|Gender Justice, Development and Rights: Substantiating Rights in a Disabling Environment. Report of the UNRISD Workshop, New York, 3 June 2000 (UNRISD, 2000, 12 p.)|
Civil society organizations have played a decisive role in bringing rights into the international limelight. The organizations that focus on women have been particularly active in promoting the rights-based approach. As a result of the lobbying efforts of these groups, the strengthening of human rights has become a crosscutting focus of the United Nations.
But the shift in development priorities from needs (welfare) to rights (empowerment) evokes many questions. What factors lie behind the change in rhetoric? What does a rights-based strategy mean to its different proponents across the political spectrum? Why are needs and rights being set against each other when in fact they are intimately related? What are the enabling conditions for the universal realization of rights? To what extent and in what ways does the delivery of social welfare at the turn of the century reflect a rights-based approach?
Rethinking social policy
In a significant number of countries the formulation of formal rights has not been matched by an improvement in the quality of life of the majority. Financial crises stalked the 1990s and the growing gap between rich and poor countries and peoples casts a shadow over the visions of the decade as put forth, for example, in the context of United Nations summits on social development, women, population and the environment.
At the same time, there has been a global shift in the consensus over the role of the state in welfare provision. This has often entailed the downsizing of public services and the reallocation of service delivery to commercial interests, charitable groups, NGOs and families.
The presentation on Chile argued that this devolution of responsibility to civil society for managing welfare and development projects is double-edged. On one hand, it is associated with a renewed emphasis on participatory approaches that have the potential to give a voice to the marginalized and the poor in processes of development planning and decision making. Many women active in NGOs and grassroots organizations have applied these approaches, with positive results. On the other hand, a disabling macroeconomic environment makes the substantiation of rights very difficult. Even in societies where democratic institutions and social solidarity principles prevail, and where womens and other civil society organizations are strong, global economic constraints are making it very difficult to carry out the social justice agenda. As the state devolves responsibility for welfare delivery to non-state actors, there is a danger of even further reliance on women to perform low-paid or unpaid care work as NGO workers and members of families and communities. Implicit in the claims for more efficient social spending, through a partnership of state and civil society organizations, is the notion that communities and households can take up the slack where the state no longer makes investments. Ultimately this means that women, who have traditionally been responsible for the well-being not only of their family members but also of their communities, have to pick up where the state leaves off.
Despite their contribution to the survival of families in many poor urban neighbourhoods, NGO involvement in the delivery of urban services can accentuate the gender division of labour, leaving the NGO workforce overworked and underpaid in various voluntary, flexible and poorly paid jobs. At the same time, women also make up a significant proportion of those engaged in income-generating activities that are unregulated whether as reluctant entrepreneurs or as workers in restructured industries heavily reliant on subcontracting.
The models of social service delivery that are currently in vogue reflect a distinctly residualist approach, focused as they are on targeting given resources to the needy the poorest of the poor who are assumed to be politically passive. But how legitimate is it to privilege some (such as female heads of household) and not others in a context of generalized poverty and lack of opportunities? Is a two-tier system (with private services for those who can pay, and public services for the poorest) sustainable, both politically and financially? Women working in the maquilas, for example, fall through the cracks of Chiles targeted social programmes because they earn an income and are counted among the economically successful. These women and many others in similar jobs, it is assumed, are able to purchase welfare services for themselves and their dependents for a fee. But among the well-known adverse effects of this two-tier system, especially (but not exclusively) in developing countries, are the reduction of public sector programmes, on which working people and people in poverty depend; rising unemployment; the inability of the state to provide even minimal safety nets any longer, due to the shrinkage of public revenues; and increasing poverty and gaps between rich and poor. Privatization itself directly contributes to poverty. As one of the speakers noted, in India, the increased cost of medical care is the second most common cause of rural indebtedness. Surveys conducted by both transnational womens NGOs and United Nations agencies provide ample evidence that current patterns of privatization are not providing adequate health services for all who need them or assuring the realization of peoples health and reproductive rights, much less the right to the highest available standard of health care for all.
Implicit in this reconceptualization of the role of the state in welfare delivery is the rejection of a notion of rights as entitlements based on principles of universality which, while always an imperfect achievement, did nevertheless guide social policy in the postwar years. Moreover, the residualist approach carries important long-term implications for citizenship. Although recipients may retain the right to vote and hold a national passport, in the broader sense of citizenship they often occupy a de facto secondary societal position, regarded by fellow citizens as non-contributing and even parasitic (receiving gifts from NGOs). So it seems appropriate to ask: Where are the rights of citizens and in what sense are women appearing as right-bearers in the emerging models of social service delivery?
Other concerns were raised about the degree and forms of accountability that civil society organizations might have in regard to the communities they serve. While the participatory approaches that many NGOs employ have the potential to give a voice to the marginalized and the poor, it cannot be assumed that programmes with a participatory design are actually participatory in practice. How do communities come to identify and prioritize their demands? How do markets work under outsourcing and partial privatization in terms of providing social services that can meet peoples needs? These are critically important questions, and ones for which there is a dearth of good, empirically-based answers.
What is needed beyond legal analysis is political analysis: How can rights be made operational? This in turn poses the question of who has the responsibility of fulfilling rights the state, the NGOs or the private sector? Rights without remedies are insubstantial. If economic and social rights are legitimate, how can they be made operational? How can an appropriate space where legitimate claims are acknowledged and acted on be created? Who has the responsibility to protect and fulfil rights to health care? This question, which is one of the most contentious at the present juncture, was addressed by several speakers.
On the neoliberal agenda, the role of the state in poverty alleviation is limited to the provision of selected social services, such as basic health and education, and safety nets for the particularly vulnerable who cannot take part in regular labour markets. But this approach is criticized by those who see the necessity of a more substantive role for the state in designing and regulating social policy.
The state has a clear mandate from its citizens for the provisioning of social welfare it needs to be pressured, monitored and reformed in order to fulfil that mandate, but not bypassed.
The presentation on female educational deprivation in India addressed the question of state responsibility, and that of how to make formal rights operational. It argued that even if the state recognizes a right in principle, it has a responsibility to adopt appropriate policies to ensure the universal realization of that right. Where the state has a clear mandate from its citizens in regard to human rights, it must recognize its responsibilities. Although people often have a strong sense that government structures should be accountable to them (demanding services from the government), it is not clear whether the same can be said about NGOs. On what basis can people make demands on an NGO and hold it accountable? While civil society organizations often play a useful role in monitoring progress and pressing the state to fulfil its mandate, they cannot substitute for the state.
In the area of health care provision, for example, there is a clear need for reform programmes that strengthen, rather than weaken, public health systems, not only through increased investments, but also through reorganization, retraining (e.g., in gender sensitivity) and more effective management. At the same time, corruption, insensitivity and inefficiency in public sector health services have been a constant complaint by not only international donor agencies but also by those who depend on the services most. Given this dubious record in many countries, as well as the prevalence of markets everywhere, it is inevitable that private (for-profit) companies and non-profit charitable, NGO and community-based groups will increasingly function side by side with public agencies to provide services. But in such hybrid (governmental/non-governmental) systems, it is essential that the regulation and enforcement of universal standards of access and quality remain a state responsibility.
More generally, as old models of welfare provision are dismantled and the coverage of new ones remains patchy and inadequate, workshop participants from different regions expressed concern that in all too many cases political rights have been granted at the expense of social rights. The extent to which even political rights can be exercised in the absence of adequate social provisions was a question that several speakers and participants raised.
Needs versus rights? Transcending dichotomies
One of the panellists considered the charge that rights are being pursued at the expense of needs. A problem with the liberal interpretation of rights has been the tendency to consider some rights to be more important than others. Historically, especially in the Cold War era, rights were separated into different generations. This was a controversial metaphor because it suggested a hierarchy in the importance of various forms of rights. The positions taken in this debate were often along regional and philosophical divides, with Western liberal democracies favouring the first generation of civil and political rights (CP), while socialist states and some developing countries advocated second generation economic, social and cultural rights (ESC). Others, however, considered such separation to be problematic because in practice rights are intimately linked and thus indivisible. Reproductive rights, for example, require legal recognition and protection in the courts, freedom from repressive religious and traditional codes that constrain choice, and freedom from domestic violence and forced pregnancy, which are all CP issues. But at the same time, reproductive rights also require reliable and affordable maternal and child health services, and access to safe contraception, counselling and follow-up care, not to mention adequate nutrition to avoid a wide range of risks, which are ESC issues.
In an acknowledgment of the limitations of the rights hierarchy, the Vienna World Conference on Human Rights, held in 1993 in the wake of the end of the Cold War, endorsed the principle of indivisibility among the different kinds of rights and their respective international conventions. The United Nations now officially advocates the universality and indivisibility of rights. This means that, officially, rights are to be applied equally to all persons and one type of right is not to be regarded as more important than another. For example, the right to clean water is no less important than the right to security of person.
While the Cold War separation of economic/social rights from political/civil rights has been surpassed by the conviction that rights are in fact indivisible, in discussions of womens rights these old dichotomies have resurfaced with new vigour. In the global conferences of the 1990s some conservative forces (namely the conservative alliance built by the Vatican) presented themselves as defending the needs of Third World women, while systematically opposing womens self-determination and the womens rights agenda. Women apparently have needs, but no need for rights. This is an astonishing exemption of women from international human rights norms that are otherwise deemed universal. To see needs as necessary but not rights is to assume that they are unrelated. Yet this is a false separation: without rights to legal representation, how can women obtain justice in land claims, divorce settlements or other cases of dispute? And without literacy, how can they know what rights they have? If women are to enjoy the right to have the number of children they wish, they must also be able to depend on health services to meet their needs.
At the same time, some powerful Northern governments (especially the United States) who can always be counted on to champion reproductive and sexual health and gender equality more broadly as human rights, would never admit to what they would call infrastructural problems, including access to clean water, sanitation and health care, as being human rights. To admit that these are rights is to confront redistributive issues at the macro level and to call into question the neoliberal agenda that assumes basic needs can be met through market mechanisms.
But these two positions that of the moral conservative forces and that of some Northern governments are mere images of one another because they both play into the same dichotomy and they are both problematic from a feminist point of view. Womens ability to act as full participants in their societies depends as much on economic and social resources as on their legal rights. An appreciation of the indivisibility of rights helps to reconcile the apparent opposition between needs and rights. Rights can then be usefully seen as the codification of needs, reformulating them as ethical and legal norms and thus implying a duty on the part of those in power to provide all the means necessary to make sure those needs are met. In other words, the language of rights enables individuals or social groups to make official claims in defence of their needs.
Rights and needs are intimately linked, as are economic/social rights and civil/political rights. Separating them makes no sense, especially when seen through a gender lens. It is necessary to go beyond the idea that rights and needs are opposed policy options, to recognize, and to force recognition on the larger community, that you cannot have for women one set of rights within the household and personal life and a different set of rights for something called the larger society. These two must absolutely come together. This is a fundamental project for the new century.