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Post No.: 0812provide


Fluffystealthkitten says:


Continuing on our journey towards understanding International Human Rights Law (IHRL) better, where in our last stop we learnt more about the obligations to respect, protect and fulfil certain rights (Post No.: 0799) – we will now look at the duties to facilitate, promote, provide and realise as best as possible certain rights.


Each State must take steps forwards as expeditiously as possible – both individually and through international assistance and cooperation, and by using the maximum of its available resources – towards progressively realising the full economic, social and cultural rights owed to all. States must therefore build hospitals and provide medicine, build schools and provide at least primary education, build houses and provide shelter, and provide food in some cases, and more, in order to fully realise and fulfil their human rights obligations. In principle, it shall be sufficient for the State to create an enabling environment.


In those exceptional circumstances where individuals are incapable, through no fault of their own, of gaining access to the social goods that are essential to their enjoyment of human rights, the State should provide such goods directly. These rights are already understood to be obligations of means because they require public investment and there may be competing priorities. This means that, for poor countries, some rights might not be realised immediately.


The duty to facilitate aims to create an enabling environment in which the market provides the social goods necessary for the realisation of human rights (e.g. water and food, health services, homes, schools and cultural institutions, to adequately satisfy the right to food, health, housing, education, etc.). This entails building infrastructure projects with adequate public investments, linking producers to consumers, having trade policies that facilitate the workings of the market, and so on, so that the market can provide outcomes that’ll result in the enjoyment of human rights.


The duty to promote requires the State to provide individuals with adequate and timely information to enable them to make good choices for themselves that are in their own best interests (e.g. public information health campaigns).


The duty to provide addresses situations when individuals don’t have access to essential goods and services due to a failure of the markets to provide them (e.g. providing food aid following a natural disaster, or public healthcare and schools in areas where no accessible private services are available). It’s not exactly the same thing as reducing poverty but they’re naturally related. So where or when the markets fail, the State must step in to do its best to ensure the fulfilment of human rights. This was demonstrated during the pandemic with fur-lough schemes, for example.


States must, in every case, prove that they had adopted adequate measures to fulfil a human right, with resource constraints being only one consideration i.e. it cannot always rely on resource scarcity to avoid its responsibilities.


A State may choose to prioritise trying to fulfil certain rights over others first on practical grounds. Although discrimination is prohibited in principle – in practice, States should sensibly prioritise providing basic services for the poorest, most vulnerable or marginalised first. Each individual should not be deprived of essential goods or services that keep them physically and emotionally safe and protected from permanent social exclusion, such as basic shelter, adequate food, water and sanitation, essential medicines, and access to primary education. Some form of welfare state therefore appears to go paw-in-paw with fulfilling economic, social and cultural rights for all.


Democratically-determined policies at the national or local level, that involve representatives from all relevant segments of society (especially the most deprived or disadvantaged segments in society), government accountability, and framework laws that define the various institutions and procedures through which these national strategies are to be adopted – are the ideal way to fulfil human rights. Relatedly, when foreign aid is offered to another State, the donating State shall not impose conditions or requirements that clearly conflict with the democratically-expressed developmental choices of the receiving State.


But disagreements persist as to how fast we should expect economic and social progress to be? How should we measure progress? Assessing a State’s human rights performance is more than about assessing its development performance (in terms of life expectancy, literacy rates or school attendance rates, or levels of malnourishment) because it requires accountability. External observers (e.g. civil society or human rights bodies) should be able to disentangle incapacity from unwillingness to make progress.


To this end, we could use structural indicators that measure the goodwill, intentions or commitments of a State (e.g. the ratification of IHRL treaties and acceptance of international monitoring bodies), process indicators that measure its budgetary commitments (e.g. towards providing food, housing, health and education), and outcome indicators that measure its outcomes (e.g. poverty rates, vaccination rates, the percentage of girls and boys in primary education).


If a State is failing then we need to know if it’s because of a lack of trying (policy and legal efforts) or because of the circumstances, lack of capacity or resources? If the structural and process indicators appear good but the outcome indicators don’t then it suggests that adverse circumstances are the reason why a State is struggling to fulfil its human rights obligations – in which case the State might need to modify its policies or seek support from the international community.


In terms of protecting people from harm – what may limit a State’s means to protect include budgetary considerations (e.g. for providing sufficient policing), the freedom of individuals (individuals may act unpredictably under their own volition and catch the State by surprise, even though the State should still prosecute any criminals and provide remedies to any victims afterwards and learn from such events for the future), and conflicting human rights (e.g. protecting a child from abuse within their family must also take into account the respect for family life and privacy; or an organisation, under the freedom of association, that excludes certain members from the association because it wishes to preserve a particular identity, such as an ‘old boys’ club’ that excludes females or a religion that excludes homosexuals, must also take into account the freedom from discrimination; or the freedom of expression of journalists must also take into account protecting the privacy rights of celebrities).


An individual can choose to waive certain rights (e.g. when they choose a lifestyle that’s sub-optimal for their health; or when they enter contractual relationships that sacrifice certain rights; or when an employee or third-party signs a non-disclosure or confidentiality agreement in return for limiting their freedom of speech). The State must respect a diversity of ethical worldviews (moral pluralism) thus it cannot stop individuals from freely choosing a lifestyle that might not be in their best interests. However, the State may still act ‘paternalistically’ if the individual made their ‘free’ decision under undue pressure (e.g. when exploited by the financial rewards promised; or when an individual is suffering from vulnerabilities such as suicide ideation or an addiction that might affect their capacity of judgement) or when an activity is dangerous for their health and possibly life-threatening.


It’s a complex issue but the State may intervene to protect individuals against the consequences of their own behaviours if there are strong public policy reasons to do so, such as the social distancing, face masks and maximum group size measures imposed during the pandemic. (Well the State’s duty to protect citizens is even more obviously an obligation when people’s own behaviours may harm the rights of others, such as in the clear case of a contagious disease.) So the effects of an individual’s choice on the wider society must be taken into account, even if a choice appears to be purely ‘self-regarding’ (e.g. limiting the recourse to voluntary euthanasia or the use of addictive substances).


So can the State always leave an individual at the mercy of market forces? Waivers of rights arise frequently in employment contracts and it’s usually the case that those with the greatest purchasing power can essentially bribe others with financial rewards in return for agreeing to restrictive contracts. Worse still, those who are poor and desperate for work might be coerced into agreeing to renouncing certain rights.


A company may impose restrictions on the rights of its employees as long as the company has legitimate reasons for doing so and the employees consent to them. Consent alone doesn’t make something okay – there needs to be a legitimately necessary reason (e.g. professional athletes might be compelled to agree to not take up activities like motorcycling or hang-gliding in order to reduce the risk of them sustaining off-field injuries that’ll impact their ability to perform at their sport). The type or size of the incentive isn’t a good enough reason – no amount of financial incentive is enough to justify an unnecessary waiver of rights (e.g. clauses that say that employees cannot join a trade union). There are limits to the commodification of workers’ rights.


Businesses may claim that without them there’d be no jobs and people would have no money. But employees could equally claim that without them there’d be no labour and those businesses would collapse. Who has the greater power will depend on who has the better alternative options i.e. if there are too many applicants for the number of vacancies then employers hold the power, but if there aren’t enough adequately skilled persons who can do a particular job then the applicants hold the power.


More often though, the power is imbalanced in favour of businesses, hence human rights courts have a crucial role in protecting workers from that abuse of power. It’s generally harder for the State to justify abstaining from intervening in market relationships than from family relationships due to the obligation to respect private and family life. However, aren’t most inter-individual relationships somewhat imbalanced? And what is and isn’t allowed when it comes to trying to induce individuals to renounce their rights?


Conflicts of rights are another difficult and delicate issue in human rights. In order to protect human rights, the State will sometimes be led to impose restrictions on other, conflicting, human rights. Where rights happen to conflict, human rights courts and expert bodies have typically deferred to the decisions of States (or, in domestic contexts, the legislature or the executive), and have afforded them a broad ‘margin of appreciation’ or leeway to decide for themselves. Especially in international contexts, the State in question will be the closest to the situation at hand to understand the factors in play. It’s also because it’s not the general purrview of the courts (judiciary) to decide how to best ‘balance’ the interests of conflicting and incommensurable rights.


Generally, the obligation to respect takes priority over the obligation to proactively protect or fulfil. If two rights clash, the option that’s most ‘hands-off’ is typically preferred (e.g. a biological mother’s right to remain anonymous will likely take priority over an adopted child’s desire to find out who her/his biological mother is).


There’s another way to break a deadlock – the doctrine of ‘practical concordance’ proposes that a compromise should be sought to ‘optimise’ each of the conflicting rights with the other, as opposed to completely sacrificing one for the other. It’s based on a diminishing marginal utility of rights i.e. the more of a right you have, the supposedly less that having even more of it will bring extra utility to the rights holder.


The problem remains though – how do we convert things that aren’t objective into numbers in order to work out the appropriate ‘rate of diminishing marginal utility’?


Meow. Human rights scholars will likely still be debating such issues for a very long time…


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