal to racial considerations” (Martin and Schuck 2005, 18). The U.S. position was that removing “barbarians” came under the basic principle of self-preservation: “It is now generally conceded that the most insidious and dangerous enemies to the State are not the armed forces who invade our territory, but those alien races who are incapable of assimilation, and come among us to debase our labor and poison the health and morals of the communities in which they locate” (18, quoting 118 U.S. 356, 369 (1886)). Such ideas no longer represent prevailing social or scientific opinion. For that reason alone, Fong Yue Ting’s foreclosure of pathways to accountability for deportation’s harms deserves critical scrutiny. A more humane approach may emerge from another quarter. The spirit of forgiveness and closure that permeates American domestic law could be applied to immigration enforcement, bringing it more into line with mainstream domestic law and practice. The federal executive has

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already embarked, in a halting and incomplete way, on a forgiveness policy, directing judges and administrators to overlook illegal entry by young persons with unblemished records and some who have committed only petty offenses. For this to be effective on a large scale, of course, Congress must address the issue. Human rights principles have potential value in the effort to transform deportation policy, first, by bringing attitudes about immigrants in line with our existing perceptions of justice (the first “analytic moment” discussed by Haglund and Stryker in the introduction to this volume). These principles can be conceived broadly, to encompass social and economic justice, as well as the basic human right to dignity and respect. The human implications of deportation, not just for individuals but also for families, employers, and communities, can be marshaled to remind legislators and the American public that deportation is inconsistent with fundamental values, and to push for actions more in line with these values (the second analytic moment). Citizens of the United States and other nations rely on a sense of fair play that includes respect for the ties that bind us together, and governmental recognition that forgiveness for minor transgressions is often the only appropriate response. As Merry et al. (2010) point out, human rights law not only sets up a legal machinery of rights, monitoring, and enforcement, but it also describes values that have gained widespread acceptance and offers a model of governance that respects dignity and the potential for all to contribute to society’s welfare. When these models are consistently applied to all members of the human race, this is when the moment of true social transformation becomes possible. The argument for a transformed approach also finds support in nonlegal values that underlie social arrangements. Time already matters in what Rogers Brubaker calls “the internal politics of belonging” (2010). The external politics of belonging, on the other hand, are under the control of nation-states. Cases that the European Court of Human Rights has decided in favor of unauthorized immigrants show that states can loosen their grip with only a minimal cost to national sovereignty (and see Bhabha 1998). It is, admittedly, a formidable task to convince the American public that time in a place matters more than how one arrived in that place. But law, in a real way, is on the side of repose for settled immigrants. NOTES 1. Development, Relief, and Education for Alien Minors Act, introduced in both chambers of the U.S. Congress in May, 2011. 2. Since the 1970s, when periodic regularization programs began to be offered with some frequency in Europe, a total of 3.5 million residents have been regularized, mostly in the period between 1995 and 2000. 3. Legal permanent residents may file for bankruptcy, but there are potential immigration consequences of certain disclosures, a distinction that reveals the isolation of immigration law from the legal mainstream (O’Neill, n. d.).

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REFERENCES Applied Research Center. 2011. Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System. NY: ARC [now Race Forward]. www .atlanticphilanthropies.org/sites/default/files/uploads/ARC_Report_Shattered_ Families_FULL_REPORT_Nov2011Release.pdf BankruptcyAction.com. 2014. www.bankruptcyaction.com/USbankstats.htm. Benhabib, Seyla. 2004. The Rights of Others: Aliens, Residents, and Citizens. Cambridge: Cambridge University Press. Bhabha, Jacqueline. 1998. “Enforcing the Human Rights of Citizens and Non-Citizens in the Era of Maastricht: Some Reflections on the Importance of States.” Development and Change 29:697–724. Blumstein, Alfred, and Kiminori Nakamura. 2009. “Redemption in the Presence of Widespread Criminal Background Checks.” Criminology 47(2):327–60. Brubaker, Rogers. 2010. “Migration, Membership, and the Modern Nation-State: Internal and External Dimensions of the Politics of Belonging.” Journal of Interdisciplinary History 41(1):61–78. Calavita, Kitty. 2006. “Collisions at the Intersection of Gender, Race, and Class: Enforcing the Chinese Exclusion Laws.” Law & Society Review 40(2):249–81. Carens, Joseph H. 1987. “Aliens and Citizens: The Case for Open Borders.” Review of Politics 49(2):251–73. . 2010. Immigrants and the Right to Stay. Cambridge, MA: MIT Press. Carroll, Susan. 2010. “Feds Moving to Dismiss Some Deportation Cases: Critics Assail the Plan as a Bid to Create a Kind of Backdoor ‘Amnesty.’” Houston Chronicle, August 24. Department of Homeland Security. 2009. Removals Involving Illegal Alien Parents of United States Citizen Children. Report prepared by the Inspector General, OIG-09–15. Eng, James. 2012. “Almost-Deported Valedictorian Daniela Pelaez Helps Introduce Immigration Reform Bill.” NBC News, May 30. http://usnews.nbcnews.com/_news/2012/05/30 /11959331-almost-deported-valedictorian-daniela-pelaez-helps-introduce-immigrationreform-bill. Gowell, Reinhard. 2010. “Constitutional Court Head ‘Worried’ about Immigration Police’s Actions.” Wiener Zeitung, October 15. www.wienerzeitung.at/nachrichten/english_news /35464_Constitutional-Court-head-worried-about-immigration-polices-actions.html. Hagan, John, Ron Levi, and Ronit Dinovitzer. 2008. “The Symbolic Violence of the CrimeImmigration Nexus: Migrant Mythologies in the Americas.” Criminology and Public Policy 7(1):95–112. Hing, Bill Ong. 2006. Deporting Our Souls: Values, Morality, and Immigration Policy. New York: Cambridge University Press. International Labour Organization. n. d. “International Labour Standards on Migrant Workers.” www.ilo.org/global/standards/subjects-covered-by-international-labour-standards /migrant-workers/. Johnson, Kevin. 2007. Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws. New York: New York University Press. Joppke, Christian. 1998. “Why Liberal States Accept Unwanted Immigration.” World Politics 50(2):266–93.

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Kanstroom, Daniel. 2007. Deportation Nation: Outsiders in American History. Cambridge, MA: Harvard University Press. Keyssar, Alexander. 2000. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books. Levinson, Amanda. 2005a. “Why Countries Continue to Consider Regularization.” Migration Information Source, September 1. Migration Policy Insititute. . 2005b. The Regularisation of Unauthorized Migrants: Literature Survey and Country Case Studies. Centre on Migration, Policy and Society, University of Oxford. https://www .compas.ox.ac.uk/fileadmin/files/Publications/Reports/Regularisation%20Report.pdf Martin, David A., and Peter H. Schuck, eds. 2005. Immigration Stories. New York: Foundation Press. Mather, Lynn. 1998. “Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation.” Law & Social Inquiry 23:897–940. McCann, Michael W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press. Merry, Sally Engle, Peggy Levitt, Mihaela Serban Rosen, and Diana H. Yoon. 2010. “Law from Below: Women’s Human Rights and Social Movements in NYC.” Law & Society Review 44(1):101–128. Miller, Mark J. 2002. “Continuity and Change in Post-War French Legalization Policy.” In West European Immigration and Immigrant Policy in the New Century, edited by Anthony Messina, 13–32. New York: Greenwood. Mollenkamp, Carrick, and Evan Perez. 2008. “UBS Clients Seek Amnesty on U.S. Taxes.” Wall Street Journal, November 24. Neuman, Gerald L. 1996. Strangers to the Constitution: Immigration, Borders and Fundamental Law. Princeton, NJ: Princeton University Press. Orrenius, Pia, and Madeline Zavodny. 2001. Do Amnesty Programmes Encourage Illegal Immigration? Evidence from IRCA. Working Paper 0103. Dallas, TX: Federal Reserve Bank of Dallas. Papadopoulou, Aspaisia. 2005. Regularization Programmes: An Effective Instrument of Migration Policy? Global Migration Perspectives No. 33, Global Commission on International Migration, Geneva. Preston, Julia. 2011. “With Drive (and without a Law Degree), a Texan Fights for Immigrants.” New York Times, March 5. Rabin, Nina. 2011. “Disappearing Parents: Immigration Enforcement and the Child Welfare System.” Connecticut Law Review 44(1):99–160. Raskin, Jamin B. 1993. “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage.” University of Pennsylvania Law Review 141:1391– 1470. Semple, Kirk. 2010. “Governor Pardons 6 Immigrants Facing Deportation over Old Crimes.” New York Times, December 13. Sunderhaus, Sebastian. 2006. “Regularization Programs for Undocumented Migrants.” Working paper, Köln/New York, July (on file with the author). Tichenor, Daniel J. 2002. Dividing Lines: The Politics of Immigration Control in America. Princeton, NJ: Princeton University Press.

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Warren, Vincent. 2011. “Deportations to Haiti: Still a Death Sentence,” Huffington Post, April 8. Wides-Munoz, Laura. 2009. “More than 100 Kids Sue over Parents’ Deportations.” San Francisco Examiner, June 17.

Cases Cited Boultif v. Switzerland, 54273/00 European Court of Human Rights (Aug. 2001). Edmer Rogelio Cabrera-Alvarez v. Alberto Gonzales, 423 F. 3d 1006 (2005). Fong Yue Ting v. United States, 49 U.S. 698 (1893). Landon v. Plasencia, 459 U.S. 21 (1982). Maslov v. Austria, 1638/03 European Court of Human Rights (June 2008). Mehemi v. France, 25017/94 European Court of Human Rights (September 1997). Pyler v. Doe, 457 U.S. 202 (1982).

Statutes Cited Fugitive Slave Act (1850), Statutes at Large, 31st Congress, 1st Session, Ch. 60, pp. 462–465 (September 18). Geary Act (1892), 27 Stat. 25. Immigration Act of 1924 (Johnson-Reed Act), Pub. L. 68–139. Immigration and Nationality Act of 1965 (Hart-Celler Act), Pub. L. 89–236. Immigration and Nationality Act of 1996, Pub. L. 104–208. Immigration Reform and Control Act (1986), Pub. L. 99–603. Naturalization Act (1790), 1 Stat. 103. Special Agricultural Workers (SAW) Act (1986), 8 U.S. Code, Section 1160.

Conventions and Treaties Cited European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Rome, 4 XI. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), United Nations, Treaty Series, vol. 2220, p. 3. International Convention on the Rights of the Child (1990), United Nations, Treaty Series, vol. 1577, p. 3. International Convention Relating to the Status of Refugees (1951), United Nations, Treaty Series, vol. 189, p. 137. Universal Declaration of Human Rights (UDHR) (1948). General Assembly Resolution 217 A (III) (December).

PART THREE

Beyond Judicial Mechanisms as Means to ESCR Realization

Chapter 7

Social Movements and the Expansion of Economic and Social Human Rights Advocacy among International NGOs Paul J. Nelson

Human rights and international development, born in their modern forms in the post–World War II period and separated at birth, have been experiencing a period of reunion and partial reintegration since the mid-1990s as human rights NGOs adopt agendas that include advocating economic, social, and cultural (ESC) rights, and donor organizations and NGOs in development embrace human rights–based approaches. During the same period, local and national social movements have articulated demands in health, land reform, and water policy that are grounded in human rights claims. In this chapter I analyze and offer an explanation for these changes in the array of actors prominently involved in ESC rights advocacy, and discuss some of the implications for the mechanisms being employed. In this period of broadening involvement no consistent pattern of new mechanisms emerges, but there is evidence of an expanding menu of political, social-movement, and programmatic choices being tested and in some cases simply being labeled as human rights advocacy. In advocacy on water, land, and health rights, actors are blending human rights frames, demands, and methods with other sources of leverage. The interaction among social movements, NGOs, and international NGOs (INGOs) from the development and human rights sectors produces a diverse and sometimes improvised set of legal, political, and programmatic strategies and mechanisms. The set of actors (discussed below) is a clear subset of INGOs in development, environment, and human rights. The mechanisms are more diverse and not yet well defined; that is, there is a long list but not yet a defined repertoire of methods for work among the cooperating human rights and development INGOs. 149

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Examining the growth of interest in ESC rights in these two organizational fields allows us to explore two related issues: how change occurs in organizational fields, and how social movements’ agendas and strategies affect the behavior of INGOs. The emergence of support for these social movements among INGOs yields important insights about the relationships among two sets of key actors—social movements and INGOs—as well as about the sources of human rights claims. The patterns of organizational change in the two fields are markedly different. Development and human rights developed during the same half-century, both expressions of what Boli and Thomas (1999, 34–38) identify as characteristics of an INGO world culture: universalism, rationality, progress, individualism, and voluntarism. But in the early years of the new century, some organizations from both sectors have taken a new posture toward economic and social trends. They draw on human rights principles and standards to support social-movement efforts to reshape policy on land, health, and water supply. In so doing, they take a more confrontational approach to governmental and corporate power, using legal mechanisms at times to support popular mobilization and lobbying of international agencies, arguing for redistributive policies. Human rights advocacy, in the process, becomes more clearly associated with the objectives and strategies of social movements. These changes are potentially momentous in both fields. Many human rights organizations at the international level are embracing the economic and social rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR) for the first time, broadening their agendas from the promotion solely of civil and political rights to an agenda including what some refer to as the “full spectrum” of human rights. In the development field, many government agencies, intergovernmental organizations, and NGOs are embracing human rights principles to guide their development work. The claim that decent housing, education, nutrition, and a standard of health are rights, not acts of charity, has far-reaching implications for development. It challenges the market-led approaches that dominate current development practice, and development NGOs are struggling to work out the implications of “rights-based” approaches for development projects and policy (Chapman 2009). Some of the most influential organizations in both fields are involved: CARE, Oxfam, ActionAid, Save the Children, and other NGOs have articulated rightsbased approaches since 1995, as have UN agencies and national donors agencies from the United Kingdom, Australia, and Sweden. Among human rights agencies, Amnesty International (AI) and the World Organisation against Torture (OMCT) have moved slowly toward actively advocating ESC rights, and Human Rights Watch (HRW) has expanded its work on political and civil human rights issues directly linked to economic and social policy, while several smaller but influential specialized human rights NGOs have led the way. Collectively, these INGOs are linked through networks of funding and political cooperation to thousands of

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NGOs, women’s, labor, and indigenous peoples’ organizations around the world. INGOs’ responsiveness to locally based NGO counterparts and to social movements in the countries where they work is an important source of legitimacy for the INGOs (Slim, 2002). But this responsiveness is often called into question. A substantial body of scholarship (and opinion) takes similar positions, arguing that NGOs are constructions of the aid-donor agencies, while social movements are authentic expressions of social aspirations and grievances (Bendaña 2006; Sogge and Dütting 2010). Not only are the two seen as having different social bases, but their forms of action—social mobilization versus program and project design— are treated as incompatible (Petras 2003; Hann 1996; Jad 2007). This chapter addresses three related questions about the rapid rise of ESC rights work in human rights and development organizations, and the varied roles of voluntary organizations as actors in this rise. First, how does change occur within clearly demarcated sectors, and across the sector boundaries? After a decade of declarations by organizations in both fields, most of the leading NGOs studied have avoided significant changes to their methods or structure, but important boundary-spanning steps have been taken, primarily by smaller, specialized agencies working in issue areas such as water, health, housing, and food policy. Understanding the organizational fields, and their sources of legitimacy, provides an account of changes that are occurring as NGOs in both sectors modify and devise mechanisms for advancing rights. Second, what has been the international response to rights-based social movements? How has the commitment to ESC rights affected INGOs’ engagement with national movements on water, land, and health care? How does the INGOs’ entry affect the range of mechanisms and tools available to movements promoting ESC rights? Third, what explains the surge of interest in the mid-1990s? None of the difficulties of implementing ESC rights—political, analytic, or administrative—changed in any significant way, yet ESC rights rapidly gained a much higher profile among INGOs. By drawing on both social-movement theory and theories of organizational change, this study advances an answer, and identifies the set of knowledge, political, and resource factors that led to the pressure for change in both sectors. The chapter is based on documentary research and interviews conducted between 2001 and 2009. The first two parts take up the human rights and development organizational sectors, analyzing the core features that separate them at the international level; and the social movements in the poor countries that are making rights-based claims to health care, water, and land. The third part examines patterns of organizational change in selected international human rights NGOs, development NGOs, and a set of smaller, issue-specialized organizations that have led the way to implementing ESC rights approaches. The fourth part examines the timing of this surge of interest, and a concluding section revisits the implications

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for understanding the actors and mechanisms involved in advancing ESC rights, and for future scholarship on NGOs and social movements. D EV E L O P M E N T A N D H UM A N R IG H T S : O R G A N I Z AT IO NA L F I E L D S A N D C HA N G E

These organizational fields are most clearly demarcated at the international level. The INGOs are influential and important, but it is important to note that the division between sectors is not universal: while INGOs have operated in distinct sectors, human rights and development activists in the poor countries have developed mixed, cooperative strategies, using the full range of mechanisms to respond to the changing world political economy.1 Organizational fields are recognized by their intensive interaction, shared recognition of a common identity and purpose, and practice of cooperation as well as competition as evidence of their involvement in a “shared endeavor” (Dimaggio and Powell 1983). Consider three of the core characteristics of development and human rights NGOs summarized in table 7.1: allegiances, professional ties, and core methodologies. Human rights NGOs’ missions revolve around strengthening human rights norms and protecting and implementing recognized human rights. Most international human rights NGOs have focused on civil and political rights, and on governments’ conduct. They associate with UN and governmental human rights agencies and with other human rights NGOs; they receive much of their funding from private donors and foundations. Their methodologies vary, but their core activities include promoting standards, investigating and documenting violations, advocacy, and litigation (Welch 2001). Development NGOs have a different normative base and methodology. Their agendas seldom make reference to fixed standards but refer to meeting human needs and promoting self-sufficiency, community development, or justice. Their dominant activity has been the delivery of materials goods or services (roads, immunizations, organizational capacity building) in poor societies, although policy advocacy is now increasingly important to their agendas. They interact with development-aid donors and organizations involved in community development, and are funded largely by private donors and governmental aid agencies (Lindenberg and Bryant 2003). The two sectors rely on different means of social legitimation. For development, legitimacy comes either from a methodology that demonstrates their “impact”— usually economic impact measured through some form of cost–benefit analysis; or from relationships, as with NGOs known for supporting progressive trade unions, cooperatives, or indigenous peoples’ organizations. Human rights organizations, however, base their legitimacy on the set of internationally recognized standards and principles they promote and defend, and on their expertise and impartiality as investigators and advocates.

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table 7.1 NGO Sectors and Their Core Characteristics Human rights Mission

Allegiances

Methods

Promote and protect internationally recognized human rights; document and encourage action to redress violations Internationally recognized standards: civil and political, and economic, social, and cultural human rights Investigation and documentation; human rights education; advocacy as core activity; litigation; partnerships as solidarity; “mobilizing shame”

Resources

Foundations; individual memberships

Professions

Legal profession and social disciplines, especially political science

Development Advance well-being and dignity of vulnerable groups; respond to emergency needs Meeting basic human needs, promoting human development; cost-effectiveness; popular participation Programs and projects with time horizons; advocacy complements services; partnerships as capacity building; emergency humanitarian relief; mobilizing compassion Donor governments; individual members; foundations Economics, social disciplines, area studies; agronomy, public health, engineering

Despite their obvious shared concerns and values, the two sectors have had largely separate and parallel lives. Aid agencies have rarely seen rights as a source of guidance when allocating funds or designing projects and programs (Gauri 2004); and while civil and political human rights sometimes influence governments’ aid allocation (Forsythe 2000), development and human rights have been largely separate and uncoordinated fields. Change in Organizational Sectors Organizational sectors change through a variety of mechanisms, which Campbell (2005) categorizes as environmental, cognitive, and relational. Organizational forms and strategies change in response to political opportunity structures, funding, or other stimuli in the external environment; through cognitive mechanisms including the flow of ideas, diffusion of strategies, and changes in framing social problems; and through relational mechanisms, including the influence of networks, donors, and other forms of affiliation. The presence of all three sets of factors in the late 1990s and early years of the new century, as we will see, accounts for the rapid spread of interest in economic and social human rights across these organizational fields. The Rapid Rise of ESC Rights Among International Actors The attention to ESC rights in both sectors has grown rapidly since the 1990s, and is well documented. Development donors and NGOs including Oxfam, CARE, Save

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the Children, the British DFID, and the Swedish Sida have announced the adoption of rights-based approaches that embrace human rights as a guide to development work (Uvin 2004; Nelson and Dorsey 2003). Conferences, applied research, and workshops among practitioners and researchers (Pratt 2003; Overseas Development Institute 1999; Gauri and Gloppen 2012) indicate the breadth of interest. Among the largest international human rights NGOs, the historic focus on civil and political human rights broadened gradually in the 1990s (Roth 2004; Yamin 2005). AI committed itself in 2001 to an expanded mandate, embracing ESC rights for the first time, and has mounted initiatives to train staff and volunteer leaders, to devise strategies and introduce ESC issues to its action agenda. HRW has been more cautious, taking up HIV/AIDS issues (primarily through work on discrimination and HIV patients’ civil and political rights) and health policy issues, and addressing African women’s economic rights to inheritance and land ownership (Human Rights Watch 2003). Physicians for Human Rights (2013) has been a leader in advocacy on HIV/AIDS, while Human Rights First (formerly the Lawyers Committee for Human Rights) has integrated its work on ESC rights and corporate responsibility into its collaborative work with human rights NGOs based in the poor and transitional countries. The Geneva-based OMCT (2005), a network of some 263 local organizations and activists working against torture and other forms of violence, addresses ESC rights as a means of attacking root causes of violence. ESC rights present challenges to traditional, legal-positivist approaches to human rights, which emphasize formal judicial or quasi-judicial mechanisms at national or international levels. Poor-country governments have limited capacity to move rapidly toward fulfilling rights to food or education, and the impacts of international markets and donors on their resources and policies mean that assigning accountability to a single violating state may be difficult (Roth 2004; Nelson and Dorsey 2008). For human rights NGOs, new methodologies and skills may be needed to address systemic economic issues and corporate roles. ESC rights are less clearly defined and operationalized, and less widely embraced in the West, particularly in the United States, than were civil and political rights forty years ago. Advocates’ impartiality may be challenged, as important work on ESC issues is carried out by highly politicized movements. Development NGOs may easily make a rhetorical shift from needs to rights, but a shift in practice may require substantial changes, including analysis of discrimination and other concepts in program planning, and forging new relationships with state agencies as the primary duty bearers. S O C IA L M OV E M E N T S A N D E C O N OM IC A N D S O C IA L H UM A N R IG H T S

The literature on social movements identifies mobilization frames—nationalism, ethnic, gender and religious identities, and egalitarian ideologies—around which

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movements have mobilized (Friedman and Mottiar 2005; Mertes 2004). All of these frames remain important, but the last decade has seen a number of socialmovement mobilizations drawing on human rights. Leading social movements on land reform, HIV/AIDS treatment, and water all make use of a human rights frame for their demands, and draw on rights-based national guarantees or on international standards. Among these movements, the South African Treatment Action Campaign has become a model for rightsoriented social-movement organizations. Friedman and Mottiar (2005) show that the campaign’s success flows in part from its use of rights guaranteed in international agreements and in the South African constitution to take the moral high ground and gain leverage (see also Heywood 2009). Human rights are prominent in campaigns in Brazil and India, and in the international debate over patent protections and generic HIV antiretrovirals. Research in Latin America also finds that social movements can rely successfully on health-related human rights standards and the incorporation of those standards in national constitution and statute (Shepherd 2006). Movements for land redistribution in Latin America and some African and Asian countries also articulate rights claims. Moyo and Yeros’s (2005, 6) survey of agrarian movements finds human rights to be a major organizing frame, alongside indigenous rights and redistributionist ideologies. The land “occupations” by the Movimento dos Trabalhadores Rurais Sem Terra (Landless Rural Workers’ Movement) in Brazil have settled some 250,000 landless households on farmland and have forced the Brazilian government to implement the principle of the 1988 constitution requiring that land be socially productive (Wolford 2003; Ondetti 2008). Elsewhere, campaigns of land invasions under the banner of La Via Campesina have mobilized similar strategies (Moro and Yeros 2005). A third set of loosely associated national social movements has mobilized to oppose the privatization or contracting-out of public water utilities to international firms. Many countries and municipalities on every continent implemented or began to implement such privatization measures in the late 1990s and early 2000s. “By the end of 2000, at least 93 countries had partially privatized water or wastewater services, including Argentina, Chile, China, Colombia, the Philippines, South Africa, Australia, the United Kingdom, and Central Europe, but less than ten percent of all water is currently managed by the private sector” (Snitow and Kaufmann 2006; see also Hall et al. 2002; Grusky 2001). Local movements resisted privatization (famously in Bolivia) and/or advanced proposals to modify their fees and administration (Ghana National Coalition against the Privatisation of Water 2001). In Ghana, opposition was heightened by resentment against the government’s “fast-track” implementation of privatization, the lack of transparency in preparing contracts and transactions, and the perceived favoring of foreign corporations (International Water Working Group 2002).

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Mass movements and their NGO supporters in India and South Africa have advanced potent arguments tied to human rights standards, national constitutions, and law. In India, human rights arguments are prominent in legal and political challenges to the National Water Policy of 2002, which provided for private ownership and management of water systems (Pant 2003); and in opposition to corporate use of water resources, most notably in cases involving Coca-Cola (Vidal 2003). Public and legal campaigns against bottling plants in at least three locales stress that the depletion of groundwater supplies by bottling plants is compromising local residents’ right to water and right to health (India Resource Center 2009). In South Africa, the movement was galvanized by private water providers’ use of prepaid water meters on village and neighborhood pumps, which sharpened the perception that privatized water systems will involve systematic violations of poor citizens’ rights (Bond 2004). The movements briefly profiled here, on water, land, and health rights, are themselves indicators of the increased use of human rights discourse and frames by social-movement organizations. But their significance extends beyond the boundaries of the national movements, in that the movements are engaging not only specialist INGOs working on HIV/AIDS, agrarian reform, and water rights (e.g., Physicians for Human Rights, FIAN International, COHRE, and Water Aid, respectively), but larger and better-known NGOs in both development and human rights, including HRW, AI, Oxfam, ActionAid, and Doctors Without Borders. E M B R AC I N G E S C R IG H T S : PAT T E R N S O F C HA N G E I N O R G A N I Z AT IO NA L F I E L D S

The organizations embracing ESC rights include UN and international organizations, bilateral donors, INGOs, and local NGOs, social movements and socialmovement organizations. This analysis focuses on the NGO sectors at the international level, and finds that ESC rights are being embraced in three distinct institutional settings. The first two correspond to the human rights and development fields. The third institutional setting is more diffuse, and consists of movements, campaigns, and specialized NGOs working on health, food, water, and housing. I begin with the largest of the INGOs, then turn to the specialized organizations. Major International NGOs AI, HRW, and the OMCT all began in the 1990s to expand their focus from advocacy on civil and political rights to include certain economic and social rights. Traditional human rights groups have built their legitimacy over the years, drawing on Western receptiveness to civil and political rights, and emphasizing their rigorous research, targeted litigation, impartiality, and grass-roots advocacy (Tsutui and Wotipka 2004; Welch 2001).

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Each organization protects this legitimacy and its distinctive methodologies (research and litigation for HRW, grass-roots mobilization for AI) from major disruption as they implement work on ESC rights. In the case of AI, whose activist membership and democratic structures are key organizational resources, this has involved a lengthy process of approvals by national and global annual general meetings, and extensive work to introduce the ESC rights agenda to its volunteer membership. HRW’s choices with respect to an ESC agenda are also driven by the organization’s methodology and source of legitimacy, grounded in its research and documentation capacity. ESC rights issues are taken up, according to executive director Kenneth Roth, when the issue is one that can effectively be pursued using HRW’s existing methodology: research, documenting, reporting, and “hold[ing] governmental (or, in some cases, nongovernmental) conduct up to a disapproving public” (2004, 67). OMCT’s move to adopt an active agenda on economic and social rights is interesting in light of its mission to “fight . . . against arbitrary detention, torture, summary and extrajudicial executions, forced disappearances and other forms of violence” (OMCT, n. d.). Because this fight, in the human rights sector, has been built around the “denunciation of cases, the development of a legal framework prohibiting such acts, [and] the creation of judicial or quasi-judicial mechanisms,” it was a considerable departure when OMCT began to argue that most torture cases were not associated so much with the “forcible impositions of ideologies” but with “social tensions caused by profound inequalities [and] growing poverty” (OMCT, n. d.). Poor and marginalized people are particularly vulnerable to official violence, OMCT argues, and addressing ESC rights issues is therefore a strategy to prevent violent human rights abuses (Mivelaz 2001). The three NGOs all protect these core characteristics while cautiously adopting ESC rights initiatives. AI has begun to introduce specific issues—HIV/AIDS and land issues in Zimbabwe were among the first—into its active agenda, while building understanding and support among its volunteer leaders, especially in the United States and the United Kingdom. By 2009 AI had published reports on (among others) housing rights in Cambodia, education rights in Slovakia, the right to food in Zimbabwe, and workplace rights in China and the Dominican Republic (Amnesty International 2009). In early 2012 the active agenda for the ESC-rights Demand Dignity campaign—action items proposed to AI’s activist membership—included the post-earthquake housing crisis in Haiti, investigation of deaths in an anti-mining protest in Panama, and forced evictions or removal of populations in Israel and Chad (Amnesty International 2012). HRW’s limited ESC agenda grew slowly during the 2000s. For much of the decade it approached ESC issues through its work on two issue areas, HIV/AIDS and women’s property and inheritance rights. Following the dictum that its focus

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would not be on distributive justice issues, HRW focused rigorously on patterns of discrimination related to HIV/AIDS law and practice, and on women’s property and inheritance rights in societies where limits on these rights also amounted to a pattern of discrimination. By 2012, that agenda had broadened somewhat to include a larger set of health issues and a category for work on ESC rights. Early in 2012 that agenda included work on lead poisoning of children in Nigeria related to gold mining, abuse of patients at a Peruvian drug rehabilitation center, and restrictions by the Russian government of NGOs’ HIV prevention work (Human Rights Watch, 2012). HRW and AI both entered the arena not by launching major initiatives tied to ESC human rights themselves, but by first using their core methodologies to assert and protect the civil and political rights of activists involved in health rights work (at HRW) and environmental and labor activism (at AI). Both will need to determine whether their distinctive approaches to documenting and challenging violations of rights will be effective in advocacy on ESC rights, or whether new methodologies will be required (Dorsey 2003). As in human rights, development NGOs have chosen implementation strategies that avoid disrupting their basic methodologies and sources of legitimacy, as the experiences of Oxfam and CARE demonstrate. Oxfam’s strategy builds on its strength in international policy advocacy and grant-making to local organizations, shifting its grants toward human rights–related NGOs. Oxfam’s strategic plans for 2001–2006 and 2007–2012 are linked to five categories of rights to which Oxfam commits itself: the rights to a sustainable livelihood, to basic social services, to life and security, to be heard, and to equity (Oxfam International 2007, 2014). The Oxfam family’s embrace of human rights approaches has been highly public. Its website, annual reports, and multi-year agenda all present Oxfam’s work in terms of rights fulfillment. Oxfam America’s director co-authored a paper on implementing a rights-based approach (Offenheiser and Holcombe 2003), and Oxfam International made (former) UN high commissioner for human rights Mary Robinson honorary chair of its board (Oxfam International, n. d.). Oxfam identifies six implications of the rights-based approach for development programs, including a focus on the worst rights violations affecting the most vulnerable, marginalized people; strengthening accountability of duty-bearers and capacity of poor and marginalized people’s organizations to demand their rights; and promoting social inclusion, invoking the human rights principle of nondiscrimination (Theis 2003). Unlike Oxfam, CARE has not made policy advocacy as large a part of its historic work or of its public image, and CARE was not known for partnerships with politicized local and national civil society organizations. CARE has adopted the rights-based approach with less public fanfare, not launching new international advocacy efforts but engaging in extensive training, pilot projects, and case-study

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documentation. CARE-US, for example, produced case studies probing the effects of its rights-based approach to projects in five countries (Rand 2002; see also CARE International 2005), drawing lessons for projects and for organization-wide policy and management. This accommodation by the major NGOs is gradual and limited compared to the growth of specialized NGOs and of networks and alliances fully embracing ESC rights as a basis for work in water, women’s health, food, and housing. Specialized ESC Rights NGOs and Alliances Smaller, specialized ESC rights NGOs, most founded since the mid-1990s, provide leadership at the international level. Based in Hamburg, Germany, FIAN International (formerly FoodFirst Information and Action Network) focuses on the right to food. Employing an urgent-response network like that of AI, it alerts its members to potential threats to the right to food or to the rights of individuals or groups attempting to secure land. Collaborating with the peasant movement La Via Campesina, FIAN has focused on agrarian reform and the access to land as a primary condition for fulfilling the broader right (Windfuhr 2000). The Geneva-based Centre on Housing Rights and Evictions (COHRE) uses research, litigation, and community mobilization to promote the right to secure tenure, freedom from forced evictions, and access to water. The housing and water rights agenda has also been advanced by the United States–based Global Initiative for Economic, Social and Cultural Rights. In other social sectors, the Center for Economic and Social Rights, the International Women’s Health Coalition, and Earth Rights International have been leaders. Table 7.2 lists international ESC rights NGOs. Significantly, NGOs and networks focused on ESC rights in the United States were also formed in the 2000s. The Human Rights Network, whose agenda includes civil and political as well as ESC rights, was created in 2003; the National Economic and Social Rights Initiative (NESRI), in 2004. Regional and global networks of NGOs and social movements were an important feature in global social policy in the 1990s, uniting around debt relief, land mines, combat diamonds, child soldiers, large-scale dams, and other issues debated at the UN-sponsored world summits and conferences of that decade. Among these networks and alliances, two organizational patterns are apparent: global networks around a policy goal, with strong central leadership, exemplified here by the Campaign for Access to Essential Medicines; and broad, loosely coordinated campaigns of resistance to an aspect of corporate or state behavior, exemplified by the resistance to privatization of water supply systems. The campaign for access to essential medicines, coordinated by Médecins Sans Frontières since 1999, aims to increase affordable access to the 206 drugs designated essential by the World Health Organization (2013). The campaign targets

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Name, location, year founded Centre on Housing Rights and Evictions, Geneva, 1995 International Women’s Health Coalition, New York, 1984 FIAN (FoodFirst Information and Action Network), Hamburg, 1986 Center for Economic and Social Rights, New York, 1993 Global Exchange, San Francisco, 1998

Realizing Rights, New York, 2002 ESCR-Net, Bangkok, 2002 Global Initiative for Economic, Social and Cultural Rights, Duluth, 2010

Agenda Housing and water rights Women’s sexual and reproductive health rights Right to adequate food, access to land ESCR; projects on right to water “A human rights organization dedicated to promoting social, economic and environmental justice” ESCR and ethical globalization: projects on migration, HIV/AIDS Broad ESCR agenda; global network Broad ESCR agenda: housing, water, Millennium Development Goals

SOURCES: Organizations’ websites and annual reports.

national governments, the pharmaceutical industry, and international organizations, encouraging expanded production, reduced prices, further research and development, and trade rules that maximize access at affordable prices (Pécoul et al. 1999). The campaign invokes human rights to confront intellectual property rules and governments’ health standards and budget allocations, and pursues the standard-setting and funding commitments needed to provide access to highquality malaria therapy, timely and effective antiretroviral medicines, and pharmaceutical imports that meet global standards in all countries (Médecins Sans Frontières 2008; Ford, Mills, and Calmy 2011; Caudron et al. 2008). It worked to mobilize pressure on pharmaceutical company Novartis to drop its intellectualproperty case against the government of India (Medecins Sans Frontières Access Campaign 2013). The campaign against privatization of water was a network of NGOs and community organizations loosely united in reaction to the contracting-out of water utilities to transnational corporations. Opposition to privatization of water is not new, but international networking intensified after the UN recognition, in 2002, of the human right to water, in General Comment 15 (Committee on Economic, Social and Cultural Rights 2002). INGOs made human rights a dominant frame in their water advocacy. The New York–based Center for Economic and Social Rights (2004) advocated a human rights–based approach to the challenges of water provision. The International Water Working Group (headquartered at Washington,

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D.C.–based Public Citizen) assembled a thorough analysis of prepaid water meters, supporting the positions of South African movements (Concannon and Griffiths 2001). A sustained protest and legal campaign in South Africa resulted in a 2008 finding by the Johannesburg High Court that the prepaid meters were unconstitutional (“Court Finds Prepaid Water Meters Unconstitutional,” 2008). Reports from the Right to Water initiative of United Kingdom–based NGO Water Aid (Water Aid and Rights and Humanity 2004), AI (2003), COHRE (2003), the World Health Organization, and others reinforced the growing right-to-water activism. Between 1995 and 2005, then, INGOs mobilized to support social movements across a range of social policy issues, articulating that support in part or entirely in terms of ESC rights. No single cause accounts for the action across issue areas: not all, for example, are cases of privatization, nor of World Trade Organization rule disputes. What explains this rapid growth, and what is its significance? AC C O U N T I N G F O R T H E T I M I N G A N D DY NA M IC S O F C HA N G E

Organizations change in response to a variety of stimuli. Campbell (2005) identifies three categories: pressures from the environment; cognitive mechanisms, including the diffusion of expectations about organizational forms; and relational features, including the impact of federations and alliances, joint enterprises, and partnerships. In the case of human rights, a strong confluence of the three sets of factors, beginning in the 1990s, explains the sudden and widespread turn to economic and social rights, despite continued opposition from key governments and the relative weakness of the formal UN institutions (Felice 1999). The environmental-factors category includes competitive pressures created by other organizations in the field, technological change necessitating adaptation, changes in the political opportunity structure, and any change that affects the flow of financial or other resources. International relations scholars have given us a rich supply of case studies, and some influential models of NGOs as principled international political actors (Keck and Sikkink 1998; Khagram, Sikkink, and Riker, 2002). On the other hand, scholars of development and of organizational behavior and change offer plausible accounts for organizational change that treat NGOs not solely as a special case of principled political actors but as organizations like others, with organizational needs and imperatives to be managed and protected (Lewis 2001; Tvedt 2002; Opoku-Mensah, Lewis, and Tvedt, 2007). Recent work on the relationship between social movements, organizational theory, and social change challenges long-standing “debates and antipathies” (Clemens 2005, 355) between classic organizational analysis and social-movement scholarship. This has produced a strain of “organizationally-inclined social movement” scholarship that treats organizations as relatively open to their environments and

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sees activists as choosing among a range of organizational allies and sources of leverage: government bureaucracies, NGOs, and in this case international legal ESC rights standards (354). The rapid embrace of ESC rights in the 1990s occurred in a period when political, intellectual, and organizational trends coincided to bring multiple pressures and incentives into alignment. The UN provided institutional incentives by giving a high profile to human rights around the fiftieth anniversary of the Universal Declaration of Human Rights, as in the UNDP’s Human Development Report of 2000. The end of the Cold War shifted the historical East–West context for ESC rights, though without much obvious effect on U.S. coolness toward them. Theoretical advances came from Sen (1999) and Nussbaum (2000), whose theories of entitlements and capabilities encouraged new thinking and new rhetoric about the place of individual rights claims in economic and social development. Very widespread ratification in the 1990s of the Convention on the Rights of the Child, with its ESC rights content, may have provided additional momentum. Special rapporteurs, appointed by the UN, produced influential reports on human rights to food, housing, and health (see e.g. Tomasevski 2002; Ziegler 2004). In the working environment, INGOs were challenged both by the desire to rein in corporate powers and by the high-profile strategies of popular movements and alliances. The challenges of rising corporate roles in water, patenting and intellectual property rights, and trade in services posed new political challenges and opportunities, and the legal and rhetorical power of human rights offered legal leverage and moral high ground. Finally, relationships among human rights and development agencies were deepened in advocacy campaigns, in debates over humanitarian policy, and in the UN-sponsored global conferences of the 1990s (Clark, Friedman, and Hochstetler 1998). Participation in networks on land mines, debt, the right to information, “dirty diamonds,” and child soldiers increased human rights and development NGOs’ familiarity with each sector’s methods. The growth of transnational federations and families of NGOs (e.g. CARE, Oxfam, AI, and Save the Children) encourages change in one national member to spread rapidly through the global family (Lindenberg and Bryant 2001). Social movements such as those mobilized around water, HIV/AIDS, and land have been decisive mobilizing factors. Stammers (1999) argues persuasively that human rights claims rise to prominence through the demands of social movements seeking to increase their own influence. Social movements and NGOs based in the poor countries have attracted support from international development and human rights NGOs, and drawn them toward economic and social rights–based demands and strategies. Integrated human rights and community development strategies, and the melding of structural and functional features of the two sectors in single organiza-

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tions, are long-established realities in many countries of the Global South. National and regional human rights NGOs in Nigeria, Indonesia, Pakistan, Kenya, Brazil, and elsewhere have long combined human rights documentation and even litigation with providing direct services to people deprived of housing, health care, or other services (see e.g. escr-net.org). C O N C LU S I O N S

This analysis of the movement for economic, social, and cultural rights attempts to clarify and interpret the entry of a growing number of INGOs into ESC rights advocacy, and to understand the dynamics of an important INGO field. In the process, we have shed some light on two important debates, relating to the relations between social movements and formal NGOs, and between formal legal human rights strategies and strategies that are essentially popular, political, and movement-based. UN bodies and other established actors play important roles in advancing ESC rights standards and principles. The right to food, right to health, and other ESC rights standards have been discussed and clarified in general comments of the UN Committee on Economic, Social and Cultural Rights, by UN special rapporteurs, and by legal and other scholarship. But the movements that arose in the 1990s and remain active in the 2010s often focus on key issues within these areas of rights guarantees: not on the right to food, for example, but on agrarian reform; not on housing in its entirety, but on security of tenure, or housing rights for women; not on health, but on the right to water or to essential medicines. This shift in focus, from broad rights to specific rights issues, came about largely because rights were invoked by movements as a means to increase their own access to land, education, housing, or medicines. This issue-driven growth of movements promoting ESC rights, and the expansion of the actors involved, have also led to further diversification of the means by which actors promote and try to advance ESC rights. In addition to the legislative advocacy, litigation, public mobilization, and documentation efforts that are familiar in human rights networks, development NGOs introduce expanded programmatic and project efforts to build local capacities to claim rights to land, water, and health. This trend toward specific, applied, political use of ESC rights has important possible implications for both fields. It implies a new framework of accountability for development agencies in which human rights standards and principles become a basis for assessing aid work; it points to new and more complex relations with governments in the countries where INGOs work; and it provides stronger incentives for NGOs in both sectors to engage systematically with social movements that address social policy issues. But there are also risks for INGOs, particularly in the

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human rights field. NGOs such as AI, OMCT, and HRW risk losing credibility among financial and political supporters, and weakening the power of human rights norms and standards, if they do not successfully manage their broadened agendas. The current interest in implementing rights-based policies and initiatives on social and economic issues is broad but not terribly deep. An important set of agencies in each field has embraced ESC rights for the first time as part of their active agendas and organizational mandates, but in the mainstream of the NGO sectors there has been little transformation of organizations’ methods and strategies. Still, the commitment to advancing ESC rights among these NGOs is in sharp contrast with some of the largest, most influential development actors. Abouharb, Cingranelli, and Filippov (chapter 1 in this volume) show convincingly that participation in some international regimes in particular—operating under a World Bank and IMF program—seems to compete with ESC rights duties and results in weaker performance in realizing economic and social rights. This troubling effect of liberalization norms promoted by the Bretton Woods organizations is visible in the urban water sector, where activists spent much of the 1990s in many countries working against planned privatization schemes, rather than to improve the admittedly poor water services provided by their public utilities. The prominent role of a critical set of actors—smaller, boundary-spanning NGOs working on well-defined social or economic issues—suggests that their work merits closer attention. If advocates for water rights within these NGOs and networks, for example, succeed in supporting movements that not only block privatization schemes but lead to improved water service, their initiatives are likely to win quick support across the mainstream of the two organizational fields, as have rights-based advocacy strategies for HIV treatment. The debate between formal organizational analysis and social-movement scholarship, already being addressed in some recent work, can be further bridged by careful consideration of the trends outlined here. Human rights and development NGOs at the international level have been drawn into advocacy work on ESC rights, and into human rights–based approaches to development, largely by the force of rights-based social movements in the poor countries. Prominent INGOs— Oxfam, ActionAid, AI, MSF, OMCT—are not only associating themselves with social movements in health, trade, land, and water, but presenting themselves as international flagship organizations for such movements. This is not to say that tensions among social-movement activists and NGOs are suddenly healed. Important differences remain (Bendaña 2006; Guilhot 2005). But the changes in INGO sectors can only be explained by understanding both the political and social-movement influence, on the one hand, and the organizational incentives and responses to the organizations’ environment, on the other. The second dichotomy addressed here is between two views in human rights scholarship. One sees human rights as international, formal, legal agreements and

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processes, while the other emphasizes the primacy of social movements in advancing socially constructed rights claims. Social movements such as the Treatment Action Campaign, the Movimento dos Trabalhadores Rurais Sem Terra, and the national water antiprivatization campaigns have clearly played important roles in advancing human rights claims in debates at the World Trade Organization, the World Bank, South Africa’s health ministry, and Brazil’s land administration. But in two of these cases, formal actions of the UN human rights agencies played decisive roles in the outcomes, and in mobilizing NGO support. The 2002 initial recognition of a human right to water was followed by a burst of rights-based NGO support for water-rights movements. Interventions by the World Health Organization and the UN high commissioner for human rights contributed to the partial success of AIDS activists in the 2002 Doha ministerial conference of the WTO, and legitimated the use of a human rights frame by INGOs in AIDS advocacy. Similarly, litigation and social-movement mobilization appear as complementary in these cases. The courts have been involved at key moments in water (South Africa, Colombia, India, and elsewhere), HIV/AIDS (Brazil and elsewhere), and access to land. In most cases, as Atapattu (chapter 5, this volume) argues for environmental rights, cases in the national courts have been a forum where multiple stakeholders have been able to participate in a formal process of framing development standards and priorities. Likewise, court rulings in India have “galvanized social mobilization aimed at changing public policy on food accessibility and utilization” (Hertel and Randolph, chapter 8, this volume). In the cases reviewed here, the fact that judicial actions are not immediately and fully implemented may be less important than the fact that they are repeatedly referenced and treated as relevant to domestic political advocacy, and by extension to domestic spending and programmatic priorities. Change in these two fields suggests that organizational field boundaries remain important, being breached primarily through alliances, networks, and coalitions that leave the fields intact, and through experimentation by small, specialized agencies whose work does not define the fields in the same way that “flagship” NGOs do. If, as I have argued, ESC rights are taking a larger place through debates that are issue-specific and applied to particular national and international debates, then these debates will remain an important site for those interested in social movements and the governance of international economic and social policy for the foreseeable future. NOTES This paper is part of a project being undertaken jointly with Dr. Ellen Dorsey. Many insights in the paper reflect this ongoing collaboration, but the author is solely responsible for any errors of fact or analysis. 1. This section draws on Nelson and Dorsey (2003).

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Jad, Islah. 2007. “NGOs: Between Buzzwords and Social Movements.” In Deconstructing Development Discourse: Buzzwords and Fuzzwords, edited by Andrea Cornwall and Deborah Eade, 193–202. Bourton on Dunsmore: Practical Action. Keck, Margaret E., and Kathryn Sikkink. 1998. Activists beyond Borders. Ithaca: Cornell University Press. Khagram, Sanjeev, James V. Riker, and Kathryn Sikkink. 2002. Restructuring World Politics: Transnational Social Movements, Networks, and Norms. Minneapolis: University of Minnesota Press. Lewis, David. 2001. The Management of Non-Governmental Development Organizations. London: Routledge. Lindenberg, Marc, and Coralie Bryant. 2001. Going Global: Transforming Relief and Development NGOs. Westport, CT: Kumarian. Médecins Sans Frontières. 2008. Full Prescription: Better Malaria Treatment for More People: MSF’s Experience. www.msfaccess.org/our-work/malaria/article/907. Medecins Sans Frontières Access Campaign. 2013. “Novartis, Drop the Case!” www .msfaccess.org/novartis-drop-the-case. Mertes, Tom. 2004. A Movement of Movements: Is Another World Really Possible? London: Verso. Mivelaz, N. 2001. Torture and Violations of Economic, Social and Cultural Rights: Appraisal of the Link and Relevance to the Work of the United Nations Committee against Torture. Paper presented by OMCT to the UN Committee against Torture, Geneva. Moyo, Sam, and Paris Yeros. 2005. Reclaiming the Land: The Resurgence of Rural Movements in Africa, Asia and Latin America. London: Zed. Nelson, Paul J., and Ellen Dorsey. 2003. “At the Nexus of Human Rights and Development: New Methods and Strategies of Global NGOs.” World Development 31(12):2013–26. . 2008. New Rights Advocacy: Changing Strategies of Development and Human Rights NGOs. Washington, DC: Georgetown University Press. Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press. Offenheiser, Raymond C., and Susan H. Holcombe. 2003. “Challenges and Opportunities in Implementing a Rights-Based Approach to Development: An Oxfam America Perspective.” Nonprofit and Voluntary Sector Quarterly 32(2):268–306. OMCT (World Organisation against Torture). 2005. “Poverty, Inequality and Violence: Is There a Human Rights Response?” Conference organized by OMCT, Geneva, October 4–6. . n. d. The Development and History of OMCT’s Programme on ESC rights. www.omct .org/escr/statements/2004/01/d2079/. Ondetti, Gabriel. 2008. Land, Protest and Politics: The Landless Movement and the Struggle for Agrarian Reform in Brazil. State College: Pennsylvania State University Press. Opoku-Mensah, Paul Yaw, David Lewis, and Terje Tvedt, eds. 2007. Reconceptualising NGOs and their Roles in Development. Aalborg: Aalborg University Press. Overseas Development Institute. 1999. What Can We Do With a Rights-Based Approach to Development? Briefing Paper 1999 (3). www.odi.org.uk/publications/briefing/3_99.html. Oxfam America. n. d. “Mary Robinson, Honorary President of Oxfam International.” www .oxfam.org/en/countries/mary-robinson-honorary-president-oxfam-international.

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Oxfam International. 2014. “Our Commitment to Human Rights.” www.oxfam.org/en/ourcommitment-human-rights. . 2007. Demanding Justice: Strategic Plan 2007–2012. www.oxfam.org/sites/www. oxfam.org/files/oi_strategic_plan_2007_0.pdf. Pant, Ruchi. 2003. From Communities’ Hands to MNCs’ BOOTs: A Case Study from India on Right to Water. Submitted to the Right to Water Project of Rights and Humanity, UK. Pécoul, Bernard, Pierre Chirac, Patrice Trouiller, and Jacques Pinel. 1999. “Access to essential drugs in poor countries: a lost battle?” JAMA 281(4):361–67. Petras, James. 2003. The New Development Politics: The Age of Empire Building and New Social Movements. Aldershot: Ashgate. Physicians for Human Rights. 2013. “HIV/AIDS.” http://physiciansforhumanrights.org /about/impact/hiv-aids.html. Pratt, Brian. 2003. “Rights or Values?” Ontrac [INTRAC newsletter], No. 23 (January): 1–2. Rand, Jude. 2002. CARE’s Experience with Adoption of a Rights-Based Approach: Five Case Studies. Paper submitted to the CARE-USA RBA Initiative. Roth, Kenneth. 2004. “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization.” Human Rights Quarterly 26:63–73. Sen, Amartya. 1999. Development as Freedom. New York: Anchor. Shepherd, Bonnie. 2006. Running the Obstacle Course to Sexual and Reproductive Health. Westport, CT: Praeger. Slim, Hugo. 2002. “By What Authority? The Legitimacy and Accountability of NonGovernmental Organizations.” Journal of Humanitarian Assistance. www.gdrc.org/ngo /accountability/by-what-authority.html. Snitow, Alan, and Deborah Kaufmann. 2006. The New Economy of Water [television documentary]. www.pbs.org/pov/thirst/special_neweconomy.php. Sogge, David, and Gisela Dütting. 2010. Moving Targets: Notes on Social Movements. The Hague: HIVOS. Stammers, Neil. 1999. “Social Movements and the Social Construction of Human Rights.” Human Rights Quarterly 21(4):980–1008. Theis, Joachim. 2003. Brief Introduction to Rights-based Programming. Save the Children– Sweden. Tomasevski, Katrina. 2002. The Right to Education. Report of the Special Rapporteur, submitted pursuant to Commission on Human Rights Resolution 2002/23, E/CN.4/2003/913, December. Tsutui, Kiyoteru, and Wotipka, Christine Min. 2004. “Global Civil Society and the International Human Rights Movement: Citizen Participation in Human Rights International Nongovernmental Organizations.” Social Forces 83(2):587–620. Tvedt, Terje. 2002. “Development NGOs: Actors in a Global Civil Society or in a New International Social System?” Voluntas 13(4):363–75. United Nations Development Programme. 2000. Human Development Report 2000. New York: Oxford University Press. Uvin, Peter. 2004. Human Rights and Development. Westport, CT: Kumarian. Vidal, John. 2003. “Coke on Trial as Indian Villagers Accuse Plant of Sucking Them Dry.” The Guardian, November 19.

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Water Aid and Rights and Humanity. 2004. Human Rights Approach to Development. www. un.org.kg/en/post-2015/article/document-database/un-system-in-kyrgyzstan/humanrights-and-human-rights-based-approach/100-water/2407-human-rights-approachto-development-water-aidrights-and-humanity-eng. Welch, Claude E. 2001. NGOs and Human Rights. Philadelphia: University of Pennsylvania Press. Windfuhr, Michael. 2000. Agrarian Reform: A Human Rights Obligation. Paper presented at the International Conference on Agrarian Reform and Rural Development, Tagaytay City, Philippines, December 5–8. Wolford, Wendy. 2003. “Producing Community: The MST and Land Reform Settlements in Brazil.” Journal of Agrarian Change 3(4):500–520. World Health Organization. 2013. “WHO Model Lists of Essential Medicines.” www.who .int/medicines/publications/essentialmedicines/en/ Yamin, Alicia Ely. 2005. “The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social and Cultural Rights into the Mainstream Human Rights Agenda.” Human Rights Quarterly 27:1200–1244. Ziegler, Jean. 2004. The Right to Food. Report submitted by the Special Rapporteur on the Right to Food in accordance with Commission on Human Rights Resolution 2003/25, E/ CN.4/2004/10.

Chapter 8

The Challenge of Ensuring Food Security Global Perspectives and Evidence from India Shareen Hertel and Susan Randolph

To date 160 countries have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR, United Nations General Assembly, 1966), thereby committing themselves to progressively ensure the full realization of the right to food. Yet, the Food and Agricultural Organization of the United Nations estimated the number of hungry people at 842 million—nearly one person in eight—in 2012 (FAO 2014). Holding countries accountable to their commitment to ensure the right to food presents multiple challenges, ranging from the basic question of how best to assess compliance to the complex questions of how to promote and ensure compliance. Access to adequate food is not just essential to human dignity; it is essential for human survival. The right to food is a fundamental human right. It is necessary to fulfill other basic needs, to enable human action, and to secure human freedoms (Feinberg 1989; Copp 1992; Sen 1999, 2004). The pervasiveness of human hunger worldwide is both a moral failure and a violation of international law. This chapter explores the interplay between law and social action in the realization of the right to food, and the actors and mechanisms at play. We pay particular attention to why and how informational, power-based, and legal mechanisms have interacted in right-to-food advocacy and policy reform in India, a country with strong legal guarantees for the right to food but with high and persistent levels of hunger and malnutrition. This material is based upon work supported by the National Science Foundation under grant no. 1061457. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation.

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The right to food can be promoted on two complementary levels: from the top down, by actors responsible for designing and implementing the sets of laws and policies at both the national and international levels necessary to meet the state’s formal legal obligations; and from the bottom up, by civil society actors who mobilize popular demand for access to food as a means of survival. The mechanisms that connect actors at these two levels are the focus of this chapter. We draw the two together through a case study of India that explores the “interplay” of actors at both levels in an effort to illuminate both the feasibility and the challenge of fulfilling the right to food. We begin by examining the emergence of the right to food as a legal right and elaborate both its content and the nature of states’ obligations under international law. We then provide a brief overview of factors affecting food security and measures of states’ compliance with their international legal obligations. Next, we assess progress toward global fulfillment of the right to food. The remainder of the chapter is devoted to a case study of India, a country which falls far short of its potential to fulfill the right to food despite its strong international legal commitments and a robust set of constitutional and statutory guarantees for economic rights. India is thus an exemplar of: 1) the challenges to fulfillment of the right to food despite strong legal guarantees at both the international and national levels; and 2) the critical role of social mobilization in holding the state to account for ensuring the right to food. OV E RV I EW O F T H E R IG H T T O F O O D U N D E R I N T E R NAT IO NA L L AW

The Universal Declaration of Human Rights (UDHR), which was unanimously endorsed by all members of the UN General Assembly in 1948, first enunciated the right to food in Article 25, paragraph 1, as one aspect of the right to a “standard of living adequate for the health and well-being of [each person] and his family.” The UDHR was codified as hard law in Article 11 of the ICESCR, which came into force in 1976. Article 11 of the ICESCR further defines the right to food as including freedom from hunger and instructs countries to undertake measures that: •

•

•

increase food availability by disseminating and improving scientific knowledge to increase production (Article 11, paragraph 2a) enhance people’s access to food through measures such as improving the distribution of food (Article 11, paragraph 2b) improve food utilization by, for example, improving people’s knowledge of nutrition, so as to strengthen the link between food consumption and good health (Article 11, paragraph 2a).

General Comment 12, issued by the treaty-monitoring body for the ICESCR, the Committee on Economic Social and Cultural Rights, expands on these three

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aspects of the right to food—food availability, access, and utilization—by further elaborating the substantive content of the right to food under international law (CESCR, 1999). This general comment also specifies the procedural elements of the right to food and lays out the obligations of conduct and result that countries ratifying the ICESCR commit to uphold. Similarly to all economic rights, the procedural elements of the right to food include rights of participation, nondiscrimination, accountability, and remedy. Countries ratifying the ICESCR commit to respect, protect, and fulfill the rights articulated therein. In the case of the right to food, the obligation to respect requires that countries refrain from taking any measures that restrict any person’s access to food, while the obligation to protect requires countries to prevent third parties (other people, or entities such as corporations) from restricting any person’s access to food. The obligation to fulfill the right to food requires that countries put in place laws, policies, programs, and measures that enhance people’s ability to access adequate food and their ability to successfully utilize it to ensure good nutrition. In the event that people are unable to do so, the ICESCR requires countries to directly provide adequate food and the complementary resources to ensure good nutrition. The committee’s General Comment 3 (CESCR 1990) elaborates the nature of countries’ obligations under the ICESCR. Countries are not required to immediately ensure full realization of the rights guaranteed under the ICESCR. They are required to ensure minimal levels of enjoyment of the rights (the core content of the rights); to commit the maximum of available resources toward the realization of the rights; and to progressively ensure the full realization of the rights. Similarly, General Comment 12 addresses these obligations within the context of the right to food. It specifies the minimum content of the right to food as ensuring “at the very least, the minimum essential level [of food] to be free from hunger” (CESCR 1999, paragraph 17). Countries are not only required to refrain from taking measures that endanger the realization of the right to food in other countries, but also to take proactive measures, individually and collectively, to facilitate realization of the right to food. This entails acting collectively to meet the commitments of the Rome Declaration of the World Food Summit and World Food Summit Plan of Action to “achiev[e] food security for all and to [engage in] an ongoing effort to eradicate hunger in all countries, with an immediate view to reducing the number of undernourished people to half their present level no later than 2015” (FAO 1996, para 2). FAC T O R S A F F E C T I N G F O O D SE C U R I T Y A N D M E A SU R E S F O R M O N I T O R I N G T H E R IG H T T O F O O D

The central elements defining food security—food availability, individuals’ access to food, and their ability to utilize food to promote good health—are hierarchical

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in nature. Food availability is necessary, but not sufficient to ensure access; access is necessary, but not sufficient, to ensure utilization supportive of good health. The three elements also focus on different levels of analysis. The issue of food availability concerns whether a country’s supply of food is sufficient. The issue of food access concerns whether households are able to acquire sufficient food. Finally, the issue of food utilization concerns whether individuals within each household consume sufficient food and have access to the necessary complementary inputs to ensure their optimal nutritional well-being. Multiple, interconnected factors influence each of the three elements of food security. Measures tracking these factors not only reveal where policy efforts need to be bolstered, but also promote social transformation. When indicators reveal gaps in food availability, access, and/or utilization, public outrage can stimulate popular mobilization, which in turn can put pressure on policy makers to take action or reinvigorate their efforts to address the various causes of food insecurity. Below we briefly review some of the more common indicators used to track the underlying factors influencing food availability, access, and utilization. Ensuring food availability constitutes the supply side of ensuring the right to food. At the global level, producing sufficient food to meet global nutritional requirements is a prerequisite to ensuring the right to food. At the national level, deficiencies in food production can be compensated for by food imports—but countries must have the capacity to import sufficient foodstuffs, or sufficient food aid must be made available. The top portion of table 8.1 shows the primary determinants of food availability at the country level, along with common measures that directly and indirectly gauge food availability. Whether or not a household has access to sufficient food depends on the household’s production, exchange, and social entitlements. Whether or not each individual in that household has access to sufficient food depends on how the household allocates food among its members. The middle panel of table 8.1 shows factors influencing food access, as well as measures of food access. At best, these indicators approximate the number of individuals who are food insecure. None, however, accurately assesses all relevant dimensions of food insecurity at the household or individual level. Turning now to assessing progress with regard to food utilization, available indicators reflect both the determinants of utilization (such as physiological status and access to sanitation) and the adverse health outcomes of poor utilization, as can be seen in the bottom section of table 8.1. The most common indicators of food utilization are those based on child anthropometry, specifically weight for age, height for age, and weight for height. Poor nutrition makes people more susceptible to disease and increases the morbidity and mortality rates associated with common diseases. Therefore, excess mortality rates (especially infant, child, and maternal) are also often used as proxies for the adequacy of food intake and utili-

table 8.1 Right to Food Determinants and Measures Increasing availability Determinants •

•

•

• • •

Measures

Land devoted to food production → agricultural and trade policies Amount irrigated land, extensiveness rural road networks, extensiveness crop storage /processing facilities → public expenditure on infrastructure for food production, storage, processing, and marketing Technology for sustainable food production / yield food crops → public expenditure on food crop research, production and extension services, and access to foreign technology on food crop production Food stocks Climate/season Access to food aid

• • • •

• •

• • •

Food balance sheets Food Production Index Food grain stocks Food aid (quantity, value, or share of consumption) Cereal yields Share agriculture investment in government budget Official development assistance to agriculture FAO food price index Ratio of food import value to total export value

Improving access Determinants • • •

•

• • • •

• • •

Measures

Income/poverty status Access to land Access to irrigation and other production inputs (improved seed varieties, fertilizer, etc.) Knowledge food production technologies → access to extension services for food production Access to credit Household food stores Food prices Social food entitlements → access to social welfare and nutrition safety nets (public or private) Civil strife Adult literacy and educational status Degree of gender equality

• • • • •

• • • • • •

Number or percentage poor people Gini Coefficient of income distribution Gini Coefficient of land distribution Smallholder fertilizer usage rate per acre Smallholder share land planted in improved varieties Smallholder cereal yields Domestic staple food prices Conflict-related deaths School completion rates Ratio male to female school enrollment rates Number or percentage undernourished/hungry

Enhancing utilization Determinants • • • • • • •

Access to health care Access to clean water Sanitation facilities Quality of food safety systems in place Age Disease prevalence Nutrition, sanitation, and health knowledge

Measures • • • •

• • •

Percentage with access to primary health care Vaccination rates Percentage with access to clean water Percentage with access to improved sanitation facilities Disease prevalence rates Child malnutrition rates Increased mortality rates

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zation. Obesity rates are also sometimes used as indicators of malnutrition, given the established link between food insecurity and obesity in high-income countries (e.g. Olson 1999). All of these indicators are influenced by factors other than the adequacy of food intake, including individual physiological status, access to clean water and good sanitation, and the prevalence of disease. At the national level, progress along each of these dimensions should be assessed relative to each country’s resource capacity, consistent with the principles of “maximum available resources” and “progressive realization.” All of the indicators discussed thus far look at the enjoyment of the right to food; they ignore the obligation side of the equation. The Social and Economic Rights Fulfillment (SERF) Index and its underlying component right indices differ in this regard. They adopt a unique methodology to assess the level of a country’s obligations of result (Randolph, Fukuda-Parr, and Lawson-Remer 2010; Fukuda-Parr, LawsonRemer, and Randolph 2011, 2015; chapter 11 in this volume). Specifically, they assess a country’s obligation relative to the best-practice achievement level as determined by country experience, given the country’s resource level. The right-to-work component of the SERF Index makes this assessment with regard to the percentage of the population that is not poor—specifically, enjoying income greater than $2 (2005 purchasing power parity) per day. The right-to-housing component does so with regard to the percentage of households with access to improved water and improved sanitation. And the right-to-food component makes the evaluation with regard to the percentage of children who are not malnourished (as assessed by the child stunting rate). The scores on each of these indices can be interpreted as the percentage of what a country actually achieves relative to what it is possible to achieve at the country’s per capita income level, reflecting a country’s maximum use of its available resources to secure the related aspects of food security. G L O BA L P R O G R E S S I N F U L F I L L I N G T H E R IG H T T O F O O D

There is no doubt that the global community has articulated a strong commitment to ensuring the right to food, as demonstrated by the evolution of international laws embodying this right, repeated international declarations signed by the majority of nations, and action plans adopted to promote the right to food. Most of the 160 countries that have ratified the ICESCR have articulated national-level policies and action plans to secure the right for their citizens and residents. But talk is cheap. The best action plan makes little difference unless adequately resourced. The FAO’s food production index reveals substantial progress in ensuring food availability. Per capita, the global increase in food production exceeded 10% between 2000 and 2010; the gain in per capita food production outpaced the global trend in all regions except North America and Europe and Central Asia (FAO 2014).

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figure 8.1 FAO Food Price Index, 1990 to 2012. Source: FAO Food Price Data (http:// www.fao.org/worldfoodsituation/foodpricesindex/en/).

However, access has not increased in tandem. The dramatic rise in global food prices has reduced food availability in many net food-importing countries. Figure 8.1 documents a steep run-up in food prices since 2003, with only a brief reprieve in the upward trend between 2008 and 2009. Beyond reducing food availability in food-deficit countries, the dramatic increase in food prices ignited a similarly dramatic erosion in the ability to access food on the part of households who are net food purchasers. The goal of reducing the number of hungry people to half its 1990 value by 2015 set at the 1996 World Food Summit, remains elusive. The number of hungry people only fell by 17 percent globally, from 1,016 million to 842 million between 1990–92 and 2011–13, and in developing regions from 996 million to 827 million (table 8.2). While six developing regions saw a decline in the number of hungry people—North Africa, Latin America and the Caribbean, the Caucasus and Central Asia, South Asia, Southeastern Asia, and Eastern Asia—the number of hungry people continued to increase in Sub-Saharan Africa, Western Asia, and Oceania. Further, in those regions where hunger declined, the decline was only marked in the Caucasus and

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Country groups World Developing regions Northern Africa Sub-Saharan Africa Latin America and the Caribbean Eastern Asia (without China) Southern Asia (without India) Southeastern Asia Western Asia Caucasus and Central Asia Oceania Developed regions

1990–92 (million)

1999–2001 (million)

2005–07 (million)

2011–2013 (million)

1015.2

940.2

906.6

842.3

995.5 4.6 173.1 65.7 278.7 6.5 314.3 87.0 140.3 8.4 9.0a 0.8 19.8

920.0 4.9 205.6 61.5 196.6 10.2 307.7 85.7 116.9 13.3 11.8 1.2 20.2

892.9 4.8 212.8 54.6 184.8 10.0 316.6 83.4 94.2 16.8 7.3 1.1 13.6

826.6 3.7 222.7 47.0 166.6 8.6 294.7 81.0 64.5 20.6 5.5 1.2 15.7

SOURCE: FAO Hunger Portal (www.fao.org/hunger/en/); a FAO, The State of Food Insecurity in the World, 2012 (Rome: FAO), Annex 1, Table 1.1.

Central Asia, Southeastern Asia, and Eastern Asia, and the marked decline in the case of Eastern Asia was driven by a dramatic decrease in the number of hungry people in China. Excluding China, the number of hungry people in Eastern Asia rose by nearly a third. The trends are more positive if one considers the percentage of hungry people rather than the number of hungry people. Still, sadly it is clear that even the less ambitious target of reducing the percentage of hungry people to half its 1990 value by 2015 set at the Millennium Development Conference will not be met; globally, the percentage of hungry people only declined from 18.9 percent to 12 percent between 1990–92 and 2011–13 (FAO Hunger Portal, 2014: www.fao.org /hunger/en/, table V_7.1). Despite repeated global pronouncements and commitments, we are a long way from ensuring all people even the minimum content of the right to food—freedom from hunger. This reflects the magnitude of the challenge as well as the failure of global institutions and wealthier countries to meet their obligations to adequately assist poorer countries to reduce hunger. But poorer countries themselves could do better. Most countries are failing to meet their own commitments under the ICESCR; they are not devoting the maximum of their available resources to ensure the right to food. They are not doing as much as they could to increase access by reducing poverty, even within the constraints of their current per capita GDP. Table 8.3 classifies developing countries according to their score on the rightto-work component of the SERF Index. As will be recalled, this component

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table 8.3 Percentage Not-Poor Relative to Feasible Rate Given Best Practices (Score on Right-toWork Component of SERF Index) Percentage of feasible achievement 90% or more (44 countries)

75–89% (28 countries)

50–74% (24 countries)

Less than 50% (22 countries)

Countries included Azerbaijan, Belarus, Bosnia and Herzegovina, Burundi, Central African Republic, Democratic Republic of Congo, Croatia, Estonia, Ethiopia, Guinea-Bissau, Kazakhstan, Latvia, Liberia, Lithuania, Malawi, Montenegro, Mozambique, Niger, Russian Federation, Rwanda, Serbia, Seychelles, Sierra Leone, Slovenia, Timor-Leste, Togo, Ukraine, Bulgaria, Chile, Jordan, Kenya, Moldova, Romania, Costa Rica, Uruguay, FYR Macedonia, Jamaica, The Gambia, Guyana, Albania, Argentina, Islamic Republic of Iran, Kyrgyz Republic, Malaysia Mongolia, Cuba, Turkey, Mexico, Morocco, Thailand, Paraguay, Tunisia, RB Venezuela, Dominican Republic, Sao Tome and Principe, El Salvador, Ecuador, Brazil, Egypt, Ghana, Trinidad and Tobago, Bolivia, Mauritania, Peru, Armenia, Uganda, Nicaragua, Guatemala, Djibouti, Tajikistan, Belize, Panama Algeria, Comoros, Cote d’Ivoire, Honduras, Georgia, Suriname, Gabon, Lesotho, Cape Verde, Turkmenistan, Colombia, China, Nepal, Sri Lanka, Republic of Yemen, Vietnam, Haiti, Philippines, Cambodia, Mali, Senegal, Cameroon, Bhutan, Chad St. Lucia, Papua New Guinea, Burkina Faso, South Africa, Pakistan, Indonesia, Bangladesh, Benin, Botswana, Zambia, Namibia, Guinea, Lao PDR, Madagascar, Angola, Uzbekistan, India, Republic of Congo, Nigeria, Swaziland, Tanzania, Equatorial Guinea

SOURCE: Economic and Social Rights Empowerment Initiative (www.serfindex.org), data for 2011.

assesses the extent to which countries are doing as much as is reasonably feasible to increase the proportion of the population living above the $2 (2005 purchasing power parity) poverty line (Fukuda-Parr, Lawson-Remer and Randolph,2011). While 44 of the 118 countries for which this index could be computed achieve 90 percent or more of what is reasonably feasible, 22 countries achieve less than 50 percent of what they reasonably could—among them, India, the country with the greatest number of hungry people in the world.1 Just as countries are not doing as much as they could to reduce poverty, they are not doing as much as they could to improve food utilization by expanding access to water and sanitation. Table 8.4 classifies countries according to their score on the right-to-housing component of the SERF Index, which assesses the extent to which countries are expanding access to improved water and sanitation compared to the extent possible. Forty-five of the 144 countries for which this index can be computed achieve 90 percent or more of the feasible value, but 22 countries

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table 8.4 Percentage with Access to Improved Water and Sanitation Relative to Feasible Rates Given Best Practices (Score on Right-to-Housing Component of SERF Index) Percentage of feasible achievement 90% or more (45 countries)

75–89% (30 countries)

50–75% (47 countries)

Less than 50% (22 countries)

Countries included Uruguay, Bulgaria, Singapore, Barbados, Cyprus, Israel, Malta, Qatar, Slovenia, Lebanon, Tonga, Albania, Kyrgyz Republic, Georgia, The Gambia, Egypt, Croatia, Burundi, Thailand, Malaysia, St. Kitts and Nevis, Bosnia and Herzegovina, Samoa, Jordan, Ukraine, United Arab Emirates, Guyana, Uzbekistan, Malawi, Grenada, Belize, Belarus, Maldives, Vietnam, Serbia, Estonia, Mauritius, Syrian Arab Republic, FYR Macedonia, Kazakhstan, Armenia, Montenegro, Sri Lanka, St. Lucia, Costa Rica Moldova, Turkey, Ecuador, Cuba, Antigua and Barbuda, Philippines, Guatemala, Algeria, Tajikistan, Dominica, Trinidad and Tobago, Bangladesh, Jamaica, Tunisia, Timor-Leste, Russian Federation, Dominican Republic, El Salvador, Suriname, Islamic Republic of Iran, Chile, Rwanda, Mexico, Argentina, Latvia, Bhutan, Honduras, Libya, Comoros, Brazil Pakistan, Uganda, Nepal, Cape Verde, Saudi Arabia, South Africa, Paraguay, Oman, Iraq, Colombia, Vanuatu, Nicaragua, Sao Tome and Principe, Lesotho, Morocco, China, Panama, Indonesia, Romania, Federated States of Micronesia, Botswana, Djibouti, Senegal, India, Republic of Yemen, Zambia, Fiji, Lao PDR, Central African Republic, RB Venezuela, Peru, Swaziland, Namibia, Cameroon, Solomon Islands, Cote d’Ivoire, Guinea-Bissau, Liberia, Mali, Mongolia, Ghana, Guinea, Burkina Faso, Afghanistan, Kenya, Azerbaijan, Sudan Cambodia, Eritrea, Kiribati, Benin, Bolivia, Haiti, Papua New Guinea, Angola, Democratic Republic of Congo, Tanzania, Nigeria, Mauritania, Togo, Republic of Congo, Niger, Chad, Mozambique, Sierra Leone, Madagascar, Ethiopia, Gabon, Equatorial Guinea

SOURCE: Economic and Social Rights Empowerment Initiative (www.serfindex.org), data for 2011.

achieve less than 50 percent of what they could. India scores better on this index (62.5 percent) than it does on the index for right-to-work fulfillment, but is still not doing nearly as much as it could in expanding access to improved water and sanitation. The overall result is that child malnourishment rates are much higher than they need be. The right-to-food component of the SERF Index captures this with regard to the child (under five) stunting rate. Only 19 of the 123 countries for which this index can be computed achieve 90 percent of what they potentially could, given their resource capacity (table 8.5). Thirty countries achieve less than 50 percent of what they could on this index. India is among them.

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table 8.5 Percentage of Children Not Malnourished (Height for Age) Relative to Feasible Rate Given Best Practices (Score on Right-to-Food Component of the SERF Index) Percentage of feasible achievement

Countries included

90% or more (19 countries)

75–89% (30 countries)

50–74% (44 countries)

Less than 50% (30 countries)

Moldova, Kyrgyz Republic, Chile, Togo, Senegal, Jamaica, Cuba, Jordan, Belarus, Uzbekistan, Nicaragua, Trinidad and Tobago, Georgia, Singapore, Tunisia, Brazil, Guyana, China, Liberia Montenegro, Serbia, The Gambia, Bulgaria, Argentina, Dominican Republic, Haiti, Suriname, Ghana, Bosnia and Herzegovina, Sri Lanka, Paraguay, Sao Tome & Principe, Armenia, FYR Macedonia, Romania, Mauritius, Saudi Arabia, Turkmenistan, Algeria, Uruguay, Thailand, Colombia, Morocco, Mauritania, Ukraine, Russian Federation, Malaysia, Turkey, Oman Venezuela, Lebanon, Mongolia, Dem. Rep. Congo, Mexico, Kazakhstan, Iran, Tajikistan, Bahrain, Iraq, Belize, Philippines, Panama, El Salvador, Kenya, Uganda, Mali, Syrian Arab Republic, Honduras, Guinea, Azerbaijan, Albania, Rep. Congo, Swaziland, Maldives, Libya, Central African Republic, Bolivia, Cameroon, Namibia, Ecuador, Vietnam, Egypt, Sudan, Eritrea, Peru, Cote d’Ivoire, Djibouti, Cambodia, Botswana, Guinea-Bissau, Gabon, Mozambique, Bangladesh Sierra Leone, Tanzania, Burkina Faso, Pakistan, Nigeria, Chad, Benin, Lesotho, Indonesia, Zambia, Papua New Guinea, United Arab Emirates, Ethiopia, Nepal, Lao PDR, Comoros, Rwanda, India, Bhutan, Malawi, Kuwait, Madagascar, Niger, Equatorial Guinea, Angola, Timor-Leste, Burundi, Guatemala, Rep. Yemen, Afghanistan

Source: Economic and Social Rights Empowerment Initiative (www.serfindex.org), data for 2011.

To gain insight into why some countries succeed dramatically better than others in ensuring the right to food, we turn to an examination of the Indian case. Table 8.6 shows the right-to-food component of the SERF Index for each of the Indian states. The variation in performance is substantial. Some states do remarkably well, relative to their per capita income and food production; among them are Kerala and Tamil Nadu. By contrast, Punjab, which produces more food per capita than any other state, does not do nearly as well. Uttar Pradesh produces over ten times as much food per capita as Kerala, and twice as much as Tamil Nadu, yet its performance on the right-to-food component is the worst among the Indian states. Case Study: Law and Popular Mobilization on the Right to Food in India Despite an impressive overall economic growth rate of over 8 percent per year,2 widespread hunger persists in India, which its score on the right-to-food

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SERF Right to Food Index by Indian State

State Kerala Tamil Nadu Goa Jammu and Kashmir Manipur Tripura Nagaland Sikkim Punjab Mizoram Himachal Pradesh Rajasthan Andhra Pradesh Arunachal Pradesh Orissa Karnataka Uttarakhand West Bengal Assam Delhi Haryana Maharashtra Madhya Pradesh Jharkhand Chhattisgarh Gujarat Bihar Meghalaya Uttar Pradesh

SERF Right to Food Index 77.38 65.18 63.70 62.65 61.14 58.19 53.48 52.05 51.44 50.04 48.72 45.11 43.21 42.94 42.13 40.81 40.35 39.70 38.50 37.04 34.09 33.29 32.17 31.05 23.95 23.54 23.43 18.53 17.28

SOURCE: Table 5.6 in Fukuda-Parr, Lawson-Remer, and Randolph 2015. Reproduced with permission from Oxford University Press.

component of the SERF Index corroborates. Half of India’s population is malnourished (Gonsalves et al. 2004, 10), and nearly half of all Indian children of three years or younger are underweight; indeed, a third of the world’s malnourished children live there (The Economist 2011). The Oxford Poverty and Human Development Initiative (2010) reports that there are more poor people in eight Indian states than in twenty-six of the poorest African countries combined: 421 million people in the states of Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh, and West Bengal are poor, versus 410 million in the twenty-six poorest African nations. By contrast, states such as Kerala and Tamil Nadu have lower rates of chronic malnutrition and implement food-related programming and social welfare delivery more effectively (Srinavasan 2011).

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What accounts for this variation? Each of the “hunger belt” states as well as the “model” states has its own particular history, and the dynamics of social mobilization in each are a function of the particular bureaucratic history, political party structure, and contours of civil society in each one. There is considerable variation among states in a country as internally diverse as India, and among districts within states. There is no one-size-fits-all explanation for why variation in hunger occurs and why and how people respond differentially to it within India. That said, in this section of the chapter we analyze the unique configuration of actors, institutions, and strategies that have influenced why hunger varies among states in India, and how mobilization unfolds differentially in response to it. Before proceeding, we note several features of the context in which Indian advocacy on the right to food is unfolding. First, in terms of the country’s macroeconomy, we note that the availability of food in India is not at issue; rather, its accessibility and utilization are the problem. Indian food distribution is highly centralized: a state-owned company controls and manages the food-grain supply, while a federal department is charged with food distribution. A series of federal programs, in turn, target specific groups such as school children who receive midday meals, unemployed rural people involved in food-for-work schemes, and elderly people and poor mothers who receive apportioned allotments of food. Each program is administered at the state level. While the overall volume of food available may be sufficient to feed India’s hungry, these targeted programs are administered distinctly and with differing levels of transparency and effectiveness, state by state and locally. This affects food accessibility. Social norms and cultural practices, including patterns of gender and caste discrimination, in turn affect intra-household utilization of food. Second, we note the legal context. Poor people in India operate in a context in which the country’s constitution guarantees them the right to life (Article 21) while also laying out a series of Directive Principles of State Policy that guide state social welfare policy (i.e., nonjusticiable guidelines included in Articles 35–47). Since the late 1970s, an increasingly activist Supreme Court has been open to public interest litigation (PIL) “concerning the interests of the poor and marginalized, and to do so loosened rules and traditions related to standing, case filing, the adversarial process, and judicial remedies” (Gauri 2010, 71). People at the grass-roots level have exploited this context, and public interest litigation coalesced in the 1990s around a series of “social rights” cases (Kothari 2007) covering a broad range of issues: rights to housing, education, information, food, rural employment guarantees, and tribal land rights, among other topics. Members of the Supreme Court and state-level High Courts throughout India have interacted with representatives of domestic NGOs and popular-advocacy networks in the context of related legal mobilization. This legal advocacy dovetailed, in turn, with broader grass-roots mobilization aimed at reforming social policy.

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Third, we note India’s legislative context. Over the past decade, the Indian Parliament has passed several landmark pieces of corresponding legislation—including the Right to Information Act (2005), the National Rural Employment Guarantee Act (2005), the Right of Children to Free and Compulsory Education Act (2009), and the National Food Security Act (2013). This overall shift toward “rights-based” policy reforms in India is still incompletely institutionalized and has generated considerable public debate over whose rights are at stake, how rights should best be protected, and who should bear the cost of social policy reform. But it is part of a trend toward rights-based social policy reform that is being watched and analyzed well beyond India (World Bank 2011, xxiii, 48). With these features of the Indian context in mind, we proceed to analyze the strategic interaction among a variety of actors in the context of the Right to Food Campaign (RTFC, www.righttofoodcampaign.in) that has been active in the country for over a decade. The actors central to our analysis are people at the grass-roots level; their allies (i.e., within social movements and in local, national, and international NGOs); government employees (including members of the judiciary and employees of agencies charged with food policy); and elected officials. We are particularly interested in understanding why and how the campaign has employed informational, power-based, and legal mechanisms in its efforts to spur reform of laws and policy implementation that would increase the accessibility and utilization of food in India. Actors central to the RTFC have recognized that food security depends, in no small measure, on the extent to which people at the local level are: • • •

•

• •

aware of their entitlements under constitutional law aware of their right to participate in targeted social programs able to access information on who qualifies for food and what the extent of entitlements are aware of accountability mechanisms for use in accessing information and/or resources empowered to demand the food they are entitled to able to act collectively, facilitated by local and/or outside NGO, academic, or policy allies.

Through careful analysis of the RTFC, we thus tease out a set of recursive pathways (analogous to the “moments of social transformation” identified in chapter 1) that we argue characterize efforts to realize the right to food, derived from the Indian case. These pathways, outlined in figure 8.2, help explain how the processes of awareness-raising and action interact at multiple levels. Such pathways are also evident in other settings in which people struggle to realize their entitlements to economic and social rights. There are four main pathways, which intersect at four key nodes: an informational node, a situational node, an action-formation node, and a transformational

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figure 8.2 Recursive pathway to social transformation (right to food). All actions shape perceptions and awareness in an iterative fashion.

node. A varied set of actors employ different mechanisms at each of these nodes. At the informational node, domestic activists make use of data on the state of the fulfillment of the right to food relative to legal entitlements. This indirectly brings them into contact with the actors who produce the international standards and data. At the situational node, activists mobilize awareness of entitlements—in the Indian case, specifically by focusing on right-to-food guarantees under national constitutional law. At the action-formation node, domestic activists and their allies in domestic policy and legal circles translate popular pressure into concrete proposals for legal and policy reform to secure the right to food. And at the transformational mode, these reforms are translated into meaningful changes in food security. The process of realizing the right to food in India has been slow, iterative, and at times recursive. The multiple strands of mobilization around social rights in India have combined “elite-led” strategies of legal mobilization with varying forms of “popular-level” nonviolent social protest, including venerable Gandhian tactics such as fasts (dharna), public dialogues (samvad), roadblocks (rasta roko), strikes (hartal), and occupations (gherao), among many others. Social-movement and NGO activists have not only used the courts and the streets as arenas for protest. They have also targeted the policy-making process, seeking passage of reformist social legislation. In this section of our chapter, we analyze the RTFC’s effort to influence the drafting of a National Food Security Act since 2009. Popular advocacy of social rights in India is taking place precisely at the time when the country has accelerated its market-led growth, driven by its increasing

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integration with world markets and, in particular, by the development of its hightech information services sector. But India’s considerable economic growth has not brought increased social equity. As recently as 2009, the daily caloric intake of the poorest Indians was actually falling (Deaton and Dreze 2009, cited in World Bank 2011, 16). Leading independent Indian social commentators such as Pratap Bhanu Mehta have observed that despite the progressive shift in the courts, the passage of corresponding landmark social rights legislation, and the creation of new programs (or “schemes” in Indian parlance), “schemes for poor people are poor schemes . . . schemes in which the privileged do not have a stake are not subject to great accountability” (Mehta 2011, 11). While grass-roots advocacy plays a potentially transformative role in Indian social policy formation, hunger in India persists as a function of a number of codeterminants already discussed in this chapter—such as those affecting access to food at the household level (e.g., gender inequality, illiteracy, lack of access to credit) and those affecting individual utilization of food (e.g., lack of access to health care, clean water, and sanitation facilities; limited personal knowledge of nutrition and health practices; age or disability). These co-determinants vary by state. So, too, do corruption and inefficiency in food distribution, as well as public awareness and willingness to fight it. Jean Dreze—one of India’s foremost academic experts on hunger—has identified a crucial set of causal links between individual-level awareness of rights entitlements, social mobilization in defense of rights, and corresponding policy reform (particularly efforts to tackle corruption in public food distribution). He explains variation in levels of corruption in food delivery systems across India as a function, in part, of different levels of rights awareness in those sub-regions: About half the grain meant for distribution to poor households through the PDS [Public Distribution System, India’s main public food distribution program] seems to end up in the black market, rising to 80 percent in Bihar and Jharkhand. In south India, the “leakages” are much smaller. . . . One reason for this contrast is that people’s perceptions of their entitlements under PDS differ radically between the two regions. . . . Two factors (awareness of rights and accountability mechanisms) reinforce each other and preserve the integrity of the system. If India’s public distribution system is to be revitalised, close attention needs to be paid to the circumstances that shape people’s perceptions of their rights as well as their ability to enforce them. (Dreze 2004, 1727, emphasis added)3

Considering figure 8.2 again, we argue that the activities of the RTFC have concentrated around three nodes en route to the pathway to social transformation: the informational, situation, and action-formation nodes. Where the unfinished business of securing the right to food remains is at the transformational node.

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Actors: India’s Supreme Court and the Right to Food Campaign—Catalysts for Activism The key rights-realization outcomes of the RTFC to date are grounded in judicialization as a vehicle for transforming the material/economic status of the hungriest people in India by making their access to food a matter of legal entitlements, not charity. Since 2001, everyone in India can claim a constitutional right to food, thanks to the landmark Supreme Court case of People’s Union for Civil Liberties v. Union of India and Others (PUCL),4 which held that government food distribution schemes “constituted legal entitlements under a constitutional right to food” and “outlined how those government schemes were to be implemented” (Birchfield and Corsi 2010, 693). The PUCL case and the series of sixty-four substantive “interim orders” issued by the Supreme Court and ten orders issued by state-level high courts between 2001 and 2011 are the cornerstone of most contemporary food rights advocacy in India. International human rights are a less salient frame: although India has ratified numerous international treaties safeguarding the right to subsistence,5 the reinterpretation of the right to food as integral to the right to life has been the focal point of legal advocacy efforts (Birchfield and Corsi 2010).6 The interim orders of the Supreme Court and of the state High Courts aim at enhancing the delivery of food through reform of public food programs and services (Fredman 2008, 131). The interim orders thus translate legal protections into policy action by making policy reform a legal obligation, not a discretionary option, of state actors. These orders have resulted in the creation of a unique top-down/ bottom-up institutional structure for the information gathering that is essential to evaluate ongoing food delivery efforts nationwide. Two Supreme Court–ordered commissioners were appointed in May 2002 under one set of orders, charged with monitoring the implementation of all relevant orders related to the PUCL case (Vidar 2006). A targeted set of NGOs was also named in subsequent interim orders, deputized to serve as the eyes and ears of the court by gathering information on hunger at the regional level nationwide. Among them are coalitions involved in advocacy on food, water, and livelihood security (the Right to Food Campaign itself, along with Samaj Pragati Sahayog of Madhya Pradesh); local affiliates of international development organizations (i.e., ActionAid); research and academic organizations (the Hazards Centre of Delhi, the Institute of Development Studies of Jaipur, and Ranchi University); legal aid organizations (the Committee for Legal Aid to the Poor, based in Orissa; Sahyog A Legal Cell, based in Allahabad); and farmers groups (e.g., Paschim Banga Khet Mazdoor of West Bengal). The Human Rights Law Network, a Mumbai-based NGO with 28 offices nationwide and 200 attorneys and activists on staff, has spearheaded the use of legal mechanisms on the part of the RTFC. It filed the PUCL case (Fredman 2008) and has since published the definitive compilation of related legal documents

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(Gonsalves et al. 2004). The Human Rights Law Network has also coordinated plaintiffs in ongoing public interest law cases and reports the findings of the NGOs involved in monitoring and assessing food delivery schemes. The routinely updated website of the RTFC is the go-to source for data on food security nationwide, along with hard-hitting commentary on who is at fault for food delivery problems, and detailed policy reform proposals. Moving on from the action-formation pathway to the transformational pathway (figure 8.2) depends crucially upon information gathering. Members of the RTFC routinely investigate and publicize gross mismanagement of food programs, and the RTFC’s general website features a wide range of informational mechanisms, including data on social audits of key government feeding programs; lists of ongoing public interest litigation case law; news briefs that track Indian media coverage of hunger issues; “primers” on hunger for public education and outreach purposes; and contact information for other groups involved in right-to-food advocacy across India. The campaign has also built on parallel social mobilization around the right to information and the right to rural employment guarantees by integrating training and outreach efforts across issue areas. Activists in the RTFC have utilized power-based mechanisms to become increasingly involved in direct negotiations with political parties. They began doing so in 2004, with the ascent of the United Progressive Alliance (UPA), which included the Indian National Congress party. Over the course of two governing cycles of the UPA, the Indian National Congress moved to position itself as a central player in debates over food security policy in India. Sonia Gandhi created a National Advisory Council to advise the UPA on policy formation, and several prominent members of the RTFC served on the council at various points, including Jean Dreze and Harsh Mander (the latter serves as a Supreme Court Commissioner on the PUCL case followup). The RTFC’s willingness to engage with political parties was motivated by its desire to influence the evolving content of a proposed National Food Security Bill. The campaign’s goal was to ensure that the bill would include universal food guarantees, and with them, sufficient provision of a quantity of food adequate to meet basic needs; diverse and culturally appropriate food sources; strong social welfare guarantees for nursing mothers and children; and robust monitoring mechanisms for food program implementation at the national, state, and local levels. The campaign emphatically opposed cash transfers as a vehicle for disbursing food support. Despite two years of intense lobbying efforts, the National Food Security Act that ultimately passed in September 2013 fell short of these goals and is less progressive than some existing state-level food programs already in place in states such as Tamil Nadu, Chhattisgarh, and Andhra Pradesh. Despite the RTFC’s best efforts to employ power-based mechanisms in its lobbying, the fate of the bill demonstrates the ongoing challenge of negotiating meaningful policy transformation in the context of food security advocacy.

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Institutions: The Institutional Landscape of Food Assistance in India A series of core programs (known locally as food “schemes”) is central to the food delivery system of India (see the appendix to this chapter). Each has its own institutional history, key stakeholders, and budget. Successive Indian governments have promised reforms of the entire bulwark of programs for decades, and have renamed and rebranded the dozen central schemes multiple times. But chronic hunger persists, in large measure because India’s food distribution system as a whole is plagued by corruption and inefficiency. The government’s Planning Commission estimates the “leakage” of grains to be around 58 percent (World Bank 2011, xiii). Other estimates range even higher: by one count, upwards of 70 percent of the roughly $12 billion budget for food support is “wasted, stolen or absorbed by bureaucratic and transportation costs” (Yardley 2010). The RTFC’s strategy has been to spotlight the inefficiency and corruption in particular programs by lodging public interest law cases aimed at forcing disclosure of information on service delivery in specific programs within specific states. Public interest litigation has sought both an accounting of resource allocation and a reckoning of high-level officials responsible for graft and corruption. The Supreme Court’s interim orders, in turn, have called for time-bound commitments to specific reforms on the part of key state agencies; in some cases, actual officials are named and required to report. Each of the twelve programs in the appendix has been referenced by name at least once in the sixty-four major interim orders of the Supreme Court issued pursuant to the PUCL case.7 The court has singled out these programs in order to hold them accountable for improved delivery of public food assistance, with the RTFC playing a key role in continued pressure for change from the grass-roots level. Problems of transparency and efficiency of food distribution vary as a function of the capacity of state-level political institutions and the empowerment of local actors to hold those institutions accountable for effective and equitable food delivery. State capacity and local empowerment vary, in turn, as a function of multiple factors, including the history of local social struggles within given states; the commitment of local political parties to progressive social policy; and the ability of local people to demand their rights effectively. But there are some commonalities in the problems found across states. There is widespread corruption in food delivery mechanisms, ranging from a ration-card system rife with “ghost” cards to “Fair Price Shops” that fail to post regular hours or set prices and are manned by staff who divert foodstuffs and kerosene for sale on the black market.8 Similarly, although day care centers (known as anganwadis) funded under the Integrated Child Development Scheme are mandated to provide children as well as pregnant or nursing mothers with specific rations of food at least 300 days per year, there are too few centers, and those that do exist operate inefficiently.9

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Early on, the RTFC targeted problems in one of the highest-profile programs—the Mid-Day Meal Scheme (MDMS)—and has had relatively greater success in achieving reform of this program than it has with other food schemes. The Indian Supreme Court’s Interim Order 196 of November 28, 2001, directed all state governments to introduce cooked midday meals in primary schools, and for those not yet providing cooked meals, to do so within three months of that date, in the interest of boosting school attendance, fighting child hunger, and increasing social equity among children of all backgrounds (Dreze 2004, 1726; see also the text of the order itself, reproduced in Gonsalves et al. 2004, 30). By 2004, 50 million children were covered under the MDMS, making it the largest program of its type in the world (Dreze 2004, 1728). While the initial Supreme Court order resulted from public interest litigation, its widespread implementation has stemmed from concerted grass-roots campaigning aimed at rooting out corruption and inefficiency in the MDMS and ensuring the fulfillment of children’s right to food (1728). Here, then, the campaign has moved more centrally along the pathway of policy transformation than in other areas. Yet even the MDMS does not enjoy uniform success nationwide. Three states— Bihar, Jharkhand, and Uttar Pradesh—have been especially slow in implementing the court’s order. Of the twenty-nine states included in table 8.6, which ranks states by performance according to the right-to-food component of the SERF index, these three are at or near the bottom of the list. A number of factors appear to be missing in these three states, in contrast to others where social policy programs function more effectively, including the MDMS. First, these three states cluster in the hunger belt, where the overall level of underdevelopment deepens the challenge of adequately developing social policy interventions simply because of the sheer number of poor people to be assisted. But other factors are at work as well. The right-to-food component of the SERF Index takes into account per capita income levels. Even in a poor state like Rajasthan (itself included among the poverty-belt states), there are hopeful signs of successful social policy implementation, particularly as it relates to the National Rural Employment Guarantee Act (NREGA). This program entitles the poorest people to 100 days annually of work on government projects—in part aimed at enabling them to meet their basic food needs. The Rajasthan-based grass-roots organization Mazdoor Kisan Shakti Sangathan has been very adept at empowering workers to advocate for the effectiveness of the NREGA program in their state (Khera 2011, 77), and community-based monitoring of this program within Rajasthan is widespread. Notably, Rajasthan is twelfth (out of twenty-nine) in the right-to-food component of the SERF Index by the state rankings in table 8.6. Wealthier states, such as Kerala and Tamil Nadu (first and second place in table 8.6, respectively) have less of a poverty burden and also benefit from better-integrated social policy delivery systems (World Bank 2011, xx). Yet, even comparably poorer states such as Andhra Pradesh (thirteenth place, just behind Rajasthan)

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have innovated in social policy reform—in this case, by working to overcomes the limits of the existing system for identifying below-the-poverty-line persons to participate in public food programs (xxi) and by introducing food coupons which are redeemable not only in government-run Fair Price Shops but also in private retail outlets. The introduction of coupons has reduced leakage in the Public Distribution System by an estimated 25 percent in Andhra Pradesh (13). Bihar, despite its problems, has innovated with food coupons as well (12). Barcoded ration cards are another innovation that multiple states are trying in an effort to prevent fraud. Strategy: The Right to Food Campaign in Action The actors involved in the RTFC have seized on the scandal of hunger amidst plenty and advanced an integrated strategy of legal mobilization, popular protest, and lobbying of parliamentarians involved in drafting the National Food Security Act. Given the complexity of the food delivery system in India and the variety of situations at the state level nationwide, it is not surprising that the campaign has diversified its activities by employing a mixture of informational, legal, and powerbased mechanisms in defense of the right to food. The campaign keeps in reserve the threat of new public interest litigation or more general street protest if its efforts in the courts or vis-à-vis parliament fail to yield sufficient results. Another characteristic of the RTFC’s strategy is its blending of highly technical “expert” research with grass-roots advocacy. In this way, the campaign’s strategy mirrors the top-down/bottom-up structure of the Supreme Court mechanisms created in the wake of the PUCL case. Experts friendly to the campaign, such as Amartya Sen (a Nobel laureate in economics), share their research and testimonials on hunger not only with government ministers, parliamentarians, and national media but also at grass-roots rallies and popular-education events such as the Bal Adhikar Samvad (Dialogue on Children’s Rights) held in December 2006. At this large popular-education event organized by the RTFC, Sen lectured but also listened to the stories of hungry people assembled from all over India who discussed widespread child malnutrition and its daily impact on their families. The same top-down/bottom-up strategy is evident in the way the campaign has capitalized on the Supreme Court’s own “naming and shaming” of specific public officials responsible for problems in food delivery at the state level, while at the same time working at the village level to empower people to know their rights and to demand access to information concerning the food due them through public food programs. Grass-roots education on the right to food in India aims at raising citizen awareness not only of constitutional guarantees but also of the stubborn forces of gender-, caste-, and class-based discrimination that perpetuate lack of access and inadequate utilization of food. The campaign has sought to empower poor people, regardless of gender, caste, age, or ability, to demand to know why the food they are entitled to by right is not being delivered efficiently and equitably.

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Some would argue that social-movement actors such as those involved in the RTFC risk curbing their capacity for militancy if they become too embedded with government, for example through the post-PUCL monitoring process of the Supreme Court’s commissioners; or with mainstream political parties. The literature on social-movement advocacy has frequently described the risk of co-optation that movements face if key members engage in “top-down” politics, for example by participating in existing governmental or other power structures (McAdam and Snow 2010). And research on transnational advocacy networks has offered varied conceptualizations of intranetwork hierarchies and bargaining (Keck and Sikkink 1998; Bob 2005; Hertel 2006; Brooks 2007; Smith 2007; Chong 2010; Busby 2010), many of which are certainly applicable to the RTFC. For example, Jean Dreze served on the UPA’s National Advisory Council for several years but eventually requested not to be reappointed in June 2011, when the National Food Security Bill was finally ready to be tabled (for details, see Ramaseshan 2011). Dreze is one of the highest-profile advocates of the rights of the poor in India today, and he has walked a fine line to maintain his freedom to critique the very policies he has had a major role in defining, even after the passage of the National Food Security Act in 2013. C O N C LU SIO N : C I V I L S O C I E T Y G R O U P S A S D R I V E R S O F C HA N G E O N T H E R IG H T T O F O O D

As our foregoing discussion of measurement and our case-study analysis have demonstrated, India has ample resources to fulfill the right to food. Grain is rotting in the warehouses managed by the Food Corporation of India. Availability is not the problem. Rather, the roots of the problem are the lack of political will, institutional capacity, and popular empowerment. The complex array of public food programs discussed here will not deliver food effectively until people at the top see it as a priority, and people at the bottom are empowered to demand it. As Nelson explains in his contribution to this volume (chapter 7), social mobilization on economic rights challenges the presumption that growth automatically leads to the fulfillment of economic rights, and right-to-food advocacy in India has pivoted centrally around exposing the paradox of hunger amidst economic growth and demanding reform in the name of rights. The RTFC has sought to push popular consciousness and public policy in India in a new direction. As part of a broader rights-based current of social mobilization and policy reform across the country and in the region more generally (as Atapattu explores in chapter 5), this campaign has crested a wave of awareness-raising and action formation to achieve a series of important legal victories. But it is stalled in the transition to transformational policy reform. India’s movement along the fourth pathway in figure 8.2 is incremental at best and recursive at worst.

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Despite the significance of the PUCL case, the implementation of food policy in India remains uneven, subnationally. It is too early to tell whether the new National Food Security Act will meaningfully affect long-term policy changes in the form, content, and implementation of programs central to ensuring adequate food access and full utilization of food. The Indian case demonstrates how social-movement-based actors have mobilized information to build a legal case for the right to food as intrinsic to the right to life, while also seeking to translate popular awareness into corresponding pressure for policy reform at the federal and state levels. Our contribution here closely parallels Atapattu’s, which reveals the significant boldness of the Indian Supreme Court in interpreting environmental rights as intrinsic to life (in her case). In both cases, the judicialization strategy emphasized the need to safeguard the nonderogable right of the person to life by identifying a perpetrator (or perpetrators) whose actions could be sanctioned. This is a legal strategy much more common in civil and political rights advocacy, but one economic rights activists have adopted given the difficulty of litigating on progressive realization (i.e., the difficulty of demonstrating a threshold for obligations). However, recognition of the right to food de jure does not mean its uniform implementation de facto, either in this case or in others discussed in the volume. The progressive realization of economic rights necessarily involves a more iterative process of rights implementation than with civil and political rights. Therein lies the risk of nonimplementation. Heinz Klug (chapter 9) reveals that in South Africa—another postcolonial country with a similarly emancipatory set of social rights guarantees in law and a robust tradition of social mobilization in defense of rights—the implementation of policy reforms on land, water, and health rights access is similarly uneven, iterative, and complex owing both to historical institutionalist legacies and to the difficulties of progressive implementation of economic rights given contemporary resource and political constraints. As the right-to-food component of the SERF Index illustrates, India achieves far less than it could given its resources, in terms of fulfilling the right to food. The country does less than half of what it could to prevent child malnutrition (the key indicator of rights enjoyment used in constructing this component). If India were to significantly decrease its rate of child stunting, the performance of the entire South Asian region’s would improve—and the lives of children affected by lack of access to food would be altered dramatically. The Supreme Court’s interim orders pursuant to the PUCL case have galvanized social mobilization aimed at changing public policy on food accessibility and utilization in India. Its work is incremental yet fueled by a commitment to reversing India’s remarkable lack of progress in fulfilling the promises of its own constitution and its obligations under international law. Our aim in this chapter was to analyze the origins, current state of measurement, global fulfillment, and country-specific challenges to fulfilling the right to

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food. Focusing on the case of India has enabled us to illustrate the urgency of doing so in a country where one in three of the world’s hungriest children live. By demonstrating how the right to food can be measured in practical terms and by exploring its route to implementation and the role of social mobilization in that process, we hope to continue to move economic rights from the margins to the center of the human rights research agenda. NOTES 1. Here we present the results for the core-country SERF Index and component right indices. A separate SERF Index, comprised of different indicators, is computed for highincome OECD countries. 2. On India’s growth rate, see www.tradingeconomics.com/india/gdp-growth. 3. Dreze is careful to note that such regional distinctions are not “immutable” (2004, 1728), given the “growing participation of underprivileged groups in democratic politics, and the fact that food security is one of their main concerns” (1727). 4. Supreme Court of India Record of Proceedings Writ Petition (Civil) No. 196 of 2001, People’s Union of Civil Liberties v. Union of India & Others (August 20, 2001), cited in Gonsalves et al. (2004, xx). 5. India is a party to the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention on the Rights of the Child. 6. For detail on the related provisions of the Indian constitution, see Birchfield and Corsi (2010), Jain (2000), Fredman (2008, especially the preface, introduction, and chapter 4), and Epp (1998). For quantitative analysis of trends in global constitutionalism, see Law and Versteeg (2011). 7. Supreme Court of India Record of Proceedings Writ Petition (Civil) No. 196 of 2001, People’s Union of Civil Liberties v. Union of India & Others (November 5, 2001; November 28, 2001; and May 8, 2002), cited in Gonsalves et al. (2004, 28–32, 33–35). These data, and all other data concerning the PUCL interim orders, come from a data-set constructed by Hertel, based on information from the Office of Supreme Court Commissioners (2011). Not all court decisions, including public interest litigation cases and interim orders, are published and available to researchers. We thus rely on the Office of the Supreme Court Commissioners’ designation of an interim order as substantive. Many interim orders are merely procedural and not of primary interest to this project. 8. For a detailed critique of the Targeted Public Distribution System, see Gonsalves et al. (2004, especially 5–9, 35, 43–44). 9. The Economist (2011) has offered a stinging account of ongoing corruption and inefficiency in the Integrated Child Development Scheme.

REFERENCES Birchfield, Laura, and Jessica Corsi. 2010. “Between Starvation and Globalization: Realizing the Right to Food in India.” Michigan Journal of International Law 31(4):691–764.

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Bob, Clifford. 2005. The Marketing of Rebellion: Media, Insurgents and International Activism. Cambridge: Cambridge University Press. Brooks, Ethel. 2007. Unraveling the Garment Industry: Transnational Organizing and Women’s Work. Minneapolis: University of Minnesota Press. Busby, Joshua A. 2010. Moral Movements and Foreign Policy. New York: Cambridge University Press. Chong, Daniel. 2010. Freedom from Poverty: NGOs and Human Rights Praxis. Philadelphia: University of Pennsylvania Press. Committee on Economic, Social and Cultural Rights (CESCR) of the United Nations. 1990. The Nature of States Parties Obligations (Art. 2. Para. 1): 12/14/1990 CESCR General Comment 3. Fifth Session. . 1999. The Right to Adequate Food (Art. 11): 05/12/1999 E/C.12/1119/5. General Comments. Twentieth session, Geneva, April 26–May 14, 1999, agenda item 7. Constitution of India. 1950 [modified up to December 1, 2007]. http://india.gov.in/mygovernment/constitution-india/constitution-india-full-text. Copp, David. 1992. “The Right to an Adequate Standard of Living: Justice, Autonomy, and the Basic Needs.” Social Philosophy and Policy 9(1):231–61. Deaton, Angus, and Jean Drèze. 2009. “Food and Nutrition in India: Facts and Interpretations.” Economic & Political Weekly 44(7):42–65. Dreze, Jean. 2004. “Democracy and Right to Food.” Economic and Political Weekly 39 (17): 1723–31. The Economist. 2011. “Many Indians Eat Poorly: Would a ‘Right to Food’ Help?” March 31. www.economist.com/node/18485871/. Epp, Charles. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press. FAO. 1996. Rome Declaration on World Food Security and World Food Summit Plan of Action, 13–17 November, Rome, Italy. www.fao.org/docrep/003/w3613e/w3613e00.htm. . 2010. The State of Food Insecurity in the World: Addressing Food Insecurity in Protracted Crisis. Rome: Food and Agriculture Organization of the United Nations. . 2014. FAO Hunger Portal, Food Security Statistics, Table A.2. http://www.fao.org /hunger/en/. . n. d. FAOSTAT Online Statistical Service. http://faostat.fao.org. Feinberg, Joel. 1989. “The Nature and Value of Rights.” In The Philosophy of Human Rights, edited by Morton E. Winston, 61–74. Boston: Wadsworth Publishing Company. Fredman, Sandra. 2008. Human Rights Transformed: Positive Rights and Positive Duties. New York: Oxford University Press. Fukuda-Parr, Sakiko, Terra Lawson-Remer, and Susan Randolph. 2011. SERF Index Methodology: Version 2011.1, Technical Note. www.serfindex.org/wp-content/uploads/2011/02 /Data-Technical-Note.pdf. . 2015. Fulfilling Social and Economic Rights. New York: Oxford University Press. Gauri, Varun. 2010. “Fundamental Rights and Public Interest Litigation in India: Overreaching or Underachieving?” Indian Journal of Law & Economics 1 (1):71–93. Gonsalves, Colin, Vinay Naidoo, P. Ramesh Kumar, and Aparna Bhat, eds. 2004. Right to Food: Commissioners Reports, Supreme Court Orders, NHRC Reports, Articles. New Delhi: Socio-Legal Information Centre.

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Hertel, Shareen. 2006. Unexpected Power: Conflict and Change Among Transnational Activists. Ithaca, NY: Cornell University Press. Jain, M. P. 2000. “The Supreme Court and Fundamental Rights.” In Fifty Years of the Supreme Court of India: Its Grasp and Reach, edited by S. K. Verma and Kusum Kumar, 1–100. Oxford: Oxford University Press. Keck, Margaret, and Kathryn Sikkink. 1998. Activists beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press. Khera, Reetika. 2011. The Battle for Employment Guarantee. Delhi: Oxford University Press. Kothari, Jayna. 2007. “Social Rights Litigation in India: Developments of the Last Decade.” In Exploring Social Rights: Between Theory and Practice, edited by Daphne Barak-Erez and Aeyal M. Gross, 172–92. Oxford: Hart. Law, David S., and Mila S. Versteeg. 2011. “The Evolution and Ideology of Global Constitutionalism.” California Law Review 99(5):1163–1258. http://works.bepress.com/david_law/25. McAdam, Doug, and David A. Snow, eds. 2010. Readings on Social Movements: Origins, Dynamics, and Outcomes. New York: Oxford University Press. Mehta, Pratap Bhanu. 2011. “The Politics of Social Justice.” In India 2011. Delhi: Business Standard. www.cprindia.org/publications/papers/2868-politics-social-justice. Olson , Christine M. 1999. “Nutrition and Health Outcomes Associated with Food Insecurity and Hunger.” Journal of Nutrition 120 (2):521S–524S. Oxford Poverty and Human Development Initiative. 2010. “Oxford University and UNDP Join Forces to Launch a Better Way to Measure Global Poverty.” Press release, July 14. www.ophi.org.uk/news/press-releases/. Ramaseshan, Radhika. 2011. “Food Bill off Chest, Dreze Logs Off.” The Telegraph [Calcutta], June 23. www.telegraphindia.com/1110623/jsp/nation/story_14149557.jsp. Randolph, Susan, Sakiko Fukuda-Parr, and Terra Lawson-Remer. 2010. “Economic and Social Rights Fulfillment Index: Country Scores and Rankings.” Journal of Human Rights 9(3):230–61. Sen, Amartya. 1999. Development as Freedom. New York: Knopf. . 2004. “Elements of a Theory of Human Rights.” Philosophy and Human Affairs 32(4):315–56. Smith, Jackie. 2007. Social Movements for Global Democracy. Baltimore: Johns Hopkins University Press. Srinavasan, Vivek. 2011. “The Politics of PDS Reforms.” Vivek’s Info [weblog], May 26. http:// viveks.info/the-politics-of-pds-reforms. United Nations General Assembly. 1966. International Covenant on Economic, Social and Cultural Rights, 16 December. United Nations Treaty Series, vol. 993, p. 3. Vidar, Margaret. 2006. State Recognition of the Right to Food at the National Level. Research Paper No. 2006/61, United Nations University–World Institute for Development Economics Research. Rome: FAO. World Bank. 2011. Social Protection for a Changing India: Volume 1 of 2. Washington, DC: World Bank. http://documents.worldbank.org/curated/en/2011/01/14087371/socialprotection-changing-india-vol-1–2-executive-summary. Yardley, Jim. 2010. “India Asks, Should Food Be a Right for the Poor?” The New York Times, August 8. www.nytimes.com/2010/08/09/world/asia/09food.html.

APPENDIX National Food Distribution Programs of India Program

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Food Corporation of India

Ensures “effective price support operations for safeguarding the interests of Indian farmers, distribution of foodgrains throughout the country for [the] public distribution system” and satisfactory maintenance of levels of “operational and buffer stocks of foodgrains in order to ensure national food security.” Antyodaya Anna This is another example of a program under the rubric of the Targeted Yojana Public Distribution System. It is designed to ensure that the “poorest of the poor” households below the poverty line are provided food grains. Annapurna Scheme This stop-gap program is designed to ensure that indigent senior citizens 65 years or older who are eligible for the National Old Age Pension Scheme but are not receiving the pension will receive at least 10 kg of foodgrains per person per month, free of cost. National Family Provides lump-sum cash assistance (INR 10,000) to below-poverty-line Benefit Scheme families at death of the primary breadwinner between the age of 18 and 65 years. Payment is made after inquiry with the surviving head of household. Targeted Public Channels the food grains made available to it by the Food Corporation of Distribution System India, along with other essential commodities (such as sugar and kerosene), at subsidized prices, through a network of Fair Price Shops. Mid-Day Meal Scheme Introduced in some states as early as 1995, the scheme involves provision of a cooked lunch free of cost to 50 million schoolchildren throughout the school year and during summer vacation to children in drought-stricken areas. Covers “health care, nutrition and pre-school education of children up to Integrated Child the age of six as well as nutrition of adolescent girls and pregnant and Development nursing women” through “supplementary nutrition, health check-up, Scheme immunization, referral services, and non formal preschool education.” Draws together two previously separate programs centered on rural wage Sampoorna Gramin employment creation and rural infrastructure creation (e.g., roads, Rozgar Yojana bridges, irrigation systems, and public buildings). There is also a food (Food for Work supplement component for people employed under the umbrella of the Program) program, involving distribution of grains provided through the Food Corporation of India. Oversees the import/export, storage, movement, and distribution of food Department of Food grains. Also oversees a food-grain price support system. and Public Distribution National Old Age Food support is available to all poor persons aged 65 years or older through Pension Scheme this program. National Maternity Provides nutritional support to below-poverty-line pregnant and nursing Benefit Scheme mothers. One-time payment of INR 500, roughly 8 to 12 weeks prior to delivery, for each of first two births. To incentivize delivery in clinics, the National Maternity Benefit Scheme and the Janani Suraksha Yojana program merged in 2005. SOURCE: Office of the Supreme Court Commissioners on the Right to Food (www.sccommissioners.org)

Chapter 9

Achieving Rights to Land, Water, and Health in PostApartheid South Africa Heinz Klug

After twenty years of democracy in South Africa the legacies of apartheid, including poverty, unemployment, and limited government capacity, as well as criminal and domestic violence, remain an ever-present reality. In addition, the country is facing new challenges, including a devastating HIV/AIDS pandemic and increasing inequality. While the African National Congress (ANC) government has remained publicly committed to addressing these legacies, continued debate over government priorities and policies has led some activists to stress the constitution’s provision of justiciable socioeconomic rights and the duty of government to promote and fulfill these rights. Increasingly, this has led activists to seek redress in the courts, with the hope of redirecting government policies and resources. The most successful of the new social movements to emerge in the postapartheid era have adopted a multilayered strategy of appeals to government, public mobilization, and diverse legal strategies. This article seeks to explore the achievement of rights, particularly rights to socioeconomic resources, in the context of these different visions and strategies that have framed the ongoing struggles to address the legacies and continuing realities of inequality in post-apartheid South Africa. The vision of human rights contained in the UN’s 1948 Universal Declaration of Human Rights assumes that the human person’s right to dignity is premised on a range of rights that span both the individual and social needs of human society— including political, civil, social, economic, and cultural rights. While that vision was disrupted by the Cold War, there has been a resurgence of the idea of human rights as indivisible, interdependent, and interrelated. This re-emergence of what some see as the New Deal conception of human rights (Borgwardt 2007) has seen 199

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the incorporation of socioeconomic rights into various national constitutions in the post–Cold War era, generating debates over the justiciability, politics, and possible implementation of socioeconomic rights. In order to explore the possibility of rights to essential social resources it is important to trace the re-emergence of socioeconomic rights claims through both the international and local spaces in which these claims are simultaneously evoked and contested. Focusing on South Africa as a particular local context, this chapter compares three rights—to land, to water, and to health—and argues that the forms these rights take are products of both the specifics of each particular resource—the materiality of the right—and the “translation” of global forms (Merry 2006), as well as the “consequence” of local human rights struggles in which law and politics are deeply intertwined. The future of any strategy to address inequality and poverty by creating and enforcing positive rights to social resources depends on our understanding of how these social and economic rights might take root and be implemented within specific societal contexts. The inclusion of justiciable socioeconomic rights in South Africa’s post-apartheid constitutions provides a context within which to compare how different institutions, including the courts, the legislature, and the executive, as well as independent constitutional bodies and NGOs, respond to the recognition of these rights, as opposed to the more traditional civil and political rights. This combination of factors—a democratic transition with the introduction of new rights and continued state reconstruction—provides an opportunity to demonstrate the complex interaction of the different elements identified in the comparative analysis—guided by the mechanisms, actors and pathways (MAPs) framework of Haglund and Aggarwal (2011)—of the possibility of identifying “the sweet spots that promote an iterative dynamic of ‘progressive realization’” (Haglund and Stryker, in the introduction to this book) in creating and sustaining legally enforceable rights to significant social resources. BAC KG R O U N D

Despite an emphasis in the post–Cold War global paradigm on limiting state power and leaving redistributive issues to the market, the South African process of state reconstruction also brought forth particular mechanisms designed to address the legacies of apartheid (Klug 2000). Significantly, the attempt to assert that the country should follow the dominant paradigm by constitutionalizing existing property relations produced a political reaction which led to the inclusion of various mechanisms designed to address the legacy of apartheid, including: constitutional protections for state policies of affirmative action (S. Afr. Const. 1996:s9(2)); provisions for the restitution of land as well as specific protections for land reform (s25(5)-(8)); and also, of key importance to this study, the introduction of socioeconomic rights as justiciable rights within the Bill of Rights (s26, 27, 29—see de Vos 1997).

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In the face of intense critical debate, South Africa’s constitution-makers explicitly rejected the idea that socioeconomic rights should be excluded from the constitution’s protection of fundamental rights or guaranteed merely as aspirational values (Haysom 1992; Davis 1992; Mureinik 1992). Instead, the Constitutional Assembly proceeded to guarantee a number of socioeconomic rights as fundamental rights (education, emergency medical treatment, and access to health care, food, water, and social security) while acknowledging that the full achievement of these and other specified resources (including access to land and housing) could be progressively attained and guaranteed only to the extent that the state’s resources allowed (Liebenberg 1998). This acceptance of justiciable socioeconomic rights, even though subject to explicit internal limitations, shifted the debate in South Africa from questions of recognition to implementation (Liebenberg 2001), including the appropriate role for the judiciary vis-à-vis other branches of government in defining and applying these rights in a context of continuing inequality and widespread poverty (Gutto 1998). While the Constitutional Court has emerged as a champion in overcoming the classic doctrinal distinctions between judicially enforceable “negative” or civil and political rights, on the one hand, and “positive” or socioeconomic rights on the other (Liebenberg 2002, 2003), it is important to consider the different factors and institutions influencing the relative success of each of these rights. Post-Apartheid Government Policies to Address Social and Economic Needs While the ANC’s vision included a broad range of mechanisms for addressing apartheid’s legacy, the basic assumption was that with democracy the people’s representatives would be able to use legislative and budgetary authority to ensure that the historical inequalities would be addressed. This assumption did not take into account the complexities of governance that the post-apartheid state would confront. These complexities included the global political economy of the post–Cold War era, as well as the more mundane issues of bureaucratic inertness, resistance, and incompetence. The limited capacity of the new government to replace senior bureaucrats and policy makers within the state, as well as the temptations of power and wealth that saw the corrupt but formally legal practices of the old regime being replicated in the new government, have also undermined the goals of ANC policy and electoral promises. These issues have had the effect of transforming the nature of the policies and goals of the original vision, even as the government has dramatically extended public services and resources to communities and sections of the population who were explicitly denied equal access under apartheid. The first attempt to take up the challenge of apartheid’s legacies was the ANC’s 1994 election manifesto and the Mandela government’s initial policy of Reconstruction and Development (African National Congress 1994). Though the

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Reconstruction and Development Programme was designed to address the legacies of apartheid, it also represented a change in view from an oppositional stance to that of a government-in-waiting. Significantly, this included a change in emphasis from a focus on rights to that of delivery, development, and democracy. With the demise of the program in 1997 and the shift in emphasis to economic development through the government’s new policy of Growth, Employment, and Redistribution, the government began to focus on a more dispersed set of policy tools, including employment equity and service delivery as the key means of addressing the needs of the majority. Passage of the Employment Equity Act and the Skills Development Act in 1998, as well as the Preferential Procurement Policy Framework Act in 2000, served as a significant bridge between the original constitutional vision of collective action to overcome apartheid’s legacies and a more individualistic understanding of how this might be achieved. While the Employment Equity Act represents an important legislative implementation of the promise of antidiscrimination and affirmative action included in the equality clause of the 1996 constitution, the very nature of the employment relationship means that this would mainly apply at the individual level, even if it has an explicitly group orientation—to benefit those communities which had historically suffered racial discrimination. Significantly, the statute both shifted the burden of proof in cases of discrimination and included robust affirmative action measures “designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer” (s15(1)). Enforcement of the act is also rather robust, including a range of mechanisms from administrative reporting functions and a Commission on Employment Equity, to dispute resolution through the Commission for Conciliation, Mediation and Arbitration, and finally, the Labour Court is given “exclusive jurisdiction to determine any dispute about the interpretation or application of this Act” (s49). After the 1999 election there was another significant shift in focus as the newly elected president, Thabo Mbeki, articulated the idea of an African Renaissance and with it, a more nationalistic orientation in public policy. A significant aspect of this shift was the idea of Black Economic Empowerment (BEE). While the private sector had moved fairly swiftly after 1990 to incorporate a small number of prominent African political and business leaders into the higher echelons of the economic elite (Bridge et al. 2007), the modus operandi of this initial phase of BEE was to rely on corporate social responsibility through the adoption of voluntary codes, charters, and other agreements. As noted in the government’s own self-study of October 2003, Towards a Ten Year Review, progress in extending black ownership of public companies was extremely slow, having grown from 3.9 percent in 1997 to only 9.4 percent in 2002, while control, measured by participation in boards of directors by previously disadvantaged people, had increased slightly, from 1.2 per-

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cent (13 individuals) in 1992 to 13 percent (438 individuals) in 2002 (Presidency 2003, 41–42). As a result, Mbeki’s administration decided to simultaneously expand this initiative and create a legal framework to regulate its implementation. The idea behind the adoption of Broad-Based BEE was to use government procurement and legislative pressure to expand black participation in ownership and control of the economy. Adoption of the Broad-Based Black Economic Empowerment Act in 2003 created a legal framework within which a Black Economic Empowerment Advisory Council, led and appointed by the president, would seek to “promote economic transformation” in order to achieve “a substantial change in the racial composition of ownership and management structures and in the skilled occupations of existing and new enterprises” (BBEE Act 2003, s2(a) and (b)). There is little doubt that this legislation has had a profound effect on the South African economy. It has however served primarily as a key driver of corporate merger and acquisition activity, which, according to a report by the Moody’s rating agency, accounted for R200 billion of business transactions in the decade between 1998 and 2008. Success in the boardrooms did not however stem a growing criticism of BEE from both within and outside the ANC. While its supporters have justified it as a form of stakeholder capitalism and argued that it has had a positive effect beyond the small elite who have so visibly benefitted from “empowerment deals,” there has been growing criticism from within the ANC and its allies, who have argued along with a number of academics that it is “more likely to blur the boundaries of race and class than to propel South African capitalism in a more inclusive, accountable and equalizing direction” (Southall 2006). The election of Jacob Zuma and the restructuring of the cabinet to emphasize a new commitment to job creation and rural development, in conformity with the decisions of the ANC’s national conference in December 2007, introduced another shift in the effort to address the legacy of inequality. Appointing a second minister in the presidency to head the newly created National Planning Commission would, according to President Zuma (2009), allow for a strategic planning process “for the country to ensure one National Plan to which all spheres of government would adhere,” and enable the government “to take a more comprehensive view of socio-economic development in the country.” At the same time, the government has continued to insist that delivery of public services through local government remains the primary vector through which development will take place. Even in the face of another surge in local protests against the failure of local government, including demands to abolish the provinces and for direct national intervention, the government has continued to emphasize the importance of local government. Addressing Inequality through the Delivery of Public Services Despite an extended process of negotiations over the form and structure of local government, the ANC has embraced the idea that the implementation of its

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redistributive policies is best achieved through the improved delivery of public services—whether in the form of new housing, water, electricity, or employment opportunities. Along with the restructuring of local government there has been the introduction of systems of governance based on the creation of ward committees, local development plans, and other ways to ensure local participation in development. While local government has been the source of the greatest amount of patronage, corruption, and incompetence, local activists and politicians often experience political engagement as an entrée to the power and economic opportunities they have long been denied. This has at times created enormous tensions between local officials and communities in desperate need of resources to address the vast infrastructural, social, and economic problems that underlie the entrenched poverty of so many South African communities. As a result, a whole range of new social movements have emerged, challenging local authorities and questioning the assumptions of many of the institutions and legal requirements that both rely on local government and assume that development and democracy are intimately entwined. The massive spatial restructuring that completed the final phase of local government transformation before the 2000 local government elections produced a dramatically new landscape of local governance around the country. The new system of local governance would, according to government policy laid out in the 1998 White Paper on Local Government by the Department of Cooperative Government and Traditional Affairs, initiate an era of developmental local government which would both address the legacies of apartheid and ensure local democratic participation and economic development. While the white paper “made consultation a central pillar of democracy within local government” (Khosa 2005, 139), concerns over corruption and the capacity of local government to deliver services and restructure the spatial legacies of apartheid have produced a centralizing dynamic—described as “centralized decentralization” or “joined-up government” (Harrison 2006, 186–207; Freund 2006, 303–332)—in which public involvement is expected to drive local governance and yet local initiatives are expected to conform to a nationally constructed framework of policies and standards which guarantee the goals of service delivery, development, and participation. The best example of this dynamic is the combination of community participation in the integrated development planning exercises required by the Municipal Systems Act of 2000 and the introduction of the most cutting-edge notions of performance management in chapter 6 of the same statute. While the transformation of local government has been profound, the extraordinary levels of inequality both between and within municipalities (Makgetla 2007, 146–67) have produced an uneven landscape in which contestation over resources, unfulfilled expectations, and governance failures are reflected in ongoing, and at times violent, protests over service delivery and other issues. Local

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protests increased after the 2004 national elections, growing to a crescendo of around 6,000 in 2006 (Letsholo 2006, 6), and have continued sporadically since then. While these forms of public resistance are clear evidence of local anger and disenchantment with ineffective delivery or unpopular government decisions— such as the redrawing of municipal and provincial boundaries—the vast majority of municipalities have been engaged in a protracted process of transformation, with decidedly mixed results. Analysts have identified three underlying problems that they argue are the main causes of public anger: “ineffectiveness in service delivery, the poor responsiveness of municipalities to citizen’s grievances, and the conspicuous consumption entailed by a culture of self-enrichment on the part of municipal councillors and staff ” (Atkinson 2007, 53). If public protest is the consequence of a range of municipal problems, continuing electoral support for the ANC reflects the complex relationship between local frustrations and the belief that government remains the most reliable source of development for local communities. The problems of local government are compounded by both the scale of the needs of the nearly 30 million poor people in the country and the managerial and other problems within municipalities (Hemson, Carter, and Karuri-Sebina 2009, 151–77). Even as the national government distributes an increasing share of the budget through local government, the transformation of local government, with its accompanying loss of experienced managers and the emergence of “an organizational culture of incompetence and nepotism” (Atkinson 2007, 62), provides the context in which these new institutions are being shaped. At the same time, the attempt to facilitate public participation through ward committees has been coopted in many cases by dominant local politicians or undermined by the national deployment of senior municipal officials—such as executive mayors—who are thus less accountable to the local citizenry. As a result, it has been argued that “open debate, the cornerstone of participatory democracy,” has not taken place in a meaningful way at the local government level (65), undermining efforts to achieve the goals of democratic participation, service delivery, and economic development so central to the role of local government envisioned in the constitution. G UA R A N T E E I N G AC C E S S T O L A N D, WAT E R , A N D H E A LT H

While the apartheid government insisted in constitutional negotiations that property rights be recognized (Republic of South Africa 1993) and included in the “interim” constitution (du Plessis and Corder 1994, 182–84), the ANC insisted that the property clause not be allowed to frustrate efforts to address land claims (Constitutional Committee 1993, Art. 13). Fearing that their rights to land, long denied

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and actively destroyed by the apartheid regime, would be shut out by the constitutional recognition of existing property rights, communities active in the return-tothe-land movement threatened to reoccupy land from which they had been removed by the apartheid government and called for the rejection of the proposed property clause in the constitution (Hadland 1993). Answering these demands and conflicts, the “interim” 1993 constitution provided a separate institutional basis for land restitution, which was guaranteed in the corrective-action provisions of the equality clause (S. Af. Const. 1993: s8(3)(b)), and compromised on the question of compensation by including a range of factors the courts would have to consider in determining just and equitable compensation (s28(3)). It was under this constitutional regime that Mandela’s government and South Africa’s first democratic parliament began to address land claims. The 1993 constitution provided for the establishment of a land claims process, leading Parliament to pass the Restitution of Land Claims Act in 1994 (Klug 1996). While it was assumed that there would be very little change in the constitution during the second phase of the constitution-making process, particularly on such sensitive issues as the property clause (Ebrahim 1998), a workshop on land rights and the constitution organized by a subcommittee of the Constitutional Assembly once again raised the problem of property rights in the constitution (Constitutional Assembly 1995a, 1995b, 1995c). While some participants continued to question whether there should be any property protection within the “final” Constitution, the participants in the workshop—even those representing long-established interests like the National Party and the South African Agricultural Union— agreed on the need “to rectify past wrongs.” In this context an alternative option— a property clause including within it specific rights to land, as well as a subclause insulating land reform from constitutional attack—was adopted. The final property clause not only guarantees the restitution of land taken after 1913 (S. Af. Const. 1996: s25(7)) and a right to legally secure tenure for those whose tenure is insecure as a result of racially discriminatory laws or practices (s25(6)), but also includes an obligation on the state to enable citizens to gain access to land on an equitable basis (s25(5)). Furthermore, the state is granted a limited exemption from the protective provisions of the property clause so as to empower it to undertake land reform (s25(8)). Unlike the issue of land, the question of access to water was not driven by an established social movement linked to the anti-apartheid struggle. However, given the historic legal link—under the doctrine of riparian rights—between water rights and landholding in the common law, it was soon recognized that the allocation of water rights would be affected by the introduction of land reform and the general terms of the property clause contained in the “final” constitution (Klug 1997). This recognition was tangentially reflected in the affirmative action–type exception clause in the constitution, which was designed to prevent land redistri-

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bution from becoming bogged down in legal challenges. This clause, which states in part that “no provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination” (s25(8)), both insulates land redistribution programs from constitutional attack and provides a basis for water law reform. The explicit inclusion of a reference to water reform may have provided a constitutional justification, but gave no indication of any explicit process or direction for the reallocation of water rights. However, when interpreted as providing a type of constitutional insulation similar to that provided by the affirmative action clause in relation to the constitutional guarantee of equality and equal treatment, it served as a basis for government policies designed to encourage the reallocation of particular rights to particular beneficiaries. In order to implement these policies the government initiated a process of statutory reform aimed at designing a new water law (see the Water Services Act of 1997 and the National Water Act of 1998). This process began with the creation of a set of principles negotiated among the various stakeholders and adopted by the government (Department of Water Affairs and Forestry 1997). These then provided a basis for a statutory reform process which established administrative and regulatory processes to determine the true extent of existing rights and to reallocate unused rights and water to meet the demands of other beneficial users—whether individuals, communities, or the environment. Thus, within the constitutional framework provided by the 1996 constitution, it became possible both to recognize existing beneficially deployed water rights and to provide a means to redefine recognized rights according to specific criteria of beneficial use and the public interest. Most significant, from the perspective of socioeconomic rights, was the inclusion in the new water law of the idea of the allocation of a portion of the resource as a reserve, to guarantee basic human needs and the aquatic environment, as well as the process of implementation, in which the government has adopted a policy to provide 6,000 liters of safe water per household per month as free basic water (see e.g. Department of Water Affairs and Forestry 2001). In comparison to access to water, in which the government led the process of legal reform so as to protect the public interest in the resource, access to health care produced much greater tension. The decision of the courts requiring the government to provide the antiretroviral drug Nevirapine to HIV-positive women in childbirth and to their newborn babies reflected this conflict and marked an important step in the development of a socioeconomic rights jurisprudence. In the TAC case (Minister of Health v. Treatment Action Campaign, 2002), in which the newly emergent social movement of HIV/AIDS activists took the government to court demanding access to life-saving medicines for pregnant mothers and their newborn babies, the courts broke important new ground in their attempts to

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define the content of the right to health care, especially as compared to the earlier Soobramoney case (Soobramoney v. Minister of Health, KwaZulu-Natal, 1998), and gave further definition to the obligations of the government to implement the socioeconomic rights promised in the constitution (Klug 2002; Bilchitz 2003). Socioeconomic Rights in the Courts The Constitutional Court’s socioeconomic rights jurisprudence has coalesced around a standard of reasonableness. While the standard of reasonableness is clearly drawn from the language of the socioeconomic rights clauses of the constitution, which explicitly frame the state’s positive obligations in terms of a duty to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realization” (Article 26(2) [Housing]; Article 27(2) [Health care, food, water and social security]) of the particular right, the court has held that both the legislative scheme and the implementation of any measures adopted by the government must be reasonable (Government of the Republic of South Africa and Others v. Grootboom and Others, 2001, paras 41 and 42). Although the court states clearly in its Grootboom decision that it will grant wide discretion to both the legislature and the executive when it comes to the means they adopt to achieve these goals (para 41), the government still has a burden to justify its decisions, and the court has demonstrated its willingness to scrutinize and even reject the government’s approach if the court finds it to be unreasonable—as was the case in the TAC case. Even as the court has incorporated other approaches within its analysis of socioeconomic rights, as in Khosa, in which noncitizen permanent residents challenged the denial of social welfare benefits, and the court adopted an analysis of intersecting rights that brought together the court’s concerns for equality and access to social resources, the court’s ongoing reliance on a form of reasonableness review in this area has continued to draw critical concern (Davis 2006). The response of some academic critics as well as activist or public interest lawyers has been to call upon the court to adopt an approach to socioeconomic rights similar to the United Nations Committee on Economic, Social and Cultural Rights, which monitors state compliance with the International Covenant on Economic, Social and Cultural Rights of 1966. In its General Comment 3 on the nature of the member state’s obligations under the covenant, the committee has advocated for a “minimum core” approach, which would require states to achieve “minimum essential levels” of these rights (Bilchitz 2007: 183–87). While the Constitutional Court in South Africa has made clear its resistance to these calls to define the “minimum core” of these rights in the constitution, this rejection was initially framed in terms of the availability of contextual evidence and not as a matter of principle (Grootboom, paras 32 and 33). As a result, activists continued to assert that the inclusion of these rights in the constitution would be meaningless unless they supported some substantive content. When Judge Tsoka of the South

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Gauteng High Court struck down Johannesburg’s policy of installing prepaid water meters in Phiri, Soweto, and issued an order in April 2008 requiring the city to provide residents with 50 liters of free basic water supply per person per day, it seemed as if the idea of a minimum core had finally been accepted (Mazibuko, 2008). When the Supreme Court of Appeals essentially upheld Judge Tsoka’s decision, while reducing the minimum supply of free water to 42 liters, and the city of Johannesburg appealed to the Constitutional Court, the question of whether the right to water required the supply of a specific minimum amount was placed squarely before the court. In an opinion that greatly disappointed many activists and which demonstrates the limits of a rights strategy that relies simply on constitutional litigation, the Constitutional Court overturned the lower court decisions and found that the “City’s Free Basic Water policy falls within the bounds of reasonableness and therefore is not in conflict with either section 27 of the Constitution or with the national legislation regulating water services” (Mazibuko, 2009, para 9). In response to the argument that the court should quantify “the amount of water sufficient for dignified life” (para 51), Justice O’Regan pointed out that the court had previously “rejected the argument that the social and economic rights in our Constitution contain a minimum core” (para 53) and reaffirmed this stance on the basis of two arguments. These were, first, that the “text of the Constitution” requires that sections 27(1) and (2) be read together in order to “delineate the scope of the [state’s] positive obligation to provide access to sufficient water”—making the content of the right dependent upon the state’s reasonable efforts to progressively realize the right—and, second, “from an understanding of the proper role of courts in our constitutional democracy” (para 57). Emphasizing the centrality of context to the court’s approach, Justice O’Regan concluded (para 60) that “what the right requires will vary over time and context. Fixing a quantified content might, in a rigid and counter-productive manner, prevent an analysis of context. The concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government programme is indeed reasonable.” T H E R O L E O F S O C IA L - M OV E M E N T AC T I V I SM

In April 2004, ten years after South Africa’s historic democratic election and shortly before the country’s third national election, there was an extraordinary public meeting in the Johannesburg City Hall. The Treatment Action Campaign (TAC) organized the meeting as part of a country-wide campaign calling on the government to implement the national executive’s 2003 decision to provide antiretroviral treatment to HIV-positive patients in the public health service whose T-cell count had dropped below 200 (a level indicating vulnerability to opportunistic infections and one of the criteria for an AIDS diagnosis). The TAC

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had earlier succeeded in its Constitutional Court challenge demanding that the government extend its program to prevent mother-to-child transmission to all public health institutions with the medical capacity to provide the treatment and beyond the eighteen established government test sites. The campaign to pressure the government to more effectively address the national HIV/AIDS pandemic had led to a cabinet decision to roll out antiretroviral treatment in the public sector, yet in early 2004 there was little evidence that the government was moving to implement this policy. Now the TAC was mounting a national campaign, focused on the provincial governments and their departments of health, who are the front-line institutions in the health sector. Attending the meeting in the City Hall, I was struck by both the tactics of the TAC and the response of the Gauteng provincial government, which was represented by both its premier, Sam Shilowa, former secretary-general of the Congress of South African Trade Unions (COSATU) and the executive member responsible for health in the provincial government. The Johannesburg City Hall, in all its ornate colonial splendor, echoed with the stomping feet and chants of hundreds of toyi-toying HIV-positive TAC activists.1 For those old enough to have come of age in the anti-apartheid movement, including all the government officials and community leaders sitting on the stage, the meeting had all the resonances of the struggle against apartheid. Yet the demonstrators also reflected a fundamental change in the politics, strategies, and tactics of the TAC, the most effective of the new post-apartheid social movements. Instead of merely denouncing a bad government policy and demanding access to antiretroviral treatment in the public health services, the TAC leadership, its activists, and its supporters continually reminded the government officials present, as well as the world, that they were loyal ANC members who would shortly be going to the polls to vote for the ANC, as well as constituents whose needs the government had a duty to address. While the meeting began with the showing of a short video documenting the TAC’s protests against the government and pharmaceutical industry, the TAC speaker, as well as the organization’s members who went to the stage to talk about living with HIV and AIDS, constantly emphasized either their own histories as anti-apartheid activists or their continuing loyalty to the ANC, despite the government’s failure to adequately address the HIV/AIDS pandemic. The trade-union speaker, in particular, spoke of having just rushed over from a meeting of the COSATU central committee, which had just decided to call upon the government to provide antiretrovirals to HIV-positive patients in the public health sector. It was at this point that the TAC invited the provincial government officials present to address the gathering. Although it had been previously announced that the provincial executive member in charge of the health portfolio would be speaking, the provincial premier insisted on taking her place. Standing up before the chanting crowd, premier Sam Shilowa announced that he was prepared to meet with representatives of the TAC that same afternoon and was com-

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mitted to ensuring that the provincial government would begin to roll out antiretroviral treatment in the provincial hospitals regardless of the status of the promised national plan. He added that if necessary he would use existing provincial funds until such time as the national government managed to secure the needed medicines as part of its own program. This announcement and the subsequent implementation of the provincial roll-out was a dramatic breakthrough for the TAC. Not only was it possible for Gauteng, the richest and most organized of the provincial governments, to actually follow through on its promise, but this would break the resistance of the National Department of Health, which had been tardy in its implementation of the national policy. Demonstrating that it was possible to begin the roll-out at the provincial level, the TAC was able to indicate its own willingness to assist with the roll-out and to justify its continuing support of the ANC despite its rather sharp differences and ongoing conflict with the national minister of health. The success of this campaign was premised on a holistic vision of the role constitutionally guaranteed rights might play in securing access to basic resources such as health care. First, the TAC had already mounted a successful constitutional challenge to the government’s failure to provide broad access to antiretroviral treatment designed to prevent or limit mother-to-child transmission of HIV/ AIDS. Second, instead of merely asserting a constitutional right to a broader treatment regime in the public health sector, the TAC recognized that there were limits to what could be achieved in asserting a right to health before the courts. Third, the TAC now employed a multifaceted strategy of both political mobilization and legal action focused on addressing the high price of medicines. In this regard, the Aids Law Center, which did most of the legal support work on behalf of the TAC, lodged a complaint before the country’s newly energized Competition Commission, challenging the monopoly pricing practices of the major pharmaceutical companies active in the South African market. Finally, by switching from a legal strategy to a political strategy, timed with the approaching national elections, the TAC was able to take into account the relative capacities of the different regions of the country and to use its own strength and the capacity of the Gauteng provincial government and health services to initiate the implementation of the national rollout policy to which the national government was formally committed. This both provided a demonstration effect for other provinces and isolated the resistance of the national minister of health, who had remained opposed to the extensive provision of antiretroviral treatment in the public sector. If in the first instance activists and their lawyers asserted constitutional rights and relied upon the Constitutional Court to essentially impose an obligation on the state to provide mothers and newborns in public health facilities access to Nevirapine or other available medication to prevent mother-to-child-transmission of HIV/AIDS, in the second instance these same parties turned to a different

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process and legal resource—the Competition Commission—to bring down the prices of drugs for all those in need of antiretroviral and related treatments. In the TAC case the social movement relied on the constitutional guarantee of a right to the progressive realization of access to health care services and persuaded the Constitutional Court to hold that under the circumstances, in which the cost of the drug and the provision of appropriate testing and counseling to mothers was less burdensome than the failure to provide Nevirapine, the government had a constitutional duty to expand its program beyond the eighteen test sites the health authorities had already planned. In the second case the TAC, pursuing its aim to lower drug prices and thus expand access to antiretroviral treatment, launched a complaint with the newly created Competition Commission against two of the major pharmaceutical corporations active in South Africa—GlaxoSmithKline and Boehringer Ingelheim—accusing them of engaging in excessive pricing of medicines. After the commission found that the companies had colluded to fix prices, the companies reached an out-of-court settlement with the government which included granting at least three generic pharmaceutical companies voluntary licenses on three major antiretrovirals, thus allowing more competition into the market and lowering the price of the drugs in the South African market. C O N C LU S I O N

The legal recognition of these particular rights allows us to explore a comparative approach to understanding the emergence of particular socioeconomic rights. In the case of land, a history of dispossession and resistance places the recognition of the right to restitution, redistribution, and access within a particular constitutional and institutional context. Water, in contrast, received only passing constitutional recognition yet was taken up by the new government as a major area of statutory reform, in which the legal status of the resource was fundamentally transformed. Finally, the explicit recognition of a right to health, even framed as a limited-access right, has been completely transformed by the HIV/AIDS pandemic and the emergence of a new social movement driven by the need to gain access to affordable life-saving medicines. Thus, each of these legally constituted social resources— land, water, and health—have distinct characteristics, which range from the obvious physical and economic differences they exhibit to the degree of legal recognition and conflict which reflect their specific legal and social histories. It is these distinct characteristics and the particular form of their recognition in the law that provide the interactions that a MAPs-guided comparative analysis allows us to explore. The first of these interactions is the particular institutional context. In the case of land, the transitional constitution and the legislation enacted to give it effect created a specific instructional structure and process, with regional land commis-

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sions and a specialized Land Court at its apex, through which the rights were to be claimed. Rights to water, on the other hand, were thought to be well settled until the process of statutory reform produced a completely new legal structure within which the basic constitutional claims were embedded. This new structure did away with the formal role of the previous water courts in the allocation of water rights and shifted the institutional basis of the right into the administrative arena. In comparison, the conflict over access to affordable HIV/AIDS treatment has engulfed both domestic and international arenas, the courts, trade negotiators, and the Department of Health. It was only with the government’s recognition of the need to provide antiretrovirals that the institutional basis for the right shifted from the courts to the Department of Health and the NGOs that are seeking to assist in implementation of the program. The second of these interactions is the social contexts within which these rights have emerged. For each of these rights there is a significantly different sectoral and social history as well as conflict. In the case of land, claims for restitution and redistribution had long been part of the struggle against forced removals under apartheid and had been incorporated within the basic creed of the anti-apartheid movement. Furthermore, there existed a long history of resistance to removals which transformed itself, as part of the anti-apartheid struggle, into the return-tothe-land movement as the democratic transition got under way. In the case of water, there was no social movement or history of struggle focused solely on water; rather, access to water was implicitly linked to the broader question of community development, housing, and so on. It was only after the new government came to power that the issue of water was raised as a major area of legal reform. Instead of pressure from a social movement, water law reform was initiated by the minister of water and forestry, Kader Asmal, who, as a former professor of human rights and international law, transformed a debate over resource management into a question of denial and access. It was very much later that a new social movement, in the form of the Anti-Privatisation Forum, attempted to mobilize communities and brought suit against the government claiming a constitutional right to a minimum amount of free basic water. The right to health, by comparison, was recognized in the constitution, and its implementation—in the form of free health care for children and mothers—was one of Nelson Mandela’s first acts as the first democratically elected president of South Africa. However, its further implementation soon ran into the problem of scarcity, and the courts responded by declaring that medical decisions rather than legal rights would determine who was to have access to the limited resources available (see Soobramoney). But this solution could not withstand the pressures unleashed by the growing HIV/AIDS pandemic in the country. As the pandemic exploded, the right to health, and in particular the issue of access to life-prolonging antiretroviral treatment, produced South Africa’s first new post-apartheid social movement, in the form of the Treatment Action

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Campaign and National Association of People Living with HIV/AIDS, which together have transformed the social context in which the right to health is being implemented. The third interaction involves the legal context within which these different rights have been formed, interpreted, and implemented. Each of these social resources has a completely different legal history, in terms of both doctrine and application. While land rights and their denial have a long and highly politicized history in the South African context, water has historically been treated as an apolitical legal adjunct to the ownership of land. However, given the scarcity of water in the country, water rights were highly contested among landowners, leading to the creation of special water courts and a distinct water law jurisprudence. The common law basis of water rights was however transformed in the mid-twentieth century through statutory codification. It would be this context that provided the opportunity for dramatic legal change in the post-apartheid period. The provision of health care—in contrast to the property rights which underlie access to land or even the statutory provisions of the water law—was historically a purely administrative function allocated primarily to the provincial administrations and fragmented under the apartheid state’s “homelands” policy. In addition to the gross inequalities explicit in the apartheid government’s provision of health care along racial lines, access to care was determined by the available resources provided in the government budget or through the private market. Access to health care in this context provides a nearly classic example of the introduction of a socioeconomic right, one in which a legal right is placed into a realm in which the state has traditionally made a political decision based on a calculation of public health needs, available resources, and political viability. Comparing the legal and social histories of these three social resources along these different lines of interaction provides insights into the legal evolution and possibly successful institutionalization of these socioeconomic rights. Variations in the degree of institutionalization of each of these rights is related in this analysis to a number of specific factors, including both the social histories and legal trajectories of these particular rights as well as the physical attributes—location, material, and organizational factors—that are characteristic of the particular resources involved. Understanding the role of these different factors in the emergence and institutionalization of these rights might enable us to imagine different paths through which to promote access to these and other essential social resources. NOTE 1. The toyi-toyi was the name given to a particular high-stepping marching body movement displayed by young activists in demonstrations and marches against apartheid as well as at the funerals of activists and leaders during the anti-apartheid struggle.

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REFERENCES African National Congress. 1994. The Reconstruction and Development Programme: A Policy Framework. Johannesburg: Umanyano. Atkinson, Doreen. 2007. “Taking to the Streets: Has Developmental Local Government Failed in South Africa?” In State of the Nation: South Africa 2007, edited by Sakhela Buhlungu, John Daniel, Roger Southall, and Jessica Lutchman), 53–77. Pretoria: Human Sciences Research Council Press. Bilchitz, David. 2003. “South Africa: Right to Health and Access to HIV/AIDS drug treatment.” International Journal of Constitutional Law 1(3):524–34. . 2007. Poverty and Fundamental Rights: The Justification and Enforcement of SocioEconomic Rights. Oxford: Oxford University Press. Borgwardt, Elizabeth. 2007. A New Deal for the World: America’s Vision for Human Rights. Cambridge, MA: Harvard University Press. Bridge, Sherilee, Sylvia Clow-Wilson, Taryn Mackay, Jackie Serrao, and Chia-Chao Wu. 2007. Trailblazers: South Africa’s Champions of Change. Johannesburg: Double-Story Books. Constitutional Committee, 1993. ANC Draft Bill of Rights: Preliminary Revised Version (February). African National Congress. Bellville: University of the Western Cape. Davis, Dennis. 1992. “The Case against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles.” South African journal on Human Rights 8:475–90. . 2006. “Adjudicating the Socio-Economic Rights in the South African Constitution: Towards ‘Deference Lite’?” South African Journal on Human Rights 22:301–27. de Vos, Pierre, 1997. “Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution.” South African Journal on Human Rights 13:67–101. Department of Water Affairs and Forestry. 1997. Fundamental Principles and Objectives for a New Water Law in South Africa. www.dwaf.gov.za/documents/legislature/waterlaw .html. . 2001. Free Basic Water, Implementation Strategy Document, Version 1, May. Chief Directorate, Water Services, Pretoria. www.ircwash.org/resources/free-basic-waterimplementation-strategy-document. du Plessis, Lourens, and Hugh Corder. 1994. Understanding South Africa’s Transitional Bill of Rights. South Africa: Kenwyn. Ebrahim, Hassen. 1998. The Soul of a Nation: Constitution-Making in South Africa. Cape Town: Oxford University Press. Freund, Bill. 2006. “The State of South Africa’s Cities.” In State of the Nation: South Africa 2005–2006. edited by Sakhela Buhlungu, John Daniel, Roger Southall, and Jessica Lutchman, 303–332. Pretoria: Human Sciences Research Council Press. Gutto, Shadrack B. O. 1998. “Beyond Justiciability: Challenges of Implementing/Enforcing Socio-Economic Rights in South Africa.” Buffalo Human Rights Law Review 4:79–102. Hadland, Adrian. 1993. “Demonstrators Hand Govt Land Ultimatum.” Business Day, September 2. Haglund, LaDawn, and Rimjhim Aggarwal. 2011. “Test of Our Progress: The Translation of Economic and Social Rights Norms into Practice.” Journal of Human Rights 10:1–27.

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Harrison, Philip. 2006. “Integrated Development Plans and Third Way Politics.” In Democracy and Delivery: Urban Policy in South Africa, edited by Udesh Pillay, Richard Tomlinson, and Jacques du Toit, 186–207. Pretoria: Human Sciences Research Council Press. Haysom, Nicholas. 1992. “Constitutionalism, Majoritarian Democracy and Socio-economic Rights.” South African Journal on Human Rights 8:451–63. Hemson, David, Jonathan Carter, and Geci Karuri-Sebina. 2009. “Service Delivery as a Measure of Change: State Capacity and Development.” In State of the Nation: South Africa 2008, edited by Peter Kagwanja and Kwandiwe Kondlo. Pretoria: Human Sciences Research Council Press. Khosa, Meshack M. 2005. “Participation and Democracy.” In Democracy in the Time of Mbeki, edited by Richard Calland and Paul Graham, 121–48. Cape Town: IDASA. Klug, Heinz. 1996. “Historical Claims and the Right to Restitution.” In Agricultural Land Reform in South Africa: Policies, Markets and Mechanisms, edited by Johan Van Zyl, Johann Kirsten, and Hans P. Binswanger, 390–412. Oxford University Press. . 1997. “Water Law Reform under the New Constitution.” Human Rights and Constitutional Law Journal of South Africa 1(5):5–10. . 2000. Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction. Cambridge: Cambridge University Press. . 2002. “Access to Health Care: Judging Implementation in the Context of AIDS: Treatment Action Campaign v Minister of Health TPD 21182/2001 (unreported).” South African Journal on Human Rights 18:114–24. Letsholo, Sydney. 2006. Democratic Local Government Elections in South Africa: A Critical Review. Occasional Paper No. 42 , Electoral Institute for Sustainable Democracy in Africa. Liebenberg, Sandra. 1998. “Socio-Economic Rights.” In Constitutional Law of South Africa, edited by Matthew Chaskalson et al., chapter 41 (Revision Service 3). Cape Town: Juta. . 2001. “Violations of Socio-Economic Rights: The Role of the South African Human Rights Commission.” In The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law, edited by Penelope Andrews and Stephan Ellmann, 405–43. Johannesburg: Witwatersrand University Press. . 2002. South Africa’s Evolving Jurisprudence on Socio-Economic Rights. Socio-Economic Rights Project, Community Law Centre, University of the Western Cape. . 2003. “The Interpretation of Socio-Economic Rights.” In Constitutional Law of South Africa, edited by Matthew Chaskalson et al., 2nd ed., chapter 33. Original service. Cape Town: Juta. Makgetla, Neva Seidman. 2007. “Local Government Budgets and Development: A Tale of Two Towns.” In State of the Nation: South Africa 2007, edited by Sakhela Buhlungu, John Daniel, Roger Southall, and Jessica Lutchman, 146–67. Pretoria: Human Sciences Research Council Press. Merry, Sally Engle. 2006. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press. Mureinik, Etienne. 1992. “Beyond a Charter of Luxuries: Economic Rights in the Constitution.” South African Journal on Human Rights 8:464–74. Policy Co-ordination and Advisory Services. 2003. Towards A Ten Year Review: Synthesis Report on Implementation of Government Programmes, discussion document, October. The Presidency [Office of the President, South Africa].

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Republic of South Africa. 1993. Government’s Proposals on a Charter of Fundamental Rights, February 2. Cape Town: Creda Press. Roger Southall. 2006. “Black Empowerment and Limits to a More Democratic Capitalism.” In State of the Nation: South Africa 2005–2006, edited by Sakhela Buhlungu, John Daniel, Roger Southall, and Jessica Lutchman, 175–201. Pretoria: Human Sciences Research Council Press. Zuma, Jacob. 2009. Statement by President Jacob Zuma on the Appointment of the New Cabinet, May 10. Hatfield: Government Communication and Information System. www .gov.za.

Cases Government of the Republic of South Africa and others v. Grootboom and others, 2001 (1) SA 46 (CC). Khosa v. Minister of Social development; Mahlaule v. Minister of Social development, 2004 (6) SA 505 (CC). Mazibuko and others v. City of Johannesburg and others (Centre on Housing Rights and Evictions as amicus curiae) (2008) 4 SA 471 (W). Mazibuko and others v. City of Johannesburg et al., CCT 39/09, 2009 ZACC 28, decided October 8, 2009 (CC). Minister of Health v. Treatment Action Campaign, 2002 (5) South African Law Reports 721 (CC). Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) South African Law Reports 765 (CC). Treatment Action Campaign v. Minister of Health (TPD Case Number 21182/2001, unreported, per Botha J.)

Constitutional Documents and Legislation Broad-Based Black Economic Empowerment Act, 53 of 2003. Constitution of the Republic of South Africa, Act 200 of 1993. Constitution of the Republic of South Africa, Act 108 of 1996. Constitutional Assembly, 1995. Theme Committee 4, Draft Bill of Rights, October 9, 1995. Constitutional Assembly, 1995a. Constitutional Committee Sub-Committee: Documentation: Land Rights, October 9, 1995. Constitutional Assembly, 1995b. Theme Committee 6.3: Specialised Structures of Government: Land Rights, Documentation September 11, 1995. Constitutional Assembly, 1995c. Theme Committee 6.3: Specialised Structures of Government: Documentation Volume 2A: Land Rights, September 15, 1995. Employment Equity Act, 55 of 1998. Preferential Procurement Policy Framework Act, 5 of 2000. National Water Act, 36 of 1998. Restitution of Land Claims Act, 22 of 1994. Skills Development Act, 97 of 1998. Water Services Act, 108 of 1997.

Chapter 10

Social Accountability in the World Bank How Does It Overlap with Human Rights? Hans-Otto Sano

Social accountability and demand-led governance have entered into the vocabulary of international development. While Nordic and German donors, for instance, are not devoting a lot of systematic attention to an approach based on social accountability,1 others, such as the Department for International Development (DFID) of the United Kingdom, are paying stronger attention to social accountability approaches.2 However, where this concept has really flourished in an applied form is in the World Bank. As of October 2012, the World Bank database on Social Accountability and Demand for Good Governance includes 762 projects and activities worldwide. Of these 762 projects, 441 were linked to the World Bank as projects, as projects where the Bank was also involved, as manuals, or as studies analyzing activities of the Bank.3 In addition, a number of books, reports, and studies have been published by the World Bank on the subject, including Public Affairs Foundation, Sirker, and Cosic (2007), Caddy, Peixoto, and McNeil (2007), McNeil and Malena (2010), Devarajan, Khemani, and Walton (2011), and Ringold et al. (2012). This chapter argues that there are marked convergences between social accountability approaches and a human rights–based approach. However, distinctions also prevail. Analyzing social accountability approaches therefore raises the question of how development and human rights approaches are distinct and yet overlapping. Questions can also be raised about methodological and normative pluralism. In addition, the World Bank is traditionally cautious when it comes to The findings, interpretations, and conclusions expressed in this chapter are entirely those of the author. They do not necessarily represent the views of the World Bank and its affiliated organizations, or those of the executive directors of the World Bank or the governments they represent.

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allowing civil and political rights in particular, and human rights generally, to influence its operational policies, in view of the economic mandate of the Bank.4 However, the integration of social accountability may invite and base itself on a number of instruments which presuppose the existence of civil and political rights and which draw on measures of advocacy and accountability that resemble rightsbased strategies to the point of close affinity. The chapter examines the evolution and potential impact of social accountability strategies, their resemblance and distinctiveness in comparison with human rights–based approaches, and their potential impact in terms of contributing to social rights in particular. In exploring these accountability strategies, the chapter examines the implications of direct exchanges and dialogues between citizens and service providers in forms of interactions which are often project-based or based in the local context. These exchanges may occur without the intermediary involvement of civil society groups and oversight agencies, otherwise often employed in human rights–based work, as seen in figure 1 in the introduction to this volume. They offer a type of interaction between citizens and service providers that can be more direct and local than the ones discussed in the introduction, where exchange is mediated through civil society groups or oversight agencies. Although direct exchanges and dialogues may not contribute to norm transformations or structural change—these are grand perspectives—they may nonetheless contribute to the fulfillment of social rights in daily life. T H E EVO LU T IO N O F S O C IA L AC C OU N TA B I L I T Y I N T H E WO R L D BA N K

Social accountability is defined as “actions and mechanisms that enable citizens to hold governments and service providers accountable and make them responsive to their needs.”5 When the World Bank takes an interest in demand-led governance and social accountability,6 this is partly due to the work on the governance and anticorruption strategy and agenda in the Bank, but more importantly, the Bank’s World Development Report of 2004 (Making Services Work for Poor People) created strong conceptual ramifications for linking citizens directly with service providers. It is argued that such direct exchange and communication between citizens and the service sector would imply a shorter route to accountability than efforts to link the citizens with state authorities (the longer route to accountability). Figure 10.1 depicts the particular benchmarks of the evolution of social accountability in the World Bank. The 1995 “cancer of corruption” speech of then president Jim Wolfensohn was a turning point as it marked the inclusion of government accountability in policy discussions. Analytical studies and frameworks that have since been developed have contributed greatly to advancing the agenda. For exam-

Social Accountability in the World Bank WDR 2004: Making Services Work for Poor People

Wolfensohn’s “cancer of corrupon” speech, 1995

WDR 2000: Empowerment as a Key Pillar

GAC Strategy 1, 2007: MulStakeholder Engagement

Social Development Strategy 2005: Operaonalizaon of Accountability

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GAC Phase II, 2011–12

GAC Strategy Progress Report: Transparency, Accountability, and Parcipaon

figure 10.1 The evolution of social accountability. Adapted from World Bank (2013). WDR: World Development Report. GAC: Governance and Anticorruption.

ple, the 2001 World Development Report, Attacking Poverty, and the World Bank’s empowerment framework recognized accountability as an integral component of “empowerment” and hence poverty reduction. Similarly, the 2004 World Development Report placed accountability relationships between policy makers, service providers, and clients at the core of development effectiveness. Moreover, the Social Development Strategy (Empowering People by Transforming Institutions) released in 2005 recognized accountability of institutions as one of the three key conceptual pillars for empowering poor people. The importance of the demand side of governance interventions was also further developed in the 2012 multistakeholder engagement guidance note and Governance and Anticorruption (GAC) strategy. These important benchmarks paved the way for translating accountability into specific Bank policies and practices. The GAC Phase II Strategy was developed in 2011–12 (World Bank 2012). The figure illustrates a pathway from anticorruption, through empowerment, to service provision and social development involving new stakeholders (new to the Bank) such as civil society groups. The pathway also invites analysis of differences between the first governance and anticorruption strategy of 2007 and the presently elaborated second-phase governance and anticorruption strategy (GAC II). In the latter, citizenship is a more prominent concept compared to the 2007 strategy. Social accountability also figures strongly in the 2012 strategy. President Zoellick’s speech at the Peterson Institute during April 2011 in the wake of the Arab Spring has clearly influenced strategy formulations around the proposed Global Partnership for Social Accountability (www.thegpsa.org/sa/) elaborated by a group established in the Bank after the president’s speech,7 but also around specific utility of social accountability instruments. Over a decade, the social accountability agenda has thus expanded in the World Bank. It has become an entrenched concept around which analyses, field practices,

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and new financing mechanisms have emerged. The governance agenda has been molded to encompass demand-side governance, and parallel to this change, the notion of citizenship has come to stay. With citizens, rather than beneficiaries, there is a qualitative change in the formulation of the targets of assistance. Agency and Voice are clearly implied and important capital measures of the new citizens, but rights are also tied to the concept of citizenship. On the latter, the Bank’s discourse is more tacit. The implication that rights, and human rights in particular, are important corollaries of notions of citizenship is rarely debated. It therefore remains ambiguous how rights and social accountability relate to each other. S O C IA L AC C OU N TA B I L I T Y A P P R OAC H E S

Anyone who is involved in debates or implementation processes of social accountability will know and refer to the triangle of accountability routes described in the 2004 World Development Report (World Bank 2003). The conceptual elaboration of this report has had a seminal importance in the evolution of social accountability in the Bank and in wider circles.8 The core of the argument of the 2004 World Development Report is that in order to make service providers (public, NGOs, private utilities) accountable to clients and citizens, the latter needs better instruments and more direct lines of communication than they have with respect to politicians and policy makers (voting power, in societies with some level of democracy). They need direct linkages with service providers (client power) and tools of monitoring. Table 10.1 illustrates some of the social accountability tools used in Bank projects and in wider development projects. There are no precise indications of the most popular tools. Preliminary investigations indicate that transparency measures and information disclosure instruments, together with participatory measures, were used more often than grievance-redress mechanisms (World Bank 2009, 37, 41, 109–110). Definitions of the various social accountability tools are given in box 10.1.9 The core objectives of the social accountability agenda can be interpreted as effectiveness, efficiency, accountability, participation, and transparency. Development effectiveness and efficiency were among the objectives when the agenda was originally launched. However, instilling a notion of accountability in service providers and authorities was part of a pathway to the creation of a more responsive state than that envisaged in the New Public Management regime.10 While the latter tended to shield civil servants and technocrats from political interference, the enhanced notion of accountability invited openness and influence, not least in terms of allowing citizens to engage with service providers, civil servants, and politicians.

table 10.1 Characteristics of Social Accountability Tools Primary objective

Government cooperation

Citizen participation

Cost

Information dissemination and demystification Information campaigns Independent budget analysis Citizen’s charters

Transparency Transparency Transparency

Weak Weak Weak

Low Low Low

Medium Medium Low

High High Medium High

Medium High High High

Medium

Low

High High

High High

Medium High

High Medium

Participatory monitoring Community monitoring Community scorecard Citizen report card Social audit

Accountability Accountability Accountability Accountability

Strong Medium Strong Medium

Complaint handling Grievance redress mechanism

Accountability

Weak

Participatory decision making Participatory planning Participatory budgeting

Participation Participation

Medium Strong

Participatory financial management Public expenditure tracking Procurement monitoring

Accountability Accountability

Strong Strong

SOURCE: adapted from World Bank (2102b).

box 10.1 explanations of social accountability tools Citizen’s charter—a document that informs citizens about the service entitlements they have as users of a public service, the standards they can expect for a service (timeframe and quality), remedies available for nonadherence to standards, and the procedures, costs, and charges of a service. The charter entitles users to an explanation (and in some cases compensation) if the standards are not met. Community monitoring—a system of measuring, recording, collecting, and analyzing information, and communicating and acting on that information to improve performance. It holds government institutions accountable, provides ongoing feedback, shares control over monitoring and evaluation, engages in identifying and/or taking corrective actions, and seeks to facilitate dialogue between citizens and project authorities. Community scorecard—a community-based monitoring tool that assesses services, projects, and government performance by analyzing qualitative data obtained through focus group discussions with the community. It usually

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includes interface meetings between service providers and users to formulate an action plan to address any identified problems and shortcomings. Grievance redress mechanism (or complaints-handling mechanism)—a system by which queries or clarifications about the project are responded to, problems with implementation are resolved, and complaints and grievances are addressed efficiently and effectively. Independent budget analysis—a process where civil society stakeholders research, explain, monitor, and disseminate information about public expenditures and investments to influence the allocation of public funds through the budget. Information campaigns—processes to provide citizens with information about government plans, projects, laws, activities, services, and so on. A variety of approaches can be used, such as public meetings, mass media, printed materials, public performances, and information kiosks. Participatory budgeting—a process through which citizens participate directly in budget formulation, decision making, and monitoring of budget execution. It creates a channel for citizens to give voice to their budget priorities. Participatory planning—convenes a broad base of key stakeholders, on an iterative basis, in order to generate a diagnosis of the existing situation and develop appropriate strategies to solve jointly identified problems. Project components, objectives, and strategies are designed in collaboration with stakeholders. Procurement monitoring—in the context of demand for good governance, refers to independent, third-party monitoring of procurement activities by citizens, communities, or civil society organizations to ensure there are no leakages or violation of procurement rules. Public expenditure tracking surveys—involve citizen groups tracing the flow of public resources for the provision of public goods or services from origin to destination. They can help detect bottlenecks, inefficiencies, and corruption. Social audit (also called social accounting)—a monitoring process through which organizational or project information is collected, analyzed, and shared publicly in a participatory fashion. Community members conduct investigative work, at the end of which findings are shared and discussed publicly. SOURCE: Adapted from World Bank (2012b).

T H E H UM A N R IG H T S P E R SP E C T I V E

What is the similarity between a human rights–based perspective and social accountability? A human rights–based approach takes departure in the international human rights standards and conventions. A human rights–based approach identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and works toward strengthening the capacities of rightsholders to make the duty-bearers meet their obligations. A human rights–based approach entails the empowerment of rights-holders (citizens) and the accounta-

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The State Policians

Policy makers

Cizens/clients / ie ents Coalions/inclusion usion Nonpoor

Poor

Providers Pro o Client power

Management Man Frontline

Organizaons

figure 10.2 Long and short routes to accountability. Adapted from World Bank (2003).

bility of duty-bearers (the state authorities and the service providers to whom they have delegated responsibility). A human rights–based approach will strive to redress discriminatory practices and strengthen participation of marginal groups.11 In emphasizing empowerment and accountability, a human rights–based approach will analyze developmental problems in terms of collaboration and conflict between duty-bearers and rights-holders. Relations between these groups are hierarchical, and based on the accountability to the obligations that the duty-bearers have agreed to fulfill. A human rights–based approach does not entail a strong focus on institutions (except the rights standards), intra-institutional behavior, or the norms and incentive frameworks dominating their modes of operation.12 This is where complementarities between human rights–based and development thinking may be further explored. If figure 10.2, on the long and short routes to accountability, were reinterpreted according to a human rights–based perspective, the interpretation would tend to describe the relationship hierarchically between citizens, authorities, and service providers. Institutionally, the service providers would be seen as being duty-bearers themselves, or as representing the latter. This is described in figure 10.3. A human rights analysis would couch the relations in figure 10.2 in terms of relations of rights and obligations and would emphasize perspectives on human rights principles, such as accountability, participation, nondiscrimination, and transparency in analyzing collaboration, conflict, and dialogues.

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Service providers Accountability, parcipaon, nondiscriminaon, transparency Cizens and rights-holders

figure 10.3 Citizens and service providers: the human rights analysis.

There are, however, important overlaps between a human rights perspective and the way in which social accountability measures have been implemented. Three overlaps are significant. •

•

•

Human rights and social accountability measures share a joint interest in advocacy and in collaborative measures between service providers/duty-bearers and citizens (see also Nelson, chapter 7 in this volume). Both of the perspectives embody participation and accountability as core concerns and as important principles. The very purpose of social accountability measures is to engender more effective accountability for user groups, consumers, and citizens through various channels of participation.13 From the point of view of human rights, principles of accountability, nondiscrimination, and participation have increasingly been connected to the implementation of human rights–based approaches during the last decade.14 Transparency and access to information are key dimensions in both fields. For human rights analysts and activists, right to information is one dimension of Article 19 of the International Covenant on Civil and Political Rights, which includes freedom of expression, including the right to receive and impart information (Article 19(2)). For social accountability scholars and activists, access to information is one key dimension in the formation of accountability (Ringold et al. 2012).

However, distinctions are also evident between human rights and social accountability efforts. There are two areas in particular where human rights thinking may provide additional perspectives to social accountability. •

Human rights analysts will tend to put a much stronger focus on issues of discrimination than in the case of the present social accountability insights. Are there groups at risk of or suffering from discrimination? How can citizen

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•

•

227

action contribute to reduce or to change patterns of discrimination? Human rights analysts will also relate participation to vulnerable groups. Much of the work on social accountability in the World Bank presently tends to presume that participatory work also includes poor and marginal groups. In most projects, a gender perspective is integrated, but generally the focus on the categories of the citizens participating in monitoring or in participatory works is inadequately addressed.15 From the development perspective, a lot of attention has been devoted to the importance of the context in determining whether social accountability mechanisms can be implemented with positive results. These analyses have resulted in reflections on the capacity of political and civil societies, respectively, the historical context, the prevalence of a culture of rights, the nature of coalition building in the social sector, and quality of the public sphere.16

One further important point to make concerns how human rights relate to social accountability. Although social accountability efforts are relevant in authoritarian contexts, social accountability mechanisms are preconditioned on measures of voice (freedom of speech), information (right to information), association (freedom of association), and participation (the right to take part). That is, some measures of civil and political rights underpin social accountability, often in diverse ways dependent on the context, but citizens endowed with rights are part of its rationality. This is recognized in the World Bank’s ARVIN Framework (2012a). ARVIN is an acronym for association, resources, voice, information, and negotiation. The framework integrates in its matrix the legal and regulatory framework, the political governance context, the socio-cultural characteristics, and the economic conditions. Freedom of association, freedom of expression, access to information, and freedom of information laws are components in the matrix under the regulatory framework. With its focus on social services, social accountability work has a particular relevance for the implementation of social rights; however, civil and political rights are crucial preconditioning elements in making social rights realization work (table 10.2). Social accountability and human rights work therefore entail a number of overlapping dimensions to exploit. In particular, one learning dimension seems pertinent given the overlapping spheres of work: a greater awareness is warranted concerning the mutually overlapping methods of work and the broadly similar goals.

I M PAC T

Does social accountability result in better social services, and does it lead to social rights implementation? The evidence is patchy, with a concentration of studies in

Information

Voice

Resources

Association

Freedom of association Procedures for registering CSOs Policies and procedures for licensing CSOs

Tax laws Laws on foundations Regulation of fundraising Procurement regulation

Constitutional provisions and laws on freedom of expression Media and communications– related laws

Constitutional provisions on access to information Freedom of information laws Regulations on access to public information

•

•

•

•

•

•

•

•

•

•

•

•

Legal and regulatory framework

•

•

•

•

•

•

•

•

•

•

•

Information disclosure of policies and practices Ability to demystify public policy and budgets

Political control of public media Restrictions on civic protests Mass media influence on policy making Professional training of journalists

Government grants, private funds, other transferences Donations from politicians Political interference with contracting

Recognition and accreditation policies and procedures Conflict of registration and licensing regulations

Political and governance context

•

•

•

•

•

•

•

•

•

•

•

•

•

•

Role of information movements and networks Barriers created by illiteracy Social barriers The use of word of mouth (oral cultures)

Communication practices (use of media by different social groups) Gender barriers Relations between media and CSOs

Social philanthropy (culture of giving) History of associational life, self-help, and gap-filling

Social capital Gender barriers Illiteracy Attitudes to youth, disabled, elderly Social hierarchies

Socio-cultural characteristics

•

•

•

•

•

•

•

•

•

•

Costs/fees for access to public documents Printing and communications facilities

Fees associated with expressing views in media (ads vs. op-ed) Costs to present publish, and distribute views (petitions, newsletters, radio stations)

Impact of economic pressures on CSO funding sources Impact on employment Infrastructure and cost of communications

Cost of legal registrations and accreditations Cost of convening meetings and forums Cost of communication and travel

Economic conditions

table 10.2 The ARVIN Framework: A Way to Assess the Enabling Environment for Civic Engagement

•

•

•

•

Legally established dialogue spaces Decentralization legislation, provision for participation Legal framework to define institutional roles, checks and balances: legislature, executive, and auditor general Legal framework for rules/ regulations guiding the budget decision-making process

CSO: civil society organization. SOURCE: World Bank (2012a).

Negotiation

•

•

•

•

•

• Political will and capacity to engage citizens CSO collaboration with legislatures Political limitations on the role of legislatures Institutionalized dialogues Social accountability mechanisms

Social values and hierarchies that set rules and expectations on who can speak on what subject, in what context, and when (social exclusion of children and youth, disabled, elderly, and other specialinterest groups) •

•

•

Impact of economic pressures on autonomy, bargaining power, and advocacy of CSOs Risk of co-option Impact of budget constraints on capacities of legislators to engage in budget accountability

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Latin America, South and Southeast Asia, and parts of Africa. In Uganda, Björkman and Svensson (2008) conducted a study of health services in 25 health dispensaries where report cards were used and in 25 other dispensaries where no report cards were used. The monitored dispensaries exhibited 19 percent less nurse absenteeism, 7 to 10 percent higher immunization rates, 16 percent higher facility utilization, and a 33 percent drop in infant mortality. This example has become widely known among students of social accountability because of the very impressive results. However, the overall evidence is not as outstanding, and generally, most initiatives lack clear indications of impact. Ringold et al. (2012) led a study of the World Bank’s human development projects between 2005 and 2010. Of the 427 projects reviewed, 380 included at least one of the key words related to accountability in their documentation. However, only 38 of these allocated resources to work on accountability, and very few were evaluated for impact assessment. The study summarizes 13 impact evaluations within health, education, and social protection (24–25, annex 3). Eleven of the impact evaluations reported positive results in some areas, but no systematic learning can be gleaned from the nature of the results. In 2011, the DFID commissioned a study on the impact of donor interventions in support of accountability and empowerment. An overarching finding was the importance of contextual factors. Impacts in one sphere do not necessarily result in impacts in another sphere. A few other findings are relevant. •

•

•

Access to education has a major influence on women’s social status within the community and is a strong predictor of reduction in maternal mortality, independent of socioeconomic status. Long-term impacts are difficult to track or to attribute to any given intervention. The conceptual literature emphasized that empowerment cannot be bestowed by donor or government interventions. Studies on the outcomes of citizen engagement reinforce this, showing that citizens often engaged outside officially prescribed channels.

A number of cases show the key influence of political dynamics on the success or failure of interventions across a range of sectors. •

•

Broad coalitions of support for interventions that include powerful groups may contribute to success. In contrast, less favorable political dynamics and social norms sometimes cause interventions to have limited or disempowering outcomes, for example social norms in relations to the social standing of women and other marginalized groups. Power relations and informal institutional processes may limit the impact of interventions intended to transform formal institutions (DFID 2011, Summary of Findings).

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Apart from the emphasis on contextual factors, these findings point to the importance of empowerment practices from within communities and groups. In an early study on human rights and social accountability, Ackerman (2005) stressed that power and empowerment are at the heart of successful efforts toward social accountability. Cases were only resolved successfully when power imbalances were explicitly challenged through the use of extra-institutional mobilization. However, informal mechanisms were most effective when backed up by a strong legal system (18–19; see also Hertel and Randolph, chapter 8 in this volume). In a study in Bangladesh (a follow-up to an earlier one from 2003), Kabeer, Kabir, and Huq (2009) document how rights and empowerment mobilization contributed to tangible improvement of livelihoods for the poorest groups. The strategy employed by Nijera Kori, a local NGO, was not a narrowly defined social accountability approach, but emphasized the importance of social mobilization of the poorest groups. Mobilization of the poorest around injustices, advocacy, conscientization and training, and rights awareness were among the tools employed. The quantitatively documented outcomes (in comparison with control groups) were: improved access to land, better nutrition, better knowledge of government policies, and better female mobility. Public Affairs Foundation, Sirker, and Cosic (2007) summarize case-study experience from social accountability projects in Asia. Most of the thirteen cases report positive outcomes, but questions remain on the sustainability of social accountability efforts. One of the cases regards Concerned Citizens of Abra for Good Governance, a local organization in the Philippines, working to monitor public works in Abra, a remote region where infrastructure is critical. The group, originally growing out of election monitoring, has rallied around the issue of roads in Abra. Community participation is spurred by organizing people into village monitoring and evaluation teams. Public works are monitored by the relevant village committees. Though in the beginning the organization met with threats and resistance from authorities and the private sector, gradually collaboration, rather than confrontation, with authorities became an important feature, and the project was ultimately supported by the United Nations Development Programme. Among the results of the monitoring and social-audit activities are the unearthing of corruption, prosecution of inept officials, improvements in infrastructure (including better accessibility to remote areas), and saving of government resources (44–49). In East Asia, Tsai’s (2012) study of public goods provision in rural China is illustrative of how authorities in settings with weak democratic institutions can be persuaded to deliver services valued by local people. She surveyed 316 villages randomly selected from eight counties in four provinces. Collective action may not be sufficient in systems lacking formal democratic institutions. Tsai proposes an approach of informal governmental accountability. Local officials may have an incentive to provide public goods when citizens award them moral standing for

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doing so. In localities where citizens’ groups overlap and mesh with government structures, citizens and officials are more likely to share common ethical values. Group activities and dense social networks provide opportunities for individual members to publicize their behavior. The existence of such groups is positively associated with village governmental public goods provision (308–16). C O N C LU S I O N S

Human rights–based and social accountability strategies clearly overlap in the focus on accountability, participation, and empowerment. The conceptual thinking of social accountability was originally to provide more effective services to poorer sections of populations in developing economies, but practices also indicate objectives of equity and justice in the way social accountability has been applied. In terms of value considerations and normative pluralism, there is therefore also a strong coincidence with human rights–based thinking. The emphasis on advocacy and citizen monitoring also resembles human rights–based strategies. In the prevailing practices, social accountability projects are less focused on issues of nondiscrimination, for instance allowing analyses of discriminatory practices for groups other than gender-based divisions, and seeking to counterbalance these in strategies of empowerment. Related to this, a more explicit integration of vulnerable or marginal groups in monitoring and participatory social work could also be relevant if social accountability work would allow itself some inspiration from human rights. However, somewhat surprising is the failure to connect the similarity of perspectives and the prospects of mutual learning. Thus, human rights activists and scholars may benefit more from the evidence being gathered and analyzed in social accountability programs and concerning the behavior of institutions and actors, while social accountability projects may benefit from the legal orientation of human rights approaches, and from a stronger and more systematic focus on nondiscrimination and on marginal groups. As stated in the introduction to this chapter, the results of social accountability are rather practical, improving livelihoods, empowering certain groups and individuals, spurring collaboration with and better reach of authorities, and engendering resource allocation in favor of the most vulnerable. Generally, the convergence between human rights and social accountability is marked with respect to accountability objectives. There are convincing indications that the focus on accountability pays off in a number of contexts in terms of improving social services and enabling the realization of social rights. More needs to be known about the impact of these efforts, but the indications remain more positive than negative. The sustainability of these efforts over the longer term also requires further analysis.

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Finally, if social accountability projects serve to improve the provision of services in context and thus assist in social rights realization, the analysis of the chapter has demonstrated that civil and political rights are prerequisites for these efforts. Freedoms of expression and association, the right to seek and impart information, and the right to take part in the conduct of public affairs are all dimensions underpinning social accountability implementation. It would be useful if these preconditioning factors were addressed more explicitly. This demonstrates with some strength how difficult and sometimes artificial it is to distinguish between civil and political and economic and social rights. NOTES 1. For instance, in recent Danish, Swedish, and German development strategies, social accountability is barely mentioned as a tool. 2. In 2011, the DFID published the report A Preliminary Mapping of the Evidence Base for Empowerment and Accountability. During 2008, the DAC Evaluation Group (Belgium, Denmark, Germany, Norway, Sweden, Switzerland, and the UK) published a Joint Evaluation of Citizens’ Voice and Accountability (Rocha Menochal and Sharma 2008). 3. Of the 762 projects and activities in the database, 21 make reference to human rights in the title. The database is internal. 4. According to article IV, section 10, of the Bank’s Articles of Agreement, “Political Activity is Prohibited.” The article states: “The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.” A former senior vice president and general counsel of the World Bank, Ana Palacio (2006, 36), interpreted this article in the following way: “The World Bank’s role is a facilitative one, in helping our members realize their human rights obligations”; however, “political human rights in particular have traditionally been considered to lie beyond the permitted range of considerations under the Articles of Agreement.” 5. This is the definition used in the Social Accountability Core Course developed in the World Bank by Hélène Grandvoinnet. An alternative definition is “the obligation of powerholders to account for or take responsibility for their actions” (McNeil and Malena 2010). 6. Throughout the article, I shall refer to social accountability, making no particular distinctions between that and demand-led governance. 7. The Global Partnership for Social Accountability (www.thegpsa.org) was established by the World Bank during April 2012, one year after the speech of President Zoellick. The Bank will invest USD 20 million in seed money to create the partnership and will work with others to raise additional funds. The scope of the partnership is global. As well as investing in projects to boost social accountability, the partnership will also focus on exchanging knowledge of best practices. 8. Within the World Bank, a community of practice has been created around social accountability. There are 443 members from within the Bank, and 216 external members. 9. The list is not exhaustive. For details, see World Bank (2012b, annex 1).

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10. For an elaboration of this perspective, see the opening chapter (“Taking Direct Accountability Seriously”) in Odugbemi and Lee (2011). 11. For good introductions to the human rights–based approach, see OHCHR (2006), Gready and Ensor (2006), Salomon, Tostensen, and Vandehole (2007), and Andreassen and Marks (2010). 12. For a very broad perspective on human rights and institutions, see Pogge (2005). 13. For deeper and evidence-based perspectives on participation and accountability, see Brett (2003), Newell and Wheeler (2006), and Gaventa and Barrett (2010). 14. See Kirkemann Boesen and Sano (2010) and McInerney-Lankford and Sano (2010). 15. “Even strong proponents of participatory approaches to accountability . . . stress the need for a greater focus on ensuring the relevance of SAMs [social accountability mechanisms] to poor and vulnerable groups” (Bukenya, Hickey, and King 2012, 40). 16. See Bukenya, Hickey, and King (2012, 44–47) and Peruzzotti (2011, 56–62).

REFERENCES Ackerman, John M. 2005. Human Rights and Social Accountability. Participation and Civic Engagement Paper 86. World Bank. Andreassen, Baard A. and Stephen P. Marks, eds. 2010. Development as a Human Right Legal, Political and Economic Dimensions. Antwerp: Intersentia. Björkman, Martina, and Jakob Svensson, 2008. “Power to the People: Evidence from a Randomized Field Experiment of a Community-Based Monitoring Project.” Quarterly Journal of Economics 124 (2):735–69. Brett, E. A., 2003. “Participation and Accountability in Development Management.” Journal of Development Studies 40 (2):1–29. Bukenya, Badru, Sam Hickey, and Sophie King. 2012. Understanding the Role of Context in Shaping Accountability Interventions: Towards an Evidence-Based Approach. Report commissioned by the World Bank Social Accountability and Demand for Good Governance Team. Caddy, Joanne, Tiago Peixoto, and Mary McNeil. 2007. Beyond Public Scrutiny: Stocktaking of Social Accountability in OECD Countries. World Bank Institute Working Paper. World Bank, Washington; Organisation for Economic Cooperation, Paris. Department for International Development (DFID). 2011. A Preliminary Mapping of the Evidence Base for Empowerment and Accountability. April. www.gsdrc.org/go/display &type=Document&id=4223. Devarajan, Shantayanan, Stuti Khemani, and Michael Walton. 2011. Civil Society, Public Action and Accountability in Africa. Policy Research Working Paper 5733, World Bank. Gaventa, John, and Gregory Barrett. 2010. So What Difference Does it Make? Mapping the Outcomes of Citizen Engagement. Institute of Development Studies, the University of Sussex, Brighton. Gready, Paul, and John Ensor. 2006. Reinventing Development? Translating Rights-Based Approaches from Theory into Practice. London: Zed Books. International Covenant on Civil and Political Rights. 1966. www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

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Kabeer, Naila, Ariful Haq Kabir, and Tahera Yasmin Huq. 2009. Quantifying the Impact of Social Mobilisation in Rural Bangladesh: Donors, Civil Society and the “Road Not Taken.” Working Paper 333, Institute of Development Studies, Brighton. Kirkemann Boesen, Jakob, and Hans-Otto Sano. 2010. “The Implications and Value Added of a Human Rights-Based Approach.” In Development as a Human Right: Legal, Political and Economic Dimensions, edited by Baard A. Andreassen and Stephen P. Marks, 45–68. Antwerp: Intersentia. McInerney-Lankford, Siobhán, and Hans-Otto Sano. 2010. Human Rights Indicators in Development: An Introduction. Washington, DC: World Bank. McNeil, Mary, and Carmen Malena, eds. 2010. Demanding Good Governance: Lessons from Social Accountability Initiatives in Africa. Washington, DC: World Bank. Newell, Peter, and Joanna Wheeler, eds. 2006. Rights, Resources, and Politics of Accountability. London: Zed Books. Odugbemi, Sina, and Taeku Lee, eds. 2011. Accountability through Public Opinion: From Inertia to Public Action. Washington, DC: World Bank. Office of the High Commissioner for Human Rights (OHCHR). 2006. Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation. Geneva: United Nations. Palacio, Ana. 2006. The Way Forward: Human Rights and the World Bank. World Bank Development Outreach, World Bank Institute. Peruzzotti, Enrique. 2011. “The Workings of Accountability: Contexts and Conditions.” In Accountability through Public Opinion: From Inertia to Public Action, edited by Sina Odugbemi and Taeku Lee, 53–65. Washington, DC: World Bank. Pogge, Thomas. 2005. “World Poverty and Human Rights.” Ethics and International Affairs 19(1):1–7. Public Affairs Foundation (Bangalore, India), Karen Sirker, and Sladjana Cosic, 2007. Empowering the Marginalized: Case Studies of Social Accountability Initiatives in Asia. Working paper, World Bank Institute. Ringold, Dena, Alaka Holla, Margaret Koziol, and Santosh Srinivasan. 2012. Citizens and Service Delivery: Assessing the Use of Social Accountability Approaches in Human Development. Washington, DC: World Bank. Rocha Menochal, Alina, and Bhavna Sharma. 2008. Joint Evaluation of Citizens’ Voice and Accountability: Synthesis Report. London: DFID. Salomon, Margot E, Arne Tostensen, and Wouter Vandenhole, eds. 2007. Casting the Net Wider: Human Rights, Development and New Duty-Bearers. Antwerp: Intersentia. Tsai, Lily. 2012. “Holding Government Accountable through Informal Institutions: Solidary Groups and Public Goods Provision in Rural China.” In Accountability through Public Opinion: From Inertia to Public Action, edited by Sina Odugbemi and Taeku Lee, 300– 319. Washington, DC: World Bank. World Bank. 2000. World Development Report 2000/2001: Attacking Poverty. Washington, DC: World Bank and Oxford University Press. . 2003. World Development Report 2004: Making Services Work for Poor People. Washington, DC: World Bank and Oxford University Press.

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. 2005. Empowering People by Transforming Institutions. Social Development in World Bank Operations. Washington, DC: World Bank. . 2009. Governance and Anti-Corruption in Lending Operations: A Benchmarking and Learning Review. Quality Assurance Group, World Bank. . 2012a. The ARVIN Framework: A Way to Assess the Enabling Environment for Civic Education. http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEVELOPMENT/EXTPCENG/0,,contentMDK:20529003~pagePK:148956~piPK:2166 18~theSitePK:410306,00. . 2012b. How-To Notes: How, When, and Why to Use Demand-Side Governance Approaches in Projects. Policy Note No. 69232. http://web.worldbank.org/WBSITE /EXTERNAL/TOPICS/EXTGOVANTICORR/0,,contentMDK:22719597~menuPK:7441 850~pagePK:210058~piPK:210062~theSitePK:3035864,00.html. . 2012c. Strengthening Governance, Tackling Corruption: The World Bank Group’s Updated Strategy and Implementation Plan. Washington, DC: World Bank. . 2013. Evolution of DFGG in the World Bank. http://web.worldbank.org/WBSITE /EXTERNAL/TOPICS/EXTSOCIALDEVELOPMENT/0,,contentMDK:21211265~page PK:210058~piPK:210062~theSitePK:244363,00.html.

PART FOUR

Measuring ESCR Realization

Chapter 11

Making the Principle of Progressive Realization Operational The SERF Index, an Index for Monitoring State Fulfillment of Economic and Social Rights Obligations Sakiko Fukuda-Parr, Terra Lawson-Remer, and Susan Randolph

The International Covenant on Economic, Social and Cultural Rights (ICESCR) commits governments to progressively fulfill the economic, social, and cultural rights recognized in the covenant and to commit the maximum of available resources to that end (United Nations 1966b, Art. 2.1). Alston and Quinn (1987, 172) call this standard of progressive realization, as it has come to be known, the “linchpin of the whole Covenant.” Yet it has complicated and ultimately frustrated the monitoring of countries’ fulfillment of their obligations under the covenant and is in no small part responsible for economic, social, and cultural rights’ relative lack of traction. It implies that the level of enjoyment of economic, social, and cultural rights a state is obligated to fulfill expands in tandem with the state’s resource capacity and that the level of obligation differs across states. As noted by Chapman (2007, 150), “it necessitates the development of a multiplicity of performance standards for each right in relationship to the varied social, developmental, and resource contexts of specific countries.” In effect, the difficulty in making the standard of This chapter is an adaptation and extension of Fukuda-Parr, Lawson-Remer, and Randolph (2011) and is adapted with permission from the Economic and Social Rights Empowerment Initiative (www .serfindex.org). Specifically, sections 5, 6, and 7 reproduce with some adaptations the sections entitled “Indicator Indices” and “Rights Indices.” The remaining sections are based upon work supported by the National Science Foundation under Grant No. 1061457. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation.

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figure 11.1 Accountability using the Social and Economic Rights Fulfillment (SERF) Index.

progressive realization operational has provided an escape hatch. In the absence of a well-defined performance standard for a particular country’s context, states can effectively set their own standards, blaming poor outcomes on limited resource capacity. The standard of progressive realization additionally frustrates identification of the policy regimes and circumstances that best facilitate the fulfillment of economic, social, and cultural rights within varied resource contexts. This chapter describes a new index, the Social and Economic Rights Fulfillment Index, or SERF Index for short. The SERF Index assesses the level of economic and social rights (ESR) enjoyment in a country relative to the level of the country’s obligation.1 Data on the extent to which ESR obligations are met can play a critical role along each of the pathways involved in social transformation, as shown in figures 11.1 and 11.2. At the informational node they can be used to hold domestic, foreign and international states and institutions to account. At the situational node, data highlighting the failure to fulfill can be marshaled by domestic and international human rights advocates in “naming and shaming” campaigns to raise awareness, shift norms, and mobilize popular pressure for institutional, legal, and policy reforms. At the action-formation node, such data help isolate factors responsible for poor outcomes as well as those enabling good outcomes and accordingly facilitate the design of institutional arrangements and policies promoting better ESR outcomes, particularly for marginalized groups. Additionally, they can help identify the extent and nature of tradeoffs with other goals. At the

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figure 11.2 How the Social and Economic Rights Fulfillment (SERF) Index can promote social transformation.

transformational node, activists and their allies can use such data to monitor the extent of progressive realization. The innovation of the SERF Index methodology resides in the specification of achievement possibilities frontiers (APFs) that benchmark each country’s level of obligation with regard to each substantive economic or social right. The chapter proceeds by first elaborating on the need for a new index and then detailing how the SERF Index assesses the level of rights enjoyment and the level of a state party’s obligation, and constructs rights indices and the composite SERF Index. The chapter concludes by briefly discussing how the SERF Index can be used and adapted to foster social transformation by highlighting specific examples flowing out of this volume. T H E N E E D F O R A N EW I N D E X

Until recently, economic, social, and cultural rights have commanded less attention than civil and political rights, though the Universal Declaration of Human Rights (United Nations 1948) does not prioritize civil and political rights over economic, social, and cultural rights, and both the covenants clarifying their mandates and codifying them into international law, the International Covenant on Civil and Political Rights (ICCPR—United Nations 1966a) and the ICESCR, were adopted and then entered into force at the same times (1966 and 1976, respectively). The difference in priority cannot be traced to a greater risk posed to human life by violations of civil and political rights either, for, as Pogge (2005) laments, the number of preventable deaths resulting from the denial of food, health care, and other basic violations of ESR in the past eleven years outstrips the number of deaths in the entire twentieth century attributable to all wars (including civil wars

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and genocides) and other forms of government repression. Certainly, as Leckie (1998, 83) remarks, human nature is such that active violence against people evokes more outrage than the denial of the basic necessities of life and death by degrees and contributes to an “ambivalence towards violations of economic, social, and cultural rights.” The absence of rigorous tools to monitor violations plays a role as well, especially with regard to tools to monitor the compliance of countries (state parties) ratifying the ICESCR with their obligations of result. States are not required to fulfill economic, social, and cultural rights with immediate effect, but rather to progressively ensure that all their citizens and residents enjoy all their economic, social, and cultural rights in their fullest expression. They are, however, required to commit the maximum of available resources to fulfilling economic, social, and cultural rights without delay. As worded in Article 2.1 of the ICESCR, “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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.” Despite the centrality of the standard of progressive realization, as Chapman (2007) notes, the difficulty in making the standard operational has led NGOs, and even the monitoring body of the ICESCR, the Committee on Economic, Social and Cultural Rights (CESCR), to focus their monitoring efforts on those aspects of countries’ obligations to respect, protect, and ensure nondiscrimination that can be assessed using a violations approach. Thus, in monitoring compliance with the ICESCR, the CESCR currently emphasizes the duties to respect and protect over the duty to fulfill, and the obligation of conduct over the obligation of result.2 Although the recent entry into force of the Optional Protocol provides additional tools to hold governments to account, the need for a means to benchmark states’ obligations remains acute. The absence of widely vetted and broadly accepted measurement tools to assess the extent to which state parties to the covenant (countries that have ratified the covenant) meet their obligations to fulfill their economic, social, and cultural rights obligations has not only frustrated monitoring but also impeded efforts to identify those policies, institutions, programs, and measures that foster fulfillment. The need for better tools to monitor state compliance with the full scope of their economic, social, and cultural rights obligations, for advocacy, for social science research, and for human rights research and policy analysis has resulted in both the ad hoc use of measurement tools ill suited to the task and the launching of initiatives to design measurement tools appropriate to the task. In 1993, under the auspices of the United Nations Center for Human Rights, the first UN special rapporteur on the realization of economic, social, and cultural rights, Danilo Türk, convened the first workshop focused specifically on identifying indicators and measurement tools to assess state parties’ compliance with their various

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obligations under the ICESCR. This effort has been followed by a series of initiatives at the behest of a wide range of interested parties and involving participants from the CESCR, UN specialized agencies, the Office of the High Commissioner for Human Rights (OHCHR), special rapporteurs for different aspects of economic, social, and cultural rights, international organizations, national governments, national and international NGOs, and academics. Some of the more noteworthy initiatives launched include the Workshop on Indicators to Measure the Progressive Realisation of the Right to Education, organized by World University Service-International in May 1999; two Consultations on Indicators for the Right to Health, organized by the World Health Organization, in May 2003 and April 2004; the November 2003 Expert Group Meeting on Housing Rights Monitoring, organized by the OHCHR and the United Nations Human Settlements Programme, UN-HABITAT; the October 2004 Expert Workshop on the Right to Water, organized by the Heinrich Böll foundation, the Centre on Housing Rights and Evictions, and Bread for the World; and the March 2005 Turku Expert Meeting on Human Rights Indicators. A second response to the growing demand for human rights indicators was the Inter-Committee Meeting of human rights treaty bodies’ request in 2005 to the OHCHR to undertake a sustained in-house initiative to study the use of quantitative (as well as qualitative) indicators and to develop human rights indicators to be used by the treaty bodies as well as to help state parties identify and design effective programs to advance human rights and help individuals articulate and advance their human rights claims. This work culminated in the 2012 publication by the OHCHR of Human Rights Indicators: A Guide to Measurement and Implementation. This guide develops a conceptual and methodological framework for identification of the relevant aspects of the different human rights and develops a range of illustrative indicators for fourteen substantive human rights, including the six primary economic and social rights: to health, to education, to housing, to food, to work, and to social security. While these initiatives specify information sets reflecting state commitment to ESR, state actions to expand ESR enjoyment, and indicators reflecting the extent to which the various ESR are enjoyed (in their framework structural, process, and outcome indicators, respectively), with the exception of two academic studies (Kimenyi 2007; Cingranelli and Richards 2007), they lack a framework against which to assess whether the standard of progressive realization to the maximum of available resources is being met. That is, they measure the level of rights enjoyment, but are silent with regard to the level of state obligation. Statistics like the child survival rate and the primary school completion rate only provide information on the extent to which individuals enjoy certain rights; they fail to tell us the extent to which a country is complying with its obligations to progressively fulfill those rights. Measuring ESR fulfillment requires considering both the level of rights enjoyed by a country’s residents and the level of the duty-bearing state’s

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obligations. Further, no framework is provided to aggregate information on different aspects of a given substantive right’s enjoyment to come up with an overall assessment of the extent to which a state party is meeting its obligations with regard to that particular substantive right or indeed their economic and social rights as a whole. The Cingranelli and Richards and Kimenyi measures (the CRI and KI indices, respectively) both assess country “effort” to meet ESR obligations by using the residuals from a regression of an adapted Human Development Index and the Physical Quality of Life Index, respectively, on the logarithm of per capita gross domestic product (GDP). Thus, they assess a country’s compliance with ESR obligations relative to the average, rather than best-practice, performance of countries with the same level of resources.3 The average level of rights fulfillment at any given per capita income level does not reflect the level of rights enjoyment it is feasible to provide. Further, the CRI and KI indices take into account only the rights to health and education; they ignore the other substantive ESR individually addressed in the CESCR’s general comments and the OHCHR (2012) report on indicators. T H E SE R F I N D E X A P P R OAC H

The Social and Economic Rights Fulfillment Index overcomes these problems and offers additional advantages. The SERF Index methodology takes into account both the level of rights enjoyment by a state’s residents and the level of the dutybearing state’s obligation in measuring the state parties’ compliance with their obligations of result under the ICESCR. Critically, the SERF Index benchmarks a country’s level of obligation with regard to the level of rights enjoyment that is feasible within the constraints of the country’s resources, as is consistent with the principles of “progressive realization” and “maximum available resources,” rather than the average level of enjoyment achieved at a given resource level. The SERF Index methodology incorporates all six substantive rights individually addressed in the CESCR’s general comments and the OHCHR (2012) report on indicators: the right to housing (General Comments 4 and 7, CESCR 1991 and 1997, respectively), the right to education (General Comments 11 and 13, CESCR 1999c and 1999a), the right to food (General Comment 12, CESCR 1999b), the right to health (General Comment 14, CESCR 2000), the right to work (General Comment 18, CESCR 2006a), and the right to social security (General Comment 19, CESCR 2008).4 Further, unlike the CRI and KI Indices, the SERF Index can be disaggregated into indices measuring the fulfillment of each individual substantive right (it is additively decomposable). Related to this, the CRI and KI indices impose the same rate of transformation of resources into rights enjoyment across both the health and education dimensions, whereas the SERF Index allows for differences in the feasibility of transforming resources into rights enjoyment across the differ-

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ent rights and different aspects of each right. Additionally, unlike the CRI and KI Indices, the SERF Index is comparable across time. Finally, unlike CRI and KI index scores, SERF Index scores can be intuitively interpreted as the percentage of the state’s obligation met. The SERF Index directly focuses on the extent to which state parties meet their obligations of result; it measures the extent to which state parties have devoted the maximum of their available resources to progressively realize the substantive ESR guaranteed by the covenant, and have done so in the most effective manner. It does not directly assess state parties’ compliance with their procedural rights of nondiscrimination, participation, and accountability, but if rights enjoyment data are disaggregated by population subgroup, it can help identify discriminatory practices. Although the SERF Index does not attempt to directly assess the extent to which state parties respect and protect ESR, countries that do so to a greater extent are also likely to meet their obligations of result to a greater extent and accordingly enjoy high scores on the SERF Index. The SERF Index was created through a multiyear collaborative process. Two contending methodologies were published in the August 2009 issue of the Journal of Human Rights (Fukuda-Parr, Lawson-Remer, and Randolph). Further refinements of the index are described in a subsequent issue of the Journal of Human Rights (Randolph, Fukuda-Parr, Lawson-Remer 2010) and in the book Fulfilling Social and Economic Rights (Fukuda-Parr, LawsonRemer, and Randolph, forthcoming). Country scores and rankings are updated annually and made available through the Economic and Social Rights Empowerment Initiative (they can be downloaded from www.serfindex.org). Below we provide an overview of the methodology used to construct the SERF Index. I N D IC AT O R SE T S A N D C R I T E R IA G OV E R N I N G T H E I R C HO IC E

The SERF Index draws on international law—the Universal Declaration of Human Rights, the ICESCR, the general comments of the CESCR, reports of UN special rapporteurs, and other documents such as the Limburg Principles (United Nations 1987), the Maastricht Guidelines (United Nations 2000), and reports of task forces—to define rights of individuals and obligations of states. The SERF Index evaluates the extent to which those under a state’s jurisdiction enjoy each economic or social right relative to the level of that state’s obligation of results. Thus, the first step in building the SERF Index involved translating the narrative of the legal instruments into indicator sets measuring the extent to which the different economic and social rights are enjoyed; the second step involved measuring the extent to which any given state is obligated to fulfill those rights. The general comments of the CESCR elaborate what is encompassed by each of the six substantive rights, as noted above. General Comments 12, 14, 18, and 19 detail the rights to food, health,

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work, and social security, respectively, while the substance of the right to education is spelled out in General Comments 11 and 13, and that of the right to housing in General Comments 4 and 7. General Comments 3 and 9, along with the Limburg principles and Maastricht Guidelines, elaborate the nature and extent of the obligations accepted by state parties to the covenant, including the obligation of results. A limited number of relevant attributes for each right were distilled from the CESCR’s general comments relevant to each right. Indicators reflecting each attribute were then identified, and among them, those most relevant to the task at hand were selected. A number of criteria governed the selection of the indicator sets used to assess rights enjoyment as well as duty-bearer’s obligation. At a minimum, to be considered, indicators needed to be publically accessible, reliable, comparable over time and across countries, and based on objective data and a transparent and objective data-generating mechanism. Among those indicators meeting these prerequisites, indicator selection involved striking a balance between country coverage, frequency of measurement, and discrimination in achievement across countries, while ensuring concept validity. Since each person possesses economic and social rights, indicators measuring the percentage of the population enjoying a given aspect of a right received preference over those measuring the average level of achievement enjoyed by the population. Indicator sets were selected with an eye to reflecting the most relevant challenges to fulfilling a given right, rather than encompassing all aspects of a given right. This latter criterion, coupled with the constraints of data availability, resulted in the specification of two variants of the international SERF Index: a core index covering all but highincome OECD countries, and a supplementary index for high-income OECD countries. Current data constraints preclude defining indicator sets for all six rights. In the case of the core SERF Index, data are sufficient to incorporate all the substantive rights except the right to social security. In the case of the SERF Index for high-income OECD countries, data limitations preclude incorporating the right to housing as well as the right to social security. Table 11.1 shows the indicator sets selected to assess the extent of rights bearers’ enjoyment of the different rights. Table A11.1 (in the appendix to this chapter) gives the primary data sources used to compile the data, along with detailed definitions of the indicators. As noted at the outset, states are not required to fulfill ESR with immediate effect, but rather progressively to ensure their citizens and residents enjoy their ESR in their fullest expression. They are, however, required to commit the maximum of available resources to fulfilling ESR without delay. One might argue that state budgetary expenditures should be used to measure state resource capacity, or that states with better institutions have a greater capacity to fulfill ESR. However, the size of a state’s budget depends on its tax policies; its institutional structure is also to a large extent subject to choice. The same can be said with regard to attracting foreign aid or other forms of capital inflows. In short, a state’s capacity to fulfill

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table 11.1 Economic and Social Rights Indicator Sets Right Food Education

Health

Housing

Work

Core SERF Percentage children (under 5) not stunted Primary school completion rate Combined school enrollment rate (gross) Contraceptive-use rate Child (under 5) survival rate Age 65 survival rate Percentage rural population with access to improved water source Percentage population with access to improved sanitation Percentage with income over $2 (2005 PPP)

High-income OECD country SERF Percentage babies not low birth weight Combined school enrollment rate (gross) Average math and science PISA score Child (under 5) survival rate Age 65 survival rate No data available

Percentage with income over 50% of median income Percentage unemployed not long-term unemployed

SOURCE: Table 1 in Fukuda-Parr, Lawson-Remer, and Randolph (2011). Reproduced with permission.

ESR depends on the choices it makes, and thus is endogenous to an important extent, as well as the resource base it can potentially tap. Therefore, per capita GDP was selected as the indicator of state resource capacity. It is measured in constant (2005) purchasing power parity (PPP) dollars, rather than US dollars, to ensure comparability in purchasing power across countries and over time. B E N C H M A R K I N G T H E E X T E N T O F A C O U N T RY ’ S O B L IG AT IO N S : AC H I EV E M E N T P O S SI B I L I T Y FRONTIERS

Achievement possibility frontiers (APFs) benchmark each country’s obligation with regard to each indicator reflecting the different aspects of each right. The APFs reflect what is feasible to achieve when a country allocates the maximum of available resources to fulfilling ESR and uses those resources effectively. The frontiers are constructed so as to be stable over the medium term, thus enabling intertemporal comparison.5 More specifically, the APF for a given indicator is constructed by plotting the observed value of the indicator against per capita GDP (2005 PPP$) for each country over the 1990-to-2006 period.6 The frontier itself is defined as the outer envelope of the scatter plot, and the equation specifying the frontier is estimated by fitting a curve to the observations that define the outer envelope of the scatter.7 Table A11.2 (in the appendix) identifies the country/year observations defining the outer envelope of the scatter for each indicator. The fact

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figure 11.3 Achievement possibility frontier for child survival rate.

that the observations defining the frontier do not cluster in the 2005–2006 period but rather come from throughout the 1990–2006 period provides assurance that the frontiers are stable over the medium term. Table A11.3 (in the appendix) shows the equations specifying the frontier for each indicator. To guard against measurement error and ensure that the frontiers reflect what is reasonably achievable, observations from a minimum of four countries were required to define the frontier, and potential outliers were eliminated. In particular, observations from countries engaged in civil war at the time of the observation were eliminated, and for the purposes of estimating the frontier, the per capita income corresponding to observations occurring in the wake of the former Soviet bloc’s transition when per capita income levels briefly and temporarily plummeted were reset to the per capita income level just prior to the start of the transition until per capita income levels recovered.8 Figure 11.3 shows the curve fitted to the scatter plot for the child survival rate. Each black dot is the observed value of the under-five survival rate in a specific country for a particular year plotted against the country’s per capita GDP

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(2005 PPP$) for the same year. The fitted curve is the APF. The APF defines the level of a state’s obligation for any given per capita GDP level. T H E A DJ U ST E D P E R F O R M A N C E I N D IC AT O R S C O R E

Two things about figure 11.3 should be noted. First, the observed child survival rate never approaches zero. In fact, Niger’s rate of 68% in 1990 is the lowest observed since 1990. The observed minimum score differs widely across indicators. To standardize the range across indicators, the indicator scores are rescaled using the following formula: S = 100 [(actual value – minimum value) / (frontier value – minimum value)] Here S is the rescaled performance indicator score. The numerator of the ratio in brackets reflects the extent to which a given right aspect is enjoyed, while the denominator reflects the extent of the country’s obligation to ensure that right aspect. After multiplying by 100, the rescaled indicator score can be interpreted as the percentage of obligation met. The minimum values are set to approximate the indicator value one would expect to observe in a country with a subsistence per capita income level that places no priority on ensuring ESR. This is approximated as zero for those indicators for which the score significantly depends on state provision of goods and services (e.g. the primary school completion rate); otherwise it is approximated as the minimum value observed in any country in any year since 1990. The second thing to note is that the frontier reaches a peak and then plateaus. In the case of the child survival rate, the frontier reaches a peak at just over $6,000 (2005 PPP). With the exception of the contraceptive-use rate, which peaks asymptotically, all of the frontiers reach a peak at a per capita income level well below the highest observed per capita income level, and there is some difference across indicators in the peak indicator value. The peak per capita income level, call it Yp, is the minimum per capita GDP level required to ensure enjoyment of the aspect of the right concerned by everyone in the population given current knowledge of the measures (legislation, policies, programs, etc.) that promote that goal. Countries with income levels exceeding Yp have more than sufficient income to ensure that everyone enjoys the aspect of the right concerned. The Yp values differ substantially across indicators and are also shown in table A11.3. The rate at which resources can be transformed into enjoyment of the right aspect concerned is shown by the shape of the frontier as it rises to its peak value and is implicit in the estimated frontier equations; those rising more steeply imply greater ease in transforming income into enjoyment of the right aspect concerned. In addition to showing the frontier equations for each indicator, table A11.3 shows the minimum indicator values and the peak indicator values (Xp) for each indicator. In response to feedback

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from a wide range of scholars and practitioners, some of the indicators used to construct the SERF Index as well as some of the values used to rescale the index have been refined in the current version of the SERF Index and differ from those reported by Randolph, Fukuda-Parr, and Lawson-Remer (2010). In particular, gross combined school enrollment rate replaces gross secondary school enrollment rate; percentage of the rural population with access to improved water replaces percentage of total population with access; contraceptive-use rate replaces births attended by skilled health workers; percentage of the population surviving to age 65 replaces life expectancy; and $2 poverty rate replaces $1.25 poverty rate. With regard to the minimum values used to rescale indicators, the distinction between those indicator scores that substantially depend on public provision of goods and services (with a consequent zero minimum) and those that are not is a refinement incorporated into the current version of the SERF Index. The frontier value of the indicator will be the same for countries with per capita income levels, Y, above Yp whether their per capita income level is exactly Yp, two times Yp, or even ten times Yp, and thus their rescaled performance indicator score will be the same. It makes little sense to evaluate two countries with the same indicator score as performing equally well if one has twice as much income as another. The final step in calculating the performance indicator score is to deduct a penalty from the rescaled indicator score when a country has income that is more than sufficient to ensure that everyone in the country enjoys the right aspect concerned but fails to ensure that everyone does so. Thus, the final adjusted performance indicator score, A, is: A = S if Y ≤ Yp A = S – penalty if Y > Yp A number of alternative penalty formulas were considered by Fukuda-Parr, Lawson-Remer, and Randolph (2009), along with a set of axioms defining the characteristics one would like such a penalty formula to have. On the basis of the axioms, penalty formula F was identified as meeting all but the flexibility criterion. A refinement of the penalty formula, offered by Randolph, Fukuda-Parr, and Lawson-Remer (2010), ensures that it meets the flexibility criterion as well. The resultant adjusted indicator score, A, when Y Yp, is: Y β

s ( Yp ) A = 100 (100 )

The value of β determines the severity of the penalty and for purposes of calculating the SERF Index, β is set to 0.5. Figure 11.4 plots the adjusted performance indicator score against the ratio of a country’s per capita GDP to the Yp value for various rescaled performance indicator scores (S scores). For example, the figure indicates that if a country has an S score of 95 percent, the penalty reduces the

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figure 11.4 Penalty for different scaled indicator values. Fukuda-Parr, Lawson-Remer, and Randolph (2011), figure 2; reproduced with permission.

Source:

adjusted performance indicator score to 85 percent as its income rises to ten times the minimum amount necessary to fulfill the right aspect concerned. SU B STA N T I V E R IG H T S I N D IC E S A N D T H E C OM P O SI T E SE R F I N D E X

Each substantive right index is computed as the simple average of the underlying adjusted performance indicator scores for the different aspects of the right assessed. So, for example, the Core Right to Education index is the average of the adjusted performance indicator scores for the primary school completion rate and the combined school enrollment rate. In the event that only a single aspect of a substantive right is assessed, the substantive right index is simply the adjusted performance indicator score on the corresponding indicator. So, for example, the Core Right to Food index is the adjusted performance indicator score for the percentage of children that are not low height for age (not stunted). Thus, differentiating between the different adjusted performance indicator scores with the letter i and using n as the number of adjusted indicator scores relevant to right k, the formula for a given substantive right index Rk is: R k = Σ A i /n The SERF Index itself is a weighted average of the substantive rights indices. Using m as the number of substantive rights incorporated in the SERF Index (five in the current version of the core SERF Index, and four in the case of the current version of the SERF Index for high-income OECD countries), the SERF Index is defined as:

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SERF = [ΣR 1/α /m] α k The current version of the SERF Index sets α equal to 1 and thus is the simple average of the substantive rights indices. Higher values of α place more weight on those rights where fulfillment falls shortest.9 Figures A.11.1 and A.11.2 (of in the aAppendix) provide a schematic overview of the steps involved in constructing the SERF Index for core and high-income OECD countries, respectively. C O N C LU D I N G R E M A R K S

The international SERF Index in both its variants provides a tool to monitor state parties’ compliance with their obligations of results under the ICESCR. It is the first methodology to do so in a manner that rigorously makes the standard of progressive realization operational. As national and international human rights NGOs shift their focus to include economic, social, and cultural rights (see the chapter by Nelson), the need for measures reflecting the extent to which states are meeting their obligations increases. “Naming and shaming” campaigns confronting states with evidence that their claims of insufficient resources are hollow carry more clout than those that do not. Similarly, measures demonstrating that states have the capacity to do much more than they are doing can make the demands of national and international development NGOs more credible than evidence that basic needs are not being fulfilled, especially in contexts, such as the Indian context discussed in the chapter by Hertel and Randolph, where it is clear that resources are insufficient to fulfill needs for all. The SERF Index also provides a powerful tool for use in quantitative analyses directed towards identifying the policy regimes and circumstances that best facilitate the fulfillment of ESR and the existence and extent of any trade-offs between countries fulfilling their obligations of result under the ICESCR and other policy objectives. As shown in the chapter by Hertel and Randolph, the application of the SERF Index to the Indian context at the sub-national level clearly reveals that although they are important, inadequate resources are not the key challenge to fulfilling the right to food. An examination of the policies and practices in place in those Indian states that do a relatively better job of fulfilling the right to food helps clarify the factors impeding fulfillment in those states performing poorly and sheds light on the kinds of policies and practices that are likely to increase fulfillment. The SERF methodology provides a means to construct country-specific SERF indices that focus on the specific ESR challenges of a country and take advantage of the richer data that may be available at the country level. Such indices can be used to develop or challenge legal standards of reasonableness in contexts, such as the South African context discussed in the chapter by Klug, where standards of reasonableness are used by courts when deciding cases concerning constitution-

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ally guaranteed ESR. Country-specific SERF indices can be designed to facilitate assessment of differences in ESR fulfillment across sub-national units and between different ethnic or other population subgroups, shining a light on areas where discrimination may exist and providing a means to identify local-level policies and interventions that enhance the realization of ESR. Such country-specific SERF indices can provide potent data for citizens using the social accountability approach (discussed in the chapter by Sano) to promote social change. They offer a powerful complement to community-based measures such as the GIS mapping of violations discussed in the chapter by Aggarwal and Haglund. Together, the SERF Index and the SERF methodology offer potent new tools to help promote social transformation furthering economic and social rights fulfillment. NOTES 1. The SERF Index does not attempt to incorporate the extent to which states are fulfilling their obligations with regard to cultural rights in view of the dearth of available quantitative data on the enjoyment of cultural rights. 2. The committee elaborates on the nature of countries’ obligations in its “General Comment 3” of 1990. 3. Cingranelli and Richards (2007) also include a dummy variable regressor reflecting whether or not the country is a signatory or party to the ICESCR. 4. The SERF index does not separately include the right to water in view of its inextricable link to the rights to adequate housing, health, and adequate food, as underscored in General Comment 15 (CESCR, 2003). The right to intellectual property rights discussed in General Comment 17 (CESCR, 2006b) has been excluded from the SERF Index; this right is more appropriately monitored using a violations approach. 5. Although knowledge of how to transform resources into rights enjoyment will change over time, rapid and abrupt changes in best-practice technology are unlikely. 6. The APFs were constructed in 2008 using all data available at that time since 1990. 7. Fukuda-Parr, Lawson-Remer, and Randolph (2009) and Randolph, Fukuda-Parr, and Lawson-Remer (2010) further detail the basic methodology; the current version of the index incorporates some additional refinements, as detailed in Fukuda-Parr, LawsonRemer, and Randolph (2011, 2015). 8. See Fukuda-Parr, Lawson-Remer, and Randolph (2009, 2015) and Randolph, FukudaParr, and Lawson-Remer (2010) for further details. 9. Users preferring a higher value of α can construct their preferred version of the SERF index from the substantive rights indices provided by using the above weighting formula.

REFERENCES Alston, Philip, and Gerald Quinn. 1987. “Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 9(2):156–229. www.jstor.org/pss/762295.

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Chapman, Audrey R. 2007. “The Status of Efforts to Monitor Economic, Social, and Cultural Rights.” In Economic Rights: Conceptual, Measurement and Policy Issues, edited by Shareen Hertel and Lanse Minkler, 143–64. New York: Cambridge University Press. Cingranelli, David, and David Richards. 2007. “Measuring Government Effort to Respect Economic and Social Human Rights: A Peer Benchmark.” In Economic Rights: Conceptual, Measurement and Policy Issues, edited by Shareen Hertel and Lanse Minkler, 214– 32. New York: Cambridge University Press. Committee on Economic, Social and Cultural Rights. 1990. General Comment 3: The Nature of States Parties’ Obligations (art. 2.1). (5th Session CESCR, 1990) U.N. doc. E/1991/23, December 14. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx? Lang=en&TreatyID=9&DocTypeID=11. . 1991. General Comment 4: The Right to Adequate Housing (art. 11.1). (6th Session, 1991). U.N. Doc. E/1992/23, December 13. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 1997. General Comment 7: The Right to Adequate Housing (art. 11.1): Forced Evictions. (16th Session CESCR, 1997). U.N. Coc. E/1998/22, May 20. http://tbinternet.ohchr .org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTyp eID=11. . 1998. General Comment 9: The Domestic Application of the Covenant. Nineteenth session, 16 November–4 December, Doc. E/C.12/1998/24, December 3. http://tbinternet .ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTy peID=11. . 1999a. General Comment 13: The Right to Education (art. 13). (21st Session CESCR, 1999). U.N. Doc. E/C.12/1999/10, December 8. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 1999b. General Comment 12: The Right to Adequate Food (art. 11). (20th Session CESCR, 1999). U.N. Doc. E/C.12/1999/5, May 12. http://tbinternet.ohchr.org/_layouts /treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 1999c. General Comment 11: Plans of Action for Primary Education (art. 14). (20th Session CESCR, 1999). U.N. Doc. E/C.12/1999/4, May 10. http://tbinternet.ohchr.org/_ layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 2000. General Comment 14: The Right to the Highest Attainable Standard of Health (art. 12). (22nd Session CESCR, 2000). U.N. doc. E/C.12/2000/August 4. http://tbinternet. ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTyp eID=11. . 2003. General Comment 15: The Right to Water (arts. 11 & 12). (29th Session CESCR, 2002). U.N.Doc. E/C.12/2002/11, January 20. http://tbinternet.ohchr.org/_layouts /treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 2006a. General Comment 18: The Right to Work (art. 6). (35th Session CESCR, 2005). U.N. Doc. E/C.12/GC/18, February 6. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 2006b. General Comment 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary, or Artistic Production of Which He or She is the Author (art. 15.1.c.). (35th Session CESCR, 2005). U.N.

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Doc. E/C.12/GC/17, 12 January. http://tbinternet.ohchr.org/_layouts/treatybodyexternal /TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. . 2008. General Comment 19: The Right to Social Security (art. 9). (39th Session CESCR, 2007). U.N. Doc. E/C.12/GC/19, 4 February. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11. Fukuda-Parr, Sakiko, Terra Lawson-Remer, and Susan Randolph. 2009. “An Index of Economic and Social Rights Fulfillment: Concept and Methodology.” Journal of Human Rights 8:195–221. . 2011. SERF Index Methodology: Version 2011.1, Technical Note. www.serfindex.org /wp-content/uploads/2011/02/Data-Technical-Note.pdf. . 2015. Fulfilling Social and Economic Rights. New York: Oxford University Press. Kimenyi, Mwangi. 2007. “Economic Rights, Human Development Effort, and Institutions.” In Economic Rights: Conceptual, Measurement and Policy Issues, edited by Shareen Hertel and Lanse Minkler, 182–213. New York: Cambridge University Press. Leckie, Scott. 1998. “Another Step towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights.” Human Rights Quarterly 20(1):81–124. Office of the High Commissioner for Human Rights (OHCHR). 2012. Human Rights Indicators: A Guide to Measurement and Implementation. U.N. Doc. HR/PUB/12/5. Geneva: United Nations. www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf. Pogge, Thomas. 2005. “Real World Justice.” Journal of Ethics 9(1):29–53. Randolph, Susan, Sakiko Fukuda-Parr, and Terra Lawson-Remer. 2010. “Economic and Social Rights Fulfillment Index: Country Scores and Rankings.” Journal of Human Rights 9:230–61. United Nations. 1948. Universal Declaration of Human Rights, adopted December 10, 1948, United Nations General Assembly Res. 217 A (III) (1948), New York. www.un.org/en /documents/udhr/. . 1966a. International Covenant on Civil and Political Rights, adopted December 16, 1966, General Assembly Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N.Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force March 23, 1976). www.ohchr.org/en /professionalinterest/pages/ccpr.aspx. . 1966b. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966. Adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force January 3, 1976). www.ohchr .org/EN/ProfessionalInterest/Pages/cescr.aspx. . 1987. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. Guidelines adopted at a workshop sponsored by the International Commission of Jurists, the Faculty of Law of the University of Limburg, and the Urban Morgan Institute for Human Rights, University of Cincinnati. Maastricht, Netherlands, January 22–26, 1997, UN doc. E/CN.4/1987/17. . 2000. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Guidelines adopted at a workshop sponsored by the International Commission of Jurists, the Urban Morgan Institute for Human Rights, and the Center for Human Rights of the Faculty of Law of Maastricht University. Maastricht, Netherlands, January 22–26, 1997. UN doc. E/C.12/2000/13.

High-income OECD index

World Health Organization, Global Database Prevalence of child malnutrition is the percentage of children under Malnutrition age 5 whose height for age (stunting) is more than two standard prevalence—height on Child Growth and Malnutrition. deviations below the median for the international reference for age (% children Extracted from WDI Online, WHO (http:// population ages 0–59 months. For children up to two years old under 5) (→ % not apps.who.int/ghodata/), and UNICEF height is measured by recumbent length. For older children (www.childinfo.org). stunted) height is measured by stature while standing. The data are based on the WHO’s new child growth standards released in 2006. Low birth weight babies are newborns weighing less than 2,500 UNICEF, State of the World’s Children, Low-birth-weight grams, with the measurement taken within the first hours of life, Childinfo, and Demographic and Health babies (→ % not before significant postnatal weight loss has occurred. Surveys by Macro International. Extracted low birth weight) from WDI Online.

GDP per capita based on purchasing power parity (PPP). PPP GDP is gross domestic product converted to international dollars using purchasing power parity rates. An international dollar has the same purchasing power over GDP as the U.S. dollar has in the United States. GDP at purchaser’s prices is the sum of gross value added by all resident producers in the economy plus any product taxes and minus any subsidies not included in the value of the products. It is calculated without making deductions for depreciation of fabricated assets or for depletion and degradation of natural resources. Data are in constant 2005 international dollars.

Core index

Right to food

WB International Comparison Program database. Extracted from WDI Online (see URL in notes, below).

Indicator definition (quoted directly from cited source)

GDP per capita (2005 PPP$)

Available resources

Primary source

Both indices

Indicator

table A11.1 SERF Index Indicator Definitions

APPENDIX

Both indices

Both indices

Core index

Core index

High-income OECD index

Average of country mean quality of learning outcome scores on mathematics and science subject tests.

Primary completion rate is the percentage of students completing the last year of primary school. It is calculated by taking the total number of students in the last grade of primary school, minus the number of repeaters in that grade, divided by the total number of children of official graduation age. [Capped at 100% for our purposes.] Gross enrollment ratio. All levels combined (except pre-primary). All students. [Capped at 100% for our purposes.]

Household surveys, including Demographic Contraceptive prevalence rate is the percentage of women who are Contraceptive practicing, or whose sexual partners are practicing, any form of and Health Surveys by Macro International prevalence rate (% contraception. It is usually measured for married women ages and Multiple Indicator Cluster Surveys by women 15–49) 15–49 only. UNICEF. Extracted from WDI Online. Births attended by skilled health staff are the percentage of UNICEF, State of the World’s Children, Births attended by deliveries attended by personnel trained to give the necessary Childinfo, and Demographic and Health skilled health staff supervision, care, and advice to women during pregnancy, labor, Surveys by Macro International. Extracted (% total births) and the postpartum period; to conduct deliveries on their own; from WDI Online. and to care for newborns. Survival to age 65 refers to the percentage of a cohort of newborn Survival to age 65 (% United Nations Population Division, 2009; infants that would survive to age 65 if subject to current age cohort) World Population Prospects, 2008 Revision. specific mortality rates. Extracted from WDI Online. Under-five mortality rate is the probability per 1,000 that a Child mortality rate Inter-Agency Group for Child Mortality newborn baby will die before reaching age five, if subject to Estimation (UNICEF, WHO, World Bank, (→ % under-5 current age-specific mortality rates. UNPD, universities and research institusurvival rate) tions). Extracted from WDI Online.

Right to health

UNESCO Institute for Statistics. Extracted Gross combined from http://data.uis.unesco.org/. school enrollment rate Average math & OECD Programme for International Student science PISA score Assessment. Extracted from http:// pisacountry.acer.edu.au/.

Both indices

UNESCO Institute for Statistics. Extracted from WDI Online.

Primary school completion rate

Core index

Right to education

World Health Organization and United Nations Children’s Fund Joint Measurement Programme (www.wssinfo.org). Extracted from WDI Online.

Rural improved water (% rural population with access)

Poverty headcount ( $25112 enrollment 555 High-income PISA: average PISA = 332.345 + 0.017203(GDPpercap) – OECD math and science PISA 0.000000323068(GDPpercap_SQ); 555 for GDPpercap > $22190 score Developing

$1,076

0%

$25,112

0%

$22,190

310 (Peru 2000 )

table A11.3 (continued) Right to health Developing

Both

Both

CU = 82.753 – CU: % 8507.686/GDPpercap prime-aged couples using contraceptives U5S = 100.895 – U5S: child 7334.1/GDPpercap; constrained (under 5) to 99.74 for GDPpercap > $6350 survival rate 65S = –90.820 + 65S: % 35.481(LN GDPpercap) – surviving to 1.742(LN GDPpercap_SQ); 89.85 age 65 for GDPpercap ≥ $26450

0%

82.75%

Peaks asymptotically

99.74%

$6,350

89.85%

$26,450

20%

$6,453

0%

$3,970

0%

98%

$3,824

0%

94.7

$16,000

26 (Slovak Republic 2006)

95.8

$16,000

72 (Peru 2004)

68% (Niger 1990)

Right to housing Developing

Developing

100% RW = –22.905 + RW: % rural 19.634(LN GDPpercap) – population 0.641(LN GDPpercap_SQ); 100% with access for GDPpercap ≥ $6453 to improved water GS: % access GS = 9.04405(GDPpercap)0.289997; 100% improved 100% for GDPpercap $3970 (good) sanitation Right to work

NP = –1869.552 + NP: % not 471.876(LN GDPpercap) – poor = % with income 28.289(LN GDPpercap_SQ); 98% for GDPpercap ≥ $3824; 0 if $2 (2005 PPP) per day GDPpercap ≤ $730 ULTU = 94.7 (Norway 2000; High-income ULTU: % OECD unemployed highest value achieved by fourth-best-performing not high-income OECD country long-term unemployed since 1990) High-income NRP: % not NRP = 95.8 (Finland 1995; OECD relatively highest value achieved by poor = % fourth-best-performing with 50% high-income OECD country median since 1990) income Developing

SOURCE: Table A.3 in Fukuda-Parr, Lawson-Remer, and Randolph (2011). Reproduced with permission. Note: GDPpercap is gross domestic product (GDP) per capita, measured in 2005 purchasing power parity (PPP) dollars. GDPpercap_SQ is GDP per capita squared, measured in 2005 PPP dollars.

65S: % Age 65 Survival Rate

PC: Primary Compleon Rate

CS: Combined Enrollment Rate

Educaon

1/3

65S Index

1/2

Right to Educaon Index

1/2

PC Index

CS Index

1/α

+ Right to Health Index

1/α

+ Right to Educaon Index

SERF INDEX

Source:

Fukuda-Parr, Lawson-Remer, and Randolph (2011), figure A.1; reproduced with permission.

1/2

RW Index

1/α

+ Right to Work Index

Right to Housing Index

1/2

GS Index

+ Right to Housing Index

Core Social and Economic Rights Fulfillment Index

Right to Health Index

1/3

U5 Index

1/α

GS:% Improved RW: % Improved Sanitaon Rural Water

Housing

Step 2: Adjust Index for countries with Y > Yp—Adjusted Index = 100[(Index/100) raised to (Y/Yp)β

1/α

1/3

CU Index

U5S: % Under 5 Survival Rate

Health

Step 1: Index = [(Indicator Value – Minimum Value) / (Froner Value – Minimum Value)] * 100

CU:Use Contracepves

Step 3: [(Right to Food Index

Right to Food Index

NS: % Children (0-5) Not Stunted

Food

figure A11.1 Social and Economic Rights Fulfillment (SERF) Index for core countries.

INDEX

RIGHT

INDEX

INDICATOR

INDICATOR

RIGHT

α

)/5]

Right to Work Index

NP: % Not Poor (>$2 2005 PPP$)

Work

Right to Food Index

U5S: %Under 5 Survival Rate

Health CS: Combined Enrollment Rate

PISA: Average of Math & Science PISA Score

Educaon

1/2

1/α

High Income OECD Country

1/2

1/α

+ Right to Health Index

1/α

+ Right to Educaon Index

Source:

1/α

α

+ Right to Work Index )/4]

1/2

PISA Index

Right to Educaon Index

CS Index d

Social and Economic Rights Fulfillment Index

Right to Health Index

1/2

U5S Index

Fukuda-Parr, Lawson-Remer, and Randolph (2011), figure A11.2; reproduced with permission.

1/2

ULTU Index

Right to Work Index

1/2

NRP Index

Step 2: Adjust Index for countries with Y > Yp—Adjusted Index = 100[(Index/100) raised to (Y/Yp)β]

65S Index

Work NRP: % Not ULTU: % Unemployed Not Relavely Poor Long-term Unemployed

Step 1: Index = [(Indicator Value – Minimum Value) / (Froner Value – Minimum Value)] * 100

65S: %Age 65 Survival Rate

Step 3: [(Right to Food Index

NLW: % Normal (not low) Birth Weight

Food

figure A11.2 Social and Economic Rights Fulfillment (SERF) Index for high-income OECD countries.

INDEX

RIGHT

INDEX

INDICATOR

INDICATOR

RIGHT

Chapter 12

Deepening Our Understanding of Rights Realization through Disaggregation and Mapping Integrating Census Data and Participatory GIS Rimjhim Aggarwal and LaDawn Haglund

An important contribution of the human rights–based approach to development is its attention to the most marginalized and vulnerable populations. It has been argued that the emphasis of the Millennium Development Goals on averages often gives states an incentive to concentrate their efforts on relatively easy-to-reach populations (OHCHR 2009). As an antidote, several international development agencies have begun to use socioeconomic data disaggregated by income, gender, race, ethnicity, and other dimensions of discrimination to better identify and track vulnerable groups. This constitutes a key difference between indicators of human development, on average, and human rights–based approaches (Roaf, Khalfan, and Langford 2005). In this chapter we argue that in addition to identifying who are the vulnerable groups in terms of these socioeconomic characteristics, it is also important to identify where these people live and what are the spatial patterns and mechanisms that underlie their exclusion. Although there is widespread recognition that location and spatial interactions can produce geographically segmented patterns of service provision, an explicit spatial analysis of economic and social rights (ESR) realization is still lacking. Understanding the spatial distribution of access is particularly important for large infrastructure-related services, like water and sanitation (W&S), which have to be brought to the population—unlike say, education and health, to which the population “commutes” to some extent (Torres and Bichir 2009). For these kinds of services, the availability of infrastructure in proximity to the housing unit is a critical indicator of well-being. From a human rights perspective, this implies that it is important not only to track the total amount of investment allocated to service

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provision for the vulnerable groups but also to map this provision in relation to where the vulnerable groups live, to ensure that these groups are able to easily access these services. Monitoring progress in ESR realization requires us to examine whether expansion of coverage continues to neglect specific areas and the populations therein. For instance, it is often observed that even with a pro-poor infrastructure provision policy, the poor living in certain areas (such as slum and squatter settlements or water-protected areas or peripheries of the city) are continually neglected while access for the poor living in other parts of the city is gradually improved (Kundu 2004; Whately and Diniz 2009). If the policy goal is to show improvement in the overall percentage of people with access, then from a narrow economic cost perspective it may be more efficient to focus on people living in areas with existing infrastructure networks than to target new areas that are geographically isolated (e.g. in periphery of the city) or politically more contentious (e.g. slums or water-protected areas). Thus, we need to ask whether there are some specific places (hot spots) where vulnerable populations tend to concentrate or whether they are more widely distributed across the city. Varied patterns of distribution may reflect very different kinds of underlying mechanisms and processes of exclusion, and call for different intervention strategies. In order to answer these questions we need human rights indicators that are not only disaggregated by different socioeconomic categories but also geographically referenced. This need is particularly well illustrated by the case of megacities such as the Metropolitan Region of São Paulo (MRSP), where around 1.2 million people lacked access to piped water in 2006, despite the high (94 percent) overall coverage rate (Whately and Diniz 2009). Such numbers represent a significant shortcoming from a human rights perspective, but without further disaggregation it is difficult to identify how or where to focus efforts to improve water service delivery. As Roaf, Khalfan, and Langford (2005, 18) observe, “currently, human development indicators tend to demonstrate the extent of the problem but they do not provide disaggregated information nor assess governance related obstacles to the provision of adequate water supply and sanitation.” In terms of the MAPs (mechanisms, actors, and pathways) framework outlined in the introductory chapter, it is important to understand that alternative mechanisms—such as legal mobilization, court cases, infrastructure-related policies, and social movements—are themselves embedded in particular geographies, and thus the processes through which they function and their impacts are also specific to particular places and the population groups that reside there. The current human rights indicators do not provide the spatially disaggregated information that is necessary to analyze the place-based implications of functioning and impacts of alternative mechanisms. Maps have a special relevance in this regard, because they can tell important stories in a few words and open spaces for dialogues among affected population groups, NGOs, utility officials, and donor agencies that can eventually lead to pathways for action.

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As a recent assessment report from Uganda on access to W&S puts it, maps can help “empower the public to query government priorities, advocate for alternative interventions, and exert pressure for better decision-making” (World Resources Institute 2009, 9). Thus, maps can have informational and symbolic value and can be used to facilitate cooperative approaches (such as dialogue-building and creation of participatory spaces), to empower the affected population groups to pressure those in power, and to provide evidence for legal action. The objective of this chapter is to show how we can deepen our understanding of ESR realization through disaggregation and spatial referencing, using existing (e.g. census) data in innovative ways, as well as collecting new data through participatory research methods. In the first part of this chapter, we show how maps constructed through the use of geographic information systems (GIS) can help integrate data from the census on different socioeconomic indicators (such as access to services, education, poverty, caste, etc.) at different jurisdictional levels (metropolitan, municipality, and neighborhood) to provide a more coherent picture of the spatial patterns of exclusion. Our work illustrates how such an exercise can help better identify and characterize vulnerable groups (in term of linking their socioeconomic and spatial characteristics) and contribute to a deeper understanding of the spatial mechanisms and processes that underlie exclusion. In the second part of the chapter, we discuss the shortcomings of census data and how some of these can be addressed through engagement of local communities in new kinds of data collection, monitoring, and integration processes that could become the backbone of human rights monitoring and realization. In order to engage local communities it is essential that data collection take place at a level that is relevant to them (for instance, at a neighborhood or community level) and that the indicators developed are easily comprehensible and can be used by various actors to hold states accountable. To illustrate these exciting possibilities offered by GIS-based spatial representation of ESR realization, we draw on analyses conducted as part of our ongoing research on access to W&S in the MRSP and in the National Capital Territory of Delhi. A comparative study of these two megacities, each with a population close to 20 million, shows the potential of GIS in representing—through the use of simple maps—the diverse and highly complex patterns of exclusion at the metropolitan scale. These metropolitan areas, which are among the richest in their respective countries, have significant numbers of people without access to W&S. We begin in the next section by discussing what kinds of spatially referenced data are available from the census for these two cities and what methods can be used to represent access to W&S and other related variables using GIS. In the third section we discuss how we have used maps based on these data to better understand the diverse and highly complex patterns of exclusion in these metropolitan areas (e.g.,

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core–periphery distribution patterns and/or hot spots of exclusion). We also discuss some limitations of census data, followed by examples in the fourth section of how maps have been developed and used in local participatory settings and how these can become tools to empower marginalized people challenging existing political and economic power structures and bring about transformative change. We conclude with a brief statement about the possibilities of GIS analysis for documenting and promoting ESCR rights realization. DATA A N D M E T HO D S

Given our interest in examining the spatial distribution of household access to W&S services at the metropolitan scale, we began our journey by first exploring what kinds of thematically and spatially disaggregated data were available from the census for Delhi and the MRSP. The advantage of census data is that they are readily available and often in a standard format that enables comparisons across cities within a country and to some extent also across countries. Thus, census information, although limited and often incomplete, is still very useful as a first point of reference. Preparation of administrative maps has also been an integral component of censuses. However, for a long time, traditional census-generated maps had fixed projections and scale, which made it difficult to combine different maps or to overlay and simultaneously examine multiple socioeconomic indicators and major social infrastructure. The possibility of organizing data digitally within GIS now makes it rather simple to convert the coordinate system and scale, and thus combine and overlay maps to examine associations between different variables. Spatial data is relatively easy to search and analyze within GIS, and the capacity for building interactive maps help users identify and analyze what interests them. Visualization in GIS is arguably its most powerful and widely used function (Pavlovskaya 2006). Data availability in Brazil is extensive, thanks in part to the efforts of government agencies such as the Brazilian Institute of Geography and Statistics (IBGE). The IBGE is responsible for the decennial national census and the yearly National Household Survey (Pesquisa Nacional por Amostra de Domicílios, or PNAD), and is a rich source of information, data, and tools for geographic analysis. The 2000 census for the first time had areas de ponderaçao (census tracts) representing 882 particular neighborhoods within MRSP, ranging in size from less than 8,000 to more than 100,000 people. Though most of our census analyses were carried out using the 162 MRSP districts, these sub-units can assist researchers in fine-tuning their understanding of phenomena at smaller scales. All data collected by the IBGE since 1970 are available for purchase from their website, as well as from one of the IBGE’s offices in major cities around Brazil. The data collected by the IBGE are georeferenced, greatly facilitating the work of those who seek to apply GIS analysis to

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socio-demographic information. The Center for Metropolitan Studies (CEMCEBRAP) also has a GIS database containing raw data, maps, and articles based on socio-demographic and environmental GIS analysis. More recently, a “third wave” of GIS development, in particular Geospatial Web 2.0 platforms, has extended the possibilities for citizen participation in monitoring, planning, and decisionmaking efforts (Oliveira, Sampaio, and Carmo 2010). Efforts by the Brazilian government to foster geographic analysis have also led to the creation of tools, such as the National Infrastructure for Spatial Data (Infraestrutura Nacional de Dados Espaciais, or INDE), to facilitate integrated geospatial information management. GIS tools within the Census of India began to be developed around the late 1990s. Census GIS India, initiated in 2001, allowed for the interactive generation of thematic maps using GIS technology (Census of India, 2011). Software was developed and made available through the Census of India’s website for this purpose. However, for 2001, maps could only be produced for the district level from this website, and we were interested in generating ward-level maps (the lowest administrative level, in the case of India). We therefore obtained spatial files on ward boundaries and combined them ourselves with ward-level census data on different variables of interest. In the 2001 census, Delhi contained 134 wards. The data from Census 2011 were not available at the ward level at the time of writing this chapter, so we focused on the use of data from Census 2001 for both cities. An important challenge in conducting cross-country comparative work using secondary data is to make sure that the variables used for the analysis are defined similarly across sites. For most variables of interest in this analysis we were able to find comparable data, but there were some important exceptions. For instance, the Brazilian census contains information on both poverty and extreme poverty, but the Indian census contains no directly equivalent measure. It does include data on housing conditions and ownership of household assets, and it identifies “slum enumeration blocks,”1 but it does not contain information on incomes or expenditures. We also found that some data were collected in one place but not the other, making one-to-one comparisons of contributing factors difficult. For example, data on literate female household heads were available for MRSP but not Delhi; information regarding the percentage of the population belonging to low castes was relevant and available for Delhi only. Despite the challenges of finding adequate comparative data, our mapping of existing census data from MRSP and Delhi proved illuminating. SPAT IA L A NA LYSI S U SI N G C E N SU S DATA

In this section we report the results of our spatial analysis of W&S access using census data. Each step of the process provided useful insights, helping to clarify underlying contexts, raising new questions, and suggesting additional analysis

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using different combinations of variables. In the process, we were able to draw some lessons regarding the adequacy of census-based GIS analysis for understanding and representing the human right to water and sanitation, as well as possible additional data and analysis that may be desirable or appropriate. Providing adequate access to W&S services in large metropolises of the developing world continues to be an important challenge. MRSP sprawls along the upper portion of the largest river in the state of São Paulo, the Tietê, encompassing several sub-basins. The rise of São Paulo as a major industrial center and the rapid increase in its population over the past decades have placed a severe strain on its water resources. With a current population of around 20 million, it is estimated that MRSP has one-seventh of the amount of water per inhabitant that the UN deems critical (Whately and Diniz 2009). Given this low relative availability of natural water sources, MRSP relies heavily on water withdrawals from neighboring basins. The water supply utility currently operates eight water production systems, of which the largest, the Cantareira System, transfers the waters of the Piracicaba River through a complex system of dams, reservoirs, canals, and pumping stations to the upper Tietê basin. Similar pressures on water availability are faced by Delhi, which has a population of around 16 million. The River Yamuna flows along the eastern side of the city and has historically been the major source of water for city. Rapid population growth in Delhi has also led to the search for distant sources of water as well as increasing reliance on groundwater. We began our analysis by looking at the spatial distribution of W&S services. According to the census, around 96 percent of households had access to piped water in the MRSP, and around 75 percent in Delhi, in 2000. Although the coverage rate in the MRSP is relatively high, its large population size translates into a fairly large absolute number of unserved people—around 1.2 million in the metropolitan area in 2006, according to estimates based on data from the Sistema Nacional de Informações sobre Saneamento (Whately and Diniz 2009). Similarly, in Delhi, an estimated 3.9 million lacked access to piped water in 2005–06 (Center for Science and Environment 2012). Given the mandate of universal access in both cities, we were interested in understanding how this coverage is spatially distributed across these two metropolises and what are the characteristics of the underserved areas and the populations therein. Having established the ward (Delhi) and district (MRSP) maps as our basic foundation, we mapped data on access to water (with “access” defined as a piped water source within 200 yards) for the two cities. Maps 12.1 and 12.2 show the spatial distribution of access to water at the district level for the MRSP and at the ward level for Delhi, respectively. In order to visually compare how access to water is distributed in these and the other maps that follow, we classified levels of access into three categories: low (less than 50 percent of households have access), moderate (50–90 percent of households have access), and high (more than 90 percent of households have access).

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Permanent Private Dwellings Rivers

with Water Access at District Level 0–25%

Reservoirs

25–50% 50–75% 75–100%

map 12.1 Spatial distribution of access to piped water, São Paulo Metropolitan Region.

It is worth noting that in Delhi around half the population lives in wards with moderate access to water. In contrast, in MRSP, only around 5 percent of the population lives in districts with moderate access, and although overall coverage rates are high, the disparity in access between districts is quite sharp. In particular, we observe that levels of access decline sharply as one moves from the center of the metropolitan areas to the periphery in all directions (with the most deprived districts along the southwestern and south-central border). In Delhi also, one can see a core–periphery pattern, but it is not as sharp as in MRSP. Here too, the wards with low access lie on the periphery (particularly, east of the River Yamuna and on the northwestern and southeastern boundaries). This pattern of core–periphery differentiation in distribution of basic services has been widely observed and discussed in the literature on urbanization in the developing world (Kundu 2004; Dupont 2004; Jacobi 2004). Our mapping provides some broad support for the core– periphery pattern, although we find that the periphery itself is highly differentiated, with some segments much more deprived than others. The much sharper core– periphery differentiation in MRSP compared to Delhi is intriguing. Specifically

map 12.2 Spatial distribution of access to piped water, Delhi.

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from the perspective of ESR realization, one wonders why, in a metropolitan area like MRSP with overall high levels of access, there are localized pockets of low access, and why these lie largely along the periphery. In Delhi, by comparison, wards with low access are more spread out across the metropolitan area. Broadly speaking one can classify the situation in MRSP as “high access to water in general, with localized pockets of deprivation along the periphery” and in Delhi as “moderate access to water in general, with pockets of deprivation scattered throughout.” Once we had generated maps showing the patterns of distribution in access to water, the second step was to overlay information on access to sanitation. The literature indicates that from a technological and ecological standpoint, water provision and sanitation provision are linked and should be managed in an integrated manner. In the human rights literature also, W&S services are often conceptualized as a single right. However, despite the close conceptual connections, there is a great deal of evidence suggesting that infrastructure development in the two sectors is highly uneven. Costs of provision and management vary significantly between them, and the “public goods” nature of these two services is perceived very differently by citizens, service providers, and local governments. Throughout the developing world, sanitation targets have been much harder to reach than those for water (Joint Monitoring Programme 2010). The spatial distribution of access to these services is therefore likely to vary considerably. We thought it worthwhile to investigate further the extent to which access to sanitation and to water varied across these contexts, in the hope of clarifying some of the complex realities that underlie their management. Not surprisingly, household access to sanitation is much lower than that for water in both our cases (maps 12.3 and 12.4). In MRSP, only 81 percent of households had access to sanitation in 2000, which in sheer numbers equates to a significant number of residents without basic facilities. In the case of Delhi, we found information on access to sanitation to be missing for a number of wards that lie along the outer, largely rural regions of the city. Wards without complete information are shown as dotted area (map 12.4). Based on the available information, only around 40 percent of households had access to sanitation in Delhi in 2000. In MRSP, all the districts with low access to water also have very low access to sanitation, and thus low access to water seems to be a good predictor of low access to sanitation. But the converse is not necessarily true. There are several areas where access to sanitation is low but access to water is not, in particular along the northwestern border and toward the center. This suggests that the underlying conditions that are associated with low access to water are also associated with low access to sanitation; but improving access to sanitation poses somewhat greater challenges than access to water. Aggregated statistics at the city or national level from global reports, such as the assessment

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Households with Access to Water < 50% 50–75%

Permanent Private Dwellings with Access to Sanitation 0–25% 25–50% 50–100%

map 12.3 Spatial distribution of access to sanitation and piped water, São Paulo Metropolitan Region.

report on the Millennium Development Goals (Joint Monitoring Programme for Water Supply and Sanitation 2010), also point to the greater challenges of providing access to sanitation. In the case of Delhi, this is confirmed at the city level but not necessarily at the ward level. There are quite a few wards across the central and southern parts of the city where access to water is low but access to sanitation is moderate-to-high. For the wards that lie in the southern region, this anomaly could be explained by the growing water scarcity in this part of the city, where surface water is not available and groundwater tables are low, and falling rapidly. Disaggregated data at the ward level helps highlight such local anomalies, which are reflections of local conditions that need to be investigated in greater depth in consultation with the populations who reside there. Given these patterns of deprivation in access to W&S, we became interested in exploring how these patterns could be explained by the distribution of other socioeconomic, demographic, hydrologic, or administrative variables. Previous studies have found a strong correlation between poverty and access to basic services, and poverty data are often used to target investments in W&S (World Resources Institute 2009). Does this imply that poverty mapping would show some of the same patterns (such as the core–periphery distinction) that we observed in the maps for access to W&S? Map 12.5 shows the spatial distribution of access to water and sanitation in MRSP over a base map of distribution of extreme poverty. We

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map 12.4 Spatial distribution of access to sanitation and piped water, Delhi.

noted immediately that these patterns and linkages differed between water and sanitation, and became interested in exploring how and why. While access to water and to sanitation show fairly strong core–periphery patterns, the map of extreme poverty shows no clear pattern. Districts along the periphery are not necessarily the ones with the highest poverty concentrations. In fact we found that districts

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Households in Extreme Poverty 0–10%

Households < 50% Access to Water < 50% Access to Sanitation

10–20% > 20%

< 50% Access to Water and Sanitation

map 12.5 Distribution of extreme poverty and access to piped water and sanitation, São Paulo Metropolitan Region.

along the periphery are highly heterogeneous in terms of their levels of extreme poverty, with those along the eastern border having very low levels and those along the south-central border having the highest (more than 20 percent). A moderate range of extreme poverty (10–20 percent) is found in districts all across the metropolis, including some of the districts in the center. Thus, extreme poverty is a more generalized phenomenon than access to W&S in the MRSP. Not surprisingly, districts with multiple deprivations—low access to water and sanitation as well as high levels of extreme poverty—lie along the southern periphery. From a human rights perspective, this is where the most marginalized populations live. In addition, it is worth noting that there are a number of districts on the periphery, particularly along the eastern side, which suffer from low access to W&S but do not have high poverty rates. An important policy implication here is that targeting of services based solely on poverty rates, as is often done, may miss districts where basic human rights continue to go unfulfilled. As mentioned before, data on poverty are not collected in the Indian census; so for the case of Delhi we looked at “percentage of slum population” as a close proxy to poverty rate. According to the census, around 1.8 million people were living in slum settlements in 2000. For the same period, the Ministry of Environment put the figure at two and half times as high: 4.7 million. These data suggest that between one-fifth and one-third of the total city population resides in slums. We expected

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mapping of slum populations to correspond closely to the mapping of access to services, based on our prior understanding and a review of the literature. However, our mapping exercise revealed that the relationship between these two variables is not so simple. We found two large clusters of slum households in Delhi (map 12.6): one in the central region of the city, stretching east along the banks of the River Yamuna, and the other on the southeastern border of the city. For the first cluster, we actually found coverage of water services to be moderate-to-high. In the second cluster, we found access to water to be very low.2 This suggested that it is not the label of “slum” that is important but the location, which seems to matter more from a service provision perspective. Clearly, we need more information than is available in the census to make sense of what is going on. Some studies suggest that older slums (in terms of date of establishment) and those in the core of the city have better access to services (Dupont 2004; Kundu 2004; Baud et al. 2009). This is probably because their proximity to the core gives them greater visibility and enables them to leverage greater political support than slums on the outskirts. Another important factor is that the cost of extending the existing infrastructure to provide coverage to populations in the core of the city is much lower than the cost of providing new infrastructure to cater to slums on the periphery. For all these reasons, simply targeting services based on the “slums” label in the census data may not be very effective, and may in fact favor slums in the core of the city at the cost of other deprived areas, specifically less visible areas in the periphery. If poverty and slum rates do not give us enough information to explain access to W&S, we asked ourselves, what other socioeconomic variables from the census data might be expected to be closely related? We chose to explore further the percentage of literate household heads, percentage of literate female household heads (available for MRSP only), and percentage of low caste (available for Delhi only). Maps based on these variables are not presented here but are available upon request from the authors. For the case of MRSP we observed that the districts with the lowest rates of literate household heads were largely situated along the southern border, where access to W&S was also among the lowest. These districts are thus characterized by multiple deprivations. Literacy rates for female household heads were found to be much lower than general literacy rates and have a stronger overlap with access to services. For Delhi, the overlap between wards with low levels of literacy and those with low access to water was observed to be very weak: there are several wards with low literacy rates but good access to water and also a number of wards with relatively high literacy rates but poor access to water. The overlap between literacy rates and access to sanitation was observed to be stronger than access to water in both cities. In general, sanitation appears to be more closely related to socioeconomic characteristics like poverty and literacy rates than water. Although low caste is often regarded as an important cause of marginalization and

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map 12.6 Distribution of slum households and access to piped water, Delhi.

social exclusion in India, we found a very weak overlap between wards with a high percentage of low-caste households and those with low access to W&S. This was puzzling to us; we return to this point later in this section. While all of these socioeconomic factors could be conceptualized as influencing the demand for basic services, population density can be seen as a supply-side

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Population Density (residents per sq. km) at District Level 1–5,000 5,001–10,000 > 10,000

Households < 50% Access to Water < 50% Access to Sanitation < 50% Access to Water and Sanitation

map 12.7 Population density and access to piped water and sanitation, São Paulo Metropolitan Region.

factor because it is one of the main determinants of the per capita cost of infrastructure provision. Could this, we asked, explain the patterns of access thus far observed? Both cities have relatively high population densities: around 2,245 persons per square kilometer in MRSP, and 7,286 persons per square kilometer in Delhi in 2000. In the case of MRSP, population density shows a clear core– periphery pattern, with the highest density in the central parts and a decrease in density as one moves toward the periphery in all directions (map 12.7). In Delhi, the core–periphery pattern is as not as clear (map 12.8). High-density wards are found in the central parts of the city as well as along the eastern edge, on both sides of the River Yamuna. In MRSP, districts with low access to W&S lie along the lowdensity periphery; in Delhi this is not necessarily the case. There are several highpopulation-density wards along the River Yamuna that have low access to W&S, but there are also low-population-density wards along the northwestern and southern parts of the city that have low access. Overall it seems that in MRSP, expansion of coverage to unserved populations in 2000 would have required investment in lower-than-average population density areas and thus entail higher per capita costs of provision. In Delhi, on the other hand, a large proportion of the unserved population resides in higher-than-average population density areas,

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map 12.8 Population density and access to piped water, Delhi.

where per capita costs of infrastructure provision are lower than average. So it is puzzling that these areas remain unserved. Evidence from the literature suggests that political patronage often matters more than economic considerations in determining where investment in public infrastructure gets targeted (Kundu 2004; Dupont 2004).

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Overall Lessons and Puzzles By allowing us to visualize processes operating at multiple levels, the maps discussed above provide important insights on where violations of the human right to W&S are most likely to occur. In both MRSP and Delhi, we observed that a broad differentiation along the core–periphery gradient can be made in terms of access to W&S, with access being highest in general around the core and lowest along the periphery. This core–periphery differentiation was observed to be significantly sharper in MRSP than in Delhi. In Delhi, wards with poor access (particularly for sanitation) are less geographically concentrated along the periphery and more spread out across the whole metropolitan area. In both places, the periphery itself is highly differentiated in terms of the different indicators. The southern periphery around the Billings and Guarapiranga basins in MRSP and the eastern periphery along the River Yamuna in Delhi are hot spots for human rights deficits, not only for W&S but also in terms of extreme poverty, illiteracy, and poor housing. In other regions of the periphery, there is somewhat less overlap between the various indicators. These findings also raise several questions, particularly in relation to how we interpret these findings for broader ESR scholarship and practice. To begin with, the findings on core–periphery differentiation in access to W&S are intriguing. On the one hand, these findings provide support for the thesis from the literature on urbanization in developing countries that access to basic services is likely to be worse along the peripheries of these large cities. On the other hand, these findings also lead us to ask why this differentiation is much sharper in general in MRSP than in Delhi. For the case of MRSP, during the period of rapid industrialization and high population growth in the 1960s to 1980s, when land prices in the center of the metropolitan area rose exponentially, a large number of poor people (especially recent migrants) were forced to find housing in the outskirts of the city. This period also coincided with military dictatorship in Brazil, when public housing projects were insignificant and most new units were built by families on their own in the peripheries of the city where public investment in infrastructure was very low (Torres, Alves, and De Oliveira 2007). The situation changed somewhat after the return of democratic rule in early 1980s, when public investment in infrastructure in peripheral areas was increased; but historic patterns of inequity have persisted. In Delhi also, although public investment in housing and infrastructure has not kept pace with population growth, the differentiation in public investment allocation between the center and periphery of the city has not been as sharp (Dupont 2004). It is also puzzling that the mapping of socioeconomic variables such as poverty, slum concentrations, illiteracy, gender, and low-caste status, which are generally regarded as important dimensions along which stigmatization and exclusion take place, were observed to have a weak overlap with access to W&S. Why would these

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variables show less core–periphery differentiation than access to services? What else is going on here? Two broad sets of explanations come to mind. In the case of Delhi, it is possible that the process of averaging at the ward level hides the underlying heterogeneity in these variables. For instance, previous studies have found that low-caste households tend to be concentrated in small, localized pockets all around the city, just as in the case of slum households discussed earlier. The aggregation at the ward level hides this heterogeneity. So to more accurately assess their status with respect to access to services there is a need for more, finer-resolution studies. It is also possible that the variables in the census do not quite capture the dimensions along which discrimination is practiced. For example, although a water standpost may exist within 200 meters of a dwelling, it may actually be in the neighborhood of high-caste households and so inaccessible to the low caste; or it may have poor-quality water or less reliable service. These nuanced dimensions along which discrimination is practiced can only be examined through local, community-level studies. In addition, the census data do not capture qualitative factors, such as political patronage, which may influence the provision of infrastructure. In the case of MRSP, there is another variable not captured by the census. This is the use of courts to force public entities to clean up areas where untreated sewage has been spilling into the water sources.3 But court cases generally do not adjudicate city-wide issues. They arise in specific communities, some of which are mobilized in support of human rights and others that have come to the attention of the state Attorney General due to the lack of sanitation and its health or environmental implications. These cases, which partially explain the allocation of resources by public agencies, are also not captured in the census. We suggest that involving local communities in data collection and monitoring, including mapping the locations in which issues under adjudication occur, may bring important data to bear on some of the above-mentioned lacunae. E N G AG I N G L O C A L C OM M U N I T I E S I N PA RT IC I PAT O RY DATA C O L L E C T IO N A N D M A P P I N G

The largely expert-driven, top-down approach in the use of GIS has been widely critiqued, and there have been several attempts over the past two decades to explore how GIS can be used in bottom-up participatory settings. Publicparticipation GIS (PPGIS) offers an example of this kind of effort taken up outside government and corporate settings by those in unequal power positions to advocate for their needs (Pavlovskaya 2006; Hoyt et al. 2005). The fundamental motivation behind the PPGIS movement is to develop alternative systems that “democratize the use of the technology, create easy access to government-generated data, and incorporate local knowledge” (Hoyt et al. 2005, 1). Several applications of this

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approach focusing on the role of GIS in participatory planning, grass-roots movements, and neighborhood struggles have been documented (Masucci 1996; Craig et al. 2002; Elwood and Leitner 1998; Elwood 2006; Bugs and Rauber 2010). This work has been influenced by post-structuralist and feminist research which focuses on “space” as a critical concept and shows how GIS discourses shape our worlds by supporting select representations of people, places, and processes (Harvey and Chrisman 1998; Kwan 2002; Pavlovskaya 2006; Robbins and Maddock, 2000; Yapa 1998). This body of research views space not only as a way of localizing phenomena but also as an integral part of the social processes and relations which underlie and shape these phenomena (Massey 1985). For ESR scholars, PPGIS and similar efforts open up a whole new set of possibilities for better representing the deficiencies in ESR realization and engaging in conversations about how to address these deficiencies. Through the use of PPGIS, local communities can be directly involved in collecting data and co-developing maps through participatory methods at a scale (such as the neighborhood or community) that is relevant to them. As we discussed before, census data are often aggregated at a scale that limits their ability to identify excluded groups and the underlying processes of exclusion. PPGIS offers a wider platform to incorporate alternative conceptualizations and representations of ESR realization that more fully capture the experiences and aspirations of traditionally excluded groups. Thus, for example, PPGIS has been used to generate “countermaps” which explicitly display the needs and requirements of specific groups who are usually excluded from scientific surveys because they are socially and institutionally marginalized. Rocheleau (1995), for example, used “gendered countermaps” of resource management constructed by and with rural women and contrasted them with “conventional” planners’ maps made by men. Besides mapping spatial patterns, there have also been attempts at incorporating “non-measurable properties of place, human experience, social hierarchies, power relations, and theoretical relationships that are of concern” (Pavlovskaya 2006). This latter part is accomplished through narratives, hand-drawn maps, graphics, photographs, and videos, as well as voices and sounds (Dorling 1998; Kwan 2002; Sheppard 2001). Although technically more challenging, bringing such data into GIS is increasingly facilitated by expanding computer media technologies (Kwan 2002). What is ultimately significant in these exercises is not just the end product (e.g. the data-sets and maps) but the process itself, which seeks to empower marginalized groups through supplying them with appropriate geo-information, as well as tools that can help them voice their concerns and engage in dialogue with appropriate government and other agencies to promote greater representation and more responsive decision making. Studies have shown that such a process has the potential to alter local social and political relationships (Hoyt et al. 2005) and contribute to better governance through greater accountability and transparency (e.g.

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Hoyt et al. 2005). However, the effectiveness of PPGIS as a tool for governance depends critically on the local context and on the nature of the PPGIS exercise itself. Some factors that determine the efficacy of PPGIS include the primary actors that initiate it, how these actors seek to motivate and engage a variety of local community members (particularly those who are marginalized) to participate and express their concerns, the kinds of data that are collected, how these data are represented and analyzed, how local government officials are involved at different stages of the process, and finally how the PPGIS process is used to leverage action toward better provision and monitoring of public services. It is beyond the scope of the present paper to examine these different aspects in depth. However, to illustrate the potential of PPGIS as a tool for better representation and realization of ESR, and to illuminate the multiple ways in which the local context may matter, we briefly discuss two examples, one from São Paulo and one from Delhi, on the application of PPGIS. Our discussion of the use of PPGIS strategies in São Paulo by the environmental group Fundação SOS Mata Atlântica draws on Masucci (1996, 2000, forthcoming). Masucci documents the use and development of GIS as a tool for educating and empowering citizens, in particular through a program called Núcleo União Pró-Tietê, which was founded in the early 1990s as a result of widespread popular support for cleaning up the Tietê River. The goal of this program was to train citizen volunteers in the use of simple water tests, from which they could build a database of water quality along the Tietê. Using internally developed PC-based software, the NGO was able to categorize water quality on a scale from good to poor (Masucci 1996). These localized data points, collected by up to 5,000 citizen monitors, were combined with interviews of community-based environmental specialists, who identified areas of concern, to create maps of environmental quality in the Tietê basin as a whole. Maps were then used to alert citizens about high-risk areas, raise donations for conservation projects, and “stimulate grass roots organizing around locally defined water quality problems” (Masucci, forthcoming). All data and maps were made available to volunteers, who in turn could use them for creative ends, such as alerting media and providing policy makers with information to assist in setting environmental management priorities. This project was carried out by Fundação SOS Mata Atlântica, an organization with a long history of using GIS in raising awareness of environmental degradation, in particular deforestation of the Atlantic Forest. This strengthened the legitimacy of the NGO when asking local communities to join efforts to monitor water quality through the Núcleo program. As in the Delhi case discussed below, organizers communicated to the public “through the construction of easily recognized images, including maps, symbols and logos” that could engage them in relatable ways (Masucci 2000, 2). Through participation in this organization, citizen voices were brought to bear on policy decisions, providing important community-based

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information about local risk. The use of GIS for this project was somewhat limited by the “high relative cost of computers and applications, lack of Portuguese language manuals for widely used GIS applications, high relative cost of Internet access, and management modes that often limit use of computers to specific applications and access to specific times” in comparison to North America or Western Europe (Masucci 2000, 6). These constraints have lessened somewhat with the advancement by the Brazilian government of tools and initiatives that foster citizen participation (Oliveira, Sampaio, and Carmo, 2010). Nevertheless, resource constraints do persist, underscoring the importance of training, technical assistance, multi-use databases, and partnering among educational, governmental, and non-governmental institutions for overcoming them (Masucci, 2000). Ultimately, the Núcleo program demonstrated how “information-based advocacy” can progress “to public involvement” (Masucci 2000, 4) through the use of GIS technologies. SOS Mata Atlântica was rather successful on its own terms, as judged by the large-scale public participation that enabled the NGO to exert influence over state and national environmental policy formulation. However, as we will see in the next case, there are possibilities for participatory GIS not seen here that are being utilized elsewhere. Our Delhi discussion draws on Hoyt et al. (2005), who report on a PPGIS initiative carried out between 2003 and 2005 to establish more inclusive planning processes for water service delivery and infrastructure in informal settlements. The study specifically reports on the case of New Sanjay Amar Colony (NSAC), a large informal settlement in eastern Delhi that consisted of around 5,700 households in 2003. The nodal agency responsible for initiating and implementing the PPGIS exercise was the National Institute of Urban Affairs (NIUA) in Delhi. Although the PPGIS-related activities were carried out between 2003 and 2005, the NIUA had already been working in partnership with a number of development organizations (such as Cities Alliance, USAID, Care India, and UNICEF) and fifteen NGOs, as well as city and state governments, to build community capacity and improve government responsiveness to community needs. This underscores how critical it is for projects to be embedded within the community, and for organizers to build trust with local partners before launching a PPGIS exercise. Hoyt et al. document a number of different methods and approaches that were used to engage the local people in data collection, representation, and interpretation. The different methods employed included the use of community visioning and mapping exercises, seasonal and historical diagramming, semi-structured interviewing, and focus group discussions to facilitate information sharing, analysis, and action among stakeholders. Each of these approaches involved innovative use of local symbols to draw illiterate people and children into the process of data collection, representation, and interpretation. For example, for community visioning

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exercises, the participants were given chapatti of different sizes. A chapatti is a round, flat bread that is eaten on a daily basis in North India. Workshop facilitators distributed small, medium, and large round pieces of cardboard and asked the residents to associate the most important problems for the community with the large chapatti and less significant problems with the smaller chapatti. The chapatti were then pasted onto posters and displayed in popular public gathering places to enhance awareness and facilitate dialogue. Similarly, the facilitators used chalk to draw a community map on the ground and elicited demographic information using sticks, leaves, and pebbles to denote the number of men, women, and children living in different parts of the map. These maps were then transferred to paper and subsequently digitalized at the NIUA headquarters. Through these exercises, information was also collected on the number and location of existing taps, broken taps, points of low water pressure, and the standposts with the longest queues. The data analysis revealed the inadequacy of the current water system and the deeply embedded inequities in access. The participatory approaches also directed attention to some more subtle aspects of water access that are generally missed in large-scale surveys. For example, the participants revealed that the local elected leader of the neighborhood (the pradhan) had colluded with government officials to place a disproportionate number of water taps in his area. Following the community visioning and other PPGIS exercises, several community leaders emerged who organized teams of residents from each block. These teams, armed with community maps of broken and dysfunctional taps, then approached the water utility officials to show that the official norms for water delivery were being violated in their community. During site visits, the utility staff were also shown how the placement of water lines in the drainage system resulted in sanitation leaks into the drinking water. In terms of the overall impact of the PPGIS and related interventions, the study concluded that although it was too early to assess the long-term effects, “it is evident that tensions between residents were reduced, queues outside taps have disappeared, and people are sleeping through the night instead of chasing water. The short-term benefits of the project have resulted in alternative political structures within the NSAC and improved working relationships between residents and government officials” (Hoyt et al. 2005, 13). The NIUA has since conducted exercises in other informal settlements, and now the PPGIS “hosts detailed demographic information for individuals living in approximately 300 settlements and data regarding service delivery and infrastructure for 20 settlements” (ibid, 6). Although several challenges remain with respect to how divergent data sets are integrated for collaborative planning purposes as well as community engagement, the PPGIS exercise has helped in increasing awareness of water issues, enhancing dialogues among different stakeholders, and advancing community actions for improved access.

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C O N C LU SIO N : T H E A D D E D VA LU E O F G I S A NA LYSI S I N U N D E R S TA N D I N G R IG H T S R E A L I Z AT IO N

Our analysis highlights the variety of factors and processes within which human rights are embedded, and illustrates how the collection and analysis of spatially situated data can help uncover challenges and hidden dynamics that are obscured in purely census-based analyses but that would remain uncontextualized and unmoored in a purely qualitative study. In the terminology of Haglund and Aggarwal (2011), GIS analysis provides new mechanisms and pathways to raise awareness and foster the adoption of rights-based norms; to create leverage for shaping policy and holding policy makers accountable; and to create, through iterative data accumulation and socio-demographic mapping, a record of progress on human rights that is sensitive to the particular geographies of places where the marginalized live. This could be especially helpful in identifying and tracking progress in cases where racial and ethnic minorities or indigenous communities (such as those discussed by Alvarado in this volume) are geographically concentrated and thus subject to the spatially differentiated impacts of decisions on the nature and location of infrastructure investments for provision of basic services. This suggests that there is great potential in spatially referencing standard indicators (such as those on accessibility of basic services, as is already being done by several domestic data collection agencies as well as international donor agencies) and matching this with data on location of courts and the jurisdictional boundaries of the various political and administrative organizations that are involved with human rights realization. Building such a spatially referenced data-set at different levels of governance (say municipal, state, regional, and national) could further enhance the use of tools such as the SERF Index discussed by Fukuda-Parr, Lawson-Remer, and Randolph in this volume. In participatory settings, the innovative use of visual aids like maps, together with storytelling, can prove to be very effective in engaging the illiterate and other marginalized groups, as well as indigenous communities, whose diverse beliefs, interpretations, and experiences regarding basic service provision and well-being do not enter the standard discourse on human rights. Both the São Paulo and the Delhi case illustrate how the use of GIS facilitated these new participatory spaces and created new mechanism and actor networks that were then leveraged to build a case for material/economic transformation, for example by highlighting specific hot spots of deprivation or cases of infrastructure breakdown. We also showed how these tools helped empower disadvantaged/marginalized groups to mobilize and potentially set forth a pathway for political transformations. Thus, in each “analytic moment” of social transformation (Haglund and Stryker, introduction to this volume), participatory GIS offers tools to facilitate the realization of economic, social, and cultural rights.

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1. Just prior to the census 2001 in India, slum enumeration blocks were formed and identified so as to enable preparation of special tables on slums for the first time. A slum is defined as “a compact area of at least 300 population or about 60–70 households of poorly built congested tenements, in unhygienic environment usually with inadequate infrastructure and lacking in proper sanitary and drinking water facilities” (GOI 2001, 8). 2. It should be noted that most of the wards on the periphery (except for the eastern side) were not enumerated by the census as “slum wards” and so no slum-related information is available on these wards (shown as dotted area in map 12.6). 3. Information on the use of courts to influence water and sanitation management was obtained through interviews with the author Haglund in 2011–12.

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Haglund, LaDawn, and Aggarwal, Rimjhim M. 2011. “Test of Our Progress: The Translation of Economic and Social Rights Norms into Practice.” Journal of Human Rights 10(4): 494–520. Harvey, F., and N. Chrisman. 1998. “Boundary Objects and the Social Construction of GIS Technology.” Environment and Planning 30:1683–94. Hoyt, Lorlene, Renu Khosla, and Claudia Canepa. 2005. “Leaves, Pebbles, and Chalk: Building a Public Participation GIS in New Delhi, India.” Journal of Urban Technology 12(1): 1–19. Kundu, Amitabh. 2004. “Provision of Tenurial Security for the Urban Poor in Delhi: Recent Trends and Future Perspectives.” Habitat International 28:259–74. Kwan, Mei-Po. 2002. “Feminist Visualization: Re-Envisioning GIS as a Method in Feminist Geographic Research.” Annals of the Association of American Geographers 92(4):645–61. Massey, Doreen. 1985. “New Directions in Space.” In Social Relations and Spatial Structures, edited by Derek Gregory and John Urry, 9–19. New York: St. Martin’s Press. Masucci, Michele. 1996. “Developing GIS for Citizen Environmental Monitoring and Hazards Mitigation in Alabama and Sao Paulo, Brazil.” GIS/LIS ’96 Proceedings, 250–65. Bethesda, MD: ACSM/ASPRS, AAG, URISA, AM/FM. . 2000. “Institutional Partnerships in Using and Developing Information Technology for Community Environmental Monitoring.” In Universidade e Comunidade na Gestão do Meio Ambiente, edited by I. Viadina and M. Lombardo, 65–75. São Paulo: UNESP (State University of São Paulo) Press. . Forthcoming. “An Examination of Power Relationships within Geographic Information Technology Partnerships.” In Ethical Issues in the Use and Development of Geographic Information System Technologies, edited by Michele Masuchi. New York: Oxford University Press. Oliveira D’Antona, Álvaro de, Ricardo Sampaio Dagnino, and Maria do Carmo Dias Bueno. 2010. “Geotecnologias e gestão de políticas públicas: uso de dados demográficos.” In População e Cidades: subsídios para o planejamento e para as políticas sociais, edited by Rosana Baeninger, 99–116. Núcleo de Estudos de População—UNICAMP. Campinas, Brasil: Unicamp. Office of the High Commissioner for Human Rights (OHCHR). 2009. Statement by the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation at the 65th Session of the General Assembly. www.ohchr. org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10520&LangID=E. Pavlovskaya, Marianna. 2006. “Theorizing with GIS: a Tool for Critical Geographies?” Environment and Planning 38:2003–2020. Roaf, Virginia, Ashfaq Khalfan, and Malcolm Langford. 2005. “Monitoring Implementation of the Right to Water: A Framework for Developing Indicators.” Global Issue Paper 14, 1–64, Heinrich Böll Foundation. Robbins, Paul, and Tara Maddock. 2000. “Interrogating Land Cover Categories: Metaphor and Method in Remote Sensing.” Cartography and Geographic Information Science 27:295–309. Rocheleau, Dianne. 1995. “Maps, Numbers, Text, and Context: Mixing Methods in Feminist Political Ecology.” Professional Geographer 47:458–66.

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Sheppard, Eric. 2001. “Quantitative Geography: Representations, Practices, and Possibilities.” Environment and Planning 19:535–54. Torres, Haroldo, Humberto Alves, and Maria Aparecida De Oliveira. 2007. “São Paulo PeriUrban Dynamics: Some Social Causes and Environmental Consequences.” Environment and Urbanization 19(1):207–23. Torres, Haroldo da Gamma, and Renata Mirandola Bichir. 2009. “Residential Segregation in São Paulo: Consequences for Urban Policies.” In Urban Segregation and Governance in the Americas, edited by Bryan R. Roberts and Robert H. Wilson, 145–68. New York: Palgrave Macmillan. Whately, Marussia, and Diniz, Lilia Tole. 2009. São Paulo Metropolitan Water and Sewage Situation. São Paulo: Instituto Socioambiental. World Resources Institute. 2009. Mapping a Healthier Future: How Spatial Analysis Can Guide Pro-Poor Water and Sanitation Planning in Uganda. Washington, DC: World Resources Institute. Yapa, Lakshman. 1998. “Why GIS Needs Postmodern Social Theory and Vice Versa.” In Policy Issues in Modern Cartography, edited by D. R. F. Taylor, 249–69. Oxford: Elsevier Science.

Chapter 13

Studying Courts in Context The Role of Nonjudicial Institutional and Socio-Political Realities Siri Gloppen

I N T R O D U C T IO N : T H E A NAT OM Y O F C O U RTC E N T E R E D L E G A L ST RU G G L E S

Across the globe, human rights have become important tools and courts central arenas for enforcing accountability and contesting policies—from antiterrorism measures and regulation of religion to health care and housing—sometimes seemingly with success. Yet, our knowledge is limited about when legal mobilization is effective in enforcing accountability, and under which circumstances policy legalization contributes toward social transformation. Moreover, this is not only a matter of more data. We need better conceptual and methodological tools to grasp the phenomenon. This volume contributes toward filling this gap. This chapter takes as its focal point court-centered legal mobilization or litigation, which is one of the potential mechanisms for human rights realization and accountability in the mechanisms, actors, and pathways (MAPs) framework presented by Haglund and Stryker in the introduction to this volume. This chapter investigates the various stages of the litigation process, with its distinct “analytic moments” and with multiple actors involved at each stage—actors that engage within and are shaped by the social and political context, and which in turn may create legal pathways for human rights realization, accountability, and social change. To understand whether and when court-centered legal struggles are effective, we need to tackle two major tasks. One relates to the “output side.” We need methods for establishing what the effects of the legal mobilization are with regard to different types of rights, and criteria for what should count as accountability 291

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enforcement and transformative change. The other task regards the “input side.” We need to understand the dynamics of legal mobilization that shape policy legalization. This in turn requires us to answer a number of underlying questions. Why do (particular types of) human rights–based legal struggles arise in some cases and not in others? What influences the forms they take, whether or not they result in litigation, and—when they do—whether they succeed in court? And, once an— on its face—rights-enhancing judgment is handed down, what decides the extents to which court orders are complied with, give rise to broader policy change, and are implemented? This leads us back to the first question: How can we assess the nature and extent of the political and social changes to which court orders give rise? And more specifically, how can we conceptualize and measure the impact of a judgment in terms of accountability, human rights realization, and social transformation? These are difficult questions to answer—they are interrelated in complex ways and involve a range of socio-political, institutional, and temporal dynamics besides issues of law. This chapter outlines a research strategy for investigating them in ways that do justice to their complexity and social embeddedness and the need to combine knowledge and methodologies from across disciplines and yet enable rigorous comparative analysis. The research strategy is built around a conceptual framework combining three heuristic tools. The first of these tools is a conceptual map that brings out the anatomy of the litigation process and the aspects of analysis that should be considered. The map deconstructs the legal struggle, separates various stages and “analytic moments,” disentangles the processes, actors, and factors that come into play at each stage, and lays them out to indicate assumptions regarding what influences the nature and impact of different actors’ legal strategies. This conceptual map, visualized in figures 13.1a, 13.1b, and 13.3, resembles that laid out by Gauri and Brinks in this volume (chapter 4), but goes into more depth in each stage. By providing a holistic picture, the conceptual map facilitates cumulative knowledge building and integration of knowledge gained in separate studies and through different methodologies. It provides a tool for keeping the larger issues in mind while concentrating on a subset of phenomena or processes, and encourages active engagement with relevant research from other disciplines, geographical contexts, thematic fields, and sets of rights. The framework is also useful for identifying knowledge gaps and the need for new research. The second heuristic tool—which can be seen as a reformulation and specification of the “analytic moments” in Haglund and Stryker’s MAPs model—takes relevant (collective and individual) actors’ opportunity structures as the point of departure. Actors’ opportunity structures are exogenous factors that limit or empower them—the barriers they face and the resources they command. In interaction with the actors’ internal driving forces or motivation (goals, values, norms,

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Claims formation ffo rmation

LITIGATION

Adjudication Adj d udication

RULING

- accept/reject case - accept/dismiss claim - order, remedies

Administrative & IMPLEMENTATION political response

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Effects Effe f cts

- accountability - transformative impact

- administrative compliance - policy/legislative response - “intheshadow of litigation”

• material • political • ideational

APPEAL

Domestic context-Political, institutional, economic, social, normative

Claims formation

LITIGATION

Adjudication

Administrative & IMPLEMENTATION political response

Judges

Litigants Motivation Resources – Barriers • Rights awareness • Litigation threshold • Support structure • Perception of courts

RULING

Litigators M-R-B

• • • • • •

M-R-B Law, legal theory Judicial independence Legal culture Supportive constituencies Professional norms, forums Ambitions and background

• • • •

Effects

Politicians

Bureaucrats

M-R-B Court’s authority/legal culture Political costs Economic costs, priorities State capacity

M-R-B Background and ambition Capacity, resources Political context Corportate culture and (legality) norms

• • • •

Domestic context-Political, institutional, economic, social, normative

figure 13.1a The anatomy of the litigation process. figure 13.1b The anatomy of the litigation process: actors and factors.

interests, and preferences), the opportunity structure shapes their strategies and actions. While it does not determine actors’ choices, the opportunity structure represents the sum of the conditions and circumstances in which they make their decisions.1 A good conceptualization of the motivations and considerations that shape different actors’ choice situations may help us uncover the microfoundations of court-enforced human rights accountability and policy legalization.2 In figure 13.2 the opportunity structure—in this case of a litigant—is visualized as a sun (or head); the rays represent relevant considerations. Who the central actors are depends on the concrete case, the context, and which stage of the legal process is in focus. At the claims-formation stage, the key actors will usually be (prospective) litigants—individuals, social movements, and/or public interest litigators; at the adjudication stage it is typically judges; and at the implementation stage it could be a range of actors, including politicians of different orientations, administrators and civil society organizations. In figure 13.3, the stars in the various phases of the figure indicate the opportunity situation of different actors who should be considered in the analysis, while Figure 13.1b exemplifies the main

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Financial Media resources support

Social mobilization capacity

Rights consciousness

Legal support Legal competence structures (legal aid/ LSOs)

Formal basis for human rights claims

Courts’ historic (effective) support for rights claims

Political support Social, cultural, and religious norms

RESOURCES

AIM/MOTIVATION solve problem Unresponsive political system

CLAIM human rights protection

BARRIERS

Social, cultural, and religious norms

Language, culture

Social and political inequality

Costly/slow Legal process formalism, bureaucracy

Lack of Rules on legal formal Unresponsive human standing courts/lack of rights implementation protection

LEGAL OPPORTUNITY STRUCTURE

figure 13.2 Litigants’ opportunity structure.

motivations, barriers, and resources (M-B-R) of key actors at each stage of the litigation process. The third conceptual tool is a matrix for the assessment of impact, outlined in table 13.1. The matrix distinguishes between various forms of effects that court judgments—and legal mobilization more broadly—may have. Besides the material effects of the mobilization (on subsequent jurisprudence, policies adopted, services delivered, and social outcomes), we should also be concerned about symbolic or ideational effects (on ideas, attitudes, and conceptions) and political effects (on decision-making procedures and power relations), which may be decisive for social transformation in a longer perspective. In addition to focusing on material, symbolic, and political outcome variables, we should pay attention to changes in intermediary variables. As indicated in table 13.1, these intermediary variables or processes may also be material in nature (changes in organizational and institu-

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International law and jurisprudence

Claims LITIGATION L fformation fo rmation Litigants -Motivation -Resources ces -Barriers

Litigators Litigators M–R– R B M–R–B

Adjudication Adj djudication R RULING

Judges M–R–B

Administrative and political response

IMPLEMENTATION N

Bureaucrats B u t M–R–B Politicians M–R–B R B R–

Effects Effe f cts Material • Mat a erial • Political • Ideational

LAW / POLICY L

Monitors M onitorss M–R–B M –R– R B

Out-of-court Out-of O Out to off cou court mobiliza mobilization, ation n, “righ “right “rights-talk”, h s-talk”, fra framing, aming, g, bargaini bargaining Domestic context - legal, political, institutional, economic, social, normative International context NGOs

Traans Transnational support ort structures stru for litigation and nd advocacy adv Legal, moral, political, financial, organizational, scientific Leg

Donors D onors

figure 13.3 The anatomy of the litigation process: international context.

table 13.1 Legal Mobilization for Transformation and Accountability: Processes of Change and Forms of Impact (Intermediary and Outcome Variables) Legal mobilization works through changes in: 1. Discourses and ideas 2. Actors and power relations 3. Institutional practices

… to produce changes in: a. Societal goals and values (symbolic/ideational transformation) b. Processes of decision making (political transformation) c. Changes in jurisprudence, institutional reform, policy change, material changes in service delivery/uptake, social outcomes… (material transformation)

tional practices); political (informal changes in decision-making processes, inclusion, and leverage of actors); or ideational (changes in social discourse).3 The conceptualization of this framework has evolved over time. The first manifestation (Gloppen 2006) was developed for Gargarella, Domingo, and Roux’s (2006) Courts and Social Transformation in New Democracies, which set out to explore the potential of courts to provide an institutional voice for the poor.4 A

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more sophisticated conceptualization of the processes of claims formation and of litigants’ opportunity structure was developed in an article on public interest litigation and social policy (Gloppen 2008b).5 A systematic conception of the factors that influence judges’ opportunity structure and their willingness and ability to perform an accountability function was developed for the book Courts and Power in Latin America and Africa (Gloppen et al. 2010, building on Gloppen et al. 2004). Here we also discuss—and suggest a (partial) solution to—the question of how to analyze and measure court-imposed accountability.6 Research on how litigation processes play out in the context of health rights developed the understanding of factors shaping various actors’ opportunity structures, the range of strategies and resources they mobilize, and the complexities involved in studying implementation and impact (Gloppen 2008b, 2009; Yamin and Gloppen 2011). The present chapter reflects and integrates earlier work, and takes it further in an attempt to render a more appropriate framework for conceptualizing the dynamics of legal struggles and pathways toward social transformation. The structure of this chapter follows the logic of court-centered human rights mobilization processes. Following an outline of the litigation process, the first part discusses the actors involved in the process of formulating and voicing legal claims, and factors that influence their legal opportunity structure. The second part looks at the adjudication process: the considerations, constraints, and capabilities of judges that influence whether they accept the case as a matter falling within their jurisdiction, whether they rule in favor of the claim, and if so, which remedies they craft and order in the judgment. The third part examines institutional and political responses to court orders in terms of enforcement and implementation. It discusses factors (including the mobilization and adjudication process itself) that influence whether and how the relevant authorities comply with the terms of the judgment and whether there is a political impetus for new legislation or change of policy. The fourth and last part of the chapter discusses challenges involved in monitoring implementation and in conceptualizing and assessing the effects of judgments in terms of accountability and social transformation. Throughout, questions regarding appropriate methodologies for investigating these issues are addressed. L E G A L O P P O RT U N I T Y ST RU C T U R E S A N D F O R M AT IO N O F H UM A N R IG H T S C L A I M S

The Litigation Process Our proposed framework for analyzing court-centered legal struggles can be applied to mobilization around all forms of human rights—civil and political rights (CPR), economic, social, and cultural rights (ESCR), and environmental rights. It follows the typical stages of a litigation process, as outlined in figures

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13.1a, 13.1b, and 13.3. At the claims-formation stage, individual or societal problems that people are concerned about finding solutions to are transformed into legal claims (the first “analytic moment” defined in the MAPs framework) and directed at a court or other legal body (the second analytic moment). Whether this is done instead of, or complementing, other forms of mobilization—and which rights become the focus of the legal challenge—depends on potential litigants’ opportunity situations. The litigants may be affected individuals or groups, social movements, or institutions, including organizations engaging in public interest litigation on behalf of particular individuals or groups. Once the legal claim is voiced into the legal system, the process enters the adjudication phase, which is in fact three distinct processes—or analytic moments, to stay with Haglund and Stryker’s terminology—each with its own logic. First, the court either accepts the case, as being in accordance with the formal rules and falling within its jurisdiction, or rejects it. Second, if the case is accepted, the court adjudicates the claim itself, ruling in favor or dismissing it in full or in part. Third, if the claim is successful, the court crafts remedies to deal with the matter and hands down an order obliging different parties to comply in more or less specified ways. As Gauri and Brinks point out (chapter 4, this volume), this may be an iterative process, in which the court engages political decision makers and social actors in dialogue on reform processes. Once the order is handed down (and is not appealed), the process enters the implementation phase. As Klug vividly shows in his analysis of social rights struggles in post-apartheid South Africa (chapter 9, this volume), whether and how judgments are implemented is highly contextual, depending not only on the legal, political, and material context but also on historical legacies that shape the social struggles around specific rights. Depending on the nature of the order and the administrative and political response, implementation may take different forms and require various types of analysis. When courts order concrete remedies for particular claimants (such as release from detention, monetary compensation, or admission of a patient to the hospital), to assess implementation is (in theory) straightforward. If the court calls for more structural change, a change in policy, or a reform process, to assess to what extent the judgment is implemented is complex and requires a longer time-frame. To go from compliance or implementation to assess the impact of the litigation process in terms of accountability and social transformation, we need to conceptually determine what accountability and social transformation mean in the context (considering ideational/ symbolic and political aspects of transformation, as well as material effects) and devise relevant methods for determining the scale and scope of the effects. This includes, among other things, finding methods for assessing how many people have been (directly or indirectly) affected by the ordered remedies or subsequent policy, and how significant the effect is—but also what

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part of the (intended and unintended, positive and negative) changes can be attributed to the judgment and the litigation process. A particularly tricky aspect of this is the “compliance” or rule abidance that takes place “in the shadow of litigation”: that is, without a judgment but influenced by the litigation process (indicated by the “out-of-court mobilization” arrows in the lower part of figure 13.3). Even a lost court case may spark transformative policy change, although it is usually difficult to assess how important the legal mobilization was for the end result. Furthermore, judgments and litigation processes may have unintended, adverse effects, for instance by sparking a counter-movement or backlash.7 While the stages of the litigation process are analytically distinct, they cannot be understood in separation. As also emphasized by Gauri and Brinks, the ways in which claims are formulated, voiced, and mobilized around influence the adjudication process—and (perceptions about) how courts historically have adjudicated various types of cases influence processes of claims formation. Similarly, the remedies ordered by the court influence implementation, as do out-of-court legal mobilization and follow-up litigation. Past experience of implementation (or failures of implementation) may influence the ways in which courts craft remedies, as well as how claims are formulated and mobilized around. We will return to the interlinkages below, but first a closer look at each phase of the litigation process, starting with the claims-formation stage. Claims Formation and Litigants’ Opportunity Structure In order to understand why court-centered legal struggles for human rights arise in some contexts and cases and not in others—and what shapes their form and strength—it is useful to adopt the point of view of potential litigants. Normally, human rights litigation arises in response to a concrete problem experienced by an individual or a group—for example a case of police brutality, censorship, eviction from communal land, polluted water, or an acute lack of food. But it is not obvious that the preferred solution is to go to court. In many instances, individuals and communities find local, private solutions (for example through faith communities), or may try to raise the matter with political authorities directly, or march in the streets. Figure 13.2 illustrates the factors that individuals and collective bodies typically consider when faced with such a problem. The total set of possibilities, limitations, and resources constitute their opportunity structure at the second analytic moment in the MAPs model. Whether their aim (to solve a particular problem) follows the trajectory illustrated by the broad arrow and results in a human rights claim before a court (and what type of rights claim becomes the focus) depends on their motivation, formed by (among other considerations) perceptions about the appropriateness, potential gains, and relative prospects of success from litigation compared to other strategies; the barriers that have to be overcome to pursue the alternative paths; and whether they command the resources needed.

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The Legal Opportunity Structure Some of the factors that play into the decision of whether and how to litigate are related to the legal system. These are marked with broad bands in figure 13.2 and combine to define the legal opportunity structure. Whether a judicial route is chosen (and which judicial route) depends on how favorable the legal opportunity structure is for remedying the problem (relative to other possibilities), what it takes to pursue a case in court, and whether potential litigants have the necessary resources to do so. Legal mobilization is thus a likely outcome where a rights claim is seen as a relevant and worthwhile option; where the obstacles associated with going to court (indicated by the arrows from below in figure 13.2) are relatively low compared to other possible avenues, such as political mobilization; and where resources suited to overcoming the barriers of the legal system are accessible (indicated by the arrows from above). In other words, we are likely to see more legal mobilization where access to the legal system (or to legal aid) is easy; where prospects for success in court are high; and where other avenues are blocked, for example if political authorities are unresponsive and political opportunities are limited (Hilson 2002). Once a legal strategy is considered, whether a given social problem is pursued through mobilizing on relevant social rights or related property rights or through a CPR route (nondiscrimination; freedom of expression; access to information)—and whether it is pursued though individual or collective claims— depend closely on the legal opportunity structure. In the following I will not distinguish between different forms of rights mobilization; just note that social problems may be successfully pursued through CPR strategies, as several chapters in this volume illustrate. As the figure shows, a number of factors contribute to the legal opportunity structure, but four (interrelated) sets of factors are of particular importance. The first set of factors concern awareness of the legal route as a possibility (the first analytic moment). At the most basic level this depends on whether the experienced problem is conceived of as constituting a rights violation that can form the basis of a legal claim. To what extent this is the case depends on (among other things) the level of rights consciousness (Dembour 1996; Merry 2003; Moore 2005; Stryker 2007), which in turn is related to the legal culture; the level of education and in particular the legal literacy in society; and whether there are (local or international) organizations engaging in “rights talk” and thus contributing toward the framing of problems in terms of rights violations.8 The second set of factors concern the threshold for entering the legal system (Hilson 2002; De Fazio 2012; McCann 2006). The bureaucratic red tape that litigants have to negotiate to bring a case varies enormously. In most instances, significant time and costs are involved, as well as complex rules and legal language requiring litigants to consult legal expertise, and long-winded appeals procedures to have the case heard in a higher court. However, some courts have cut this to a minimum, providing for

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direct access, and allowing litigants to file claims in any form or language, without the assistance of a lawyer, and without any fees. The Costa Rican Constitutional Chamber employs lawyers preparing claims summited by individual petitioners (Wilson and Cordero 2006). Another important factor is the rules regarding locus standi, or who is considered to have sufficient interest or standing to lodge a case. Some jurisdictions have liberal standing rules, allowing individuals and organizations to bring cases on behalf of others or in the public interest (examples include South Africa, India, and Brazil). Where litigants must have a direct material interest in the case, this effectively bars public interest litigation. Some countries allow direct access to the highest court in constitutional cases (Costa Rica and India, for public interest litigation cases) or grant all courts constitutional jurisdiction (Colombia, for tutelas [writ of protection] claiming breeches of constitutional rights), while most countries require constitutional cases to go through the many layers of the legal system. All these factors combine to make up the threshold for entering the court system, which affects both potential litigants’ actual ability to go to court and their motivation to do so, through perceptions of feasibility and cost–benefit calculations (Gargarella, Domingo, and Roux 2006; Dugard 2006; Yamin and Gloppen 2011). The third—and related—set of factors is the support structure in place that might aid litigants in overcoming the threshold of the legal system. Some countries have good public legal aid systems, enabling litigants who cannot otherwise afford the assistance of lawyers to go to court and have their case heard. Other societies have civil society groups and institutions (domestic and/or international) providing legal and other support or litigating on behalf of others. The support structure is obviously more important where the threshold for bringing cases is high in terms of the need for legal expertise or financial resources. When analyzing the legal opportunity structure, the balance of the threshold and the available support structure is crucial. A low threshold to enter the legal system is, however, not necessarily only positive from the perspective of social transformation. Even if access is easy, how well the case is argued and supported influence the chances of securing a favorable and strong judgment—and the prospects of contributing toward structural transformation. A low threshold tends to encourage “easy,” often individual, cases, while a higher threshold may encourage collective efforts, extensive research, and careful building of legal arguments— often with the help of international expertise and out-of-court mobilization around the case. Thus, the impetus provided by the claim may be stronger and more powerful where the threshold is higher. A higher threshold is also more likely to produce sustained out-of-court pressure through organization building and mobilization around the case, which also adds to the likelihood of success, both in and out of court (Klug in this volume; Yamin and Gloppen 2011). The fourth set of factors impacting on how attractive the legal opportunity structure is relate to the perceived responsiveness and efficacy of the courts. Again,

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this is multifaceted. A main factor is the perceived prospects for success—which depend on (among other things) how litigants view the judges’ independence from political and other powerful interests, and their responsiveness to the concern at issue (which is more doubtful where the social and cultural distance between litigants and judges is wide). Another major factor is expectations regarding remedies provided by the court, enforcement mechanisms, and outcomes on the ground. The time perspective also matters—some courts decide petitions within days, others may take years or even decades to decide a case. In sum, the perspective proposed here is that when seeking to understand the input side of court-centered mobilization for human rights (when and how claims come to court), our point of departure should be that of social actors who have a problem that they are looking for ways to solve. Whether it is articulated as some form of a human rights claim and directed to a court depends to a large extent on perceptions—regarding the nature of the law (including what the formal rights are and how to go about enforcing them), the possible chances of success and the likely benefits from going to court relative to other options, and what it would take to bring a case. In any given context, different actors’ readings of the opportunity structure are likely to be quite different, depending on their understanding of the barriers and opportunities they face and the resources they command—such as their access to (funding for) legal expertise, and their numerical strength, public support, and political connections. Factors that ordinary people take as given— such as the nature of the law and the composition of legal institutions—may, for specialized human rights litigators, be among the factors they see as variable and subject to influence.9 That professional NGOs often have a different horizon, in terms of both time and space, where the individual case is an element in a longterm strategy, a building block toward a broader aim, also affects their reading of the opportunity structure. Relationship between “Victims” and Litigators When analyzing driving forces and litigation dynamics at the claims-formation stage, it is important to pay attention to the relationship between individuals and groups who “own the problem” and experience human rights violations first-hand, and professional litigators who assist or take on their case—domestic or international legal support organizations, human rights NGOs, or individual lawyers— and to keep in mind that they do not share the same opportunity situation. Professional litigators and legal support organizations have different (usually more extensive, but also more specialized) resources and other barriers (restrictions on standing)—and their motivation may differ significantly from that of victims (Gloppen 2008a). While people on the ground may prioritize an immediate practical solution—for example though a settlement with the responsible authorities— professional litigators may be more interested in creating a precedent that can

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serve as a stepping-stone for similar cases. Concerns for reputation or funding may lead them to select the more “winnable” cases or angles. To further complicate matters, there will often be differences in aims and interests within affected communities, and between organizations involved in a case (such as legal support organizations, human rights NGOs and donor organizations at local, national, and international levels). Such divergence of aims and interests will have consequences for the types of causes that are advanced, for how claims are framed, and for the willingness to settle. From an analytical point of view, to understand why particular types of cases arise in a certain context, it is important to analyze the relationship between different actors at the claims-formation stage, and their respective opportunity structures. (Thus, figure 13.3 has three stars at the claims-formation stage to indicate separate opportunity structures between the victims of human rights violations, organizations litigating on their behalf, and international organizations supporting their efforts. In reality there are of course multiple agents in each of these categories, with internally diverging opportunity structures.) The natures of the alliaces forged between different groups—locally and globally—influence the strength of the rights claim voiced. Important insights may be gained though investigating this, including where the impetus to litigate came from—whether it was an initiative growing out of people’s engagement to better their own conditions, or originated from litigators, NGOs, or donors seeing this as a worthy or interesting cause. Research Strategies and Methods of Investigation Different methods are useful to shed light on claims-formation processes and how they are shaped by opportunity structures. Qualitative research through ethnographic methods, key informant interviews, and archival research can provide information about particular mobilization processes and actors’ understanding of their own opportunity situation, their resources, networks, and patterns of interaction. Survey material—general public opinion surveys, survey experiments,10 and more targeted surveys of particular communities or groups—may bring more representative data to questions related to rights consciousness, perceptions of the legal system, and various aspects of the legal and political opportunity structure. Mixedmethods studies are ideal for comparing mobilization processes within or across cases and pathways, using a combination of structured thick description—that is, qualitative case studies bringing out dynamics of particular experiences, guided by a common theoretical framework allowing for meaningful comparison—and extant or new survey material to probe key issues and hypotheses. This allows systematic investigation of the salience of particular (combinations of) factors, as well as of “nonmobilization puzzles,” or why we see mobilization in some cases and not in other situations where individuals and groups face similar challenges.

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The primary outcome of the claims-formation stage is a legal claim directed to a court or tribunal. This takes us to the next stage of the analytical framework: adjudication. A DJ U D IC AT I N G H UM A N R IG H T S C L A I M S : J U D G E S’ R E SP O N SI V E N E S S A N D C A PA B I L I T Y

Once a human rights case is lodged in court, a new set of actors—judges—take center stage. In the theoretical framework proposed here, judges’ opportunity situation is central to understanding the outcome of this stage of the litigation process. As noted above, the adjudication process can be divided into three sub-stages or decisions (these can also be considered separate analytic moments, but are not among those figuring in the MAPs framework). The first concerns admission of the case. The core question here regards the court’s responsiveness: Why do some courts agree to hear human rights cases more readily than other courts? The second question concerns the court’s decision in the cases they do accept: Why do some such legal claims succeed in court while others don’t? And the third concerns the nature of the remedies: What determines judges’ crafting of remedies— for example, whether they choose to rely on “hard,” mandatory orders, or “softer” declaratory or dialogical remedies, and whether they go for limited or broader structural measures?11 Judges’ Opportunity Structure For each of these decisions, we can take the judge’s opportunity structure (indicated by the star at the adjudication stage in figure 13.3) as the point of departure. The factors that make up a judge’s opportunity structure include internal factors (motivation) and external factors (resources and barriers); as well as both specifically legal and socio-political factors (in a similar way as figure 13.2 indicated for litigants). The Law and Interpretative Theory Judges’ opportunity structure in human rights cases (as in other cases) is shaped by the legal basis for their decisions. This includes the constitution, statutory and customary law, and in most cases international conventions and treaties, domestic precedent, and comparative case law. Judges’ reading of legal theory is an integral part of this, since legal text—like all texts—must be interpreted. While it is important not to be naive, and to bear in mind that judges’ interpretation of the law is shaped by a range of factors besides the law itself, it is equally problematic to disregard the constraining or normative force of the law and legal discourse, as political-science approaches to judicial behavior often tend to do.

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Strength of Litigants’ Voice Throughout the adjudication phase, judges’ opportunity structures are also influenced by the strength of the litigants’ voice (represented by the litigation arrow in figures 13.1a, 13.1b, and 13.3). The influence exerted by litigants’ voice has a number of dimensions. It depends on the legal merit of the case, and on the skill and creativity applied in formulating the legal arguments. This is not only important in convincing a judge to accept the case and decide it favorably, but also in providing the judge with arguments that they themselves can rely on in making their judgment, which is particularly important in situations where the judge is unfamiliar with this type of case or the court is poorly resourced in terms of time, research staff, or library resources. The strength of the legal voice may also be enhanced by out-of-court mobilization efforts (as indicated by the broad gray arrows in the lower part of Figure 13.3 and illustrated by Klug in this volume). This may operate though adding social credibility and legitimacy to the case, but also by shaping judges’ perceptions of what can be termed their “political opportunity structure,” which is the second set of factors influencing their overall opportunity situation. Judicial Independence and the Political Opportunity Structure At the core, judges’ political opportunity structure is (their perception of) what they will “get away with” vis-à-vis the political branches. This includes (perceptions of) whether the decision will be respected and complied with, and, more fundamentally, whether the political branches might react by encroaching on the powers of the judiciary—as well as risks of personal retaliation.12 A judge’s political opportunity structure has different elements. One important aspect is the structural protection of judicial independence. This includes the political branches’ (and in particular the executive’s) ability to determine the appointment and promotion of judges; judges’ security for tenure and benefits once they are in power; and how well protected their powers and competences are. The less insulated judges are from the political branches, and the executive in particular, the more incentive they have to “look over their shoulders” when ruling in politically sensitive cases involving the state (Gloppen et al. 2010). Judges’ political opportunity structure also depends on the legal-political culture in society and within the political elite. With a strong culture of legality, political authorities will have internal reasons for compliance (norms of appropriateness), as well as strategic reasons, since the political costs for trespassing on courts’ authority are higher. Similarly, if judges (believe they) have significant protective constituencies deterring other branches from transgressing on their authority, this widens their opportunity structure (Widner 2001; Gloppen et al. 2010). Chances of a significant protective constituency for the courts are assumed to increase with a

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balanced political power structure (where opposition parties may see their interests shielded by a strong judiciary) and a sizable middle class independent of the state (increasing the chances that significant groups, for example within the business community, will favor a strong judiciary). In some cases the international community—including the international legal community—can act as a protective constituency for the courts, for example in donor-dependent countries.13 Judges’ Professional Resources and Norms of Appropriateness Another aspect of judges’ opportunity structure when deciding human rights cases concerns the professional resources they command. This includes their education and sensitivity training on human rights issues, their access to library resources and research assistance, and their case load and time available for researching cases that raise new issues. A related aspect is the normative force of the institution within which the judges operate and their professional norms of appropriateness, and perhaps in particular their understanding of the separation of powers. In other words, how they judge will depend in part on what they regard as falling within the constitutional domain over which they should have the final say, as opposed to the political domain. Where judges form part of a strong (national or international) professional community, peer recognition and opportunities for professional exchange may strengthen both their motivation and their ability to act on human rights principles. Judges’ Ambitions and Backgrounds Being in the public eye or at the center of international attention may also strengthen a judge’s resolve to be seen as a guardian of human rights. Concerns for prestige (their own and that of their institution), career ambitions, and other personal interests influence the decisions of judges, as they do with everyone else. When seeking to understand why some courts and judges act more decisively in human rights cases, it is therefore relevant to look at the personal incentive structure judges are faced with. Both where they come from (socially and professionally) and where they are likely to go determine who is their main audience (the “relevant others” from whom they seek recognition). It is thus relevant to ask: Are judges appointed for life, or will they go on to other positions? If so, is the judiciary a stepping-stone to a political career? Are they likely to go on to academic positions, or to private practice? Could they aim for international positions? Also, issues of personal background, values, convictions, loyalty ties, and life experiences may come into play and influence their stand on human rights issues. So, while studies of judicial behavior have more commonly focused on who appointed the judges (the ideological orientation of the government), using this as a proxy

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for political orientation, and on how they were appointed, the assumption here is that, while such considerations are not irrelevant, forward-looking incentives may be equally or more decisive. Strategies and Methods of Investigation The factors outlined here vary in form and salience between contexts and over time—but also over the different sub-stages of the adjudication process. Singlefactor explanations have not been able to convincingly explain why some courts are more assertive than others in human rights cases (Gloppen et al. 2010). Here, comparative, mixed-methods studies also provide a good basis for understanding how different factors combine to make pro–human rights outcomes more likely. These should ideally be multidisciplinary and combine structured, thickdescription case studies (using the factors outlined above as a common framework), legal analysis, and surveys of judicial perceptions and attitudes. A main challenge is to get a good grip on how norms (including legal norms) come into play and interact with other factors in forming judges’ decisions. Scrutiny of the legal reasoning presented in written judgments, and in-depth interviews with judges, are useful. However, like all self-presentations, they might say more about how judges think it should be. Observation of judges’ engagement with the parties in oral court hearings provide clues, but require “real time” research. Surveys can potentially provide representative information on where judges come from privately and professionally, their jurisprudential resources and networks, and also their position with regard to legal theory, principles, and norms (for example regarding separation of powers)—but standard surveys cannot tell us when and how the norms become decisive. Survey experiments (see note 10) are being developed that potentially could get a better grip on this, but even if a good design could be developed, judges’ participation in surveys is difficult to negotiate. Survey experiments could also be interesting, and more feasible for purposes of investigating norms of legality in the population and the strength of courts’ protective constituencies.14 E N F O R C E M E N T A N D I M P L E M E N TAT IO N O F SU C C E S SF U L J U D G M E N T S

Many studies of human rights litigation concentrate on or culminate with the judgment. Yet, in many ways, what follows is the crucial part of the story. It is after the judgment—in the third analytic moment of the MAPs model—that actions taken by different actors start cumulating into meaningful social transformation (or fail to do so). We know that often judgments seeking progressive change are not implemented; and when they are, the effects are unpredictable. The third stage of the framework suggests ways of approaching the complexities of implementa-

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tion, starting with the institutional responses to the judgment, from administrative and political bodies. Again, our starting-point is the main actors involved, and their opportunity structures and motivations when making decisions to implement the judgment and realize the rights. But which actors to focus on? With regard to rights mobilization and adjudication, the main actors are relatively easy to identify. When it comes to implementation, this is more complicated and highly case-specific. Firstly, it depends on the content of the court’s orders and toward whom they are directed. In human rights cases, the addressees may be governing bodies, a range of public (and in some cases private15) institutions in all sectors, individual office holders—or a combination. In addition to actors and institutions explicitly mentioned, others may be delegated implementation tasks, or respond to the judgment of their own accord. For analytical purposes it is useful to distinguish between political actors (who may be ordered by the court to develop new policies or laws, or who themselves choose to respond to the content of the judgment) and administrative bodies who are called on to take action to implement the order or subsequent policy, or to monitor implementation. These are heterogeneous actors making a wide range of decisions. In figure 13.3, they are represented by four stars: two for political actors, since the distinction between government and opposition is crucial for these dynamics, and one each for bureaucrats and monitors. It is difficult to describe their opportunity structures in the abstract, but there are some general factors that the analysis should consider. Political Responses and Politicians’ Motivation and Opportunity Structure When investigating political responses to human rights judgments, we should again distinguish between their motivation, the barriers they face, and the resources they command. With regard to political actors, their motivation is particularly crucial. Personal ambition and interests aside, it is the legitimate business of politicians to seek to change society in a particular direction. In this context, a main question is whether the orders of the judgment (and the rights mobilization more broadly) align with their own vision or contradict it. Simply put, for political actors whose vision or aim (see figure 13.2) aligns with the judgment or human rights mobilization, the question is to what extent their opportunity structure allows this to be carried though into decisions, laws, and policies aimed at implementing the court orders and realizing the rights. For political actors whose norms, visions or interests oppose the judgment, the question is whether their opportunity structure permits them to act on their human rights–opposing aim to ignore or oppose the decision, or possibly even use it as a resource for counter-mobilization. For political actors wanting to oppose a human rights order, a core set of obstacles or barriers against ignoring or opposing the judgment are related to the courts’

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authority. This may have different aspects. One is the prevailing culture of legality in society. If there are strong norms against disrespecting judgments or human rights in the society generally—or among groups that are important for the political actors in question—this raises the political costs of being seen to do so (bringing us back to the question of supportive constituencies). To the extent that political actors themselves share these legality norms, the internal norm to respect the judgment may also serve to counteract their interest in disregarding it. A related set of barriers stems from the litigants’ voice. Where the cause is forcefully expressed in out-of-court mobilization, this also raises the political costs of ignoring or transgressing a judgment. And even where the judgment is not favorable to the litigants, robust out-of-court mobilization may force the government to concede. (Klug’s chapter in this volume illustrates such dynamics in the South African case.) The ability of political actors to overcome the (internal and external) obstacles of judicial authority depends on the availability of relevant resources. These may include other legal norms. Even if there is a strong general norm to respect court judgments (in society generally, in constituencies that are significant for the political actors, or with the politicians themselves), a judgment may be considered contrary to other norms, for example religious or cultural mores, or conceptions regarding the separation of powers. Judgments ordering changes in social policy (or issues with a bearing on national security) could be seen as political questions outside the court’s legitimate domain. More pragmatic arguments relate to the costs of enforcing the judgment, and insufficient resourses. With regard to the external resistance toward transgression of judicial authority—or mobilization in favor of the specific case—political actors may choose to suffer the costs. The consequences of doing so (and the need to bargain with opposing forces) differ, depending on the political system in which they operate and the political balance of power. Where politicians sit comfortably, political costs are small—as is the bargaining power of opposing forces. In some contexts political actors may even make political gains from noncompliance with a human rights judgment, using it as a basis for mobilizing opposing social forces. For political actors who support the terms of the pro–human rights judgment, the court order, and broader mobilization efforts, represent important resources they can use to gain leverage in pursuing their policy goals or aim. This is true not only for those who are addressees of the orders but also for other political actors (including opposition politicians). Here, important barriers are related to opposition to the rights from significant social and political forces. Judgments protecting insular groups (unpopular minorities, homosexuals, prisoners, etc.) or causes (abolition of the death penalty) may run up against powerful social norms, and to support them incurs substantial political costs; social-rights-based policy change may antagonize strong economic actors. Again, the ability of political actors to overcome barriers related to political costs depends on how vulnerable they them-

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selves are. This is in turn a function of the nature of the political system, the political balance of power, and contextual factors such as timing (for example, distance to the next election). But it is not only a matter of political will: practical and economic barriers must also be overcome. These may be substantial, not least with regard to social-rights-based policy reforms, and particularly in poor and middleincome countries with huge inequalities. For political actors in positions of power, issues of budgetary resources, institutional capacity, and so on are issues of major concern and add to the need to strike bargains with significant social actors. On the other hand, human rights–expanding judgments or rights mobilization may also serve to mobilize additional resources, domestically or internationally. Administrative Responses and Bureaucrats’ Motivation and Opportunity Structure Another crucial set of actors are the administrative bodies and bureaucrats who are called on—in the judgment itself or through subsequent governmental decisions, legislation or policies—to take action to implement the order, or to monitor the implementation. Whether and how the judgment is implemented is greatly affected by the motivations and opportunity structures of the bureaucrats who fill these positions (which here means anyone employed in the public service or in private institutions included in the court’s order). We cannot take for granted that we are dealing with ideal-type Weberian bureaucrats who loyally follow any legitimately authorized order. There are many reasons why the motivation or aim of administrative actors, individually and collectively, will diverge significantly from that laid down in the court’s order (or subsequent policy). There may be moral or ideological resistance (for example in cases regarding abortion or rights of prisoners), as well as more pragmatic resistance when the ordered changes are seen as ill advised. Where implementation requires institutional reform, this is also likely to raise fears concerning future position and status—and a general discomfort in the face of change. When analyzing the implementation of court orders or subsequent policies, factors affecting the (potentially diverging) internal motivation of administrative decision makers at various levels should be taken into account. Assuming that bureaucrats aim to implement the orders, what are the factors that influence whether or not this be realized? The barriers and resources shaping bureaucrats’ opportunity structure will vary according to the nature of the case, but three interrelated sets of factors are always central. One is resources and institutional capacity. Is it feasible to mobilize the manpower, knowledge, skills, finances, and equipment needed? The second is the political opportunity structure of the bureaucrats. If the court order counteracts the will of the political leadership (or powerful social interests), how much autonomy do the bureaucrats have? As in the discussion of judicial independence, the likely (personal and institutional)

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consequences for the bureaucrats of implementing the order is related to their structural insulation (security of tenure, career, and benefits)—but also to the possibility of their negotiating the necessary resources in the face of a hostile political environment. The third set of factors is related to the corporate culture in the institution and the professional norms of appropriateness. Even if the individual decision maker is motivated to implement the order, this may run up against norms against “rocking the boat,” or urging deference to political leadership. Strong norms of legality and obedience toward court orders may, on the other hand, work in favor of loyal implementation, counteracting individual motivations to diverge. The culture in the organization also influences (in combination with bureaucrats’ personal integrity) how easily they may be corrupted by strong social actors, and how the order is interpreted. The nature of the order itself, and the room for discretion, are thus also significant. Strategies and Methods of Investigation To investigate the implementation of judgments is complex, and what will be the most fruitful approach depends on the nature of the judgment. But various forms of process tracing might be useful (George and Bennet 2005). As indicated above, decision makers’ motivation and opportunity structure is key to identifying and understanding the micromechanisms that are important for the outcome. In cases where the order is unequivocal both in terms of what is required (with clear indicators for compliance) and who is responsible for fulfilling it, one route could be to collect and analyze qualitative and/or quantitative data on the output (for example administrative measures undertaken and services provided). This could be combined with key-informant interviews of insiders and outsiders to the process. Where there are actors and bodies systematically monitoring the process—on an official mandate or on their own accord—these may be central sources of information, as may human rights institutions. Where the order is more open in demanding reforms, more work is needed to identify actors and indicators, and analyze political responses—examples here include the Colombian Constitutional Court’s orders to reform the health system (Yamin and Gloppen 2011) and the situation of internally displaced people (Rodriguez Garavito 2010). But even with a good picture of when and how judgments are implemented, this gives an incomplete picture of their transformative effect. How can we assess the political and social changes to which judgments give rise? C HA L L E N G E S I N A S SE S SI N G T H E I M PAC T O F H UM A N R IG H T S L I T IG AT IO N

To assess the impact of human rights litigation in terms of accountability and social transformation, we need both to establish the diverse effects of the litigation

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efforts and to conceptualize what accountability and social transformation mean in the particular case. With regard to the latter, the success of litigation in enforcing human rights accountability is, in abstract terms, the ability to compel the relevant authorities to acknowledge and act in accordance with human rights principles. Depending on the nature of the case, human rights accountability takes the form of effective sanctioning for the violation of specific rights; compensation for harm; or structural changes preventing ongoing and future violations by state actors or protecting against third-party violations. It can also be positive steps to realize rights, developed and provided in accordance with human rights principles. To assess the accountability effect thus means looking beyond compliance and implementation of a judgment, and involves analyses of whether and how rights-protection mechanisms operate in practice. Social transformation can be understood as a move toward a more just society through significant changes in power relations and resource allocation, and reduction of the weight of morally irrelevant differences (Gargarella, Domingo, and Roux 2006). To assess the transformative effect of litigation is particularly challenging, given that there is reasonable disagreement on what social justice entails and therefore on what constitutes social transformation. Even if we define it in terms of human rights realization, ambiguity remains (as in abortion cases, where the meaning of the right to life with dignity is contested). A fundamental question is whether transformation should be measured against the aim of the litigants or against some more impartial standard or “view from nowhere”.16 While a perfectly objective standard is unattainable, the trade-offs inherent in rights realization are an argument for striving toward the latter. Expansion of some human rights for one group may be detrimental to other groups or other forms of rights realization, and thus possibly contribute to less social justice overall. Striving for an impartial view is also conducive to a broad investigation of the range of intended and unintended effects that combine to determine the social transformation effect of the litigation. As noted above and illustrated in table 13.1, when considering transformative effects of litigation it is important to take into account ideational/symbolic and political aspects as well as material effects. Material effects here refers to changes in law, jurisprudence, policy, services provided, uptake of services, and social outcomes. Symbolic or ideational effects are changes in goals, ideas, attitudes, and conceptions—when a phenomenon is acknowledged as a rights violation this may fundamentally change the way it is viewed, say from an unfortunate fact to a problem that society needs to urgently address. Political effects are changes in power relations and decision-making procedures, for example in the rules regarding who should be included and the weight of different actors. From the perspective of social transformation, ideational and political changes might be more decisive in the longer term than more immediately tangible change in policy or service

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delivery. As table 13.1 also indicates, when investigating effects we should not be concerned just with ultimate outcomes along these dimensions but also pay attention to changes in intermediary processes (organizational and institutional changes, informal changes in decision-making processes, and changes in social discourse). Given the wide range of possible interventions and policies that may be the subject of investigation—and the diverse nature of the effects arising from each—it is difficult to discuss concrete methodologies, beyond pointing to the need to combine quantitative and qualitative approaches from across academic disciplines, in order to capture the multidimensionality of the changes (see e.g. Gauri and Brinks 2008, 2014; Yamin and Gloppen 2011; Langford, Cousins, Dugard, and Madlingozi 2013). A central challenge is to devise relevant methods for determining the scale and scope of the various types of effects. This includes methods for assessing how many people have been (directly or indirectly) affected by the ordered remedies and subsequent policy, as well as how significant the effect is— and ways to establish how much of the (intended and unintended, positive and negative) changes can be attributed to the judgment and the litigation process, as distinct from other social and political factors. As noted above, a particularly tricky aspect of this regards the shadow effect of rights and litigation, where “latent compliance” or rule abidance takes place without a judgment but in the context of an ongoing (or treathened) litigation process potentially culminating in an adverse ruling. In societies where there is (some degree of) rule of law, much of the effect of law and courts will be due to the latent force of the law rather than manifest judgments. Rights mobilization efforts may benefit from this in a number of ways. Changes in policy may occur as the result of threatened litigation; an ongoing litigation process may enhance the bargaining position of activists and form part of social movements’ broader mobilization strategy (as indicated by the “out-ofcourt mobilization” arrows in the lower part of figure 13.3). As noted above, even if the case is lost, the litigation process may have created sufficient political momentum to spark a process of transformative policy change (NeJaime 2011; Albiston 2011). In such cases it is particularly difficult to assess how important the legal mobilization was for the end result. Concluding Remarks This chapter has proposed a research strategy and conceptual framework for studying courts in context, aiming to facilitate a better understanding of when legal pathways toward social transformation succeed. It highlights and further explores the courts-centered aspects of the MAPs framework presented by Haglund and Stryker in the introduction to this volume, and it complements and integrates the analytical frames presented by Gauri and Brinks and by Klug in this volume. The framework aims to facilitate analysis of legal struggles for

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human rights realization in comparative perspective as well as in a wider temporal, socio-political, and institutional context. It might be too complex and extensive to serve as a tenable template for a single empirical study, but rather seeks to craft a map enabling cumulative knowledge using various methodologies and empirical data. A collaborative and phased approach can address the complexity of the process in ways that may be unfeasible in a single research project and thus create a better understanding of the socio-political and institutional conditions for human rights accountability and social transformation through court-centered mobilization. NOTES 1. The concepts “opportunity situation” and “legal opportunity structure” draw from classical sociology (Merton 1959), work on social movements, and political opportunity structures (see for example McAdam, McCarthy, and Zald 1999). On legal opportunity structures, see for example Hilson (2002) and Wilson and Rodríguez Cordero (2006). It does, however, include insights from institutionalist theory on the role of norms and “the logic of appropriateness” in understanding social action and political change (Lieberman 2002; March and Olsen 2004). 2. The concept of microfoundations stems from economics, where it refers to the anchoring of macroeconomic models in the behavior of individual, optimizing actors. Contemporary behavioral economics questions the traditional assumptions about the “economic man” and rationality microfoundations of economic theory (Kahneman 2011). In political science the term microfoundations is traditionally associated with political economy and rational choice models, often with relatively narrow assumptions about what moves rational agents. Increasingly, however, the set of considerations that are seen as relevant to the optimizing agents has widened, for instance taking institutions, norms and values into consideration, as well as longer time perspectives and the nested, multilevel games that the actors are involved in (North, Wallis, and Weingast 2009; Tsebelis 1990). It is to this broader concept of microfoundations that I refer. 3. The matrix was developed in collaboration with Daniel M. Brinks, Malcolm Langford and others as a conceptual foundation for the Centre on Law & Social Transformation (www.lawandsocialtransformation.no). It also draws on work by Rodriguez Garavito (2010) and Langford, Sumner, and Yamin (2013). 4. The framework was first applied in Gloppen (2005). The conceptualization of the framework is influenced by socio-legal scholars such as Rosenberg (1991); Epp (1998), Sarat and Sheingold (1998, 2006), Galanter (1974), Feely and Rubin (2000), and McCann (2006), seeking to understand the conditions and consequences of legal mobilization and cause lawyering. The framework was developed in collaboration with colleagues in a series of research projects carried out in context of the Chr. Michelsen Institute’s research program on Courts in Transition and more recently the Centre on Law & Social Transformation— Democratization and the Judiciary: Accountability Function of Courts in New Democracies (2002–04); Courts and Social Transformation (2002–06); Courts and Power in Latin America and Africa (2004–10); Litigating Health Rights: Can Courts Bring More Justice to

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Health? (2008–11); and Sexual and Reproductive Rights Lawfare (2014–18). The scholars involved in (and the activists, lawyers, judges, and others interviewed for) these projects have contributed to the conceptualization. Particular mention is due Roberto Gargarella, Elin Skaar, Rachel Sieder, Pilar Domingo, Jackie Dugard, Bruce Wilson, Edge Kanyongolo, Alicia Ely Yamin, Camila Gianella, Paola Bergallo, Octavio Ferraz, Daniel Brinks, Varun Gauri, Malcom Langford and Cesar Rodriques. 5. The conceptualization of how legal voice emerges was inspired by Anderson (2003); see also Stryker (2007). 6. This co-written volume resulted from year-long discussions on the theoretical and practical complexities involved in analyzing courts’ accountability function—both in empirically pinning it down in ways allowing for comparative analysis, and in terms of understanding what causes the observed variation. My ideas cannot be separated from the other authors’: Roberto Gargarella, Bruce Wilson, Elin Skaar, and Morten Kinander. 7. This has for example been notable in relation to litigation on issues that are highly morally charged, such as gay rights and abortion. See for example Burns (2005) and Clifford (2012). 8. For a discussion of why poor people often lack this, see Gloppen (2008a) and Anderson (2003). On the role of international actors, see Risse-Kappen, Ropp, and Sikkink (1999), Sikkink (2011), Simmons (2009), and Hafner-Burton (2008). 9. International NGOs that are specialized, repeat litigators will have a different understanding of the range of potential legal forums and which types of claims particular adjudicators are likely to view favorably—and may also be able to influence judicial bodies through training or lobbying for their composition. Legal NGOs influence legal reform processes— directly and through influencing public opinion and political actors though advocacy. 10. “Survey experiments” here refers to survey techniques that involve the controlled administration of some form of “treatment”—for example a particular framing or information—to investigate whether and how this affects the attitudes in question. 11. Mendes (2013) develops a sophisticated model of judicial deliberation and reasoning. 12. The constraining force may come from within the judicial hierarchy. See the discussion of Mozambique in Gloppen et al. (2010). 13. See the discussion of Malawi in Gloppen et al. (2010). 14. For a mixed-methods comparative study of legal cultures in Europe, combining surveys, focus group interviews, key informant interviews, and observation, see Grødeland (forthcoming). 15. Human rights and constitutional rights primarily bind governments, but some countries, including South Africa, also provide for horizontal application of constitutional rights, which may place private actors and institutions (schools, hospitals) as direct addressees in human rights cases. Indirectly, governments’ responsibility to protect and fulfill rights places obligations on individuals through statutory laws and regulations, but here the human rights obligation lies with the government. 16. Here we use Thomas Nagel’s (1989) term for viewing the world in a detached way and considering issues from a vantage point that transcends one’s own experience or interest.

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REFERENCES Albiston, Catherine. 2011. “The Dark Side of Litigation as Social Movement Strategy.” Iowa Law Review Bulletin 96:61–77. Anderson, Michael R. 2003. Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs. Working Paper No. 178, Institute of Development Studies. Bob, Clifford, 2012. The Global Right Wing and the Clash of World Politics. Cambridge University Press. Brinks, Daniel M., and Varun Gauri. 2014. “The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights.” Perspectives on Poltitics 12.2:375–93. Burns, Gene. 2005. The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States. Cambridge: Cambridge University Press. De Fazio, Gianluca. 2012. “Legal Opportunity Structure and Social Movement Strategy in Northern Ireland and Southern United States.” International Journal of Comparative Sociology 53:3–22. Dembour, Marie-Benedicte. 2003. “Human Rights Talk and Anthropological Ambivalence.” In Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity, edited by Olivia Harris, 19–40. London: Routledge. Dugard, Jackie. 2006. “Court of First Instance? Towards a Pro-Poor Jurisdiction for the South African Constitutional Court.” South African Journal of Human Rights 22: 261–82. Epp, Charles. 1998. The Rights Revolution. Chicago: University of Chicago Press. Feely, Malcom, and Edvard L. Rubin. 2000. Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons. Cambridge: Cambridge University Press. Galanter, Marc. 1974. “Why the Haves Come Out Ahead.” Law and Society Review 9. Reprinted (with corrections) in Law and Society, edited by R. Cotterrell, 165–230 (Aldershot: Dartmouth, 1994). Gargarella, Roberto, Pilar Domingo, and Theunis Roux. 2006. Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? Darthmouth: Ashgate. Gauri, Varun, and Daniel M. Brinks. 2008. Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. New York: Cambridge University Press. George, Alexander L., and Andrew Bennett. 2005. Case Studies and Theory Development in the Social Sciences. Cambridge, MA: MIT Press. Gloppen, Siri. 2005. “Social Rights Litigation as Transformation: South African Perspectives.” In Democratising Development: The Politics of Socio-Economic Rights in South Africa, edited by Peris Jones and Kristian Stokke, 153–80. Leiden: Brill Academic. . 2006. “Courts and Social Transformation: A Conceptual Framework.” In Courts and Social Transformation, edited by Gargarella et al. Darthmouth: Ashgate. . 2008a. “Public Interest Litigation, Social Rights and Social Policy.” In Inclusive States: Social Policy and Structural Inequalities, edited by Anis A. Dani and Arjan de Haan, 343–68. Washington, DC: World Bank. . 2008b. “Litigation as a Strategy to Hold Governments Accountable for Implementing the Right to Health.” Health and Human Rights 10(2):21–36.

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. 2009. “Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment.” Erasmus Law Review 2(4):465–80. Gloppen, Siri, Roberto Gargarella, and Elin Skaar, eds. 2004. Democratization and the Judiciary: The Accountability Function of Courts in New Democracies. London: Frank Cass. Gloppen, Siri, Bruce Wilson, Roberto Gargarella, Elin Skaar, and Morten Kinander. 2010. Courts and Power in Latin America and Africa. Basingstoke: Palgrave Macmillan. Grødeland, Åse B. Forthcoming. Informal Practice and Corruption: A Comparison of East Central Europe, South East Europe and the West Balkans (see www.fafo.no/pers/bio/abg. htm or [email protected]). Hafner-Burton, Emilie. M. 2008. “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem.” International Organization 62:689–716. Hilson, Chris. 2002. “New Social Movements: The Role of Legal Opportunity.” Journal of European Public Policy 9(2):238–55. Kahneman, Daniel. 2011. Thinking, Fast and Slow. New York: Macmillan. Langford, Malcolm, Ben Cousins, Jackie Dugard, and Tshepo Madlingozi, eds. 2013. SocioEconomic Rights in South Africa: Symbols or Substance? Cambridge: Cambridge University Press. Langford, Malcolm, Andy Sumner, and Alicia Ely Yamin, eds. 2013. The Millennium Development Goals and Human Rights: Past, Present and Future. Cambridge: Cambridge University Press.Lieberman, Robert C. 2002. “Ideas, Institutions, and Political Order: Explaining Political Change.” American Political Science Review 96:697–712. March, James G., and Johan P. Olsen. 2004. The logic of appropriateness. Oslo: ARENA. McAdam, Douglas, John D. McCarthy, and Mayer Y. Zald, eds. 1999. Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings. Cambridge: Cambridge University Press. McCann, Michael W. 2006. Law and Social Movements. Aldershot: Ashgate. Mendes, Conrado Hübner. 2013. Constitutional Courts and Deliberative Democracy. Oxford: Oxford University Press. Merry, Sally Engle. 2003. “Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence.” Human Rights Quarterly 25:343–81. Merton, Robert K. 1959. “Social Conformity, Deviation, and Opportunity-Structures: A Comment on the Contributions of Dubin and Cloward.” American Sociological Review 24:177–89. Moore, Sally Falk. 2005. Law and Anthropology: A Reader. Malden, MA: Blackwell. Nagel, Thomas. 1989. A View from Nowhere. New York: Oxford University Press. NeJaime, Douglas. 2011. “Winning through Losing.” Iowa Law Review 96:941–1012. North, Douglass C., John Joseph Wallis, and Barry R. Weingast. 2009. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. Cambridge: Cambridge University Press. Risse-Kappen, Thomas, Steve C. Ropp, and Kathryn Sikkink. 1999. The power of human rights: international norms and domestic change. New York: Cambridge University Press. Rodríguez Garavito, César. 2010. Cortes y cambio social: cómo la Corte Constitucional transformó el desplazamiento forzado en Colombia. Bogotá: Dejusticia.

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Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press. Sarat, Austin, and Stuart A. Scheingold. 1998. Cause Lawyering: Political Commitments and Professional Responsibilities. Oxford: Oxford University Press. Sarat, Austin, and Stuart A. Scheingold. 2006. Cause Lawyers and Social Movements. Stanford, CA: Stanford Law and Politics. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton. Simmons, Beth A. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. New York: Cambridge University Press. Stryker, Robin. 2007. “Half Empty, Half Full, or Neither: Law, Inequality and Social Change in Capitalist Democracies.” Annual Review of Law and Social Science 3:69–97. Tsebelis, George. 1990. Nested Games: Rational Choice in Comparative Politics. Berkeley: University of California Press. Widner, Jennifer. 2001. Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa. New York: W. W. Norton. Wilson, Bruce M., and Juan Carlos Rodríguez Cordero. 2006. “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics.” Comparative Political Studies 39:325–51. Yamin, Alicia Ely, and Siri Gloppen. 2011. Litigating Health Rights: Can Courts Bring More Justice to Health? Cambridge, MA: Harvard Law School Human Rights Programme Series, with Harvard University Press.

Conclusion Emerging Possibilities for Social Transformation Robin Stryker and LaDawn Haglund

Despite formidable challenges, actors around the world have increasingly mobilized human rights norms, values, and frames to help promote equality- and justice-enhancing social transformation. Chapters in this volume are unified by their common concern to specify how more general types of mechanisms and actors identified as central in iterative processes of rights translation become instantiated within time- and space-specific concrete pathways of rights realization (see the description of the MAPs framework in the introductory chapter). Involving diverse types of belief and action formation, the pathways described in individual chapters highlight both barriers to and possibilities for profound social transformation. By systematically comparing distinct pathways examined for different rights across different regions of the world and in variable legal, politicaleconomic, and cultural contexts for rights realization, this concluding chapter offers some synthetic, empirically based generalizations. It also suggests promising possibilities for future research and practice. C R O S S - PAT H WAY C OM PA R I S O N A N D C O N D I T IO NA L G E N E R A L I Z AT IO N : VA LU E A D D E D B Y T H E M A P S F R A M EWO R K

There are a wide variety of mechanisms and actors that may—or may not—be involved in any concrete pathway of rights realization. Understanding unfolding interactions among even a small set of actors—say human rights litigants, lawyers, and judges—mobilizing even one type of accountability mechanism for rights realization—say litigation and court enforcement—is complicated enough. That 319

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complexity becomes substantially ramped up as soon as we begin considering how multiple types of individual, institutional and collective actors may interact across multiple types of potential mechanisms in translating rights on the books into rights in practice. There are business actors, state actors, media actors, and civil society actors at the local, national, and transnational levels. Similarly, there are a great many rights-translation mechanisms establishing diverse forms of accountability. At the more abstract level—and as we pointed out in our introductory chapter—mechanisms for rights realization may be informational, symbolic, power-based, legal, and/or cooperative. More concretely, mechanisms include social dialogue; social accountability; international and national litigation, law enforcement, and legal sanctions; information gathering and dissemination; goal setting, indicator construction, and monitoring within and across nation-states; institutionalized political processes, including lobbying, electoral campaigning, and elections, and policy making involving legislative and executive branches at multiple levels of governance; “naming and shaming” pressures exerted by national and transnational networks of NGOs; non-institutionalized mass political protest and social movement pressures on local and national government, transnational governance organizations, and national and transnational economic elites; and transnational economic dependencies, exchanges, incentives, and sanctions, including but not restricted to international aid and development funding. Each of these mechanisms in turn can be characterized—as does Gloppen’s chapter specifically for litigation and court enforcement—in terms of arrays of motivations, constraints, and opportunities that shape the strategies pursued by the relevant actors. We might be tempted to throw our hands up in despair at this complexity. Instead, however, we can use the MAPs framework to identify systematically which interactions, among which of the various actors, and which mechanisms and strategies, are central to the success or failure of any concrete rights-realization pathway to produce meaningful social transformation. We can then use cross-pathway comparisons to suggest tentative, empirically supported generalizations about rights realization and social transformation. MAPs-guided cross-pathway analyses build on key concepts invoked in Gloppen’s chapter to chart factors shaping focal actors’ motivations and opportunity structures at various stages of litigation. And like Gloppen, we call for collaborative, mixed-methods and multidisciplinary research across diverse geographical contexts. Our further development of the MAPs framework provides substantial added value in at least three interrelated ways. First, MAPs-guided comparative analysis of rights translation pathways provides an elaboration of the larger socio-political and economic context within which the litigation and court enforcement mechanisms theorized by Gloppen reside. This allows for further specification of combinations of mechanisms, legal

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and nonlegal, that work to reinforce or conversely to undermine the efficacy of judicialization of both economic, social, and cultural rights (ESCR) and civil and political rights (CPR). Second, because the MAPs framework explicitly moves beyond judicial mechanisms to consider whether and how any concrete pathway involves a variety of nonjudicial actors and mechanisms in addition to or instead of judicialization, it raises the key question of alternative mechanisms and pathways. Third, not only is the MAPs framework developed explicitly to apply to both CPR and ESCR, thereby encouraging empirical integration and theoretical synthesis across the two domains, the MAPs framework also embeds consideration of interconnections among CPR on the one hand and ESCR on the other. Without the assurance of personal-integrity rights or of such key CPR as freedom of expression, freedom of association, and voting rights, ESCR activists will not be able to combine legal mechanisms with the political, informational, symbolic, and cooperative mechanisms that make mobilizing law more rather than less effective. Without freedom from discrimination in the enjoyment of social and economic rights—whether the discrimination is based on race or ethnicity, gender, age, disability, religion, sexuality, union membership, nationality, or something else— ESCR achievement will be inadequate. As more and more concrete pathways and their social transformation outcomes around the world are elucidated by the MAPs framework, it becomes possible to undertake comparative pathway analysis to better understand and explain the variable success, failure, breadth, depth, and type of social transformation associated with the presence or absence of specific actors, mechanisms, and their various combinations. Armed with the full range of actors and mechanisms identified by the framework, we can search systematically for which combinations of actors and mechanisms, in which spatial and temporal contexts, lead to more or less effective concrete pathways for social transformation. Likewise, we can identify whether and when there are equally effective pathways of social transformation that involve alternative actors and mechanisms operating within or across specific temporal and spatial contexts. Because neither the capacity nor the will to chart a specific pathway will be equally feasible across diverse legal, political-economic, and cultural contexts, scholarly identification of alternative pathways provides flexibility for rights activists and rights providers alike (Stryker 1996; Eliason and Stryker 2009). We are also encouraged to consider how concrete geographic and temporal contexts that vary in the levels and scope of achievements of various civil and political rights are more or less conducive to ESCR realization. Chapters in this volume also make clear that comparative pathway analysis cannot be content to examine rights-realization processes. We must also examine outcomes, as these manifest themselves in diverse types and degrees of social transformation. In the introduction to this volume, we developed the concept of

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“moments” of social change, where shifts in belief and behavior cumulate (or not) into more substantive social transformation. Gloppen’s analysis converges with research on CPR to specify a range of outcomes empirically shown to accompany such changes. Having highlighted these different types of outcomes in our introductory chapter, we reprise them here. They are: 1) symbolic or ideational transformation, where discourses and ideas lead to shifts in societal goals and values, as well as shifts in individual and collective identity; 2) political transformation, where changes in behavior and power relations alter decision-making processes, and can lead to political empowerment of previously disadvantaged or marginalized groups; 3) material transformation, where institutional or organizational reform and policy changes can lead to changes in service delivery and provision, resulting in improvements in economic well-being (see also Stryker 2007; Haglund and Aggarwal 2011; Pedriana and Stryker 2012). Measuring the significance of these transformative outcomes requires us to attend to the scale and scope of each type of effect. We need to know how many people have been affected, both directly and indirectly, and how large those effects are. We also need to attend to unintended consequences. Based on the MAPs-guided comparative analyses of cases in this volume, the remainder of this chapter offers more general, empirically informed research hypotheses pertaining to which combinations of actors and mechanisms make for the most effective pathways of rights realization, and whether there are equally effective alternative combinations of actors and mechanisms. Our hypotheses can serve to guide case selection and analyses in future MAPs-guided comparative research. We intend all our hypotheses to contain an introductory ceteris paribus clause. E M P I R IC A L LY G R O U N D E D R E SE A R C H H Y P O T H E SE S

Conflicting International Regimes or Increasing Complementarity? Emphasizing rights realization as a multilevel institutional process, a number of this volume’s chapters focus on how interactions and feedbacks between supranational actors and mechanisms, on one hand, and actors and mechanisms at the national level, on the other hand, can facilitate or inhibit ESCR realization and social transformation. For example, Abouharb, Cingranelli, and Filippov suggest that, controlling for a wide variety of other relevant factors, the longer developing countries participated in the UN Convention on Economic, Social and Cultural Rights, the greater their respect for economic and social rights. Meanwhile, and again controlling for a wide variety of other relevant factors, the longer developing countries participated in World Bank and IMF program lending, the less they respected economic and social rights.

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Thus, accountability pathways between states and the IMF and World Bank lending programs seem to have undermined ESCR realization, even though international lending programs do not explicitly contradict human rights goals.1 Specifying how and why reliance on the neoliberal logic of markets and privatization is likely to doom ESCR efforts to failure, Felice’s chapter allows us to further specify this hypothesis. H1. The more that international agencies such as the IMF and the World Bank adopt programs emphasizing exclusive expansion of neoliberal market logics, to the detriment of states’ motivation for and capacity to correct for market failures, the less—and less likely—are economic and social rights to be achieved.

Further comparative pathway analysis is essential to specify how IMF and World Bank programs may conjoin with other rights-realization pathways to mitigate the international lending regime’s apparent negative impact on fulfilling minimum core ESCR. Felice himself suggests that international law’s minimum core obligations for ESCR be specified explicitly to call for state implementation through interventions in markets. He argues persuasively that pathways involving state interventions in markets are called for by the economics of attaining and managing global public goods and common resource pools. Based on their analyses, Abouharb, Cingranelli, and Filippov caution that increasing international obligations generally constrains economic and social rights realization. Participating in pathways of international accountability facilitates rights realization only when those pathways explicitly demand improved rights outcomes. However, Nelson’s chapter, focusing on rights to water, land, and health, shows how the growth of the international human rights regime created an organizational field of actors and mechanisms that, in intersecting with the organizational field of development, created new actors and new discursive frames promoting economic and social rights. Organizational innovation and social transformation promoted by field intersection is a common theme more generally in research on the co-production of law and the economy (Edelman and Stryker 2005). In pathways charted by Nelson, as ESCR frames were imported into the development work of such organizations as CARE, Oxfam, Action Aid, and Save the Children, these frames challenged the exclusively market-led approaches to needs fulfillment critiqued by Felice. Human rights principles then provided new bases for accountability in and assessment of development aid. Meanwhile, national and international NGOs such as Amnesty International and the World Organisation against Torture originally established to promote CPR at least partially incorporated ESCR into their advocacy agendas. The greatest innovations in strategy came from new, more specialized organizations such as the Center on Housing Rights and Evictions, the Center for Economic and Social Rights, and the Global Initiative for Economic, Social and

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Cultural Rights. Created to focus on specific issues in a particular domain of rights, these new organizations drew on human rights principles to support domestic social movements confronting government and corporate power in attempts to transform land, water, and health policies. Combining Nelson’s more optimistic view with the bleak picture suggested by Abouharb, Cingranelli, and Filippov suggests the following additional hypotheses to guide future research. H2. As new discourses and logics of belief and action that constitute the international human rights regime diffuse, becoming instantiated in transnational organizations and domestic social-movement organizations, international lending and development practices increasingly incorporate both CPR and ESCR principles. H3. The more international lending and development practices incorporate ESCR principles, the less the international lending regime will create favorable conditions for ESCR rights violations by constraining the capacity and will of national governments to improve ESCR.

Sano’s chapter further undergirds hypotheses 2 and 3, providing detailed documentation of the increasing incorporation of human rights concerns into development. Even if this incorporation is not yet sufficient to eliminate the negative average effects of the international lending regime on economic and social rights, particular localized accountability projects may have had some positive impact. Sano shows how the World Bank’s conceptualization and promotion of “social accountability” converged with human rights discourses and practices. On the one hand, social accountability is not synonymous with accountability for rights violations. Defined as “actions and mechanisms that enable citizens to hold government and service providers accountable and make them responsive to their needs” (Sano’s chapter, emphasis ours), social accountability lacks reference to the normative foundation of rights. On the other hand, social accountability, no less than law on the books, is subject to interpretation. And social accountability has been interpreted—and social accountability pathways created—to include some of the same actors and mechanisms pertinent for realizing ESCR. Sano locates the origins of the World Bank’s focus on social accountability in its work on anticorruption, good governance, and service provision for the poor. In its 2004 report, Making Services Work for Poor People, the Bank suggests that linking the poor directly to service providers would shorten accountability pathways for service provision. Previously, the Bank had relied on longer pathways of linkage, first from citizens to domestic governments and then from these governments to service providers. Both before and after its 2004 report, the Bank emphasized that, for its “empowerment framework” to lead to effective poverty reduction, there had to be accountability relationships among policy makers, service providers, and clients. Once the Bank’s Social Development Strategy of 2005 emphasized accountability as a “key conceptual pillar” (Sano’s chapter) for empowering the poor, and once

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the Bank likewise authored its guidance note on Governance and Anti-Corruption Strategy, social accountability began to be incorporated into specific Bank practices and policies. Above all, the concept of social accountability required the Bank to consider civil society groups as among its stakeholders. Over time, the World Bank foregrounded demand-side governance and reconceptualized service beneficiaries as citizens. Citizenship in turn implied agency, voice, and even citizenship rights. Thus, over time, the World Bank, albeit mostly implicitly or tacitly, became concerned with ESCR. In addition, because social accountability invoked voice, information, association, and participation, CPR (including freedom of speech, right to information, freedom of association, and the right to participate) could not lag far behind. The World Bank explicitly recognized this in its ARVIN framework, or “Ways to Assess the Enabling Environment for Civic Engagement,” with ARVIN standing for association, resources, voice, information, and negotiation. In short, not only is accountability, including the concept of social accountability, pertinent for implementation and thus realization of ESCR, without the fulfillment of key civil and political rights, realizing ESCR will not be possible. Civil and political rights create new institutional rules giving voice to populations that previously had none, in turn providing opportunities for such populations—as well as more resource-rich allies in civil society—to pressure national and local governments to embrace economic and social rights. As the case of the Abahlali shack-dwellers’ movement in South Africa illustrates, calls for the protection of CPR can create a protected space in the fight for socioeconomic change (Dugard, Madlingozi, and Tissington 2012). Further, CPR create new avenues of responsibility and accountability for delivery in ESCR-based programs and policies. H4. Under conditions of strong normative commitment to ESCR, increasing fulfillment of CPR facilitates fulfillment of ESCR.

We can be sure, however, that neither set of rights follows automatically from the other. The social accountability approaches outlined by Sano also highlight the importance of institutional capacity building. Without material resources and institutional vehicles for rights realization, normative commitments will remain symbolic rather than translating into on-the-ground action and social transformation. Recent human rights and development discourses have converged in emphasizing accountability, transparency, participation, and collaboration between citizens and service providers (duty-bearers). However, focus on capacity building traditionally has been of more concern to development practitioners than to human rights practitioners.2 Future cross-pathway comparative analyses should gather evidence to examine more systematically the following hypothesis. H5. Under conditions of strong normative commitment to ESCR, increases in economic resources and institutional capacity for ESCR increase fulfillment of ESCR.

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With respect to the transformative impact of key tools of social accountability, Sano’s chapter points to Björkman and Svensson’s (2008) well-known study of Uganda, comparing health service delivery and outcomes between health dispensaries making use of citizen report cards versus health dispensaries that did not use report cards. The former experienced 19 percent less absenteeism by nurses, a 33 percent drop in infant mortality, 16 percent higher facility utilization, and 7 to 10 percent higher immunization rates. However, as Sano emphasizes, we need to gather a great deal more evidence before making any conclusions about which social accountability pathways to ESCR realization are more or less effective and under what conditions. Most development initiatives fail to include impact assessment, and a review of the few that have done so could not offer any definitive conclusions. In light of our prior hypotheses, future research can help establish whether, and under what conditions, pathways emphasizing social accountability can in the future mitigate or reverse the average negative effects that Abouharb, Cingranelli, and Filippov find to result from accepting World Bank or IMF lending requirements. Here, we especially need to chart whether, and the degree to which, the World Bank comes to see the world’s poor as key Bank stakeholders, and the extent to which this vision translates into mechanisms of accountability on the ground. Also, and consistent with Nelson’s arguments, we need research examining the degree to which communication networks arise and mutual learning takes place among actors engaged squarely in development, such as the World Bank, and actors engaged squarely in human rights. We need similar research on the emergence of communication networks and mutual learning among international and transnational organizations promoting rights and among domestic social-movement organizations. In the meantime, research on social accountability reported by Sano suggests the following additional hypotheses: H6. The more domestic support coalitions for enhanced economic goods or service provision span elites and marginalized populations, the greater the fulfillment of ESCR. H7. The more domestic gender norms are inegalitarian, the more limited efforts to increase local empowerment will be and the less will transformations in empowerment be achieved. H8. Under conditions of authoritarian government, dense social networks between citizens and local government authorities increase the accountability of local governments to citizens.

Combining Litigation with Information Dissemination, Monitoring, and/or Social Dialogue. Also focused on multilevel institutional dynamics, Alvarado’s chapter shows additional ways that realization of ESCR and CPR may intertwine. Legal cases brought before the Inter-American Court generated judicial precedent

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favoring indigenous peoples’ rights to their traditional lands and to restitution of lands they had lost. Judicial precedents also protected indigenous peoples’ CPR, including their access to justice and to political participation and consultation on development projects affecting their lands. In turn, judicialization of indigenous rights at the supranational level informed domestic court decisions on both CPR and ESCR in at least some Latin American countries, including some beyond the country in which the dispute originated. This confirms Sikkink’s (2011) finding that rights enforcement can have important regional impacts. Studies of the European Court of Justice—whose opinions are to be given direct effect by the national courts of European Union member states—show similar feedback effects, from disputes taken to the court by citizens of particular member states, to the court’s rulings, and then back to these rulings’ incorporation into national courts’ lines of judicial precedent (Zippel 2006; Stryker 2011). The Awas Tingi litigation discussed in Alvarado’s chapter involved a rights-realization pathway combining court enforcement with further information gathering and monitoring. This combined and iterative pathway eventually succeeded in making an indigenous people’s collective land rights real. While empirical generalization based on one case is unwarranted, using the case to inspire grounded theory building is not. This is so especially because the Awas Tingi pattern is supported by comparisons to U.S. civil rights consent decrees that do and do not involve court-mandated, post-litigation information gathering and monitoring. The former typically have more impact (Hegewisch, Deitch, and Murphy 2011). H9. Judicial enforcement of rights accompanied by relevant data collection, dissemination, and monitoring will be more effective in fulfilling all types of ESCR and CPR and will produce more social transformation than will judicial enforcement that does not involve subsequent data gathering, dissemination, and monitoring.

In the Awas Tingi case, information dissemination and monitoring were incorporated into a rights-realization pathway sequenced according to the institutional logic of litigation and court enforcement. But mechanisms of data gathering, dissemination, and monitoring are not always conjoined with law enforcement. Alvarado’s chapter also shows how the reporting and consultative activity of the UN’s Special Rapporteur on the Rights of Indigenous Peoples led to social dialogues that sometimes yielded benefits beyond what might have been gained in adversarial litigation. What we cannot know based on the apparent efficacy of social dialogue in these instances is whether information gathering, monitoring, and social dialogue in an environment that lacked at least the threat of litigation would be as effective as it was in the examples provided by Alvarado. Gloppen’s discussion of how litigation threat—also referred to as operating “in the shadow” of litigation—shapes the

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beliefs and action of recalcitrant or ineffective rights providers strongly suggests that litigation threat substantially increases the efficacy of social dialogue. Similarly, McCann (1994) has shown with respect to achieving gender pay equity in states and localities in the United States that the threat or perceived threat of litigation can often enhance both the inclination toward and the efficacy of social dialogue between those who claim rights and those, such as local, state, and national governments, whose duty it is to fulfill these rights. We therefore suggest the following hypothesis to guide future research. H10. Social dialogue conducted in the shadow of potential rights litigation is likely to be more effective in fulfilling CPR and ESCR than would social dialogue alone.

Combining Litigation with Politics. Although many chapters in this volume examine pathways of rights realization involving litigation, many also emphasize that a substantial part of rights realization happens beyond or combined with legal compliance. This can be seen in how concrete and diverse pathways involving litigation often include mechanisms other than litigation. Klug’s chapter examining water, land, and health rights in South Africa demonstrates that courts were often mobilized for rights realization when institutionalized politics and policy making alone were not working. Similarly, Alvarado’s chapter shows that the recourse of indigenous peoples to the Inter-American Court was made necessary by states’ actions, or failures to act, in ways that were undermining indigenous rights. Abouharb, Cingranelli, and Filippov point out that it tends to be recalcitrant national governments who find that transnational or domestic NGOs are mobilizing international human rights law to pressure them to provide or ensure rights. These examples suggest the following hypothesis: H11. Formal-legal pathways to rights realization are more likely to be invoked when institutionalized politics is not fulfilling or promoting rights provision.

The heavy use of litigation by the U.S. civil rights movement in attempting to realize the antidiscrimination principle in education, voting rights, housing, and employment emphasizes that legislative- and executive-branch recalcitrance is not limited to either ESCR or to authoritarian states. Government recalcitrance with respect to providing or ensuring rights also extends to representative democracies and to CPR (Rosenberg 1991; Sutton 2001, Pedriana and Stryker 2012). Whether prospective rights claimants mobilize national or international law and courts depends on the nature of the claim, and on the opportunities and constraints offered by national and international legal and political-economic contexts. Klug’s comparative pathway analysis in South Africa also suggests that, because resistance from powerful actors is to be anticipated, social movements from below often stepped in to insure that court orders were implemented. For example, access to health care in South Africa was spearheaded by a new social movement that took

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a recalcitrant government to court to compel access to antiretroviral drugs for HIV-positive pregnant women and their newborns. In a case brought by the Treatment Action Campaign (TAC), the Constitutional Court required the government to provide access to antiretroviral drugs, but the national government was slow to implement HIV/AIDS policies. Thus, in 2004, TAC conducted a national campaign to pressure provincial governments and their departments of health. In what Klug refers to as “an extraordinary public meeting in the Johannesburg City town hall,” in which activists drew on their cultural repertoire of anti-apartheid resistance and their electoral loyalty to the African National Congress, TAC was able to gain traction for health rights realization at the provincial level. This ultimately broke the resistance of the South African National Department of Health. In short, by combining legal mobilization with social-movement pressure and political advocacy, health rights activists garnered considerable success. Because TAC appreciated the limits of what could be achieved through the courts alone, it used political mobilization along with legal action, exploiting competition law as well as human rights frames. This succeeded in bringing down the cost of medicines, ensuring wider access and distribution. Evidence from comparative analysis of charted pathways of civil rights realization in the United States (Pedriana and Stryker 2012) converges with Klug’s observations to support the following hypothesis. H12. At least in representative democracies, mobilizing litigation and court enforcement mechanisms in conjunction with social movement pressures from below will be more effective in fulfilling rights on the ground than will relying on litigation and court enforcement alone.

More generally, we might surmise that: H13. In representative democracies, pathways that involve any political advocacy pressures or mobilization favoring rights expansion, as well as litigation, will be more effective in promoting CPR- and ESCR-based social transformation than will pathways involving formal-legal mechanisms alone.

The latter hypothesis is also consistent with recent studies showing the politically mediated impact of U.S. civil rights laws on workplace desegregation and on access of African Americans to managerial jobs (Stainback, Robinson, and Tomaskovic-Devey 2005; Skaggs 2009). Indeed, since the original 1974 publication of Stuart Scheingold’s seminal The Politics of Rights, U.S. law and society scholars have cautioned that when litigation is pursued to the exclusion of broader political activity, it may fail to lead to social change. Beyond this, of course, political and social history shapes whether social movements emerge to influence legal outcomes. As Klug’s analysis highlights, water reform was led largely by government, due to a lack of seasoned advocates lobbying for water as a human right. This in turn resulted in a lackluster effort by courts

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to define the right’s substantive content. Land reform, in contrast, was intimately linked to anti-apartheid struggles and gained a great deal of institutionalization during reform. Successive constitutional and parliamentary decisions incorporated language that partially insulated land reform from historically discriminatory patterns of property rights protections, resulting in an explicit acknowledgement of the need for land restitution, legally secure tenure for those who had experienced racial discrimination, and equitable distribution of land. Gains in the area of health rights, as described above, resulted from efforts of an emerging social movement that gained its strength from anti-apartheid activism as well as the urgency of an HIV/AIDS pandemic. Clearly, future MAPs-guided comparative research should further specify and empirically examine the diverse kinds of pathways that combine historically conditioned political mobilization and/or institutions with the judicialization of rights. Such MAPs-guided comparative analysis should also be attentive to what Klug labels the specific “materiality” of different kinds of rights, and how these can open up or close off opportunities. Finally, in comparing across multiple economic and social rights situated within the same geographical context, Klug’s analysis reminds us that there will often be multiple legal and political campaigns proceeding simultaneously. These may create positive synergies—as they did in enhancing the collective land rights of indigenous peoples while also enhancing indigenous people’s political rights to consultation and participation in state policy decisions affecting them (Alvarado’s chapter). However, since the resources to mount political and legal campaigns are not infinite, activists will often have to prioritize their struggles, such that at least in the shorter term, mobilization promoting one right may come at the expense of the capacity to mobilize to promote another right. Such was the case for example with the NAACP Legal Defense Fund in the 1960s–1970s. Concentrating its legal mobilization in the areas of voting and employment rights, the fund did relatively little in fair housing in the years immediately following Congress’s enactment of the Fair Housing Act of 1968 (Pedriana and Stryker 2012). Bottom-Up and Top-Down Politics Working Together toward Rights Realization. Nelson’s chapter documents some concrete pathways through which, beginning in the 1990s, regional and global networks of social movements and NGOs were established and became important in global social policy making. The networks were of two types: broad, more loosely coordinated campaigns of resistance to the behavior of corporations or states; and global networks with strong central leadership united around a particular policy goal. Resistance to the privatization of water supply in Africa, Asia, and Latin America illustrates the first type of network, and the Campaign for Access to Essential Medicines, targeting big pharmaceutical companies, national governments, and international organizations, illustrates the second type.

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As Nelson documents, entry of new or reformulated transnational organizational actors and the issue-driven growth of social movements around the world interacted to chart innovative pathways that combined traditional human rights mechanisms, including legislative advocacy, litigation, broader mobilization, and documentation efforts, with newer strategies of development, including local capacity building, participation, and empowerment. Local, rights-based movements in poor countries challenged international rights and development NGOs to advocate for ESCR, and these NGOs began to do so. In turn, Nelson suggests that concrete pathways for realizing ESCR increasingly involved combining international legal agreements, organizations, and processes with local political mobilizations spearheaded by domestic social movements. While transnational NGOs provided organizational allies and legitimating resources to domestic social movements—as when the international recognition of a human right to water stimulated rights-based NGO support for domestic water rights movements—domestic social movements pressured the World Bank and the WTO to begin incorporating rights considerations into their discourses and behavior. The Indian pathways of food rights realization charted in Hertel and Randolph’s chapter provide additional evidence for Nelson’s arguments. These pathways exemplify success attributable to litigation combined with political advocacy from above as well as from below. Combining Hertel and Randolph’s evidence with Nelson’s arguments and the thrust of interdisciplinary rights scholarship focused on the United States (Scheingold [1974] 2004; McCann 1994; Stryker 2007), suggests the following hypothesis. H14. ESCR and CPR litigation conducted as part of a broad and sustained political advocacy campaign that includes institutionalized politics involving elites as well as noninstitutionalized political pressures from below will lead to greater rights-based social transformation than will litigation alone or litigation combined only with noninstitutionalized pressures from below.

In the Indian food rights pathways described by Hertel and Randolph, popular social movements demanded access to food as a means of survival, while international NGOs pressured countries to meet their legal obligations under international law. Top-down and bottom-up pressures—and domestic and transnational policy advocacy—were complementary and mutually reinforcing in strengthening access to food. Overall food volume in India was sufficient, but food accessibility and utilization remained serious problems, in large part due to widespread corruption and inefficiency in food distribution. Variability in realizing the right to food across Indian states stemmed from variability in strategic interactions among local social movements, local, national, and international NGOs, and government employees, including the judiciary, elected officials, and employees of food policy agencies.

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To combat corruption and lack of transparency in food delivery systems, Indian social movements mobilized public interest litigation while also undertaking institutionalized political strategies and popular protest. Hertel and Randolph’s charting of Indian pathways to realizing food rights is consistent with hypothesis 2, in which new discourses and logics spread and thereby influence the incorporation of rights into international development practices. Hertel and Randolph also show how data gathering and monitoring may operate to expand opportunities for rights realization at every stage of legal mobilization, litigation, and enforcement, not just when court-ordered remedies are being implemented. At the point of remedy, the Indian Supreme Court recognized the importance of systematic data gathering and monitoring by appointing two commissioners to monitor compliance with court orders. The court also deputized NGOs active in food, water, and other rights, as well as academic institutions, think tanks, and international development organizations, to gather the relevant data for the court to assess the extent to which food rights were being fulfilled. In a context of sustained grass-roots political pressure promoted by the Right to Food Campaign, the court singled out poorly performing food programs to hold them accountable for improved food delivery. The 2001 court-ordered reform of India’s Mid-Day Meal Scheme provides one example of success. By 2004, this was the largest nutrition program in the world, covering 50 million children. Public interest litigation and advocacy groups likewise relied on data gathering and monitoring, as well as sophisticated publicity techniques, during the entire course of their strategic litigation campaign. The Human Rights Law Network (HRLN), a domestic NGO with 28 offices and 200 attorneys nationwide that spearheaded strategic litigation to secure food rights, also maintained a regularly updated website that documented progress or lack thereof. The HRLN publicized gross mismanagement of food programs, named and shamed specific responsible parties, provided detailed policy reform proposals, reported on ongoing public interest litigation, publicized network linkages among all food rights–related groups, and provided templates for public education and outreach. Starting in 2004, the Indian Right to Food Campaign combined “outsider” social-movement mobilization with “insider” direct negotiations with political parties and policy elites and a website that included detailed commentary and recommendations for proposed legislation, while also using litigation strategically to spotlight inefficiencies and force disclosure of information about service delivery. The confluence of data gathering, dissemination, and monitoring with broad and deep publicity efforts, including those designed to name and shame, suggests two additional hypotheses worthy of future investigation through MAPs-guided comparative research. H15. The more that ESCR and CPR litigation is targeted strategically, highly publicized, and combined with information gathering, dissemination, and monitoring, the greater the likely rights fulfillment through legal mechanisms.

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H16. The more that ESCR and CPR advocates mobilize the Internet and other new media to educate, publicize, and offer feasible policy and institutional solutions to rights deficits, the greater the rights fulfillment.

Consistent with Gloppen’s model, not only enhanced material provision but also political empowerment may come from sustained strategic litigation accompanied by political advocacy, information provision, and publicity. As Hertel and Randolph point out, when grass-roots social movements draw on specialized expertise for data gathering, indicator construction, and information dissemination, they help empower ordinary citizens, contributing to transforming power relations in progressive directions. Furthermore, when corruption is unmasked, named, and shamed, and when political pressure on corrupt local administrators of food (or other services) is ongoing, those in charge of food delivery (or other service provision) are more likely to view rights fulfillment as in their own administrative interests and to promote or agree to reforms that enhance institutional capacity for rights provision. Judicial Doctrine and Litigation Strategies. Chapters in this volume that focus on judicialization show that courts have substantial but not unlimited leeway to interpret international and national treaties, conventions, constitutions, and legislation in broad, creative ways, holding promise for significant progressive social transformation. However, as suggested in the chapters by Atapattu, Gauri and Brinks, Klug, and Gloppen, courts and judges are variably inclined and have variable opportunities to interpret the nature of rights, or of what will enable rights-realization pathways to expand ESCR. Pedriana and Stryker (2012) make the same point with respect to CPR. Across the South Asian countries of India, Pakistan, Bangladesh, Nepal, and Sri Lanka, Atapattu found that national courts were relatively—though variably— aggressive in mobilizing international environmental law to create favorable national legal environments for protecting the natural environment. Atapattu suggests that some international principles, when imported into national judicial doctrine, should enhance environmental protection more than others. The doctrinal principles that Atapattu argues are relatively favorable to environmental protection include sustainable development, the precautionary principle, and the polluter-pays principle. Atapattu’s argument suggests the following hypothesis for evaluation across a wider range of countries. H17. National law incorporating judicial doctrines of sustainable development, polluter-pays, and the precautionary principle is more likely to protect the natural environment from degradation than is national law that fails to incorporate these doctrines.

Future MAPs-guided comparative research should select cases for analysis strategically, to encompass pathways to environmental protection that involve

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different combinations of the presence and absence of these doctrinal principles. This will allow more extended and systematic empirical investigation and specification of the hypothesis suggested by Atapattu’s chapter. In addition, future research must extend analyses of judicial decision making to consider explicitly which concrete doctrinal pathways produce more versus less social transformation, measured by such outcomes as decreased environmental degradation, improved health, enhanced pertinent information flow, and enhanced community participation in business and government decision making affecting the natural environment. Klug’s analysis of water rights pathways in South Africa also highlights the importance of judicial interpretation. South Africa’s national government spearheaded legal reform in water provision to protect the emerging criteria of beneficial use and the public interest. However, where activists called for the inclusion of a “minimum core” standard that would give substantive meaning to the right to water, the Constitutional Court in the Mazibuko case rejected the minimum-core concept in view of concerns about capacity and resource limitations. The court’s use of the “reasonableness doctrine” shows an important way that courts limit substantive rights realization. Because the Mazibuko litigation was not accompanied by broader political protest, it also is consistent with our hypotheses predicting that rights pathways relying solely on courts will generally achieve less in terms of rights fulfillment and social transformation than will rights pathways combining law and politics. Atapattu’s observations pertain specifically to environmental protection and degradation. Variations on the judicial doctrine of “reasonableness,” in which the rights that are due are weighed against available financial resources and institutional capacities for goods or service production and delivery, can be applied to all economic and social rights. Future research should explore variations on the reasonableness doctrine, examining both the conditions under which this doctrine is more versus less likely to be invoked with respect to diverse types of rights, and also examining whether and the degree to which the reasonableness doctrine blunts social transformation. We offer the following hypotheses. H18. The formal legal and normative principle of “progressive realization” in ESCR increases judicial reliance on interpretive doctrines of reasonableness in ESCR relative to CPR. (CPR typically are not tied to the principle of progressive realization.) H19. Judicial doctrines of reasonableness are more likely to be invoked as institutional capacities and financial resources for rights implementation lessen. H20. Judicial doctrines of reasonableness for ESCR produce less social transformation than do judicial doctrines explicitly specifying minimum core standards.

Klug’s analysis of water rights pathways also suggests that we might consider another, more general hypothesis, this one emphasizing more versus less substantive judicial interpretations of the rights to be realized and the barriers to their

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realization. Pedriana and Stryker’s (2012) recent comparative analysis of U.S. federal voting rights, fair housing, and equal employment opportunity focuses on this “more versus less substantive” theme. The authors show that variability in transformative impact across these very different rights domains and also within them over time and between different lines of judicial precedent conformed to what they call a “group-centered effects” framework. As Pedriana and Stryker (2012) explicate, the ideal-typical group-centered effects approach to legal interpretation involves crafting explicitly results (substantive) and group-oriented standards for determining legal liability and for crafting and monitoring legal remedies. This in turn facilitates achievement of substantive justice for groups, rather than procedural justice for individuals. Because rights deficits are presumed to pertain to groups rather than to individuals, and also are presumed to reflect institutionalized patterns of marginalization and disadvantage rather than isolated acts of malice against particular individuals, group-based statistical disparities are key elements in proving rights violations; whether particular individuals intended to cause harm becomes irrelevant.3 Similarly, collective class actions are a key litigation strategy. To allow comparison across different domains of rights, the success of which would be measured by different kinds of social transformation, the transformative impact of any particular rights law is to be assessed relative to the specific rights it provides (see Pedriana and Stryker 2012 for details). We adapt Pedriana and Stryker’s group-centered effects framework to the global arena as hypothesis 21. We suggest that this hypothesis should be applicable to both CPR and ESCR. H21. The social transformative impact of law designed to benefit the disadvantaged will be greater to the extent that constitutional and legislative language, judicial interpretation, and law enforcement embody the group-centered effects approach.

None of the chapters on ESCR realization in this volume specifically investigate all aspects of Pedriana and Stryker’s group-centered effects framework. However, a number of chapters contain findings that are consistent with hypothesis 21. For example, although indigenous peoples’ claims to the Inter-American Court precipitated complex litigation often requiring years before rights could be vindicated by court decisions, Alvarado shows that indigenous-rights claims are made on behalf of the collective, rather than by an individual. Collective- and resultsoriented remedies such as restitution and proactive titling of land to the indigenous group led to substantial social transformation when these remedies were carried out fully. Of course ongoing court monitoring and repeated court intervention may be required to make good on remedial authority. This is so because, as emphasized by many of this volume’s chapters, resistance by powerful actors in civil society, as well as by national and local governments, creates major obstacles to rights realization. We discuss this further below.

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Highlighting the import of group, collective, and institutionalist rather than individualist orientations to rights also suggests a key way in which, despite the specificities of particular indigenous cultures or of the cultural rights of indigenous peoples more generally, researchers and practitioners focused on economic, social, civil, and/or political rights might learn from their colleagues working on cultural rights. Clearly, litigation strategies must operate with respect to—and within—extant argumentation frameworks for interpretation and enforcement of constitutional or statutory law. This does not, however, preclude promoting judicial innovation in a given argumentation framework by borrowing and adapting from judicial doctrine in other domains, particularly those that offer innovative, creative strategies for rights realization, such as those seen in the domain of indigenous rights. With respect to group-centered effects-based jurisprudence in the United States, Pedriana and Stryker point to numerous examples of cross-fertilization and diffusion from one rights arena to another. It is well known that the concept of indirect discrimination under European law borrowed from—and now in some cases extends beyond—the U.S. concept of disparate impact. We urge scholars and practitioners to consider whether—again, despite the specificities of cultural rights—doctrinal innovations with progressive impact might follow if we increased research network and communication density between those who work on cultural rights and those who work on economic, social, political, and civil rights. Such cross-fertilization is no more difficult or improbable than the translation of legal principles across domains of law, as Provine suggests (see below). Klug’s chapter, highlighting the import of judicial doctrine, as well as of the legislative language conferring rights, is also relevant to the group-centered effects framework. The South African constitution explicitly makes achieving rights to education, food, water, social security, emergency medical treatment, and access to health care in South Africa progressive and contingent on government capacities. Also, once the African National Congress came to power after the end of apartheid, passage of key legislation including the Employment Equity Act (EEA), the Skills Development Act, and the Preferential Procurement Policy Framework Act bridged between an original constitutional vision of collective action to overcome the legacies of apartheid and a more individualistic understanding of rights achievement. These moves probably limited transformative impact. At the same time, and consistent with hypothesis 21, the EEA was oriented toward producing results for non-white racial groups discriminated against in the past. Somewhat similarly to disparate-impact doctrine in U.S. equal employment opportunity jurisprudence, the EEA therefore provided for burden-shifting between plaintiff and defendant to make it easier than it would otherwise have been for rights claimants to prove that their rights had been violated. The EEA also provided for strong, results-based affirmative action to ensure equitable racial rep-

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resentation in all occupational categories. Yet, along with these moves toward a results-oriented approach to establishing liability and remedy, the EEA moved away from a purely group-oriented approach to focus on the individuals alleging discrimination. In short, in light of hypothesis 21, the EEA contained some elements likely to have expanded its reach, but also others that probably limited its effectiveness. Further empirical investigation is warranted to assess how variation in incorporation of a group-centered effects approach into South African rights jurisprudence has been associated with the extent of ESCR provision. Gauri and Brinks’s chapter also suggests that we continue to examine how variations in constitutional and statutory language and in judicial doctrine, as well as in plaintiff success rates in economic and social rights (ESR) lawsuits, shape rightspromoting social transformation. This is especially so when that chapter’s findings are examined together with additional findings on the distributive impact of ESR judicialization in the authors’ recent World Bank report (Brinks and Gauri 2012). Countries examined by the two authors include Nigeria, Brazil, India, South Africa, and Indonesia. As Gauri and Brinks’s chapter shows, education and health rights litigation in Nigeria was minimal and individualized; in Brazil, it was extensive, and ESR plaintiffs won over 90 percent of their cases. While the Brazilian Ministério Público brought some collective cases seeking to change government policy more generally, most Brazilian cases involved individual claims (however, see McAllister 2008 for a discussion of how public interest litigation may broaden the impact of rights in Brazil). Meanwhile, Indian courts created a category of legal claims in the general public interest, such that standing to sue did not require the party undertaking litigation to demonstrate that he, she, or they had been harmed personally. Consistent with the group-centered effects approach expressed in hypothesis 21, Gauri and Brinks suggest that the pro-poor impact of education and health litigation tends to increase when government and/or NGOs support collective legal mobilization on behalf of the poor. In addition, however, the Gauri and Brinks chapter converges with that of Felice in suggesting the efficacy of public-goods framings for ESR realization. Specifically, Gauri and Brinks stress that where the interests of the poor and the middle class overlap, as with responses to infectious diseases and industrial pollution that in effect create public goods, poor people tend to benefit. Quantitative analyses of distributive impact in the authors’ World Bank report (Brinks and Gauri 2012) shows the promise of more direct assessment of covariation between variable legal-institutional pathways and doctrine employed across the five countries and the variable transformative impact of ESR in Nigeria, Brazil, India, South Africa, and Indonesia. Where some education and health litigation disproportionately benefitted those who were already well-off, other such litigation disproportionately benefitted the poor. The authors assessed distributive impact by looking at the degree of over- or

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under-representation of the poor among litigation beneficiaries, relative to the share of the total population that was poor. Unsurprisingly, given its minimal and individualized litigation, the impact of ESR in Nigeria has been regressive—that is, anti-poor. Again consistent with the individualized nature of most Brazilian litigation, in Brazil, despite extensive ESR litigation and despite the high Brazilian plaintiff win rate, the impact of that litigation was distribution-neutral. In India, where legal rules of standing were permissive in allowing lawsuits to promote the general public interest—thus promoting a more collective or group-oriented approach to litigation—the distributive impact was progressive, that is pro-poor. Rounding out the five countries, in South Africa too, the overall impact of education and health litigation has been pro-poor, and in Indonesia, as in Brazil, the overall impact of ESR litigation has been distribution-neutral. Emphasizing especially remedies for adjudicated liability, but recognizing how remedial inclination and authority covary with judicial doctrine pertaining to standing and liability, Brinks and Gauri (2012) suggest that to the extent that countries or specific policy domains within countries generate judicial decisions with broader rather than narrower applicability, anti-poor bias can be avoided. Their argument is encapsulated in our hypothesis 22. H22. The distributive impact of litigation promoting economic and social rights will be more progressive to the extent that the effects of the litigation generalize to nonlitigants.

Hypothesis 22 is broadly consistent with hypothesis 21, while also identifying concrete pathways to generalized impact for legal contexts lacking U.S.-style class action lawsuits. In Nigeria, India, South Africa, Brazil, and Indonesia, these pathways included: 1) whether the decision was broadly binding beyond the parties to the litigation; 2) whether and how much precedential force the decision had; and 3) whether the decision provided a specific good or service or modified the more general regulatory context. Cases involving provision of goods or services to specific individuals typically did not have broad progressive effects. But even these could have such effects when they catalyzed policy or legal change that extended to all similarly situated individuals. Likewise, legal decisions about provision to particular individuals could have a progressive social impact when these decisions created goods—such as cleaner water or air—that were nonexcludable. Together, the various doctrinal and legal-institutional variables explored by Klug, Alvarado, Gauri and Brinks, Brinks and Gauri (2012), and Pedriana and Stryker (2012) suggest that future research on ESCR realization should systematically investigate the relatively simple and potentially highly generalizable doctrinal hypothesis advanced in hypothesis 21. Likewise, they suggest that further comparative pathway analyses of ESCR realization should be guided by hypotheses 17–20, and should aim to further specify the doctrinal and legal institutional factors shaping the depth, breadth, and type of social transformation.

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A final theme suggested by chapters investigating rights realization through law is the conversion of legal constraints into legal and/or political opportunities. One way this can be done is by creating or strengthening a given right through the mobilization of legal discourses from outside human rights law, or from outside the particular type of right being created or strengthened. This is precisely what we already have suggested might be explored by investigating whether doctrine pertaining to the collective rights of indigenous peoples offers possibilities that could be adapted to other rights domains. Provine’s chapter on providing repose for settled though undocumented immigrants to the United States establishes that—despite sentiments of injustice arising from the deportation of long-term U.S. residents, including children, who entered the country illegally—undocumented immigrants currently have no right to repose under U.S. constitutional law. Instead, constitutional interpretation gives the U.S. government the right to remove unauthorized settlers. At the same time, Provine shows that taken-for-granted legal principles such as closure and forgiveness, prominent in U.S. commercial law, bankruptcy law, business law, and criminal law, could be mobilized as potentially powerful symbolic resources by a political movement intent on challenging and changing U.S. deportation policy. In short, even if U.S. judges themselves refuse to mobilize such everyday legal principles as closure and forgiveness to forestall the deportations of undocumented immigrants, a political movement could use these alternative legal discourses to name and shame those responsible for, and in sympathy with, current U.S. immigration law and policy. Such a movement could use these alternative legal discourses to demand more humane and sensible immigration law from legislators, administrative personnel, and the judiciary alike. While Provine’s chapter remains in the realm of the conceptually based hypothetical, Atapattu’s chapter provides evidence of such a discursive transformation of constraint into opportunity in concrete pathways to ESCR. Atapattu shows that, even in the absence of a specific right to a healthy environment in international law, domestic states in South Asia found multiple concrete legal-interpretive pathways to balance economic development and growth with environmental protection. For example, Indian courts interpreted the right to life guaranteed by the Indian Constitution so as to judicially construct the right to have a clean environment and to be free from pollution. The courts then took this pathway further, constructing subsidiary rights to environmental information and education. The lines of precedent established by the Indian courts did not merely create avenues of compensation for environmental damage; they also supported proactive behavior by citizens and courts to prevent further environmental damage. Meanwhile, in Sri Lanka, judicial protection for the natural environment had to take a different, yet equally creative discursive route. The Sri Lankan constitution does not provide a right to life. Yet Sri Lankan courts converted this apparent constraint

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into an opportunity by using equality rights and international environmental law principles to promote transparency, consultation, and public participation in decisions. Courts then applied these rights to contracts for phosphate mining between a major private company and the Sri Lankan government, facilitating popular advocacy to limit environmental damage. In the future, rights advocates and scholars should remain sensitive to opportunities for the cross-fertilization of judicial discourses across different types of rights and from legal arenas outside of human rights. Of course, while rights advocates will seek to import across policy arenas those discourses that expand pathways of rights realization, those who resist the creation or strengthening of any particular right may likewise seek to import doctrinal constraints from one policy arena to another. Judicialization as an Institutionalized Selection Process. Previous discussion signaled that judicial mechanisms are sequenced according to procedural doctrine, including rules that specify what types of actors may or may not litigate, how and under what conditions, and what legal options are provided to respondents or targets in litigation to counter plaintiffs’ rights claims. Gloppen’s chapter lays out key elements of that logic. These include the multi-phase nature of litigation and the large number of specific factors that are likely to shape each phase by impinging on phase-specific actor motivations, constraints, and opportunities for action. Although judicialization typically proceeds as a one-way sequence, we nonetheless can expect reciprocal relations and feedbacks among its various phases. Also, litigation wins do not necessarily or automatically translate into substantial societal impact (see also Galanter 1974; McCann 1994; Stryker 2007). As Gloppen shows, law enforcement involves four broad phases: claims formation; adjudication; administrative and political response (implementation processes); and the impact and outcomes of implementation. Focal actors in claimsmaking are the potential litigants, including individuals, social movements, and public interest litigation organizations; judges typically are the focal actors for adjudication. Further response and implementation implicates a range of actors including politicians, administrators, civil society organizations of various kinds, and activists. In each phase, focal actors face an opportunity structure, including both positive resources and barriers. In interaction with actors’ motivations, including actors’ goals, values, norms, interests, and preferences, these opportunity structures shape focal actors’ strategies. The results of each phase of litigation serve as inputs into actor motivations and opportunity structures in the next phase. Meanwhile, anticipated responses in later phases play a prominent role in shaping actors’ strategies in earlier phases. Decisions about legal mobilization are typically made in consideration of likely judicial response. Judicial decisions are typically made in consideration of likely

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responses by the targets of litigation. Prior experiences of the focal actors in each phase likewise shape their expectations about the responses of other focal actors later in the interaction sequence. With respect to claims formation, Gloppen’s chapter converges with much other rights scholarship, including this volume’s introductory chapter, to suggest that we examine all factors affecting the threshold of entry to the legal system, all factors related to the support structure for litigation, and all factors relating to perceived judicial responsiveness and efficacy. It is well known that the likelihood of rights claims depends on factors shaping claimants’ awareness of rights violations, including information networks and flows, and rights consciousness. Doctrinal elements such as rules of standing, what is required to file a legal complaint, and whether class actions or other forms of collective legal mobilization and public interest litigation are permitted shape formal-legal entry thresholds to litigation. Support structures for litigation include public legal aid and public interest advocacy. While low thresholds for entry into the legal system facilitate litigation, they may not promote social transformation. As Gloppen makes clear, a low formallegal threshold can encourage “easy” cases, which are often individual cases that may have limited effect. A higher threshold can encourage the kinds of collective efforts—often accompanied by extensive research, substantial legal and social science expertise, and out-of-court political mobilization—that are likely to lead to greater social transformation (see Haglund and Stryker in this volume; Stryker 2007; Haglund, forthcoming). Further hypotheses pertaining to ESCR litigation processes are possible, once we consider the diversity of concrete legal pathways in relation to Galanter’s (1974) seminal analytic distinction between one-shot and repeat players in litigation, and the implications of this distinction for litigation processes and outcomes. The ideal-typical one-shot player in rights litigation enters into litigation one time only to try to vindicate or forestall rights realization. Meanwhile, repeat players in rights litigation are those who repeatedly litigate within the same general rights arena. Galanter’s fundamental insight was that one-shot players will care most about the outcome of their particular case, so they will tend to prioritize immediate relief for their adverse individual situations. Repeat players will care less about the outcome of any specific legal case than they do about establishing judicial precedent favorable to their long-term strategic interests. Galanter refers to the latter as “playing for the rules.” He also notes that repeat players—in rights litigation, typically corporate elites and government actors—are often economically advantaged, so that they have not just the motivation but also the financial and legal resources to play for the rules. They can pick and choose strategically among cases they settle—and will sometimes choose to absorb a substantial short-term loss—to pursue

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to the end those legal cases that they anticipate will produce favorable judicial precedent. Meanwhile, individual civil and social rights plaintiffs, in addition to being one-shot players, are likely to be resource poor. Over time, substantial cumulative evidence has been generated bearing on Galanter’s perspective on why “the haves” (as he calls them) typically come out ahead in litigation (see e.g. Stryker 2007). This evidence, together with research in ESCR, including the chapters in this volume, suggests the following hypotheses. H23. The more the public interest litigators and litigation, and the better these are financed, the greater will be the number and scope of rights cases filed in the formallegal system. H24. The more the public interest litigation of rights cases, the greater the likelihood that rights litigation is undertaken strategically to promote favorable judicial precedent. H25. As available legal and financial resources for rights litigation increase, the likelihood of plaintiff wins in rights litigation increases.

While immediate relief for individual rights violations may come through settlement and without generalization beyond the parties to the litigation, cases that produce judicial precedent favorable to rights have the possibility—though not the certainty—of more generalized impact to similarly situated nonlitigants. This buttresses further the logic of hypothesis 22, that the distributive impact of litigation will be more progressive to the extent that it generates benefits for nonlitigants. Relative resource availability may differ not just between one-shot and repeat players but also among litigants with different economic class positions. Gauri and Brinks find substantial evidence confirming that the rich and the middle class are substantially advantaged in access to legal resources. Consistent with this relative resource availability, the authors find more legal cases in urban than in rural areas, more legal cases per capita in rich Indian states than in poor Indian states, and more legal cases pertaining to university than basic education. They also find more cases in health (where middle-class persons are relatively likely to use public health facilities) than in primary and secondary education (where middle-class persons tend to use private schools rather than public schools). H26. Across ESCR, litigation will be greater in support of those rights that are of most concern to and sought by civil society actors who are economically advantaged, except in cases where public interest litigation and/or government prosecutions undertaken on behalf of the economically disadvantaged are prevalent.

Assessing judges’ opportunity structures for decision making, Gloppen highlights factors emphasized by many other researchers, including judicial independence; judges’ own backgrounds, career ambitions, and resources; professional norms of appropriateness; judicial expectations that litigation respondents will comply with court orders; and judicial expectations about more general public

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support for their rulings. Two additional factors, strength of the litigants’ voice and law and interpretive theory, are especially worth emphasizing because they add plausibility to our prior hypotheses emphasizing the combinatorial or interactive power of law and politics and the relative transformative power of different types of legal doctrine. Gloppen’s arguments pertaining to strength of the litigants’ voice also support additional variations on the law-and-politics theme, as expressed by the following hypotheses. H27. The more political advocacy and mobilization outside of court on behalf of rights realization, the greater the likelihood that rights claimants will win their cases. H28. The more political advocacy and mobilization outside of court on behalf of rights realization, the greater the likelihood that plaintiff wins in rights litigation will produce social transformation. H29. The more political advocacy and mobilization outside of court on behalf of rights realization, the greater the social transformation produced by rights litigation.

We also can combine Gloppen’s discussion of law and interpretive theory with Pedriana and Stryker’s (2004) research on CPR in the United States. Pedriana and Stryker show that social-movement pressure from below may help courts overcome apparent constraints inherent in unfavorable prior precedent, to move courts toward group- and effects-oriented theories of liability and remedy. Gloppen, like Pedriana and Stryker, emphasizes that prior judicial precedent and previously legitimated strategies of legal interpretation often place substantial barriers on rights vindication and social transformation alike. We suggest the following hypothesis. H30. Courts are more likely to produce judicial precedent favoring substantive rights fulfillment when aggressive pro-rights political advocacy and mobilization are taking place outside of court than when such advocacy and mobilization are not taking place outside of court.

Moving to the implementation of court orders, Gloppen tackles questions of compliance that have been a cottage industry among sociologists of law researching law and organizations in the United States (Stryker 2007; Dobbin 2009). As theorized by Gloppen, compliance depends on interactions among: 1) motivations and opportunity structures for would-be compliers, whether they are state political or administrative bodies or diverse civil society organizations, including large business corporations that may resist court orders; and 2) motivation and opportunity structures for human rights supporters to promote implementation of court orders. Among more specific factors shaping these motivations and opportunity structures are all those that influence would-be compliance: institutional capacity

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for compliance, popular opinion with respect to the rights issues involved, rights organizations’ own capacities for monitoring and mobilization, and the degree to which there exists a more general culture of legality. These observations lead to a set of hypotheses which may seem fairly obvious yet nonetheless must be stated explicitly and tested empirically. H31. The more the resistance of targets of CPR and ESCR litigation, the less the rights fulfillment. H32. The more the resistance of targets of litigation, the less the socially transformative impact of rights litigation. H33. As popular support for resistance by targets of litigation increases (as indicated by, for example, measures of public opinion), resistance to compliance with court orders promoting rights fulfillment increases. H34. The more a general culture of legality is lacking, the greater the resistance to compliance with court orders by targets of rights litigation. H35. The less targets of rights litigation have the institutional capacity and financial resources required for compliance, the less the compliance and the less the rights fulfillment.

Gauri and Brinks’s chapter likewise emphasizes that resistance to court orders by government or wealthy and powerful civil society actors, including business corporations, will delay, undercut, or circumvent court enforcement. Further supporting hypotheses 31 and 32, Gauri and Brinks’s findings suggest that, where resistance to compliance occurs, it is a powerful barrier to rights fulfillment and ESCR-promoted social transformation. Somewhat ironically, resistance to compliance can be expected to increase as policy makers and courts move toward a more group-centered effects-based approach to both CPR and ESCR. Pedriana and Stryker (2012) provide multiple examples of this phenomenon pertaining to concrete pathways of CPR realization in the United States. This is precisely because litigation targets know that, if brought to fruition, group-centered effects-based approaches do lead to transformative social impact. Thus, notwithstanding the necessary ceteris paribus clause accompanying hypothesis 21, all else typically will not be equal. Judicial embrace of the group-centered effects framework may well inspire greater resistance than would a doctrine seeking merely to increase individuals’ formal access to rights. In short, the resolution of rights claims involves a delicate balancing act, in which court decisions are guided not just by judicial philosophy or demonstrated relative efficacy but also by anticipated resistance. Given that resistance to rights provision by government and economic elites does tend to derail the impact of rights realization, we suggest the following hypothesis.

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H36. Although group- and results-based judicial doctrines are necessary for CPR and ESCR realization through law to promote substantial social transformation, such judicial doctrines are not sufficient.

Indeed, courts in the countries studied by Gauri and Brinks often limited judicial rights construction and enforcement in anticipation of resistance by the targets of litigation. For example, save for a few court decisions in India, courts did not require national or local governments to implement a completely new program in an area where none existed. Courts that aggressively pursued rights enforcement often rationalized their decisions in part by noting that, at least on paper, the governments had already committed themselves to the court-ordered policy. Still, courts did sometimes rule in favor of plaintiffs even when the economic costs of rights implementation to governments or private parties were substantial. In São Paolo State, for example, 5–10 percent of the state health budget was related to judicially awarded medications. Research and Advocacy Networks and Communication Flows. As the rights-realization pathways elucidated by Hertel and Randolph make clear, judicial capacity to engage in the data gathering and monitoring necessary to evaluate compliance with court judgments is enhanced when judges can deputize relevant expertise networks. Similarly, with respect to the social accountability mechanisms elucidated by Sano, accountability of social and economic service providers to citizens/ clients required both direct lines of communication and instruments for monitoring service providers’ performance. When the World Bank reviewed various accountability mechanisms used in its own projects and more broadly in the development field, it found that while some indicators of the most popular accountability strategies existed—including indicators of information disclosure, transparency, and popular participation in development—these could usefully be improved. Participatory strategies included participatory planning and budgeting presumed to reflect participants’ service priorities and preferences, but such participatory projects often failed to include systematically gathered data on transparency, efficiency, or effectiveness. Other participatory strategies revolved solely around data gathering and monitoring. These took place using instruments such as citizen report cards, community score cards, and social audits, but were not invariably pared with participatory decision making. Clearly, high-quality data and measures are required if violators of ESCR are to be held accountable through any mechanism. This is so whether the mechanism in question involves litigation and court enforcement, social accountability, institutionalized political advocacy, non-institutionalized social movements, naming and shaming, or social dialogue. Likewise required are institutionalized communication networks that link research experts responsible for data gathering, indicator construction, and analyses to those responsible for monitoring rights fulfill-

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ment. This is so whether the monitors are judges or special masters, administrative officials, or grass-roots community groups and social-movement organizations. This discussion further supports hypothesis 9, while also generalizing its logic across mechanisms beyond litigation. Similarly, the following hypotheses also are supported by recent research on CPR in the United States (Stryker, Docka-Filipek, and Wald 2012). H37. Pathways of rights realization including mechanisms focused around social dialogue, social accountability, naming and shaming, institutionalized and non-institutionalized politics, and court enforcement lead to greater increases in rights fulfillment when they also involve monitoring that includes information gathering, indicator construction, analyses, and dissemination of information on transformative impact. H38. Monitoring ESCR and CPR realization results in greater rights fulfillment and greater social transformation when institutionalized networks of communication and information flow exist among experts who research rights provision, rights advocates, and courts than where there are no such institutionalized networks of communication.

In short, we must have high-quality data and measures to assess rights fulfillment, and these data and measures must flow through networks linking researchers to rights advocates and rights providers alike. High-quality data and measures also can be used in litigation, to show judges that improvements are feasible consistent with available resource capacities. Such evidence could help combat the tendency for judges to defer to states and civil society actors who are rights providers when the providers argue that they lack the resources to improve their rights performance. We also need more MAPs-guided comparative pathway research that systematically relates meaningful variation in rights fulfillment and social transformation to the variety of ESCR pathways that are being pursued. Without the former, rights advocates cannot make a persuasive case. Without the latter, advocates and others working to improve ESCR fulfillment and redistributive social transformation will have to devise their strategies without knowledge of which specific strategies in which specific contexts are more or less likely to be successful. Without both, rights providers may overlook pathways of provision that are feasible, and courts adjudicating rights claims may overlook less costly but equally or more effective remedies that are likely to inspire less resistance. The chapter by Fukuda-Parr, Lawson-Remer, and Randolph shows that the Social and Economic Rights Fulfillment (SERF) Index can help us expand what we know about social transformation and how diverse ESCR pathways may lead to social transformation. Measures of human integrity rights fulfillment, for example the Cingranelli-Richards Human Rights Dataset and Gibney’s Political Terror Scale, that allow for systematic cross-country comparisons of CPR fulfillment have been available for some time (see www.gaportal.org/global-indicators/cingranelli-

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richards-ciri-human-rights-database and www.politicalterrorscale.org). But analogous measures of ESCR fulfillment, allowing us to evaluate quantitatively what accounts for variation in rights performance across diverse contexts, have lagged. This is not because of lesser urgency. Pogge (2005) calculated that in the eleven years prior to his writing, the “denial of food, health care and other basic violations of economic and social rights . . . outstrip[ped] the number of deaths in the entire twentieth century attributable to all wars (including civil wars and genocides) and other forms of government repression” (Fukuda-Parr, Lawson-Remer, and Randolph, this volume). The SERF Index culminated efforts to extend ESCR measurement and monitoring capacity from a focus on duties to respect and protect to include also the duty to fulfill. Similarly, the SERF Index allows evaluating obligations of result. In 1993, the World Conference on Human Rights promoted an initial workshop for measurement issues related to states’ compliance with the International Covenant on Economic, Social and Cultural Rights. A large number of other initiatives followed, some organized by various UN programs, some by the World Health Organization, and some by NGOs or university consortiums concerned about various economic and social rights. A sustained initiative undertaken by the Office of the High Commissioner for Human Rights of the UN produced a 2008 report, Using Indicators to Promote and Monitor the Implementation of Human Rights. This report outlined a systematic framework for measuring rights-related structures, processes and outcomes, and offered illustrative achievement indicators for rights to education, health, housing, food, social security, and work. Because the standard of progressive realization under international law requires assessing enjoyment of rights relative to feasible resource allocation for rights achievement, two measurement innovations, one by Cingranelli and Richards (2007), the other by Kimenyi (2007), evaluated countries’ performance on health and education by using the residuals from regressing two well-known indices— the Human Development Index and Physical Quality of Life Index—on the logarithm of per capita GDP. The SERF Index substantially improves on these measures in multiple ways. As Fukuda-Parr, Lawson-Remer, and Randolph document, the SERF Index takes account of country residents’ enjoyment of social rights relative to the variable levels of duty that countries have to fulfill these rights. Duties in turn are defined with respect to “achievement possibility frontiers” that reflect feasibility, assuming that countries use the maximal available resources to achieve economic and social rights, and assuming that they use their resources effectively. The index also includes indicators beyond the domains of education and health. Its key innovation lies in constructing achievement possibility frontiers for each right. This was done by plotting observed values of the indicators chosen against per capita GDP for each country over time. The SERF Index measures diverse economic and social

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rights separately and also provides an aggregated measure of rights realization. The SERF Index resulted from a multiyear collaborative process, with smaller refinements still being made. All indicators must meet the criteria of public accessibility, reliability, and comparability across time and countries. They must also be based on objective data and a transparent method for generating the data. Beyond this, indicator selection has balanced country coverage, measurement frequency, and cross-country discrimination in performance, while maintaining conceptual validity. Given that average levels of rights achievement tend to underweight the life situations of those who are poorest or most marginalized, the SERF Index uses the percentage of the population enjoying rights rather than the average level of rights achievement. Scores and rankings for every country are updated annually and available at www.serfindex.org. Currently the SERF Index includes no indicators for social security rights achievement, either in its “core” index, covering all but high-income OECD countries, or in the supplementary index for the high-income OECD countries. Housing is covered by the core index but not by the supplementary index. The current core index measures fulfillment of food rights by the percentage of children under five not stunted; education rights by primary school completion rates and combined school enrollment rates; health rights by contraceptive-use rate and survival rates for children under five and at age sixty-five; housing rights by the percentages of the rural population with access to an improved water source and to improved sanitation; and the right to work by the percentage of the population that has income greater than a set threshold. Meanwhile, the high-income OECD country SERF Index measures fulfillment of food rights by the percentage of babies not of low birth rate; education rights by combined school enrollment rate and average math and science PISA scores; health rights by survival rates for children under five and for those sixty-five and older; and work rights by the percentage of the population with income less than 50 percent of the median income, and the percentage of the unemployed who are not long-term unemployed. For future research and advocacy, we need improved data gathering to increase the number and diversity of standardized indicators available for both the core and the high-income OECD country SERF indices. Those working on improving the SERF index might consider whether long-term projects such as the Social Security Indicator Project (Korpi 1989) that have worked to standardize social security provision indicators among rich OECD countries could contribute useful indicators for the SERF Index. The SERF Index has been nothing less than revolutionary in expanding our capacity for systematic cross-country and cross-time comparisons. It allows comparing what has been achieved with respect to key economic and social rights, evaluating how much of this achievement is associated with which mechanisms,

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and identifying those concrete pathways of rights realization that have led to more versus less progress. That the Index enables us to assess progress in relatively large numbers of cases with different political-economic, legal, and cultural contexts testifies to its successful project of standardization. Standardization of indicators is an essential element for large-N quantitative comparative analyses. Future research should build on the SERF Index to increase the number and quality of standardized indicators of economic and social rights. Because the SERF Index is notably silent on measuring the achievement of cultural rights, including the right to cultural self-determination and autonomy, we also need to consider whether and how similar indicators could be created to comparatively evaluate the realization of cultural rights by indigenous peoples in different regions and countries of the world. At the same time, standardization and the large-N quantitative analyses it enables may well obscure rights phenomena of great importance. For this reason, we suggest that comparative studies using the SERF Index be complemented by casespecific qualitative and quantitative examinations of rights outcomes. We also need to complement international and national-scale data gathering with local projects that enhance community empowerment, participatory governance, and the inclusion of the poor and marginalized at the same time as they provide local scale and value-relevant knowledge. A key part of collecting data—and of indicator construction—should involve attending to what is most meaningful to local actors and how such variable meaning attribution will shape how local actors gathering the relevant data will interpret and execute their data-collection tasks. Future case-specific studies should be sensitive to: 1) spatial patterns of rights fulfillment within countries; 2) those aspects of rights processes and outcomes that local populations find most urgent or important; and 3) how possibilities for rights fulfillment in one domain are conditioned on achievements in other domains. Here, the Aggarwal and Haglund chapter nicely complements the chapter by Fukuda-Parr, Lawson-Remer, and Randolph by showing applications of GIS technology at multiple spatial levels to map water and sanitation provision. GIS is ideal for map-making that can identify cross-space variability in rights realization at diverse, more localized levels, including district, ward, and neighborhood. This allows social and economic service providers, as well as courts, rights advocates, and development NGOs that are monitoring and evaluating rights fulfillment, to pinpoint uneven fulfillment, including pockets of extreme deprivation, amidst conditions that more aggregated indicators show to be improving. Such information can help policy makers, service providers, and rights advocates diagnose problems of cost and capacity, so that resources and efforts can be targeted most efficiently and effectively to where they are most needed. Perhaps most exciting, Aggarwal and Haglund’s chapter demonstrates how GIS can be used to engage local communities in data collection and mapping at spatial

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levels more meaningful to residents than the levels to which census data collection corresponds. Also, participatory GIS can be used to involve communities otherwise marginalized by illiteracy. This leads to our two final hypotheses: H39. When concrete pathways of ESCR realization involve researchers and community members working together in participatory data collection, mapping, and interpretive efforts, subjective satisfaction with rights-realization processes and outcomes will be greater on average within the community. H40: When concrete pathways of ESCR realization involve researchers and community members working together in participatory data collection, mapping, and interpretive efforts, subjective satisfaction with rights-realization processes and outcomes will be more extensive within the community.

While the promise of GIS and especially of participatory mapping using GIS technologies is clear, we need many more localized experiments, and especially those that contain systematic analyses of impact. Already, Native American tribes in the United States are using GIS for natural resources monitoring and management, transportation planning, cultural and historical preservation, development planning, and the promotion of health and education (Taylor et al. 2012). A coordinated set of GIS field experiments accompanied by impact analyses of social transformation could elucidate pathways of rights provision that enhance community knowledge and empowerment, while perhaps also creating more participatory governance structures that help resolve tensions among community residents, service providers, and government officials. C O N C LU D I N G T HO U G H T S

Our goal in this volume has been to further elucidate and apply the MAPs framework and to show how it facilitates systematic cross-pathway analyses of rights realization and social transformation. In this concluding chapter, we have sought to justify the value added by the MAPs framework, using it to guide cross-pathway analyses that in turn empirically ground a logically interrelated set of research hypotheses—an incipient theory—to organize further comparative pathway research. Explicit statement and justification of these research hypotheses provides the necessary backdrop for maximally strategic selection of future case studies and comparisons among cases to cumulate research knowledge more quickly and effectively (Stryker 1996). In turn, transmitting that knowledge to rights advocates, and conversely enabling rights advocates to transmit their knowledge to researchers through institutionalized communication networks, is likely to make rights advocacy more effective. This should be so no matter whether transnational, national, or local actors are advocating and no matter which rights-realization mechanisms they employ.

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In addition—and notwithstanding that most of this volume focuses on global ESCR—we hope this volume’s introductory and concluding chapters, as well as the discussion of CPR’s relevance undertaken by authors of multiple empirical chapters, demonstrate at least partial success in achieving a key goal of our original conference proposal to the National Science Foundation. In that proposal, we noted that much human rights scholarship has been confined to segmented niches. Even when these niches are multidisciplinary, they have continued to partition ESCR research from CPR research, research on the United States from research on global human rights, and research on ESCR provision in the rich OECD countries from ESCR provision in the developing world. We have sought to overcome these research silos by generating hypotheses for future studies that are theoretically and empirically grounded in comparative pathway analyses including both CPR and ESCR, and also including the United States and the rest of the world. We hope this will plant seeds for additional cross-fertilization between CPR and ESCR researchers across diverse geographic regions of the world. We hope also that U.S.-based scholars and practitioners who have been disheartened by recent Supreme Court decisions tending to undermine effective civil rights enforcement in the United States might find some of their energy restored by examining the progressive developments occurring in at least some other contexts. However, nothing we may have achieved in the collective scholarship of this volume should be taken to underplay the daunting challenges that confront ESCR advocates. Nor should it be taken to underplay the substantial constraints and barriers these advocates face, no matter what mechanisms they employ in concrete pathways, and no matter whether the “analytic moment” at stake involves moving from belief to action, from action to transformation, or from transformation back to beliefs and action. All such changes are situated in, and shaped by, a global political economy that militates against challenges to the status quo of inequality and deprivation. This volume has documented substantial failures as well as successes. Indeed, even the relatively successful pathways involved far less than complete rights fulfillment. The sheer scale of the remaining hunger in India’s poorest regions, and the enormous gap between administrative will and capacities currently available and those needed for core minimum rights to food to be realized for all Indians, exemplify how far we still have to go. So too does the 2010 Human Rights Network report on housing in the United States with which we began this volume. With the modest effort represented by this volume, we hope to have illuminated, if only dimly, multiple paths to more just and inclusive societies.

NOTES 1. Abouharb et al.’s analysis innovates, in that it is the first to show contrasting results for economic and social rights realization from the international development/lending regime

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(negative) and the international human rights regime (positive). We encourage others to build on this work to replicate and extend the analysis. 2. Human rights practitioners have focused more on discrimination and explicit insistence that participation include the poor or otherwise vulnerable or marginalized groups. Except for gender, development work has failed to sufficiently consider categorical distinctions among citizens. 3. In this regard, it is noteworthy that the French government has been legally prohibited from collecting statistical data on race, making assessment of the extent of racial discrimination difficult and precluding the mobilization of statistically based legal proof of such discrimination. Unsurprisingly, French antidiscrimination litigation in areas in which the collection of statistical data is commonplace, for example with respect to gender or union membership, has been more collectively and institutionally oriented than has litigation with respect to racial discrimination (see Chappe 2013).

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Index

Accountability: general, 13, 19–20; mechanisms of, 13, 16, 19–20, 50, 66, 79, 82, 184, 186, 319, 326, 345; and transparency, 283, 325 Achievement possibilities frontiers (APFs), 241, 247–9, 253, 347 Action Aid, 150, 164, 187, 323 Adjusted performance indicator score (A), 249–51 Affirmative action, 13, 200, 202, 206–7, 336 African Commission on Human and Peoples’ Rights, 72, 92 African National Congress (ANC, South Africa), 199, 201, 203, 205, 210–11, 329, 336 AIDS. See HIV-AIDS AIDS Law Center, 211 Amnesty, 130, 137–8, 140 Amnesty International (AI), 1–2, 11, 150, 154, 156–9, 161–2, 164, 323 Analytic moments, 3, 4, 50, 99, 142, 287, 291–2, 297, 303, 351 Anaya, James, 71, 74, 81 Antidiscrimination, 11, 202, 328, 352 Antiretroviral treatment/drug, 89, 100, 155, 160, 207, 209–13, 329. See also Nevirapine Apartheid, 19, 38, 106, 123, 199–202, 204–6, 336; anti-apartheid resistance, 19, 206, 210, 213–4, 329–30; post-apartheid era, 19, 94 199–201, 210, 213–4, 297 ARVIN framework (association, resources, voice, information, negotiation), 227, 228table, 325

Asia: absence of regional human rights system, 82–83 Asmal, Kader, 213 Awas Tingni vs. Nicaragua: decision, 16, 70, 71, 327; implementation, 76; domestic influence, 77, 80–81 Beneficial use criteria: South Africa, 207, 334 Bill of Rights: Pakistan, 113; Philippines, 37, 109; South Africa, 200 Black Economic Empowerment (BEE, South Africa), 202–3; BEE Advisory Council, 203 Brazil: ES rights litigation, 96–98; Ministério Público in, 97, 337 Brazilian Institute of Geography and Statistics (IBGE), 268 Bread for the World, 243 Broad-Based Black Empowerment Act (South Africa), 203 Camdessus, Michael, 31 Campaign for Access to Essential Medicines, 159, 330 CARE, 150, 153, 158–9, 162, 323 Census data, 267, 283, 350; acquisition, 268–9; Sao Paulo (MRSP), 267, 269, 282; Delhi, 267, 269, 276–7 Center for Economic and Social Rights (United States), 106, 159, 160table, 323

355

356

index

Center for Metropolitan Studies (CEM-CEBRAP, Brazil), 269 Centre on Housing Rights and Evictions (COHRE, Switzerland), 156, 159, 160table, 161, 217, 243 Chile: constitutional reform process, 74 Cingranelli and Richards Index (CRI), 244–5, 346–347 Civil and political rights (CPR), 3, 6, 9, 13, 15, 17, 20, 94, 109, 150, 321–9; comparison between CPR and ES, 88–89, 122, 193, 200–201, 241; and the environment, 106–7; for indigenous peoples, 70; and NGOs, 152–4, 156, 158; litigation of, 296–9; realization, 331–5, 343–6, 351; and social accountability, 227fig., 233; and the World Bank, 219–20 Civil War, 41table, 248, 347; U.S., 132 Class action suits, 11, 13, 335, 338, 341 Clean hands legal principle, 141 Closure, 131–2, 137–9, 141, 339 Cold War, 162, 199–201 Collective class action, 11, 13, 335, 338, 341 Collective rights, 17, 70–72, 79, 327, 335–6, 339 Colombia, 72, 74, 89, 155, 165, 179–81table, 300 Commission for Conciliation, Mediation, and Arbitration (South Africa), 202 Commission on Employment Equity (South Africa), 202 Common Resources, 49–52, 60–61; managing 62–64 Community engagement, 276, 349–50; in data collection, 282, 285; in monitoring, 190, 221, 223, 282, 284 Competition Commission (South Africa), 211–212 Congress of South African Trade Unions (COSATU), 210 Constitutional Assembly (South Africa), 94, 201, 206, 217 Constitutional Court: of Colombia, 72, 310; of Indonesia, 94; of South Africa, 89, 201, 208–12, 329, 334 Consultation and consent: indigenous peoples’ right to, 78, 81, 327 Convention on Biological Diversity, 60–61 Costa Rica: El Diquis hydroelectric project, 81 Delhi: census data in, 267, 269, 276–7; coreperiphery distribution patterns of, 271, 273, 279, 281; National capital territory (NCT) of, 267; SERF food index of, 182table; popula-

tion of, 270; slums of, 276–7, 278map; water access in, 270–1, 272map, 273–4, 275map, 278map, 280map; wards in, 269, 271, 273–4, 277–9, 281, 288 Demand: for rights litigation, 98–99, 101n2 Demand-led/side governance, 219, 220, 222, 233, 325 Department for International Development (DFID, United Kingdom), 154, 219, 230, 233 Department of Cooperative Government and Traditional Affairs (South Africa), 204 Deportation, 18, 127–42; U.S. policy, 129–32 Deprivation, 276–7; “hot spots” of, 21, 266, 268, 281, 287 Development NGOs, 9, 149, 150–2, 154, 158, 162–3, 252, 331, 349; INGOs 149 Directive principles: Bangladesh, 112; India, 183; Nepal, 114; Nigeria, 91; Pakistan, 113; South Asia, 108 Disaggregation by socio-economic categories, 267; water access and, 266, 271, 274–80; sanitation access and, 274–80; and human rights monitoring 266–7, 287 Dreze, Jean, 186, 188, 192, 194 Economic, social and cultural rights (ESCR) (ESC rights), 2–3, 6, 15–17, 70; environmental, 106–7, 121–3; and immigration, 128; NGOs, 149–50, 159, 160table, 163, 252; litigation, 296, 328–9, 331–2, 341–2, 344; MAPs of, 9, 11, 22, 321, 339, 346; realization/fulfillment of, 17–20, 22, 239–43, 252, 268, 287, 323–7, 329, 331, 333–5, 338, 345–7, 350; and South Africa 337 Economic and social rights (ESR) (ES rights), 7–9, 14, 18, 87; assessment of, 240–5; and Brazil, 97; and deportation, 129; human right to, 49, 51, 53, 65–66, 153; indicator index, 249, 348–9; and Indonesia, 93; legalization of, 98–99, 101; litigation, 337–8; NGOs, 156–7, 162, 347; and Nigeria, 92; and program-lending, 37–40, 43, 324; realization/fulfillment of, 14, 30–33, 44, 65–66, 89, 184, 246–7, 252–3, 265–7, 273, 283–4, 322–3, 337; reasonableness, 334; respect for, 29; and South Africa, 94–95, 200, 209, 325 Economic and Social Rights Empowerment Initiative, 179–81table Ecuador, 179–81table; constitutional reform process in, 74; indigenous justice in, 81 Employment Equity Act (EEA, South Africa), 202, 336–7

index Empowerment, 231, 267, 322: framework, 20, 221, 324 Endorois vs. Kenya (African Commission on Human and Peoples’ Rights decision), 72 Environmental factors: organizational change, 161 Environmental impact: assessment, 118–9; statement, 38 European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms), 137 European Court of Human Rights, 137, 142 European Court of Justice, 327 Fair Housing Act of 1968 (United States), 330 FIAN International, 156, 159, 160table Fong Yue Ting v. U.S., 129, 131, 133, 137–8, 141 Food and Agriculture Organization (FAO), 61, 175–8 Food: access to, 165, 171–174, 175table, 177fig., 183–4, 186–7, 191, 193; availability of, 173–4, 175table, 176–7, 183, 192; enhancing utilization of, 172, 175table, 179; improving access to, 175, 178; increasing availability of, 172, 175; insecurity, 174, 176, 178table; utilization, 165, 173–4, 183, 186, 191, 193, 331; security, 15, 19, 60, 172–4, 176, 184–5, 188 Forgiveness principle, 129, 132, 138–40, 339 Fourteenth Amendment (United States), 132 Free basic water (South Africa), 207, 209, 213 Fugitive Slave Act (United States), 132 Fundação SOS Mata Atlântica (Brazil), 284 Geographic Information Systems (GIS), 20–21, 253, 267–70, 276, 282–7, 349–50; See also Spatial analysis Geospatial Web 2.0 platforms, 269 Global: commons, 62–64; governance, 56, 64 Global Initiative for Economic, Social and Cultural Rights (United States), 159, 160table Global public goods, 16, 49–62, 65–66, 323. See also public goods Grootboom (Government of the Respublic of South African and others v. Grootboom and others), 95, 208 Group-centered effects/framework, 9, 12–13, 335–7, 344 Growth, Employment, and Redistribution (GEAR, South Africa), 202 Hard law, 16, 59, 121, 172 Hardin, Garrett, 62–63

357

Heinrich Böll foundation, 243 HIV-AIDS, 55, 57, 89, 94, 96, 99, 154–8, 160, 162, 164–5, 199, 207, 209–14, 329–30 Human Development Index (HDI), 244, 347 Human Development Report, 162 Human rights: approach 151, 154, 158–60, 219–20, 224–6, 232; approach to development 149–50, 154, 164, 265; basic core/minimums, 122, 173, 208–9, 323; regime 34, 40, 42, 106. See also international human rights regime Human Rights Law Network (HRLN), 187–8, 332 Human Rights Watch, 150, 154, 156–8, 164 Immigration Act of 1924 (United States), 132 Immigration and Customs Enforcement (ICE, United States), 133 Immigration and Nationality Act (United States): of 1965, 132; of 1996, 140 Immigration Reform and Control Act (United States), 130, 141 India, 19, 36, 83, 300, 333, 342; census in, 269, 276; constitution on, 112–3, 339; right to food in, 171–2, 179–181table, 182table, 183–6, 189, 191–3, 197table, 252, 331, 351; ES rights in, 90–96, 99–100, 113, 116, 165, 337–8, 345; right to water in, 155–6, 278 Indian National Congress, 188 Indian Supreme Court, See Supreme Court of India Indigenous Peoples’ rights, 16–17, 69–70; advances in, 79–81; claims to, 15, 71, 76, 335; collective aspect of, 330, 335, 339; and the inter-American human rights system, 71–73; land rights in international law, 71–72, 76, 122, 155, 327–8; obstacles to, 75–9, 82; special rapporteur on, 73–75, 327 Indonesia, 99, 163, 179–81table, 337–8; ES rights litigation in, 93–94 Indonesian Human Rights Commission, 37 Inter-American Court of Human Rights, 16–17; cases and decision, 70, 76, 326–8; oversight mechanisms of, 71–2 Inter-American Commission on Human Rights: description of, 70–71; cases and petitions, 72–73, 77, 106; country and thematic reports, 72–73; hearings, 73, 77 Intergovernmental organizations (IGOs), 30, 37, 40, 75, 150 International development, 149, 162, 187, 219, 252, 265, 332

358

index

International financial institutions (IFIs), 31. See also World Bank, International Monetary Fund (IMF); World Trade Organization International human rights (IHR), 10, 16–17, 72, 81, 93, 136, 240; jurisprudence, 70, 83, 108; and India, 187; law, 49–51, 75, 82, 108, 328; and NGOs, 151–2, 154, 252; pathway, 31–32; regime, 20, 323; standards/norms of, 74–79, 88, 122 International Human Rights Institutions, 16; oversight of decisions and resolutions of, 76–77 79, 83; compliance mechanisms of, 79, 80–82 International Labour Organization Indigenous and Tribal Peoples Convention, 79 International legal obligations, 50–51, 54–55, 172–3, 176, 178, 193, 239–40, 252, 331 International Monetary Fund (IMF), 29, 31–32, 37–39, 42, 44, 89, 164, 322–3, 326 International NGOs (INGOs), 41, 73, 149–52, 156, 160–5, 243, 252, 232, 331 Khosa, 208 Kimenyi Index (KI), 244–5 La Via Campesina, 155, 159 Labour Court (South Africa), 202 Land: claims, 71, 76, 151, 205–6, 213, 335; reform, 149, 155, 1 93, 200, 206–7, 330; restitution, 72, 200, 206, 212–3, 327, 330, 335; rights, 19, 71–72, 79, 81, 123, 139, 156, 163, 183, 199, 201, 205–7, 212–4, 323, 327–8, 330 Latent compliance, 312. See also shadow effect of litigation Legal: discourse, 303, 312, 339–40; mobilization, 10–11, 13, 17, 19, 79–80, 98, 109, 150, 183, 185fig., 191, 266, 291–300, 312, 329–30, 332, 337, 339–41; sanctions, 75, 130, 320 Limburg principles, 245–6 Litigation, 21, 153, 165, 327–9, 331–3, 338, 341–4; litigants’ voices in, 297–8, 304, 308, 343; process, 291–2, 293fig., 294fig., 295fig., 296–300; public interest in, 188–91, 332 Maastricht Guidelines, 245–6 Malaria, 56–9, 64–5, 160 Mandela, Nelson, 201, 206, 213 Mapping, 21, 253, 269, 271, 274, 277, 281–3, 287, 349–50 MAPs (mechanisms, actors, and pathways) framework, 5–6, 15, 22, 29, 31, 43, 50, 66, 69,

109, 122, 200, 212, 266, 291–2, 297–8, 303, 306, 312, 319–22, 330, 332–3, 346, 350 Maximum of available resources: principle of, 20, 34, 173, 176, 178, 239, 242–5, 247 Mazibuko (Mazibuko and others v. the City of Johannesburg and others, South Africa), 217, 334 Mbeki, Thabo, 202–3 Mechanisms for social transformation, 6, 10, 320–2; cooperation and dialogue, 6, 152, 267, 276, 282, 320, 327–8, 345; information gathering and dissemination, 18, 111, 184–5, 187–8, 191, 223–4, 320, 326–7, 332–3, 346; legal/ judicial, 21, 31–32, 42, 71, 79, 88–91, 99, 101, 108–9, 149–50, 154, 171–2, 184–5, 187, 191, 231, 266, 276, 291, 295table, 327, 329; naming and shaming, 11–12, 22, 35–36, 42, 73, 191, 240, 252, 320, 345–6; power-based, 184, 188–91, 230–1, 266–7, 276, 286, 295table, 333; and the right to food, 185fig.; symbolic/ideational/ normative, 31, 73, 82, 276, 294, 295table, 297, 303, 305, 311, 322, 325; and processes of exclusion, 266–7, 281, 283 Doctors without Borders (Médecins Sans Frontiéres), 159 Mid-Day Meal Scheme (MDMS, India), 190, 197table, 332 Millennium Development Goals (MDGs), 8–9, 11, 13, 160, 178, 265, 274 Rural Landless Worker’s Movement (Movimento dos Trabalhadores Rurais Sem Terra, Brazil), 155, 165 Municipal Systems Act (South Africa), 204 NAACP Legal Defense Fund (United States), 330 National Department of Health (South Africa), 211, 213, 329 National Food Security Act (India), 184–5, 188, 191–3 National Household Survey (Pesquisa Nacional por Amostra de Domicílios, PNAD, Brazil), 268 National Infrastructure for Spatial Data (Infraestrutura Nacional de Dados Espaciais, INDE, Brazil), 269 National Institute of Urban Affairs (NIUA, India), 285–6 National Planning Commission (South Africa), 203, 211 National Public Goods, 54, 56–57. See also public goods

index National sovereignty, 132–4, 136–7, 142 National Water Act (South Africa), 207 Neoliberalism, 14, 31, 42, 90, 323 Nevirapine, 207, 211–2. See also antiretroviral treatment New Deal: conception of human rights, 199 Nigeria, 57, 91–92, 99, 158, 163, 179–81table, 337–8 Núcleo União Pró-Tietê (Brazil), 284 O’Regan, Justice, 209 Obligation of results, 246, 252 Organization of American States (OAS), 69, 71, 75, 77, 79 Organizational fields, 150–3, 156, 164–5 Ostrom, Elinor, 50, 62–64 Oxfam, 150, 156, 158, 162, 164, 323 Participatory: budgeting, 223–4; GIS, 282–3, 285, 287, 350; planning, 223–4, 283, 345; research methods, 267, 283. See also public-participation Pathways for rights realization, 4–5, 78–81, 109, 128, 291, 322–3, 326, 328–9, 331, 344, 346, 349–50 People’s Union for Civil Liberties (PUCL, India), 110, 187–9, 191–3 Phiri, Soweto, 209 Physical quality of life index (PQLI), 32, 40, 41table, 244, 347 Physicians for Human Rights, 154, 156 Plyler v. Doe (United States), 140 Policy legalization model, 7, 9, 10, 12 Political: costs, 304, 308; patronage, 204, 280, 282; transformation, 123, 287, 297, 332; will, 76, 192, 229, 309 Polluter pays principle, 17, 110 Poverty, 2, 13–15, 87, 89, 99: in Brazil, 276; and caste, 267, 269, 277, 281; cycle of, 58; in India, 95, 190–1, 275; and literacy rates, 277; rates 258–9; reduction of, 31, 38–39, 101, 178–9, 221, 324; SERF index of, 250; in South Africa, 199–201, 204 Preferential Procurement Policy Framework Act (South Africa), 336 Principal-agent problem 29, 33, 34–35, 44; and agency loss, 30, 32–4, 43–4; and multipleprincipals, 32, 40, 43–44. Privatization, 37, 54–55, 155–6, 159, 161, 164, 323; Anti-Privitisation Forum, 213; water antiprivitization campaign, 160, 165 Procedural rights, 106, 110, 245

359

Program lending, 30–32, 34, 37–40, 41table, 42–44, 322–3 Progressive realization, 20, 22, 35, 38, 42, 176, 193, 200, 208, 212; principle of, 244, 334; standard of, 239–43, 347 Public goods, 49–62, 65–66, 101, 224, 231–2 273, 323, 337; and excludability, 52, 62; and rivalry, 52–53, 55, 59–60. See also global public goods; national public goods Public Interest Litigation (PIL), 18, 95, 109, 112, 120–2, 183, 188–91, 300, 332, 337, 340–2 Public participation, 116, 205, 285, 340; publicparticipation GIS (PPGIS), 282–6. See also participatory Race, 132, 287: and racial discrimination, 202, 206–7, 330, 336 Reasonableness standard/doctrine: 122, 208–9, 252, 258table, 334 Recognition: and ARVIN, 228; legal, 19, 71, 76, 78, 109, 201, 206, 212; peer, 305; relevant others, 305 Reconstruction and Development Programme (South Africa), 202 Rescaled performance indicator score (S), 249–50 Restitution of land, 72, 200, 206, 212–3, 327, 330, 335. See also land reform Restitution of Land Claims Act (South Africa), 206 Right to Food Campaign (RFTC, India), 184, 187, 191, 332 Rights: to education, 17, 89, 91–92, 96–97, 154, 157, 163, 183, 201, 243–4, 246–7, 251, 257, 260–1, 336, 337, 339, 347–8; to food, 19, 51, 94, 96, 154, 156–7, 159, 162–5, 170–94, 243–7, 251–2, 260–4, 332, 347–8, 351; to health, 16, 19, 49–57, 64, 66, 89, 91–94, 96–99, 151, 163, 200–201, 205, 208, 211–4, 243–5, 257, 260, 262–4, 323, 328–30, 336–7; to a healthy environment, 49–51, 53, 59, 62, 66, 105, 107, 110, 116, 339; to housing, 1, 3, 8, 34, 53, 89, 94–95, 150–1, 159–60, 162–3, 176, 179, 180, 183, 244, 246–7, 258, 260, 262–3, 348; to life, 17, 19, 92, 98, 107–16, 131, 187, 311, 339; to water, 94, 108, 115–6, 151, 156, 159–61, 163, 165, 200, 209, 213, 243, 270, 323, 328, 331, 334, 336; to work, 51, 178–80, 244, 258, 261–4 Riparian Rights (India and South Africa), 110, 206 River Yamuna, 270–1, 277, 279, 281

360

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Rome Declaration, 173 Roth, Kenneth, 157 Sanitation, 16, 53–56, 93, 96, 112, 175–6, 247, 258, 348; access to, 174, 260, 262, 273–7, 281–2. See also water and sanitation services São Paulo, Brazil: Billings and Guarapiranga watersheds, 281; Cantareira System, 270; Census data, 267, 269; Census tracts (areas de ponderaçao), 268; Metropolitan region of São Paulo (MRSP), 266–71, 273–4, 276–7, 279, 281–2 Saramaka People vs. Suriname: Inter-American Court of Human Rights decision, 81 Save the Children, 150, 162, 323 Sen, Amartya, 191 Shadow effect of litigation, 298, 312, 327–8. See also latent compliance Shilowa, Sam, 210 Skills Development Act (South Africa), 202, 336 Slums, 266, 269, 276–8, 281–2, 288 Social accountability, 20, 44, 219–22, 223table, 224, 225fig., 226fig., 227fig., 228–9, 231–3, 253, 320, 324–6, 345–6; Social Accountability and Demand for Good Governance, 219, 224 Social and Economic Rights Fulfillment (SERF) Index, 20, 176, 179–82, 190, 240fig., 241fig., 244–7, 250–3, 256table, 263fig., 264fig., 287, 346–9; high-income OECD, 247table Social audit, 188, 221, 223, 224, 231, 345 Social guarantees approach, 9; model, 7–8, 13 Social justice, 17, 90, 128, 311 Social mobilization, 21, 151, 154–5, 165, 172, 186, 188, 192–4, 231, 294fig., 332; movement, 9–12, 18–19, 149–56, 159, 161–5, 184–5, 192–3, 204, 206–7, 209 212–3, 293, 312, 320, 324, 328–9, 331–3, 340, 343, 345–6 Social transformation, 2–3, 12–13, 15, 22, 109; accountability, 296–7; assessing, 310–5; and indigenous rights, 71, 73, 75, 79, 82; “moments of,” 4fig., 5–6, 184, 322; pathways, 185fig., 186, 287, 240fig., 241fig., 296, 321, 329; participation, 121; promoting, 174; realization, 142, 291, 294, 300, 306, 320, 323, 327, 329, 331, 334–5, 337–8, 341, 343–6, 350; and South Africa 94 Socioeconomic rights, 37, 199–201, 207–8, 212, 214, 265, 325; jurisprudence 207–8 Soft law, 16–18, 59, 109, 117, 120–1 Socio-legal norms: influence on decision-making, 21, 293, 304, 305, 310, 342. Soobramoney case (Soobramoney v. Minister of Health, KwaZulu-Natal, South Africa), 208, 213

South Africa, 17, 19, 36–38, 91, 123, 329; ES rights in, 94–95, 99–100 208–14, 252, 325, 328, 336–8; NGOs in, 155–6, 161, 165, and food 193; pharmaceutical drugs in, 211–3; and water, 214, 334; post-apartheid, 199–204, 206, 297 South African Agricultural Union, 206 South African Human Rights Commission, 37 Spatial analysis: of patterns of exclusion, 265–8, 283; as a monitoring tool, 267, 270, 287; See also Geographic Information Systems (GIS) Spatially referenced data-set, 267, 270, 287 Special Agricultural Workers Act (United States), 130 Spiral model, 7, 10–12, 37, 40 Stakeholder engagement, 221fig., 286 Standard of reasonableness, See reasonableness Supreme Court: of Bangladesh, 112; of Belize 72; of India, 18, 95, 108–9, 111, 117, 120–1, 183, 187, 189–93, 332; of Nepal, 11–5; of Nigeria 92; of Pakistan, 113; of Philippines, 109; of Sri Lanka, 116, 118–20; of United States, 129, 140, 351 Supreme Court of Appeal (South Africa), 95, 209 Swedish International Development Cooperation Agency (SIDA), 154 Taplin, Grant, 38 Tragedy of the Commons, 50, 60, 62, 66 Transformation: Ideational or symbolic, 82, 294–5, 297, 311, 322; material, 287, 322; organizational, 150–3, 161; political, 123, 287, 297, 332. See also social transformation Transformative change, 6, 8, 13, 19, 51, 268, 292, 298, 310–12, 322, 326, 335–37, 343–44, 346 Treatment Action Campaign (TAC), 100, 155, 165, 209–12, 329; TAC case (Minister of Health v. Treatment Action Campaign, South Africa), 207–8, 212 Tsoka, Judge, 208–9 United Nations (UN), 5, 31, 34, 39, 54, 69, 135; Center for Human Rights, 242; Children’s Fund (UNICEF), 57, 256–8, 285; Committee on Economic, Social and Cultural Rights (CESCR), 32, 36, 50–51, 54–55, 66, 160, 163, 172, 208, 242–6; Convention on the Law of the Seas (UNCLOS), 61–62; Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 135–6; Convention Relating to the Status of Refugees and Stateless Persons, 134; Convention on the Rights of the Child, 36,

index 135–6, 162; Council on Economic, Social and Cultural Rights, 31; Declaration on the Rights of Indigenous Peoples, 69, 74; Development Programme (UNDP), 162, 231; Economic and Social Council (ECOSOC), 35; Environment Programme (UNEP), 64–66; General Assembly, 38, 69, 77, 172; General comments, CESCR, 54, 163, 173, 208, 244–6; General comment on food, 172–3; General comment on water, 160; Human Rights Council, 31–32, 35, 73, 77, 105; Human Settlements Programme (UN-HABITAT), 243; ICESCR Optional Protocol, 242; International Covenant on Civil and Political Rights (ICCPR), 59, 93, 226, 241; International Covenant on Economic, Social and Cultural Rights (ICESCR), 16, 29–30, 208, 239, 347; NGOs, 150; Office of the High Commissioner for Human Rights (OHCHR), 35, 77, 243–4, 347; regime, 34–37, 42–43, 171–3, 176, 241–3; right to health, 54–55; SERF index, 244–5, 252; specialized agencies, 35, 243; Sub-commission on the Promotion and Protection of Human rights, 38. See also United Nations Special Procedures; United Nations Special Rapporteur United Nations Special Procedures: constructive dialogue, 75; description, 70, 73; country and thematic reports; 72, 74; technical advisory function, 74, 81 United Nations Special Rapporteur, 74, 77; on human rights and the environment, 59, 108, and ESCR 163, 242–3, 245; on the Rights of Indigenous Peoples, 17, 70, 74–75, 81, 327 United States, 1–2, 10–11, 13, 14, 18, 34, 42, 54, 56–57, 62, 74, 90, 106, 154, 157, 159, 328, 329, 336, 343–4, 346, 351; Constitution, 88, 140, 339; deportation from, 129–32; the DREAM Act in, 128, 140; immigration law, 129, 131–2, 134, 137–8, 141; settled immigrants (residents)

361

in, 128–38, 141–2, 339 unauthorized/undocumented immigrants in, 18, 128, 130–1, 133, 136–9, 140–2 Universal Declaration of Human Rights (UDHR), 1, 3, 34, 39, 87, 93, 134, 162, 172, 199, 241, 245 Universal periodic review (UPR), 35 Urbanization, 271, 281 Water Aid, 156, 161 Water and sanitation services, 265–70, 272–3, 274map, 275map, 276map, 277–8, 279map, 280–2, 285–7; universal access to, 270. See also sanitation; water Water Services Act (South Africa), 207 Water: access to, 176, 179–80, 206–7, 209, 247, 250, 261–2, 271map, 271map, 278map, 280map; courts, 213–4, 288, 328; human right to, 3, 8, 53–54, 94,108, 113, 115–6, 155, 163, 165, 200–1, 209, 213–4, 243, 270, 323, 331; law, 207, 213–4; and protected areas, 266; rights, 95, 156, 160–1, 164–5, 206–7, 213–4, 331, 334. See also water and sanitation services Wolfensohn, James, 39, 220–1 World Bank, 5, 20, 29, 31–32, 37–39, 41–42, 44, 164–5, 219–23, 227, 230, 257–8, 322–6, 331, 337, 345; Comprehensive Development Framework, 39; Governance and Anticorruption (GAC) strategy, 221; World Development Report, 219–22 World Food Summit, 173, 177 World Health Organization (WHO), 56, 58–59, 64–66, 159, 161, 243, 256, 258, 347 World Organisation Against Torture (OMCT), 150, 154, 156–7, 164, 323 World Trade Organization (WTO), 161, 165, 331 Yokota, Yozo, 38 Zuma, Jacob, 203