What Are We Fighting For?

What we are fighting for?

We are fighting for full realization and legally binding protection of the human rights promised in the nine core treaties and optional protocols drafted between 1948 and today. However, we do so with little expectation that the governments as they exist in the year 2017 will succeed in implementation them. It is not a question of blame but realpolitik. We are fighting for the total dismantlement of the World System to be replaced by political entities that are smaller, more decentralized, far less capable of constant warfare and controlled by the communities which constitute them.   

The Human Rights are a baseline of political demands not an end goal in themselves. The World System and the oligarchical collectives that domineer it are to be rendered helpless via the emancipation of the popular masses of humanity.

The historic process of United Nations Human Rights treaty implementation has been from the beginning national interest driven, highly politicized and hegemon directed. Since the founding conferences leading to the 1948 Universal Declaration of Human Rights (UDHR) there have been ceaselessly contentious debates on the subject of “real rights”, “progressive implementation” and the responsibility of Nation States to implement frameworks of national law and economic practice to ensure these rights for their respective citizens. It has long been understood that that the ratification and practical implementation of this international legal framework if fully binding might hold hegemon powers accountable for their global economic manifestations and hold all 206 States accountable to those within their borders for civil, political, economic, social and cultural rights.

After the 1966 division of rights along the ideological parameters of the Cold War into the International Covenant on Civil & Political (ICCPR)and the International Covenant on Economic, Social and Cultural Rights (ICESCR); there emerged an equally implementation useless debate until they were ratified in 1976. Throughout the codification of the nine subsequent Rights Instruments and their Optional Protocols; it has argued that these was a concept of “real rights”, a hierarchy of importance to attain them and most importantly vast disagreement as to what degree were the state powers were accountable to uphold their treaty obligations.

With the 1989 fall of the Berlin Wall marking the end of the Cold War and the economic collapse of the Warsaw Pact’s command economies; Human Rights have been divested of this imposed ideological division. A new tide of international jurisprudence has begun to address the critical issues of implementation, accountability, and state responsibility. However, it is the victors of the Cold War conflict that championed the notion of Civil & Political rights to be established before and above Economic, Social and Cultural obligations.

The issue of “rights validity” is not an interesting point to those that have the fruits of neither covenant after all these years of high minded diplomacy. Most of the world population is still quite both economically impoverished and politically unfree. They can’t even consider rights, they are meeting needs. There is no real differentiation to be made in hierarchy or the realization of the CPR over the ESCR if one truly believes in the primacy of the UDHR distilled and expounded into the subsequent treaties. It has proven highly time consuming and frustrating exercise to utilize Human Rights as theoretically binding toward anything beyond a populist mobilization maneuver. To that end both lawyers and NGOs have used them admirably in recent years to internationalize struggles for social justice via a rhetoric divested of class warfare. Nation States; hegemon, developing and development dependent alike have no national interest in this “human rights enterprise” succeeding, and they never have. A development dependent nation, or a developing one may like the idea of hegemon powers bound by treaty to aid their “right to develop”. That does not mean they all wish to institute the civil and political duties and open up their societies to real democratization. The United Nations and the vast web of committee bureaucracies it has generated has been and shall remain a vast rhetorical platform for a diplomatic jet set and an international legal technocracy to haggle over documents as facts on the ground remain largely unchanged for the bottom billion, and surely with a “generous” $2.50 a day poverty line we might be so bold as to extend the number of those wretched teeming masses to around 3 billion impoverished soul.

It is not a question of whether CPR is more valid, or “real” than those identified in the ESCR; the issue is more as to who utilizes these rights and to what practical end. Since no international body can guarantee or enforce implementation of either the CPR or ESC rights; it is the strategic imperative of the people to select appropriate rights based frameworks for their particular localized struggle. Born of that perspective, there are no “real rights” only appropriate vehicles to legitimize grassroots struggle under the legal architecture of these treaties.

The basis of a “Real Rights” would be founded in a given system’s ability to enforce it. Lacking such a system all rights are equally intangible yet simultaneously serving quite well as an international list of demands for the masses impoverished under the current state system. These rights real or imagined will not be granted in courtrooms. Their existence bears bright light on the hypocrisy of the international actors that have taken them on as a transparent charade for conducting a global poverty business.

There can be no “Real Rights” without real defense and enforcement.

It is a gross mockery of the UDHR’s thirty founding articles that a full sixty-six (66) years have passed since the signing of the original document and so few on this earth have much to show for this largely rhetorical enterprise. Since the time of Eleanor Roosevelt’s steering committee and the creation of the United Nations Charter; since the 1966 legal dualism of the ICCPR & the ICESCR; there are no less than nine separate rights instruments which have been brought into effect alongside the International Bill of Rights and the various Optional Protocols. There exists a full scaffold of non-binding legal apparatuses; a quickly emerging body of precedent for national utilization in national court systems and a wide range of UN sponsored and NGO oriented agencies directing campaigns. They are the basis of the new South African constitution. The issue of “Real Rights” is ridiculous at this stage while there are still no truly valid enforcement mechanisms. There are numerous grievance platforms, but no international legal mechanism to sanction rights violations except in the form of “gross-violations” in the form of ICC war crimes. Hegemon powers are beyond the reach of any Human Rights tribunals. We should not expect that to change anytime soon. There must be a legitimate appreciation that most of the world’s working class and poor only have the vaguest idea what these rights even contain. It is not about legally expanding definitions and generating new international frameworks. That has obviously failed. A better understanding of “real” v. “constitutional” v. “imagined” i.e. first generation civil political as opposed to second and third generation economic social should be grounded in that common people know neither. If the rights cannot be defended and if no pressure can brought on governments to enforce them, they are worth only the idea their words embody and the paper upon which they are printed.    

The Universal Declaration is the basis for all subsequent covenants and treaties and within it are the benchmarks for establishing “Real Rights”.

Contained within its thirty articles are the basis for both the negative (freedoms from) and positive rights (duties to) frameworks. As this essay rejects the utility of future jurisprudence or U.N. negotiation to meaningfully advance rights I present the argument that anything found in the UDHR is a “Real Right”; anything extrapolated into ICCPR or ICESCR is a “right’s duty” any signatory government can be held responsible to deliver, and anything signed off in other HR instruments is a “rights responsibility”. The second generation rights are those found within the dual covenant documents of 1966. Everything else, i.e. the third generation is specific supporting claim to what has been previously promised.

In the period between 1948 when the UDHR was proclaimed until the time that ICCPR/ICESCR into normative effect in 1976; the original UDHR was the “international standard of achievement” and the foundation of the divergent 1966 Covenants.

Though many would argue that economic redistribution is a noble imperative; he believes that “no assertion of rights” will change the current economic calculus, and that civil political (negative rights) have to be objective and not up for any deliberation. Since capabilities obviously greatly vary, and governmental cost for negative rights is lower, he argues this a natural basis for first priority and elevated status as “real rights”. He also argues that keeping civil political rights as the primary standard takes a position that is legally defensible, while ESCR are much too subjective to win in a court of law.

Our response to that specific argument is that the courtroom should not be viewed as the primary arena of Human Rights attainment.

No one can be politically free who is completely economically dependent and impoverished. But our break with left is this; we are not after control of the means of economic production, we are after control of the means to our respective community’s development. All of the Amartya Sen connotations of what realizing our capabilities could mean in relation to our poverty, our freedom, our human happiness and our rights.

It’s not a question of negative/positive rights but instead duties, responsibilities, and accountabilities. Both sets are threatening to entrenched elites. The CPR because they are basis for protest, democratization, mobilization and the ESCR because they impose duties that are not normative payouts for government.

DM Davis summarizes three arguments in his brief to exclude the so-called second and third generation rights from the South African constitution. First, is the difficulty of adjudication and enforcement of ESCR rights. Second, the conceptual difference of negative rights being freedoms from are far easier to enforce and grant than economic entitlements to. Thirdly, the impracticalities of a universal economic expectation being met.

We would wholeheartedly agree that if one was to accept the currently limitations of courts and governments to implement the agreed on rights as is, it would be easier and more practical to assure first generation CPR to those of the ESCR which if in place would fundamentally alter class and political dynamic in most of the world’s countries. Davis makes a series of valid points that the South African constitution, as high minded as it may be has not yielded socio-economic progress via adjudication around rights. I however refuse to accept again that we view rights attainment within the realm of the Machiavellian or the real-politic.

If human rights practitioner  Ayer Neier’s argumentation rests on prioritization based on raising an objective international civil political standard and DM David’s brief rests on applicability or rights jurisprudence to economic reality, then I argue a third way. It is not about accepting current frameworks as progress or rejecting the use of law. It is about fundamental understanding of the minds of the poor.

They do not differentiate between freedom and opportunity. They have neither.

All Real Rights are therefore dependent on both the CPR and ESCR, they reinforce each other. Instead of viewing them as legal tools to leverage inefficient states we must see them as rallying point to remove existing governments, and replace them with those that can guarantee and protect all Human Rights without a hierarchy to them.

The only value Human Rights now have is to give us a common language in our respective liberation struggles. A list of collective demands.

With that in mind we refer the question of “Real Rights” back to the question of do the poor care? We think they do not know. They were never asked. They did not partake in the length deliberations or conferences to draft these rights nor were they asked to elect the political leaders who signed off on them. With over 1/3 of the Human race living in some degree of poverty I think it useful to measure the social merit of an instrument in relation to its liberatory capacity for the most impoverished. In that regard I conclude that real rights are based on three criteria. Their ability to be enforced and defended, their articulation in the UDHR and supporting instruments, and their merit in linking the civil political directly to the economic and social.

We, like billions of other human beings were not party to the creation of these documents, nor do we believe that the act of codifying them was the act of granting us real rights, real protections from government and the elites. We embrace them as a framework because they are consistent. As a baseline they are an adequate tool to begin to understand our collective demands for human development and freedom.  Suffice to say they will be won with struggle and via building up the global resistance.  Not more banal conferences, frameworks and pedantic liberal debates on the fate of the long-suffering poor. Before we speak of rights in depth let us analyze our needs.

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