To have a right to something - say, food - it not just about having enough of that: a slave can be well nourishedP. Uvin
Most people agree that an effective policy needs to be rights-based. But what exactly does that mean and more importantly is policy making to tackle statelessness following this approach? Last week I defended my PhD thesis entitled ‘A rights-based approach to statelessness’ where I argue that the current goal orientated approach of eradicating statelessness is incompatible with a rights-based approach. Here I briefly explain why.
Rights vs. goals
The UK Department for International Development describes the right-based approach as ‘empowering people to take their own decisions, rather than being the passive objects of choices made on their behalf’. A rights-based approach goes beyond mere references to human rights of affected people; it aims to empower affected people to make their own decisions about whether, when and how to invoke and effectuate their rights.
A rights-based approach is often counter-posed to an approach that pursues objective targets, which focuses on populations rather than individuals, on needs rather than rights, and on quantifiable indicators rather than more elusive indicators of subjective individual empowerment. For example, the objective target of reducing maternal mortality in the context of the Millennium Development Goals was counter-posed to the reproductive health rights of women. The objective target of slum eradication was counter-posed to the ‘right to the city’ and the slum inhabitants’ rights to participatory enhancement of living conditions.
Similarly, promoting the right to a nationality is a rights-based policy, while the goal to eradicate statelessness is a policy pursuing objective targets. It may use the right to a nationality and other rights as tools to achieving the reduction in the numbers of stateless people, but empowerment of affected individuals through the right to a nationality is not framed as an ultimate aim. The rights-based approach requires flipping these priorities, where the reduction of statelessness is a very likely side-effect of promoting access to nationality rights, but not the ultimate goal of the policy.
Rights vs. duties
Rights and duties are closely linked as each other’s exact opposites. Rights cannot be effective without correlative duties. For example, a correlative duty of the right to life is to protect human life (and not to kill); a correlative duty of the freedom from torture is to refrain from torture; a correlative duty of the right to education is to ensure availability of, and access to, educational facilities, and so on. Every person is simultaneously a right-holder and a duty holder. Rights give rise to duties.
However, a right can never impose a duty on the right holder to exercise that very right. For example, an individual does not have a duty to live by virtue of having a human right to life, and the right to work does not entail an obligation to work. It is legally possible to force people to work or live against their will, but that cannot be justified by the existence of their right to work or live – the imposed duties would need some other justification than the existence of an equivalent right. It is counter-intuitive to use human rights to coerce the right-holder into specific actions or inactions. If a right could be flipped to also impose a duty on the right-holder, such a perspective on (human) rights turns rights into a tool of legal coercion rather than a mechanism of empowerment. It is in the nature of the legal concept of rights to imply freedom, agency and control of the right-holder over a particular situation.
The right to a nationality cannot be used to impose a duty on stateless people to accept a nationality, or a duty on nationals to remain nationals, to help reduce numbers of stateless people. Any negativity towards voluntary statelessness cannot be motivated by rights.
Rights and participation
In addition to empowering affected people, a right-based approach leads to genuine direct participation of the affected people in the design, implementation and effects of policies. When rights and entitlements are recognized, affected people become agents and owners of the change envisaged by a policy. They are not merely heard in the process of decision making, they actually decide on the implementation of policies by controlling whether, when and how to invoke their rights in each of their individual life circumstances. They are also not merely informed about the progress; they drive the progress and determine its speed and, to some extent, the direction. Thus, a policy which focuses on rights of affected people rather than their needs and objective welfare targets is inherently more inclusive, participatory, deliberative, and transparent.
The challenge of rights
A rights-based approach can be challenging when applied to policies addressing vulnerability. Emphasis on rights as opposed to objective quantifiable goals entails certain loss of control as to what the final outcome of a policy might actually be. The vulnerable may turn out to be invoking the newly acquired rights in unforeseen ways, or not invoke their rights at all, since the whole point of a policy is to empower the vulnerable to make their own life choices and determine themselves what is the best way to improve their life circumstances. The idea of actual emancipation of the vulnerable through rights may therefore appear threatening thought to the privileged who often participate in policy design. A more practical aspect of this challenge is that the outcomes of the rights-based approach are less easily measurable. While measuring how well the goal of eradicating statelessness is coming along requires counting the numbers of stateless people, measuring how well promoting access to the right to a nationality is coming along requires a deeper knowledge of individuals empowerment, choices and motivations. Despite these challenges, however, if policy makers are serious about empowering and representing stateless people, gradually shifting towards a more rights-based approach is the only ethical way forward.