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Home arrow Resources arrow Articles arrow The Role and Means of NGOs in Promoting and Monitoring the Implementation of the ICESCR
The Role and Means of NGOs in Promoting and Monitoring the Implementation of the ICESCR PDF Print E-mail

ROLE AND MEANS OF NGOs IN PROMOTING AND MONITORING
THE IMPLEMENTATION OF THE ICESCR
A Philippine Experience
Professionalism and Commitment of Human Rights Defenders

Teodoro M. de Mesa

Given at the Workshop on the Implementation of the ICESCR
24-26 October 2003
Wuhan, People's Republic of China


At the onset of this presentation, may I express my appreciation and gratitude for the opportunity to share our organization's particular Philippine experience in promoting and monitoring the implementation of the ICESCR.

The Task Force Detainees of the Philippines (TFDP) was established in the early years of martial law declared by President Ferdinand Marcos in September 21, 1972. Under the aegis of the Association of Major Religious Superiors in the Philippines (AMRSP), in 1974 TFDP became a foremost nation-wide human rights organization. TFDP was focused then on the status of thousands of persons detained with politically motivated charges. In 1996, in the face of development aggression, which included a rise in demolitions, displacements, environmental degradation and land conversions, TFDP expanded its mandate to economic, social and cultural rights. Since then, the Philippines had become a State Party to several international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, which entered into force in 1976. Since then, TFDP has assessed its work in the field of ESCR.

LEARNINGS IN PROMOTIONG ESCR

A. In Education and Research

1. Human Rights Are Indivisible

Inadvertibly, TFDP has somehow reinforced the perception that human rights particularly refer only, if not equated to civil and political rights. While we here could easily subscribe that the two sets of rights are "universal, indivisible, and interdependent and interrelated" (Vienna Declaration, para.5), we have to remember that the relationship of these two sets of rights "had become a casualty of the Cold War". Economic, social and cultural issues were left to other activist groups and organizations to analyze and deal with. As a result, any positioning regarding the sets of rights, particularly in relation to economic and social rights, was perceived to be either ideologically influenced or determined. Somehow, we had reinforced the idea that "despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights." In other words, it was implicitly inferred that civil-political rights were the only rights inherent to the person, and not, at least in importance and concern, economic, social and cultural rights.

As part of rectifying this shortcoming, TFDP has added data in its Museum of Courage and Resistance (The Martial Law Museum) pertaining to the onslaught of martial law on the economic, social and cultural rights of the peoples of the Philippine Archipelago, especially against the Bangsa Moro and the Indigenous peoples.

This proposition has practical repercussions in documentation work in the field. For TFDP, it meant making a new set of documentation forms that related arrests, detentions, torture, extrajudicial executions ("salvagings"), massacres and involuntary disappearances to the struggles of peoples for their economic, social and cultural rights.

(Note: Our recent organizational assessment of our documentation work since we expanded our mandate showed that despite education and skills training in this new field, majority of our staff still are internally set on filling the forms for primarily, and sometimes only, civil and political rights . Thus, the plight of a peasant family in the southern Philippines (the Visayas), dependent for their needs solely on their meager coconut harvest, who has been charged with qualified theft by a despotic landlord, was documented and reported to our national center as a victim more of lack of due process than a violation of the family's right to food and housing. Together with the couple were two children. The father died of sickness while in prison. The judge pronounced a sentence that had the extreme consequence of the proverbial "dura lex, sed lex".)

2. Human Rights Are Rights, Not Issues

Initially, TFDP expressed its expanded mandate, rather ambitiously and ambiguously, regarding ESCR to what we called the "five phenomena": demolition, displacement, labor contractualization, land use conversion and ecological destruction. They were pinpointed as "trends" of what affected the poor, the marginalized, and the vulnerable.

We soon found out that within each phenomenon was a complex web of rights. Besides the aspects of civil and political rights violations, components of the right to a certain quality of life were involved, such as the rights to adequate food and adequate housing, to health and to water. Implementing the mandate through the five phenomena was like tackling the whole gamut of esc rights. Not only was it very difficult, but near impossible to implement with such limited personnel and resources.

There was need to shift, and we did shift from the phenomena framework to the framework of the codified rights, key elements of these rights and state obligations as stated in the ICESCR and the General Comments of the UN Committee on ESCR . The Limburg Principles and the Maastricht Guidelines are very useful in clarifying State obligations for much have been incorporated into many of the General Comments.

This brings us to a practical consequence of this point. We promote human rights as rights and not as issues. The former is inherent to every person emerging from one's human dignity. It is subject neither to the vagaries of political expediency nor to development trade-offs. They are not seasonal issues, but are state obligations that must be progressively realized. While individual rights could become issues, not all issues are just individual rights. Issues could contain several rights simultaneously. Displacement, for example, is always an issue that occurs during military operations. This issue contains the violations against the people's right to adequate food, to adequate housing, to children's right, to health and education.

This position we bring in alliance or coalition work. We must infuse human rights language into everyday life and peoples' struggles. A coalition for example against the privatization of water services is one of those campaigns that TFDP joined as a consequence of its focus on the right to adequate food, which includes the right to water, particularly its nutritional elements.

3. Human Rights Have Key Elements.

There is need to address "the complexity of the substantive issues covered by the ICESCR", the provisions of which are often "vaguely-worded". It is imperative to retrieve and to revivify the Covenant language—i.e. "the language of right, not merely of hope, of undertaking and commitment by governments, not merely of aspiration and goal." Education and research about the key elements of each of the rights contained in ICESCR help in making more concrete both the obligations of the state and of the field and advocacy work of human rights defenders. Monitoring the implementation of a right means monitoring the implementation of the key elements of those rights. It also means that the trinity of obligations—respect, protect and fulfill—refer to each of the key elements.

Take for example the right to adequate food. It has the following key elements as taken from UN CESCR General Comment No. 12: adequate and nutritious, safe, culturally acceptable, accessible and sustainably produced. Promotion means informing people that each key element is integral to their right to adequate food, and thus, of their personal dignity. Violating any of these key elements is violating their right. Failing to inform recipients of GMO produce violates the key element of food safety, as well as that of the precautionary principle in the right to development, which in turn violates the one's right to food.

TFDP has made the key elements the framework for its new documentation forms, our internal reports and our alternative or shadow report to the UNCHR and to the UNCESCR. This framework has also become our vantage point from which we view or assess laws, policies or development plans. TFDP has initiated the research and compilation of Philippine laws and policies pertaining to the rights to adequate food, to adequate housing and to the people's right not to be deprived of their own means of subsistence. Alongside it is our own assessment of major legislations regarding the said rights so as to be able to say whether such laws or policies or plans do advance, impede or negate human rights de jure or de facto.

TFDP has developed consequently "Paralegal Training Module in Cases of Demolition and Forced Evictions" and "Paralegal Training Module in Cases of Large-Scale Mining". These modules include discussions of concepts and principles of ESCR, national laws related to the right to adequate housing, the Mining Act of 1995 and related international laws. Other modules still have to be discussed and formulated in similar processes. These educational endeavors also aim to facilitate the building of and/or to strengthen peoples' organizations and movements with a rights-based framework or perception of whoever and whatever they encounter along the path of progressive realization of their rights. The same criteria are used for both state and non-state responsibles.

4. Human rights Work is Multidisciplinary

In the determined pursuit of progressive realization of ESC rights, it is imperative to reach out to other disciplines and to other NGOs. TFDP reached out to the experiences and expertise of those in various fields of development, environment, land and coastal reform and labor among others. The exchanges were mutually beneficial. Baseline data and their analyses were made available, while the human rights approach and framework gave them new insights into research and organizing work, as well as in lobby and advocacy activities. For six months, together with other NGOs, we have put together "A NGO Report on the Implementation of the State Obligations to the Right to Adequate Food and the Right to Adequate Housing" which would be presented to UN CESCR this November.

B. In Campaigns

1. The problem of justiciability

As we in the Philippines have a problem in the absence of an enabling law against torture despite having acceded to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1987, so are our problems multiplied when it comes to the justiciability of esc rights. Jean Jacques Rousseau of the French revolution said: "Liberty oppresses, while the law liberates." There are no laws against violations against the rights to adequate food, to water, adequate housing, to health, to means of subsistence and other rights. In the Philippines, when infants of displaced families die of hunger in refugee centers due to the military operations in Mindanao, their deaths are not accepted as human rights violations. They are called "collateral damage".

Promotion of ESC rights means working for their justiciability. It translates to other aspects of a person's dignity being protected by laws.

Together with the people, human rights organizations and other NGOs, should lobby not only for new national laws and policies in relation to esc rights, but also apply international laws, where appropriate, in special particular cases of violations to make breakthroughs. This goal could well be a campaign in itself.

LEARNINGS IN MONITORING ESCR

In monitoring state compliance fairly and effectively, TFDP had to build and to regularly develop its staff and members' knowledge and skills. For example, one must be able to distinguish whether the state is just unable or in fact unwilling to implement a right before citing a violation . We know that this violation could either be done out of commission or of omission. The study of the Limburg principles, the Maastricht guidelines and the General Comments could also guide our research in investigative endeavors. As to whether the state is truly taking all the steps to progressively realize ESC rights, we have to collect, collate and analyze data from the state's different branches and institutions such as legislative, judicial, executive and financial bodies . One could also conduct; for example, a budget analysis using a rights-based approach. For another, a rights based analysis could be done regarding development aid and plans and actual impact on people and communities.

The systematization of the results of these researches, documentations, and analyses could be made into alternative or shadow reports and sent to the appropriate United Nations bodies. These, in turn, presuppose knowledge and skills of the United Nations complaint mechanisms and special procedures .

TFDP is preparing for this by having "focus areas" where special efforts are being made in the monitoring of ESC rights implementation or violations.

In these selected communities in defined geographical areas, TFDP help develop human rights defenders who would have a clear grasp of human rights concepts and principles, skills on human rights work and able to do advocacy work on human rights work, including esc rights. In supporting these people's organizations, in cooperation with other groups or ngo's, TFDP hopes that these efforts would lead to a people's movement asserting their rights. It is also expected that from the people's movement would emerge advance practices in the progressive realization of esc rights.

In the Philippines, we have a network of human rights centers at the village level. This project came to be through a Memorandum of Agreement (MOA) between our Commission of Human Rights (CHR) and our Department of Interior and Local Government (DILG). TFDP is presently tapping its not maximized, and mostly wasted, potentials for, at least, documentation and monitoring purposes. At most, these Barangay Human Rights Action Centers (BHRACs) could well be a core of human rights defenders at the grass roots level for they are volunteers elected by the community and are not village officials.

Monitoring the implementation of state obligations demands a certain level of human rights knowledge and documentation skills to ensure credibility backed up by personal integrity. Professionalism and commitment have to be continually enhanced. Whenever available, pursuit of justice, including that of redress, should also make use of cyberspace and information technology.

In this era of globalization, many if not most, of the massive human rights violations are no longer perpetrated without inter-nation involvement. Promotion and monitoring can be enhanced in its effectiveness when done in solidarity with other human rights organizations and other ngo's in the national, regional and international levels.

The movements in Seattle, Doha and Cancun could well be signs of a real possibility for a better world where human rights are an integral principle to sustainable societies . This does not in any way glosses over the fact that "in the era of capitalist-globalization, where the human rights approach to development [of persons and peoples] is not the dominant thinking, relegation of some rights to the periphery and complete disregard for human rights is not an uncommon experience."

As closing to this presentation, I would like you to know that the organization I represent, the Task Force Detainees of the Philippines, believes that Asian regional and inter-regional exchanges in advance experiences in the field of ESC rights should be increased to form broader alliances and to make bigger steps. We are as eager to learn from you, as we are open to share and to work with you. After all the explanations and understanding in this workshop, we have to engage the greatest challenge: to ensure that these inherent rights are effectively implemented and violations swiftly redressed.

Thank you very much.

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