New methodologies

A recent trend in global civil society has been the growth of budget analysis, which aims generally to make government conduct more transparent and accountable. It is particularly relevant to economic and social rights because the Covenant and other legal texts oblige states to take steps to fulfil these rights ‘to the maximum of their available resources’. Where that maximum lies in a particular context is of course contested, but budget analysis can be a powerful political tool demonstrating a government’s commitment to a particular right, or lack thereof. An analysis of the Mexican budget over four years from the point of view of the right to health found that resource allocation for the control and prevention of disease was declining; a disproportionate share of the health budget went to those employed in the formal sector, and more ‘pro-poor’ spending of the federal budget went to the better-off rather than the poorest states. This pioneering project was published in book form in 2004 (Centro de Analisis e Investigacion et al. 2004). A handful of other such projects are under way, and in March 2005 Dignity International organised a first ‘linking and learning’ programme for human rights activists and budget analysis groups (ESCR-Net URL). Rights-based budget analysis is bound to be further refined and become a more widely used tool in coming years.

While social forum sessions have all the advantages and drawbacks of embedding economic and social rights activism in a much wider movement, a specific network on economic and social rights has also recently been founded. The International Network for Economic, Social and Cultural Rights (ESCR-Net) was officially inaugurated in June 2003, after years of deliberation, with a founding conference attended by 250 activists from over 50 countries. ESCR-Net is primarily a facilitating platform rather than a campaigning coalition (ESCR-Net URL).

Ecuador, with Colombia and Peru, has been negotiating a bilateral free trade agreement for the Andes countries with the United States since 2004. While draft texts are secret, Ecuadorian civil society groups have been particularly concerned about a clause on intellectual property rights, which could block access to cheap generic drugs. In July 2004, the president tried to smooth the negotiations with a decree on intellectual property that would have the same effect. The Centro de Derechos Economicos y Sociales (CDES), an offshoot of CESR in New York, wrote to the government, citing pronouncements by the UN Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights to demonstrate that the decree was contrary to the right to health. Within two weeks, Ecuador’s head negotiator wrote back, agreeing that the draft decree was unconstitutional and in violation of the right to health, endangering access to affordable medicine. The decree was not passed, and Ecuador’s trade team has begun using human rights language in the negotiations, which at the time of writing are ongoing (‘Ecuador’ 2004; CDES URL).

The Grootboom case was hailed by human rights lawyers all over the world. It gave life to the far-reaching provisions in the South African Constitution and demonstrated that a judicial court could review and enforce even the ‘obligation to fulfil’ economic and social rights, by using a standard of ‘reasonableness’ that is familiar to many legal systems (Pieterse 2004). Yet it also raises questions about how much lawsuits can actually achieve. After the case the state purchased the squatted farm and some surrounding land to develop low-cost housing for the Grootboom group and others. But the only amenity on the site now named ‘Grootboom’, where several thousand people live, is a foul-smelling sanitary block with about 12 toilets and some showers and washbasins, most of which are blocked (Schoonakker 2004; Whittal et al. 2004). Box 3.3, which describes the story of the Pom Mahakan community in Bangkok, demonstrates a very different form of community activism and negotiation to prevent eviction.

Deepening and widening the focus on economic and social rights

In academia, the Limburg Principles sparked innumerable articles and a spate of doctoral dissertations, constituting a new field of expertise within human rights scholarship. This began to address objections against economic and social rights as ‘too vague’, ‘too costly’, or ‘not amenable to judicial review’. The objection often raised against the justiciability of economic and social rights – namely, that the Covenant allows the rights to be ‘progressively realised’ rather than immediately guaranteed – was met with the notion that each right has a ‘minimum core content’ (and a related, operationalised and context-dependent ‘minimum threshold’) that does require immediate implementation. Shue’s tripartite division of obligations was elaborated for different rights, and supplemented with another categorisation into ‘four A’s’: food, health or housing must be available, accessible, acceptable and adaptable. Again, there are variations on this theme. More recently, scholars have taken their cue from activists’ work by transferring their focus from the nature of the obligations to a ‘violations approach’, working outwards from the most egregious violations.

At the same time, some grassroots membership groups of Amnesty International were beginning to feel frustrated with the organisation’s limited mandate. In 1982 the Heidelberg group in Germany sent a letter to other Amnesty groups suggesting a new orientation on economic and social rights, and got positive responses from groups in Austria, Switzerland and Italy. The right to food – most concrete, most directly connected to life and death, but also most defensible from a resource perspective – soon became the focus. The national and international leadership made it clear that it was not prepared to move in this direction, so individual members took their actions outside Amnesty and started networking with development and solidarity groups. Sometimes these organisations were reluctant to adopt a human rights approach to food, but there were always some individuals who were enthusiastic. After three years, the network was transformed into a formal human rights organisation, the Foodfirst Information and Action Network (FIAN). Inspired by the Amnesty approach, it focused on blatant violations such as famines related to forced relocation, and undertook Urgent Actions, writing letters to governments, ‘even though we did not quite know what was a violation of the right to food, we were finding that out as we were doing it’ (Interview Kuenneman). Today, FIAN has around 3,300 members in 60 countries, only 12 paid staff, and continues to rely largely on voluntary work by its 40 or so active groups. It continues to write protest letters and send fact-finding missions, and also campaigns for agrarian reform, lobbies the UN and undertakes human rights education (FIAN URL).

Discovery by global civil society

In the early 1980s, small groups of activists, philosophers and lawyers were simultaneously but separately beginning to rediscover the most vital and compelling of all economic and social rights, the right to food.

In general, it is the job of domestic law enforcement to uphold these rules. But even if we live in a global community, there remain separate legal jurisdictions. So what does this argument imply for territories that are occupied or where the state is repressive and acts unlawfully? One answer is that international institutions have a role to play and that, in cases of genocide or other crimes against humanity, there could be a case for an international use of force, if authorised by the United Nations or justifiable in an international court of law, within very strict limitations about how that use of force is exercised – that is, that it must be defensive and minimise all loss of life; long-distance bombing to stop genocide, for example, is unacceptable. The adoption of the ‘responsibility to protect’ doctrine by the United Nations is a step in this direction but the implementation of this responsibility has not yet been specified.

The Inuit people of Canada and Alaska (the Inuit Circumpolar Conference) have adopted a strategy of litigation threatening, alongside the Centre for International Environmental Law (CIEL), to file a petition with the Inter-American Commission on Human Rights in 2005 against the Bush administration for posing a climate-related threat to their survival. A briefing circulated at COP10 in Buenos Aires stated: ‘It is not an exaggeration to say that the impacts are of such a magnitude that they ultimately could destroy the ancient Inuit culture’ (EarthJustice and CIEL 2004). Responsible for approximately 25 per cent of global emissions, the US is targeted because of its failure to reduce emissions that have contributed substantially to the impacts felt by indigenous communities (see Box 3.6).

One strategy adopted by groups at the national level to force mandates for government action involves filing legal suits. Twelve US states, several cities and over a dozen environmental groups joined forces to challenge an administrative ruling denying the EPA authority to control greenhouse gases on the grounds that these gases do not meet the Clean Air Act’s definition of ‘pollutant’ (ICTA 2003). The plaintiffs challenged the EPA decision in the Court of Appeals for the DC Circuit. Joseph Mendelson, Legal Director of the International Center for Technology Assessment, said of the case:

The Bush administration can try to ignore the science behind the causes of global warming, but it can’t hide from the law. If it takes lawsuit after lawsuit to force the Bush administration to accept its responsibilities and pursue good public policy on this issue, then that’s what it will face. (ICTA 2003)

A key rationale behind the use of legal suits is that they help to focus public attention on a particular instance of government inaction. Yet it should be noted that many of the strategies of awareness-raising and public education that are adopted at earlier stages of the policy process have less traction at this stage. Put bluntly, ‘the questions of verification and monitoring are extremely complex and boring for the media and the public’ (Gulbrandsen and Andresen 2004: 70).

The successful movement to establish an International Criminal Court (ICC) is illustrative of a reformist move that came into being, at least formally, outside of these limits on feasibility. William Pace, a leader of the NGO coalition that collaborated with governments in the late 1990s, likes to tell the story that he was advised by many within the UN that the ICC project was impossibly utopian given the firmness of US opposition. In this instance, the mobilisation of global civil society appeared to create a momentum that overcame geopolitical resistance. Of course, the success may be less than meets the eye if the ICC fails to produce significant indictments and prosecutions in coming years. The first real opportunity for the ICC seems likely to arise out of its anticipated role in dealing with allegations of crimes against humanity in the context of the Darfur genocide in Sudan. There are other important indications that civil society initiatives can obtain results despite geopolitical opposition: the separate requests to the International Court of Justice for Advisory Opinions with respect to the legality of nuclear weapons and of the Israeli security wall; the push for a treaty of prohibition on the use of anti-personnel landmines; and widespread adherence to the Kyoto Protocol restricting greenhouse gas emissions. Such successes should not be overstated. A minority of opposing states can still nullify the ‘success’ by refusing to comply with or by simply ignoring the institutional or normative claims. The lesson here is that global civil society, acting in collaboration with sympathetic governments, can pursue reformist projects that stretch, if not break free of, the geopolitical limits on political action, and that such action is an indispensable contribution to the global reform process, within and without the United Nations.

At the same time, the most direct and characteristic UN-related projects of civil society are associated with vertical reforms, taking greater account of actors other than states and recognising transnational social forces whose prominence and role exhibit the growing obsolescence of any system of global governance that relies exclusively on a Westphalian conception of world order. The remainder of this chapter is mainly devoted to exploring this vertical approach to UN reform, but it pays some attention to the proposed direction of horizontal reforms touching on the interests of global civil society, especially as affected by the proposed recommendations of the Secretary-General’s High-Level Panel on Security. It is also the case that there is often an interplay between global civil society initiatives of a horizontal character and changing perspectives of the United Nations, even in the most recalcitrant context of peace and security. An important illustration of this hybridity arises in relation to the debate on humanitarian intervention that became so significant in the 1990s, especially in light of controversies surrounding the UN responses and non-responses to Somalia, Rwanda, Bosnia, and Kosovo. At the instigation of the Canadian government, a commission of eminent persons was formed under the chairmanship of Gareth Evans and Mohamed Sahnoun, which produced a report under the title The Responsibility to Protect that essentially staked out ground that has emerged as a consensus among members of the United Nations (International Commission on Intervention and State Sovereignty 2001). The essential move in the report was to shift the language from that of ‘humanitarian intervention’, always threatening to the prerogatives of governments, to that of ‘a responsibility to protect’ on the part of international society those peoples who are vulnerable to an impending humanitarian catastrophe. By situating this duty to act within the international community, the report also moved on to positive ground rather than challenging so frontally the totemic ideal of territorial sovereignty. Beyond this, an independent commission of private individuals (although with strong public credentials) is definitely an example of a vertical undertaking reshaping the diplomacy, and quite likely the behaviour, of horizontal interactions among the membership of the United Nations.

A second example of de facto reform is the significant development of coercive peacemaking under Chapter VI of the UN Charter during the tenure of Secretary-General Dag Hammarskjöld in the 1960s, described at the time as an ‘innovation’ neither prescribed nor proscribed by the Charter, but useful in dealing with situations other than war-making, addressed in Chapter VII, that called for UN peacekeeping. A third example of increasing importance since the end of the cold war is the narrowing of the significance and scope of the prohibition on the UN in Article 2(7) of the Charter to refrain from intervention ‘in matters that are essentially within the domestic jurisdiction of any state’. Such a strict conception of Westphalian deference to territorial sovereignty reflected the ethos of 1945, but as civil wars became internationalised and as acute violations of human rights, particularly ‘ethnic cleansing’ and genocide, became challenges to the organised international community, the UN norm of non-intervention was gradually qualified. This process reached a climax in the period after the Kosovo War in 1999, and produced a doctrine of humanitarian intervention rationalized as ‘a responsibility to protect’ (Independent International Commission on Kosovo, 2000: 163–8).

Media and the expansion of the public sphere

During the last two decades, for much of humanity, the public sphere has expanded substantially and the capacity to contribute to public debate increased. Three main trends have shaped this expansion of the public sphere: first, the wave of media liberalisation that, as part of broader democratic reform movements, swept much of the world after the fall of the Berlin Wall; second, the transformative changes wrought by new technologies; and third, how advocacy and the effective use of communicative power is increasing the pressure for social justice.

The precautionary principle, whose goal as a policy blueprint was to help manage risk, had a number of effects that went beyond the purpose of specific policies. It changed the relationships among stakeholders, including the general public, bringing about a new politics of risk management at the national and increasingly the regional and global levels. Importantly, it paved the way for civil society organisations to assume a greater role in the identification, handling and oversight of risk-related aspects of policy concerns such as the environment, human rights, industrial safety or transnational crime.

Illiberal regimes have found themselves affected both by progressive and regressive globalisation. Commonly, when we think about globalisation and democratisation, the focus has been on the impact on norms and human rights, which was so important in Latin America and Communist Europe (Keck and Sikkink 1998; Kaldor 2003). Schmitter has pointed out that ‘this world beneath and beyond the nation state has played an especially significant role in the international promotion of democracy’ (1996: 29). And even today, under the global gaze and pressure put by human rights activists, illiberal regimes have sometimes been forced to give in, and, for example, free political prisoners, as is happening now in China (see Box 5.1).

Laws are made at the national level, but norms and pressures increasingly come from the global. Tacit or explicit arrangements among states, or between states and multinational corporations or non-governmental organisations (NGOs) may be designed to affect the nature of a global market in cultural and political attitudes and facilitate the predominance of one ideology over another. Thus, while the apparent determinant of the relationship between regulation and control remains the nation state, communication avenues in any given state are increasingly a matter of international action or pressure, justified under the aegis, for example, of stability, trade or human rights.

At the same time globality does not merely undermine liberal democracy in nation states. Kaldor and Kostovica in Chapter 5 show how illiberal regimes are equally vulnerable to global connections. In their responses to the pressures of globalisation, most of these regimes have moved far away from the monolithic Orwellian ideal type. Instead of aspiring to eliminate civil society and monopolise communication, which is simply no longer possible, they tolerate some forms of civil society organisation as well as some forms of transnational communication. They either try to contain and control civil society, relegating it to the role of social policy sub-contractor, or found their own organisations, but without the old aspiration to a complete monopoly. In the realm of communications, Iran, Saudi Arabia or China now try to ‘get the message out’, becoming, in Monroe Price’s term, sellers in the market for loyalties (see Chapter 3). These changed parameters may also have consequences for the old debate as to whether to isolate or engage rogue states. The 2008 Beijing Olympics, for instance, has become an occasion for bringing attention to a plethora of human rights violating aspects of Chinese domestic and foreign policy (see Box 5.1 in Chapter 5).

But globalisation does not only take the form of enforced integration into Western governmental models. Even before the 1990s when Richard Falk (1993) gave recognition to globalisation from below, there were plenty of empirical examples of democratisation as the result of successful efforts of social movements in Eastern Europe, Latin America, and South Africa building transnational links and appealing to transnational norms in order to defeat the authoritarian state (Keck and Sikkink 1998; Kaldor 2003; Glasius 2003). This volume provides an example of those transitions: in Chapter 6 Darcy de Oliveira’s charts the transformation in Latin America where NGOs and social movements spearheaded the struggle for democracy in the 1970s and 1980s, but where now the vitality of what he calls the ‘classical notion of civil society’, its organised form, has declined. But they have left a legacy of democratisation at the very personal level: ‘ordinary people tend, today, to be more ‘intelligent’, ‘rebellious’ and ‘creative’ than in the past insofar as they are constantly called upon to make value judgments and life choices where previously there was only conformity to a pre-established destiny. This enhanced capacity of individuals to think, deliberate and decide is a consequence of the decline in diverse forms of authority based on religion and tradition. As he says, ‘democracy is always work in progress, an unfinished journey.’