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

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Page 1: INTEGRATING HUMAN RIGHTS IN DEVELOPMENT POLICY: MAPPING DONOR STRATEGIES AND PRACTICES

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

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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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7

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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14

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)

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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).

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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

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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

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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

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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).

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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).

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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)

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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).

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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)).

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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.

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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).

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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’.

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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

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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.

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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).

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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).

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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).

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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).

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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)

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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

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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

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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.

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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

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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

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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

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(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).

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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).

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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).

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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.

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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

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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

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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).

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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.

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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).

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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.

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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).

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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,

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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.

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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

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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)

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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

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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

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• 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)

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Annex 3. OHCHR Indicators for the Right to Health

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The Leuven Centre for Global Governance Studies is an interdisciplinary research centre of the Humanities and Social Sciences recognized as a Centre of Excellence at the KU Leuven. It hosts researchers from law, economics, political science, history, philosophy and area studies. The Centre carries out and supports interdisciplinary research on globalization, governance processes and multilateralism, with a particular focus on the following areas: (i) the European Union and global governance; (ii) trade and sustainable development; (iii) peace and security; (iv) human rights, democracy and rule of law; (v) non-state actors and global governance; (vi) space governance; and (vii) comparative federalism. It hosts the InBev Baillet-Latour Chair EU-China and the Leuven India Focus.

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