When rights go wrong, S Batliwala

Tags: development, rights advocates, rhetoric, rights-holders, rights-based approach to development, development assistance agencies, approach, international human rights, economic rights, basic human needs, original meaning, political context, social justice, Makau Mutua, basic rights, rights based approach, duties and responsibilities, responsibilities, structures, collective rights, social structures, development challenges, political participation, Poverty Reduction Strategies, accountability, David Flynn, Universal Declaration of Human Rights, Human Rights Approach, grassroots movements, grassroots, assertion, poverty alleviation, land rights, power structures, worldwide phenomenon, social and economic justice, formal governance, workshop report, sustainable development, human rights, donor support, Development in Practice, Cecilia M. Ljungman, development history
Content: When rights go wrong SRILATHA BATLIWALA OVER the past fifty years of development history, we have seen the repeated distortion of good ideas and innovative practices as they are lifted out of the political and historical context in which they evolved and rendered into formulas that are `mainstreamed'. This usually involves divesting the idea of its cultural specificity, its political content, and generalizing it into a series of rituals and steps that simulate its original elements, but lacking the transformative power of the real thing. Thus good ideas, evolved to address specific development challenges, are altered into universally applicable panaceas. Transferring the correct rhetoric ­ buzzwords and catch phrases emptied of their original meaning ­ is a vital part of this legerdemain. This is not to question the transfer and replication of effective interventions for social justice and development, but the manner and motives for which it is done. As the lack of genuine global commitment to poverty eradication and social justice increases, so does the desperation to find magic bullets and quick fixes which, it is hoped, can overcome the lack of political, social and economic will to address the deeper roots of socio-economic transformation at international, national and local levels. The distortion of good ideas and strategies is both a cause and a result of this process. A good example of this syndrome is micro-credit, originally developed in the South Asian cultural and political context by pioneers like SEWA in India and Nobel laureate Grameen Bank in Bangladesh. Their idea was to give poor women access to credit to unleash their latent entrepreneurial skills and eventually raise their household incomes. But in the last decade, micro-credit has been converted into a `movement', a universal anti-poverty and women's empowerment panacea. It is increasingly force-fed by development finance agencies into every poverty context, regardless of local culture, gender relations, social structure or political history. Many of the systems developed by the early pioneers have been mechanically replicated without critical reflection on their viability or equivalents in other contexts. No surprise then, that the results have been so mixed.1 The most recent example of this phenomenon is the attempt to push the `rights-based approach to development', in which many development assistance agencies ­ private, bilateral, and others ­ are the leading players. The hard-sell of usually vague and differently-interpreted versions of the rightsbased approach ­ indeed, often what the particular donor agency representatives think is the rights-based approach ­ to all their development `partners' is creating a situation where rights are going sadly wrong.2
One fundamental problem is that the rights-based approach has been advanced before addressing some of the very troubling matters at the heart of human rights themselves. In a compelling critique of the evolution of the current body of international human rights,3 Makau Mutua argues that not only have the current body of human rights been framed from an overwhelmingly European, Rousseauvian perspective of the individual as both the object and subject of rights, but that they have increasingly become the goal and instrument of a modernday civilizing project in the non-western world.4 Mutua asserts that the philosophical underpinnings of the current body of human rights have not been evolved through a genuinely multicultural ground-up debate, distilling what is authentically universal from the highest values and ethical frameworks of societies around the world. As a former feminist activist and native of Karnataka, I can strongly identify with this argument: if the values that imbued the revolutionary Veerashaiva movement of thirteenth century Karnataka had informed the construction of the international bill of rights, the struggle of the international women's movement against the androcism of the earlier rights framework5 may not have occurred. Women's right to social equality and physical security were clearly articulated by Bhakti Saint Akkamahadevi in several of her vachanas6 and gender equality was an integral part of the Veerashaiva struggle. I raise this not with naпve chauvinism but to illustrate the rich and diverse sources that have existed ­ outside the West ­ for framing universal rights The individual focus of the rights discourse is another inherent problem that has been widely critiqued. This has sought to be corrected by focusing on collective rights, but this does not negate the core problem of assumed universality. What is more, the experience of Indigenous communities attempting to protect their customary rights to forests and land in the face of market forces indicates that collective rights are no more easily asserted or protected from violation than individual rights, and that even when they are, it is through instruments of redress that are still alien, far from traditional norms and values, raising a host of new problems. Native Americans in the United States, for instance, have asserted their sovereignty over tribal lands through rightsbased legal instruments, but are struggling to control and distribute revenues from gambling casinos with the collapse of customary governance and judicial systems and increasingly predatory external forces they are ill-equipped to confront: `...additional problems are now arising in the reservations due to the lack of pre-existent law regarding the issues raised by open gaming and the impending collapse of traditional Indian courts of justice. This is becoming a major issue as cyber
criminals and organized crime are seeing the lightly defended reservation gaming as open territory.'7 Another problem with the rights discourse itself ­ and pertinent to the arguments I will later present in this article ­ is that the responsibilities side of the discourse remains underdeveloped, especially the notion of collective or communal responsibilities.8 Western-influenced rights advocates even in India fear that the notion of responsibilities is too weak, and leads to misuse and renewed oppression by feudal forces ­ women and oppressed castes in India, for instance, are often reminded of their responsibilities rather than their rights when they challenge their oppressors. The rights community speaks of rights-holders and duty-bearers, and in theory, at least, the rights-based approach to development acknowledges the critical role of informal mediating structures like communities and clans, and that dutybearers include not only the state and its agencies, but a range of customary and informal social structures. * The analysis aims to determine what immediate, underlying and structural obstacles there are to realising rights. This includes examining social, cultural, legal and administrative frameworks, which requires studying how people's claims are processed by authorities in the different arenas of negotiation (e.g. customary law, religious law, statutory law, constitutional law, etc.) (Moser & Norton, 2001; The Human Rights Council of Australia, 2001). * A rights-based analysis must necessarily identify responsible duty-bearers (UN, 2003). Not only does this include the state at different levels, it also comprises the identification of other duty-bearers in society, including family, the community, corporate actors, etc. The capacities and resources of the dutybearers to fulfil their duties should be assessed.9 Indeed, for most poor and oppressed social groups, the local social structures in which they negotiate their lives, resources and rights are the determining layer through which their individual circumstances are mediated. Even the rights of citizenship are mediated by communities and identity groups of various kinds ­ witness the phenomenon of `vote banks'. On the other hand, many cultures around the world accord a higher place to collective duties and responsibilities rather than to individual or collective rights. This is very significant for the implementation of the rights-based approach, which tends, in practice, to define state authorities and agencies as the primary duty-bearers in protecting and promoting rights, and emphasizes individual citizens as rights-holders. This is particularly true when donors have promoted the approach, since the visibility and possibility of measuring successful
individual claims and implementation of state obligations shifts the focus to these actors rather than less visible mediating structures. The state is also a far easier target (excluding, obviously, states captured by illegitimate and rogue regimes) to pressure for the enforcement of rights than families, clans, and caste structures. I am not here advancing a cultural relativism argument, but merely pointing out that rights strategies, in particular assessments of their impact, have not yet been fully developed around how and where most people, particularly women and oppressed and marginalized groups, actually experience the affirmation or denial of their rights: the family, clan, tribe, caste group, and so on. There is also the knotty problem of the hierarchy of rights, wished away as false or politically motivated by rights advocates, that continues to plague us. Some people's rights, such as indigenous people's right to their traditional territories (the dam-affected in the Narmada Valley), will apparently sometimes clash with the equally valid right to employment and food security of others (the drought-affected farmers and agricultural labourers in Kutch and Saurashtra).10 I do not want to get into the debate here of who is ultimately responsible for or gains from putting these rights into opposition ­ I am merely trying to show that there are a large number of complex and unsettling issues at the heart of human rights, and therefore of rights-based approaches to development. My point is that it is from this very contentious place, with its enormous and unresolved conceptual and strategic conundrums, that the discourse of the rights-based approach to development has emerged. It is useful to stress, however, that rights-based strategies themselves are much older than this discourse. One could argue, for instance, that all the anti-colonial struggles were rights-based approaches to development, and that a large number of the struggles of marginalized and oppressed groups in our country over the past fifty years ­ the movements of dalits, peasants, workers, tribals, displaced people and women ­ were also rights-based struggles to access and equitable distribution of the fruits of development. So it is important to distinguish between the discourse of rightsbased development and actual rights-based movements for equality, development, self-determination and participation, which are certainly much older. The rationale that gave rise to the rights-based discourse somewhere in the late nineties is important to understand. It was intended to move development out of the realm of a privilege that benevolent regimes might ­ or might not ­ provide their citizens to enjoy, to a right that could be `legally enforced', claimed and asserted. It was intended to
remove the element of voluntary fulfilment of basic human needs by benign states, what Ake called the `modest privilege of protection from the power of the state,'11 and replace it with the legal obligation of regimes to enable and actualize the basic rights of their citizens. But most of all, the rights-based approach was originally developed by several international activist NGOs in order to link human rights and development, and to foreground the link between poverty and rights. The rights approach is viewed as being closely allied to the achievement of the Millennium Development Goals of the UN, and the poverty reduction Strategies of the World Bank. Advocates of the approach argue that poverty eradication and the right to adequate income, health, education, peace, security and participation in governance should not be a matter of privilege, benevolence or development goals, but the basic right of all human beings. As some rights advocates would have it, the rights based approach was developed to enable people to fulfil their basic needs by demanding basic rights. Although social and economic rights are obviously at the core, the approach is usually described as encompassing a much broader and more holistic notion of human well-being. Clearly the rights-based approach to development has many important strengths, but there are four basic processes through which it goes wrong in practice. First, the rights-based approach has been framed so broadly as to almost blunt it of its usefulness, since almost any duty-bearer could claim that rights are being integrated into their policies and actions. Examine the following definition (see Box) of the approach taken from the website of the UN High Commission on Human Rights. What is the Rights-Based Approach? `A rights-based approach to development is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights... Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development... The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation. A rights-based approach to development includes the following elements: an express linkage to rights, accountability, empowerment, participation, non-discrimination and attention to vulnerable groups. `Rights-based approaches are comprehensive in their consideration of the full range of indivisible, interdependent and interrelated rights: civil, cultural, economic, political and social. This calls for a development framework with sectors that mirror
internationally guaranteed rights, thus covering, for example, health, education, housing, justice administration, personal security and political participation. `Rights-based approaches focus on raising levels of accountability in the development process by identifying claimholders (and their entitlements) and corresponding duty-holders (and their obligations). In this regard, they look both at the positive obligations of duty-holders (to protect, promote and provide) and at their negative obligations (to abstain from violations). They take into account the duties of the full range of relevant actors, including individuals, states, local organizations and authorities, private companies, aid donors and international institutions. `Such approaches also provide for the development of adequate laws, policies, institutions, administrative procedures and practices, and mechanisms of redress and accountability that can deliver on entitlements, respond to denial and violations, and ensure accountability. They call for the translation of universal standards into locally determined benchmarks for measuring progress and enhancing accountability.'12 As we can see, this offers a very comprehensive framework and some useful possibilities for those attempting to hold states and other powerful institutions more accountable for implementing equitable and effective development policies and programmes and progressive legislation. At the same time, it is clear that its elements are more easily embraced and monitored at the level of law and policy, but less so in terms of administrative procedures and practices. Most of all, it would be very difficult to hold communities and traditional social structures whose hierarchies and authority systems are not controlled by formal law to account for violations or positive change. In this sense, the rights-based approach is not necessarily more empowering than other strategies in moving from formal to substantive equality, though that is one of its intentions. The development of gender-sensitive school textbooks, while the dropout rate for girls remains high ­ due to factors largely unrelated to schools and textbooks ­ is a good example of this gap. The right to education for all is guaranteed by Indian law and policy, but is in fact mediated by intersecting institutions like the family, clan, caste, gender, economic status, and so forth. In other words, the rights-based approach as currently articulated by donors does not adequately or explicitly place the analysis of social power, and strategies to shift power relations, at the centre, though its original architects certainly emphasized such analysis. It is also unclear how the rights-based approach is superior to its predecessors (what is the added value?) over the awareness-building/empowerment/organizing approaches used
decades ago in grassroots work. The only advantage appears to be that many traditional NGOs, engaged in poverty alleviation or sustainable development work, and who did not explicitly incorporate power analysis and rights into their approaches, are now compelled to do so at least in their rhetoric. This brings us to the other way in which rights go wrong: the rhetoric has assumed greater importance than the practice. Writing proposals and progress reports that are liberally sprinkled with the language of the rights-approach, viz., `claim-holders', `duty-bearers', `assertion', `violations', has become vital to mobilizing resources from donors that have adopted the approach. Old approaches are often rebottled in the rights rhetoric. And the obverse of this phenomenon is the dismissal of even the most impressive empowerment strategies and movements because they do not package their work in the rights language.13 This is a worldwide phenomenon ­ one activist from an organization that has mobilized hundreds of Kenyan women to claim their land rights from tribal councils after being widowed by AIDS put it this way: `They tell me that I must use the "rights-based" approach. Is not our work rights-based unless we use that term? Is our work not rights-based because we have changed only the customary inheritance system, and not some written law?'14 And this brings us to the most troubling dimension of the rights discourse and the way the rights-based approach is being interpreted. The experience of grassroots activists from India and other parts of the world shows that in many cultural contexts, the translation of several words at the centre of the rights approach is problematic for people and communities on the ground. In India, for instance, terms like haq and adhikaar are loaded, and in the more feudal contexts in which highly marginalized and oppressed people live, framing their struggles this way could trigger premature and harsh repression. In my own experience, poor women often prefer the terminology and tools of negotiation (unko samjhayenge, nyay maangenge, unki zimmedari samjhayenge), because their reality involves constantly negotiating and renegotiating their strategic interests and material conditions. They opt for persuasion and consensus-building more often than confrontation. They chose carefully when to use the language and strategies of `claiming', `demanding' and `asserting' ­ often when they have achieved a critical mass of mobilization and politicization ­ because the terms themselves signal readiness for confrontation. Women always move very carefully from negotiation to confrontation, because they have to bear the cost of possible backlash from state and non-state actors in local power structures.
The film by Deepa Dhanraj on the Nari Adalats of Gujarat (2002) illustrates these patient, powerful but negotiative strategies extremely well, and the power and legitimacy in adjudication that the Nari Adalats have gained with the community as a result. The film also illustrates that women are both more comfortable and more confident in using a discourse of justice and injustice, and the responsibility of a range of dutyholders to deliver justice, than of rights and their assertion. This may appear a fine distinction, but these culturally specific modes of realizing formally enshrined rights and transferring them into socially sanctioned norms and practices are extremely powerful modes of change. They are often derided and dismissed because their modalities appear less militant or too soft to some rights advocates. The aggressive rights rhetoric in fact alienates a number of what are in reality rights-based movements, because it discounts their emphasis on responsibilities and negotiated change. Finally, and perhaps most significant of all, these culturally-specific alternatives place a much greater degree of agency in the change process in the hands of those most marginalized by existing power structures. The rights approach ­ whether to development or civil and political rights ­ often shifts agency into the hands of intermediaries (such as lawyers, bureaucrats, NGO leaders and elected representatives) whose accountability to the marginalized is, in contexts like ours, weak at best. In fact, even these interlocutors are often not demonstrably accountable to those whose rights they are defending. And rights inevitably go wrong if those with the greatest stake in their rights become dependent on external actors for interpreting, asserting, and realizing their claims for a better deal. Indeed, there is growing evidence that rights claimed through external agents and formal systems are not necessarily sustainable. Modes of assertion based on demanding justice and fulfilment of responsibility, which don't always use formal systems of redress, are often less visible, involve more subtle and attenuated struggles, and address a fuller range of power structures, but don't necessarily lend themselves to quick and tangible measurement. Most of all, they use local forms of engagement and articulation that are not familiar to advocates of the rights-based approach ­ i.e., they don't look or sound like they are about the claiming of rights. But changes negotiated by oppressed communities are more likely to become sustainable shifts in power, since the processes that created them are held and owned by the claim holders rather than external champions. The rights-based approach was devised to move development from privilege, paternalism and patronage to a more democratic, accountable process that empowers
marginalized people in their struggle for social and economic justice. It was a great leap forward from the welfare-oriented or instrumentalist view of development that held sway over the past several decades. Above all, it was built from the experience of successful movements where excluded groups, using a range of formal and informal strategies, were able to compel or negotiate for greater inclusion and access to resources. These powerful roots of the rights-based approach are unfortunately being lost as it is sought to be converted into the latest magic bullet for achieving development. In fact, there is nothing quick or magical about it ­ successful rights-based interventions have been constructed through years of organizing, strengthening and sustaining movements ­ a process for which, incidentally, donor support has virtually dried up, since it is considered too slow and hard to measure. And ironically, many of these grassroots movements regard the `rights-based' rhetoric15 with the same scepticism as any other framework created by the development elite. Donor pressure to prove they use a rights-based approach is regarded as ludicrous. There is an urgent need, among both rights advocates and development assistance agencies embracing the approach, to move towards a more nuanced and sophisticated understanding of rights themselves and of rights-based approaches, and particularly so at the level of practice. It has been said before but bears repetition: there are no magic bullets or fast tracks to development with social justice. It is time to move away from formulas and rhetoric that focus on fixed modes of expression and on formal governance and redressal systems. We must listen more to how people engaged in struggle articulate and negotiate their goals and strategies. Rights are always the end of such struggles, but their means can look deceptively different. We must interrogate our own mantras about the right or wrong approach, and regard with greater respect the wide repertoire of means employed by marginalized people, exercising their own agency and articulations, that result in the actual realization of sustainable rights. Footnotes: 1. Ben Rogaly, `Micro-finance Evangelism, Destitute Women, and the Hardselling of a New Anti-poverty Formula', Development in Practice 6(2), 1996, pp. 100-112. 2. SIDA, `Working Together: The Human Rights Approach to Development Cooperation', report of the workshop of donors and practitioners held in Stockholm, Sweden, October 2000, donor workshop report p. 9, and NGO workshop report, p. 7. 3. The Universal Declaration of Human Rights, The Covenant on Civil and Political Rights, the Covenant on Social, Economic and Cultural Rights, The Convention on Elimination of All forms of Discrimination Against Women, the Convention on Rights of the Child, etc., collectively known as the Universal Bill of Rights.
4. Makau Mutua, Human Rights: A Political and Cultural Critique,
Philadelphia, University of Pennsylvania Press, 2002, Pennsylvania Studies
in Human Rights Series.
5. Which, till the mid-nineties, did not recognize rape and domestic violence
against women as human rights violations.
6. Devotional song-poems that contained clear philosophical precepts and
condemnation of social evils such as caste and women's oppression.
7.
See
http://www.americanindians.com/article.htm?id=87&Native_American_Casi
nos for a discussion of the problems resulting from casinos.
8. David Flynn, `What's Wrong with Rights? Rethinking Human Rights and
Responsibilities', Australian Social Work 58(3), September 2005, pp. 244-
256.
9. Cecilia M. Ljungman, COWI, `Applying a Rights-based Approach to
Development: Concepts and Principles', paper presented at the conference on
Winners and Losers from Rights-based Approaches to Development, Nov.
2004, p. 10, accessed on Nov.12, 2006, at:
http://www.sed.manchester.ac.uk/idpm/
research/events/february2005/documents/Ljungman_000.doc
10. See, for instance, Gail Omvedt's arguments in her Open Letter to
Arundhati
Roy,
August
1999,
http://www.narmada.org/debates/gail/gail.open.letter.html
11. Claude Ake, `Mistaken Identities: How Misconceptions of Relations
between Democracy, Civil Society and Governance Devalue Democracy',
Keynote Address, International Conference on Governance, Getulio Vargas
Institute, Sao Paolo, Brazil, November 1996.
12. See Guidelines of the United Nations Office of the High Commissioner
for Human Rights, www.unohchr.org
13. Personal communications of a range of grassroots activists and
community-based organizations with whom the author has interacted over
the past two years.
14. Identity withheld at speaker's request.
15. Personal communications of the leaders of at least four transnational
grassroots movements ­ street vendors, home-based workers, slum dwellers,
and grassroots rural women ­ the author has been studying over the past
three years.

S Batliwala

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