INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES
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This document summarizes different approaches that donors take to integrating human rights in development policy. It identifies five main approaches: 1) rhetorical endorsement of human rights, 2) human rights dialogue and conditionality, 3) human rights and democracy programs, 4) human rights mainstreaming, and 5) human rights-based approaches. A human rights-based approach is considered the most comprehensive strategy, focusing on vulnerable groups, non-discrimination, and addressing structural causes of rights issues. However, the document notes that fully implementing human rights-based approaches in practice remains challenging for donors due to issues like lack of political will and internal capacity.
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1. HUMAN RIGHTS AND DEVELOPMENT POLICY: DISPARITIES AND CONVERGENCES
The progressive integration of the human rights framework into development practice began approximately two decades ago. However, it has been argued that the full integration of human rights in development policy, at the conceptual, institutional and operational levels, remains fragmented and partial (Uvin, 2004; Alston and Robinson, 2005). The majority of donors and aid agencies are still grappling with the implications of fully committing to human rights and gearing their operational strategy towards them. Questions and doubts about the necessity, usefulness and added value of integrating human rights in development policy still linger. In this sense, it has been argued that we have only seen the beginning of a long-term ‘institutional exchange’ between human rights and development policy (Archer, 2009, p.21). While most large western donors now have a human rights policy in some form or another, the rise of new donors such as China, but also the uprisings in the Arab world, has given new salience to the role of human rights policies in development. This study cannot explore the full implications of these new dynamics, but aims to contribute to this debate by providing clarity on how human rights have been operationalized in development policy.
In order to discuss how and to what extent human rights are currently integrated in development policy, it is necessary to understand the past ‘distance’ between the human rights and development communities. Since their establishment in the post-1945 era, development policy and human rights have evolved along separate institutional paths and existed largely in isolation from each other (Alston, 2003, p.9). In a simplified dichotomy, traditional development concerns economic growth and providing basic needs to communities, while traditional human rights work concerns the protection of the individual against any abuse of (state) power (Tomasevski, 1989; Sano, 2000). Accordingly, human rights has been the working area of lawyers and legal experts, while development policy was conceived by economists and implemented by technically-orientated practitioners. Traditionally, human rights organisations have used highly visible advocacy, activism and ‘naming and shaming’ strategies with a focus on cases of illegal executions, arbitrary detention or torture. Development cooperation agencies on the other hand, were concerned with setting up resource intensive technical interventions in sectors such as agriculture or infrastructure. From the 1980s onwards, the development sector underwent a transformation with a sharp rise of NGOs and increased attention for the basic needs of the poor. Contrary to human rights work, development policy often operates outside the spotlights of public opinion. These differences led one observer to state that “[…] the cultures, vocabulary, experience and instincts of the human rights world and the development assistance / humanitarian worlds are distinct” (O’Neil and Bye, 2002, on cit. Munro, 2009, p. 187).
An overview of the various human rights guaranteed by the International Covenant on Political and Civil Rights and the International Covenant on Economic, Social and Cultural Rights can be found in Annex 1. In theory, the recognition of economic, social and cultural rights (ESCR) in 1966, offered a ‘bridge’ between the human rights and development worlds. However, for a long period the human rights community concentrated exclusively on political and civil rights (PCR), apparent in the UN machinery and the work of NGOs such as Amnesty International. On the other hand, the development community saw little need for a legal interpretation of their work through the ESCR framework (Uvin, 2004). Moreover, the language of](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-9-320.jpg)
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human rights was seen as political and confrontational during the Cold War period, in which the West championed PCR (e.g. democratic freedoms) and the Soviet Bloc emphasized ESCR (e.g. equal economic development) (OECD/WB, 2013, p.4). The recognition of the right to development by the UN in 1986 could be seen as a first symbolical milestone towards a greater synergy between the development and human rights communities (Uvin, 2004; p. 42). It was an effort to reform the global economic order and aimed to provide a legal basis for the redistribution of resources. However, the complex legal wording of the right to development and the fact that it is only recognized in a legally non-binding instrument meant that it had little impact on the work of development and human rights organisations, or the relation between them (Uvin, 2004; p. 42; Cornwall and Musembi, 2004; p.1421-1422).
The human rights and development communities moved closer towards each other after the fall of the Berlin Wall. Symbolically, the 1993 World Conference on Human Rights and the Vienna Declaration reaffirmed the indivisibility and interdependence of all human rights, and emphasized the interrelatedness between democracy, development and human rights and fundamental freedoms (Cornwall and Musembi, 2004, p. 1422). Following this, large human rights NGOs progressively broadened their scope to include economic and social issues and new rights-based NGOs emerged focusing on ESCR, such as the Foodfirst Information Action Network (FIAN). These played pioneering roles in international fora, creating cross-cutting linkages between the development and human rights communities (Plipat, 2006; Cornwall and Musembi, 2004). Within the UN system, greater interest towards ESCR followed with, for example, the establishment a Special Rapporteur on the right to education in 1998. As the human rights community increasingly addressed issues related to economic and social development, the development sector also turned towards the language of human rights (Robinson, 2005, p. 30). On a conceptual level, understandings of development as consisting of purely economic and institutional matters gave way to the notion of ‘human development’.1
Methodologies such as the capabilities approach and the sustainable livelihoods framework were increasingly considered as complementary to a human rights approach to development, both in normative, theoretical and practical terms (Vizard, 2006; Vizard et al., 2011; Moser and Norton, 2001; Conway et al., 2002). Greater attention for human rights in development work was also pushed forth by events on the field, in particular the 1994 Rwandan genocide (Robinson, 2005, p. 30; Uvin, 2004).2 As a number of factors stimulated exchanges between human rights and development in the 1990s, it could be said that “[…] development was increasingly perceived as a right, whereas earlier it had been perceived as an instrument of solidarity” (Sano, 2000, p. 736).
1 The influential work of Amartya Sen and the introduction of the capability-approach, which quickly spread as a theoretical paradigm within the development community, redefined the analytical scope of poverty and development. The ‘capability’ approach perceives poverty as the absence of capabilities to realize certain elementary freedoms which are at the very heart of human dignity (Sen, 1992). In addressing the many obstacles which keep people from achieving capabilities, development is conceived as a process towards greater freedom (Sen, 1999a). Departing from this position, further work by Sen, Nussbaum and other authors explored the linkages between these capabilities, elementary freedoms and human rights (Sen, 1999b, 2004, 2005; Nussbaum, 1997, 2003, 2004).
2 A much-read account is ‘Aiding Violence’ by Peter Uvin, addressing the role of the international development community during the 1994 genocidal killings in Rwanda (Uvin, 1998). ‘Blind’ development donors and agencies were largely unaware of the dynamics of ethnic tension and the spiral of violence which ensued, and in some cases supported conflict dynamics.](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-10-320.jpg)
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Two broad categories are distinguished; political and civil rights (PCR) and economic, social and cultural rights (ESCR). Each signatory state has an obligation to respect, protect, and fulfill these rights (box 2).
Box 2: Categories and dimensions of human rights I Respect (no interference in the exercise of the right) II Protect (prevent violations from third parties) III Fulfil (provision of resources and the outcomes of policies)
Civil and
political rights
Torture, extra-judicial killings, disappearance, arbitrary detention, unfair trials, electoral intimidation, disenfranchisement
Measures to prevent non-state actors from committing violations, such as torture, extra-judicial killings, disappearance, abduction, and electoral intimidation.
Investment in judiciaries, prisons, police forces, and elections, and resource allocations to ability Economic, social, and cultural rights Ethnic, racial, gender or linguistic discrimination in health, education, and welfare and resource allocations below ability. Measures to prevent non-state actors from engaging in discriminatory behaviour that limits access to health, education, and other welfare. Progressive realization Investment in health, education, and welfare, and resource allocations to ability.
Source: UNDP (2006)
Development policy can support partner countries in realising each of these obligations in respect of any specific right, although in practice it has generally focused on assisting the fulfilment of ECSR. How the human rights framework has been applied by the development community varies significantly. The debate on how to integrate human rights in development is still ongoing, as practitioners from both the human rights and the development communities continue to interact.
Accordingly, this overview is not a definitive listing of different policy strategies but a compact presentation of how ‘human rights in development’ has been conceptualised and implemented. The overview distinguishes five different policy approaches: rhetorical endorsement of human rights, human rights dialogue and conditionality, human rights and democracy programmes, human rights mainstreaming and human rights-based approaches.
The categorisation is based on the 2013 OECD/World Bank publication ‘Integrating Human Rights into Development; donor approaches, experiences and challenges’ (see Table 1.), and Peter Uvin’s division of how human rights have been integrated in development practice (Uvin, 2004). Similar divisions of approaches are also reflected in policy documents, such as in the Swedish Ministry of Foreign Affairs communication on human rights and foreign policy; “There are three main tools for promoting human rights […] development policy dialogue; development projects directly aimed at strengthening human rights and](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-12-320.jpg)
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also incorporates the ‘previous’ policy strategies on human rights, but places them in a coherent framework, a new development paradigm fully aligned with the human rights framework.
While this paper largely avoids a linear perspective, it is useful to distinguish between first and second generation human rights policies (OECD/WB, 2013, p. 6). Under the former, human rights are perceived as a component of democracy-building and ‘good governance’ programmes, their scope is often limited to PCR, which can be supported through individual projects and programmes or ‘punished’ through a conditionality policy. The second generation of human rights policies adopt human rights as a transversal theme in development policy, covering all operation including technical projects unrelated to democracy or political governance. Such donors generally have an explicit mandate to promote human rights in their work (OECD/WB, 2013, preface). This 'evolution' is not universal. While ‘second generation’ human rights policies (e.g. mainstreaming and HRBAs) have been adopted by a growing number of multilateral, bilateral and NGO agencies, several large donors have not. This is most notably the case of USAID5, CIDA6 and AUSAID7 which none the less commit resources to human rights-related programming. More importantly, even those development agencies which have a strong mandate to address human rights, often operationalized through mainstreaming policies or adopting a HRBA, are often struggling with the challenges of practical implementation (see sections 4.1 and 4.2). Clearly, some donors committed to ‘second generation’ policies have not invested in significant policy changes to integrate human rights (OECD/WB, 2013, p. 25). In this sense, differentiating between donors with ‘progressive’ or ‘second generation’ human rights policies and those with ‘traditional’ approaches can be misleading.
2.1. Rhetorical Endorsement
At the end of the Cold War, the terminology of human rights entered into the policy and mission statements of donor and development agencies. The powerful normative language of human rights was adopted by a development sector in search for “[…]a normative discourse with which to address an increasingly globalized world” (Gready and Ensor, 2005; p.22).
In first instance, the integration of human rights implied the recognition of their importance and relevance for development, and adding them as a ‘goal’ of development itself. In many cases, human rights were introduced as essential, underlying, components of ‘good governance’ and/or ‘democracy’ (Grindle, 2010; Gisselquist, 2012). In this rhetorical endorsement by development actors, human rights were often narrowly conceived as PCR and to a lesser extent ESCR (Sano, 2000; p. 743). This conception of human rights as a tool in the democracy toolkit is reflected in the first generation of human rights policies. In this early stage,
5 The United States has not ratified the International Covenant on Economic, Social and Cultural Rights. This conviction that human rights are mainly PCR prevents the mainstreaming of human rights or a HRBA, both of which are based on the idea of inequality and indivisibility of all human rights (UNCU, 2003). None the less, the US has one of the most extensive democracy assistance programmes, and through this it is a large player in supporting human rights projects on PCR such as freedom of expression, or access to justice programmes.
6 CIDA recognizes human rights as a governance theme and since the ‘ODA Accountability Act’ of 2008 development cooperation is to be consistent with international human rights standards (CCIC, 2008). However, no coherent human rights-based strategy has been adopted by CIDA, with the exception of its ‘Action Plan on Child Protection’ which embraces UNICEF’s rights-based approach (CIDA, 2001).
7 Despite a parliamentary committee recommending AUSAID to formally adopt a human rights-based approach, it has not yet taken the step to develop such comprehensive policy (JSC, 2010).](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-14-320.jpg)
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determining the eligibility of countries and the performance of partners is subjected to human rights assessments. The concept and application of conditions in aid allocation has seen an evolution from ‘negative’ or ‘punitive’ (i.e. suspending or threatening to suspend support) to ‘positive’ and ‘consensual’ conditionality (i.e. avoiding suspension, emphasizing dialogue, making increases or decreases in support dependent on commonly agreed indicators) (Killick et al., 1998; Morrow, 2005). Consensual conditionality implies donor and recipient enter into a ‘constructive’ policy dialogue. In donor terminology, ‘conditionality’ is often avoided and replaced by a ‘dialogue’, but arguably, policy dialogue can be seen as another form of donor conditionality (Molenaers and Renard, 2008, p. 11). It is important to note that the inclusion of human rights as a condition is contested by a technocratic approach, recommended by the OECD’s Development Assistance Committee, which posits that political or human rights conditionality “should not be specifically linked to budget support or any individual aid instrument, but rather should be handled in the context of the overarching political dialogue between a partner country and its donors” (OECD-DAC, 2006, p. 32-33). This implies donors should separate human rights issues from macro-economic, managerial and ‘technical’ conditions, and as ‘political issues’, they should not be part of the policy dialogue of development partnerships. Before addressing the contested place of human rights in policy dialogues, we first present a brief overview of how donors have included human rights in the process of selecting partner countries and in the subsequent monitoring of partnership performance. Box 4: General and Sector Budget Support The OECD-DAC defines ‘budget support as “[…] a method of financing a partner’s country budget through a transfer of resources from an external financing agency to the partner government’s national treasury. The funds thus transferred are managed in accordance with the recipient’s budgetary procedures.” (OECD-DAC, 2006, p. 26). Budget support emerged as an aid-modality at the turn of the millennium. Since the Paris Declaration on Aid Effectiveness and the European Council’s ‘Consensus on Development’, budget support has been favoured by many donors over ‘traditional’ project or programme-based development (Koeberle and Stavreski, 2006, p. 7-8). A crucial distinction is to be made between general budget support - a general contribution to the overall public budget - and sector budget support - financial aid earmarked to a specific sector - usually defined in broad terms such as education and health - or a more specific subsector, such as primary health care financing. Sector budget support is not to be confused with a Sector-wide Approach (SWAp), which also focuses on a particular sector but implies the use of various aid modalities including but not restricted to sector budget support. The difference between general and sector budget support is of particular relevance to ‘political’ and human rights conditionalities and dialogues. Sector budget support is often perceived as being outside the scope of ‘political dialogue’ as it targets specific areas below the national level. Accordingly, some donors such as the EU, foresee a transfer of resources from general to sector support, or towards other aid modalities, in case of human rights violations (EC, 2012). Despite the affirmation of budget support as the most ‘aid effective’ modality at the Busan Fourth High-level Forum on Aid Effectiveness, the actual use of budget support has stagnated. The Paris Declaration set a target of 85% of ODA being channelled through budget support. The 2011 OECD-DAC survey on the use of budget support estimated the share of budget support in ODA at only 43% (OECD-DAC, 2011, p.32). Accordingly, there has been a growing disillusion about the results of budget support, and large donors such as DFID have indicated progressive decreases in funding for this modality (ODI, 2012, p. 1).](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-18-320.jpg)
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bearers (e.g. governments). The UNCU is not authoritative, donors and agencies have developed their own interpretations of a HRBA, and accordingly it “[…]has come to mean different things to different people, depending upon thematic focus, disciplinary bias, agency profile, and the external political, social, and cultural environment” (Darrow and Tomas, 2005, pp.483). Parallel to the UNCU, the Development Assistance Committee of the OECD issued a recommendation on how to effectively integrate human rights into development policy through ten principles for harmonized donor action (OECD-DAC, 2007 – Box 8). Box 8: OECD-DAC Action-Oriented Policy Paper on Human Rights and Development 1. Build a shared understanding of the links between human rights obligations and development priorities through dialogue. 2. Identify areas of support to partner governments on human rights. 3. Safeguard human rights in processes of state-building. 4. Support the demand side of human rights. 5. Promote non-discrimination as a basis for more inclusive and stable societies. 6. Consider human rights in decisions on alignment and aid instruments. 7. Consider mutual reinforcement between human rights and aid effectiveness principles. 8. Do no harm. 9. Take a harmonised and graduated approach to deteriorating human rights situations. 10. Ensure that the scaling-up of aid is conducive to human rights.
Although the OECD-DAC does not explicitly recommend a HRBA in line with the UNCU, the above principles could be read as ‘action-oriented’ interpretations of the UNCU.
The ‘vagueness’ of the HRBA has been a recurrent point of criticism (Darrow and Tomas, 2005, pp.483), but has also been regarded as a ‘flexibility’; it can be adapted to a range of different policy contexts, adopted as a comprehensive institution-wide concept or applied selectively to a specific area or type of intervention. A good example of this flexibility is how some agencies or specific development projects have worked with a ‘rights-based’ instead of a ‘human rights-based’ approach. While the acronym HRBA is most commonly used to cover both – as in this paper - some rights-based approaches do not specifically draw upon the principles and conventions agreed upon in international human rights law. Arguably, this gives the advantage of defining rights more fluidly and allows greater interaction with local understandings of justice and local power dynamics (Piron, 2005a, p. 24-25). However, the absence of a normative framework risks broadening the scope of rights language to include virtually any demand, and therefore the UNCU underlines the necessity to refer to the actual obligations of states under the human rights framework. It also emphasizes the relevance of the larger human rights system for development programming (human](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-28-320.jpg)
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enforceable because of resource constraints, but for which States are obliged to ‘[t]ake steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights’ (ICESCR, Article 2.1).18 The justiciability of ECSR is thus often questioned, and as such a legal or HRBA approach to problems related to extreme poverty (eg. lack of access to health) is not seen as useful. However, a number of cases indicate the increasing justiciability of ECSR, as experiences in India, the Philippines and South Africa illustrate (UNESCO, 2011, p. 28-29). A much-cited case is the South African ‘Treatment Action Campaign’, which through constitutional litigation was successful in reforming government policy, significantly lowering the cost of care for HIV/AIDS patients (Heywood, 2009). While the exact impact of legal action is difficult to measure, a number of studies indicate adjudication of economic and social rights has already brought substantial benefits to poor people and ‘likely enriched the lives of millions’ (Varun and Gauri, 2008, p. 303; See also Darrow, 2012, p. 93-99).
Although ESCR court cases have in some contexts had a very significant impact on development processes and poverty reduction, international donors applying a HRBA often do not adopt formal legal action as a goal or means. Assisting rights-holders to litigate can be part of a HRBA, but in most rights- based development work actual legal procedures are not undertaken and the focus lies on broader ‘rights awareness’. For example, DFID’s (previous) human rights strategy noted how relying solely upon legal measures for the protection of human rights is not sufficient (DFID, 2000, p. 17) is. Instead, the notion of “rendering the law real in political and social processes”, and not only in courts or legislation, is important in most understandings of a HRBA (Gready, 2008; p. 736). This is also illustrated by the ‘Treatment Action Campaign’ in South Africa, which combined legal action with social mobilization, awareness-raising and legal education (Heywood, 2009). Therefore the goal of HRBA programming is often aimed at creating local understanding of human rights to address issues such as corruption, discriminatory beliefs or public opinion is often part of HRBA programming and projects often focussing on building the (non-legal) capacity of community-based organizations (Gready, 2008, p. 739). Thus a HRBA implies using the ‘language of rights’, but not strictly focussing on legal outcomes. Accordingly, a distinction can be made between using a ‘legal HRBA’, focusing on more narrow, legalistic outcomes, and a ‘non-legal HRBA’ in which rights are applied loosely as catalysts of change, for example, in the empowerment of social movements (Sarelin, 2010, p. 126).
Interpreted either in a legal sense or in a broader political sense, the concept of ‘accountability’ is central in the different interpretations of a HRBA (Uvin, 2007, p. 601-602). By redefining development in legal or political terms, the lack of accountability in development policy - which has often been identified at the root of failing development efforts - is openly addressed (Uvin, 2007, p. 601-602). Accordingly, human rights are a means to create ‘a platform to demand accountability’ (Tomas, 2005, p.173). Instead of isolated technical interventions, a HRBA underlines the need for structural change by ‘transforming state-society relations’ with the final aim of ‘strengthening the ‘social contract’ (Piron, 2005a, p. 22). Traditionally, donors have tended to work on either the supply side -strengthening governance and reforming state- or on the demand side - supporting civil-society organizations. As shown in box 9, the concept of a HRBA stresses the need
18 Justiciability refers to legal enforcement on behalf of the victims, by way of filing a claim before national – judicial and quasi-judicial – and impartial legal claims mechanisms, with a view to requesting a remedy or a redress of the alleged violation (UNESCO, 2011, p. 27).](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-31-320.jpg)
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HRBA has been considered successful in working with indigenous communities – in the framework of the ILO Convention on Indigenous and Tribal Peoples - while similar approaches on the rights of minorities have been less common (OECD/WB, 2013, p. 34). These initiatives can address ‘institutionalised’ discrimination of certain groups by pushing for legal reform. UNICEF, for example, takes as an objective the elimination of discriminatory laws allowing girls to marry before the compulsory school-leaving age or allowing differences in school-leaving ages for girls and boys (UNICEF, 2007; p. 53). Other relevant areas include land and property rights, where the human rights framework offers a legal basis for the contestation of traditional customary law which is often discriminatory towards women (UNIFEM, 2007; Tapscott, 2012). In this area, the FAO’s recent adoption of a set of global guidelines on the ‘responsible governance of land tenure, fisheries and forests’ (FAO, 2012) are a relevant human rights-based tool for addressing discriminatory laws and policies in agriculture or forest management.
Asides from challenging discriminatory laws preventing specific groups in enjoying human rights, the principle of non-discrimination often translates itself as enhancing equal access to public services. Another way a HRBA can be applied is by reorienting existing programmes by enhancing monitoring or participation towards excluded groups. Again, developing the use of disaggregated data collection to monitor equality and non-discrimination is an essential step towards this end, and it is recommended donors share and coordinate information in, for example, delivering sector budget support (OECD, 2008, p. 46). A good example of a project in which a non-discrimination approach was applied can be seen in DFID’s ‘Safe Motherhood Programme’ with the government of Nepal. Situational analysis indicated the project was mainly benefiting high-caste women, and identified different patterns of discrimination against women and people from marginalized ethnic groups and lower castes. In first instance, this was addressed within the programme by dedicating more resources to reach excluded groups (SSMP, 2010). Secondly, the programme was used as a platform to institutionalise these changes, by advocating the creation of a ‘Gender and Social Inclusion Unit’ within the Ministry of Health (SSMP, 2009).
3.5.3. Participation and Empowerment
A HRBA broadens the concept of participation and demands ‘active, free and meaningful participation’ in any governance area or development intervention, not just those related to political governance (UNCU, 2003). Accordingly, participation becomes an objective, as well as a means, of development (OHCHR, 2006b, p. 26). As noted earlier, participation is not a novel concept to development agencies, but the rights- based versions of participation is about ‘shifting the frame from assessing the needs of beneficiaries […] to foster citizens to recognise and claim their rights and obligation-holders to honour their responsibilities’ (Cornwall and Musembi, 2004; p. 1424). In Sweden’s human rights strategy, participation is thus a measure to secure sustainable results as well as a goal in itself, which is able to make people more aware that ‘they have the right to demand change and social justice’ (SMFA, 2010, p.13). The objective of a HRBA is to embed and institutionalize participation in a way that it becomes a self-sustaining (Darrow and Tomas, 2005; p. 506). Participation in this sense implies ‘empowerment’.25 Moreover, a HRBA emphasizes the
25 We can understand ‘empowerment’ as process of increasing the capabilities of poor individuals or groups to make choices and to transform those choices into desired actions and outcomes, and to participate in, negotiate with, influence, control and hold accountable the institutions that affect their lives (OHCHR, 2002, p. 4).](https://image.slidesharecdn.com/4-integratinghrindcp-140929204844-phpapp02/85/INTEGRATING-HUMAN-RIGHTS-IN-DEVELOPMENT-POLICY-MAPPING-DONOR-STRATEGIES-AND-PRACTICES-38-320.jpg)
INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES
- 1. PAPER #4, MAY 2013 INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES David D’Hollander, Axel Marx and Jan Wouters www.steunpuntiv.eu
- 2. INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES David D’Hollander, Axel Marx and Jan Wouters ABSTRACT Integrating human rights in development policy has been highlighted as a key priority on international, European and national level. This mapping exercise presents a review of the donor strategies and practices for integrating human rights in development policy which have emerged in recent years. It draws upon a broad selection of policy and guidance documents from multi- and bilateral donors, reports and recommendations from international institutions as well as academic research. The paper distinguishes five approaches for integrating human rights in development policy: (1) rhetorical endorsement of human rights; (2) human rights dialogue and conditionality; (3) human rights and democracy programmes; (4) human rights mainstreaming, and (5) human rights-based approaches. These different policy approaches can build on each other and strengthen the integration of human rights in development cooperation policy and can also be presented as self-standing policy 'options'. As a Human Rights-Based Approach (HRBA) constitutes the most comprehensive strategy, closer attention is given to this concept and its implementation. Finally, the paper addresses the evaluation of human rights policies and the operational difficulties faced in institutionalising human rights. It notes that donors continue to face a number of organizational challenges in implementing their human rights policies. KEY WORDS Human Rights, Development Cooperation, Donor Policy, Human Rights-Based Approach, Mainstreaming AUTHORS David D’Hollander is PhD researcher at the Leuven Centre for Global Governance Studies (KU Leuven). Axel Marx is the research manager at the Leuven Centre for Global Governance Studies (KU Leuven). Jan Wouters is Jean Monnet Chair EU and Global Governance, Full Professor of International Law and International Organizations, Director of the Leuven Centre for Global Governance Studies (KU Leuven). ADDRESS FOR CORRESPONDENCE David.Dhollander@ggs.kuleuven.be Axel.Marx@ggs.kuleuven.be Jan.Wouters@ggs.kuleuven.be © 2013 by David D’Hollander, Axel Marx and Jan Wouters. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.
- 3. 3 SAMENVATTING De integratie van mensenrechten in ontwikkelingssamenwerking (OSS) wordt als een prioriteit op internationaal, Europees en nationaal niveau naar voren geschoven. Dit rapport bespreekt donor strategieën en praktijken op dit gebied. Na een korte historische inleiding, wordt een overzicht gegeven van hoe mensenrechten worden geïntegreerd in OSS-beleid. Omdat een Mensenrechten Aanpak (MRA) of ‘Human Rights-Based Approach’ (HRBA) de meest omvattende strategie is die momenteel wordt aangehangen door verschillende organisaties, inclusief de Europese Unie, zal de studie meer aandacht besteden aan deze strategie. Ten slotte zal het rapport enkele aspecten behandelen met betrekking tot de evaluatie van mensenrechten beleidsstrategieën en de operationele uitdagingen van het institutionaliseren van mensenrechten in OSS. Deze studie is gebaseerd op studies en aanbevelingen van relevante ontwikkelingsorganisaties zoals het OESO Comité voor Ontwikkelingssamenwerking en het Ontwikkelingsprogramma van de Verenigde Naties (UNDP), alsook recente beleidsdocumenten en beslissingen van de EU. De recente aanname van het ‘EU Strategisch Kader en Actieplan voor Mensenrechten en Democratie’ wijst op een hernieuwde inspanning voor het integreren van mensenrechten in OSS. Daarnaast zijn beleidsstrategieën en praktijkvoorbeelden van verschillende bilaterale donoren, zoals het Zweedse Ontwikkelingsagentschap en het Departement voor Internationale Ontwikkeling van het Verenigd Koninkrijk, opgenomen in deze studie. Dit werd aangevuld met kritische inzichten en evaluaties vanuit academisch onderzoek. De studie onderscheidt vijf beleidsstrategieën voor het integreren van mensenrechten in OSS-beleid: Retorische ondersteuning van mensenrechten Mensenrechten dialoog en conditionaliteiten Mensenrechten en democratiebevorderende programma’s ‘Mainstreamen’ van mensenrechten Mensenrechten Aanpak (MRA) Hoewel deze strategieën op elkaar voortbouwen en staan voor een graduele versterking van het integreren van mensenrechten in OSS-beleid, kunnen zij ook voorgesteld worden als op zichzelf staande beleidsopties. Retorische ondersteuning van mensenrechten De relevantie van mensenrechten voor OSS wordt vandaag erkend in de missie- en beleidsdoelstellingen van een groot aantal donoren. In veel gevallen worden mensenrechten geïntroduceerd als essentiële, onderliggende componenten van goed bestuur. Andere strategische documenten en beleidsverklaringen refereren naar mensenrechten als een transversaal thema, of als een doel van ontwikkelingssamenwerking op zich. Dit reflecteert een breder begrip van de rol van mensenrechten in OSS beleid. Mensenrechten dialoog en conditionaliteiten Naast andere factoren speelt de bescherming mensenrechten in toenemende mate een rol in de toekenning van ontwikkelingssteun. Donoren refereren naar respect voor mensenrechten als een voorwaarde in het selecteren van partner landen. Ook in lopende overeenkomsten kunnen donoren de prestaties en verwezenlijkingen van partner overheden meten vanuit een mensenrechten perspectief. Hiervoor worden mensenrechtenanalyses en -indicatoren geïntegreerd in de beleidsevaluaties van partnerlanden.
- 4. 4 Mensenrechten en democratiebevorderende programma’s Donoren ondernemen mensenrechtenprojecten met als doel het bevorderen van democratisch bestuur, meestal met een focus op politieke en civiele rechten. Dit soort mensenrechten programma’s staat bij sommige donoren voor een aanzienlijk aandeel van hun totale uitgaven. Een brede waaier aan activiteiten valt onder deze programma’s, onder andere steun voor verkiezingsprocessen en politieke hervormingen, of steun voor onafhankelijke media en lokale of internationale mensenrechtenorganisaties. ‘Mainstreamen’ van mensenrechten Het ‘mainstreamen’ van mensenrechten beoogt de opname van mensenrechten als een transversaal thema binnen alle werkgebieden en sectoren van het OSS-beleid. In lijn met het beleid rond gender-mainstreaming, is het hierbij de bedoeling voor elke beleidstrategie, ontwikkelingsprogramma of -project rekening te houden met de mogelijke impact op het volledig spectrum aan mensenrechten. In praktijk heeft dit geleid tot de integratie van mensenrechten buiten programmes gericht op democratisch beleid of rechtshandhaving, en binnen sectoren zoals onderwijs, voedselzekerheid en gezondheidszorg. In veel gevallen is een mainstreaming beleid gericht op het aanpakken van discriminatie van specifieke groepen, voornamelijk vrouwen en kinderen. Mensenrechtenaanpak (MRA) Een aanzienlijk aantal donoren hebben een eigen MRA voor hun OSS-beleid ontwikkeld. Dergelijke MRA kan een breed aantal operationele strategieën en werkmethodes omvatten. In veel gevallen wordt meer nadruk gelegd op de situatie van kwetsbare groepen en worden aanvullende inspanningen geleverd om maatschappelijke uitsluiting aan te pakken binnen de ontwikkelingsprogramma’s of projecten zelf, of door het opzetten van drukkingcampagnes om de structurele oorzaken van discriminatie aan te kaarten op hogere beleidsniveaus. Wanneer een project in samenwerking met lokale NGOs en middenveld organisaties wordt uitgevoerd, betekent de toepassing van een MRA veelal een verschuiving van dienstenverlening naar capaciteitsopbouw gericht op campagne voeren, publieke sensibilisering of juridische bijstand. Omdat een MRA de nadruk legt op de deontologie van het ontwikkelingsproces en structurele uitkomsten eerder dan technische of materiële resultaten, voegt het complexiteit toe aan het evaluatieproces en beoogt het in die zin een herziening van de traditionele resultaatgerichte evaluatiekaders. Terwijl verschillende multilaterale en bilaterale donoren de stap hebben gezet naar MRA, wijzen evaluaties op verschillende knelpunten, zoals een gebrek aan politieke steun en interne capaciteit om de volledige consequenties van dergelijke aanpak om te zetten in de praktijk. Voorstanders van deze aanpak stellen dat we momenteel nog maar aan het begin staan van een proces waarbij mensenrechten en ontwikkelingssamenwerking in toenemende mate zullen vervlechten. Sceptici merken op dat de normatieve en juridische aard van mensenrechten niet compatibel is met de uitvoering van OSS-beleid, en de opkomst van strategieën voor het integreren van mensenrechten een tijdelijke trend zijn. Het onderzoek dat aan de basis ligt van dit rapport kadert in het programma ‘Steunpunten voor Beleidsrelevant Onderzoek’ dat gefinancierd wordt door de Vlaamse Overheid. Wij danken de Vlaamse Overheid voor de financiële steun en interesse in het onderzoek.
- 5. 5 Integrating Human Rights In Development Policy: Mapping Donor Strategies And Practices David D’Hollander, Axel Marx and Jan Wouters TABLE OF CONTENTS List of Abbreviations ...................................................................................................................................... 7 Introduction .................................................................................................................................................... 8 1. Human Rights and Development Policy: Disparities and Convergences ................................................... 9 2. Integrating Human Rights in Development Policy: Evolving Practices ..................................................... 11 2.1. Rhetorical Endorsement ................................................................................................................... 14 2.1.1. Human Rights, MDGs and the Aid Effectiveness Agenda ......................................................... 16 2.2. Human Rights Dialogue and Conditionality....................................................................................... 17 2.2.1. Human Rights as a Prerequisite ................................................................................................ 19 2.2.2. Human Rights in Performance Assessment .............................................................................. 20 2.2.3. Human Rights in Policy Dialogues ............................................................................................. 22 2.3. Human Rights and Democracy Programmes .................................................................................... 23 2.4. Human Rights Mainstreaming ........................................................................................................... 25 3. Human Rights-Based Approach to Development .................................................................................... 27 3.1. HRBA as a Concept .......................................................................................................................... 27 3.2. Motives and Drivers for Adopting a HRBA ........................................................................................ 29 3.3. Components of the HRBA: Outcomes and Processes ...................................................................... 30 3.4. From Service Delivery to Building Capacity for Rights-holders and Duty-bearers ............................ 33 3.5. Implementing a HRBA in Development Programming ...................................................................... 34 3.5.1. Universality and Inalienability, Indivisibility, Interdependence and Interrelatedness .................. 36 3.5.2. Non-discrimination and Equality ................................................................................................ 37 3.5.3. Participation and Empowerment ................................................................................................ 38 3.5.4. Accountability, Transparency and Rule of Law .......................................................................... 39 4. Evaluating Human Rights Policies in the Development Arena ................................................................. 41 4.1. Measuring Outcomes and Impacts ................................................................................................... 42 4.1.1. Human Rights Conditionality and Dialogue ................................................................................ 42 4.1.2. Human Rights and Democracy Programmes ............................................................................. 43 4.1.3. Human Rights Mainstreaming and applying a HRBA ................................................................ 45
- 6. 6 4.2. Challenges of Institutionalizing Human Rights .................................................................................. 47 5. Concluding Remarks ............................................................................................................................... 49 Annex 1. Overview of Civil, Political, Economic, Social and Cultural Human Rights ................................... 51 Annex 2. Infosheet linking development themes and MDGs to HR mechanisms and Instruments .............. 52 Annex 3. OHCHR Indicators for the Right to Health .................................................................................... 54 Bibliography ................................................................................................................................................. 55
- 7. 7 LIST OF ABBREVIATIONS ADC Austrian Development Cooperation AusAID Australian Agency for International Development BMZ German Federal Ministry for Economic Cooperation and Development CIDA Canadian International Development Agency DANIDA Danish International Development Agency DFID UK Department for International Development EC European Commission ECSR Economic, Social and Cultural Rights HRBA Human Rights-based Approach MDGs Millennium Development Goals NORAD Norwegian Agency for Development Cooperation OECD-DAC Organisation for Economic Cooperation and Development/Development Assistance Committee OHCHR Office of the High Commissioner for Human Rights PCR Political and Civil Rights PRSP Poverty Reduction Strategy Paper SDC Swiss Development Cooperation SIDA Swedish International Development Cooperation Agency UNAIDS Joint United Nations Programme on HIV/AIDS UNDG United Nations Development Group UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNICEF United Nations Children’s Fund UNIFEM United Nations Development Fund for Women USAID United States Agency for International Development
- 8. 8 INTRODUCTION Human rights and development are considered ‘parallel streams’ which address similar problems and share similar values (Darrow and Tomas, 2005; Robinson, 2005; McInerney-Lankford, 2009). Both the human rights movement and the development communities see themselves as progressive and transformative, with the aim to “bring into being new worlds that are more prosperous, more humanly fulfilling, and more just” (Archer, 2009, p.26). More often than not, the operational focus of development and human rights work is concentrated on the same target groups and subject areas (Sano, 2000). Despite this convergence of goals and operational fields, a synergy between human rights and development policy only took root in the early 1990s. Since then, the integration of human rights in development policy has been undertaken by donors in various ways (OECD/WB, 2013). The lack of consensus on a single approach to integrate human rights has led to a broad range of practices among different development actors. This paper presents an overview of how human rights are integrated in development policy, with a particular emphasis on the Human Rights Based Approach (HRBA). At the outset it should be noted that the integration of human rights is not restricted to the application of the human rights legal framework stricto sensu. The covenants, protocols, standards and principles of the human rights framework are operationalized in various ways and the use of formal legal channels is only one aspect of the human rights approach to development. As a result, the present paper focuses mainly on policy strategies adopted by donors and aid agencies without adopting a strictly legal perspective. While this paper concentrates mainly on donor policy, the implications of human rights policies bear on the whole development ‘chain’, including multilateral and bilateral development agencies, investment banks, implementing agencies, private contractors, civil society organizations, or community-based organizations. The present paper attempts to cover the general lines of this broad field, with a particular focus on the policy of bilateral donor agencies. To capture the evolution of practices and the debate on the role of human rights in development work, it draws upon a number of academic publications. To further illustrate concrete policy measures, we refer to a number of strategy and policy papers, manuals, guidance instruments and reports from donor agencies and other aid actors. As a result, academic scholarship and observations on the integration of human rights in development work are complemented with practical examples of policy practices and outcomes. The first section briefly explores the differences between the development and human rights communities from a historical perspective, illustrating the context in which human rights policies have been introduced into development policy. Section 2 presents a categorization of current strategies which integrate human rights into donor policy, i.e. (i) the rhetorical endorsement of human rights, (ii) human rights and democracy programmes, (iii) human rights dialogue and conditionality, (vi) human rights mainstreaming, and (v) and human rights-based approaches (HRBA). Section 3 further elaborates on the concept, theory and implementation of HRBA, as this is arguably the most structural effort to integrate human rights into development policy. Finally, in section 4 we address issues concerning the evaluation of human rights policies and the operational challenges faced in institutionalizing human rights. The concluding remarks consider the implications of some recent developments for the position of human rights in development policy.
- 9. 9 1. HUMAN RIGHTS AND DEVELOPMENT POLICY: DISPARITIES AND CONVERGENCES The progressive integration of the human rights framework into development practice began approximately two decades ago. However, it has been argued that the full integration of human rights in development policy, at the conceptual, institutional and operational levels, remains fragmented and partial (Uvin, 2004; Alston and Robinson, 2005). The majority of donors and aid agencies are still grappling with the implications of fully committing to human rights and gearing their operational strategy towards them. Questions and doubts about the necessity, usefulness and added value of integrating human rights in development policy still linger. In this sense, it has been argued that we have only seen the beginning of a long-term ‘institutional exchange’ between human rights and development policy (Archer, 2009, p.21). While most large western donors now have a human rights policy in some form or another, the rise of new donors such as China, but also the uprisings in the Arab world, has given new salience to the role of human rights policies in development. This study cannot explore the full implications of these new dynamics, but aims to contribute to this debate by providing clarity on how human rights have been operationalized in development policy. In order to discuss how and to what extent human rights are currently integrated in development policy, it is necessary to understand the past ‘distance’ between the human rights and development communities. Since their establishment in the post-1945 era, development policy and human rights have evolved along separate institutional paths and existed largely in isolation from each other (Alston, 2003, p.9). In a simplified dichotomy, traditional development concerns economic growth and providing basic needs to communities, while traditional human rights work concerns the protection of the individual against any abuse of (state) power (Tomasevski, 1989; Sano, 2000). Accordingly, human rights has been the working area of lawyers and legal experts, while development policy was conceived by economists and implemented by technically-orientated practitioners. Traditionally, human rights organisations have used highly visible advocacy, activism and ‘naming and shaming’ strategies with a focus on cases of illegal executions, arbitrary detention or torture. Development cooperation agencies on the other hand, were concerned with setting up resource intensive technical interventions in sectors such as agriculture or infrastructure. From the 1980s onwards, the development sector underwent a transformation with a sharp rise of NGOs and increased attention for the basic needs of the poor. Contrary to human rights work, development policy often operates outside the spotlights of public opinion. These differences led one observer to state that “[…] the cultures, vocabulary, experience and instincts of the human rights world and the development assistance / humanitarian worlds are distinct” (O’Neil and Bye, 2002, on cit. Munro, 2009, p. 187). An overview of the various human rights guaranteed by the International Covenant on Political and Civil Rights and the International Covenant on Economic, Social and Cultural Rights can be found in Annex 1. In theory, the recognition of economic, social and cultural rights (ESCR) in 1966, offered a ‘bridge’ between the human rights and development worlds. However, for a long period the human rights community concentrated exclusively on political and civil rights (PCR), apparent in the UN machinery and the work of NGOs such as Amnesty International. On the other hand, the development community saw little need for a legal interpretation of their work through the ESCR framework (Uvin, 2004). Moreover, the language of
- 10. 10 human rights was seen as political and confrontational during the Cold War period, in which the West championed PCR (e.g. democratic freedoms) and the Soviet Bloc emphasized ESCR (e.g. equal economic development) (OECD/WB, 2013, p.4). The recognition of the right to development by the UN in 1986 could be seen as a first symbolical milestone towards a greater synergy between the development and human rights communities (Uvin, 2004; p. 42). It was an effort to reform the global economic order and aimed to provide a legal basis for the redistribution of resources. However, the complex legal wording of the right to development and the fact that it is only recognized in a legally non-binding instrument meant that it had little impact on the work of development and human rights organisations, or the relation between them (Uvin, 2004; p. 42; Cornwall and Musembi, 2004; p.1421-1422). The human rights and development communities moved closer towards each other after the fall of the Berlin Wall. Symbolically, the 1993 World Conference on Human Rights and the Vienna Declaration reaffirmed the indivisibility and interdependence of all human rights, and emphasized the interrelatedness between democracy, development and human rights and fundamental freedoms (Cornwall and Musembi, 2004, p. 1422). Following this, large human rights NGOs progressively broadened their scope to include economic and social issues and new rights-based NGOs emerged focusing on ESCR, such as the Foodfirst Information Action Network (FIAN). These played pioneering roles in international fora, creating cross-cutting linkages between the development and human rights communities (Plipat, 2006; Cornwall and Musembi, 2004). Within the UN system, greater interest towards ESCR followed with, for example, the establishment a Special Rapporteur on the right to education in 1998. As the human rights community increasingly addressed issues related to economic and social development, the development sector also turned towards the language of human rights (Robinson, 2005, p. 30). On a conceptual level, understandings of development as consisting of purely economic and institutional matters gave way to the notion of ‘human development’.1 Methodologies such as the capabilities approach and the sustainable livelihoods framework were increasingly considered as complementary to a human rights approach to development, both in normative, theoretical and practical terms (Vizard, 2006; Vizard et al., 2011; Moser and Norton, 2001; Conway et al., 2002). Greater attention for human rights in development work was also pushed forth by events on the field, in particular the 1994 Rwandan genocide (Robinson, 2005, p. 30; Uvin, 2004).2 As a number of factors stimulated exchanges between human rights and development in the 1990s, it could be said that “[…] development was increasingly perceived as a right, whereas earlier it had been perceived as an instrument of solidarity” (Sano, 2000, p. 736). 1 The influential work of Amartya Sen and the introduction of the capability-approach, which quickly spread as a theoretical paradigm within the development community, redefined the analytical scope of poverty and development. The ‘capability’ approach perceives poverty as the absence of capabilities to realize certain elementary freedoms which are at the very heart of human dignity (Sen, 1992). In addressing the many obstacles which keep people from achieving capabilities, development is conceived as a process towards greater freedom (Sen, 1999a). Departing from this position, further work by Sen, Nussbaum and other authors explored the linkages between these capabilities, elementary freedoms and human rights (Sen, 1999b, 2004, 2005; Nussbaum, 1997, 2003, 2004). 2 A much-read account is ‘Aiding Violence’ by Peter Uvin, addressing the role of the international development community during the 1994 genocidal killings in Rwanda (Uvin, 1998). ‘Blind’ development donors and agencies were largely unaware of the dynamics of ethnic tension and the spiral of violence which ensued, and in some cases supported conflict dynamics.
- 11. 11 Today, an increasing overlap between development and human rights can be observed on several levels (McInerney-Lankford, 2009, p.52-53).3 Perhaps more important is the gradual shift in perceptions on the role human rights within the international development community. Donors are increasingly convinced that human rights are not merely ‘moral considerations’ but are in fact instrumental in making development cooperation and poverty reduction more efficient through improved governance (OECD/WB, 2013, p. 74). These changing perceptions provide the background for an evolving set of practical applications in the development sector. 2. INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: EVOLVING PRACTICES There has been a significant evolution in how development policy has been aligned with human rights and how the concept of human rights has been operationalized. This section presents a non-exhaustive overview of the different policy practices which reflect the integration of human rights in development policy. In this study, we understand the ‘human rights framework’ as the framework of the nine core international human rights treaties (box 1) and their optional protocols. An overview of particular human rights can be found in annex 2. It is important to note that not all human rights treaties have been signed and ratified by all states, but despite several notable exceptions, the human rights framework is founded upon a broad international consensus.4 State compliance to these treaties is in first instance monitored by the UN treaty bodies, but a number of other UN mechanisms, such as the Special Procedures, as well as a range of non-governmental organisations have effectively taken up this role. Box 1: The Nine core international human rights treaties Date Monitoring body International Convention on the Elimination of All Forms of Racial Discrimination 21 Dec 1965 CERD International Covenant on Civil and Political Rights 16 Dec 1966 CCPR International Covenant on Economic, Social and Cultural Rights 16 Dec 1966 CESCR Convention on the Elimination of All Forms of Discrimination against Women 18 Dec 1979 CEDAW Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 10 Dec 1984 CAT Convention on the Rights of the Child 20 Nov 1989 CRC International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 18 Dec 1990 CMW International Convention for the Protection of All Persons from Enforced Disappearance 20 Dec 2006 Convention on the Rights of Persons with Disabilities 13 Dec 2006 CRPD Source: OHCHR (www2.ohchr.org/english/law/) 3 McInerney-Lankford identifies (i) an overlap in obligations, as the right to development is increasingly, but not unanimously, recognized as a human right, (ii) a factual or substantive overlap, as human rights organisations and development agencies address similar problems regarding poverty, inequality and exclusion and (iii) an overlap or convergence of principles, such as participation, transparency and equality, which are currently shared by both the development and the human rights community. 4 One of the more important exceptions is the ‘International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families’ which to date has only been ratified by 46 countries.
- 12. 12 Two broad categories are distinguished; political and civil rights (PCR) and economic, social and cultural rights (ESCR). Each signatory state has an obligation to respect, protect, and fulfill these rights (box 2). Box 2: Categories and dimensions of human rights I Respect (no interference in the exercise of the right) II Protect (prevent violations from third parties) III Fulfil (provision of resources and the outcomes of policies) Civil and political rights Torture, extra-judicial killings, disappearance, arbitrary detention, unfair trials, electoral intimidation, disenfranchisement Measures to prevent non-state actors from committing violations, such as torture, extra-judicial killings, disappearance, abduction, and electoral intimidation. Investment in judiciaries, prisons, police forces, and elections, and resource allocations to ability Economic, social, and cultural rights Ethnic, racial, gender or linguistic discrimination in health, education, and welfare and resource allocations below ability. Measures to prevent non-state actors from engaging in discriminatory behaviour that limits access to health, education, and other welfare. Progressive realization Investment in health, education, and welfare, and resource allocations to ability. Source: UNDP (2006) Development policy can support partner countries in realising each of these obligations in respect of any specific right, although in practice it has generally focused on assisting the fulfilment of ECSR. How the human rights framework has been applied by the development community varies significantly. The debate on how to integrate human rights in development is still ongoing, as practitioners from both the human rights and the development communities continue to interact. Accordingly, this overview is not a definitive listing of different policy strategies but a compact presentation of how ‘human rights in development’ has been conceptualised and implemented. The overview distinguishes five different policy approaches: rhetorical endorsement of human rights, human rights dialogue and conditionality, human rights and democracy programmes, human rights mainstreaming and human rights-based approaches. The categorisation is based on the 2013 OECD/World Bank publication ‘Integrating Human Rights into Development; donor approaches, experiences and challenges’ (see Table 1.), and Peter Uvin’s division of how human rights have been integrated in development practice (Uvin, 2004). Similar divisions of approaches are also reflected in policy documents, such as in the Swedish Ministry of Foreign Affairs communication on human rights and foreign policy; “There are three main tools for promoting human rights […] development policy dialogue; development projects directly aimed at strengthening human rights and
- 13. 13 democracy; and integration of human rights and democracy into development cooperation as a whole.” (SMFA, 2003, p. 17). A more descriptive typology is presented in a 2010 World Bank study, which distinguishes three modes of integration (McInerney-Lankford and Sano, 2010, p. 29): (i) ‘non-explicit integration’ acknowledges a substantive overlap between the areas covered by human rights and development, but does not embrace an explicit commitment to human rights, (ii) the ‘integration of human rights principles’ entails the strategic and sectoral integration of human rights principles, while also applying other perspectives and (iii) the ‘integration of human rights accountability’, whereby legal accountability is emphasized, and programming is explicitly framed in human rights norms and obligations. From an operational and policy-oriented perspective this paper relies on an adaptation of the different approaches as identified in the aforementioned OECD/WB report (table 1). Two important points concerning the categorisation in this paper should be highlighted. First, in practice, a mix of different approaches is applied simultaneously, as the boundaries between categories are blurred. Notably, when donors ‘mainstream’ human rights throughout different thematic operational fields, this is often similar to a integrating a ‘human rights-based approach’ (OECD/WB, 2013, p. 24). This raises a second point concerning the linear or non-linear character of the above typologies. Table 1 can be read as a ‘policy menu’, an overview of possible strategies each within their own right. Alternatively, it can also be read as a linear process ending with the human rights-based approach. This view is presented in Uvin’s typology, which describes a stepwise evolution in donor policy, from embracing human rights rhetorically, moving to political conditionality in aid allocation and providing positive support through individual programmes, and finally coming to the adoption of a human rights-based approach or HRBA (Uvin, 2004). Each of these ‘stages’ awards a greater role to human rights in development policy, a process concluded by the HRBA in which the realisation of human rights is the goal of development (see section 3). Accordingly, each of the ‘steps’ requires greater time and resources to implement and thus implies greater commitment. A HRBA Table 1: Donor approaches to integrating human rights Implicit human rights work Human rights projects Human rights dialogue Human rights mainstreaming Human rights-based approaches Agencies may not explicitly work on human rights issues and prefer to use other descriptors (empowerment or general good governance). The goal, content and approach can be related to other explicit forms of human rights integration rather than “repackaging”. Projects or programmes directly targeted at the realisation of specific rights (e.g. freedom of expression), specific groups (e.g. children) or in support of human rights organisations (e.g. in civil society). Foreign policy and aid dialogues include human rights issues, sometimes linked to conditionality. Aid modalities and volumes may be affected in cases of significant human rights violations. Efforts to ensure that human rights are integrated into all sectors of existing aid interventions (e.g. water, education). This may include “do no harm” aspects. Human rights considered constitutive of the goal of development, leading to a new approach to aid and requiring institutional change. Source: OECD/World Bank (2013)
- 14. 14 also incorporates the ‘previous’ policy strategies on human rights, but places them in a coherent framework, a new development paradigm fully aligned with the human rights framework. While this paper largely avoids a linear perspective, it is useful to distinguish between first and second generation human rights policies (OECD/WB, 2013, p. 6). Under the former, human rights are perceived as a component of democracy-building and ‘good governance’ programmes, their scope is often limited to PCR, which can be supported through individual projects and programmes or ‘punished’ through a conditionality policy. The second generation of human rights policies adopt human rights as a transversal theme in development policy, covering all operation including technical projects unrelated to democracy or political governance. Such donors generally have an explicit mandate to promote human rights in their work (OECD/WB, 2013, preface). This 'evolution' is not universal. While ‘second generation’ human rights policies (e.g. mainstreaming and HRBAs) have been adopted by a growing number of multilateral, bilateral and NGO agencies, several large donors have not. This is most notably the case of USAID5, CIDA6 and AUSAID7 which none the less commit resources to human rights-related programming. More importantly, even those development agencies which have a strong mandate to address human rights, often operationalized through mainstreaming policies or adopting a HRBA, are often struggling with the challenges of practical implementation (see sections 4.1 and 4.2). Clearly, some donors committed to ‘second generation’ policies have not invested in significant policy changes to integrate human rights (OECD/WB, 2013, p. 25). In this sense, differentiating between donors with ‘progressive’ or ‘second generation’ human rights policies and those with ‘traditional’ approaches can be misleading. 2.1. Rhetorical Endorsement At the end of the Cold War, the terminology of human rights entered into the policy and mission statements of donor and development agencies. The powerful normative language of human rights was adopted by a development sector in search for “[…]a normative discourse with which to address an increasingly globalized world” (Gready and Ensor, 2005; p.22). In first instance, the integration of human rights implied the recognition of their importance and relevance for development, and adding them as a ‘goal’ of development itself. In many cases, human rights were introduced as essential, underlying, components of ‘good governance’ and/or ‘democracy’ (Grindle, 2010; Gisselquist, 2012). In this rhetorical endorsement by development actors, human rights were often narrowly conceived as PCR and to a lesser extent ESCR (Sano, 2000; p. 743). This conception of human rights as a tool in the democracy toolkit is reflected in the first generation of human rights policies. In this early stage, 5 The United States has not ratified the International Covenant on Economic, Social and Cultural Rights. This conviction that human rights are mainly PCR prevents the mainstreaming of human rights or a HRBA, both of which are based on the idea of inequality and indivisibility of all human rights (UNCU, 2003). None the less, the US has one of the most extensive democracy assistance programmes, and through this it is a large player in supporting human rights projects on PCR such as freedom of expression, or access to justice programmes. 6 CIDA recognizes human rights as a governance theme and since the ‘ODA Accountability Act’ of 2008 development cooperation is to be consistent with international human rights standards (CCIC, 2008). However, no coherent human rights-based strategy has been adopted by CIDA, with the exception of its ‘Action Plan on Child Protection’ which embraces UNICEF’s rights-based approach (CIDA, 2001). 7 Despite a parliamentary committee recommending AUSAID to formally adopt a human rights-based approach, it has not yet taken the step to develop such comprehensive policy (JSC, 2010).
- 15. 15 some development actors not only inserted references to human rights but also claimed their work had been successful in fulfilling human rights all along (Uvin, 2007, p. 600). This use of human rights language in ‘repackaging’ development is not unharmful, as it suggests human rights is a new ‘feel good’ term for the development community and ignores actual and far-going implications the integration of human rights could have on the practice of development (Uvin, 2004; p. 51). However, the rhetorical endorsement of human rights in development policy can be viewed as the “beginning of a new learning curve” (Uvin, 2004, p. 51). Currently, few western donor agencies do not include human rights in their mission statements or do not identify it as a thematic area of work. Moreover, multilateral agreements and policy statements have increasingly included human rights as a crucial and essential factor in poverty reduction and development cooperation (see box 3). Box 3: Interagency or Multilateral Agreements on, or referring to, Human Rights and Development UN Vienna Human Rights Declaration and Program of Action (1993) UN Millennium Declaration (2000) DAC-Guidelines on Poverty Reduction (2001) UN Interagency Common Understanding of an Human Rights-Based Approach (2003) UN World Summit Outcome Document (2005) OECD-DAC Action-Oriented Paper on Human Rights and Development (2007) Accra Agenda for Action (2008) UN MDG 2010 Summit Outcome Document (2010) Busan Outcome Document (2011) The 25th Anniversary of the Declaration on the Right to Development, Joint Statement of Chairpersons of the UN Treaty Bodies (2011) Joint Statement on the Occasion of the 25th Anniversary of the UN Declaration on the Right to Development (2011) UN Conference on Sustainable Development (Rio+20) Outcome Document (2012) Source: OECD/World Bank (2013) Throughout this mapping study, the policy implications behind these statements and agreements will be further discussed, but on themselves they illustrate how human rights have increasingly become a part of the global development agenda. To what extent this emerging human rights-agenda affects or should be integrated into the existing cornerstones of development policy, notably the MDG framework and the Aid- Effectiveness principles, has become an important issue.
- 16. 16 2.1.1. Human Rights, MDGs and the Aid Effectiveness Agenda Several authors and organisations have underlined how human rights overlap or should further be integrated into the Aid Effectiveness Agenda and the MDG framework. These are currently at the heart of most agencies’ policies, and in particular progress on MDG indicators is commonly used to evaluate progress. The Millennium Declaration recognises the links between human rights, good governance and sustainable development. The MDGs and human rights have been regarded as overlapping and mutually reinforcing. However, prominent voices indicated early on that the MDGs ‘reflect only a partial human rights agenda’ and a challenge remains to ensure they become fully compatible (Alston, 2003, p. 7). From within the human rights community, the MDGs have been criticized for a number of reasons, including their top- down logic and lack of grass-roots support (Darrow, 2012, p. 59).8 Accordingly, several calls for integrating human rights concerns into the realisation of the MDGs have been submitted (Alston, 2003, 2005). At the 2010 MDG ‘review summit’ member states confirmed the importance of human rights for achieving progress (OHCHR, 2010; Darrow, 2012, p. 72-73). Led by the UN OHCHR, steps have been taken to develop a human rights-based approach to the MDGs, whereby ‘each millennium development goal, target and indicator should be interpreted in the context of human rights’ (OHCHR, 2008, p.7). The OHCHR thereby highlights the necessity of respecting civil and political rights in the MDG process, as implementation is often still a top-down experience wherein national governments are not necessarily respecting the right of organizations and citizens to participate. This implies the creation of space for participation in MDG-related activities, preventing elite-capture, increasing transparency and making information about policies and programmes accessible (OHCHR, 2008, p. 11-12). A lack of attention for exclusion and non-discrimination has been a recurrent critique. Although three MDGs are specifically aimed at vulnerable groups (children and youth, women and girls and slum dwellers) the OHCHR has argued the principle of non-discrimination is not sufficiently embedded in the MDG framework, which is why on the level of national implementation this has led to poor or no progress for specific demographic groups and minorities (OHCHR, 2008, p. 9). This is also illustrated by the fact that some countries have focused on the ‘relatively well-off’ among the poor population in order to make progress, while extreme poverty remains unaddressed (OHCHR, 2008, p. 4). The OHCHR’s human rights-based approach to the MDGs focuses heavily on mainstreaming issues of non-discrimination across all MDGs, with the aim to ensure that excluded groups such as women, orphans, ethnic or religious minorities are reached. With discussions on the post MDG-framework starting to gain speed, the role of human rights in a post- 2015 framework has become an important theme (Darrow, 2012). Some have argued the human rights framework offers a departure point to redesign the MDG framework altogether, and any new targets after 2015 should not be based upon the availability of data, but should be founded upon the shared legal standards represented by the human rights framework (Langford, 2010, p. 85-86). In reiterating that ‘goal 8 Arguably, not only is the scope of the MDGs poorly specified and even arbitrary, but progress on the MDGs has also provided a ‘fig leaf’ for authoritarian regimes (e.g. Darrow notes the case of Tunisia) (Darrow, 2012, p. 60-65). Another much heard critique is that the MDG targets specify average outcomes, making them ‘equity-blind’, and in this regard might have increased overall inequalities (Darrow, 2012, p. 66-67).
- 17. 17 setting without accountability’ does not function, some have called for developing a framework for ‘millennium development rights’ instead of goals (Dorsey, et al., 2010, p. 521). In similar vein, development organizations have advocated for ‘righting the MDGs’ (Actionaid, 2012) and argued for a ‘human rights- centred sustainable development agenda’ in the post 2015 era (CESR, 2013). Importantly, the EC has also indicated that a future framework should ‘put particular emphasis on moving towards a rights-based approach to development’ (EC, 2013, p. 11). In similar vein, the OHCHR has recently issued its vision on how human rights accountability can be integrated in the post-2015 agenda (OHCHR, 2013). Another key issue is the relation between human rights and the Aid Effectiveness Agenda. At the Fourth High-Level Forum on Aid Effectiveness in Bussan, human rights were recognized as the foundation of co- operation for effective development. A thematic Session on ‘Rights-Based Approaches to Development’ was held, underlining the need to move forward on the issue. Donors such as SIDA have advocated a ‘broadened’ and ‘more inclusive’ aid effectiveness agenda, noting that there are various possibilities to better include human rights and gender within the concepts and practice of aid effectiveness (SIDA, 2010). Several reports and authors have pointed towards the compatibility of the human rights agenda with the Paris Declaration, arguing that human rights norms, analysis and practice can add ‘practical value’ by providing additional tools to strengthen the implementation and monitoring of the Paris principles (Foresti et al., 2006, p. 11). In enhancing donor harmonization for example, the international human rights framework can provide a ‘unique starting point’, as it combines legal authority and political legitimacy (Foresti et al., 2006, p. 42). Stressing how objectives such as reducing poverty and increasing growth cannot be met if human rights are not addressed, the OECD-DAC has provided guidance on how to improve the linkages between human rights and the aid effectiveness in the health sector (OECD/GOVNET, 2008a), and published a series of briefings with action points for integrating human rights into each Paris principle. Finally, it is also worth noting that a HRBA is seen as complementary to the concept of, people-centred or pro-poor growth, endorsed by many donors (Foresti et. al., 2010), and it overlaps with the capability- or livelihoods- approach commonly applied within the development community (Vizard, 2006; Vizard et al., 2011). In this sense, rather than adding a ‘new’ agenda or overriding others, the integration of human rights suggests adjusting or calibrating existing priorities, tools and methodologies in line with the human rights framework and principles. 2.2. Human Rights Dialogue and Conditionality The most evident form of integrating human rights in development policy is the use of human rights-based conditionality in the allocation of aid. The majority of traditional bilateral donors apply political conditionality policies, which very often includes a human rights dimension (OECD/WB, 2013, p. 45). Importantly, conditions relating to democratic governance and human rights have appeared as one of the major differences between ‘western’ donors and emerging ‘southern’ donors. Conditionality plays an important role in deciding which aid modality to use, and specifically whether to provide direct (budget) support to governments (see box 3). The purpose of human rights-based conditionality and dialogue is to use development aid as leverage for ensuring compliance with human rights norms. Practically, this implies that
- 18. 18 determining the eligibility of countries and the performance of partners is subjected to human rights assessments. The concept and application of conditions in aid allocation has seen an evolution from ‘negative’ or ‘punitive’ (i.e. suspending or threatening to suspend support) to ‘positive’ and ‘consensual’ conditionality (i.e. avoiding suspension, emphasizing dialogue, making increases or decreases in support dependent on commonly agreed indicators) (Killick et al., 1998; Morrow, 2005). Consensual conditionality implies donor and recipient enter into a ‘constructive’ policy dialogue. In donor terminology, ‘conditionality’ is often avoided and replaced by a ‘dialogue’, but arguably, policy dialogue can be seen as another form of donor conditionality (Molenaers and Renard, 2008, p. 11). It is important to note that the inclusion of human rights as a condition is contested by a technocratic approach, recommended by the OECD’s Development Assistance Committee, which posits that political or human rights conditionality “should not be specifically linked to budget support or any individual aid instrument, but rather should be handled in the context of the overarching political dialogue between a partner country and its donors” (OECD-DAC, 2006, p. 32-33). This implies donors should separate human rights issues from macro-economic, managerial and ‘technical’ conditions, and as ‘political issues’, they should not be part of the policy dialogue of development partnerships. Before addressing the contested place of human rights in policy dialogues, we first present a brief overview of how donors have included human rights in the process of selecting partner countries and in the subsequent monitoring of partnership performance. Box 4: General and Sector Budget Support The OECD-DAC defines ‘budget support as “[…] a method of financing a partner’s country budget through a transfer of resources from an external financing agency to the partner government’s national treasury. The funds thus transferred are managed in accordance with the recipient’s budgetary procedures.” (OECD-DAC, 2006, p. 26). Budget support emerged as an aid-modality at the turn of the millennium. Since the Paris Declaration on Aid Effectiveness and the European Council’s ‘Consensus on Development’, budget support has been favoured by many donors over ‘traditional’ project or programme-based development (Koeberle and Stavreski, 2006, p. 7-8). A crucial distinction is to be made between general budget support - a general contribution to the overall public budget - and sector budget support - financial aid earmarked to a specific sector - usually defined in broad terms such as education and health - or a more specific subsector, such as primary health care financing. Sector budget support is not to be confused with a Sector-wide Approach (SWAp), which also focuses on a particular sector but implies the use of various aid modalities including but not restricted to sector budget support. The difference between general and sector budget support is of particular relevance to ‘political’ and human rights conditionalities and dialogues. Sector budget support is often perceived as being outside the scope of ‘political dialogue’ as it targets specific areas below the national level. Accordingly, some donors such as the EU, foresee a transfer of resources from general to sector support, or towards other aid modalities, in case of human rights violations (EC, 2012). Despite the affirmation of budget support as the most ‘aid effective’ modality at the Busan Fourth High-level Forum on Aid Effectiveness, the actual use of budget support has stagnated. The Paris Declaration set a target of 85% of ODA being channelled through budget support. The 2011 OECD-DAC survey on the use of budget support estimated the share of budget support in ODA at only 43% (OECD-DAC, 2011, p.32). Accordingly, there has been a growing disillusion about the results of budget support, and large donors such as DFID have indicated progressive decreases in funding for this modality (ODI, 2012, p. 1).
- 19. 19 2.2.1. Human Rights as a Prerequisite In many instances, donors refer to human rights as an underlying principle of their partnerships, often as part of several conditions relating to ‘democratic governance’ or ‘good governance’ (UNDP, 2007). The Irish development agency for example, understands good governance as ‘respect for human rights and the rule of law, free press, pluralistic democracy, independence of the judiciary, accountability to citizens’ (IrishAid, 2008, p. 5). The German Ministry for Economic Cooperation and Development (BMZ) considers a state eligible if they act in a ‘development-oriented manner’, which includes that it ‘respects and protects all human rights and earnestly endeavours to fulfil them for all its citizens’ (BMZ, 2009, p.5). It has developed a catalogue of criteria which underlines granting of budget support is ‘conditional on compliance with reliable minimum standards of human rights, the rule of law, democracy and peace’ (BMZ, 2008, p.14). Similarly, the political governance conditions applied by Norwegian Agency for Development Cooperation (NORAD) includes human rights but also ‘open multi-party elections’ and ‘participation in decision-making processes’ (NORAD, 2007, p. 11) and the criteria set by the Austrian Development Cooperation (ADC) are based on three overarching pillars: ‘respect of human rights, democracy and the rule of law, peace and security’ (ADC, 2009, p. 17). The human rights element is thus one out of several components defining governance preconditions. However categorised, most bilateral donors include a broad reference to human rights, and ‘good’ or ‘democratic’ governance as underlying principles in the memorandum of understanding agreed upon with the partner country (Hoven, 2009; Vanheukelom et. al., 2011; Molenaers, 2012). Because of the close link to democratic or good governance, human rights conditionality has traditionally focused on PCR (OECD-DAC, 2006, p.53). This is perhaps evident, as the progressive realisation of ECSR is considered a goal, rather than a prerequisite, of development policy. Accordingly, donors might refer to a ‘willingness to move forward’ on ECSR (DANIDA, 2012, p.10). Setting a commitment to the progressive realisation of ESCR as a precondition is often framed through demanding a country-driven development strategy such as the Poverty Reduction Strategy Paper (PRSP). As the World Bank and the IMF were the initial drivers behind the poverty reduction strategy papers, these were conceived in technical terms and without reference to human rights (Stewart and Wang, 2005; Tostensen, 2007). In the meantime, inroads have been made to integrate human rights in poverty reduction strategies and applying a human rights- based approach to the drafting process (OHCHR, 2003, 2006a; WHO, 2005).9 In this regard, the revision of DFID’s conditionality policy in 2005 underlines the need to incorporate human rights-based benchmarks into poverty reduction plans, linking a commitment to poverty reduction with a commitment to respect human rights and other international obligations (DFID/FCO/HMT, 2005, p. 4). Some country PRSPs include references to human rights in general, as well as specific areas of human rights.10 Although human rights are generally referred to as a precondition for selecting partner countries, the methodology or process behind the selection remains unclear. Donors use a variety of in-house or external 9 Note the human rights-based approach to PRS put forward by the OHCHR is not just an effort to ‘rephrase’ PRSPs in human rights language; it also incorporates the conceptual framework of HRBA as described in section 4. 10 For example the current and previous PRSPs of the government of Malawi refer to human rights and embraces the concept of a human rights-based approach to development (Government of Malawi, 2012; Tostensen, 2007). Other countries such as Tanzania and Uganda have also incorporated human rights language in their first PRSPs (Tostensen, 2007).
- 20. 20 ‘governance assessments’ to verify compliance with preconditions or monitor the performance of partnerships, but these are heavily focussed on macro-economic performance, often paying special attention to the recipient’s track record on corruption (Koeberle and Stavreski, 2005; UNDP, 2007). An OECD survey analysing a number of different governance assessment tools indicated ‘human rights’ are included in most general country assessments (OECD-DAC, 2008a). These can include human rights indicators (see box 4), which can be broadly categorised as indicators for ‘compliance measurement’ and for ‘performance assessment’ (see Box 4). While it is possible to identify eligibility conditions by screening donor policy documents, the actual selection procedures are often not transparent. A recent study indicates two out of five of the examined donors referred to human rights explicitly in their eligibility criteria, but how these are assessed and weighed against other criteria in the selection procedure is not clear (Molenaers, 2012, p. 797). A 2006 evaluation study on budget support indicates donors tend to emphasize technical assessments while political risks (e.g. probability of human rights violations) were less considered (IDD and Associates, 2006). It is also crucial to note aid allocation is not only determined by conditionalities set by donor agencies, but is often part of a larger strategy at the level of foreign ministries.11 In this sense, the apparent double standards regarding human rights issues are an oft mentioned criticism. To confront this, the need to harmonize eligibility criteria and assessments and make them more objective, has been stressed (UNDP, 2007, p. 68; OECD-DAC, 2008a). This is also supported in the EU’s recently adopted strategy on budget support, which urges member states to engage more closely and coherently on the conditions of aid allocation and coordinate their human rights assessments (Council of the European Union, 2012a). 2.2.2. Human Rights in Performance Assessment Assessing and monitoring the performance of recipient governments is a pertinent issue for all donors. In some cases, eligibility and performance criteria are the same, while other donors use different assessment criteria (Molenaers et al., 2010, p. 15). In order to monitor violations and/or progress on the realisation human rights, donors often demand annual assessments of their country offices. These assessments are sometimes part of general country assessments, or but a number of donors also work with human-rights specific assessments (OECD-DAC, 2008a, p. 8). The assessments are often qualitative descriptions of the situation on the ground based upon local and international sources, but can also include standardised human rights indicators and ‘scores’ (i.e. comparative indicators). More than 30 different measurements exist (Dibbets et al., 2010), box 5 presents a brief description of human rights indicators. Box 5: Human Rights Indicators To measure human rights a number of indicators have been developed which vary greatly in scope, rigour, complexity and availability. The multi-dimensional nature of human rights cannot be captured by one single ‘Human Rights Index’ (Landman and Carvalho, 2010, p.130). Some aim to measure the occurrence of human rights violations or a state’s legal compliance with the human rights framework. More complex measurements integrate several sub-indicators to measure the extend to which a 11 Geopolitical interests, linguistic and cultural ties and post-colonial relationships are overarching factors which explain aid allocation patterns and the ‘ambiguous’ implementation of human right and democracy-related conditionality by different members of the donor community (Alesina and Dollar, 2000; Barrat, 2008).
- 21. 21 government has taken measures to ensure the realization of human rights, or as illustrated below, set out a comprehensive measurement framework for a specific right (McInerney-Lankford and Sano, 2010, p. 20). In human rights assessments, two principal methodologies of indicator formulations can be identified: (1) compliance indicators measuring the human rights accountability of states as duty-bearers, and (2) indicators measuring the effectiveness of state policy and/or the implementation of specific programmes (McInerney-Lankford and Sano, 2010, p. 45). In conditionality policy, indicators of compliance are most often integrated in governance assessments. Most donors include here the state of ratification of human rights treaties and other agreements. Commonly used by donors are the Worldwide Governance Indicators (WGIs) published by the World Bank Institute. This is a set of governance indicators, available for most countries, covering several governance categories related to human rights, including ‘voice and Accountability’ and ‘rule of law’. The WGIs integrate data from various human rights surveys and databases, including the CIRI Human Rights Data Project. This is an indicator covering a range of human rights areas including involuntary disappearances, torture, freedom of speech, women’s rights, independence of the judiciary etc. A similar collection of human rights indicators are the Freedom House’s ‘Freedom in the World’ indicators, which creates a global ranking based on a checklist political rights and civil liberties. A more specific indicator is the ‘Press Freedom Index’ developed by Reporters without Borders, which compiles a ranking on the basis of questionnaires completed by journalists and media experts, measuring violations of the right to freedom of expression. In transferring human rights issues to standardized scales, these indicators rank countries according to their ability to protect human rights, only covering the ‘respect’ dimension of human rights (UNDP, 2006, p. 8). Focussing on violations or non- compliance, they are often associated with negative human rights conditionality, e.g. suspending aid in case of grave violations (McInerney-Lankford and Sano, 2010, p. 22). In line with the concept of consensual conditionality policies and human rights dialogues, more complex assessments focussing on the progressive realization of the human rights framework have been developed. The Danish Centre for Human Rights has formulated extensive sets of human rights indicators which combine compliance indicators with human development indicators (e.g. literacy rate), adding new layers to measure the commitment to civil, political, economic, social and cultural rights, or efforts to eliminate discrimination, etc. (Sano and Lindholt, 2000; Andersen and Sano, 2006). Elaborating on this work, the OHCHR has developed a methodology and framework for monitoring state compliance with specific human rights, such as the right to participate in public affairs, the right to health, or the right to food (OHCHR, 2002, 2008; McInerney-Lankford and Sano, 2010, p. 18-24). The OHCHR assessment framework presents three layers of human rights indicators; Structural (e.g. have states ratified human rights instruments/conventions), Process (e.g. factual indicators on specific issues, for example in case of the right to freedom of expression, the number of censored newspapers), Outcomes (e.g. direct measures of the realization of a human right, for example in case of the right to adequate housing the average of homeless persons per 100,000 population) These assessments capture a duty-bearer’s commitment, efforts and results, respectively. For each of these indicators the OHCHR has also developed guidelines for disaggregating data in order to identify vulnerable and excluded groups (OHCHR, 2002, 2008; McInerney-Lankford and Sano, 2010, p. 18-24). The indicators were developed for the UN human rights treaty bodies, whereby states are expected to report using the assessment framework. However, they can also serve as instruments for donors in evaluating partnerships or measuring progress in specific areas of work in partner countries. In Annex 3 the OHCHR indicator set for the right to health is included as an example. In addressing the lack of uniformity in ‘measuring human rights’ between development actors, the use of these OHCHR indicators may help promote a more systematic approach (McInerney-Lankford and Sano, 2010, p. 18-24). However, to date their practical use is still limited as most states still have to adopt this reporting framework. Moreover, states might not have the capacity to carry out the extensive data collection that is required, or might be unwilling to share data of a sensitive-nature (Landman and Carvalho, 2010, p. 122). Donor agencies face the same practical challenge in operationalizing the more complex human rights indicators within programmes or projects. Linking such programme assessments/indicators in the human rights field to country or global assessments/indicators also remains a challenge (Dibbets et al., 2010, p. 47). How donors can effectively integrate human rights concerns and results-based management within their monitoring and evaluation framework continues to be a work in progress.
- 22. 22 In assessing human rights performance donors have a range of assessments and indicators to choose from. However, again, there is little donor transparency as to how these are used, and what decision- making processes guide human rights considerations in performance assessment. As human rights are often included as ‘underlying principles’ in partnership agreements, their exact content often remains vague (Molenaers, 2012, p. 800-801). As such there is a significant difference in how donors interpret them, to what extent they are considered actual ‘conditions’, and when a breach of these principles should lead to suspension of support (Molenaers, 2012, p. 800-801). Accordingly, there seems to be little coherence donor policies concerning the weight attributed to human rights performance. For example, NORAD’s performance assessment framework includes human rights, gender and environmental concerns as cross- cutting issues, but these are applied pragmatically, taking into account country-specific conditions and the limitations of specific programmes (NORAD, 2005, p. 17). Similarly, the EC’s recent revision of its budget support policy notes ‘conditions may be attached’ but does not prescribe the use of specific indicators as these ‘should be drawn from each country's national and/or sector development policy’ and should ‘contain a mix of process, output and outcome indicators’ (EC, 2011a, p. 10). Rather than using uniform performance indicators, the EC, as many other donors, relies on broader qualitative reporting from its country delegations. Moreover, concerns have been raised about ‘overburdening’ the budget support instrument with too many assessment- and indicator-tools (ODI/ETTG, 2012, p. 5). While human rights concerns seem to play an increasing role between donors and recipients, the experience to date shows the termination of support only occurs in extreme cases of violations, such as military coups or fraudulent elections (Bartels, 2005, p. 37; OECD/WB, 2013, p.46; Zimelis, 2011, p. 403). 2.2.3. Human Rights in Policy Dialogues Through policy dialogue, donors engage with recipients to persuade them to adopt particular policies and reforms (Morrissey, 2005, p 237). While conditionality has an element of coercion, policy dialogue does not, and arguably is a more effective means of reforming policy (Morrissey, 2005, p 237). To what extent human rights can or should be addressed in policy dialogue is a contested issue within the donor community. As noted earlier, the ‘technocratic’ approach proposed by the OECD-DAC advices against the use of budget support as an instrument to address human rights issues or political developments (OECD-DAC, 2006). Accordingly what has been proposed is a separation between a ‘political’ dialogue at the diplomatic or ministerial level, and a ‘policy’ dialogue at the level of development actors, which refrains from addressing human rights issues (Molenaers, 2012, p. 796). Within the EU, such political dialogue can be initiated under the Cotonou agreement (box 6), which provides an institutionalised instrument for EU member states to address human rights issues with their ACP partner countries. Despite the platform offered by the Cotonou framework, bilateral donors use the policy dialogue ‘unilateraly’ to address human rights concerns. Indeed, a significant part of mainstreaming human rights (see infra 4.) which several donors, including the EC have undertaken, is to introduce human rights issues more openly with partner governments. As Germany’s Ministry for Economic Cooperation and Development states, budget support has a ‘governance objective’ to ‘promote political dialogue on respect for and realisation of human rights, democratic participation, the rule of law and gender equality’ (BMZ, 2008, p. 8).
- 23. 23 Box 6: EU-ACP Cotonou Agreement As early as 1977 the EU/EC has applied human rights conditionality when it suspended aid to Uganda in response to massacres committed under the regime of Idi Amin (Bartels, 2005). The use of human rights as a condition of aid was first institutionalized in the Lomé IV agreement between the EU and the ACP countries, stating “Cooperation shall be directed towards development centred on man, the main protagonist and beneficiary of development, which entails respect for and promotion of all human rights.”(EC, 2000, Article 5). The legal framework and instruments for applying human rights-based conditionality were further developed in the revision of the Lomé agreements and eventually consolidated by the Cotonou Partnership Agreement signed in 2000 (Zimelis, 2011; Cuyckens, 2010). The Cotonou agreement affirms respect for human rights, adherence to democratic principles and the rule of law as ‘essential elements’ of the ACP–EU partnership (EC, 2000, Article 9). In case of a breach of any of these essential elements, a three step process is initiated, as described under Article 96 of the Agreement (Cuyckens, 2010). In first instance, an ‘exhaustive political dialogue’ must be undertaken between the parties. If these efforts are not satisfactory a consultation procedure is launched in which the EU troika (Council presidency, Secretary-General of the Union and the Commissioner in charge of external relations) negotiates with the ACP country in question accompanied by friendly countries, regional organizations and members of the ACP secretariat. In case this consultation procedure has failed to resolve the issue, in a last stage the adoption of ‘appropriate measures’ is considered, with suspension of the agreement - and subsequent freezing of official aid - as last resort (Article 96(2)(c)(1)). Several of the above mentioned donors share this policy approach, and human rights dialogues have been initiated at the sector level, at the country-strategy or as part of bilateral relations (Piron and O’Neil, 2005; p.35).12 The importance of human rights in policy dialogues was further underlined by the Accra Agenda for Action, which referred to international obligations of human rights in its provision for an expanded policy dialogue between development partners (McInerney-Lankford and Sano, 2010, p.33). Moving beyond a ‘punitive conditionality’ towards consensual dialogue, the use of the above-mentioned human rights assessments and indicators can be used to identify areas of common concern between donor and recipient (McInerney-Lankford and Sano, 2010, p. 12). Using the human rights framework to identify areas of work or highlight issues such as discrimination adds legal grounds to donor concerns, but the effectiveness of this strategy also depends on whether partner governments recognize the validity of human rights norms, or deny violations are taking place (Würth and Seidensticker, 2005, p. 18). Arguably, a successful integration of human rights into policy dialogues largely depends on the openness of the partner government. 2.3. Human Rights and Democracy Programmes Integration of human rights in development policy has come in the form of individual projects which are directly targeted at the realisation of specific rights, the rights of specific groups or in support of specific human rights organisations or defenders (OECD/WB, 2013, p. 48). Within the so-called first generation of human rights policies in development, the scope of human rights projects has been limited to initiatives covering various dimensions of democratic governance. Accordingly, many projects focus mainly on the realisation or protection of PCR and are initiated under the broader umbrella of ‘democracy promotion’ or 12 This shift towards multi-leveled human rights dialogue is in line with the adoption of a human rights-based approach, as discussed in section 3.
- 24. 24 ‘good governance’. Uvin describes these projects as a form ‘positive support for human rights’ where the goals is to ‘create the conditions for the achievement of specific human rights outcomes’ (Uvin, 2004, p. 83). He estimates around 10% of aid budgets are dedicated to this type of support, but the share of the human rights projects within the total budget differs from donor to donor. Human rights and democracy projects have various goals; build the capacity of human rights organisations (e.g. civil society groups, national human rights institutions), provide human rights training and human rights education (e.g. to civil servants, community workers, politicians, teachers, labour-unions, etc.), support for legal reform (e.g. adoption of laws in line with human rights framework, strengthening judicial infrastructure, training judges) (OECD/WB, 2013, p. 48). Besides investing in organisations or public structures, projects can also be limited to certain democratic or human rights-related processes and procedures (e.g. support and monitoring of referenda and elections, capacity-building for media and political parties). In addition to country-specific support, bilateral donors have also invested in global initiatives on human rights, or have provided funds for research projects and knowledge dissemination on human rights (OECD/WB, 2013, p. 49). While several donors have adopted human rights policies which cover all development areas, often governance related human-rights projects remain at the core of their human rights work. For example, SIDA launched its programme for ‘peace, democracy and human rights’ in 1997 which at the time mainly funded projects aimed at promoting democratic values through civil society organisations (SIDA, 2008, p. 9). In 2010, up to 27% of SIDA’s assistance was dedicated to ‘democracy and human rights’ and more than one third of this budget was targeted towards democratic participation and civil society support (SIDA, 2011a). A different example of a human rights-specific policy with a strong focus on political governance is the European Commission’s European Instrument for Democracy and Human Rights (EIDHR).13 Its resources are dedicated to electoral observation missions and democracy building, projects regarding freedom of expression and association, human rights education and civil society building, as well as the protection of human rights defenders (EIDHR, 2011). Often, donors have established similar human rights- or democracy-specific funds for channeling resources to civil society organization. For example, the Dutch government established a ‘Human Rights Funds’ in 2008 to support activities and capacity-building of human rights organizations as well as protect and support human rights defenders (DMFA, 2007). Donors have also set up joint human rights-funds with a specific country focus, such as the ‘Rights, Democracy and Inclusion Fund’ aimed at strengthening democratic governance in Nepal, a joint-initiative by five bilateral donors (ESP, 2012). Donors direct their human rights funding through several channels, including multilateral organisations, international, local and domestic NGOs, domestic and local human rights institutions, partner country government offices or public institutions, domestic private sector companies such as consultants, etc. A case in point is NORAD’s human rights portfolio which distinguishes seven categories of human rights channels, of which multilateral organizations, local and domestic Norwegian NGOs are the biggest recipients (NORAD, 2011, p. 36). Similarly, the EC’s financial commitments towards democracy and human rights are mainly channeled through international organisations and civil society organizations (EC, 2011b, 13 Until 2006 named the European Initiative for Democracy and Human Rights.
- 25. 25 p. 36). Human rights programmes are often carried out in cooperation with multilateral organizations in ‘multi-bi’ or ‘bi-multi’ programmes. In many cases UN-agencies are involved which have build-up considerable experience in working with human rights in development (see infra, p.16). For example, a significant share of the EC’s human rights and democracy budget is channeled through the UNDP (EC, 2011b, p. 36). Different types of partnerships are those with national human rights institutions (NHRIs).14 Donors can directly strengthen the institutional development of these human rights ‘watchdogs’ in recipient countries. Alternatively, they can provide funding or commission development projects to their ‘domestic’ NHRI. For example DANIDA cooperates with the Danish Institute for Human Rights in organizing human rights centred-capacity building in developing countries (DIHR, 2010; 2012). Another specific niche in the human rights portfolio is support for the international bodies, structures and mechanisms related to the human rights framework, which includes international or regional courts, and the broader UN human rights system consisting of the human rights council, treaty bodies, special rapporteurs, etc. In this regard a particular funding channel is the contributions made to the Office of the High-Commissioner for Human Rights (OHCHR) which manages nine voluntary trust funds through which states can contribute to specific activities (OHCHR, 2011, p. 154-161). With regards to the development activities of the OHCHR in particular, funds can be earmarked for its field work in specific regions. Bilateral donor agencies such as SIDA have provided support to specific OHCHR country programmes and intensified dialogue and cooperation at the local/national level (SIDA, 2011b). Despite this diversity in funding channels and partnerships, human rights initiatives in the context of democracy-building have often been aimed at supporting civil society organizations working on political and civil rights. This type of engagement thus becomes inherently political, as the choice of partner organizations can affect relations with the local government. In this sense, donors often emphasize the importance of funding organisations which work towards the ‘peaceful conciliation of group interests’ (EC, 2011c, p.3) and do not undermine legitimate state institutions (SIDA, 2007). 2.4. Human Rights Mainstreaming Human rights-and democracy programmes have been on the policy menu of donors for some time, but have often remained an isolated branch within agencies. A strict separation has existed or still exists between human rights and democracy projects and ‘traditional’ programmes focusing on technical interventions in non-governance areas such as agricultural development or education (Uvin, 2004, Sano 2000). This ‘ghetto-isation’ of human rights is not only institutional, but can also be the consequence of staff-perceptions (e.g. ‘human rights are not part of my work’) or political decisions (EC, 2011b, p. 70). In reaction to this, several donors have moved towards more comprehensive approaches to integrating human rights in development policy, enabling human rights to be considered more broadly. Moving away from the notion that human rights are only a tool in democracy promotion, various donors have increasingly integrated human rights outside the area of political governance through mainstreaming policies. 14 A NRHI can be defined as ‘an institution with a constitutional and/or legislative mandate to protect and promote human rights. NHRIs are independent, autonomous institutions that operate at the national level. They are part of the State, are created by law, and are funded by the State.’ (UNDP/OHCHR, 2010, p. 2). An important element in engaging with NHRIs is their capacity to function independently from the government, this is measured through assessing compliance to the ‘Paris Principles’(UNDP/OHCHR, 2010, p. 10).
- 26. 26 Mainstreaming human rights in donor policy can be understood as the integration of human rights in all areas and dimensions of development cooperation policy. The EC clarifies mainstreaming as ‘the process of integrating human rights and democratization issues into all aspects of EU policy decision making and implementation, including external assistance’ (EC, 2006, p. 13). Mainstreaming policies often seem to ‘evolve’ into a HRBA, a policy concept which is discussed at length under section 3. For example, the recent EU ‘Strategic Framework and Action Plan on Human Rights and Democracy’ indicates a more coherent approach to systematic mainstreaming by adopting a human rights-based approach to the EU’s development policy (Council of the European Union, 2012b, p. 1). Similarly, the UN system which in many ways pioneered human rights mainstreaming, has since evolved to a ‘human rights-based approach’. In terms of policy, human rights mainstreaming often implies that all activities are screened for their potential human rights impact, a so-called ‘Do No Harm’ policy (see infra 3.5.1.). In addition, mainstreaming has often been associated with addressing human rights more clearly and consistently in policy and political dialogues with partners (OECD/WB, 2013, p. 6). Mainstreaming human rights is closely related to a ‘human rights-based approach’, as both approaches apply an understanding of the human rights framework to development policy. Accordingly, most donor policies, as well as practitioners, do not differentiate clearly between the two concepts. In this analysis we differentiate between a human rights-based approach (see section 3) on one hand, which entails an institution-wide reorientation of a donor’s view on development and the adoption of a coherent ‘theory of change’, and mainstreaming human rights on the other hand, which can be seen as less comprehensive and often focussing on particular sub-groups of human rights such as women’s rights (OECD/WB, 2013, p. 28-34). While the HRBA implies a strengthening and systematic application of human rights mainstreaming, a ‘mainstreaming’ policy does not necessarily imply the adoption of a HRBA and can be more selective in its scope. This becomes clear in donor practice, where mainstreaming human rights has often focussed on two specific areas; the rights of the child (applying the Convention on the Rights of Child) and women’s rights (applying the Convention on the Elimination of All Forms of Discrimination against Women). Furthermore, the mainstreaming of women’s and children’s rights is often undertaken most comprehensively in the health and education sector, whereas donors have found it more challenging to mainstream human rights in other areas (OECD/WB, 2013, p. 35-41). While the relevance of the human rights framework for sustainable livelihoods or infrastructure programmes has been explored, in practice donors have found it more difficult to operationalize human rights mainstreaming (or apply a HRBA) in these areas.
- 27. 27 3. HUMAN RIGHTS-BASED APPROACH TO DEVELOPMENT 3.1. HRBA as a Concept The increasing convergence of human rights and development policy has led to strategies, of which the most comprehensive has been the Human Rights-Based Approach to development (HRBA). A HRBA builds upon ‘human rights mainstreaming’ by applying a human rights perspective to all areas of human development. Since the late nineties, it has been adopted by a significant number of multilateral and bilateral donors and NGO development agencies, to the extent that we can now speak of a ‘rights-based development sector’ within the development community (Kindornay et al., 2012, p. 485). An early definition by the Overseas Development Institute formulates a HRBA as follows;“A rights-based approach to development sets the achievement of human rights as an objective of development. It uses thinking about human rights as the scaffolding of development policy. It invokes the international apparatus of human rights accountability in support of development action. In all of these, it is concerned not just with civil and political rights, but also with economic, social and cultural rights.” (ODI, 1999; p.1). Within the UN system, the concept of a HRBA was born out of the need to have a more comprehensive, coherent and systematic understanding of ‘mainstreaming’ human rights across agencies (Oberleitner, 2008, p. 361). UNICEF pioneered the implementation of a HRBA as it progressively aligned and designed its development strategy in line with the standards and principles of the Convention on the Rights of Child (CRC), officially mandating this approach in 1998 (Oberleitner, 2008, p. 369). To harmonize the various experiences within the UN, a ‘common understanding’ on the HRBA, also known as the Stamford Common Understanding, was written down in 2003 and adopted by the UN development group.15 Box 7: UN Interagency Common Understanding of a Human Rights-Based Approach to Development (UNCU) All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments. Human rights standards contained in, and principles16 derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process. Development cooperation contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights. The UN Common Understanding (UNCU – see Box 6) captures in broad strokes what the concept of a HRBA stands for; the establishment of a legal basis for development work by explicitly applying the human rights framework; the instrumental use of human rights standards and principles in development operations; and the emphasis on the awareness and structural capacity of both rights-holders (e.g. citizens) and duty- 15 The United Nations Development group was founded in 1997 and comprises the 32 funds, programmes, agencies, and other UN bodies that play a role in development. 16 The Common Understanding identifies the following six principles; universality and inalienability; indivisibility; inter-dependence and inter- relatedness; non-discrimination and equality; participation and inclusion; accountability and the rule of law. These principles and their implication will further be elaborated upon under section 3.4.
- 28. 28 bearers (e.g. governments). The UNCU is not authoritative, donors and agencies have developed their own interpretations of a HRBA, and accordingly it “[…]has come to mean different things to different people, depending upon thematic focus, disciplinary bias, agency profile, and the external political, social, and cultural environment” (Darrow and Tomas, 2005, pp.483). Parallel to the UNCU, the Development Assistance Committee of the OECD issued a recommendation on how to effectively integrate human rights into development policy through ten principles for harmonized donor action (OECD-DAC, 2007 – Box 8). Box 8: OECD-DAC Action-Oriented Policy Paper on Human Rights and Development 1. Build a shared understanding of the links between human rights obligations and development priorities through dialogue. 2. Identify areas of support to partner governments on human rights. 3. Safeguard human rights in processes of state-building. 4. Support the demand side of human rights. 5. Promote non-discrimination as a basis for more inclusive and stable societies. 6. Consider human rights in decisions on alignment and aid instruments. 7. Consider mutual reinforcement between human rights and aid effectiveness principles. 8. Do no harm. 9. Take a harmonised and graduated approach to deteriorating human rights situations. 10. Ensure that the scaling-up of aid is conducive to human rights. Although the OECD-DAC does not explicitly recommend a HRBA in line with the UNCU, the above principles could be read as ‘action-oriented’ interpretations of the UNCU. The ‘vagueness’ of the HRBA has been a recurrent point of criticism (Darrow and Tomas, 2005, pp.483), but has also been regarded as a ‘flexibility’; it can be adapted to a range of different policy contexts, adopted as a comprehensive institution-wide concept or applied selectively to a specific area or type of intervention. A good example of this flexibility is how some agencies or specific development projects have worked with a ‘rights-based’ instead of a ‘human rights-based’ approach. While the acronym HRBA is most commonly used to cover both – as in this paper - some rights-based approaches do not specifically draw upon the principles and conventions agreed upon in international human rights law. Arguably, this gives the advantage of defining rights more fluidly and allows greater interaction with local understandings of justice and local power dynamics (Piron, 2005a, p. 24-25). However, the absence of a normative framework risks broadening the scope of rights language to include virtually any demand, and therefore the UNCU underlines the necessity to refer to the actual obligations of states under the human rights framework. It also emphasizes the relevance of the larger human rights system for development programming (human
- 29. 29 rights treaty bodies, Special Rapporteurs, the Universal Periodic Review, etc.).17 For an overview of how the various human rights instruments and mechanisms are connected to the main work-areas of development cooperation agencies, as well as the millennium development goals (MDGs), a reference sheet can be found in Annex 2. Below, the motives and drivers for adopting a HRBA are further discussed (section 3.2). Section 3.3 discusses the core concepts of the HRBA. Under sections 3.4 and 3.5 an assessment is made of how a HRBA translates into policy and practice. 3.2. Motives and Drivers for Adopting a HRBA In theory, the adoption of a HRBA demands “a systematic transformation in the way in which the goal of development is conceptualized, objectives set and monitored, strategies developed and the relationship with partners managed.” (Piron, 2005a, p. 23). Accordingly, the reasoning behind the adoption of a HRBA can be twofold; a normative approach (i.e. a new vision on development) and/or an instrumental approach (i.e. a new way of doing development) (OECD/WB, 2013; Darrow and Tomas, 2005; Piron 2005). The normative reasoning stresses that states and their development agencies have a moral and legal duty to respect, protect and fulfil human rights, including outside their national jurisdiction. As described in BMZ’s ‘Action Plan’ “Human rights provide us with legally binding standards to which we, in common with our partner countries, have committed ourselves inside and outside our borders. We have jointly ratified international human rights treaties and so it is our joint responsibility to work for the respect, protection and fulfilment of human rights. By meeting our obligations, we want to help our partners specifically and effectively to meet theirs” (BMZ, 2008, p. 4). The legal basis for the integration of human rights in development policies is increasingly recognized. In the European context, the International Human Rights Network lists four arguments (IHRN, 2008, p.49-50): (i) the Human rights treaty obligations of EU Member States and partner developing states (ii) the obligation of states to respect their treaty obligations when they act through the entities they create (e.g. development agencies) (iii) the EU founding treaties; particularly Article 6 and 177 of the Treaty establishing the European Community (iv) and the Cotonou Agreement (see box 3). An important development in the further clarification and identification of the legal responsibilities which states have under international human rights framework are the ‘Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights’ (De Schutter, et al., 2012). Adopted in 2011 by leading experts in international law and human rights, these principles are particularly relevant for development policy as they provide a clear and consistent legal argument of how the human rights frameworks applies to ‘matters of world poverty, inequality and development’ (Salomon, 2012, p.455). 17 The UNCU identifies the following elements which are ‘necessary, specific, and unique’ to a human right-based approach: Assessment and analysis in order to identify the human rights claims of rights-holders and the corresponding human rights obligations of duty-bearers as well as the immediate, underlying, and structural causes of the non-realization of rights; Programmes assess the capacity of rights-holders to claim their rights and of duty-bearers to fulfil their obligations. They then develop strategies to build these capacities; Programmes monitor and evaluate both outcomes and processes guided by human rights standards and principles; Programming is informed by the recommendations of international human rights bodies and mechanisms (UNCU, 2003).
- 30. 30 Instrumental approaches see a HRBA as a way of enhancing the impact and effectiveness of development work. As one of the early bilateral agencies to adopt the approach, SIDA states; “The object of raising poor people’s standard of living can more easily be achieved through working with a democracy and human rights approach. This approach conveys particular values to development co-operation by setting the individual person in the centre. The approach can also make cooperation more efficient through contributing to the identification of the people who are discriminated against and the power structures in society that affect poor people’s lives.” (SIDA, 2001, p.1). As described in more detail below, a rights-based approach addresses the root causes of poverty (e.g. institutionalized forms of discrimination and exclusion) and focuses on structural outcomes which can lead to more effective poverty eradication (Piron, 2005a, p. 23). Besides adding greater potential for structural change, a HRBA is also seen as increasing effectiveness through consolidating the use of ‘good programming practices’ (OECD/WB, 2013, p. 88). Theorists and practitioners have identified several dimensions of added value of a HRBA; it offers a normative basis for policy choices and a predictable framework for action with the advantage of objectivity and the definition of appropriate legal limits (Darrow and Tomas, 2005, p. 485-486). From an organisational perspective, a HRBA has the potential to provide development planning with more clarity and rigor and generate new partnerships by bringing ‘natural allies’ together (Hickey and Mitlin, 2009, p. 211). Moreover, the political challenges that are central to many development issues can be more easily addressed using international agreed norms rather than narrow political arguments (Hickey and Mitlin, 2009, p. 211). A HRBA is thus presented as an empowering strategy towards human-centred development goals (Darrow and Tomas, 2005, p. 486). By linking local and global action through shared human rights standards, marginalised groups can achieve greater improvements in their economic, social, or political condition (Sano, 2007, p. 68). Moreover, in applying a legal perspective to development problems, a HRBA seeks to provide a secure basis for accountability (Darrow and Tomas, 2005, p. 486). These advantages are further illustrated below, but it should be noted that the ‘added-value’ of applying a HRBA is still contested (see section 4.1). 3.3. Components of the HRBA: Outcomes and Processes A HRBA sets as the outcome of development the fulfilment of all human rights (UNCU, 2003). For bilateral donors this implies, in first instance, the formal recognition of the human rights framework by themselves and their partners through the ratification of human rights conventions and instruments, and amending national legislation thereto. Secondly, it implies enhancing access to justice, supporting judicial reform, or other measures to improve the effective enforcement of human rights obligations. This emphasis on legal formalism is often criticized as a shortcoming of the use human rights-perspective in development practice, as it is unrealistic to expect actual enforcement of ECSR in development contexts where states lack the required resources (Darrow and Tomas, 2005; p. 517). In this regard it is crucial to underline the concepts of ‘progressive realization’ and ‘justiciability’. It allows to differentiate between ‘negative liberties’ which are considered enforceable (generally but not exclusively PCR e.g. right to life, freedom of expression), and ‘positive liberties’ (ESCR e.g. right to water, health, education, food) which might not be immediately
- 31. 31 enforceable because of resource constraints, but for which States are obliged to ‘[t]ake steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights’ (ICESCR, Article 2.1).18 The justiciability of ECSR is thus often questioned, and as such a legal or HRBA approach to problems related to extreme poverty (eg. lack of access to health) is not seen as useful. However, a number of cases indicate the increasing justiciability of ECSR, as experiences in India, the Philippines and South Africa illustrate (UNESCO, 2011, p. 28-29). A much-cited case is the South African ‘Treatment Action Campaign’, which through constitutional litigation was successful in reforming government policy, significantly lowering the cost of care for HIV/AIDS patients (Heywood, 2009). While the exact impact of legal action is difficult to measure, a number of studies indicate adjudication of economic and social rights has already brought substantial benefits to poor people and ‘likely enriched the lives of millions’ (Varun and Gauri, 2008, p. 303; See also Darrow, 2012, p. 93-99). Although ESCR court cases have in some contexts had a very significant impact on development processes and poverty reduction, international donors applying a HRBA often do not adopt formal legal action as a goal or means. Assisting rights-holders to litigate can be part of a HRBA, but in most rights- based development work actual legal procedures are not undertaken and the focus lies on broader ‘rights awareness’. For example, DFID’s (previous) human rights strategy noted how relying solely upon legal measures for the protection of human rights is not sufficient (DFID, 2000, p. 17) is. Instead, the notion of “rendering the law real in political and social processes”, and not only in courts or legislation, is important in most understandings of a HRBA (Gready, 2008; p. 736). This is also illustrated by the ‘Treatment Action Campaign’ in South Africa, which combined legal action with social mobilization, awareness-raising and legal education (Heywood, 2009). Therefore the goal of HRBA programming is often aimed at creating local understanding of human rights to address issues such as corruption, discriminatory beliefs or public opinion is often part of HRBA programming and projects often focussing on building the (non-legal) capacity of community-based organizations (Gready, 2008, p. 739). Thus a HRBA implies using the ‘language of rights’, but not strictly focussing on legal outcomes. Accordingly, a distinction can be made between using a ‘legal HRBA’, focusing on more narrow, legalistic outcomes, and a ‘non-legal HRBA’ in which rights are applied loosely as catalysts of change, for example, in the empowerment of social movements (Sarelin, 2010, p. 126). Interpreted either in a legal sense or in a broader political sense, the concept of ‘accountability’ is central in the different interpretations of a HRBA (Uvin, 2007, p. 601-602). By redefining development in legal or political terms, the lack of accountability in development policy - which has often been identified at the root of failing development efforts - is openly addressed (Uvin, 2007, p. 601-602). Accordingly, human rights are a means to create ‘a platform to demand accountability’ (Tomas, 2005, p.173). Instead of isolated technical interventions, a HRBA underlines the need for structural change by ‘transforming state-society relations’ with the final aim of ‘strengthening the ‘social contract’ (Piron, 2005a, p. 22). Traditionally, donors have tended to work on either the supply side -strengthening governance and reforming state- or on the demand side - supporting civil-society organizations. As shown in box 9, the concept of a HRBA stresses the need 18 Justiciability refers to legal enforcement on behalf of the victims, by way of filing a claim before national – judicial and quasi-judicial – and impartial legal claims mechanisms, with a view to requesting a remedy or a redress of the alleged violation (UNESCO, 2011, p. 27).
- 32. 32 to support both sides simultaneously by linking demand and supply through the lens of rights-holders, duty- bearers and citizenship (OECD/WB, 2013, p. 74). This ‘macro-institutional approach’ to development should be guided by the human rights framework, and posits that all development actors, whether donors, INGOs or local organizations, conceive their work in terms of policy, law and institutions (Uvin, 2004, p. 131). In this sense, it has been argued donors should be clearer about their understanding of what long-term development entails by formulating an explicit ‘theory of change’ (Gready, 2011). Besides focussing on accountability, a HRBA differentiates itself from traditional approaches because of its process-oriented nature, as it introduces human rights principles and standards to the programming cycle. These principles, as identified in the UNCU, are: universality and inalienability, indivisibility, inter- dependence and inter-relatedness, non-discrimination and equality; participation and inclusion, accountability and the rule of law. These should ‘guide all programming in all phases of the programming process, including assessment and analysis, programme planning and design (including setting of goals, objectives and strategies); implementation, monitoring and evaluation’ (UNCU, 2003). Besides these principles, human rights standards for the progressive realization of ESCR have been developed by human rights treaty bodies.19 In sections 3.4 and 3.5 this paper explores some of the practical measures for the implementation of these principles. Working with a HRBA demands greater efforts from development actors 19 In specifying the implementation of the right to education, the CRC developed the ‘4A framework’ which prescribes the availability, accessibility, acceptability and adaptability of education. This framework is considered to have relevance for the realization of various other ESCR, and more practically, provide minimum standards for service delivery (UNDP, 2012). Strengthen accountability of duty bearers Strengthen equality and inclusion Support people to demand their rights Duty Bearers Fulfil obligations Rights Holders Demand Rights Box 9: Rights-holders and duty-bearers Source: Theis (2003)
- 33. 33 to monitor and evaluate their own working methods in light of human rights principles. This is further discussed under section 4. 3.4. From Service Delivery to Building Capacity for Rights-holders and Duty-bearers A HRBA redefines issues which were previously seen through a technical lens as legal and policy issues. This structural or institutional approach implies a shift away from service-delivery towards capacity building and advocacy (Uvin, 2004; Mander, 2005; (OECD/WB, 2013). Instead of temporarily satisfying needs through service delivery, a HRBA methodology identifies rights and duties, explores why these cannot be realised, assesses the ‘capacity gap’, and finally seeks to close this gap by developing local capacities which outlast the donor’s intervention (OECD/WB, 2013, p. 85-86; Jonsson, 2005, p.53-55). Traditional human rights work is often associated with civil society support. As a more comprehensive concept, a HRBA brings together ‘state-centred and society-centred interventions’ and underlines how ‘state institutions need to be strengthened and citizens need to be empowered’ (Piron, 2005a, p. 25). Conceptually, a HRBA entails a process of ‘changing mentalities’ as the beneficiaries ‘analyze their own personal situation, attribute responsibility, and work out ways to improve it’ (Molyneux and Lazar, 2003, p.9, 10). The approach is thus about creating ‘active citizens’ (Cornwall, 2004, Cleaver, 2009). This is often done by building the capacity of local non-governmental organizations which are best placed to make citizens aware about their rights. A good example of this is can be seen in the strategy applied by the NGO Actionaid wich, in light of recurrent land captures, did not invest in an irrigation system for marginalised farmer communities in Nepal but instead assisted them to organize themselves in demanding formal land tenure rights (Uprety, et al, 2005). As donors and large development NGOs have increasingly adopted HRBAs, implementing agencies or community organizations in the field are also increasingly using a ‘rights perspective’ themselves in order to assure financing (Kindornay et al., 2012, p. 488). As a result of this ‘cascade’ of rights-based development thinking, advocacy and empowerment are becoming more important for organizations in the field (Kindornay et al., 2012, p. 488). However, this does not mean completely replacing service delivery with human rights advocacy or education. In practice a more nuanced balance between the two has arisen (Plipat, 2005, p.48; Chapman, 2005, p.35-36). This is apparent in UNICEF’s original HRBA directive; “UNICEF programmes will increasingly have to show what mix of the three fundamental programme strategies – advocacy, capacity-building and service delivery – is being pursued to address the immediate underlying and basic causes of problems” (UNICEF, 1998). Through a HRBA, donors are thus urging implementing agencies and local partners to boost their advocacy activities. Instead of a substantive decline in service delivery this is likely to produce efforts which combine advocacy and service delivery in a ‘new, synthesized approach to development’ (Kindornay et al., 2012, p. 493). Much of the literature on the HRBA discusses the role civil society organizations. However, in theory a HRBA applies equally to developing the ‘supply-side’ of rights, strengthening the capacity of states as duty- bearers (OECD/WB, 2013, p. 74). The approach places the state at the center of development, presenting the human rights framework as an internationally agreed set of minimum standard for public governance to be integrated in programming activities with local and national authorities (Robinson, 2005, 32). As
- 34. 34 signatories of human rights treaties states are considered the principal duty-bearers, but non-state actors with correlative obligations can also emerge a duty-bearers (UNCU, 2003). These can include private sector actors, but also international financial institutions, bilateral and UN development agencies (Darrow and Tomas, 2005, p. 511; Salomon et al., 2007). Indeed, the accountability of the international development community itself has been a recurrent issue, which creates complex discussions on how to allocate responsibilities and duties in practice. While in theory a HRBA emphasizes the human rights obligations of all stakeholders, including the international community, in implementing projects and programmes at the national level, local government institutions are often conceived as the main duty- bearers. None the less, a debate has taken shape wherein the human rights framework is used to identify global responsibilities and governance structures to address particular development issues.20 3.5. Implementing a HRBA in Development Programming As human rights are progressively becoming a new development paradigm, their relevance for a growing number of thematic areas has been described.21 However, the strategy documents of donors and development agencies are often aspirational and prescriptive, but remain vague about operational and organisational changes. Complementing the more conceptual description presented above, this section presents a non-exhaustive overview of the practical implications of applying HRBA. As it is an ‘umbrella concept’, it covers a broad variety of practices, and donors tend to pick and choose a combination of elements to bring into practice (Miller, 2010, p. 919). Despite the comprehensive transformation proposed in theory, in practice the adoption of a HRBA does not imply an ‘all or nothing choice’ as there are ‘many degrees and levels of engagement through which human rights can be protected and promoted’ (SDC, 2004). It is thus a flexible process within each donor organization, development agency or NGO, and discussing it as a ‘one-size fits all’ operational model is therefore unwarranted. For some organizations, a HRBA relates primarily to project-aid, while for others it it’s an overarching concept which affects all aid modalities, and thus also includes the other human rights strategies we describe in this study. Another problem with assessing the operational implications of a HRBA is the considerable overlap that may exist with existing practices on participation, transparency and accountability, etc. (OECD/WB, 2013, p. 69-70; Uvin, 2004; p. 139). Development actors might be working in a manner closely related to the principles of a HRBA without labelling it as such, while others who have formally adopted a HRBA have done little to operationalise it (Cornwall and Musembi, 2004; Miller, 2010). Some practitioners have indicated the human rights framework is not a practical manual for development work and not useful in guiding the day-to-day 20 For instance, the ‘Joint Action and Learning Initiative on National and Global Responsibilities for Health’ is an initiative exploring how the human rights framework could serve to formulate legal responsibilities and establish structures for global health governance. See http://www.jalihealth.org/. The human rights framework thus presents a basis to reform the existing Global Fund (a fund pooling voluntary contributions for combating AIDS, tuberculosis and malaria) into a veritable Global Fund for Health, or establish a Global Social Protection Fund as a mechanism to and ensure minimum levels of social protection worldwide. See Ooms G., and Hammond, R. (2012) ‘Global Governance of Health and the Requirements of Human Rights’. 21 A topic guide on human rights published by the Governance and Social Development Resource Centre (GSDRC) identifies the following areas; private sector, growth, labour, PFMA and information, migration, livelihoods, housing, land and property, health, water and sanitation, education, justice, social protection and the environment, groups and discrimination, conflict and fragile states. See Crichton J. (2012) ‘Topic Guide on Human Rights’ Governance and Social Development Resource Centre (GSDRC). Available http://www.gsdrc.org/go/topic- guides/human-rights
- 35. 35 operational decisions, but does offer a new ‘strategic’ way of rethinking partnerships and prioritising issues, often enhancing the ‘political’ dimensions of development (Hickey and Mitlin, 2009, p. 214, 225). This perspective sees a HRBA as a shift on a strategic level, which does not necessarily affect the ‘core business of planning, implementing and evaluating development programmes. In this sense, the term ‘rights-framed approach’ has been used to identify a more fluid, strategic use of human rights language in development practice (Miller, 2010). Despite this conceptual complexity, various authors and agencies have tried to capture a HRBA as a number of concrete, practical measures. Different mechanisms, instruments and tools can be distinguished. Cornwall and Musembi identify four main components of a HRBA; human rights can be integrated as (i) a set of normative principles to guide the way in which development is done (ii) a set of instruments with which to develop assessments, checklists and indicators (iii) a ‘component’ to be integrated into programming (iv) the underlying justification for interventions aimed at strengthening institutions (Cornwall and Musembi, 2004; p.1431). For Gauri and Gloppen, a HRBA can consist of four sub-approaches: (i) ‘global compliance’ or persuading states to ratify and comply international and regional human rights treaty commitments; (ii) human rights policies and programming which enhance a variety of accountability oriented institutions in governments and donors (e.g. human rights commissions, ombudsmen, mechanisms of administrative redress); (iii) ‘rights-talk’ and consciousness, or engaging citizens to think of themselves as rights-holders, and supporting activists, non-governmental organizations, and social movements (i.e. advocacy and human rights education), (iv) and lastly, constitutionally based legal mobilisation and litigation through national courts (Gauri and Gloppen, 2012. p. 4). Besides these more general, descriptive assessments of what a HRBA can entail, several UN agencies have elaborated practical models for applying a HRBA. According to UNDP (2006), HRBA programming requires: • Planning and implementation departs from the human rights situation in a country, an initial assessment of the legal framework for protecting human rights is essential, • The identification of duty bearers and rights holders across different policy areas, • The ongoing monitoring and evaluation of the programme for its adherence to human rights principles and an • Assessment of the developmental and human rights impact of the programme (UNDP, 2006). One of the more consistent characteristic of HRBAs is the concept of applying human rights principles in the process of development. These principles, as defined by the UNCU, are universality and inalienability, indivisibility, interdependence and interrelatedness, equality and non-discrimination, participation and inclusion, and accountability and rule of law.22 The principles are derived from human rights treaties, and accordingly their application should be determined on the basis of their ‘functionality (i.e. the extent to 22 These are sometimes summarized in the acronym PANEL (Participation, Accountability, Non-discrimination, Empowerment and Linkages to human rights standards).
- 36. 36 which they gear the development process more directly towards the realization of human rights) and their practicality (i.e. the extent to which they can provide development practitioners with clear and effective guidance) (Darrow and Tomas, 2005, p. 501).23 Most development agencies who have adopted a HRBA identify principles similar to these included in the UNCU, sometimes with slightly different emphasis. For example, the Danish Development Agency adds the principle of ‘transparency’ (DANIDA, 2012), while UNICEF also identifies ‘empowerment’ (UNICEF, 2007). The scope of these human rights principles is broad. They can guide the formulation of policies, laws, strategies, and other appropriate measures in the administrative, budgetary, judicial, educational, political, social, and other fields (UNDP, 2002). These human rights principles have been translated into different operational practices, on different levels of development policy and in different stages of implementation. Before discussing some of the practical ramifications and examples of these principles, it should be noted there is a significant overlap with ‘good governance’ principles as understood by some donors and international bodies (such as the OECD). Moreover, some of these operational principles have been important in development work for some time, but a HRBA seeks to go beyond their implementation as an ‘optional good practice’ and make them an essential part of programming (Darrow and Tomas, 2005, p.494-469). 3.5.1. Universality and Inalienability, Indivisibility, Interdependence and Interrelatedness In embracing these principles, the various political, civil, economic, cultural and social rights, and all other norms and standards consolidated within human rights law, are considered equal and interconnected (Darrow and Tomas, 2005, . 502-503). For many donors, this implies that the traditional understanding of human rights as political and civil rights has to be readjusted, and greater attention for ECSR is called for. In practical terms, this implies fostering an internal understanding of how human rights relate to all areas and modalities of development policy, and are not only an aspect of good governance or democracy. For programming, this implies that each initiative is explicitly framed or linked to relevant human rights treaties (Hamm, 2001, p. 1012). In practice however, development actors have taken a more fluid approach based upon local context and the ‘acceptability’ of human rights language. For example, the Danish Ministry of Foreign Affairs notes that in implementing human rights standards, pragmatic and sensitivity to the local context is important, and a more implicit approach can be more effective in the long run (Dan-MF, 2013, p. 17).The principle of universality of human rights is sometimes contested by local partners, as human rights can be conceived as ‘western values’ in some contexts. Therefore, donors also emphasize the need to take into account regional human rights charters, and where possible base their approach on the national constitution in order to strengthen the validity of the HRBA. Moreover, donors have found it problematic to apply the principle of indivisibility, which states that all human rights deserve equal attention. In practice, this has been criticized for making prioritisation impossible (Munro, 2009, p. 201). Many donors thus recognize the need to be pragmatic, as their choice of thematic work areas automatically implies giving priority to certain rights. The UNDP acknowledges that ‘scarcity of resources and institutional constraints often require us to prioritize concern for securing different 23 For an elaborate discussion of how these principles are derived from the human rights framework, see Darrow and Tomas, 2005, p.501-516.
- 37. 37 rights for the purposes of policy choice’ (UNDP, 2000, p.23). In this regard the OHCHR provides guidance stating ‘Human rights standards by themselves can rarely resolve complex policy choices and trade-offs’ but ‘decisions on trade-offs must take full account of the obligations on States to ensure, with immediate effect, an essential minimum enjoyment of economic, social and cultural rights’ (OHCHR, 2006b, p. 11-12). Recognising the necessity to make strategic choices, donors often embrace the ‘Do No Harm’ principle by which an operation in one area of work should not negatively affect in any way the full spectrum of rights (OECD/WB, 2013, p. 76-78). To identify impacts on different human rights, a number of ‘Human Rights Impact Assessment’ tools have been developed to operationalize the ‘Do No Harm’ principle.24 Similar to ‘environmental impact assessments’, which certain donors have already institutionalized and regulated, such tools are useful in planning and the subsequent approval process of development projects or programmes. Here, a HRBA implies a more rigorous ‘quality control’ whereby human rights standards or human rights principles are assessed. 3.5.2. Non-discrimination and Equality The principle of non-discrimination is closely related to the concepts of social exclusion and deprivation, whereby certain groups or individuals are denied basic entitlements enjoyed by the rest of the population. A HRBA implies addressing the systemic or underlying causes of discrimination through “special measures” (Darrow and Tomas, 2005; p. 505). This means integrating an analysis of patterns of exclusion faced by poor people, vulnerable groups, and minorities. Within the work-area of donors, this is often focused on access to basic health services, education, employment, justice or other basic entitlements identified within the human rights framework. A first requirement is to ensure objective information, preferably disaggregated statistical data, identifies rights-holders not only along sex but also along other grounds of potential discrimination (e.g., race, colour, ethnicity, age, language, religion, political or other opinion, national or social origin, etc.). Further analysis of underlying causes is necessary to explore how policy and programming can address discrimination (UNDP, 2012). Importantly, a HRBA not only incorporates a focus on gender discrimination but urges donors to consider all forms of discrimination. This is highlighted by the 2008 OECD report on a human rights approach to the health sector, which underlines that non- discrimination is often equated with the provision of services for women and children, while other issues such as poor quality treatment of, for example, specific ethnic groups, and inequalities caused by lack of finances to pay for services and transport, go unnoticed (OECD, 2008, p.17). In the same vein, the OHCHR has urged to apply a HRBA to the MDG framework, which could imply creating additional targets for particular groups and disaggregating indicators (OHCHR, 2008, p. 9-10). In programming, donors often use a ‘targeted approach’ to address non-discrimination through programmes which target specific vulnerable or excluded group. In doing this, donors adopt different priority groups and demographics. In its human rights strategy for foreign policy, the Dutch Ministry identified the discrimination of religious minorities as well as discrimination based on sexual-orientation as key action point (DMFA, 2007). DANIDA on the other hand, has invested considerably in the area of indigenous people’s rights and has adopted these as transversal theme in its strategy (DANIDA, 2004). A 24 The ‘Human Rights Impact Resource Centre’ is an accessible collection of tools, instruments and publications for human rights assessments in various sectors and field. See http://www.humanrightsimpact.org
- 38. 38 HRBA has been considered successful in working with indigenous communities – in the framework of the ILO Convention on Indigenous and Tribal Peoples - while similar approaches on the rights of minorities have been less common (OECD/WB, 2013, p. 34). These initiatives can address ‘institutionalised’ discrimination of certain groups by pushing for legal reform. UNICEF, for example, takes as an objective the elimination of discriminatory laws allowing girls to marry before the compulsory school-leaving age or allowing differences in school-leaving ages for girls and boys (UNICEF, 2007; p. 53). Other relevant areas include land and property rights, where the human rights framework offers a legal basis for the contestation of traditional customary law which is often discriminatory towards women (UNIFEM, 2007; Tapscott, 2012). In this area, the FAO’s recent adoption of a set of global guidelines on the ‘responsible governance of land tenure, fisheries and forests’ (FAO, 2012) are a relevant human rights-based tool for addressing discriminatory laws and policies in agriculture or forest management. Asides from challenging discriminatory laws preventing specific groups in enjoying human rights, the principle of non-discrimination often translates itself as enhancing equal access to public services. Another way a HRBA can be applied is by reorienting existing programmes by enhancing monitoring or participation towards excluded groups. Again, developing the use of disaggregated data collection to monitor equality and non-discrimination is an essential step towards this end, and it is recommended donors share and coordinate information in, for example, delivering sector budget support (OECD, 2008, p. 46). A good example of a project in which a non-discrimination approach was applied can be seen in DFID’s ‘Safe Motherhood Programme’ with the government of Nepal. Situational analysis indicated the project was mainly benefiting high-caste women, and identified different patterns of discrimination against women and people from marginalized ethnic groups and lower castes. In first instance, this was addressed within the programme by dedicating more resources to reach excluded groups (SSMP, 2010). Secondly, the programme was used as a platform to institutionalise these changes, by advocating the creation of a ‘Gender and Social Inclusion Unit’ within the Ministry of Health (SSMP, 2009). 3.5.3. Participation and Empowerment A HRBA broadens the concept of participation and demands ‘active, free and meaningful participation’ in any governance area or development intervention, not just those related to political governance (UNCU, 2003). Accordingly, participation becomes an objective, as well as a means, of development (OHCHR, 2006b, p. 26). As noted earlier, participation is not a novel concept to development agencies, but the rights- based versions of participation is about ‘shifting the frame from assessing the needs of beneficiaries […] to foster citizens to recognise and claim their rights and obligation-holders to honour their responsibilities’ (Cornwall and Musembi, 2004; p. 1424). In Sweden’s human rights strategy, participation is thus a measure to secure sustainable results as well as a goal in itself, which is able to make people more aware that ‘they have the right to demand change and social justice’ (SMFA, 2010, p.13). The objective of a HRBA is to embed and institutionalize participation in a way that it becomes a self-sustaining (Darrow and Tomas, 2005; p. 506). Participation in this sense implies ‘empowerment’.25 Moreover, a HRBA emphasizes the 25 We can understand ‘empowerment’ as process of increasing the capabilities of poor individuals or groups to make choices and to transform those choices into desired actions and outcomes, and to participate in, negotiate with, influence, control and hold accountable the institutions that affect their lives (OHCHR, 2002, p. 4).
- 39. 39 inclusiveness and transparency of the participatory process. Poor and excluded groups are often not reached, either because of practical impediments, lack of awareness or because of more structural obstacles, and therefore can investing in the capacities for participation of poor and disadvantaged groups becomes important (Darrow and Tomas, 2005; p. 510). In this process, transparency and access to information is also crucial. This implies making public information available in accessible formats and minority languages or other practical measures aimed at groups with limited means (UNDP, 2012). Participation can be enhanced through creating new channels and mechanisms and/or building the capacity of existing community-based or civil society organizations to work with human rights (OHCHR, 2006). Illustrating the first approach, DFID’s ‘Participatory Rights Assessment Methodologies’ (PRAMs) project presented a work method to facilitate people’s own identification and assessment of their rights and open up new channels of institutional engagement between citizens and duty bearers (Holland et al., 2005, p.93). In the case of Malawi, the PRAM project was integrated in sector budget support with the Ministry of Education and aimed to work towards school improvement through community participation. The approach consisted of training government staff and national NGO representatives to carry out ‘rights assessments’, engaging local communities in a dialogue on improvement plans for local schools (Holland et al., 2005,). Asides from organising participatory spaces, supporting local organizations to engage in rights-based participation is a common strategy of the HRBA. Working on greater participation and inclusion through local organizations implies these are themselves representative and function in a participatory manner (UNDP, 2012). In the selection of local partner organizations, this calls for greater attention to the inclusiveness and openness of such organizations, or could also imply that a more participatory method should be adopted. One of the consequences of the ‘rights-version’ of participation and empowerment in general is that it ‘sharpens the political edges’ of development (Cornwall and Musembi, 2004, p. 1418). Accordingly, it has occurred that programmes supporting rights-based NGOs were cancelled because of political reasons, when a partner government politicians sees the programme as funding for the opposition (ODI, 2008, p. 7). Moreover, the efficiency of the ‘confrontational’ use of human rights has been questioned, as it might not be constructive, particularly in context where it would imply greater vulnerability for already vulnerable groups (Patell and Mitlin, 2009). Moreover, the adoption of the human rights language with a clear political tone might endanger the local personnel and the complex network of local relationships which development agencies rely upon (Uvin, 2004, p. 149). 3.5.4. Accountability, Transparency and Rule of Law As stated by the OHCHR “the most important source of added value in the human rights approach is the emphasis it places on the accountability of policy-makers and other actors” (OHCHR, 2004, para. 31). While traditional human rights programmes focus mostly on political accountability (e.g. support for fair and transparent electoral processes, strengthening multi-party systems, etc.), a HRBA places enhanced accountability as the main outcome in any area of development programming. This requires insight into the legal context within each country, which includes national legislation, adherence to regional charters or agreements, and ratification of human rights treaties or other international agreements (UNDP, 2012). One
- 40. 40 strategy adopted by donors is to advocate for the alignment of national legislation with the human rights framework. For example, the Austrian Development Agency supports states in codifying the right to water and sanitation in laws and regulations, creating legal accountability where this was absent (ADC, 2012). As mentioned above, in some ‘broader’ understandings of a HRBA, accountability goes beyond ratification of human rights treaties or formal legal procedures and entails a broader range of mechanisms and processes (Darrow and Tomas, 2005; p. 487-488). It should be noted that the notion of ‘accountability’ has come to mean many different approaches within the development sector. While in theory human rights provide a platform to demand accountability, from whom, in what forum, and on which grounds is not at a straightforward question (Sarelin, 2012, p. 10). The brief discussion below will not delve further into this complex discussion on human rights obligations, but instead present practical implementations by donors. Asides ensuring formal compliance with the human rights framework, effective rule of law and a functional justice system are essential aspects of a HRBA. Donor agencies such as CIDA, DFID and the UNDP use the human rights framework as a standard for justice reform and the performance of judiciaries (CIDA, 1997; DFID, 2002; UNDP, 2004; SIDA, 2011). Working with a HRBA broadens the scope of ‘rule of law’ programmes by addressing the structural barriers and emphasizing ‘access to justice’ or ‘legal empowerment’ for excluded people (OECD/WB, 2013, p. 231-234).26 This generally implies an element of awareness raising concerning (human) rights, but also making legal services accessible in terms of language, procedures, affordable legal aid and lawyers, or the integration of informal and traditional legal systems. For example, the Dutch Ministry of Foreign Affairs has provided training programmes for paralegals, magistrates, prosecutors, NGOs and farmer associations to enter into dialogue on land rights (DMFA, 2012). In Malawi, DFID’s ‘Access to Justice’ programme provided support to the police, a paralegal advisory service, traditional authorities and community-based organisations, resulting in increased involvement of poor people in decision making processes and strengthened linkages between formal and informal justice systems (DFID, 2007, p. 60) . As mentioned, a HRBA does not only imply a focus on political and formal legal accountability, but on human rights as a platform for informal processes of accountability. Donors can enhance accountability through non-legal means, often under the label of ‘social accountability’. This includes initiatives as different as participatory budgeting, administrative procedures acts, social audits, citizen report cards, organizing public debates, or other approaches to greater citizen participation in public service delivery (Darrow and Tomas, 2005, p. 488; Ackermann, 2005, p.6). In the health sector, experiences with these types of ‘social accountability’27 processes in East Africa have included capacitating local organizations to monitor the rights of patients and the management of the health budget (OECD, 2008, p.6). Similarly, UNIFEM has developed an extensive methodology for budget-monitoring from a women’s rights perspective (UNIFEM, 2006). While the concept of social accountability is closely related to applying a HRBA, it often does not provide legal recourse and often suffers from a lack of bottom-up engagement (Ackermann, 2005, p. 6). In 26 Donors who work on legal empowerment or access to justice programmes, such as USAID or the World Bank, do not refer explicitly to the human rights framework (OECD/WB, 2013, p. 231). 27 Social Accountability can be understood as ‘a form of accountability which emerges from actions by citizens and civil society organization (CSOs) aimed at holding the state to account, as well as efforts by government and other actors (media, private sector, donors) to support these actions’ (UNDP, 2010, p. 9).
- 41. 41 this sense, social accountability initiatives are ideally integrated or complemented by a more comprehensive HRBA (Ackermann, 2005, p. 26-27). Enhancing accountability is strongly related to the issue of transparency and the ‘right to information’. While the UNCU does not explicitly refer to transparency as a principle of a HRBA, it is often included as a guiding principle in human rights strategies towards greater accountability (OHCHR, 2006b, p. 24, 26; UNDP, 2012). Issues of transparency and ‘domestic’ accountability are of particular relevance to donors providing budget support to governments, and several donors have developed policies to establish forums for public dialogue between government, parliament, civil society and the donors themselves to review the budgetary process (BMZ, 2009; DFID, 2011). In adopting a HRBA donors acknowledge the need to be held accountable themselves by the recipients and beneficiaries of aid (Piron, 2005b, p. 2). Importantly, strengthening mutual accountability is one of principles of the Paris Declaration. In this regard, human rights norms and standards can be part of the mutual accountability frameworks with partners, whereby both sides are held accountable for their contribution to the realization of human rights (OECD/WB, 2013, p. 84). On the project level, accountability towards beneficiaries can lead to the establishment of redress and complaint mechanisms. This is evident in UNDP’s ‘Water Governance Facility’ programme in Kenya, where communities and consumers were enabled to voice their dissatisfaction and address corruption in water services through complaints mechanisms (KWAHO, 2009). Again, transparency and access to information are considered crucial in creating (donor) accountability (UNDP, 2012). To what extent donors are legally accountable for their human rights impacts is a contested issue (OECD/WB, 2013, p. 84) and accordingly, the integration of human rights accountability mechanisms is still largely uncharted terrain. For example, DANIDA notes people experiencing adverse consequences to its development policy can complain directly to Danish embassies (DANIDA, 2012, p. 11) while a recent strategy paper by the German BMZ ‘considers’ the adoption of ‘human rights complaints mechanisms’ (BMZ, 2011, p.21). Apparently, policies towards donor accountability remain underdeveloped (Kindornay et al., 2012, p. 496). 4. EVALUATING HUMAN RIGHTS POLICIES IN THE DEVELOPMENT ARENA Human rights policies are still hotly debated within the development community. The tension between ‘traditional’ development programming aimed at technical and measurable outcomes, and the normative logic of working with human rights to create changes in governance and state-society relations, becomes most evident at the evaluation stage (Munro, 2009). This has recently become pertinent as results-based management and the rise of ‘value for money’ evaluations has caused concerns within the human rights sector, who fear their work might be increasingly driven towards ‘what’s measureable’ instead of ‘what matters’ (ICHRP, 2012, p. 4). Moreover, most donors and the OECD-DAC recognize human rights as essential goals of development, and respect for human rights principles have the potential to positively
- 42. 42 impact social and economic development (OECD-DAC, 2007).28 Under section 4.1, different perspectives and methods for assessing and evaluating the outcomes and impacts of human rights policies are discussed. The aim is to look at how the human rights policies in this paper have succeeded in their objective (i.e. the fulfillment of human rights) and how this has been measured. Under section 4.2, some of the issues and challenges of internal change or ‘institutionalization’ of human rights within agencies and donors and their work processes are addressed. 4.1. Measuring Outcomes and Impacts Evaluations of human rights policies are faced by several difficulties, as measuring their outcomes and impacts with results-based frameworks have proven difficult. Nonetheless, the UNCU clearly states the importance of including ‘measurable goals and targets’ in human rights programming (UNCU, 2003). Similarly, the OHCHR, underlines that there is no inherent contradiction between a HRBA and results- based management, as the latter is a tool for managing a programme, while a HRBA defines the planning and process of a programme (OHCHR, 2006, p.31). In this light, the need to adjust evaluation frameworks has been explored. This implies incorporating human rights indicators (see box 4) in evaluation frameworks, but also strengthening capacities to collect and analyze disaggregated data, or support civil society participation in monitoring and evaluation processes (OHCHR, 2006, p.31). To assess human rights performance, several indicators are currently used by donors, mostly as part of a larger collection of (traditional) development indicators and human development indicators (McInerney-Lankford and Sano, 2010, p. 31). Depending on which strategy is applied to integrate human rights into development policy, donors will rely on different sets of indicators (McInerney-Lankford and Sano, 2010, p.40). Progress in reconciling human rights programmes and programming with results- based management has led to the progressive development of evaluation methods (UNDG, 2010) and results-based human rights indicators (McInerney-Lankford and Sano, 2010, p. 40). However, significant operational challenges remain, such as linking performance indicators at the micro-level to performance at the macro-level (McInerney-Lankford and Sano, 2010, p. 23). This section will give a brief overview of how human rights policies have been assessed and what challenges in evaluation have been encountered. 4.1.1. Human Rights Conditionality and Dialogue The use of human rights (or political) conditionality is highly contested, critics argue it is counterproductive in two ways. First, stopping or freezing allocation because of a particular human rights violation might lead to further violation or the deterioration of other rights, undermining the overall development effort and leading to a trade-off between different human rights (e.g. is stopping a programme on health issues warranted because of violations of the right of freedom of expression) (McInerney-Lankford and Sano, 2010, p. 10). This argument is supported by recent research indicating that in the context of fragile states, the application of human rights conditionality and democratic norms as part of a good governance agenda can generate unexpected outcomes and potentially produce more violence (Putzel and Di John, 2012). 28 The debate on whether human rights and/or democracy stimulate economic and social development is not addressed within this paper.
- 43. 43 Secondly, there is significant evidence that ‘punishing’ partner countries for bad governance is not a substantive incentive, nor is rewarding reforms with more aid a solution for sustainable changes in governance (Booth and Gritz, 2008). Some observers have thus indicated that a ‘sticks and carrots’ approach to human rights performance is unlikely to have a structural impact, as it creates accountability to the donor, but not towards citizens (Uvin, 2004). In addition to these general criticisms, the effective use of human-rights conditions is often undermined because they are often not well-defined; very different conceptions about the use of human rights in conditionality policy exist (Molenaers, 2012). While several donors indicate they make use of human rights indicators and assessments, there is little transparency on how these are applied and have influence on budget support or other modalities. As a consequence, partner governments do not have a clear idea of what the references to ‘human rights’ in cooperation agreements entail (Molenaers, 2012). Despite these criticisms and shortcomings, human rights conditionality policies continue to be an important factor in determining what modalities or aid channels donors use, as illustrated by the EU’s new budget support policy (EC, 2012). Because aid allocation remains highly political driven and sensitive to domestic public opinion, human rights conditionality is also considered a highly inconsistent strategy, depending largely on political ties between recipient and donor and whether violations are widely publicized or not (Molenaers et al., 2010, p. 21; Nielsen, 2012). The integration of human rights issues in budget support policy dialogues (both at the national level as on the programme level with ministries or sub-national authorities) has been possible in a political environment open to this. Through networking and mobilizing different stakeholders, donor agencies have been able to influence government-run programmes and ensure that certain human rights related issues are effectively adopted. In discussing human rights conditionalities and policy dialogues, like-minded donors continue to face challenges of consistency, transparency and harmonization, which are becoming pertinent with the emergence of southern donors with little to no conditionality policies (ECOSOC, 2008, p. 21). Although this dynamic has not been elaborated upon in this paper, applying governance and human rights conditions could be increasingly undermined by emerging donors (ECOSOC, 2008; ODI /ETTG, 2012, p. 5). 4.1.2. Human Rights and Democracy Programmes Human rights projects concerning capacity building or advocacy have often been criticized for not being able to deliver concrete results in terms of improving democratic governance. In some cases donors do not have a comprehensive results-based framework in place for programmes related to democracy assistance. This is well-illustrated by an evaluation of NORAD’s human rights portfolio, which found there was no uniform strategy to evaluate its programmes related to freedom of expression, but despite relatively weak monitoring mechanisms the outcomes were satisfactory in most cases (NORAD, 2011, p. 51-53). Similar monitoring and evaluation issues arise with support for civil society organizations, which often represents the largest channel of human rights/democracy funding. While success-stories such as South Africa’s Treatment Action Campaign (see supra 3.3.) exist wherein local groups used legal arguments to obtain changes in policy and legislation, efforts to building the capacity of human rights-oriented organisations seldom provide such clear-cut outcomes.
- 44. 44 This ‘measurement challenge’ in the human rights sector consists of a number of obstacles (Raine, 2006). There are issues of language and cultural barriers, but more problematic is the flexible nature of human rights work, which cannot be translated into linear planning with fixed targets. The impact of human rights projects might not be immediately visible, and even when there is no ‘breakthrough moment’ in legislation or policy, valuable processes of collaboration, social awareness and mobilization can have occurred as a ‘by-product’ (ICHRP, 2012). When such a success moment does occur, 'problems of attribution' arise: the collaborative nature of human rights work, based on partnerships and interaction between many actors, implies measuring performance of a single project or organisation is not useful (Andreassen and Sano, 2004, Raine, 2006). Moreover, impact is highly context-dependent, and simple causal links are often illusive. Quantifying institutional or organisational performance (e.g. number of workshops, trainings, meetings organized, dissemination of information material, etc.) might be a way for donors to monitor activities, but it does not necessarily offer insight into medium or long-term impact. These evaluation problems have been partially addressed by donors. A study of DFID’s human rights policy emphasized the need to adapt monitoring, evaluation, and knowledge management systems and develop adequate evaluation of human rights impacts at project, programme and strategic levels (ODI, 2008, p. 15). An extensive effort to develop an adequate evaluative framework for human rights projects has been undertaken by the Danish Institute for Human Rights, providing practical tools and instruments for using human rights indicators and guidance on how to effectively integrate them in monitoring and evaluation (Andersen and Sano, 2006). Recognising individual projects cannot always be expected to deliver final results on long term goals, the study underlines project management should assess whether a project creates the ‘conditions’ for further outcomes and impacts (Andersen and Sano, 2006, p. 47-48). SIDA addresses similar issues in a study which presents a set of 19 evaluation criteria to assess the outcomes of human rights programmes (SIDA, 2000). Reviewing projects in ‘public-awareness raising’, ‘legislative development’ and ‘institutional development’, several problems of ‘evaluability’ were identified (SIDA, 2000). The study recommends each human rights project should have a specific and measurable purpose, which cannot be the same as the final goal (SIDA, 2000, p. 80). Despite these findings, a later evaluation of SIDA’s human rights projects also indicated the lack of measurable objectives being used (SIDA, 2008, p. 31).29 While different donors have developed monitoring and evaluation frameworks for human rights programmes, efforts to streamline a set of uniform indicators across different local or national contexts have proven to be difficult (McInerney-Lankford and Sano, 2010, p. 45). Despite the continuing challenges of measuring outcomes and impacts, support for governance related human rights programmes is unlikely to be questioned as they have become an integral part of the ‘democracy’ or ‘good governance’ agenda. 29 None the less, the study underlined the high achievement rate of projects, of which many contributed to a number of outcomes in terms of ‘strengthened institutional capacity to promote and uphold the respect for human rights’, ‘ensuring improved public sector management and governance’, and ‘changed attitudes and increased awareness’ (SIDA, 2008, p. 31).
- 45. 45 4.1.3. Human Rights Mainstreaming and applying a HRBA Rights-based approaches are by now more than a decade old, but their added value is still contested (Kindornay et al., 2012, p. 497). As a HRBA aims to strengthen the relation between citizen (rights-holders) and state (duty-bearer) in all fields and thematic areas of development, the central question becomes whether adding a human rights perspective in areas such as education, health or poverty reduction delivers similar value in the short-term and sustainable, structural impacts in the long term. Gready notes the prevalent ‘evaluation culture’ obsessed with ‘technical, quantitative checklists’ is unable to capture the long term impacts of human rights-based development cooperation (Gready, 2009, p.383). Instead, he urges the use evaluation formats which take into account the strategic priorities of human rights work, based on methodologies combining quantitative and qualitative data, and covering diverse outcomes and impacts on legislation, policy and the behavior of society as a whole (Gready, 2009, p. 399). A number of studies have addressed this. Most of these are qualitative case-studies describing experiences with development projects, often with little or no methodological uniformity. Two volumes can be highlighted; ‘Reinventing Development? Translating Rights-based Approaches from Theory into Practice’ (Gready and Ensor, 2005) which brings together experiences with rights-based programming in different geographical contexts, and ‘Rights-Based Approaches to Development; Exploring the Potential and Pitfalls’ (Hickey and Mitlin, 2009) presents case-studies under thematic categories. Some studies have tried to assess impacts on the local or country level. In studying the impact of the HRBA in Malawi, Banik notes that despite the emphasis placed on human rights in the country’s PRSPs and by several donors, the great majority of the population does not have access to formal legal structures (Banik, 2010, p. 44). While considerable resources have been invested in human-rights programming, there is clearly a ‘demand failure’ at the grassroots level, where human rights awareness seems largely absent (Banik, 2010, p. 47). Other studies point towards positive changes on the micro-level. Evaluating the use of a HRBA in working with marginalised pastoral groups in Cameroon, Duni et al. found a relatively high impact on ‘citizen formation’ and empowerment (Duni et. al., 2009, p. 54-55, 63). Through legal mobilisation, marginalise groups were able to address corruption and discriminatory practices by local government officials in land- disputes or other conflicts, leading to improved governance (Duni et. al., 2009). Similarly, UNAIDS has identified a number of cases whereby organisations successfully brought cases of discrimination against HIV/AIDS patients before national courts or succeeded in challenging discriminatory policies (UNAIDS, 2005). In discussing the effectiveness of human rights versus rights-based approach (see supra, p. 18-19) research on successful cases of policy change indicates that framing demands in terms of human rights standards can lead to increased legitimacy of citizen demands, but in some cases it can also ‘backfire’ (DRCCPA, 2011, p.44). Similarly, donors see the integration of human rights issues in their policy dialogue with recipient governments as an important element of mainstreaming or applying a HRBA, but little studies or assessments are available on the effectiveness of such approach. More systematic evaluations of a HRBA in different contexts have been carried out by UN agencies and NGO’s themselves (Gready, 2009, 390-391). The ‘Impact of Rights-based Approaches to Development’ study undertaken by the UK Interagency Group on Human Rights Based Approaches, provides the most
- 46. 46 methodological and structural effort so far. It compares seven HRBA projects with seven non-HRBA projects over different non-governance sectors (e.g. education, health, water) in Malawi, Peru and Vietnam, assessing both direct tangible impacts (i.e. MDG indicators and other data) and long-term ‘sustained positive change’ (i.e. how have outcomes been institutionalized or consolidated). The study indicates the outcomes of HRBA-projects are likely to be more sustainable than those of similar non-HRBA projects. A HRBA ‘enhances the possibility of achieving improved governance which includes the voice and concerns of poor people’ leading to an increased probability that ‘investments made into technical improvements in services will be sustained, protected and used over time’ (UK Inter-Agency Group, 2008, p. 52). In line with these findings, Darrow notes that from a perspective of institutional economics, the human rights framework has the potential to play a role in resolving collective action problems which are behind failing development policies (Darrow, 2012, p. 106). The application of human rights principles throughout the process of development is one of the key characteristics of a HRBA (Darrow and Tomas, 2005, p. 489). Evaluating the proceedings of development work, rather than the direct outcomes, has often been overlooked in traditional evaluation frameworks, and brings another challenge to monitoring and evaluation. In this regard, the UNDP has developed several checklists and indicators for applying human rights principles and standards at different stages of the programming cycle (UNDP, 2006; 2012). A comprehensive UNICEF self-evaluation of HRBA programming applied a check list for each principle (non-discrimination, participation, transparency, accountability, and normativity i.e. references to the rights framework).30 The survey found normativity was best applied, while coherent implementation of participation showed mixed results. HRBA programming had been largely successful in creating greater transparency and accountability between rights-holders and duty-bearers, but UNICEF’s own accountability towards beneficiaries was found to be lacking. On the principle of non- discrimination, performance was weak as there was little use of disaggregated data to identify excluded groups. The review also highlighted tensions between HRBA-programming and results-based management (UNICEF, 2012, p. 47). Time and resource constraints prohibit the more complex and comprehensive analysis and participatory assessment which a fully rights-based programme demands (UNICEF, 2012, p. 48). Moreover, donors prioritizing aid effectiveness show less interest in how human rights standards and principles are applied in programming, going against the notion that process and outcomes are equally important. Where achieving numerical ‘targets’ for specific outcomes is prioritised, this undermines the evaluation of development processes themselves (McInerney-Lankford and Sano, 2010, p. 16). Accordingly, the application of a HRBA in programming requires additional time and resources (Uvin, 2007, p. 604) while its added-value can often not be captured by traditional results-based frameworks. Therefore, Darrow has argued that the question of added-value of a HRBA has often been wrongly framed in terms of economic efficiency, while in fact respect for human rights is justified on moral and legal grounds (Darrow, 2012, p. 97). 30 In the case of UNICEF, this implies in first instance that programming is developed around the promotion and protection of human rights as set out in the CRC and its two Optional Protocols on the involvement of children in armed conflict and on sale of children, child prostitution, and child pornography, CEDAW and other key international and regional human rights instruments (UNICEF, 2012, p. 13).
- 47. 47 4.2. Challenges of Institutionalizing Human Rights In theory, a HRBA implies a structural and organisational shift. If donors commit to human rights in their development policy, they ‘must be willing to apply the rights agenda to all of their own actions’ (Uvin, 2007, p. 604). Some organizations committed to a HRBA on paper have not invested as much in institutional transformation as others (OECD/WB, 2013, p. 24-25). Indeed, authors have argued the full integration of human rights through a HRBA has been more rhetorical than anything else (Uvin, 2007; Kindornay, et al., 2012, p. 497). To adequately analyze the strategic, organisational and operational implications, institution- wide assessment is required to identify what internal measures donors agencies take to integrate a human rights perspective through their different organizational branches. This internal capacity building has several dimensions. To date only a handful of donors have commissioned self-assessments which shed light upon this issue. Donor agencies have established new focal point positions or recruited external experts to capacitate staff and introduce the operational implication of working with human rights. However, often the internal capacity of donors remains limited, whereby limited staff, often charged with other responsibilities, and weak organizational structures are set up to mainstream human rights or a HRBA across the whole organisation (OECD/WB, 2013, p. 100-101). An extensive evaluation of the EC’s human rights mainstreaming policy found that systems to monitor and evaluate progress in relation to mainstreaming were absent, and the main unit charged with this policy faced structural limitations and a lack of high-level support (EC, 2011b, p. 19). A review of DFID’s human rights policy indicated the use of human rights principles is highly dependent on country context and country team (ODI, 2004, p. 78). A more elaborate scoping study further revealed a general trend of referring to human rights without linking it to obligations under the international human rights framework, a limited understanding of the actual content of a human right and a lack of knowledge on how human rights relate to domestic law and regulations, etc. (O’Neil, et al., 2007, p. 32-33). This indicated a general sense of confusion, resulting from a lack of guidance of what role human rights should play at the programming level (Braunholtz-Speight et. al., 2008, p. 14). A review of UNICEF’s policy noted the considerable variation in staff understanding of a HRBA (UNICEF, 2012, p.39). Even with more than 10 years of working with human rights in development, the implementation of a HRBA is still a ‘work in progress’ within UNICEF. The above evaluations indicate the institutionalization of a HRBA has been met by several challenges. Organisational change can be obstructed by political changes or mixed signals in central policy regarding human rights.31 Within certain donor agencies, greater emphasis on MDGs proved to be a disincentive to work with the human rights framework (Braunholtz-Speight et. al., 2008, p. 14). An external evaluation of the UNDP assessed that “due to political sensitivities and changing Executive Board directives, HRBA is not an explicit cross-cutting theme”, although the agency has invested considerably in providing guidance on implementing a HRBA (MOPAN, 2012, p. 78). Similarly, in the EU’s development policy, the ‘sensitive’ or ‘threatening’ nature of human rights has led to an inconsistent political support, creating confusion about 31 For example, DFID’s ‘Reaching the Very Poorest-Team’ and ‘Rights and Equity-Team’ which played a role in promoting a human rights perspective throughout the department appear to be non-operational anno 2012.
- 48. 48 their centrality in development policy (EC, 2011b, p.13). These overarching factors further determine the commitment to internal capacity building, in particular the presence of staff accountability or staff incentives for working with human rights (OECD/WB, 2013, p. 100-101). Evaluations of UNDP and UNICEF, arguably pioneers in mainstreaming human rights and developing a HRBA, pointed towards a lack of these types of internal mechanisms (UNICEF, 2012, p.39; MOPAN, 2012, p. 78). To ensure staff apply a HRBA and it is transposed into operational measures, committed agencies have developed HRBA check-lists or screening notes to be included in project/programme proposals, in some cases as a mandatory component (Dan-MF, 2013, p.2). Decentralisation presents another organisational obstacle, as considerable efforts are needed to bridge the gap between the human rights policy designed at head-quarters and its practical ramifications for operations at the country and local level. A study on the adoption of a HRBA by three large NGOs found that the planned transition to a HRBA at headquarters turned out chaotic and partially implemented at the level of country offices (Plipat, 2005, p. 295). Evaluations of donor policies identify similar issues regarding the ‘dilution’ of the human rights component at lower organizational levels (EC, 2011b, p.17; Braunholtz- Speight et. al., 2008, p. 4). For certain country/field offices, a human rights policy might be more difficult to apply due to political or cultural contexts, in this sense a flexible and adaptable understanding of a HRBA might be more efficient. This further complicates the questions on how to effectively operationalize and institutionalize a comprehensive HRBA. To date, this is an open question. To conclude, despite having outgrown the test-phase, there still appears to be a considerable gap between the rhetorical adoption of a HRBA and the operational use of a HRBA, both in UN agencies, bilateral donors and their partner organizations (Kindornay, et al., 2012, p. 497). Moreover, the necessity of institutionalising human rights is contested within the development community, as large donors such as DFID seem to have lost interest in further developing a HRBA, while others such as the UN and the EC indicate willingness to step-up efforts to integrate human rights in their policies (Kindornay, et al., 2012, p. 500; Council of the European Union, 2012b).
- 49. 49 5. CONCLUDING REMARKS This paper presented an overview of different policy approaches to integrating of human rights in development policy: (i) endorsing human rights in mission statements, (ii) applying human rights as conditions for aid allocation, (iii) supporting human rights projects and programmes related to political governance and democracy, (iv) mainstreaming human rights into different development sectors and themes, and (v) placing human rights central in both the outcomes and processes of development policy through the adoption of a HRBA. In assessing each of the human rights policies separately, this paper has sought to highlight the diverse ramifications of human rights for development policy. As a consequence, there is not one uniform model for integrating human rights in development policy. As some authors have argued, a linear evolution can be observed whereby a full commitment to the integration of human rights naturally leads to an institutional change in the form of a HRBA. This reflects the gradual broadening of the concept of human rights, which was originally understood by development actors as referring mainly to political and civil rights in the context of democratic reform. As a consequence, a number of donors have developed mainstreaming policies to inject a human rights perspective in all development areas. Building upon this, a HRBA emphasizes the need to respect human rights principles in every step of the development process. This has important implications for donors and their implementing organizations and local partners. While a number of donors have adopted mainstreaming or HRBA policies, significant challenges remain in measuring the impacts and outcomes of these approaches. Developing adequate evaluation frameworks and appropriate indicators which capture both the process and outcomes remains a challenge. Moreover, a lack of incentives and internal accountability has meant that even in donor organizations who are strongly committed to integrating human rights, internal capacity lags behind ambitious policy strategies. In this sense, it could be argued that “a full-scale integration of human rights into international development policy is an idea whose time has not yet come and is still not desired in some quarters” (Langford, 2010, p. 90). In reviewing the literature on human rights in development policy, the lack of systematic, empirical enquiry is noteworthy. Objective and independent assessments of human rights policies and their internal workings and external impacts have been rare. A range of questions remain pertinent: what is the importance of human rights in selecting recipient countries or local partners? Through what funding channels are human rights programmes going? To what extent has the mainstreaming of human rights reached programming in sectors such as agricultural development or infrastructure? Do local staff have the adequate know-how and resources to mainstream human rights or implement a programme through a HRBA? And how should the integration of human rights be put into practice in environments where these are considered culturally or politically sensitive? In light of several recent developments, the question how donors should take into account and promote human rights is becoming increasingly important. The rise of South-South cooperation might lead traditional donors to revise the role of human rights in their conditionality policies, which already is disputed by more technocratic visions on aid allocation. On the other hand, the democratic transitions in North Africa and the
- 50. 50 Middle East have placed the issue of promoting human right through development firmly on the agenda. In light of this, it is important to have a clear vision of what human rights policies are bringing to the field, and how donors subject their internal policies to human rights standards, values and principles. This area of research is still largely uncharted terrain, as the convergence between human rights and development policy is a relatively recent evolution. As Gready argues, “the encounter between human rights and development produces something new, that is neither conventional human rights nor conventional development and that suggests new theories of change” (Gready, 2011, p. 3). To what extent such theories of change are being explicitly formulated and effectively implemented within the development community is still an open question. The concept of a human rights-based approach to development is now more than a decade old. Writing in 2003 Professor Alston, then Special Adviser to the UN High Commissioner for Human Rights on the Millennium Development Goals, noted that the ‘operationalisation of such approaches has been extremely uneven’ because ‘many development practitioners remain unconvinced of their utility even when they are favorably disposed in principle’ (Alston, 2003, p. 11). This statement still seems valid, as in terms of practical implementation, the knowledge base and track-record of development agencies and their partners has remained limited. The case studies will explore more in depth some recent developments in selected development agencies.
- 51. 51 ANNEX 1. OVERVIEW OF CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL HUMAN RIGHTS Rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR): Rights guaranteed by the International Covenant on Economic, Social and Cultural Rights (ICESCR): • The right of all peoples to self-determination (Art. 1) • The right to enjoy the rights enunciated in the Covenant without discrimination and the right to effective remedy for any person whose rights or freedoms as recognized in the Covenant are violated (Art. 2) • The equal rights of men and women (Art. 3) • The right to life (Art. 4) • The prohibition of torture and of cruel, inhuman or degrading punishment (Art. 7) • Freedom from slavery and servitude; prohibition of compulsory labour (Art. 8) • The right to liberty and security of person; protection against arbitrary arrest or detention (Art. 9) • The right to liberty of movement and freedom to choose one’s residence (Art. 12) • The right to equality before courts and tribunals; the right to be presumed innocent until proven guilty and the right to a fair hearing before an independent tribunal (Art. 14) • The right to privacy and to protection from arbitrary or unlawful interference in one’s privacy (Art. 17) • The right to freedom of thought, conscience and religion (Art. 18) • The right to hold opinions without interference, and the right to freedom of expression (Art. 19) • The prohibition of any propaganda for war and of advocacy of national, racial or religious hatred (Art. 20) • The right of peaceful assembly (Art. 21) • The right to freedom of association with others (Art. 22) • The right to marry and found a family (Art. 23) • The right of children to receive protection by the State without discrimination (Art. 24) • The right to take part in the conduct of public affairs; the right to vote and to be elected (Art. 25) • The right to equality before the law and to equal protection of the law (Art. 26) • The rights of ethnic, religious or linguistic minorities (Art. 27) • The right of all peoples to self-determination (Art. 1) • The right to enjoy the rights enunciated in the Covenant without discrimination (Art. 2) • The equal rights of men and women (Art. 3) • Rights to and at work: the right to freely choose and accept work (Art. 6), • The right to just and favourable work conditions, including fair wages and safe and healthy work conditions (Art. 7) • The right to form trade unions, to join a trade union and to go on strike (Art. 8) • The right to social security, including social insurance (Art. 9) • The right to family and married life and the protection of children and young people (Art. 10) • The right to an adequate standard of living (Art. 11), including: • The right to food • The right to adequate housing, including the prohibition of ‘forced eviction’ • The right to water and sanitation • The right to the highest attainable standard of physical and mental health (Art. 12) • The right to education, including free and compulsory primary education (Art. 13 and 14) • The right to take part in cultural life and to enjoy the benefits of scientific progress (Art. 15) Source; UNDP (2012)
- 52. 52 ANNEX 2. INFOSHEET LINKING DEVELOPMENT THEMES AND MDGS TO HR MECHANISMS AND INSTRUMENTS Development Aspect MDG Human Rights Mechanisms (with examples of their reports) Human Rights Instruments Poverty Goal 1: Eradicate extreme poverty • Special Rapporteur on human rights and extreme poverty (e.g., CCTs, old age, financial crisis, country reports) • The draft guiding principles on extreme poverty and human rights: the rights of the poor UDHR article 25(1); ICESCR article 11 Hunger Goal 1: Eradicate hunger • Special Rapporteur on the right to food (e.g., biofuels, food crisis, seed policies, land acquisitions, country reports) • CESCR General Comment No. 12 on the right to food UDHR article 25(1); ICESCR article 11 Work Goal 1: Achieve full and productive employment and decent work for all • CESCR General Comment No. 18 (the right to work) and 19 (the right to social security) • CEDAW Recommendations No. 13 (equal remuneration for work of equal value) and No. 16 (unpaid women workers in rural and urban family enterprises) UDHR, articles 23, 24; ICESCR, articles 6, 7, 10, 14; CERD, article 5; CMW; CEDAW, article 11; ILO standards Education Goal 2: Achieve universal primary education • Special Rapporteur on the right to education (e.g., financing education, education in emergencies, country reports) • CESCR General Comments No. 11 (plans of action for primary education) and 13 (right to education) • CRC General Comment No. 1 on the aim of education • CEDAW Recommendation No. 3 on education and public information programmes UDHR article 25(1); ICESCR articles 13, 14; CRC article 28(1) (a); CEDAW article 10; CERD article 5(e)(v) Gender Equality Goal 3: Promote gender equality • Special Rapporteur on violence against women • CEDAW Recommendations 1-28 (e.g., temporary special measures, older women, migrant workers) • CESCR General Comment No. 16 on the equal right of men and women to the enjoyment of all economic, social and cultural rights UDHR article 2; CEDAW; ICESCR article 3; CRC article 2 Health Goal 4: Reduce child mortality Goal 5: Improve maternal health Goal 6: Combat HIV/AIDS, malaria and other diseases • Special Rapporteur on the highest attainable standard of health (e.g., access to medicines and intellectual property rights, country reports) • CESCR General Comment No. 14 on health • CEDAW Recommendations No. 14 (female circumcision), 15 (women and AIDS), and 24 (women & health) • CRC General Comments No. 3 (HIV/AIDS and the right of the child) and 4 (adolescent health) UDHR article 25; ICESCR article 12; CRC article 24; CEDAW article 12; CERD article 5(e)(iv) Environment Goal 7: Ensure environmental sustainability • Special Rapporteur on the human rights implications of environmentally sound management and disposal of hazardous substances and wastes (e.g., country reports) ICESCR articles 11(2a), 12; CRC article 24 Water Goal 7: Access to safe drinking water and sanitation • Independent Expert on the right to safe drinking water and sanitation (e.g., private sector participation, MDGs, best practices, climate change, country reports) • CESCR General Comment No. 15 on the right to water UDHR article 25(1); ICESCR article 11(1); UN GA Resolution on the right to water Housing Goal 7: Improve the situation of slum dwellers • Special Rapporteur on adequate housing (e.g., women, forced evictions, country reports) • CESCR General Comment No. 7 on housing and forced eviction UDHR article 25(1); ICESCR article 11(1); CEDAW article 14(2) (h); CRC article 24; CERD article 5(e)(iii)
- 53. 53 Globalization Goal 8: A global partnership for development • Working Group on the right to development (e.g., consultation on criteria for the RtD) • Independent Expert on the effects of foreign debt and HR rights (e.g., international trade, vulture funds, draft guidelines) • Working Group on the issue of human rights and transnational corporations and other business enterprises (replaced Special Representative of the SG on business and human rights) • CESCR General Comment No. 8 on economic sanctions • CESCR General Comment No. 3 on the nature of States parties’ obligations UDHR articles 22, 28; ICESCR articles 2(1), 1(1), 15(4), 22, 23; CRC articles 4, 24(4), 28(3); CRPD, articles 4 (II), 32; GA Resolution on the right to development Inclusion Cutting across all MDGs • Special Rapporteur on the rights of indigenous peoples (e.g., impacts of development projects, education systems, country reports) • CERD General Comment No. 23 on indigenous peoples • CRC General Comment No. 11 on indigenous children • Special Rapporteur on the human rights of migrants (e.g., criminalization, children, country reports) • Independent Expert on minority issues (e.g., conflict prevention, citizenship, country reports) • Special Rapporteur on the human rights of internally displaced persons (e.g., peace processes, climate change, country reports) • Guiding Principles on Internal Displacement • CESCR General Comment No. 5 on persons with disabilities • CESCR General Comment No. 6 on the economic, social and cultural rights of older persons • Special Rapporteur on trafficking in persons (e.g., prevention, regional cooperation, country reports) CRPD; ICRMW; CESCR; GA Declaration on the rights of indigenous peoples Source; UNDP (2012)
- 54. 54 ANNEX 3. OHCHR INDICATORS FOR THE RIGHT TO HEALTH
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- 65. 65 PARTNERS NEDERLANDS Het Leuven Centre for Global Governance Studies (www.globalgovernancestudies.eu) coördineert de derde generatie van het Steunpunt “Buitenlands beleid, internationaal ondernemen en ontwikkelingssamenwerking” voor de Vlaamse Regering. Een Steunpunt heeft als doel de wetenschappelijke ondersteuning van Vlaams beleid. Het project brengt 17 promotoren en 10 junior onderzoekers (waarvan acht doctoraatsstudenten) samen. Het Steunpunt doet aan (a) dataverzameling en - analyse, (b) korte termijn beleidsondersteunend wetenschappelijk onderzoek, (c) fundamenteel wetenschappelijk onderzoek en (d) wetenschappelijke dienstverlening. We werken samen met een aantal partners: het Antwerp Centre for Institutions and Multilevel Politics, de Vlerick Leuven Gent Management School en H.U.Brussel. Binnen de KU Leuven maken ook collega’s verbonden aan de Faculteit Economie, het Instituut voor Internationaal en Europees Beleid, de Onderzoekseenheid Internationaal en Buitenlands Recht, het Instituut voor Internationaal Recht, het Instituut voor Europees Recht en HIVA - Onderzoeksinstituut voor Arbeid en Samenleving deel uit van het project. Het onderzoek is verdeeld over vier thematische pijlers: (i) Internationaal en Europees Recht; (ii) Internationaal en Europees Beleid; (iii) Internationaal Ondernemen; en (iv) Ontwikkelingssamenwerking. Bezoek onze website voor meer informatie: www.steunpuntiv.eu ENGLISH The Leuven Centre for Global Governance Studies coordinates a Policy Research Centre on "Foreign Affairs, International Entrepreneurship and Development Cooperation" for the Flemish Government. A Policy Support Centre aims to scientifically support Flemish regional policies. The project brings together 17 senior and 10 junior researchers (including eight PhD students). The Centre conducts (a) data collection and analysis, and provides (b) short-term policy supporting research, (c) fundamental scientific research and (d) scientific services. The Policy Research Centre is based on an inter-university consortium led by the Leuven Centre for Global Governance Studies (www.globalgovernancestudies.eu) in cooperation with the Antwerp Centre for Institutions and Multilevel Politics, the Vlerick Leuven Gent Management School and the H.U.Brussel. Within the KU Leuven, colleagues from the Faculty of Business and Economics, the HIVA - Research Institute for Work and Society, the Institute for International and European Policy, the Research Unit International and Foreign Law, the Institute for International Law, and the Institute for European Law are also involved in the project. Research is structured in four thematic pillars: (i) International and European Law; (ii) International and European Policy; (iii) International Entrepreneurship; and (iv) Development Cooperation. For more information, see our website: www.steunpuntiv.eu