5. How much must States do to fulfil human rights? Flashcards
What is the duty to fulfil? What are its 3 key components?
a) The duty to fulfil is an obligation to establish a set of policies and frameworks to ensure the full realisation of the right.
b) It has 3 key components - to facilitate (create the enabling environment in which the market provides the social goods necessary for the realisation of rights including food, health services, education and cultural institutions); to promote (by providing adequate and timely information so that people can make the right choices for themselves and in their own interest); and to provide (in situations where people do not have access to essential goods and services due to the failure of markets to provide them. eg due to disasters or remote locations).
What governance mechanisms are required to support the duty to fulfil?
a) National strategies - multi year action plans with measures, accountabilities and timeframes
b) Framework laws - laws that define the institutions and procedures through which national strategies are developed, monitored and revised
In certain cases where, due to resource constraints, certain human rights cannot be fulfilled immediately, what approach must the State take?
a) The State must acknowledge that a commitment to poverty reduction is required to realise human rights
b) The State must immediately develop and implement a timebound plan of action which must outline how and when the State hopes to arrive at the realisation of the right
c) The plans must set benchmarks/targets and identify appropriate indicators so that the rate of progress can be monitored
d) The State must take corrective action if progress is slow
As fulfilment of certain rights can be a gradual process, prioritisation is required. What are some of the conditions imposed on the process and substance of prioritisation?
a) The process of prioritisation must involve effective participation of all key stakeholders in a way that is inclusive and equitable
b) Institutional mechanisms must be put in place so that conflicting opinions can be reconciled in a fair and equitable manner
c) Certain minimum levels of enjoying rights are required of States and those core obligations must be treated as binding and resources must be allocated to them before they are allocated to other priorities eg. people should not starve however full enjoyment of the right to food can happen progressively over time
What are framework laws?
a) Laws that define the institutions and procedures through which national strategies are developed, implemented, monitored and revised
b) These laws should also outline the role of NGOs and how they interact with government
c) Framework laws enable progress to be tracked and measured
d) Framework laws allocate specific responsibilities to government agencies and departments for implementing rights so they can be held accountable if they fail to do so
e) framework law is grounded on the democratic principles of transparency, inclusion, participation and accountability
What 3 types of indicators are used to measure the progress of human rights fulfilment?
a) Structural - the will of the State; adoption of legislation and procedures; communications and action plans reflecting the intentions of the State; the legal and institutional framework put in place
b) Process - the nature of the policies that are in place; the extent of the investment made/budget allocated; complaints filed
c) Outcome - like development indicators these measure the results eg. proportion of the population that is educated
What is the ‘core content’ of social rights?
This refers to the idea that there is a minimum core obligation to ensure essential levels of rights ie. a minimum set of requirements
The core content is also likely to include the right not to be discriminated in ones access; the right to have access to certain levels of that right sufficient to satisfy needs; as well as the meta right to have the State adopt a strategy ensuring that it moves toward the progressive realisation of that right
What is the public budget analysis approach to measuring ESC fulfilment?
This approach analyses the budget of the State with a view to assessing whether the ranking of priorities corresponds to the duty to move toward the progressive fulfilment of the right beyond achieving the core content.
There are 3 ratios used as proposed by the UN Development Program
a) the public expenditure ratio (% of national expenditure that goes into public expenditure)
b) the social allocation ratio (the share of social services like health, education and housing relative to total government spending)
c) the human expenditure ratio (the share of the GDP that goes into human rights concerns - this is expected to be around 5% if a country is expected to do well in human development
What does the ‘achievement possibilities frontier’ refer to?
This seeks to assess a country’s performance against the best performing country with the same level of development. It assesses as a value between 1 and 0, the extent to which a right is fulfilled by calculating a ratio of what has actually been achieved by the country versus what is the highest achievement possible based on the level that has been obtained by any country.
What is the difference between assessing human rights indicators/performance and development indicators/performance?
Human rights indicators need to assess the extent to which the State is fulfilling its obligations, the extent to which the State has been constrained by adverse circumstances as well as the extent to which right holders are deprived of their rights.
What are some of the principles guiding prioritisation?
a) one right cannot be regarded as more important than another however priorities can be decided on the basis of practical considerations
b) while prioritisation requires trading off rights, trade offs which result in inequity (eg. giving priority to educating the wealthy) are not acceptable
c) When prioritising one right, it is important not to reduce the resources dedicated to fulfilling other rights
d) Certain minimum levels of enjoying rights are required of States and those core obligations must be treated as binding and resources must be allocated to them before they are allocated to other priorities eg. people should not starve however full enjoyment of the right to food can happen progressively over time
e) the State should focus first on the poorest segments of society
f) the State should set priorities in ways which do not discrimintate
g) priorities should be based on participatory processes
What is the OPERA framework?
The OPERA framework is a way of measuring the extent to which a State is complying with its duty to progressively realise human rights obligations taking into account its capacity
Outcomes - the level at which human rights are enjoyed; the disparities in rights enjoyment between different groups; the progress made over time
Policy Efforts - legal and policy commitments of the State and the extent to which they are sufficient; the process that was adopted in their design and whether the process adopted the PANTHER principles (participation, accountability, non-discrimination, transparency, human dignity, empowerment and remedies)
Resources - the extent to which the State has dedicated enough resources and the process which determined resource allocation
Assessment - the extent to which policy efforts, resource mobilisation and spending are sufficient and to what extent deprivations may be the direct result of factors for which the State should be held genuinely accountable vs those which are beyond State control
