CHAPTER FIVE
5.1. DEVELOPING A RIGHTS-BASED PERSPECTIVE
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 sub-title discusses
The development of a rights-based perspective;
The intrinsic value of economic, social and cultural (ESC) rights;
The need to reflect on development policies and strategies;
The debate on the role of the state in ensuring ESC rights; and
The indivisibility of rights.
5.2. 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 person’s 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 government’s ban is that becak drivers have no place in
Jakarta’s 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 individual’s 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:
What does a "rights approach” mean? First, it means clearly understanding the difference
between a right and a need. A right is something to which I am entitled solely by virtue of being
a person. It is that which enables me to live with dignity. Moreover, a right can be enforced
before the government and entails an obligation on the part of the government to honor it. A
need, on the other hand, is an aspiration which can be quite legitimate, but is not necessarily
associated with an obligation on the part of the government to cater to it; satisfaction of a need
cannot be enforced. Rights are associated with "being,” whereas needs are associated with
"having.”
Second, a rights approach cannot focus on defending or attacking the form of government, on
making statements for or against the victim’s political inclination, or on the motivations-alleged
or actual-of those violating human rights, but rather on the rights being violated themselves and
the apparatus that makes the violations possible. In other words, a rights approach cannot attack
or support a particular type of political system, even though it cannot ignore its resistance as a
factor which blocks or favors the effective exercise of human rights . . .
Third, and as a consequence of the foregoing, a right is defined on the basis of dignity, that is to
say, on the basis of "being,” not "having” or the social or economic program of a party or a
government. A political program can-and should-be negotiated, where dignity is non-negotiable.
Political programs are necessary to honor human rights, but they cannot be substituted for them.
Political programs are subject to change in social and economic dynamics, and what is important
today may not be important tomorrow. The dignity of the individual is immutable; it is the same
all times and in all places, and its essence transcends cultural particularities. [1]
5.3. 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.” [2] 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
Being educated and healthy are valuable achievements in themselves, and the opportunity to
have them can be of direct importance to a person’s effective freedom.
[Link] Personal Roles
A person’s education and health can help him or her to do many things-other than just being
educated and healthy-that are valuable. They can, for instance, be important for getting a job and
more generally for making use of economic opportunities. The resulting expansion in incomes
and economic means can, in turn, add to a person’s freedom to achieve functioning that he or
she values.
3. Instrumental Social Roles
Greater literacy and basic education can facilitate public discussion of social needs and
encourage informed collective demands (e.g., for health care and social security); these in turn
can help expand the facilities that the public enjoys, and contribute to the better utilization of
available services.
4. Instrumental Process Roles
The process of schooling can have benefits even aside from its explicitly aimed objectives,
namely formal education . . . Schooling also brings young people in touch with others and
thereby broadens their horizons, and this can be particularly important for young girls.
5. Empowerment and Distributive Roles
Greater literacy and educational achievements of
disadvantaged groups can increase their ability to resist
oppression, to organize politically, and to get a fairer
deal. [3]
The effects of education and health are not necessarily
confined to the person who receives them.
Expansion of health and education can have influences
that go much beyond the immediate personal effects.
For example, one person’s educational ability can be of
use to another. The interpersonal connections can be of
political significance as well; for example, a
community may benefit generally from the civic attention it receives through the educated
activism of a particular group within that community. [4]
Sen also examines the role of food in fostering freedom:
The freedom that people enjoy to lead a decent life, including freedom from hunger, from
avoidable morbidity, from premature mortality, etc., is quite centrally connected with the
provision of food and related necessities. Also the compulsion to acquire enough food may force
vulnerable people to do things which they resent doing, and may make them accept lives with
little freedom. The role of food in fostering freedom can be an extremely important one. [5]
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.
The importance of this perspective arises partly from the fact that the metrics of gross national
product, real income, etc., may often be quite misleading about the extents of freedom that
people do enjoy and can build their lives [Link] in such elementary matters as avoiding
premature mortality, the statistics of national products (including those of food output) can hide
more than they reveal. It is possible for the national product per head and the food availability
per person to go up sharply without reducing mortality rates, sometimes accompanied by
increased mortality. [6]
Sen’s 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.
A Look at the Becak Drivers through a “Capability” Lens
At first glance, the outlawing of the becak appears to only affect the working status of the
becak drivers. However, an examination of their situation through the lens of Sen’s “capability
approach” reveals a much greater impact on the rights and freedoms of the newly marginalized
becak driver:
Having a job as a driver held intrinsic value in and of itself. The opportunity to work and to
carve out a position in society increased the driver’s effective freedom and overall quality of
life;
The self-employment of the driver enabled him to support himself and potentially his family as
well. This, in turn, increased his ability to take part in community life, and gain access to
necessary services and needs, such as adequate food, health care, etc.;
In workday life, the becak driver came into contact with many people, thus expanding his
knowledge and awareness of society as a whole. These interactions are essential to his
freedom in society and community; and
The ability of the driver to earn a living may well have affected his ability to organize, resist
oppression and create a more just life for himself and his family.
The Indonesian government’s decision to outlaw becak was taken without the effective
participation of those whose livelihoods depend on them. This not only deprived the becak
drivers of their ability to earn a living and the freedoms that would ensue from this, but also
denied them their voice, role and potential. It effectively “disappeared” them from society. A
rights-based approach to this situation would include encouraging and helping the drivers to
claim their right to a livelihood and the accompanying freedoms that are theirs as human
beings.
NOTES
[1] Ligia Bolvar, "The Fundamentalism of Dignity,” in A Human Rights Message, ed. Swedish
Institute (Stockholm: The Ministry of Foreign Affairs of Sweden, 1998), 29-30.
[2] Jean Dreze and Amartya Sen, India: Economic Development and Social Opportunity (Delhi:
Oxford India Paperbacks, 1998), 11.
[3] Ibid., 14.
[4] Ibid., 15.
[5] Amartya Sen, "Food and Freedom,” World Development 17 (1989): 769.
[6] Ibid., 780.
Questions
1. What is a rights-based perspective or approach?
2. Why ESC rights matter? How do you understand ESC and what do they include?
3. The role of the state.
4. ESC rights vs. development needs.
5. Real-life case: Jakarta’s becak ban. How is this a right issue? How does it violated the
ESC rights?
6. Amartya Sen’s “Capability Approach. Reflect upon what is capability, and how Sen
associated it with pverty, rights and freedom.
7. What are Sen’s Five Roles of Education & Health
8. Needs vs rights
9. Food vs freedom
10. The Capability Lens on Becak Drivers: Reflect upon what their work gave them,
what they lost and the failure of the state?