hrba and human rights principles applied to local legislation

8/14/2019 HRBA and Human Rights Principles Applied to Local Legislation

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HRBA and HUMAN RIGHTS

PRINCIPLES APPLIED TOLOCAL LEGISLATION

Atty. Anita M. Chauhan

HRBA in Local LegislationMarch 4-5,2009

ORT, San Fernando City


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The Role of Legislation in Human Rights Promotion and Protection


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Role of Legislators a fundamental role in establishing the rule of

law, overseeing transparent governmentprocesses, and representing peoples views inthe policy making process. Parliaments arealso crucial to effecting a separation ofpowers and institutionalizing a system of

checks and balances essential to democraticgovernance. This includes the promotion andprotection of human rights.


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Why a rights based approach to

legislation? The rationale for adopting a human rights-based approach to

parliamentary development programming is that doing so willenhance the contribution of parliament, its bodies and itsmembers to human rights through parliamentary processes.Parliaments have significant responsibility for promoting,

protecting and realizing human rights through their functions oflaw-making, oversight, and representation. Parliaments candemonstrate the key tenets of democratic governance and the

universal principles that underpin human rights through theirexercise of inclusive participation, their accountability to citizens,and their influence over the equitable allocation of resources.Strong parliamentary institutions help to ensure democracy, therule of law, and human rights.


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Dimensions of a human rights-based approach to

parliamentary development:

HUMAN RIGHTS

REMEDIES

HUMAN RIGHTS

DUTY BEARERSHUMAN RIGHTS

CLAIMHOLDERS

HUMAN RIGHTS

STANDARDS

HUMAN RIGHTS

VALUES

AND

PRINCIPLES

HRBA TO

PARLIAMENTARY

DEVELOPMENT


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Human Rights Values and Principles that bothdemonstrate and activate human rights includeuniversality and indivisibility, equality and non-

discrimination, participation and the inclusion ofvulnerable groups, accountability and the rule of law.Most of these principles form part of the constitutionsof most states and should guide and direct the work of

parliaments and legislators in their law-making,oversight and representation responsibilities.


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Human Rights Standards of human rights contained ininternational human rights instruments guide national

development and should be adhered to and utilized byparliaments and legislators in their day-to-day work.This can take the form of ensuring that human rightsstandards are applied to national issues such as gender

equality, the rights of internally displaced persons,minorities, indigenous peoples, the disabled, the aged,or those suffering from HIV/AIDS.

Dimensions of a human rights-based approach

to parliamentary development:


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Human Rights Claim Holders refers to people asholders of rights that can be claimed through

participation in parliamentary processes. The right tovote, the holding of public hearings, the ability forcitizens and organizations to participate in thedevelopment of legislation and the role for publicinputs to the national budget process all demonstrate

how claim holders can participate in parliamentaryprocesses and thus actively assert their rights.




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Duty-bearers refers to legislators as individuals and parliaments asgovernance institutions with responsibilities and obligations torespect protect, promote and realize human rights principles andstandards through the legislative, oversight and representational

functions and through the execution of parliamentary proceduresand practices. HOW?

raising public awareness about human rights laws, procedures, andremedies

empowering public scrutiny of parliamentary processes andperformance.

monitoring of adherence to human rights laws and of the progressiverealization of human rights in the implementation of national laws.

Investigating and monitoring allegations of human rights violations Conducting parliamentary hearings

issuing parliamentary White Papers on human rights issues




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The Human Rights Based Approach to Local Legislation


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A human rights approach adds valuebecause it provides a normative framework

of obligations that has legal power to render

governments accountable. Mary Robinson

World Summit on Sustainable

Development, 2002


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Human development

is the process of enhancing

peoples capabilities to

expand choices andopportunities so that each

person can lead a life of

respect and value

freedom and dignity need the

legal guarantees of human

rights to avoid being

threatened

The linkages between

and Human rights

All people have claims to social

arrangements that protect them

from the worst abuses anddeprivations-and that secure the

freedom for a life of dignity

The realization of human rights

requires capacities that

development can make possible


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Development is an inalienable Human

Right.

DEVELOPMENT

HUMAN

RIGHTS

The Vienna Declaration

situates development

within the human rights

framework. The WorldConference on Human

Rights reaffirms the right

to development as

established in the UNDeclaration on the Right to

Development, as a

universal and inalienable

right and an integral part of

fundamental human rights.


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It is a mainstreaming process to link human rights to

development.

It is a conceptual framework for the process of human

development that is normatively based on internationalhuman rights standards and operationally directed to

promoting and protecting human rights

As an approach to development, it essentially integrates

the norms ,standards and principles of the internationalhuman rights system into plans,policies and processes of

development.


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Features of RBA to DevelopmentFirst, a rights-based approach to development is based on aframework of rights and obligations.

The U.N. Development Program issued a Statement of

Common Understanding in May 2003, explainingthat in a human rights-based approach, human rights

determine the relationship between individuals and

groups with valid claims (rights-holders) and State and

non-state actors with correlative obligations (dutybearers).It works towards strengthening the capacities of rights-holders to make their claims, and of dutybearers to meet theirobligations.


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Second, a rights-based approach should encompass thefull range of indivisible, interdependent andinterrelated rights (i.e., civil, cultural, economic,

political and social rights). This in turn requires aframework that reflects internationally guaranteedrights, such as those related to health,education,housing, justice, personal security and

political participation. By definition, such an

approach would be incompatible with developmentpolicies, projects or activities that have the effect ofviolating rights. In other words, trade-offs betweendevelopment and rights should never be made.

ENCOMPASSES FULL RANGE OF INDIVISIBLE,

INTERDEPENDENT AND INTERRELATED

RIGHTS


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Third, a rights-based approach focuses on raising levels ofaccountability and transparency in the development process byidentifying rights-holders (and their claims) and corresponding duty-

bearers (and their obligations). The approach thereby addresses boththe positive obligations of duty-bearers (to recognize, respect,

protect, promote and provide rights) and their negative obligations(to abstain from rights violations). A rights-based approach also

provides for the development of adequate laws, policies, institutions,administrative procedures, practices and mechanisms for redress andaccountability that can ensure the realization of entitlements andrespond to the violation of rights. It calls for the translation ofuniversal standards into locally determined benchmarks formeasuring progress and enhancing accountability.

RAISING LEVELS OF ACCOUNTABILITY

AND TRANSPARENCY


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A fourth critical feature of a rights-based approach is that itrequires a high degree of participation. According to the U.N.Declaration on the Right to Development, such participationmust be active,free and meaningful. In other words, mere

formal or ceremonial contacts with beneficiaries is notsufficient. A rights-based approach emphasizes access forrights-holders to development processes, institutions,information and mechanisms for redress and complaints. Inthe context of development work, this means that the partners

in and beneficiaries of development have access to adevelopment projects mechanisms. Rather than developmentagendas that pursue externally conceived quick fixes andimported technical models, the norm would be to adopt

process-based development methodologies and techniques

HIGH DEGREE OF

PARTICIPATION


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Finally, a rights-based approach must give particular attentionto issues of discrimination, equality, equity andvulnerability. This means that development efforts must

engage vulnerable groups, such as women, minorities,indigenous peoples and prisoners. Because vulnerablepopulations vary by context, a rights-based approachrequires program designers and other staff to consider localcircumstances when identifying vulnerable populations. Todo this, the development community needs data that isdisaggregated (to the greatest degree possible) by race,religion, ethnicity,language, sex and other categoriesrelated to humanrights.

ATTENTION TO ISSUES OF DISCRIMINATION,

EQUALITY, EQUITY AND VULNERABILITY


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HRBA to development and governance is:

A vision

A set of tools

In which HR can be the means, the end the mechanism of evaluation

central focus of sustainable human

development


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The development process is normatively based on

international HR standards and principles

It recognizes human beings as rights-holders and

establishes obligations for duty-bearers.

It focuses on discriminated and marginalized groups

It aims for the progressive achievement of all human

rightsIt gives equal importance to the outcome and

process of development


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As development policies and programmes are

formulated, the main objective should be to

fulfil human rights.

A human rights-based approach identifies

rightsholders and their entitlements and

corresponding duty-bearers and their

obligations, and works towards strengthening

the capacities of rights-holders to make theirclaims and of duty-bearers to meet their

obligations.


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RIGHTS BASED APPROACH


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RIGHTS-BASED APPROACH

(RBA)

The RBA is founded on the Declaration on the Right toThe RBA is founded on the Declaration on the Right to

Development & on the various International Human RightsDevelopment & on the various International Human Rights

Instruments to which the Philippines is a state partyInstruments to which the Philippines is a state party

Development should provide the processes And

enabling environment for Realization Of Human Rights

And Fundamental Freedoms;

The Economic, Social, Cultural And Political

Development Processes Should Enable The Full

Realization Of Human Rights And Freedoms.


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Legal Framework of HRBA in

Philippine Setting

International

-Philippines as founding member of United

Nations- Philippines as State Party to no less than 24

international human rights treaties including

the eight (8) core human rights internationaltreaties


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National

-Philippine Constitution-Creation of CHRP

-Creation of PHRC

-Human rights related structures created bylaws promulgated by Congress

-Human rights laws and related laws

promulgated by Congress

e pp ne


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e pp eFramework in

Development

and Governance

* Economic

* Social

* Cultural

* Political

* Environmental

National/International Human RightsFramework

--Human Rights Principles

-State Obligations

-Individual Duties

-Normative Content of HR

Governance

Economic

Governance

Political

Governance

Administrative

Governance

HUMAN

RIGHTS

KEY GOVERNANCE

STAKEHOLDERS

Government,Civil Society

And Private Sector

DEVELOPMENT


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The Human Rights Principles Applied to Local Legislation


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Human Rights Standard

The minimum normative content of the right: the type of

claims and obligations that the right implies at the minimum in

practice

Human Rights standardsHuman Rights standards and principles improve the quality ofand principles improve the quality of

outcomes and processesoutcomes and processes

Human rights standardsHuman rights standards delineate the playing field in whichdelineate the playing field in which

development takes placedevelopment takes place

Human rights standardsHuman rights standards

define the content of thedefine the content of the

development objectives.development objectives.

National legislation (national constitution, laws and

regulations, jurisprudence) can establish higher standards

than international law


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2) Human rights principles should

guide all parliamentaryprocesses.

HR PrinciplesHR Principles guide the development process.guide the development process.

HR principlesHR principles provide the playing rules for theprovide the playing rules for the

development process.development process.

Human Rights Principles ensure that thedevelopment process creates a favourable

environment and does not harm the

realization of human rights


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Human Rights Principles

Universality and inalienability

Indivisibility

Interdependence and Inter-

relatedness

Equality and non-

discrimination

Participation and inclusion

Accountability and rule of law

Content

oriented

Process

oriented



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Universality

Indivisibility

Interrrelatednessand

interdependenceNon-discrimination

Equality

Accountability

Attention to

vulnerable groupsEquity

Peoplesparticipation

Independence ofthe judiciary

Legislative

capacity and ruleof law

Transparency


That Guide Development

Rights

related Governancerelated

PROGRESSIVE

REALIZATION


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Principles of Universality &Principles of Universality &

InalienabilityInalienability

HR principle of Universality requires:That no one is left out or excluded from human rights

Human rights belong to everyone, everywhere and

are based on the inherent dignity of every person.

Principles of Equality &Principles of Equality &

Non-DiscriminationNon-Discrimination

Equality and Non-discrimination obliges

states to:

Eradicate Legal, institutional, interpersonal

and structural discrimination


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Indivisibility and Interdependence:

All rights are equally important. One right cannot beaddressed in isolation from the context of relatedrights, or to the detriment of another. Furthermore,different rights supplement one another (for example,rights to political participation help to safeguardeconomic rights and the right to adequate food and

shelter).Our enjoyment and exercise of a particular humanright are dependent on our enjoyment-or nonenjoyment- of other human rights

HR principles of inter-relatedness and indivisibility

and interdependence requires:

Equal recognition and protection of rights


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Accountability: Human rights recognize people as activesubjects and claim-holders, establishing duties andobligations on others to ensure that needs are met. Duty-holders are held accountable for their actions, or lack ofactions

Principle of Accountability requires:

States and other duty bearers to be answerable for

the observance of human rights

Accessible, effective and independent mechanisms

and procedures of redress

Free and independent media, and groups of humanrights defenders representative of men, women andmarginalized or excluded groups

Eq alit


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Equality

All persons should enjoy human rights on an equalbasis, and in their totality.

Equality demands women and men equally enjoyand exercise all fundamental rights and freedoms.

Equality does not mean identical treatment in everyinstance.

Equity

In the guarantee of fundamental rights andfreedoms, equity is FAIRNESS,JUSTICE ANDIMPARTIALITY


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Participation:Participation is an essential

principle of the international human rights

framework; every person and all Peoples areentitled to participate in, contribute to, and

enjoy development in which all human rights

can be recognized. Participation is notjust

desirable for local ownership and

sustainability, but rather a right in and of

itself.

HR principles of Participation require:

FREE, ACTIVE, MEANINGFUL and INCLUSIVE

PARTICIPATION


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Rule of Law:

Rights are protected by national and/or international law.

Any disputes about rights are to be resolved not through

an arbitrary process but through adjudication bycompetent, impartial and independent processes that will

ensure full equality and fairness to all parties, and

determine questions in accordance with clear principles.

The rule of law ensures that no one is above the law andthat there is no impunity for human rights violations.


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Progressive Realization:

Within the human rights framework, states musttake steps, individually and throughinternational co-operation, to progressivelyachieve the full realization of recognized rights.A lack of economic development cannot beinvoked as a justification for violations of

human rights. Human rights requirecommitments and continual progress onenlarging freedoms and the enjoyment of rightsby governments.


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Attention to Vulnerable Groups

Great importance must be given to the

promotion and protection of the human rightsof persons belonging to groups that have been

rendered most vulnerable.

Empowerment

Power to act for and on their own behalf to

claim their rights.Emphasis on efforts of the people themselves

to bring about the necessary changes towards

the full realization of all human rights.


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Allows all persons to see openly into all activities of government.

Involves full, free and public disclosure of decisions, policies,rules,etc,.

Decisions taken by government-and their enforcement- must bedone in a manner that follows rules and regulations.

Information must be freely available and directly accessible tothose who will be affected by public decisions andenforcement.

Enough information in easily understandable forms and on atimely basis must be provided.

Transparency

hrba and human rights principles applied to local legislation

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