SECTION 1 DEVELOPING A RIGHTS-BASED PERSPECTIVE
DEVELOPING A RIGHTS-BASED PERSPECTIVE
The Purpose of Module 1
The purpose of this module is to enable participants to develop a rights-based perspective and approach to economic, social and cultural (ESC) issues.
The module discusses
Developing a Rights-Based Perspective
The dignity of an individual cannot and should not be divided into two spheres-that of civil and political and that of economic, social and cultural. The individual must be able to enjoy freedom from want as well as freedom from fear. The ultimate goal of ensuring respect for the dignity of an individual cannot be achieved without that persons enjoying all of his or her rights. Ultimately, it is a question of putting the human being in the center-not as an atomistic individual, but as part of a community and an ecological system. Advancing ESC rights requires a new paradigm and a new perception of rights.
In February 2000 the Indonesian government imposed a ban on use of becak in the capital, Jakarta. Becak are tricycles that are used for transporting goods and people; they provide a livelihood for the many people who pedal them. In imposing the ban, the government argued that becak cause traffic jams; they are slow-moving and an oddity in a city full of brand-new cars and other motor vehicles.
This is not the first time that the use of becak has been declared illegal. The previous ban was lifted in 1997 due to the acute economic crisis in the country. Becak driving provided much-needed employment. Many poor people sold their meager possessions to buy a becak in order to earn their livelihood. Now, with the new ban, they are back to square one.
The implicit assumption underlying the governments ban is that becak drivers have no place in Jakartas busy urban environment, where their mode of earning a livelihood is no longer relevant. The ban also carries the implication that the government holds no responsibility for the marginalization of the becak drivers; while the latter may have rights that protect them against arbitrary arrest, torture and killing, they have none that would ensure their economic and social well-being.
A common argument is that the becak drivers choice of livelihood should give way to economic development, which will, in the long run, save them from the drudgery of pedaling a becak all day. In the meanwhile, instead of tell-ing them they have rights, why not provide them with charity, so that they do not starve? The food, housing, health and other basic requirements of becak drivers are typically viewed within a development perspective; they are seen simply as needs and not as entitlements. The assumption is that economic development will enable a person or group to meet its basic needs.
The plight of the becak drivers is not unique. Their circumstances and similar circumstances of many other people, however, do pose a difficult question: How can we understand and discuss their situations not as ones involving charity or development, but as ones involving human rights, and specifically economic, social and cultural (ESC) rights? It is easy to say that ESC rights exist, but articulating their relationship to real-life situations such as these is a challenge.
It is essential to understand that working for development by extending services or providing for basic needs is different from working to ensure the enjoyment of ESC rights. We cannot ignore the effect that deprivation of basic ESC entitlements has on the dignity of a person. Individuals cannot be asked to wait for economic development to happen before their dignity is respected. The dignity and well-being of human beings is the foundation on which a rights-based approach is built.
ESC rights rest on the belief that economic and social deprivation should no longer be considered the result of natural conditions ordained by God or fate, as has historically often been the case. They also rest on the belief that those who do not enjoy the fulfillment of their ESC rights are not to be automatically blamed for their plight, on the charge of being lazy, reckless in spending or nonenterprising.
A rights-based approach is founded on the conviction that each and every human being, by virtue of being human, is a holder of rights. A right entails an obligation on the part of the government to respect, promote, protect and fulfill it. The legal and normative character of rights and the associated governmental obligations are based on international human rights treaties and other standards, as well as on national constitutional human rights provisions.
Thus a rights-based approach involves not charity or simple economic development, but a process of enabling and empowering those not enjoying their ESC rights to claim their rights. When individuals or peoples cannot exercise what they understand and believe to be their right, activists can encourage and help them to claim the right through judicial and administrative channels or, where an established mechanism does not exist, by other means such as public demonstrations. The process of staking a claim not only asserts an individuals ownership of his or her entitlement. It also helps define the right and raises awareness that what has been claimed is not a privilege or an aspiration, but a right.
One human rights activist has described a rights-based approach in the following way:
The Intrinsic Value of ESC Rights
ESC entitlements (for example, food, education, housing) are normally perceived only as instrumental to achieving certain ends, such as development and economic growth. This view has been in line with the notion that ESC rights are only aspirations, not rights proper. Derived from this is the idea that these rights can only be achieved progressively, since their enjoyment is linked to availability of resources. At this point, the "negative and "positive categorization of rights comes into play, whereby civil and political rights can be immediately enforced, since they require only nonintervention by the state, while all ESC rights supposedly require a positive role by the state. The debate regarding ESC rights thus becomes entangled in the politics of free market versus state intervention.
The debate on ESC entitlements is typically conducted not from the perspective of rights but from the perspective of development or welfare policy. An approach that makes ESC entitlements dependent upon the development policies of a state undermines the fundamental principle that human rights cannot be given nor taken away. It is essential to establish the intrinsic value of ESC rights. They have a value-and are an end-in and of themselves.
The "capability approach suggested by Nobel Prize-winning economist Amartya Sen provides a useful framework for understanding the intrinsic value of ESC rights. According to Sen, "the notion of capability is essentially one of freedom-the range of options a person has in deciding what kind of life to lead.  He argues that economic poverty and deprivation should be seen in relation to their role in curtailing the freedom of a person to lead a life that s/he values. The freedom to live a normal span of life, for example, is curtailed by premature mortality, and the freedom to read or write is curtailed by illiteracy. Enjoyment of ESC rights enhances the freedom of individuals by increasing their capabilities and their quality of life.
Seeing poverty as a capability failure can lead to demands for appropriate social arrangements through placing obligations on states. This approach also provides a framework for judging policies by their impact on the enhancement of citizens capabilities (whether or not the enhanced capability comes through the growth of real incomes). Finally, a capability approach can be a means of assessing the impact of discrimination based on factors such as race, class, caste and gender. Discrimination can, for example, constrain the capability and thus freedom of a person through denying him/her employment or appropriate medical care.
Sen identifies five ways in which education and health contribute to the freedom of a person.
1. Intrinsic Importance
2. Instrumental Personal Roles
3. Instrumental Social Roles
4. Instrumental Process Roles
5. Empowerment and Distributive Roles
The effects of education and health are not necessarily confined to the person who receives them.
Sen also examines the role of food in fostering freedom:
With regard to food policy, Sen distinguishes two kinds of perspectives-the instrumental perspective and the intrinsic perspective. The instrumental perspective emphasizes economic incentives for expansion of national output, including food production. Sen proposes that the instrumental perspective should not limit itself to advancing the freedom to earn profits, however. Other, broader kinds of freedoms such as freedom of information, assembly and opposition should also be advanced. These freedoms play a crucial role in the delivery and use of food.
In the intrinsic perspective, according to Sen, freedom from hunger can be seen as having value in and of itself. Therefore, economic development and social progress should be assessed by examining whether they enhance basic positive freedoms to avoid premature mortality, to escape morbidity, to eliminate malnutrition, and so on.
Sens arguments regarding food policy can be extended to social and economic policy (development policy) matters in general. They can be examined to assess whether they intrinsically enhance ESC rights and thereby the dignity and freedom of the individual.
 Ligia Bolívar, "The Fundamentalism of Dignity, in A Human Rights Message, ed. Swedish Institute (Stockholm: The Ministry of Foreign Affairs of Sweden, 1998), 29-30.
 Jean Dreze and Amartya Sen, India: Economic Development and Social Opportunity (Delhi: Oxford India Paperbacks, 1998), 11.
 Ibid., 14.
 Ibid., 15.
 Amartya Sen, "Food and Freedom, World Development 17 (1989): 769.
 Ibid., 780.