Human Development and Human Rights Human Development Report (2000): Linking of the human development paradigm with

the idea of human rights Key question: How can the obligations of national governments and the international community with respect to human development be justified and specified? Move beyond the human development paradigm by bringing in philosophical or legal theory, especially a theory of universal human rights Lecture overview 1. Theoretical framework 1.1 What are human rights? 1.2 Linking the idea of capability expansion and the idea of human rights (Amartya Sen) 1.3 International human rights law 2. Use of human rights standards as advocacy tools

WHAT ARE HUMAN RIGHTS? -Claim to a benefit that everyone should have - universal domain (all people everywhere) - equal rights - claims against governments General form of a rights-based claim: Logical relationship between two agents (x) and (y) and a condition (z) Specification of a rights-holder/s (x), duty holder/s (y) condition (z) CONDITION RIGHTS Human rights
Subset: rights-holders = human beings, duty-holders = governments, conditions = fundamental human freedoms

OBLIGATIONS

FUNDAMENTAL FREEDOMS HUMAN RIGHTS GOVERNMENT OBLIGATIONS

BASIS OF THE JUSTIFICATION OF HUMAN RIGHTS Human rights justified in terms of a theory (T) which specifies: the class of claims to be regarded as human rights which agents have obligations to fulfil the human rights The theory (T) could be a philosophical or ethical theory, a political theory or a legal theory e.g. the basis of the justification might relate to moral arguments, to political agreements by governments, or international human rights law The class of human rights justified by the theory might be narrow or broad Narrow theories focus on civil and political liberties Broad theories focus on a broader class of human rights and take account of poverty, hunger and starvation The obligations of governments might be negative obligations (of omission or restraint) or positive obligations (of assistance and aid)

LINKING THE IDEA OF CAPABILTIY EXPANSION AND THE IDEA OF HUMAN RIGHTS

Ways in which Sens research agenda goes beyond the human development paradigm by providing a framework for thinking about human rights

FUNDAMENTAL FREEDOMS

(Capability freedoms valuable and central things a person can do/be)

HUMAN RIGHTS

NEGATIVE AMD POSITIVE OBLIGATIONS

Sens interventions in debates about human rights 1. Defence of the validity of the idea of human rights in the context of poverty, hunger and starvation General class of capability rights rights to valuable capabilities

General class of meta-rights (rights to policies p(x) that promote the achievement of (x))

2.

Defence of the idea of universal human rights against the relativist critique

3.

Establishing civil and political rights as important instruments for achieving human development goals and effective development and growth

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

INDEX OF ARTICLES 1-2 Human dignity, equality and non-discrimination 3 Life, Liberty and Security 4 Slavery and Slave Trade 5 Torture and Cruel/Inhuman/Degrading Treatment or Punishment 6-11 Legal Rights 12 Arbitrary Interference 13 Freedom of Movement and Residence 14 Asylum 15 Nationality 16 Marriage 17 Property 18-19 Freedom of Thought/ Conscience/ Religion/ Opinion/ Expression 20 Peaceful Assembly and Association 21 Political Rights 22 Social security and general recogntion of socioeconomic rights 23-24 Employment, Trade Union and Rest 25 ADEQUATE STANDARD OF LIVING 26 EDUCATION 27 Cultural Life 28 International order 29 Limitations (Morality/public order/general welfare)

KEY INTERNATIONAL TREATIES IN THE FIELD OF HUMAN RIGHTS

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) [UNGA RESOLUTION] INTERNATIONAL BILL OF HUMAN RIGHTS

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (149)

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (152)

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (169) CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (177)

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHEMENT (136)
CONVENTION ON THE RIGHTS OF THE CHILD (192)

Further information

www.ohchr.org

(Status of ratifications, content of treaties, details of treaty monitoring and reports, details of international law)

THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

RECOGNITION OF HUMAN RIGHTS

ADEQUATE STANDARD OF LIVING + FREEDOM FROM HUNGER

Article 11 (1) States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing (2) The fundamental right of everyone to be free from hunger
ACCESS TO HEALTH CARE

Article 12 The right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
EDUCATION Articles 13&14 The right of everyone to education. Compulsory primary education, free of charge

RECOGNITION OF THE OBLIGATIONS

Article 2 Each State party undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including the adoption of legislative measures.

JURISPRUDENCE OF THE UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1. Concept of progressive realization

2. Concept of the Minimum Core [A]ny situation in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education constitutes prima facie evidence that a State party is failing to discharge its obligations under the Covenant.
3. Negative and positive obligations (including obligations to respect, protect and promote human rights) 4. Obligation to give effect to the human rights set out in the ICESCR in domestic law

UK HUMAN RIGHTS ACT, 1998. SECTION 1 (CONVENTION RIGHTS)

INDEX OF RIGHTS Life Torture Slavery and forced labour Liberty and security Fair Trial Punishment under the law Private family life Freedom of Expression/Assembly/Association Non-discrimination Political Activity Abuse of Rights

Property
Education Free Elections Death Penalty

CONSTITUTION OF SOUTH AFRICA (1996): CHAPTER 2 (BILL OF RIGHTS)

INDEX OF SECTIONS 7. Rights 8. Application 9. Equality 10. Human Dignity 11/12 Life, Freedom and Security of the Person 13. Slavery, Servitude and Forced Labour 14. Privacy 15. Freedom of Religion, Belief and Opinion 16. Freedom of Expression 17. Assembly, Demonstration, Picket and Petition 18. Freedom of Association 19. Political Rights 20. Citizenship 21. Freedom of Movement and Residence 22. Freedom of Trade, Occupation and Profession 23. Labour Relations 24. Environment 25. Property 26. Housing 27. Health Care, Food Water and Social Security 28. Children 29. Education 30/31 Language, Culture and Linguistic and other Communities 32. Access to Information 33. Just Administrative Action 34. Access to Courts 35. Arrested, detained and Accused Persons 36/37. Limitation of Rights and States of Emergency 38/39. Enforcement and Interpretation

JURISPRUDENCE OF S.A. CONSTITUTIONAL COURT Article 27 (Health care, food and water and social security) (1) Everyone has the right to have access to a.health care services, including reproductive health care; b.sufficient food and water; and c.social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment. [H]undreds of thousands of people [are] living in deplorable conditions throughout the country. The Constitution obliges the State to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependentsThose in need have a corresponding right to demand that this be done. [It] is an extremely difficult task for the State to meet these obligations in the conditions that prevail in our country...[This is recognised by] the Constitution which expressly provides that the State is not obliged to go beyond available resources or to realise these right immediately[D]espite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an obligation that Courts can and in appropriate circumstances, must enforce.

LANDMARK CASES IN THE FIELD OF ECONOMIC AND SOCIAL RIGHTS Court has upheld claims for the violation of socioeconomic rights in two landmark decisions:

Grootboom v Government of the Republic of South Africa: Violation of the human right to housing. Treatment Action Campaign v The Minister of Health: Violation of the human right to access to medical care.

THE NATURE AND SCOPE OF THE POSITIVE OBLIGATION ON THE SOUTH AFRICAN GOVERNMENT 3 General Principles: The state is under a duty to comply with the positive obligations imposed in the Constitution under Articles 26-29 by taking measures to eliminate or reduce the large areas of severe deprivation that afflict South Africa. The state is not obliged to go beyond available resources or to realize the rights immediately, but must act reasonably to achieve the realization of these rights on a progressive basis by adopting an appropriate policy or programme: In order to be reasonable/adequate, a human rights-based policy: Must not entirely sacrifice immediate needs in order to achieve medium and long-term development objectives. must be capable of facilitating the realisation of the right over time.