HUMAN RIGHT & SOCIAL JUSTICE

Transcription

1 MPUP 5301: GLOBALIZATION, SOCIAL PROBLEM AND POLICY LECTURE 7: HUMAN RIGHT & SOCIAL JUSTICE Prof. Wong Hung

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3 Global Social Policy Principles: Human Rights & Social Justice (Ferguson, 1999)

4 Actors in social policy National governments remain primarily responsible for social policy civil society and the private sector : growing importance biggest challenges to the achievement of social justice: these organisations accept their responsibilities to respect minimum standards in all their activities

5 Human rights agreements Human rights agreements provide a sound basis for addressing the responsibilities of all organisations State, civil society or private to ensure adherence to minimum standards of action.

6 Rights vs. Needs based understandings of social policy and the complementary roles these two approaches play in achieving the objective of social justice. The recent history of western social policy has largely been shaped by two different, but equally necessary, understandings of the nature of the person

7 Active agents vs. Site of wants Social scientists have understood individuals to be both active choicemaking agents and the site of wants, such as hunger, which require satisfaction. In the language of social policy, the former leads to consideration of rights while the latter prompts concern with questions of need (Dasgupta 1990).

8 Post-war: Right-based The concept of rights provided the basis for the post war international consensus which led to the foundation of the United Nations and the Bretton Woods institutions.

9 Since the late 1970s: Need-based the concept of needs has become predominant in debates about social policy. focused on questions about which, and whose, needs governments should meet. shift away from universal government provision to a narrower focus on the needs of the poorest and most vulnerable.

10 Need-based top-down technocratic process assumed that the beneficiaries of social policy are passive targets without their own objectives or interests. Social policies have been formulated and implemented through top-down technocratic processes.

11 Active agents + different actors In reality, policy targets have their own strategies and values the processes of policy formulation, interpretation and implementation involve a range of individuals and organizations with particular interests and goals.

12 Contemporary social policy Top down bottom up emphases on participation and partnership interventions to identify and meet the needs of the poor should start from the bottom up promote the involvement of networks and organisations from both civil society and government

13 Strategic vs. Practical Needs strategic needs -- applied to issues of agency and power in relation to individuals participation in social, economic and political processes. practical needs -- refers to everyday requirements for resources to ensure basic existence.

14 Concerns of contemporary social policy Empowerment livelihood security service provision social integration

15 Rights = Legitimised claims UN framework addresses social policy concerns in terms of rights. Concepts of rights prioritise the idea that individuals are active agents rather than simply having needs that require satisfaction. All rights, whether inscribed in international, national or local institutions, can be understood as legitimised claims.

16 Need based + Right based Needs based -- help to identify the resource requirements of particular groups Rights based -- provide a means of strengthening people s claims to those resources. Rights based approaches complement, rather than contradict or replace, needs based understandings of social policy.

17 Human rights are the claims which the international community, under the auspices of the UN, has agreed that people are entitled to make on their governments.

18 UN framework sets out people s agreed rights to claim resources which meet both their practical and strategic needs. As human rights are embedded in international law, states have obligations to meet agreed standards of action and provision

19 Applied to civil society Non state organizations do not necessarily have the same legal obligations to abide by these standards. definition and interpretation of human rights depends upon a process of international agreement which includes the involvement of civil society organisations, means that the UN framework has a legitimacy which reaches beyond the boundaries of purely legal requirements.

20 Internationally legitimised rights A human rights approach to social policy draws on these internationally legitimised rights as a means of strengthening the ability of vulnerable groups to claim social, political and economic resources to meet their needs

21 Founding charters of the human rights framework Universal Declaration of Human Rights (UDHR 世界人權宣言 ) ; International Covenant on Economic, Social and Cultural Rights (ICESCR 經濟 社會 文化權利國際公約 ) International Covenant on Civil and Political Rights (ICCPR 公民及政治權利國際公約 )

22 Citizen Rights & Gov t Obligation The UDHR, ICESCR and ICCPR set out the rights to claim social, economic and political resources and, Governments obligation to meet those claims.

23 Subsequent conventions detail the provisions which governments should respect in order to ensure that particular groups can overcome barriers to claiming these resources.

24 Subsequent conventions Convention on the Rights of the Child (CRC); Convention on the Elimination of Discrimination Against Women (CEDAW) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Convention Against Torture (CAT).

25 Indivisibility of human rights Social and economic rights must be given the same weight as civil and political rights. Rights to health, for example, cannot be realised if people are unable to exercise democratic rights to participation in decision making processes about service provision.

26 Indivisibility of human rights Equally, people cannot participate in decision making processes if they do not have the health or general economic well-being to do so.

27 Objection states have different economic capacities, economic and social rights cannot be universally implemented (Mishra 1998).

28 Respect for minimum subsistence The work of the Committee on Economic, Social and Cultural Rights has addressed this issue. States are obliged, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all.

29 Other rights progressively realised The state has obligations to respect, protect and promote social and economic rights. This means that the state is required to ensure that rights are enjoyed in practice as well as law.

30 State obligations elements of conduct and result. result = internationally agreed targets, including those outlined in Copenhagen. indicators of well-being to measure the extent to which governments have met their responsibilities to ensure the just distribution of resources.

31 Obligations of conduct to draw up, and implement, plans of action or policies which could reasonably be expected to lead to the enjoyment of given rights Maastricht Guidelines on Violations of Economic, Social and Cultural Rights:1997.

32 People are claim bearing individuals People with their own goals and strategies. promotion of participation as this is a prerequisite to making all other claims (Hausermann 1998).

33 Objectives achievement of equality and social justice - the fair distribution of social and economic opportunities and resources. There are, inevitably, conflicts between the promotion of individual agency and the realisation of these social outcomes (Dasgupta 1990). It is the responsibility of the state to ensure that individuals claims to rights are met in relation to these overarching goals (Goonesekere 1998).

34 Human rights framework places individual agency and participation within a context of state responsibility for realising the rights of all citizens without discrimination.

35 Holistic Approach Its application, however, does not provide over simplified answers to the complex questions which these conflicting demands may produce. On the contrary, it highlights the necessity to take a holistic approach to the complexities of social, economic and political relations.

36 Conflicting principles rights to self determination in reproductive decision making and government obligations to meet the social and economic rights of all citizens.

37 long and on-going debate The question of whether there are any circumstances which would allow the social good to take precedence over women s rights to choose is one which has fueled a long and on-going debate.

38 Inclusion in the decision making process Rosalind Petchesky answered that the only circumstances were when women had been fully included in the decision making process which determined the policy priorities

39 Observe women s right decrease in fertility A subsequent response has been that, in many cases, observation of women s reproductive rights by family planning programmes improves the up-take and efficient use of contraceptives and, consequently, is more likely to lead to a decrease in fertility levels (Hardon 1997)

40 Rights based approach Any organisation has to consider carefully how to negotiate conflicting claims on government in order to best promote equality. If social justice is the goal, however, the starting point must always be consideration of the rights of the poorest and most vulnerable.

41 Power differentials The power differentials between public agents and people mean that their practices often reinforce, rather than redress, social and economic inequalities between citizens. If progressive realisation of human rights means only that the claims of the poor and vulnerable to available resources are strengthened it would more than make a difference.

42 UN agreements on social policy issues

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44 Division of Rights Hartley (2008) argued that the encompassing concept of welfare rights that is contained within the Social Policy literature and which has developed from TH Marshall's distinction between civil and political rights on the one hand and social or welfare rights on the other provides a clearer and more explicit basis for an international call for the progressive development of social policies

45 Human Right All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. -Article 1 of the United Nations Universal Declaration of Human Rights (UDHR)

46 Basic rights and freedoms civil and political rights, such as the right to life and liberty, freedom of expression, equality before the law; social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.

47 Universal Declaration of Human Rights (UDHR) a non-binding declaration adopted by the United Nations General Assembly ] in 1948, The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behavior of states and press upon them duties to their citizens following the model of the rights-duty duality.

48 Citizenship and Entitlement (Marshall, 1950) The most frequently used concept of entitlements is derived from T.H. Marshall s concept of citizenship. Marshall has described the development of social citizenship, that is, the right of all citizens to services provided by the welfare state. Marshall (1950) distinguishes three kinds of citizenship: civil, political and social. The universalistic ideologies of liberal democracy made it possible for those excluded from citizenship to argue that the barriers to their status as citizens should be removed.

49 Crompton (1993) Many of the citizenship gains of the population at large are the outcome of class conflict. Subordinated classes have successfully gained the status of citizenship through these struggles. However, citizenship gains were largely achieved on behalf of a white, male working class. The rights of social citizenship, in particular, were modelled on patriarchal family structures.

50 Excluded fight for citizenship Excluded groups like women and blacks also fight for their citizenship through their own movements, separate from the class movement. Crompton suggests that the struggles to gain the status of citizenship by women and blacks are crucial in understanding their contemporary situation.

51 Personal freedoms rather than redistributive issues However, not all citizens de jury or de facto enjoy the same entitlements. Some of the citizens are excluded from the entitlements due to the policies imposed by the state. The division and exclusion of citizens is a main theme of discussion in the underclass debate.

52 Social Justice David Miller identifies four Principles of Social Justice: Equal citizenship Entitlement to a social minimum, Equality of opportunity; and Fair Distribution

53 Amartya Sen The individual rights and freedom should be linked to wider conceptions of justice. In this vision, individuals and collectives (communities, governments, business) share the obligation to deliver human rights, which reflected in the Millennium Declaration. The Declaration is remembered for the MDGs, but located in a more general framework of rights and justice, via freedom, solidarity, tolerance, respect for nature and shared responsibility (ODI, 2008)

54 John Rawls solve the problem of distributive justice by utilising a variant of the familiar device of the social contract. Principles of justice are sought to guide the conduct of the parties. The resultant theory is known as "Justice as Fairness", from which Rawls derives his two famous principles of justice: the liberty principle and the difference principle.

55 The First Principle: Liberty Principle The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property and freedom from arbitrary arrest. However, he says: Liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle.

56 First principle is prior to the Second principle The first principle may not be violated, even for the sake of the second principle, above an unspecified but low level of economic development (i.e. the first principle is, under most conditions, lexically prior to the second principle).

57 The Second Principle: Difference Principle Social and economic inequalities are to be arranged so that: 1. they are to be of the greatest benefit to the least-advantaged members of society (the difference principle). 2. offices and positions must be open to everyone under conditions of fair equality of opportunity

58 ILO: Constraining the Anarchy of Power (Adam, 2007) Alongside stating a commitment to promoting social justice as a precodition for universal peace, the preamble to the Constitution of the International Labour Organization (ILO), drafted in 1919, makes it amply clear that the mandate of the organization is positioned within a context of competition

59 ILO emphasises [ ] the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries. Minimum standards in international law were to give this competition a framework and limits within which to operate and thereby prevent social dumping. Proceeding from the core tenets of the Declaration of Philadelphia (1944), labour is not a commodity, freedom of expression and of association are essential to sustained progress

60 Tripartite management structure A legacy from the preceding League of Nations age, the ILO was the first organisation to become part of the new United Nations system and the first UN specialised agency. It now has 177 Member States and a tripartite management structure which is unique within the international system and allows for national delegations to include, alongside two government representatives, one representative each of employers and workers organisations within that Member State.

61 International labour standards The ILO s main task is to establish standards and monitor compliance with them. The basis and core of the ILO s work in this field is its body of international labour standards (also abbreviated to ILOLEX), which currently incorporates 376 individual standards, more specifically 184 conventions and 192 recommendations. Far from being indiscriminately imposed rules and regulations, these international labour standards are the outcome of a democratic process engaged in by representatives of government, business and unions from the Member States around the world.

62 Compromise They are finally adopted by the International Labour Conference, the supreme decision-making body of the ILO. The standards are the result of a process during which the interests of the various Member States and their respective employer and employee representations are reconciled; they are thus in the nature of a compromise reached out of a situation of conflicting interests between nations and conflicting interests between capital and labour.

63 Status The international labour conventions have the status of international treaties and have to be adopted by a two-thirds majority of the delegates to the International Labour Conference. They are legally binding once they have been ratified; prior to ratification they have the status of objectives. Recommendations are non-binding technical or policy guidelines, often accompanying a convention, and are not subject to ratification.

64 Ratification Ratification is the act which commits a Member State to implement a convention in national law and report regularly to the relevant ILO monitoring mechanism. At the request of the Governing Body, a Member State may be obliged to report on matters falling within the scope of a particular convention even if it has not ratified that convention.

65 Universality The international labour standards have universal status, i.e. all states, irrespective of their level of economic development or social and political system, should be capable of ratifying and implementing them; because of this universality, International labour standards are often drafted to allow for a certain amount of flexibility and moreover have a promotional thrust insofar as they oblige states to do everything in their power to bring about improvements.

66 Implementability Important for the clout of the ILO s international labour standards are their relevance, their universality and their implementability. The last feature is the decisive characteristic, for standards which cannot be enforced and supervised are toothless, a nice idea bereft of genuine impact.

67 International supervision mechanism considered exemplary in terms of its effectiveness and efficiency and provides a comprehensive overview of thousands of documented cases. Essentially it is a complex mechanism of interaction with the Member States involving periodic national reporting (Article 22), comments by the social partners, study by an international Committee of Experts, deliberation in special committees of the Governing Body (e.g. the Committee on Freedom of Association), and finally deliberation by the International Labour Conference itself..

68 Alleging non-compliance Article 24 admit representations from an industrial association of employers or workers alleging noncompliance with ratified conventions the so-called non-observance of conventions procedure and the Governing Body may communicate any such representation to the governments concerned. Under the provisions of Article 26, a complaint may also be filed by a Member State government against another Member State government. The Governing Body then takes decision, on the basis of a report drawn up by a Commission of Inquiry, on what measures need to be taken.

69 Fundamental Principles and Rights at Work The ILO Declaration on Fundamental Principles and Rights at Work, together with its four underlying principles, has earned broad international recognition and has subsequently been incorporated into various international agreements, declarations and guidelines (such as OECD guidelines and the UN Global Compact).

70 four underlying principles freedom of association and protection of the right to collective bargaining; elimination of forced labour; effective elimination of child labour; and elimination of discrimination in respect of employment and occupation.

71 Public International Law A special, augmented reporting procedure which is equally mandatory for Member States which have not fully ratified the core labour standards, and the InFocus Programme on Promoting the Declaration have in turn added further weight and given a binding character to the ILO Declaration on Fundamental Principles and Rights at Work. The core labour standards therefore undoubtedly qualify as belonging to the the ius cogens of public international law; they amount to more than merely soft law.

72 ILO s Decent Work programme has also meanwhile met with extensive political endorsement as both a global and a national goal, by its support from the UN Millennium Summit (September 2005) and from the EU Commission. In October 2000 the ILO itself launched a Decent Work Pilot Program and since 2005 has been applying the lessons learned thereby in Decent Work Country Programs in its Member States.

73 implementation it is a truism that implementation of the international labour standards on the ground depends on the readiness of the respective government to implement them, on the available political will, on democratic participation within society, on a country s understanding of social policy, on its political culture.

74 Social dialogue it is not only a country s political culture which counts, but also the respective strength or weakness of the social partners: employers federations and trade unions. In many countries the latter do not enjoy the freedom rights, the degree of unionisation and the organisational and political competence required to enable them fully to play their role within the social dialogue and defend the interests of their working and job-seeking constituencies.

75 Global power relations The ILO and the system of international social and labour standards thus represent an expression and mirror-image of global power relations and are therefore greatly exposed to the strains of changing dynamic forces.