Reviewed by Rory O’Connell, Professor of Human Rights and Constitutional Law, Transitional Justice Institute / Law School, University of Ulster r.oconnell [at] ulster.ac.uk
This collection of essays addresses the important practical question of how to forward equality in a deeply divided world, focusing on questions of economic and social rights (ESR). The collection is split into four parts covering international instruments and national constitutions; legislative protection; policy work (particularly budgets) and finally a series of case studies.
The collection is broad in its scope in three ways. First, the authors canvass a range of specific problems from disability rights policies to workers’ rights and property rights. Second, there is a noteworthy breadth of country comparison. Thus, the authors canvass countries as diverse as the United States and Nepal, Moldova and Colombia, Argentina and Jordan, Canada and Kenya to mention only a few.
Third, the authors consider different disadvantaged or vulnerable groups. The contributions consider questions of gender and race equality, children’s rights, the rights of persons with disabilities; sexual minorities; indigenous and aboriginal peoples. These groups do not exist in discrete silos of course – they are often overlapping and there are strengths to an integrated equality approach (Stein and Lord 2012: 46).
The emphasis across the contributions is on practical action rather than academic discussion. Thus, the collection is rich in detailed examples or case studies, from constitution drafting in Nepal and Kenya (Cottrell 2012), to labor rights activism in the US (Sachs 2012).
The editors’ opening essay situates the book’s program by referring to the struggle to desegregate public schools in the US, and the continuing existence of inequalities in fact long after equal rights had been proclaimed as the law of the land. Looking across the globe, many international instruments and national constitutions announce the existence of equal rights. The editors emphasise from the beginning that ‘making equal rights real’ is more than just having legislation and court cases that say so (Heymann and Cassola 2012a: 2). There is an important implementation gap for many rights (Heymann and Cassola 2012a: 7).
Sometimes this may be because of inadequacies or ambiguities in the law itself; for instance early constitutional guarantees on economic and social rights were ambiguous as to whether they were enforceable rights (Cottrell 2012: 52). This tendency to treat ESR as matters of policy rather than enforceable rights continues today in many national constitutions (Cottrell 2012). Or implementation gaps may be down to ordinary people not feeling ownership of legalistic rights guarantees (Cottrell [*273] 2012: 74). Until recently international human rights law did not explicitly address the rights of people with disabilities (Stein and Lord 20120 and still does not have any treaty text that addresses the rights of sexual minorities (Lesnikowski 2012: 362).
On other occasions, the law may be inadequate because it addresses formal equality rather than substantive equality. A formal model of equality focuses on the actions of individuals and is associated with an emphasis on neutral or characteristic blind models of justice. Such formal models often leave inequality intact. Thus Scalise and Giovarelli stress how even an apparently progressive and neutral measure like the formalisation of a property regime can reinforce factual inequalities; they discuss the role of gender inequality and conflict related inequalities in land rights (2012: 120-127). Galabuzi warns of the danger of adopting ‘colour blind’ language when dealing with racial inequalities (2012: 163). Substantive equality does not focus on the actions of individuals but rather seeks to look at the structural factors that reinforce disadvantage and discrimination. International human rights norms often stress substantive equality. Thus, Stein and Lord highlight how the Convention on the rights of Persons with Disabilities endorses the ‘social model’ of disability; ie disability discrimination exists because of a failure of society to change environments and attitudes that negatively affect people with disabilities (Stein and Lord 2012: 37).
Even when adequate laws exist, there may still be an implementation gap. The implementation gap may be because of the time bound nature of some international interventions; once a report is publicised, attention may move on and implementation ignored (Stein and Lord 2012: 44). Deficits in information may be important explanations for implementation gaps.
The implementation gap may also exist because the problem to be addressed has evolved; thus racism is no longer a crude system of formal distinctions but takes more subtle coded forms in the 21st century (Galabuzi 2012: 164-5). Or the context may have been radically changed; Bissio stresses the importance of ‘market fundamentalism’ as a key cause of setbacks for social justice worldwide (2012: 227-9). The implementation gap may also be down to actual hostility to the exercise of rights which may even go as far as the killing of labor activists (Sachs 2012: 92).
The essays offer a wealth of empirical information, used to identify the gaps in implementation. (Heymann and Cassola 2012a: 7). Galabuzi for instance lists examples of ongoing racial discrimination in fact, continuing notwithstanding the adoption of national and international texts on racial equality (2012: 154-157).
The authors also use empirical data to highlight that improvements in equity (equality) can go together with overall economic improvements (Heymann and Cassola 2012a: 9; Scalise and Giovarelli 2012: 125-126). This echoes the argument of Wilkinson and Pickett (2009).
While the authors concentrate on the implementation gap, they do not disparage the importance of traditional legal mechanisms, eg international [*274] treaties, legislation and court cases. The authors highlight efforts to use litigation to lever change from Kenya and Swaziland as well as the US (Heymann and Cassola 2012a: 2-3), India (Cottrell 2012: 76), Argentina (MacLennan 2012: 334) and Nepal (Lesnikowski 2012: 359). Several contributions argue for law reform as part of a wider agenda of legal empowerment (eg Scalise and Giovarelli 2012: 128; MacLennan 2012: 337). Stein and Lord identify how the mechanisms of the Convention on the Rights of Persons with Disabilities (CRPD) allow for inquiries and individual complaints (including by organisations on behalf of alleged victims) (Stein and Lord 2012: 31). They highlight how international treaties can be the catalyst for national law reform (Stein and Lord 2012: 35).
So legal mechanisms can be important, though they are limited and may even have negative side effects (Cottrell 2012: 77, 79). Legal mechanisms exist within a ‘complex system of power, socio-economic status, culture and psychology’ (Scalise and Giovarelli 2012: 141, speaking of property rights, though the point is generalisable). Traditional legal mechanisms therefore cannot be the only route to making equal rights real, but must be part of a wider strategy.
Traditional legal regulations needs to be supplemented with programs to raise awareness of legal rights for instance (Scalise and Giovarelli 2012: 134); this must be complemented with ‘education, training and communication’ programs to enable users to invoke their rights effectively (Scalise and Giovarelli 2012: 136). The need for an integrated strategy is also emphasised by Bishara-Rizeq, Qursha and Abdul Majeed in their study of strategies to prevent violence against children; they recognise the need not just for law reform but also economic reform, training for professionals, training for parents and children (for the latter including a puppet show), provision of shelters for domestic violence survivors, improving medical services and so on (2012). MacLennan analyses the work of disability rights organizations in terms of law enforcement strategies combined with education about rights, cooperation between state and civil society and generating political and social will.
Sachs identifies the need for creative alternatives to traditional legal regulation (2012). This may take the form of looking at different areas of the law (eg employment law or anti-discrimination law rather than labor law, Sachs 2012: 97), or relying on legal action at a different level of governance (eg state, city or local levels rather than federal levels in the US), or even pursuing private legal agreements rather than relying on (federal) law.
Many of the contributions emphasise the importance of participation at all levels of governance. Thus disability organizations helped shaped the agenda for the drafting of the CRPD (Stein and Lord 2012: 32-35); Stein and Lord recount how disability advocates took advantage of internet connections, and used creative learning exercises to sharpen their contribution to the process (33-35). These international standards can then form the basis for grass roots advocacy within nations (Stein and Lord 2012: 36).
Cottrell highlights the importance of participation in national constitution [*275] drafting though she also identifies the need to balance public input with legal expertise (2012: 65). She provides detailed studies of the public participation process in Kenya and Nepal. Galabuzi calls for full participation of Aboriginal peoples and racialised groups in all decision-making for a (2012: 178). The importance of imaginative and participatory educational strategies is emphasised by several of the contributions (Stein and Lord 2012: 41-2; Bishara-Rizeq, Qursha and Abdul Majeed 2012: 273; Wisken 2012: 303). Wisken offers a study of women’s participation in community development in Zambia (2012).
Given the importance of participation to these authors, it is unsurprising that many of them highlight the work done by civil society both at the local level but also internationally; also important to recognise is the need for cooperation between civil society organizations in different jurisdictions and across different levels of governance from the local to the international. Bissio provides an insight into how fruitful such cooperation might be with a study of the Social Watch Network (Bissio 2012).
Blyberg highlights another mechanism for realising equal rights; she emphasises the possibilities of human rights budget work, a sub set of civil society budget work (Blyberg 2012). Her essay provides an excellent primer for a complex and new topic. It provides an informative and concise overview of the different ways in which budget work can be done, the range of issues that it can address and the different levels of governance and audiences for human rights budget work. The essay also identifies challenges facing human rights based budget work. For more on this emerging area see Nolan et al (2013 forthcoming) and O’Connell et al (2013 forthcoming).
One of the challenges identified by Blyberg is the lack of transparency. This is a recurring theme; the authors stress the importance of adequate monitoring and information in order to assess the achievement of equal rights in practice (Galabuzi 2012: 178-182; Bissio 2012).
One of the most interesting aspects of the collection is how the authors address the relationship between universal rights and local contexts. It is a truism of international human rights law, at least since the Vienna Declaration of 1993, that universal rights have to be implemented in particular contexts. This is often a very bland statement, but these authors give considerable insight into what this means in practice. They regularly return to the issue of local context including local culture; it is important that the local traditions, cultures and such be understood. This is a particular theme for Wisken (2012) but it is also addressed by other contributions. Scalise and Giovarelli give the example of Rwanda where formal legislation seems to confer rights on partners in officially recognised marriages; this is problematic in a country where customary or religious only ceremonies and polygamy are practised. The problem is solved by relying on the Kinyarwanda rather than the English or French version of the law (Scalise and Giovarelli 2012: 132-3). Local context may make the application of universal standards problematic. Thus, participation is essential to correct the views of international advisers; the implementation of international [*276] standards needs to be carried out in a way sensitive to local culture and other contexts (Stein and Lord 2012: 38-39, 42, 43, 45; Scalise and Giovarelli 2012: 140; Bishara-Rizeq, Qursha and Abdul Majeed 2012: 268). The importance of recognising local context does not mean the local trumps the global; local attitudes can be changed though education strategies for instance (Wisken 2012: 308, 310).
This collection provides much thought provoking material for anyone concerned with making the majestic promises of legal equality a lived reality. The emphasis is not so much on academic research; eg except for the case studies in the final part there are few explicit discussions of methodology. Rather the authors draw on their experience and practical knowledge to offer many practical examples of what can be done, especially drawing on the work of civil society. The authors do not merely provide useful examples; they also frequently identify the difficulties facing activists. The result is a book that provides much useful material and inspiration for activists and indeed any academic interested in the practicalities of delivering on law’s promise.
Bishara-Rizeq, Samia, Sirsa A Qursha, and Laila S Abdul Majeed. 2012. "An Integrated Approach to Advancing Children's Rights and Participation in Jordan." In Making Equal Rights Real, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Bissio, Roberto. 2012. "Budgets, Information and Participation: Civil Society Approaches to Increasing Rights Accountability." In Making Equal Rights Real, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Blyberg, Ann. 2012. "Government Budgets and Rights Implementation: Experience from around the World." In Making Equal Rights Real, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Cottrell, Jill. 2012. "Ensuring Equal Rights in Constitutions: Public Participation in Drafting Economic Social and Cultural Rights." In Making Equal Rights Real, Jody eds Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Galabuzi, Grace-Edward. 2012. "Equalizing Social and Cultural Rights: Approaches to Equity across Ethnic and Racial Groups." In Making Equal Rights Real eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Heymann, Jody, and Adele Cassola. 2012.Making Equal Rights Real. Cambridge: Cambridge University Press.
Heymann, Jody, and Adele Cassola. 2012a. "Achieving Equal Rights: Lessons from Global Efforts." In Making Equal Rights Real eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Lesnikowski, Alexandra. 2012. "Guaranteeing Legal Rights for Sexual and Gender Minorities in Nepal." In Making Equal Rights Real eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.[*277]
MacLennan, Mary. 2012. "Realizing Equal Rights in Practice for People with Disabilities in Argentina and the United States." In Making Equal Rights Reall, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Nolan, Aoife, Rory O'Connell, and Colin Harvey. 2013 forthcoming. Human Rights and Public Finance. Oxford: Hart.
O'Connell, Rory, Aoife Nolan, Colin Harvey, Mira Dutschke, and Eoin Rooney. 2013 forthcoming. Applying an International Human Rights Framework to State Budget Allocations. Routledge.
Sachs, Benjamin. 2012. "Fulfilling the Promise of Economic Rights: Learning from Labor and Employment Law." In Making Equal Rights Real, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Scalise, Elisa, and Reneé Giovarelli. 2012. "Promoting Equity in Economic Rights: The Case of Gender and Land Rights." In Making Equal Rights Real, eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Stein, Michael Ashley, and Janet E Lord. 2012. "Forging Effective International Agreements: Lessons from the Un Convention on the Rights of Persons with Disabilities." In Making Equal Rights Real eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Wilkinson, Richard G., and Kate Pickett. 2009. The Spirit Level: Why More Equal Societies Almost Always Do Better. London: Allen Lane.
Wisken, Robyn. 2012. "Working within Communities to Increase Gender Equity in Zambia." In Making Equal Rights Real eds. Jody Heymann and Adele Cassola. Cambridge: Cambridge University Press.
Copyright 2013 by the Author, Rory O’Connell.