Closing the Rights Gap: From Human Rights to Social Transformation

By LaDawn Haglund

Do "human rights"—as embodied in constitutions, national laws, and international agreements—foster improvements in the lives of the poor or otherwise marginalized populations? When, where, how, and under what conditions? Closing the Rights Gap: From Human Rights to Social Transformation systematically compares a range of case studies from around the world in order to clarify the conditions under which—and institutions through which—economic, social, and cultural rights are progressively realized in practice. It concludes with testable hypotheses regarding how significant transformative change might occur, as well as an agenda for future research to facilitate rights realization worldwide.

• Language: English
• Publisher: University of California Press
• Release date: Mar 21, 2015
• ISBN: 9780520958920

Book preview

Closing the Rights Gap

Closing the Rights Gap

From Human Rights to Social Transformation

Edited by

LaDawn Haglund and Robin Stryker

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Library of Congress Cataloging-in-Publication Data

Closing the rights gap : from human rights to social transformation / edited by LaDawn Haglund and Robin Stryker.

        pages    cm

    From human rights to social transformation

    Includes bibliographical references and index.

ISBN 978-0-520-28309-1 (cloth : alk. paper)—ISBN 0-520-28309-0 (cloth : alk. paper)—ISBN 978-0-520-95892-0 (ebook)—ISBN (invalid) 0-520-95892-6 (ebook)

    1. Human rights and globalization.    2. Social justice.    3. Human rights.    4. International Covenant on Economic, Social, and Cultural Rights (1966)    I. Haglund, LaDawn, 1968- editor.    II. Stryker, Robin, editor.    III. Title: From human rights to social transformation.

JC571.C61444 2015

    [HM671]

    323--dc232014023209

Manufactured in the United States of America

24  23  22  21  20  19  18  17  16  15

10  9  8  7  6  5  4  3  2  1

In keeping with a commitment to support environmentally responsible and sustainable printing practices, UC Press has printed this book on Natures Natural, a fiber that contains 30% post-consumer waste and meets the minimum requirements of ANSI/NISO Z39.48–1992 (R 1997) (Permanence of Paper).

For our parents,

Mavis Haglund

and

Alyce and Sheldon Stryker

CONTENTS

List of Figures

List of Maps

List of Tables and Boxes

List of Contributors

Preface

Introduction: Making Sense of the Multiple and Complex Pathways by which Human Rights Are Realized

LaDawn Haglund and Robin Stryker

PART ONE: PROMISES AND CHALLENGES OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ESCR) REALIZATION AT THE INTERNATIONAL LEVEL

1. Do Non–Human Rights Regimes Undermine the Achievement of Economic and Social Rights?

M. Rodwan Abouharb, David L. Cingranelli, and Mikhail Filippov

2. Linking Law and Economics: Translating Economic and Social Human Rights Norms into Public Policy

William F. Felice

3. Advances and Ongoing Challenges in the Protection of Indigenous Peoples’ Rights within the Inter-American System and the United Nations Special Procedures System

Leonardo J. Alvarado

PART TWO: THE ROLE OF DOMESTIC LAW AND COURTS IN ESCR REALIZATION

4. The Impact of Legal Strategies for Claiming Economic and Social Rights

Varun Gauri and Daniel Brinks

5. The Role of Human Rights Law in Protecting Environmental Rights in South Asia

Sumudu Atapattu

6. The Morality of Law: The Case against Deportation of Settled Immigrants

Doris Marie Provine

PART THREE: BEYOND JUDICIAL MECHANISMS AS MEANS TO ESCR REALIZATION

7. Social Movements and the Expansion of Economic and Social Human Rights Advocacy among International NGOs

Paul J. Nelson

8. The Challenge of Ensuring Food Security: Global Perspectives and Evidence from India

Shareen Hertel and Susan Randolph

9. Achieving Rights to Land, Water, and Health in Post-Apartheid South Africa

Heinz Klug

10. Social Accountability in the World Bank: How Does It Overlap with Human Rights?

Hans-Otto Sano

PART FOUR: MEASURING ESCR REALIZATION

11. Making the Principle of Progressive Realization Operational: The SERF Index, an Index for Monitoring State Fulfillment of Economic and Social Rights Obligations

Sakiko Fukuda-Parr, Terra Lawson-Remer, and Susan Randolph

12. Deepening Our Understanding of Rights Realization through Disaggregation and Mapping: Integrating Census Data and Participatory GIS

Rimjhim Aggarwal and LaDawn Haglund

13. Studying Courts in Context: The Role of Nonjudicial Institutional and Socio-Political Realities

Siri Gloppen

Conclusion: Emerging Possibilities for Social Transformation

Robin Stryker and LaDawn Haglund

Index

LIST OF FIGURES

LIST OF MAPS

LIST OF TABLES AND BOXES

CONTRIBUTORS

M. RODWAN ABOUHARB is a senior lecturer on international relations and director of the MSc International Public Policy Program in the Department of Political Science at University College London. His research examines domestic economic and political change, international economic integration, and how the types of international governance regimes affect the likelihood of civil war, repression, or the promotion of economic development. His book Structural Adjustment and Human Rights , co-authored with David Cingranelli and published by Cambridge University Press in 2007, examines the impact of World Bank and IMF structural adjustment agreements on government respect for a variety of human rights. It was named the Choice Outstanding Academic Title in 2009. He and Cingranelli also examine the impact of the World Bank and IMF programs on human rights (published in International Studies Quarterly and Review of International Organisations ). Research co-authored with Susan Aaronson examines how the norms the WTO promotes may improve some democratic rights (published in International Studies Quarterly ) and good governance (published in World Trade Review ). With Laura Moyer and Megan Schmidt, they examine how greater levels of de facto judicial independence improve government respect for physical-integrity rights (published in Journal of Human Rights ).

RIMJHIM AGGARWAL is an associate professor and senior sustainability scientist at Arizona State University. A central focus of her research has been on examining the links between globalization, the resilience of social-ecological systems, and human well-being. In current research she is examining the emerging conflicts in the framing of water as a human right as well as an economic, ecological, and social good in rapidly urbanizing regions, with focus on Delhi, São Paulo, and Johannesburg. She is also currently engaged in research projects examining the impacts of globalization and climate change on agricultural and water governance, farm livelihoods, and food security in India, Nepal, Thailand, and Arizona. Her work has been published in Journal of Human Rights , World Development , International Journal of Urban and Regional Research , and Population and Environment , among others. Dr. Aggarwal has also worked as a senior consultant for the United Nations University’s World Institute for Development Economics Research and the World Bank. In recognition of her efforts in use-inspired research and community outreach, Dr. Aggarwal received the Arizona State University President’s Award for Sustainability in 2010. She holds a PhD in economics from Cornell University.

LEONARDO J. ALVARADO is an adjunct instructor at the University of Arizona College of Law and an independent legal consultant. He was previously a legal advisor to former United Nations Special Rapporteur on the Rights of Indigenous Peoples, professor James Anaya. He also previously worked as a human rights specialist and staff attorney at the Inter-American Commission on Human Rights of the Organization of American States. Previous publications include "Prospects and Challenges in the Implementation of Indigenous Peoples’ Human Rights under International Law: Lessons from the Case of Awas Tingni v. Nicaragua ," Arizona Journal of International and Comparative Law , Vol. 24, Number 3 (2007).

SUMUDU ATAPATTU is associate director of the Global Legal Studies Center at the University of Wisconsin Law School and lead counsel for human rights at the Center for International Sustainable Development Law, Canada. Her publications include Emerging Principles of International Environmental Law (2006), as well as numerous articles and chapters on human rights and sustainable development.

DANIEL BRINKS is an associate professor of government in the fields of comparative politics and public law at the University of Texas at Austin. His research focuses on the role of the law and courts in supporting or extending human rights and many of the basic rights associated with democracy, with a primary regional interest in Latin America. He has published in journals such as Comparative Politics , Studies in Comparative International Development , Comparative Political Studies , Journal of Democracy en Español , and the Texas International Law Journal . His books Courting Social Justice: The Judicial Enforcement of Social and Economic Rights in the Developing World (co-edited with Varun Gauri) and The Judicial Response to Police Violence in Latin America: Inequality and the Rule of Law are both published by Cambridge University Press.

DAVID CINGRANELLI is a professor of political science at Binghamton University, State University of New York. He is a former president of the Human Rights Section of the American Political Science Association. For the past ten years, he has served as co-director of the Cingranelli and Richards (CIRI) Human Rights Data Project. He conducts global comparative econometric research examining the causes and consequences of variation in government respect for various types of human rights. His most recent book, with Rodwan Abouharb, Human Rights and Structural Adjustment (Cambridge University Press), examined the human rights impacts of World Bank and IMF structural adjustment programs in less developed countries. His current book project, with Mikhail Filippov, Institutions, Incentives and Human Rights , examines how constitutional design and other factors can provide incentives to politicians to enact policies protecting human rights and to monitor the implementation of those policies. He is also conducting research on human trafficking and labor standards.

WILLIAM F. FELICE is associate dean of general education and a professor of political science at Eckerd College. He is the author of The Global New Deal: Economic and Social Human Rights in World Politics (second edition, 2010), How Do I Save My Honor? War, Moral Integrity and Principled Resignation (2009), Taking Suffering Seriously: The Importance of Collective Human Rights (1996), and numerous articles on the theory and practice of human rights. He has published articles in the Cambridge Review of International Affairs, Ethics and International Affairs, Human Rights Quarterly, International Affairs, Social Justice, and other journals.

MIKHAIL FILIPPOV is an associate professor in the Department of Political Science at Binghamton University, State University of New York. He holds a PhD in economics and political science from the California Institute of Technology. His work has appeared in Public Choice , Communist and Post-Communist Studies , Constitutional Political Economy , and other journals. His book Designing Federalism: A Theory of Self-Sustainable Federal Institutions , co-authored with Peter Ordeshook and Olga Shvetsova, was published by Cambridge University Press and received an honorable mention for the William H. Riker Prize of the Political Economy Section of the American Political Science Association in 2005.

SAKIKO FUKUDA-PARR is a professor of international affairs at the New School in New York. She is best known for her work as the director and lead author of the UNDP Human Development Reports of 1995–2004. Her current research focuses on economic and social rights and public policy, and on global goals and international political economy. She is vice chair of the UN Committee on Development Policy. Her recent publications include Human Rights and the Capabilities Approach: An Interdisciplinary Dialogue (co-edited with Diane Elson and Polly Vizard, Routledge, 2012); A Handbook on Human Development (with A. K. Shivakumar, third edition, Oxford University Press, 2010); and numerous articles on the Millennium Development Goals, human rights measurement, and economic and social rights.

VARUN GAURI is a senior economist in the Development Research Group of the World Bank, and co-director of the World Development Report 2015: Mind and Culture . His current research examines how legal institutions and conceptions of justice and human rights affect human welfare. He has published articles in leading journals on topics that include the enforcement of social and economic rights, the political economy of responses to HIV/AIDS, the strategic choices of development NGOs, customary legal systems, and health care and education governance. He is the author of School Choice in Chile , co-editor of Courting Social Justice: The Judicial Enforcement of Social and Economics Rights in the Developing World , and co-author of the World Development Report 2007 .

SIRI GLOPPEN is a professor of comparative politics at the University of Bergen, Norway, a senior researcher at the Chr. Michelsen Institute, and research coordinator at PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of Oslo). Recent publications include Courts and Power in Latin America and Africa (Palgrave, 2010) and Litigating Health Rights: Can Courts Bring More Justice to Health? (Harvard, 2011).

LADAWN HAGLUND is an associate professor of justice and social inquiry and a fellow in human rights and sustainability at the Lincoln Center for Applied Ethics at Arizona State University. Her book Limiting Resources: Market-Led Reform and the Transformation of Public Goods was published by Pennsylvania State University Press in 2010. Her articles have been published in Latin American Perspectives, Journal of Human Rights, Water Policy, and European Journal of Sociology. Her most recent research, analyzing courts as mechanisms for adjudicating the human right to water and sustainability, has been supported by the National Science Foundation, the J. William Fulbright Foreign Scholarship Board, and the Brazilian Fulbright Commission. She holds a PhD in sociology from New York University.

SHAREEN HERTEL is an associate professor of political science at the University of Connecticut and holds a joint appointment with the university’s Human Rights Institute. She has served as a consultant to foundations, NGOs, and United Nations agencies in the United States, Latin America, and South Asia. She is the author of Unexpected Power: Conflict and Change among Transnational Activists (Cornell, 2006), the co-editor of Economic Rights: Conceptual, Measurement, and Policy Issues (Cambridge, 2007), and the co-editor of Human Rights in the United States: Beyond Exceptionalism (Cambridge, 2011), and has published numerous scholarly articles. She is also the editor of the Journal of Human Rights .

HEINZ KLUG is a professor of law at the University of Wisconsin–Madison and an honorary senior research associate in the School of Law at the University of the Witwatersrand, Johannesburg, South Africa. Growing up in Durban, South Africa, he participated in the anti-apartheid struggle, spent eleven years in exile, and returned to South Africa in 1990 as a member of the ANC Land Commission and a researcher for the chair of the ANC Constitutional Committee. He published Constituting Democracy: Law, Globalism, and South Africa’s Political Reconstruction with Cambridge University Press in 2000. His most recent book, The Constitution of South Africa: A Contextual Analysis , was published by Hart Publishing in July 2010.

TERRA LAWSON-REMER is legal director and campaigns director at Avaaz and fellow in global economy and development at the Brookings Institution. She was previously assistant professor at The New School and fellow at the Council on Foreign Relations. She served as senior advisor for international affairs at the U.S. Department of the Treasury, and has held positions at Amnesty International, the United Nations University World Institute for Development Economics Research, the American Civil Liberties Union, and the Ethical Globalization Initiative, and she consulted for the World Bank and United Nations. Dr. Lawson-Remer previously worked as an organizer and strategist for a variety of grassroots organizations, including Students Transforming and Resisting Corporations and the Ruckus Society. Dr. Lawson-Remer’s research addresses the institutional determinants and political-economic effects of opportunity and exclusion in the global economy.

PAUL NELSON is an associate professor in the Graduate School of Public and International Affairs, University of Pittsburgh, where he directs the Master of International Development program. He teaches and conducts research on international development policy, human rights, NGOs, and religion and development. He is the author, with Ellen Dorsey, of New Rights Advocacy (Georgetown University Press, 2008).

DORIS MARIE PROVINE is a professor emerita in the School of Social Transformation at Arizona State University. Her current research centers on immigration outside the law and the response of local communities and local law enforcement agencies to this phenomenon. Much of this work has been supported by two grants from the National Science Foundation, with a variety of publications emerging from this research.

SUSAN RANDOLPH is an associate professor in the Department of Economics and the Department of Agricultural and Resource Economics at the University of Connecticut and co-director of the Economic and Social Rights Initiative. She has served as a short-term consultant to the Office of the High Commissioner for Human Rights, the World Bank, and the U.S. Agency for International Development. Prior to coming to the University of Connecticut, she worked for four years as head of the program development division of Turkiye Kalkinma Vakfi, a grass-roots development organization that enables poor, landless households to establish viable, self-sustaining economic enterprises. Dr. Randolph’s research has focused on a broad range of issues in development economics, including poverty, inequality, food security, and economic and social rights, and has been published in numerous refereed multidisciplinary and economic journals. She holds a doctorate in economics from Cornell University.

HANS-OTTO SANO is a senior research fellow at the Danish Institute for Human Rights. He worked as a senior program officer at the World Bank until September 2013. His work comprises subjects like human rights indicators, human rights–based approaches, governance, and livelihoods. He is presently involved in a larger research project on human rights and extreme poverty.

ROBIN STRYKER is a professor of sociology, affiliated professor of government and public policy, affiliated professor of law, and the director of research of the National Institute for Civil Discourse, at the University of Arizona. Her work focuses on rights, law, politics, inequality, and social change, and on the nature, causes, and consequences of political incivility. She has written extensively on sociological theory and methods and on a variety of substantive topics, including organizations and institutional change; law’s legitimacy; globalization and the welfare state; cross-national family policy and gendered labor markets; law, science, and public policy; the political economy and culture of labor, antitrust, and employment regulation; affirmative action and pay equity; the National Labor Relations Board; the Equal Employment Opportunity Commission; and U.S. political culture and welfare reform. Supported by National Science Foundation grants (2005–09; 2010–12) and a John Simon Guggenheim Foundation Fellowship (2008–09), she is completing a book on the role of economic, sociological, psychological, and statistical expertise in equal employment opportunity law and politics, 1965 to the present. She also is undertaking comparative research on strategic litigation and the politics and judicial doctrine of nondiscrimination law in the United States and France.

PREFACE

The editors of this volume have long sought to understand the causes and consequences of injustice, especially for poor, marginalized, or otherwise vulnerable populations. LaDawn Haglund’s focus on essential goods and services in developing countries and Robin Stryker’s emphasis on antidiscrimination legislation in the United States have relied on distinct empirical foundations, yet both are centrally concerned with analyzing the ways our social institutions have failed the have-nots and with specifying and evaluating possible remedies.

LaDawn’s attraction to human rights as a promising avenue for social transformation evolved through conversations with Rimjhim Aggarwal, an economist and sustainable-development scholar at Arizona State University (and co-author with LaDawn of chapter 12, this volume). Both noted the disappointing results of previous development efforts, and the accelerated turn to human rights by the development community as a possible solution. They also observed, however, that few systematic examinations existed regarding the analytic and practical advantages of human rights framings for developmental ends, or of the complex means by which human rights promote (or do not promote) economic and social justice.

LaDawn and Rimjhim were able to cultivate, vet, and specify these ideas further through a series of research clusters in 2007–2010, sponsored by Arizona State University’s Institute for Humanities Research: first, Gender and Sustainable Development (under the direction of María Luz Cruz-Torres and Angelita Reyes), and then, Interdisciplinary Perspectives on Human Rights and Social Justice (co-facilitated by LaDawn, Stephen Batalden, Margaret Walker, and Roxanne Doty). LaDawn is grateful to these facilitators and cluster participants, as well as to Anu Kulkarni for her intellectual contributions and to the Institute for Humanities Research for providing opportunities for faculty and graduate students from disparate units and disciplines to tackle problems thematically. As the human rights research cluster proposal stated, It is difficult to imagine that the challenges presented by the field of human rights, broadly construed, and the pursuit of an equitable and dignified global existence could be achieved if scholars remain in their disciplinary enclaves.

In early 2010, LaDawn participated in two interdisciplinary workshops that helped to crystallize further some key questions about the realization of economic and social rights. The first, International Law Compliance and Human Rights Indicators, sponsored by the Center for Law and Global Affairs of the Sandra Day O’Connor College of Law at Arizona State University, and hosted by Laura Dickinson and Paul Berman, drew specific attention to the role of indicators in compliance, accountability, effectiveness, and, in the words of participant Sally Merry Engle, creating the reality of human rights. At this workshop LaDawn was also fortunate to meet Hans-Otto Sano, who subsequently agreed to contribute a chapter on social accountability to this volume.

The second workshop, Normative Implications of Recent Empirical Research on Human Rights, was sponsored primarily by the Rogers Program in Law and Society of the James E. Rogers College of Law, University of Arizona, and organized by Kathie Barnes and Tom Christiano. Robin Stryker and Tom Christiano secured a small grant from the American Bar Foundation to further support this workshop. The workshop reinforced the idea that, though there is well-developed scholarship on identifying and measuring state compliance with political and civil rights, strategies for ensuring economic and social rights realization were still in their infancy. This conference afforded Robin and LaDawn, who both attended, an opportunity to deepen conversations regarding their shared scholarly interests.

Robin’s 2007 article in the Annual Review of Law and Social Science on law, inequality, and social change in capitalist democracies had provided partial inspiration for LaDawn and Rimjhim’s 2011 paper, published in the Journal of Human Rights, analyzing the application of human rights language to the economic and social conditions of the world’s poor. Utilizing a framework called MAPs (mechanisms, actors, and pathways), the latter article compared several models for assessing the impact that economic and social rights—in law and practice—seemed to have on compliance and implementation.

At the same time, Robin recognized that she was learning much from the extensive scholarship on global human rights that she had recently begun to tap. Having always worked on political, civil, and social rights in the United States and Europe, she wanted to learn more about all types of rights, both on the books and in action, in Asia, Africa, and Latin America. As someone who studied U.S. anti-discrimination law in action, she saw numerous parallels between her work and that of scholars studying economic and social rights in, say, India or South Africa. To Robin, it seemed a wasted opportunity for potential bridge building, clarification, specification, and generalization to keep each specific research niche tightly cordoned off from the others and to overlook potential cross-fertilization.

From 2008 to 2010, Robin had been a member of the review panel for the Law and Social Science Program of the National Science Foundation (NSF), where she had noticed a large number of proposals pertaining to the topic of rights. Relevant research projects were being proposed by scholars of law and anthropology, law and economics, law and sociology, law and political science, and law and history. But all the proposals tended to be rooted in literatures that were discipline specific, rights specific, and/or geographically specific. Robin began to share some thoughts about the potential for various interdisciplinary and geographical cross-fertilizations with Wendy Martinek, who was then director of the Law and Social Science Program of the NSF; she encouraged Robin to consider submitting a workshop proposal.

Robin and LaDawn subsequently applied for and received a grant from the NSF to develop a two-conference series exploring, first, theoretical and empirical approaches to the study of economic, social, and cultural rights (ESCR), with civil and political rights (CPR) scholars as commentators; and second, exploring the study of CPR, with ESCR scholars and commentators. From the beginning, the intent was to build up to, and on, these conferences in a sustained way to produce a volume that could testify strongly to the gains to be had from conceptual and empirical integration and synthesis.

As the editors began to work toward the first conference, it also became increasingly clear that there were important parallels between the developing MAPs framework—as it was then being articulated by LaDawn and Rimjhim in the above-mentioned Journal of Human Rights article and further refined in the classroom—and the framework of mechanisms that Robin had elaborated in the review article mentioned above on law, inequality, and social change. The revised and clarified MAPs framework as it appears in this volume emerged from this synthesis.

The editors would like to emphasize that putting the volume together was highly labor-intensive and iterative, and could never have happened without guidance and enthusiastic, sustained collaboration from all of the contributing authors, from those scholars and practitioners who participated in the 2011 conference as commentators, and from those who participated in the 2012 follow-up conference. These scholars—both junior and senior—invited us into their own networks, including those that bridged research and advocacy, and helped us grope slowly toward a common language and framework that on the one hand could push empirical cross-fertilization, and on the other hand would itself be further specified and enhanced by such fertilization.

As editors, we owe a debt of gratitude to all of our collaborators, and we want to express to all of them our deep appreciation and respect. We have been fortunate to develop a profound sense of having coalesced into a new and encompassing research community. We understand how much they gave of their talents, time, and energy to this long-term collaborative project, in order to bring it to fruition in what we have endeavored to make a coherent volume. We hope we are providing a volume that not only charts our own synthetic progress in ways that others find useful but also provides a measure of inspiration and an open invitation to other scholars and practitioners as we go forward in doing what each of us can to inch toward more adequate rights provision and social justice.

The concluding chapter to the volume provides a fuller statement of what is unique about the volume and the value-added it provides. To preview, we emphasize here just how much we think we have gained by engaging in dialogue scholars from different disciplines who work on different kinds of rights, in very different geographic, political, economic, social, cultural, and legal contexts. We think that the MAPs-guided comparative analysis of rights-translation pathways specifies well the larger socio-political and economic context within which the litigation and court enforcement mechanisms that have previously been theorized and researched reside. This means we can specify combinations of mechanisms, legal and nonlegal, that work to reinforce or to undermine the efficacy of judicialization of both ESCR and CPR.

Because the MAPs framework explicitly moves beyond judicial mechanisms to consider whether and how any concrete pathway involves a variety of non-judicial actors and mechanisms in addition to or instead of judicialization, we are able to raise the key question of alternative mechanisms and pathways. This question is of enormous practical importance to rights holders, duty bearers, and rights advocates because, depending on context, some routes to rights realization are likely to be more feasible than others, and the legal route may not be viable. Our emphasis on constraints and limits, as well as opportunities, for progressive social transformation makes this volume ideally suited to inform practitioners as they make strategic choices—and confront trade-offs—in mobilizing one or another set of actors and mechanisms within a concrete pathway.

This volume develops the MAPs framework explicitly to apply to both CPR and to ESCR, encouraging empirical integration and theoretical synthesis across the two domains. The volume also systematically considers a variety of interconnections among CPR on the one hand and ESCR on the other. Without the assurance of personal-integrity rights or of such key CPR as freedom of expression, freedom of association, and voting rights, ESCR activists will not be able to combine legal mechanisms with the political, informational, symbolic, and cooperative mechanisms that can make mobilizing law more effective. Without freedom from discrimination in the enjoyment of social and economic rights—whether discrimination is based on race or ethnicity, gender, age, disability, religion, sexuality, union membership, nationality, or something else—CPR achievement will be thwarted, empty, or inadequate.

The editors and authors can now provide a better sense of what is specific and particular to given contexts and rights as they also work toward the kind of limited, empirically based conditional generalizations that are warranted as a state of the art synthesis resulting from the institutional and discursive intersections they have promoted. The forty limited generalizations offered in the concluding chapter are intended to summarize how the editors read the current state of knowledge and also to push toward further discovery in this newly emergent cross-disciplinary, cross-regional, cross-rights discursive field.

The final chapter, in venturing out on a limb of predictions, surely includes propositions that will turn out to be wrong. But hopefully, when they are wrong, they will be wrong in the kind of informed and useful ways that promote further cumulative and collaborative learning. The editors are also aware that one set of conferences and a collaborative volume do not fully institutionalize the new networks required to sustain this interconnected broader field of collective inquiry. We provide this volume as a first step, and as an invitation to others to join in building more sustained, collaborative, and cumulative research efforts. The editors also hope that their associates will continue to build on the researcher–practitioner networks initiated through the NSF conferences. Just as we hope to see more MAPs-oriented comparative pathway research, we also hope that practitioners will be able to use the multiple mechanisms and pathways laid out herein to improve accountability, as well as to promote positive ESCR and CPR outcomes in their on-the-ground struggles.

The editors would like to underline one final contribution of this volume. As scholars and teachers of law and society, we are well attuned to foundational debates about the nature and role of law in the economy, polity, culture, and society. For the editors, law is not completely homologous with prior economic or social structure; nor, however (despite the tenets of liberal legalism), can it ever be completely autonomous from its economic and social context. This betwixt-and-between state—and the fact that, as one of the editors puts it in her undergraduate classes, there is a two-way street between law and society—means that the jurisprudence of law in action does matter for the transformative impact of law on society. A contribution of this volume is to suggest how and why some types of doctrine are more likely than others to be positively associated with more egalitarian and socially just outcomes.

On the other hand, progressive social transformation cannot be promoted by putting our hopes in legal doctrine or legal institutions alone. That is why the interdisciplinary combination of law with sociology, anthropology, economics, psychology, history, and political science has been so important. And that is the point of highlighting—as the MAPs framework and this volume as a whole do—how legal mechanisms can provide alternatives to and/or combine with all the other actors, strategies, processes, and institutions that social scientists study to transform the social world in its interrelated material, power-relational, and ideational components.

The editors are very grateful to the NSF’s Law and Social Science Program for the workshop support grant that we received (SES No. 105134, October 2010–August 2013). We also are grateful to Kathie Barnes and the University of Arizona’s interdisciplinary Rogers Program in Law and Society for additional support resources for the two workshops, which took place in April 2011 and November 2012. Substantially revised papers that were presented at the April 2011 workshop make up the bulk of empirical chapters in this volume. Those who presented papers in 2011 included Rimjhim Aggarwal, Leonardo Alvarado, Sumudu Atapattu, David Cingranelli (via Skype), William F. Felice, Varun Gauri, LaDawn Haglund, Shareen Hertel, Heinz Klug, Paul J. Nelson, Marie Provine, Susan Randolph, Hans-Otto Sano (via Skype), and Rebecca Tsosie. Discussants included Kathie Barnes, William Bielby, Suzanne Dovi, Gary Geortz, Faten Ghosn, Barry Goldstein, John Hagan, Lane Kenworthy, Louise Roth, Daniel Rothenberg, John Sutton, and Marjorie Zatz. We are grateful to you all for your intellectual engagement with our project!

The editors owe a special debt of gratitude to Kate Gunby, who was the NSF-supported graduate assistant for both the 2011 and 2012 conferences. With Kate’s help, all the logistics went like clockwork. Other University of Arizona graduate students who volunteered to help out with logistics during the conferences themselves—and who, along with Kate, were participants in the 2011 conference—include Jenny Miller, Heidi Reynolds-Stenson, and J. Taylor Danielson.

The editors also would like to thank the Rogers College of Law, former University of Arizona provost Meredith Hay, former Rogers College of Law deans Toni Massaro and Laurence Ponoroff, School of Sociology director Albert Bergesen, and John Paul Jones III, dean of the University of Arizona College of Social and Behavioral Sciences, for their enthusiastic intellectual support of the 2011 and 2012 conferences. And we thank the Rogers College of Law and its superb administrative staff, including especially the incomparable Nancy Stanley, for providing the venue and physical and technical resources for the conference. Robin would also like to acknowledge the University of Arizona College of Social and Behavioral Sciences Research Professorship that, in 2011–12, allowed her to devote substantial time to her research and writing and to the preparation of the NSF-funded conferences that helped us complete this volume.

In addition to the colleagues discussed above, LaDawn would like to acknowledge her special debt to Rimjhim Aggarwal for helping her to navigate the rocky shoals of interdisciplinarity. She would also like to thank her home department, Justice and Social Inquiry, and in particular former faculty head Marjorie Zatz, for her untiring support of and enthusiasm for her junior colleagues’ professional development. LaDawn would also like to acknowledge the support of Mary Margaret Fonow and the staff of the School of Social Transformation for providing the support that was so necessary for us to carry this project through to completion.

Beyond this, the editors would like to acknowledge that writing a book requires the good will and support of family and friends. In this regard, Robin would especially like to thank Scott Eliason, Sheldon Stryker, and Jane Zavisca for their encouragement and support. LaDawn would especially like to thank Cameron Thomas for providing a delightful place to rest at the end of a long day.

LaDawn Haglund

April 24, 2014

Phoenix, Arizona

Robin Stryker

April 24, 2014

Tucson, Arizona

REFERENCES

Haglund, LaDawn, and Rimjhim Aggarwal. 2011. Test of Our Progress: The Translation of Economic and Social Rights Norms into Practices. Journal of Human Rights 10:1–27.

Stryker, Robin. 2007. Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies. Annual Review of Law and Social Science 3:69–97.

Introduction

Making Sense of the Multiple and Complex Pathways by which Human Rights Are Realized

LaDawn Haglund and Robin Stryker

Some 1,600 families [were] made homeless by a forced eviction in a settlement in São Paulo state, Brazil [on January 22, 2012]. Police descended on the area without warning at 6am on Sunday in riot gear, backed up by armoured cars and helicopters and using tear gas and rubber bullets. The authorities cut electricity, gas and telephone lines and cordoned off the area, restricting access to homes. . . . A number of residents have gone to stay with relatives, while others—around 350 families—have been housed in a gymnasium with inadequate sanitation. Some have been allowed back into the evicted area to collect belongings before houses are demolished. The Pinheirinho settlement was formed in 2004, when groups of homeless people occupied abandoned land belonging to a bankrupt investment firm. Churches, football pitches, libraries and shops have sprung up in the area and local residents have been trying to legalize the situation through a state government programme called Cidade Legal, but without success. The residents association are [sic] now appealing to the Superior Federal Court (STF) for the eviction order to be overturned. . . . Despite considerable investment by the federal government, Brazil struggles with a huge housing deficit and millions of people across the country live in irregular settlements. Under international law, including the International Covenant on Economic, Social and Cultural rights (ICESCR), Brazil is prohibited from carrying out forced evictions, and must protect people from [them].

—AMNESTY INTERNATIONAL (2012)

The U.S. has recognized the human right to housing in the Universal Declaration of Human Rights as well as a number of other international covenants and declarations. The U.S. has received findings and recommendations on its failure to uphold the right to housing from numerous UN human rights monitors over the past four years, including a comprehensive report from the Special Rapporteur on the Right to Adequate Housing in 2010. Although the U.S. has developed some laws and policies which assist with housing, housing is viewed primarily as a commodity, and there is no entitlement to any housing assistance or even to basic shelter. Many homeless children are removed from their families into foster care when providing housing could have saved the whole family. Thousands of federal, state, and local government-owned properties remain vacant even as families are forced onto the streets. . . . In no U.S. jurisdiction can a person working full time at the federal minimum wage afford a one-bedroom apartment, according to federal guidelines. Yet there are no binding requirements on jurisdictions to plan for and create incentives for the production of sufficient adequate, affordable housing for low-income persons and families, or to require employers to raise wages to a level sufficient to pay for housing. Despite the growing number of homeless families and the lack of affordable housing, the federal budget for developing and maintaining public housing and providing for low-income housing subsidies has decreased. Laws requiring the participation of public housing tenants in decisions affecting them have been under-implemented. Governments participate in the forced evictions of homeowners and renters, often using safety concerns as a guise for quickly and brutally evicting families from their homes.

—US HUMAN RIGHTS NETWORK (2010)

These cases illustrate just two of the multiple fronts on which contentious questions of economic, social, and cultural rights (ESCR) are being disputed. In recent years, the increasing adoption of human rights discourses and their embodiment in international and national law to address seemingly intractable problems of poverty and deprivation have sparked new hopes for social transformation. But uncertainty remains. Can the reframing of economic, social, and cultural marginalization as human rights deficits—and the often corresponding adoption of ESCR norms into national and international law—bring about social transformation on the ground? And if so, what kind of transformation? How, and under what conditions? Can ESCR succeed in altering global, national, and local resource distributions so that all people can enjoy access to at least the basic requirements for human well-being, autonomy, and empowerment?

This volume contributes to current discussions among scholars, policy makers, human rights advocates, and skeptics about how effective ESCR have been, or can be, in improving the lives of marginalized populations. Though ESCR have been criticized from multiple, sometimes contradictory vantage points (Kirkpatrick 1981; Anghie 2004; Neier 2006), this has not dampened enthusiasm for—or progress in—their promotion. Interest in the transformative potential of ESCR is strong among academics (Hertel and Minkler 2007; Young 2009; Haglund and Aggarwal 2011; Gauri and Gloppen 2012), lawyers and judges (Gauri and Brinks 2010a; Yamin and Gloppen 2011), NGOs (Nelson and Dorsey 2003; Roth 2004; Chong 2010; Khan 2009), social workers (Reichert 2001), and even indigenous groups (Anaya 2004, 2009; Xanthaki 2007). We seek to contribute to this literature, taking as our point of departure the assumption that ESCR realization in practice confronts numerous barriers that are very difficult to surmount (Stryker 2007; Gauri and Brinks 2010a; Haglund and Aggarwal 2011; Yamin and Gloppen 2011). We also presume that there is no magic bullet—no single path—that takes us from ESCR discourses or legal norms to their full realization (Haglund and Aggarwal 2011).

The reports on housing rights reproduced above highlight two interesting questions regarding rights realization. First, are violations of ESCR, and the steps needed to ameliorate them, incomparable in very different settings, or is there something to be gained from analyzing ESCR comparatively in multiple contexts? Second, what role do civil and political rights (CPR) play in efforts to realize ESCR? What analogous and complementary processes might be at work in these often separated areas of human rights? We believe that, indeed, there is much to be gained from comparative analysis, both across countries and across areas of human rights. In the sections that follow, we outline our approach to this cross-fertilization.

GLOBAL RIGHTS REALIZATION: MAPPING THE TERRAIN

Despite the affirmation of the inherent dignity and inalienable rights of all humans in the UN’s 1948 Universal Declaration of Human Rights, rights realization—political, civil, economic, social, and cultural—has proven over the last six decades to be fraught and fragile. Though a great deal of progress has unquestionably been made, the full achievement of basic human rights is far from a reality in today’s world. From extrajudicial killings, torture, disappearances, systemic rape, and police brutality to a chronic lack of access to very basic