Beyond the Violating State: New Rights Advocacy in a Global Public Domain

Paul Nelson

A growing set of social and economic policy decisions are being taken in a global public domain in which national/transnational boundaries are blurred, and the ‘public’ domain includes a variety of non-state actors. We argue that a new rights advocacy, advancing economic and social human rights as well as civil and political, is essential to understanding rulemaking in the global public domain. New rights advocacy involves traditional human rights and development NGOs as well as social movement organizations and new “hybrid” organizations in using human rights standards and methods to influence states, international organizations, and corporations; the new patterns of NGO engagement are studied here through case studies of advocacy on HIV/AIDS and on the right to water. New rights advocacy constitutes a direct challenge to neo-liberal development orthodoxy, suggests a new, human rights interpretation of the social movements protesting globalization, and manifests a more complex relationship between NGOs and poor country governments, in which NGOs often advocate on behalf of these governments’ sovereign rights to set economic and social policy.

187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 187 New Rights Advocacy in a Global Public Domain PAUL NELSON University of Pittsburgh, USA ELLEN DORSEY Carnegie–Mellon University, USA Social and economic policy decisions are increasingly being taken in a global public domain in which national/transnational boundaries are blurred, and the ‘public’ domain includes non-state actors. We argue that a new rights advocacy, advancing economic and social human rights as well as civil and political, is essential to understanding rule-making in the global public domain. New rights advocacy involves traditional human rights and development NGOs, social movement organizations and new ‘hybrid’ organizations, in using human rights standards and methods to influence states, international organizations, and corporations. The new patterns of NGO engagement are studied through case studies of advo- cacy on HIV/AIDS and on the right to water. New rights advocacy con- stitutes a direct challenge to development orthodoxy, suggests a new interpretation of the social movements protesting globalization, and mani- fests a complex relationship between NGOs and poor country govern- ments, in which NGOs often advocate on behalf of these governments’ sovereign rights to set economic and social policy. KEY WORDS ♦ civil society ♦ human rights ♦ international development ♦ NGOs (or non-governmental organizations) ♦ social movements Introduction The ascendancy of market-based, liberal approaches to trade, finance and devel- opment policy, and the diminishing roles of national government ownership and regulation of enterprises, are among the defining characteristics of world politics since 1980. The accompanying growth of influence by corporations has European Journal of International Relations Copyright © 2007 SAGE Publications and ECPR-European Consortium for Political Research, Vol. 13(2): 187–216 [DOI: 10.1177/1354066107076953] 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 188 European Journal of International Relations 13(2) been well chronicled, as has the less powerful but significant rise of NGOs and popular movements in national and international politics. The expanding roles of these non-state actors, and the increasing import- ance of decisions made in a variety of transnational fora have been summed up by Ruggie (2004) as the emergence of a ‘global public domain’. This is a political domain in which some — though by no means most — authoritative decisions are made in settings that cross national boundaries. This domain is ‘public’ in a sense broader than ‘governmental’: corporations, states, inter- national governmental organizations and civil society organizations participate in authoritative decision-making processes. Moreover, domestic and trans- national policy ‘spheres’ blur and intermingle in trade disputes, environmental policy, and intrastate conflicts, all of which also involve states, international corporations and NGOs and citizens’ movements. ‘Global public domain’ is an appropriately open framework by which to conceptualize changes in governance that are neither consistent nor unidirec- tional. While corporate interests have enjoyed success in reducing the regula- tory and legal restrictions on their conduct, in some areas of public life civil society organizations appear to gain prominence through their initiatives. In still other instances, states are successfully working to restore some of their dis- cretion and authority. Rule-making to govern corporate conduct, under the rubric of corporate social responsibility, has been largely voluntary and ad hoc. Ruggie (2004: 511) notes that rules that ‘favor global market expansion’ are widely perceived as having advanced rapidly, while those that ‘promote equally valid social concerns’ such as ‘labor standards, human rights, environmental quality or poverty reduction, have not kept pace’. We argue that the new rights advocacy and the full spectrum of human rights that it advances, civil and political as well as economic and social, are essential to understanding rule-making in this global public domain. One of the key characteristics of contemporary civil society activism is a dramatic increase in the application of human rights standards and strategies to economic, social and development policy issues. Despite some successes elsewhere, NGOs have been largely unable to alter the neo-liberal orientation of development finance, trade, and the regulation of monetary policy and investment (O’Brien et al., 2000; Nelson, 1996; Scholte, 2002). This article examines the emergence of new strategies grounded in international human rights standards, strategies which represent a new approach by NGOs and which challenge widely held views of the relationship between NGOs and states. Economic and social rights (ESC) such as the right to food, to health or the broader ‘right to development’ have long been debated by governments, scholars and NGOs (Steiner and Alston, 2000; Sengupta, 2000). But recently these human rights have become more prominent in the agendas and strategies of some bilateral development aid donors, notably the British 188 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 189 Nelson and Dorsey: New Rights Advocacy Department for International Development (DFID) and the Swedish International Development Agency (Sida); and of some NGOs and social movements, which have applied them to more specific policy debates, such as agrarian reform, access to essential medicines, women’s reproductive health, and privatization of water supply systems. New and distinct patterns of NGO political action are emerging in advocacy on economic and social rights, as well as in other activism on economic and social policy, which we call the New Rights Advocacy. We use ‘new rights advocacy’ (NRA) to refer to advocacy on social, economic or development policy, at local, national, or international levels, which makes explicit reference to internationally recognized human rights standards. Several characteristics of the NRA are outlined in the following paragraph, but two comments on the definition are needed. First, we do not specify at what levels (national or international) NRA takes place. The advocacy explicitly draws on international standards, but it may draw on international influence to shape domestic policy choices, or on domestic initiatives to influence an international process. Second, we adopt the term ‘new rights advocacy’ advisedly. The stand- ards themselves are far from new. Most of the specific standards discussed here (health and food, for example) are mentioned in the Universal Declaration of Human Rights, and given legal standing in the International Covenant on Economic, Social and Cultural Rights, which entered into effect in 1976. The recent development of the ‘right to water’ is taken up below. What is both substantially new and significant is the nature of the advocacy that is outlined here. First, it is characterized by its explicit appeals to human rights standards, by its promotion of both civil and political human rights and economic and social human rights, and by the scope of activity and the broad range of actors whose behavior it targets. Second, it assigns accountability for the effects of economic policy in a distinctive way, attempting to develop an important if vague principle in human rights law, that responsibility for fulfil- ling ESC rights in some circumstances is shared by international actors and wealthy governments. Third, the NRA involves a decisive shift, compared to the established practice of civil and political human rights advocacy, in how appeals are made to international authorities to uphold those rights and in rela- tion to governments whose duty it is to protect those rights. These features lead us to advance two broad arguments: a theoretical argument regarding the models by which we understand NGO involvement in international politics and, by implication, the responsibilities of states and international authorities; and a substantive argument about the significance of human rights in shaping social and economic policy, and the importance of NGOs in promoting eco- nomic and social human rights norms. Theoretically, the rise of New Rights Advocacy challenges existing models for the relations between states, NGOs, and international authority, and clarifies 189 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 190 European Journal of International Relations 13(2) the basis for rule-making in economic and social policy. Prevailing models for understanding NGOs as political actors are inspired largely by civil and political human rights and environmental advocacy, and characterize NGO advocacy as a process of building international support in order to force changes in individual states’ behavior. But in a growing number of move- ments, especially involving economic and social rights, international actors play fundamentally different roles. Here, NGOs often work to weaken the roles of some international organizations, notably the International Monetary Fund (IMF) and the World Trade Organization (WTO), to alter the foreign and economic policies of powerful states, and to protect and broaden the options of national governments. Such advocacy only occasionally manages to win the support of G-8 governments, is unlikely in the near term to enlist the support of the United States or of the international financial institutions (IFI), yet we will argue that it provides a new and more convincing account of NGO polit- ical advocacy since the late 1990s. This shift is momentous for human rights practice, and has important impli- cations for how we think about the state. Many governments and human rights practitioners have historically resisted ESC rights because they are char- acterized as ‘aspirational’, more subjective than civil and political human rights, and because of the difficulty of assigning accountability for ESC rights when most governments have limited control over economic conditions, and limited capacity to provide services (Korey, 1998; Alston, 1994). The ascendancy and widespread application of neo-liberal economic policies intensifies this prob- lem for ESC rights by further limiting many governments’ control over eco- nomic and social conditions. But this difficulty of assigning responsibility to a single state as sole duty bearer, usually considered a weakness of ESC rights, is being addressed by strategies that seek to transform it in practice into strength, by targeting eco- nomic actors — including rich country governments — that create barriers to the realization of specific economic and social rights in national settings. The traditional tension between international NGOs and poor country govern- ments is altered and sometimes reversed, as NGOs support and cooperate with governments and work against the constraining effects of trade rules, economic policy conditionality, and corporate leverage. New rights advocacy is growing in breadth and scope, and has potentially far-reaching significance. First, it calls more serious attention to ESC rights in national and international policy-making. These rights, which are legally and theoretically co-equal with civil and political guarantees such as freedom of speech, and protections against arbitrary detention and torture, have not de- veloped the same support among powerful industrial countries, nor among NGO advocates, that civil and political human rights now enjoy. The Cold War and ideologically driven debates bifurcated the human rights system and 190 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 191 Nelson and Dorsey: New Rights Advocacy relegated ESC rights to a secondary and ‘aspirational’ status. The new rights advocacy challenges this relative obscurity and calls for reintegration with civil and political rights. Second, the NRA is the first fundamental challenge to a market-dominated development framework that reshaped national economies and international trade and finance during the 1980s and 1990s. New movements are drawing on human rights standards to challenge the application of market logic to the delivery of water and basic services, to argue for the right to agrarian reform and education, and to assert the primacy of human health considerations in setting national and international policy regarding HIV/AIDS. Resistance to privatization and liberalization plans has been a feature of national politics in developing countries at least since the 1970s. New rights advocacy movements are challenging market-driven orthodoxy at the international institutions with greater political force and legitimacy than critics of structural adjustment pol- icies have previously mustered. Third, the new rights advocacy entails a fundamentally new understanding of accountability for the failure to meet human rights standards. In traditional civil and political rights advocacy, governments are accused of practising arbitrary detention, torture, or discriminatory access to legal remedies, and international actors are persuaded to exert leverage, pressing the offending governments to amend policies and practices. New Rights Advocacy is not constrained by the sole focus on the state as duty bearer and violator of human rights, targeting many institutions, including international financial institutions (IFI), trans- national corporations, trade regimes, rich country governments and poor coun- try governments themselves, whose policies and behavior have an impact on economic and social rights and/or civil and political rights in poor countries. Advocates question the authority of international agencies and rules that weaken states’ capacity to meet social and economic rights obligations. They also call upon rich countries to provide more generous and effective develop- ment assistance, invoking the provision in Article 2 of the ICESCR that estab- lishes international co-responsibility and cooperation to meet ESC rights (Jochnick, 1999). The effects of broadening its advocacy ‘targets’ varies from case to case, as we will see. Our investigation and substantiation of these claims follows, in three parts. The first outlines existing models for NGO and social movement action. The article’s second part introduces and analyzes three distinctive features of the New Rights Advocacy: its challenge to market-driven development norms, its new assignment of accountability for failures in economic and social rights, and the broad range of actors — states, international organizations, corporations — that it targets. These characteristics are analyzed through discussions of two case studies, campaigns on the right to water and on HIV/AIDS; and by briefer reference to other, related NGO advocacy. 191 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 192 European Journal of International Relations 13(2) We conclude by outlining the implications for understanding NGOs as international political actors, their relation to states and international agencies, and the importance of ESC rights for governing in the global public domain. Models: NGOs and International Politics Theory-building in the field of ‘non-state actors’ in International Relations scholarship emerged in the last two decades, to reflect the growing influence of NGOs in global, regional and national policies. The leading accounts of NGOs as international political actors — transnational issue networks (Keck and Sikkink, 1998) and transnational social movement theory (Tarrow, 2005; Tarrow and della Porta, 2005) — have advanced our understanding of norms and actors in many key issue domains. We argue that both tend to assume an adversarial relationship between NGOs and the ‘target’ state; and both tend to exclude an important set of social policy issues. The issue network model, outlined by Sikkink (1993), elaborated by Keck and Sikkink (1998), and extended to a range of issues in a volume edited by Khagram, Riker and Sikkink (2002), has been strongly influenced by civil and political human rights advocacy. The apparent successes by human rights advo- cates provide the largest set of empirical cases underlying the burgeoning NGO literature: studies of civil and political human rights in Chile, Mexico, Argentina, Indonesia, a collection of seven additional country studies (Risse et al., 1999), and several accounts of human rights in recent edited volumes, have been the source of the leading models for understanding the strategies and influence of non-state actors and networks in International Relations theory. Issue networks are made up of NGOs or social movement organizations, individuals or agencies within national governments, international organiza- tions or agencies of the UN, and sympathetic intellectuals or other individ- uals. Linked by shared values and by dense exchanges of information among participants, issue networks play a central role in what Keck and Sikkink refer to as a ‘boomerang’: domestic activists who find their government unrecep- tive enlist the support of international NGOs or others, who appeal to inter- nationally codified norms and standards and convince powerful governments and international actors to exert pressure on the target state. Risse et al. (1999: 234–78) put forward a five-stage ‘spiral’ model for human rights issues, which shares with the ‘boomerang’ an emphasis on the formation of networks, the role of principled ideas and norms, and the ‘mobilization of shame’ to appeal to international authority to force changes in domestic human rights policy.1 International Relations theory and social movement theory have both introduced rigidities into scholarly work on the NGO–state relationship. 192 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 193 Nelson and Dorsey: New Rights Advocacy International Relations scholars, seeking an account of widespread and diverse political action, crafted models that tie principled non-state actors to recognized sources of power in international politics: powerful governments and inter- national organizations. But the forms of NGO politics, as Mertes (2004) shows in the case of US human rights advocacy, are in fact more diverse than the boomerang model allows. Sikkink’s (2005) adaptation and expansion of the issue network model takes into account a greater variety of strategies available to activists, including ‘defensive transnationalization’ strategies, in which advo- cates target international agencies not to win leverage over states but to reduce constraints on states’ policy choices. The recognition that advocates sometimes defend national governments’ policies or prerogatives against constraining trade rules or policy conditions set by international financial institutions is a first step toward understanding the more diverse and complex relations among states, NGOs and international institutions that we associate with the new rights advocacy. This move to adopt strategies that cooperate with poor coun- try governments echoes debates among globalization activists over the strategic posture toward such governments (Hardt, 2004; Mertes, 2004). But by pla- cing international human rights on the side of (some) poor country govern- ments, and linking human rights to their claims of sovereign rights over social policy decisions, it reframes the debate as not only a matter of social movement strategy, but a pivotal choice for global governance. Paul Wapner’s (1995) demonstration that NGOs also practise a form of ‘civic politics’, whose targets are often corporations and consumers, also recognized the broadening scope of NGO strategies. Politics, Wapner argues, is about ‘ordering collective life in matters of common concern’, and environmental pol- itics includes decision-making in the boardrooms of McDonalds or Monsanto, with or without direct governmental involvement. Richard Price’s (2003) wide- ranging review of recent books on international civil society advocacy correctly notes this growing diversity of strategies. Social movement theory, including the recent additions to transnational social movement theory by Tarrow (2005) and Tarrow and della Porta (2005), seeks to identify the conditions under which domestic social move- ments produce transnational mobilization. Dense connections among states, non-state actors and international institutions create opportunities for collect- ive action at all levels (Tarrow, 2005, 25), and the result, ‘transnational con- tention’, frames issues in new, global terms, shifts the ‘scale of contention’ and increases the variety of forms of collective action, and may create ‘durable transnational coalitions’. This transnational contention changes the ‘claim- making’ of social movement actors, who draw on the ‘resources, networks and opportunities of the societies they live in’. Our treatment of advocacy related to ESC rights takes this insight two steps further. First, it argues that the claims made by domestic and transnational 193 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 194 European Journal of International Relations 13(2) actors are often united by a codified, legal set of international human rights standards, standards that are sometimes incorporated into national law and con- stitution. These international standards offer a source of legitimacy for the eco- nomic and social claims of social movements and NGOs, as their explicit appeals to internationally accepted human rights standards define more precisely and with greater political power the ‘claim-making’ of social movements that Tarrow describes. Second, these human rights standards and principles not only provide common grounds for mobilizing claims and demands, they also often imply methodologies, strategies and a source of leverage at both national and international levels that is not captured in the recent social movement literature. Both models exclude some cases while illuminating others. The excluded cases, we will show, are a significant and now increasingly visible body of inter- national political activity relating to economic and social policy and the politics and institutions of international development. The excluded cases take on added significance because they involve NGOs and the governments of poor countries in more diverse and more often collaborative relationships than are present in existing models. This article places this broadening of NGO strategies in the context of the global public domain, and demonstrates the central role of a new politics of human rights advocacy in promoting the relevance and authority of human rights — including ESC human rights — to complex rule-making and policy- making processes. This advocacy involves organizations from human rights, development and environment sectors in establishing new, more complex rela- tionships among NGOs, international organizations and poor country govern- ments. It involves a growing commitment to the entire range of international human rights standards in shaping transnational governance processes, national constitutions and laws, economic and social policies, and the conduct of a range of state, interstate and corporate actors. The New Rights Advocacy Development, environmental and human rights advocates are engaged in an important strain of international activity that is not sufficiently explained by contemporary International Relations, social movement or human rights litera- ture. The new political activity draws on human rights norms to shape eco- nomic and social policy, entails a wide range of diverse organizations and issue areas, and has sparked regional and international campaigns involving grass- roots social movements and NGOs. The number and intensity of these cam- paigns increased rapidly in the 1990s and the first years of the new century, and focused on specifically defined issues, such as the rights to drinking water and essential medicines, rather than the broader right to food or right to develop- ment. This section first outlines the range and breadth of the initiatives; their 194 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 195 Nelson and Dorsey: New Rights Advocacy political implications will then be analyzed through case studies on water and HIV/AIDS. The expanding interest in economic and social rights encompasses three trends: The first is the move by traditional civil and political rights NGOs to cover ESC rights, exemplified by Amnesty International’s adoption in 2001 of a new mission expanding beyond its historic civil and political mandate to include work on ESC rights, or Human Rights Watch’s work on HIV/AIDS or property rights for women.2 The second is the growth of new movements and organizations that explicitly link human needs issues to ESC rights stand- ards, as in campaigns for essential medicines, the right to water, and women’s reproductive health rights. Among the leading international NGOs making ESC rights central to their missions are the Center for Economic and Social Rights (CESR), the Center on Housing Rights and Evictions (COHRE), the Food Information and Action Network (FIAN), and the International Women’s Health Coalition. These international initiatives have often been led and even challenged by national NGOs in the countries of the global South, with agendas dedicated to ESC rights.3 The third trend making up the new rights advocacy is a rights-based approach (RBA) to development being adopted by existing development, environment and labor groups. International development NGOs such as CARE-USA, Oxfam, ActionAid International, and Rädda Barnen (Save the Children-Sweden) are implementing ‘rights-based’ approaches that parallel similar moves by official development agencies including UNDP, the UN Food and Agriculture Organization (FAO) and the Swedish and British bilateral aid agencies (Nelson and Dorsey, 2003). These official development agencies’ interest in rights rarely intersects with the human rights-driven advocacy cam- paigns. DFID and Sida are both concerned primarily with the benefit that human rights analysis of poverty and social exclusion can have for development program and project design (Sida, 2001; DFID, 2000). NGOs have used a diverse, varied and not always consistent set of strat- egies as they seek out means of gaining leverage from human rights standards for economic and social policy issues. These methods include the rhetorical referencing of human rights standards to shape and frame policy debates, the application of specific standards to measure and evaluate the performance of government services or development aid projects, litigation of human rights claims before judicial and quasi-judicial bodies, and human rights education to help communities and social movements make the link between social and economic needs and human rights guaranteed by international norms and standards (Nelson and Dorsey, 2003). These methods are often combined in issue-specific advocacy campaigns. Education advocates, for example, have sometimes made reference to human rights guarantees in a campaign at the international level to encourage 195 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 196 European Journal of International Relations 13(2) investment in guaranteeing access to universal primary education, primarily as a legitimating norm. National campaigns, on the other hand, have made the human rights guarantees more central, as in India, where advocates success- fully argued for a national education policy that guarantees universal access to primary education (Subrahmanian, 2002). Advocates for African women’s property rights base much of their attack on legal and cultural impediments to ownership and inheritance in the principles of non-discrimination that are enshrined in human rights agreements (Human Rights Watch, 2003). In other settings, education about human rights itself is a central strategy to realize economic and social rights. Human rights education encourages citizen groups to be aware of and to assert their rights in addressing governments and corporations. The Peoples Movement for Human Rights Education is a lead- ing NGO in the field, and the International Women’s Health Coalition sup- ports human rights education as a means of strengthening local women’s networks’ ability to make the case for health services (Irvin, 2000; People’s Movement for Human Rights Education, n.d.).4 Human rights analysis may also be part of an effort to frame — or re- frame — an issue, to win international legitimacy for popular socioeconomic struggles. Local and national advocacy for agrarian reform, for example, has broadened its support as peasant movements such as Brazil’s Movimento dos Trabalhadores Rurais Sem Terra (MST) are linked to human rights-based organ- izations such as the Food First Information and Action Network (FIAN), which uses urgent action alerts modeled on Amnesty International’s prisoner of con- science advocacy. FIAN argues that agrarian reform, which is essential to addressing rural poverty in countries with significant agricultural employment, has been betrayed by official development institutions, and makes the human right to food its basis for making the case for agrarian reform as a human rights issue (Windfuhr, 2000). What is ‘New’ About the New Rights Advocacy? What is important about these efforts, and others like them, is the distinctly different pattern of political action involved. While the New Rights Advocacy borrows methods drawn from civil and political rights advocacy of the past, three major distinctions set these movements apart from the patterns outlined in existing models of NGO political action. First, new rights advocacy addresses policy issues that are already dominated by another strong set of norms, which hold that goods and services are best delivered by markets, and that state guarantees are often inefficient, or worse. NGO campaigning against neoliberal policies is not new, to be sure: structural adjustment plans provoked opposition, with only limited results, throughout the 1980s and 1990s. But the mobilization of human rights principles and 196 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 197 Nelson and Dorsey: New Rights Advocacy standards against this dominant and controversial set of norms is new. Early efforts to promote civil and political rights confronted the competing norm of sovereignty, and advances in civil and political rights have often involved estab- lishing the principle that human rights agreements give states the authority to investigate, comment on and intervene in the relations of sovereign govern- ments and their citizens. Human rights advocates devoted considerable political energy to winning powerful governments’ cooperation in promoting civil and political rights through their foreign policies. But the core values behind civil and political rights were attractive to powerful — particularly Western — states that were being urged to constrain the sovereignty of other nations by pressuring for political reform. Economic and social rights, on the other hand, are likely to be seen as conflicting with the widely held norms of neo-liberal policy and limited govern- ment, held dear by the United States and influential international organizations. Second, new rights advocacy establishes a different standard of accountabil- ity for failures to meet international economic and social rights. Advocates often seek to restrict, not draw on, the influence of international organizations and powerful governments, and NRA tends to involve NGOs in more com- plex relationships with poor country governments, relations that are some- times adversarial, sometimes supportive. Third, new rights advocacy involves a broad range of issues and diverse political arenas (national and international), ‘targets’ (inter-governmental, governmental, and corporate), and partnerships (among environmental, devel- opment, human rights, women, indigenous and children’s advocacy organiza- tions). These place NGOs and social movements in a new posture as they attempt to establish the authority of human rights standards, including ESC rights, over social and economic policy-making, adding even greater complex- ity to the ‘transnational contention’ that Tarrow outlines. This new dynamic in the emerging global public domain is illustrated by reference to two of the principal social policy debates in contemporary inter- national affairs: the privatization of water systems and the global response to the global AIDS pandemic. The two campaigns illustrate characteristics of other issue campaigns, such as the campaign for access to essential medicines,5 for the right to agrarian reform, for women’s property rights, and for the right to education. They also exemplify the central characteristics of the new rights advocacy: the increasing specificity of campaigns related to ESC rights, their complex relations with governments and international agencies, their appeal to human rights standards as a source of leverage against norms of liberal- ization and privatization; and the wide range of issues, strategies, and political arenas that they address. Both cases originate with initiatives by local social movements determined to change, or prevent changes, in state policy. Local activists use the language of rights, and international campaigns emerge, also 197 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 198 European Journal of International Relations 13(2) directed at preventing international institutions or rules from blocking human rights-friendly policies. Conflicting Norms: Markets, Human Rights, and the Case of Water Human rights standards are being invoked and strategically deployed by advo- cates for guarantees of universal access to adequate supplies of safe drinking water. The human right to water is recognized in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 14(2)(h)) and in the Convention on the Rights of the Child (Article 24), and was reinforced and given a higher profile in November 2002 when the UN Committee on Economic, Social and Cultural Rights issued an explanatory General Comment, the fifteenth in the Treaty’s history, making explicit the ICESCR’s guarantee of a right to water (Committee on Economic, Social and Cultural Rights, 2002). Advocates of water rights, however, confront a powerful set of norms in international development and finance emphasizing market mechanisms and the benefits of economic openness and reduced government roles in the econ- omy, norms which have been promoted influentially for more than two decades by the US government and the World Bank and International Monetary Fund. Goldman (2005) demonstrates how privatization was effectively pro- moted by the World Bank and global water corporations including Vivendi, Suez, and other companies. But market-led development, even with the now- conventional modifiers that recognize the need for ‘broad-based’ growth, investment in human capital, good governance, and social safety nets, does not coexist comfortably with a framework for development built on guarantees of universal rights. Asserting universal rights to health, water, or education is in part a means of gaining leverage against market-based development policy. Consider the use of human rights standards, rhetoric and strategies by advo- cates opposing the privatization of national and municipal water systems. At least 14 countries in sub-Saharan Africa, and numerous countries and munici- palities elsewhere, are implementing or considering dramatic changes to water supply systems (Hall et al., 2002; Grusky, 2001). Encouraged by the World Bank and/or IMF (Hall et al., 2002), and promoted by several large corpor- ations specializing in water systems management, the new policies involve a shift from state-managed water provision to provision by the private sector, usually international contractors, with fees paid by end users. There is often a good case for re-working these water systems. Many state- managed systems, while providing drinking water at little or no cost to some citizen-clients, are plagued by high administrative costs, financial losses, leakage, 198 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 199 Nelson and Dorsey: New Rights Advocacy and inadequate coverage, especially of poor ‘customers’ (Globalization Chal- lenge Initiative, 2001). But in virtually every municipality and country where privatization has been proposed or begun, local and national resistance has been vigorous. In Ghana and Bolivia, national governments agreed in 1999 to new water delivery sys- tems, municipal or national, managed by private contractors and financed in part by user fees. Local consumer movements, national NGOs and inter- national NGOs have all been involved in resisting privatization and/or advan- cing proposals to modify fees and administration. In Ghana, the Coalition against Privatisation of Water in Ghana (‘the National Coalition’) objected to the government’s ‘fast track’ implementation of privatization, the lack of trans- parency in preparing contracts and transactions, and the perceived favoring of multinational corporations in the sale of public water utilities (Ghana National Coalition, 2001). The Ghanaian campaign has succeeded in sparking international support through two mechanisms. First, the World Bank’s prominent involvement in the national privatization scheme means that a set of international NGOs that focus on World Bank policy are receptive to the Ghanaian NGOs’ case. Washington-based NGOs such as the Services for All and the International Water Working Group were among the earliest international critics of the Ghanaian privatization (Grusky, 2001; International Water Working Group, 2002). Second, Ghanaian advocates took steps to link to international oppon- ents of privatization, through speaking tours and by sponsoring an inter- national fact-finding tour to Ghana (Amenga-Etego and Grusky, 2005: 285). The dispute over water privatization in Cochabamba, Bolivia has become a cause celebre of the global debates. Citizen organizations resisted a planned contract with a consortium controlled by Bechtel, Inc., which doubled water tariffs for many consumers. Extensive public protests ended with the consor- tium abandoning its contract to privatize Cochabamba’s system (Finnegan, 2002), and a lawsuit by Bechtel to recover costs was dropped in January 2006 (‘Bechtel Drops $50 Million Claim’, 2006). The Water Observatory’s docu- ment archive provides a thorough record of social movement and NGO advo- cacy, and makes it possible to trace the references to economic and social rights over the course of national debates (Water Observatory, n.d.). In Ghana, Bolivia and in similar debates in South Africa, India, and elsewhere, local and national coalitions of poor people’s and consumers’ organizations press for free access to water and against privatization, making reference to international human rights (Ghana National Coalition, 2001), or to national constitutional or statutory guarantees (Joint Rural Development Services, 2000). The rights-based cases against privatization advanced by NGOs and human rights advocates in India and South Africa are among the most potent. In India, 199 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 200 European Journal of International Relations 13(2) human rights arguments are prominent in legal and political challenges to the National Water Policy of 2002, which provided for private ownership and man- agement of water systems (Pant, 2003). Human rights are similarly invoked in opposition to corporate use of water resources, especially by soft-drink bottlers (Vidal, 2003). In South Africa, the movement for the human right to water was galvan- ized by private water providers’ use of pre-paid water meters on village and neighborhood pumps. These meters, which allow water to flow only to those who have paid in advance, are manufactured in South Africa and exported, and their use has sharpened the perception that privatized water systems will involve systematic violations of poor citizens’ rights (Anti-Privatisation Forum, 2003; Marvin et al., 2001; ‘Protest pre-paid water meters in South Africa’, 2003). In both cases, local advocates’ references to human rights have been picked up, amplified and made more systematic by NGOs working at the global level. Through the 1990s, international support for local water movements took three primary forms: small solidarity networks with links to a country or city; anti-privatization advocates already working on privatization issues at the World Bank and IMF; and anti-corporate globalization activists led by the Canadian Blue Planet Network, concerned with global water issues. All used the language of rights, but generally without any specific reference to inter- national agreements. For example, international coalitions mobilized individ- uals and organizations from five continents in support of the claim that ‘water is a fundamental, inalienable individual and collective right’, and that ‘it is up to society as a whole to guarantee the right of access …without discrimination …’ (Global Committee for the Water Contract, 1998), and calling on govern- ments to pledge ‘not to privatize, trade, export water, and to exempt water from trade and investment agreements’ (Blue Planet Project, 2001). International human rights NGOs were not involved. But the pace and intensity of human rights-related water advocacy has grown rapidly in the 2000s, stimulated both by the pace of privatization efforts and the publication of General Comment 15 on the Right to Water in 2002. Three international NGOs that have begun work on the human right to water since 2003 exemplify the dominant role of the human rights frame in the water debates. The New York-based Committee on Economic and Social Rights (CESR) advocates a human rights-based approach as the best guide to the chal- lenges of water provision. CESR (2004) references human rights agreements and affirmations of the right to water in national constitutions, and proposes a standard for policy and litigation by tying the human right to water to the World Health Organization’s standards of access to 20 to 40 liters of water daily, ‘within a reasonable distance from the household’. 200 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 201 Nelson and Dorsey: New Rights Advocacy The International Water Working Group (IWWG), a coalition headquar- tered at Washington, DC-based Public Citizen, focuses its advocacy work on the IMF, World Bank, and the WTO’s General Agreement on Trade in Services (GATS). Only in 2003 did IWWG begin making specific reference to water as a human right, and it has now assembled a thorough analysis of the use of prepayment water meters (IWWG, 2004). Other South African and international advocacy organizations take similar positions (Concannon and Griffiths, 2001; Coalition Against Water Privatisation, 2004). The UK-based NGO WaterAid adopted a ‘human rights approach’ to its work in 2003. The organization’s new framework has implications for its water- related project assistance (Water Rights, n.d.), and has expanded its advocacy work by initiating a critique of ‘private sector participation’ in water system reforms (WaterAid, 2003). A flood of new reports, position papers and advocacy initiatives were launched in 2003, 2004 and 2005 by other international NGOs and networks: the German NGOs Brot für die Welt and WEED (Hoering and Schneider, 2004); Jubilee South (Laifungbam, 2003), Amnesty International (2003), the Centre on Housing Rights and Evictions (COHRE) (2004); an Inter- American network (Red Vida, 2005) and a global meeting on water rights in Geneva. Major reports by the WHO (2003) and WHO, COHRE and the American Association for the Advancement of Science (2004) systematically frame water as a human rights issue. Water advocates are not alone in employing human rights-based advocacy to counter the power of market norms. HIV/AIDS advocacy, discussed below, and some housing, education and welfare rights advocates are making similar strategic use of human rights standards and methods. Often they do so while cooperating with poor country governments against the authority of international institutions and rules, and we now turn to this second distinctive feature of the new rights advocacy. Beyond the Violating State: The Complex Politics of New Rights Advocacy The New Rights Advocacy features a new approach to assigning account- ability for many failures to meet ESC rights standards. While advocates rely on international human rights norms, they are not likely to call on inter- national agencies or powerful governments to influence a target government’s behavior. Rather they enter into more complex and sometimes cooperative relationships with poor country governments, and assign responsibility for the failure to fulfill rights to multiple actors, often including powerful gov- ernments or international agencies. Appeals to states’ sovereignty, far from 201 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 202 European Journal of International Relations 13(2) being used to resist or obstruct human rights claims, here are aligned with economic and social rights advocacy. International norms are essential to most human rights and environmental advocacy, including advocacy of ESC rights. International agreements on eco- nomic and social rights began with the 1948 Universal Declaration of Human Rights, but were not further specified until the conclusion of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR’s 30 articles articulate rights to a range of economic and social goods, many of which are further explained by General Comments on Implementation, appended to the Covenant by the Committee on ESC Rights of the United Nations Economic and Social Council. The international politics of ESC rights norms and advocacy are different from those of civil and political rights. Civil and political rights strategies tend to rely on the regulatory or diplomatic powers of G-8 governments or inter- national agencies, and advocates devote a great deal of political effort to win- ning and maintaining the support of such states. Advocacy on economic and social rights often aims to weaken, not reinforce, the leverage of international organizations or G-8 governments. In some cases, new rights advocacy demands an accounting of the finance, trade and development assistance policies of G-8 countries, and their impact on economic and social rights. Frequently, the human rights advocates’ support for poor country govern- ment initiatives means that sovereignty and human rights arguments are aligned, rather than opposed, as is often the case in civil and political human rights. Some international agencies (notably the IFIs and WTO) and powerful governments (particularly the United States) are less friendly to ESC rights than are many poor country governments, and NGO advocates often adopt a broad, two-pronged position: that governments should retain more discre- tion in making choices regarding their trade and social policies; and OECD governments and international institutions should uphold their obligations for international cooperation and assistance to advance ESC rights in poor countries. This agenda implicitly broadens accountability, shifting from a sole focus on the ‘violating state’ and assigning co-responsibility to the actors that may create obstacles for those states to the realisation of human rights in a global economy. The precedent has been set by sustained calls for rich gov- ernments to increase their support for the UN Fund to Fight Tuberculosis, Malaria and AIDS on the basis of Article 2 of the ICESCR, which sets out the international obligation for assistance.6 We are not arguing that poor country governments are freed from respon- sibility to respect, protect and fulfill economic and social rights: international standards focus on states’ duties progressively to realize those rights and to ensure that they are delivered without discrimination. The politics of human rights is now ‘beyond the violating state’ not because states are no longer 202 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 203 Nelson and Dorsey: New Rights Advocacy accountable for fulfilling ESC rights, but because in a global economy ac- countability is increasingly shared by corporations, international economic actors and —in some cases — rich donor governments. HIV/AIDS: New NGO–Government Relationships Much international HIV/AIDS advocacy has been explicitly linked to inter- national human rights standards, and grounded in and supportive of initia- tives by national governments. Advocacy on HIV/AIDS has often been grounded in the assertion that access to care for HIV-infected patients is an essential component of the internationally recognized human right to the ‘highest attainable standard’ of health (ICESCR Article 11; ‘tHoen, 2000; ‘Health GAP: Global Access Project,’ n.d.; Oxfam International, 2002a). According to Ziti (quoted in Berkman, 2001), human rights standards serve HIV/AIDS policy and practice as ‘a body of international law, a set of norms for governmental behavior, and as a strategic tool for social change’. The AIDS advocacy movement is vast and diverse, and our interest is limited to demonstrating the role of human rights principles and methods, and the impact that these methods have had on the pattern of government–NGO contestation and cooperation. Advocates for a strong, human rights-based response have emphasized four themes since the mid-1990s: the demand for access to medicines, in- cluding the effort to overcome WTO trade rules and patent restrictions on their generic manufacture (Oxfam International, 2001, 2002b); the protec- tion of people with HIV/AIDS from discriminatory treatment; the call for funding for the United Nations’ Global Fund for HIV/AIDS, Malaria and Tuberculosis; and the campaign to influence the behavior of pharmaceutical companies. Médecins Sans Frontières (MSF) and the South African Treatment Action Campaign, traditional human rights organizations such as Physicians for Human Rights, Global Treatment Access Network and the Health Global Access Project (GAP), and AIDS activist organizations in the US and Europe have all provided leadership in the international human rights-based move- ment on HIV/AIDS. Advocating for a more adequate financial commitment by wealthy country governments is not a new theme for development NGOs, which have called for more generous official aid allocations for decades. Human rights NGOs joined in the effort to encourage full funding of the UN’s Global Fund in- voking the human rights obligation of wealthy country governments to con- tribute and seeking to shift the framing of the development assistance issue, from aid as charity to aid as fulfillment of a fundamental right. Human Rights Watch’s program on HIV/AIDS focuses largely on civil and political rights of HIV/AIDS patients. Applying its established research 203 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 204 European Journal of International Relations 13(2) and documentation strategies, HRW demonstrates that discrimination and stigmatization, and sometimes active and systematic violations of the civil and political rights of people living with HIV/AIDS, contribute to their reluctance to seek testing and treatment. Improved protection of rights against discrimination, under these circumstances, is a step to improve testing and treatment (see the array of investigative reports at http://www.hrw.org/ doc/?thivaids& document_limit0,2). But arguably the most dramatic and significant implications of human rights for AIDS advocacy has been manifested in the work on two related issues: gov- ernments’ policies for the provision of treatment to HIV patients; and the international collision of property rights and human rights in debates over trade rules related to intellectual property rights (TRIPS). In promoting access to treatment, for example, NGO advocates often ally themselves with poor country governments in an effort to limit, change or circumvent the rules or authority of international organizations. Initiatives by national governments have often driven important debates on access to HIV/AIDS medicines, and they have been supported by international advocates and by social movement organizations working on HIV/AIDS issues in the industrial countries. The interaction among domestic AIDS activists in South Africa, their govern- ment and international health and human rights NGOs illustrates the com- plexity of this new relationship. The South African government was hardly a likely candidate for international NGO support: President Mbeke’s adminis- tration had placed itself at odds with the international AIDS and medical com- munity through its heterodox positions on the nature of the pandemic. But despite their criticism of the government, domestic and international advocates maintained a strong cooperative element in their relationship with the gov- ernment throughout the 1990s. Initiatives by the governments of South Africa and Brazil to produce generic versions of patented anti-retroviral drugs led to threats of formal action against them — a suit by the US government against South Africa, and action under WTO rules against Brazil. NGO activists have given unusually strong and direct support to government initiatives, as the fol- lowing profile of the work of MSF with the governments of South Africa and Brazil demonstrates. MSF’s goals include ‘to support health ministries that are fighting to in- crease access to essential drugs’, and to ‘support the implementation of exist- ing trade rules … designed to protect’ access to these medicines, by informing and advising governments on their options (Médecins Sans Frontières, 2002b). Facing very high costs for anti-retroviral drugs in its clinical trials in South Africa in 2002, MSF negotiated with the South African and Brazilian govern- ments to purchase and export to South Africa generic versions of the drugs in question, at roughly half the cost of those available from multinational pharma- ceutical companies (MSF, 2002a). 204 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 205 Nelson and Dorsey: New Rights Advocacy South African activists from the Treatment Action Campaign (TAC) partici- pated in the importation of drugs from Brazil, in MSF’s clinical trials, and sided with the South African government in the lawsuit against it by the Pharma- ceutical Manufacturers Association (PMA). This cooperative strategy was pur- sued even as TAC continued the advocacy that eventually led to the South African cabinet’s November 2003 commitment to making anti-retroviral treatment available in every government health facility to people with HIV (Statement of the Cabinet of the Republic of South Africa, 2003). PMA aban- doned the legal action soon after TAC entered the case. This high-profile episode of national policy-setting was intertwined with the debate, at the global level, over the relationship between patent and property rights as outlined in the WTO’s TRIPS standards, and the human right to treatment for HIV. The apparent partial victory that AIDS activists won in 2001, when the Ministerial Meeting at Doha reaffirmed that governments’ right to act in a public health emergency superseded intellectual property rights rules. Without changing any TRIPS rules, the Ministerial Meeting added a Declaration on TRIPS and Public Health that makes a temporary exception of 15 years, to assure that TRIPS does not prevent countries from taking steps to promote public health. This ruling opened a further debate over the mechanisms by which poor country governments can act. For governments whose countries lack the cap- acity to produce their own generic ARVs, a low-cost and efficient mechanism for trade in these generic drugs is essential, and over a temporary mechanism created in August 2003 and adopted in December 2005 by the Ministerial Meeting in Hong Kong. Critics argue that the case-by-case approval approach is a cumbersome mechanism that violates the spirit of the 2001 agreement giving priority to health rights over property rights. Once again, international NGOs, AIDS activist movements in rich and poor countries and a handful of development NGOs argue for broadening poor country governments’ policy choices. The US- and EU-supported solution, one letter argues, locks in a ‘burdensome and unworkable’ solution, in the interests of ensuring that no generic drugs find their way into industrial coun- try markets (‘Joint Statement by NGOs’, 2005). This episode in the debate presents a clear example of how human rights campaigning on economic and social policy puts NGOs and social movements in partnership with poor coun- try governments whose policy options are limited by external debt and inter- national financing policies. HIV/AIDS advocates have also directly engaged the pharmaceutical com- panies that hold patents on the handful of relatively expensive drugs used to treat HIV infection. Oxfam, for example, mounted sustained advocacy focused on the pharmaceutical giants Pfizer and GlaxoSmithKline, producing two extensive reports and pursuing both public and private efforts to persuade the 205 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 206 European Journal of International Relations 13(2) companies to adjust the prices of medicines to treat HIV/AIDS patients in poor countries. Oxfam’s (2001, 2002b) reports on the pharmaceutical indus- try are directed to the firms themselves and, significantly, to key government bodies such as the UK Parliament, in an effort to shape public and govern- mental perceptions of the industry and to soften the industry’s position in international trade and patent rules. Learning from Water and HIV/AIDS: Discussion New rights advocacy, we have argued, is leading to a larger, more influential NGO political presence, elevating the status of ESC rights in economic and social policy debates, and offering an authoritative set of principles for the governance and regulation of corporate and state actors. The water and HIV cases demonstrate the new and varied roles of NGO political action, united by the application of human rights standards to social policy. They display the variety of actors being targeted, the diversity of the institutions initiating human rights-based strategies, and the beginning of impact on policy out- comes, as well as some of the limitations of human rights-based strategies. Finally, NRA is altering popular and scholarly understanding of the contem- porary human rights movement. A brief discussion of these factors follows. The broad range of targets and political arenas targeted by the NRA — including corporations, states and international organizations — is a function both of strategic considerations and of the nature of ESC rights. Recognizing the complexity and costs of fulfilling such rights for very poor countries, the human rights covenants define governments’ duty to respect, protect, and ful- fill these rights in a much more qualified way than for civil and political rights, obliging governments to ‘take steps’ to secure the rights ‘to the maximum of its available resources’, a process known as progressive realization. In addition to allowing for progressive realization, the ICESCR also acknowledges that the duty to fulfill ESC rights may fall on the ‘international community’ as a whole, through the duty to provide assistance (Article 2). For the UNDP (2000: 119–28), this diffuse duty is an important link in the argu- ment for greater international commitment to a human rights-based develop- ment assistance regime. But for advocates seeking to promote compliance with ESC human rights, the ambiguity poses a challenge, and requires an approach distinct from the appeal to international authority that often provides leverage for civil and polit- ical human rights. As Human Rights Watch director Kenneth Roth (2000) argues with respect to HIV/AIDS, ‘gradualism and shared responsibility make it much more difficult to shame a particular national government for its poor state of health care. … Governments can deflect criticism by blaming others. There is no easy way to move beyond this finger-pointing.’ 206 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 207 Nelson and Dorsey: New Rights Advocacy Campaigns on water privatization and HIV/AIDS are both highly critical of the key multinational corporations involved, but the two campaigns differ in the nature and extent of efforts to target the corporations’ behavior directly. Water rights advocates excoriate the large multinationals that have made water systems their business, but international NGOs have done rela- tively little to engage the companies directly, focusing instead largely on the World Bank and IMF. By contrast, the AIDS campaign has engaged pharma- ceutical companies directly and extensively. The difference in strategy may flow from the ease with which AIDS advocates assume the moral high ground (Friedman and Mottiar, 2005), with respect to government as well as to the pharmaceutical companies. This, in Friedman and Mottiar’s view, involves more than simply using moral language to motivate or to shame; in the case of TAC it also means building ‘moral consensus’ around its agenda and per- suading government or corporate institutions, or individuals within them (2005: 541–2). These initiatives to assert the authority of ESC rights in social and economic policy are being taken by diverse actors in the global public domain. ESC human rights norms are often being applied and clarified in situations that place them directly in conflict with intellectual property rights or other prop- erty rights. In the case of HIV/AIDS, the critical initiatives asserting the right to treatment for HIV/AIDS have been taken by a handful of governments — Brazil, India and South Africa — with powerful encouragement from social movements within their borders, and support from international NGOs and movements. No governments have taken such clear leadership on the water privatization issue. Local and national consumer organizations and other social move- ments, with international NGO support, have led the outcry against privat- ization, and the critique of the World Bank’s role. The appeal to human rights to buttress this case began with the largely rhetorical assertion that water is a public good and a right, not a commodity, and has now been refined and strengthened by advocacy organizations in India and South Africa, by inter- national NGOs, and by the UN’s Committee on ESC Rights’ General Comment 15. What contributions have human rights standards, strategies, methods and analysis made to policy outcomes? Many of the most important impacts are broad and in process: human rights advocacy, for example, has provided pro- tection to development, labor and environmental activists through programs designed specifically to support and ‘defend the defenders’. In other cases, the human rights principle of non-discrimination has been invoked in cam- paigns to end administrative, legal and police practices that stigmatize or otherwise discriminate against HIV/AIDS patients. Advocacy campaigns are in the early stages of what may, in the end, be a successful reframing of water 207 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 208 European Journal of International Relations 13(2) privatization, where the human rights analysis of water policy has successfully entered the mainstream of debate in international organizations. Demonstrated impacts on policy outcomes to date have been of three kinds: blocking policy changes at the national level, modifying international rules, and constraining the exercise of international power. Rights-based advocates have succeeded in blocking policy changes, in effect upholding the state’s obli- gation to respect ESC human rights, by campaigning against certain water pri- vatization schemes. With respect to international rules, the clearest but still partial success has come in the deliberations over TRIPS rules in the WTO. Finally, human rights-based campaigns have become an important source of moral suasion in the advocates’ efforts to soften the positions of pharmaceut- ical companies on patent issues, and of the World Bank on water privatization in Ghana and elsewhere. Whereas HIV/AIDS advocates have had some success intervening in inter- national rule-making to allow domestic production of generic versions of patented HIV medications, water advocates have largely focused on blocking new contracts for private provision of water. To date, advocates have been more successful in mobilizing political support by invoking ESC rights than in using the ESC standards analytically to define the details of policy solutions, although there is evidence of efforts in this area by development practitioners (Nelson and Dorsey, 2003). Conclusions and Implications for Theory and Practice The New Rights Advocacy — the expansion of traditional human rights groups’ agendas to incorporate economic and social rights, the appearance of new economic and social rights issues campaign and organizations, and the adoption by development organizations of rights-based approaches — is a rela- tively new phenomenon. But the cases observed here, and data available on human rights-based work on debt relief, agrarian reform, and the rights to information and to education, provide enough evidence to reach three early conclusions. First, the use of human rights standards to influence social and economic pol- icy is growing rapidly. Its practice is varied, and advocates rely heavily on the rhetoric of human rights in international circles, even as they experiment with other human rights methods — litigation, investigation and documentation, for example — and occasionally on formal regional and international human rights bodies (as in General Comment 15 on the Right to Water). Detailed policy proposals explicitly grounded in human rights remain largely the domain of scholars and UN agency functionaries. ESC rights are attracting broader attention, support, and more careful def- inition and operationalization, just as civil and political rights did in the 1960s, 208 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 209 Nelson and Dorsey: New Rights Advocacy but their institutionalization is still in an early stage. Legal appeals in domestic courts to internationally codified ESC rights and formal petitions to human rights investigative bodies in the UN are still far less common than that for civil and political rights, but they are growing (Centre on Housing Rights and Evictions, 2003). As ESC rights advocates test the possibilities and the present limitations of their influence, there is evidence of a trend toward broader NGO use of the political, mobilizing, and motivational power of economic and social human rights. Second, the principal International Relations accounts of NGO participa- tion in international politics — in which NGOs help to bring recalcitrant states under the scrutiny of international agencies and industrial country govern- ments — is in need of revision or supplementation. The political environment in which ESC rights advocacy takes place puts advocates in a different relation to poor country governments, and to sources of political leverage in the inter- national political arena. At times they oppose and condemn the violating state, at others they attempt to shift responsibility for violations to the international level and onto economic actors. ESC rights advocates do sometimes ‘target’ governments with external pres- sure, as in their appeals to reverse water privatization contracts, but the inter- national pressure has come almost entirely from NGOs, social movements and the media, not from international organizations and G-8 governments. This is a new and distinct pattern of political action; rather than an appeal to norms whose resonance is stronger in international arenas than in the target govern- ment, much ESC rights advocacy appeals to human rights standards that have stronger support in the countries of the global South than among industrial country governments. It reinforces domestic sovereignty, rather than chal- lenging it, and applies the leverage derived from international human rights to limiting or reforming the influence of international actors. This form of NGO politics differs from the boomerang model: fulfilling economic and social rights may involve reinforcing international norms, while also calling for greater freedom for national governments and societies to set policy without reference to conditions set by international agencies. The effort to expand access to HIV/AIDS medicines in poor countries, for example, has successfully created temporary exceptions to WTO rules on intellectual property and patents, supporting the initiatives of governments such as India, South Africa and Brazil to produce cheaper generic medicines. Médecins Sans Frontières (2002c) refers to the 2002 Doha declaration as affirming ‘the sovereign right of governments to take measures to protect public health, … giv[ing] primacy to public health over private intellectual property and clarify[ing] WTO Members’ rights to use TRIPS safeguards, in particular the use of compulsory licensing and parallel import to overcome prohibitive drug prices’. 209 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 210 European Journal of International Relations 13(2) These advocacy strategies do not signal a wholesale reversal by NGOs, which still call for stronger international regulation of child labor, natural resource management, and labor rights. Domestic and international AIDS activists put a great deal of pressure on the South African government of Thabo Mbeki to accept and respond to the epidemiology of HIV, a pattern that conforms to the ‘boomerang’ model. But the new rights advocacy does represent a significant shift toward a more complex and varied relationship with poor country gov- ernments, often strategically supporting and cooperating with national author- ities. One effect of this changing pattern is that NGO advocates are likely to have to learn to work without US government cooperation. The United States’ aggressive, if inconsistent, support of some environmental and civil and polit- ical human rights reforms is unlikely to extend to rights-based claims to social services, access to land, or water, where the Scandinavian and British govern- ments’ development agencies have been more sympathetic. The third theme — the one on which conclusions are most difficult — is the assessment of the New Rights Advocacy’s impact. Has the NRA decisively affected policy outcomes, and what role have human rights-based strategies played in those outcomes? Advocacy on economic and social policy to date has not gathered the record of successes that is often attributed to advocates of civil and political rights. Human rights claims and strategies have played a part in the South African HIV policy, the Doha ‘public health exception’, and in pressuring, blocking and modifying planned water privatization schemes in several countries. Human rights support has been a part of the growth of land occupation movements in Brazil, the Philippines, and parts of Central America. ESC advocates’ greatest challenge may be that the rights they advocate con- front well-established norms of a market-oriented development paradigm, against which NGO advocates had little success in the 1980s and 1990s. Research is needed to test the impact of ESC rights over the coming decade by monitoring the strategies and impact of advocacy, especially on issues that directly confront norms of liberalization, privatization, and free trade. Whether such advocacy strategies can succeed, and to what extent, with- out significant support from the US government or the most influential international organizations, remains to be seen. The answer is, perhaps, even more strongly dependent on whether significant constituencies can be built globally, than in the case of civil and political rights four decades ago. The record of human rights-based advocacy on social and economic policy sug- gests that broad and diverse configurations of participants can be expected. The partial success won by HIV/AIDS activists at the November 2001 Doha WTO Round suggests that support from social movements based in industrial countries may be a key political ingredient. Medical professionals, HIVAIDS activists, human rights NGOs and international public health advocates all participated in the WTO effort. 210 187-216 EJT-076953.qxd 11/4/07 12:21 PM Page 211 Nelson and Dorsey: New Rights Advocacy In other episodes in the policy process around HIV/AIDS response, poor country governments and national and international NGO advocates worked in cooperation to assert both individual human rights and governments’ ‘sovereign rights’ to meet urgent social and human needs. Human rights- based approaches to social and economic policy, with their capacity to bring together broad coalitions and to bring NGOs and poor country govern- ments into cooperative arrangements, now figure largely in the construction of broad-based governance processes in the global public domain. Notes 1. Objections and refinements to this model have surfaced from several quarters. Realists in international relations such as Görg and Hirsch (1998) argue that it overstates the roles of non-state actors. Clifford Bob (2005) argues that inter- national NGOs are driven by the need to find suitable cases to advance their inter- national political agendas. 2. Major international human rights NGOs have been slow to adopt substantial ESC rights agendas. Amnesty International’s global agenda now tentatively includes ESC rights, with the objective of an active advocacy agenda by 2005–06 (Dorsey, 2002). Kenneth Roth (2004), Director of Human Rights Watch, outlines reasons from his agency’s perspective. 3. The Nigerian Social and Economic Rights Action Centre (SERAC), the Indian Tamil Nadu Network for Economic, Social, and Cultural Rights, and IBASE of Brazil are prominent examples of this movement among NGOs in the poor coun- tries. Many such NGOs are now linked in an International Network for ESC Rights, at www.escr-net.org. 4. People’s Movement for Human Rights Education provides a comprehensive overview of the use of human rights education to realize ESC rights, at www.pdhre.org. 5. The Access to Essential Medicines campaign seeks to increase access to the 206 drugs designated essential by the World Health Organization (WHO). 6. Amnesty International-USA’s first ESC rights pilot action, launched in December 2002, was a letter-writing campaign calling for the US government to contribute its calculated international share of funding to the UN Global Fund to Fight Tuberculosis, Malaria and AIDS. Acknowledging that the United States had no legal obligation to fulfill Article 2 of the ICESCR, as it is not a signatory, Amnesty called for compliance with the growing norm that rich country governments must provide aid to assist poor countries to meet their people’s core ESC rights. References Alston, Philip (1994) ‘Economic and Social Rights’, in L. Henkin and J. 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