Assessing Survival Rights: A New Initiative of the Free Legal Assistance Group in the Philippines
Human Rights Dialogue 1.10 (Fall 1997) "Efforts, East and West, to Improve Human Rights Assessments"
September 5, 1997
Although FLAG is known for its civil and political rights activism, especially under martial law, we have always handled cases of the urban poor, indigenous peoples, workers, students, and other disenfranchised sectors of Philippine society. The objective of FLAG’s developmental legal advocacy is to remedy injustice not merely by enforcing the law, but also by changing the law and underlying social structures that perpetrate or sustain injustice and inhibit development. Derived from a structural perspective of the causes of injustice and an instrumentalist view of the law, developmental legal advocacy includes the provision of legal services, education, and networking.
Our program focuses on the rights to food, health, housing, and education, rights that FLAG terms “rights of survival.” These rights, unlike the right to work, have not been clearly defined by international standards. But like the right to work, they are inextricably linked to the right to personal security and therefore worthy of concern equal to that paid to civil and political rights. Our focus on survival rights is largely a result of what we see going on around us. The Philippines 2000 development program, for example, has resulted in what Filipino NGOs are calling “development aggression,” development that results in environmental destruction and the displacement and dislocation of farmers, forest dwellers, and fisherfolk.
FLAG has been overwhelmed by urban poor seeking assistance as a result of massive demolitions and forced evictions. It has become apparent that there is no widely available legal recourse for violations of ESC rights. Moreover, given the magnitude of the violations, FLAG’s case-by-case approach to the problems cannot begin to handle the hundreds of thousands of violations taking place nationwide. FLAG has come to realize that the root causes of our clients’ problems are poverty and the unequal distribution of wealth and power. Such structural problems must be addressed in a far more systematic, comprehensive, and holistic manner.
This realization coincided with FLAG’s 20th anniversary and internal discussions about the organization’s role in the year 2000. High among the recommendations were: action on ESC rights, with a particular emphasis on peasants and farmers, industrial workers, overseas contract workers, indigenous people, and the urban poor; and action on macro-level socioeconomic issues, such as the foreign debt, international financial institutions, trade and the GATT, and development aggression.
Within its ESC Rights Program, FLAG has so far created two technical working groups, one on the right to housing and the second on the right to education. Each group consists of experts from various academic disciplines and representatives of people’s organizations, development organizations, professional associations, industry, and selected government bodies. Consultations between the two working groups are promoted to share results, seek confirmation, resolve conflicts, and integrate work output. FLAG hopes to establish the other two right-specific working groups, on health and food, in the last quarter of 1997.
We recognize the importance of five interrelated tasks for achieving our program goal; assessing government performance in relation to ESC rights is central but not the only objective. Many of these tasks in fact precede the possibility of adequate assessments of the rights of survival.
First, we need to define the rights of survival in terms of their core content. This alone can be a daunting task. For example, in defining housing rights, one cannot simply equate them with the provision of a roof over one’s head, for this definition says nothing about whether the house is habitable or whether it will always be there. It is only through the process of reconciling and resolving the issues raised by each of the rights that useful definitions can be forged.
Second, we need to develop legal standards for the rights of survival. This requires knowing the existing conditions, particularly the availability of resources, in relation to their substantive outcomes. To determine standards for government obligations under the right to food, for example, one would need to look into food production, the accessibility and affordability of food products, the nutritional content of these products, and the effects of these conditions on people, such as hunger or malnutrition. Elaborating standards also involves articulating and evaluating the moral or ethical principles that are implicit in existing standards and policies. Existing moral principles, such as accountability, can provide authoritative criteria for generating new standards. Finally, we need to determine the circumstances under which the standards apply. The standards must be graduated, because the realization of these rights depends to a large degree on the availability of resources, such as public funds. Moreover, graduated standards allow for change; as a country’s circumstances alter, its standards can be refashioned.
Third, if the rights of survival are, as we maintain, realizable imperatives rather than development objectives, the working groups must lay out clear and precise state obligations under these rights. In general, states are obliged not only to respect human rights constraints on state action but actively to provide and protect rights as well. FLAG therefore believes that states can be assessed as to the extent to which they: respect human rights by abstaining from activities that violate the integrity of the individual or infringe on his/her freedom; protect human rights by prohibiting others from violating recognized rights and freedoms; ensure human rights by creating conditions necessary to the effective realization of recognized rights and freedoms; promote human rights so as to realize results that can only be achieved progressively or in the long term; and fulfill human rights by taking measures necessary to ensure for each person those recognized rights and freedoms that cannot be secured by personal efforts.
Fourth, once standards and obligations are established, indicators need to be developed so that systematic monitoring can take place. Although ESC rights have not yet been clearly defined in international instruments, the definitions of the rights of survival laid down by FLAG’s ESC Rights Program can be used to develop a comprehensive set of indicators for each right. These indicators will capture a wide range of variables and the relationships between them, and be broken down to reflect the realities of different groups in society. When monitoring the right to education, for example, we will look at literacy rates in relation to functional literacy, or enrollment rates in relation to school completion rates, as well as differences between male and female school attendance.
Fifth, the working groups must outline ways to make the rights of survival legally enforceable and justiciable. In the Philippines, for example, survival and other economic and social issues are still a political matter, not yet a matter of rights. Rights implementation with respect to these concerns depends on the priority governments afford to particular rights and government compliance with their obligations. Enforceability, therefore, presupposes an examination of a government’s national budget, framework for development, policy objectives, development strategies and models, debt policy, and fiscal policy—all of which determine how the government formulates and implements strategies relating to survival and other economic and social rights. Governments must be compelled to change any strategies inconsistent with or in conflict with the enforcement of the rights of survival. Also, because currently many national economic development policies are influenced by international financial institutions like the World Bank and the International Monetary Fund, our program also needs to examine their role, level of intervention, and policies and programs. FLAG advocates that all domestic and international organizations engaged in the conduct of international economic policy take human rights fully into account when formulating, carrying out, and evaluating programs.
Legal enforceability of the rights of survival must be accompanied by formal justiciability of the rights. Justiciability requires the establishment of third-party adjudication and a system of judicial remedies. To date in the Philippines, there are no procedures for determining violations of these rights, largely owing to the lack of individual and group complaint procedures at both the domestic and international levels. Our ESC Rights Program will focus on creating and strengthening domestic remedies, which necessitates a comprehensive assessment of the Philippine judiciary—its role, structure, and independence.
In relation to the tasks outlined above, FLAG’s working group on the right to housing has defined some of the right’s core content, such as legal security of tenure and availability of basic services in resettlement sites, and drawn up several comprehensive instruments to monitor demolitions, forced evictions, arrests, and other acts of violence resulting from demolitions and forced evictions. One such instrument is a questionnaire administered to victims of actions resulting from the implementation of the Philippine Anti-Squatting Law. For the most part, however, FLAG relies on other NGOs and government sources for its information, even though there has been no systematic data gathering in relation to ESC rights to date. The information available, along with our own monitoring efforts, enables FLAG to prepare comprehensive reports and provides the basis for creative litigation and policy advocacy through lobbying efforts and the mobilization of popular support for the promotion of survival rights. In the area of enforceability and justiciability, FLAG has also submitted its reports to the UN Committee on Economic, Social, and Cultural Rights on violations of the right to housing.
It is clear from this initial work that the ESC Program and other programs like it cannot achieve their goals in the immediate future. FLAG’s work is, however, a first step toward the creation of just social structures that could lead to the full realization of the rights of survival.