integrating human rights in development policy: mapping donor strategies and practices
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Working Paper No. 108 – June 2013
INTEGRATING HUMAN RIGHTS IN DEVELOPMENT
POLICY: MAPPING DONOR STRATEGIES AND
PRACTICES
David D’Hollander, Axel Marx and Jan Wouters
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 junior 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 [email protected] [email protected] [email protected] © 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.
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Table of Contents
LIST OF ABBREVIATIONS ................................................................................................ .............. 5
INTRODUCTION ............................................................................................................. .............. 6
1. HUMAN RIGHTS AND DEVELOPMENT POLICY: DISPARITIES AND CONVERGENCES .......... .............. 7
2. INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: EVOLVING PRACTICES ........... .............. 9
2.1. Rhetorical Endorsement .................................................................................................14
2.1.1. Human Rights, MDGs and the Aid Effectiveness Agenda 15
2.2. Human Rights Dialogue and Conditionality ....................................................................17
2.2.1. Human Rights as a Prerequisite 18
2.2.2. Human Rights in Performance Assessment 20
2.2.3. Human Rights in Policy Dialogues 23
2.3. Human Rights and Democracy Programmes ..................................................................24
2.4. Human Rights Mainstreaming ........................................................................................26
3. HUMAN RIGHTS-BASED APPROACH TO DEVELOPMENT ................................................ .............27
3.1. HRBA as a Concept .......................................................................................................27
3.2. Motives and Drivers for Adopting a HRBA ......................................................................30
3.3. Components of the HRBA: Outcomes and Processes ....................................................31
3.4. From Service Delivery to Building Capacity for Rights-holders and Duty-bearers ...........33
3.5. Implementing a HRBA in Development Programming ....................................................35
3.5.1. Universality and Inalienability, Indivisibility, Interdependence and Interrelatedness
37
3.5.2. Non-discrimination and Equality 38
3.5.3. Participation and Empowerment 39
3.5.4. Accountability, Transparency and Rule of Law 41
4. EVALUATING HUMAN RIGHTS POLICIES IN THE DEVELOPMENT ARENA .......................... ............43
4.1. Measuring Outcomes and Impacts .................................................................................43
4.1.1. Human Rights Conditionality and Dialogue 44
4.1.2. Human Rights and Democracy Programmes 45
4.1.3. Human Rights Mainstreaming and applying a HRBA 46
4.2. Challenges of Institutionalizing Human Rights ................................................................48
5. CONCLUDING REMARKS ............................................................................................ .............51
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ANNEX 1. OVERVIEW OF CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL HUMAN RIGHTS ......53
ANNEX 2. INFOSHEET LINKING DEVELOPMENT THEMES AND MDGS TO HR MECHANISMS AND
INSTRUMENTS .............................................................................................................. .............55
ANNEX 3. OHCHR INDICATORS FOR THE RIGHT TO HEALTH ............................................ .............58
BIBLIOGRAPHY.............................................................................................................. .............59
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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
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INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES1
David D’Hollander, Axel Marx and Jan Wouters
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
1 This paper is also published in the working paper series of the Policy Research Centre on "Foreign Affairs,
International Entrepreneurship and Development Cooperation" of the Flemish Government. We thank the Flemish Government for their interest and support.
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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.
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
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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 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’.2
2 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).
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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).3 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).
Today, an increasing overlap between development and human rights can be observed on
several levels (McInerney-Lankford, 2009, p.52-53).4 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.5
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.
3 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. 4 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. 5 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.
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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/)
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
Measures to prevent
non-state actors from
engaging in
discriminatory behaviour
that limits access to
Progressive realization
Investment in health,
education, and welfare,
and resource allocations
to ability.
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below ability.
health, education, and
other welfare.
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 democracy; and integration of human
rights and democracy into development cooperation as a whole.” (SMFA, 2003, p. 17).
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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
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)
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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 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 USAID6, CIDA7 and AUSAID8 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.
6 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. 7 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). 8 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).
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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, 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)
15
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.
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).9 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
9 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).
16
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 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
17
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
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
18
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).
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
19
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).10 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.11
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 ‘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
10
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. 11
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
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.12 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 government has taken measures to ensure the realization of
12
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
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)
22
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.
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).
23
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).
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)).
24
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).13 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 ‘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).
13
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.
25
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).14 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, 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).15 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
14
Until 2006 named the European Initiative for Democracy and Human Rights. 15
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
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.
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’.
27
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.
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
28
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.16
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 principles17 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-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).
16
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. 17
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.
29
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 rights treaty bodies, Special Rapporteurs, the
Universal Periodic Review, etc.).18 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.
18
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
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).
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).
31
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 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).19
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
19
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
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 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).
33
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.20 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 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
20
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).
Box 9: Rights-holders and duty-bearers
Source: Theis (2003)
34
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 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
35
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.21
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.22 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 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
21
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’. 22
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
36
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.23 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 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).24 Most development agencies who have adopted a HRBA
identify principles similar to these included in the UNCU, sometimes with slightly different
23
These are sometimes summarized in the acronym PANEL (Participation, Accountability, Non-discrimination, Empowerment and Linkages to human rights standards). 24
For an elaborate discussion of how these principles are derived from the human rights framework, see Darrow and Tomas, 2005, p.501-516.
37
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 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
38
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.25 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 HRBA has been considered successful in
working with indigenous communities – in the framework of the ILO Convention on Indigenous
25
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
39
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
40
(Darrow and Tomas, 2005; p. 506). Participation in this sense implies ‘empowerment’.26
Moreover, a HRBA emphasizes the 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).
26
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).
41
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
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).27 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
27
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).
42
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’28 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 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).
28
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).
43
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 impact
social and economic development (OECD-DAC, 2007).29 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-
29
The debate on whether human rights and/or democracy stimulate economic and social development is not addressed within this paper.
44
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). 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
45
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.
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
46
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).30
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.
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).
30
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).
47
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 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.
48
references to the rights framework).31 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).
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).
31
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).
49
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.32 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 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
32
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.
50
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).
51
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,
52
which already is disputed by more technocratic visions on aid allocation. On the other hand, the
democratic transitions in North Africa and the 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.
53
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
• 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
54
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)
benefits of scientific progress (Art. 15)
Source; UNDP (2012)
55
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
• 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)
UDHR article 25; ICESCR article 12; CRC article 24; CEDAW article 12; CERD
56
HIV/AIDS, malaria and other diseases
• CRC General Comments No. 3 (HIV/AIDS and the right of the child) and 4 (adolescent health)
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)
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
CRPD; ICRMW; CESCR; GA Declaration on the rights of indigenous peoples
57
• 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)
Source; UNDP (2012)
58
Annex 3. OHCHR Indicators for the Right to Health
59
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