advancing-rights-and-capabilities-in-practice-exploring-the-realm-of-the-possible

Kaleja, Ance (2017). 'Advancing Rights and Capabilities in Practice: Exploring the Realm of the Possible' Paper presented at the annual conference of the HDCA, Cape Town 2017.


Abstract


Human rights and capabilities are typically assumed as distinct, yet interrelated concepts, that “go well with each other, so long as we do not try to subsume either concept entirely within the territory of the other” (Sen, 2005). Both aim to further agency, dignity, freedom and well-being, yet rights, unlike capabilities, impose a legal obligation on states to respect, protect and fulfil them under international law to further the human entitlements envisioned by rights. Moreover, all rights are to be read in conjuncture with the “underlying principles” of universality, accountability, inalienability and equality and are to be seen as indivisible and interrelated (Vizzard, 2005; OHCHR, 2008, 2006). Some of these principles are also shared by capability scholars – Sen has recognized the importance of process freedoms and public deliberation in prioritizing capabilities and Nussbaum (1997) has argued in favor or indivisibility of capabilities. Still, procedural and normative requirements are not clearly articulated within the capability approach while they form a definitional core of human rights. Partnership with rights, together with the promotion of democratic practices, is thus expected to supplement process aspects of freedom into capabilities, echoing the belief that individuals should be active participants, not passive beneficiaries, of development processes.


Within empirical analysis, however, it is states and governments that primarily determine the direction of policy, inevitably influencing individual freedoms and capabilities. In the face of imperfect institutions, limited capacities and resources, how are societies to advance rights and capabilities? Can opportunity and process aspects of freedom be equally observed? Are they equally valued? How can we assess the legitimacy of the choices made in prioritizing capabilities? These underlying tensions between rights and capabilities persist and continue to occupy a significant role in debating human development. This panel seeks to contribute to these debates empirically through analysing specific cases of capability expansion in their respective political, economic and social contexts and asks to what extent advancing capabilities coincides with the realisation of human rights. It approaches this question with reference to the aforementioned human rights principles to explore the extent to which the expansion of capabilities is open to accommodating differences in political application.


In his paper, Gomez suggests that in the context of the ASEAN+3 countries—i.e., South East Asia plus China, Korea and Japan—a paternalistic relation between society and the state is not necessarily seen as a violation of the process aspect of freedom, but embraced as a positive way to reach desired outcomes. Cultural and historical reasons are suggested as justifying for such a view that contrasts with Western ideas. Indeed, it is not unusual to find in the region that the basic understanding of empowerment starts from strengthening governmental institutions. While this could be viewed as a feature of Eastern political culture, as several authors suggest, the paper proposes different explanations that can help conciliate theoretical discussions with empirical observations, following Sen’s strong opposition to Asian values exceptionalism. The research is based on a set of eleven qualitative interview surveys commissioned in each of the countries of the region, except for Brunei and Laos, about the perception of major stakeholders about human security and the most important threats of their concern.


The second contribution explores the relationship between Economic and Social rights (ESR) and authoritarian regimes in particular. There is a widespread consensus that democratic states have superior human rights records in comparison with autocracies, yet several scholars have emphasised that the ‘intrinsic’ relation between rights and democracy becomes less straightforward once the concept of rights is extended towards the realm of socio-economic rights. The realisation of ESR is thought to be politically neutral and “susceptible of realization within the context of a wide variety of economic and political systems” (UN CESR GC No. 3, para 8 1990). At the same time, ESR fulfilment in non-democratic regimes is inadequately understood. The contribution by Ance Kaleja aims to address this shortcoming by investigating three authoritarian states, which, as indicated by the SERF Index, fulfil their duty of a feasible attainment of ESR, namely Singapore, Jordan and Belarus. It adopts a historical institutionalist approach to ask how and why these states have attained their ESR outcomes and explore whether ESR can be institutionalised in the absence of a democratic regime. The study finds that ways in which people’s access to ESR is ensured, may to varying degrees be compatible with the rights’ principles of ‘equality’ and ‘accountability’, but they are certainly not ‘inalienable’ as access to these rights fringe on a) compliance with the regime; and/or b) “voluntary” participation in the informal institutions advanced by state authorities whether these rights are constitutionalised or not.


Finally, the paper by Su-ming Khoo explores the ‘sinkhole’ effect advanced by contemporary political developments, which threatens the collapse of collective capabilities connecting civil and political freedoms, rational deliberation and the pursuit of wellbeing. It advances the idea of the democratic sinkhole, identifies pathways of negative capability formation and considers how collective capabilities positively or negatively connect ‘first generation’ civil and political rights or freedoms with ‘second generation’ economic, social and cultural rights. It explores the possibilities of public health ethics and new public goods theory to repair the democratic sinkhole and re-orient collective capabilities towards autonomy, beneficence, non-maleficence and justice.


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