Human Rights and Development

The World Bank, in its 2004 World Development Report, Making Services Work for Poor People, recognized that accountability among citizens, service providers, and policy makers was key to understanding the failure or success in the delivery of basic services to poor people. Since then, the concepts of social contract, voice, and accountability have gained prominence in development policy and discourse. These concepts are closely connected with a number of human rights principles that have become embedded in the policies of development actors and consolidated into more explicit policy frameworks known as “human rights–based approaches” (HRBAs) to development.1 These human rights principles constitute a set of policy principles that imply neither a clear legal foundation nor legal obligations. As such, they remain loosely defi ned and conceptualized.

Human Rights and Development

Human Rights and Service Delivery

A Review of Current Policies, Practices,

and Challenges

AXEL MARX, SIOBHÁN MCINERNEY-LANKFORD, JAN WOUTERS,

AND DAVID D’HOLLANDER

The World Bank, in its 2004 World Development Report, Making Services Work

for Poor People, recognized that accountability among citizens, service

provid-ers, and policy makers was key to understanding the failure or success in the delivery of basic services to poor people Since then, the concepts of social

contract, voice, and accountability have gained prominence in development

policy and discourse These concepts are closely connected with a number of human rights principles that have become embedded in the policies of devel-opment actors and consolidated into more explicit policy frameworks known

rights principles constitute a set of policy principles that imply neither a clear legal foundation nor legal obligations As such, they remain loosely defi ned and conceptualized

This chapter analyzes these principles and off ers a critical analysis of HRBAs by situating them in the context of broader donor eff orts to integrate human rights considerations into development It assesses the strengths and weaknesses of a HRBA as a policy concept in light of the human rights prin-ciples on which it is founded, and considers whether and how these principles are in fact realized to secure more eff ective service delivery processes (and outcomes) Implicit in the adoption of HRBAs is an emphasis on the “how” (processes to deliver services) of development rather than exclusively on the

“what” (service being delivered) The chapter fi rst charts the emergence of HRBAs Next, it off ers conceptual clarifi cation around the common charac-teristics of a HRBA In a third section, two contentious issues are identifi ed: the diffi culty of measuring the impact of a HRBA, and the organizational and institutional challenges linked to adopting a HRBA The chapter concludes

The views expressed in this chapter are those of the authors and do not necessarily refl ect the views of the Board of Executive Directors of the World Bank or the governments they represent Responsibility for errors or omissions remains with the authors Axel Marx, Jan Wouters, and David D’Hollander acknowledge support by the Flemish government (Policy Research Centre) and the European Commission–FRAME project (grant agreement no 320,000) for research on human rights and development cooperation.

1 It should be noted that, in principle, a HRBA can apply to any development service, ing a service initiated by a government for its own citizens However, this chapter discusses the notion of HRBA in the context of bilateral or multilateral development cooperation.

includ-39

with a discussion of how the underlying principles of a HRBA have been grated into other development policies and processes that are not explicitly based on human rights

inte-The Emergence of Human Rights–Based Approaches

Human rights and development work have long been viewed as operating in

“parallel streams,” addressing similar problems and sharing compatible goals but existing relatively independent of one another.2 Both the human rights and development communities avail themselves of progressive and trans-formative self-understandings, and share the aim to “bring into being new worlds that are more prosperous, more humanly fulfi lling, and more just.”3

More often than not, the operational focus of development and human rights activities is focused on the same target groups and subject areas.4 Despite this convergence, more explicit synergies between human rights and develop-ment policy began to take root only in the early 1990s Since then, the more deliberate integration of human rights in development policy has been pur-sued by donors in various ways.5 Although there is an increasing awareness

of development challenges in the human rights community, perhaps more fundamental is the shift in perceptions about the role of human rights within the international development community Beyond being “moral consider-ations,” human rights are recognized as having a potential instrumental role

in making development interventions more effi cient through improving the governance processes that underpin service delivery.6 As a result, a growing convergence is evident between development and human rights on a num-ber of levels,7 and several strategies have been developed to integrate human rights in development cooperation policies Human rights, democracy, and good governance have traditionally been the subjects of various forms of

2 M Darrow & A Tomas, Power, Capture, and Confl ict: A Call for Human Rights Accountability

in Development Cooperation, 27(2) Human Rights Q 471–538 (2005); S McInerney-Lankford, Human Rights and Development: A Comment on Challenges and Opportunities from a Legal Per- spective, 1(1) J Human Rights Practice 51–82 (2009)

3 R Archer, Linking Rights and Development: Some Critical Challenges in Rights-Based Approaches

to Development: Exploring the Potential and Pitfalls 26 (S Hickey & D Mitlin eds., Kumarian

2009)

4 H.-O Sano, Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development, 22(3) Human Rights Q 734, 735 (2000).

5 Org Econ Co-Operation & Dev & World Bank, Integrating Human Rights into Development:

Donor Approaches, Experiences, and Challenges, 2nd ed (Org Econ Co-Operation & Dev.;

World Bank 2013).

6 Id., at 74.

7 McInerney-Lankford, supra note 2, identifi es (a) an overlap in obligations, as the right to

de-velopment is increasingly, but not unanimously, recognized as a human right; (b) a factual

or substantive overlap, as human rights organizations and development agencies address similar problems regarding poverty, inequality, and exclusion; and (c) an overlap or conver- gence of principles, such as participation, transparency, and equality, which are currently shared by both the development and the human rights communities.

“targeted support,” separate from “traditional” development sectors such as agricultural development, infrastructure, or education.8 Donors established separate organizational units and funding instruments, but human rights and democratic governance were not necessarily considered a core aspect of development work in other intervention areas.9

To make human rights an integral aspect of their development work, eral donors have moved toward more comprehensive approaches to integrat-ing human rights into development, shifting away from addressing human rights as merely a subcomponent of democracy promotion or “political aid.” Policies for human rights mainstreaming have since been developed to ensure that human rights are accounted for in all types of development interventions,

sev-in some cases to promote greater policy coherence or to draw more cally on human rights tools and methodology

systemati-This move toward more comprehensive approaches is often characterized

as “mainstreaming,” which the European Commission defi nes as “the process

of integrating human rights and democratization issues into all aspects of EU

a step further by aiming to provide a more coherent framework toward grating human rights across all sectors of development policy, and by recon-ceptualizing development processes in terms of rights and duties Within the

inte-UN system in particular, the concept of a HRBA was born out of the need

to have a more comprehensive, coherent, and systematic understanding of

vari-ous experiences within the United Nations, a UN Common Understanding (UNCU) on a HRBA was agreed on at the working level in 2003 and subse-

According to the UNCU, a HRBA requires that

1 All programmes of development cooperation, policies, and technical assistance should further the realization of human rights as laid down

in the Universal Declaration of Human Rights and other international human rights instruments;

8 P Uvin, Human Rights and Development (Kumarian 2004); Sano, supra note 4.

9 European Commn., Thematic Evaluation of the European Commission Support to Respect of Human Rights and Fundamental Freedoms (Including Solidarity with Victims of Repression), vol 1: Final Report 70 (Evaluation commissioned by the European Commn 2011), h p://ec.europa.eu

12 The United Nations Statement of Common Understanding on Human Rights-Based Approaches to

Development Cooperation and Programming can be consulted at h p://hrbaportal.org/the-human

-rights-based-approach-to-development-cooperation-towards-a-common-understanding -among-un-agencies#sthash.Vk4JorX7.dpuf.

2 Human rights standards contained in, and principles 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;

3 Development cooperation contributes to the development of the ties of “duty-bearers” to meet their obligations and/or of “rights-holders”

capaci-to claim their rights

The Offi ce of the High Commissioner for Human Rights (OHCHR) further defi nes a HRBA as “a conceptual framework for the process of human devel-opment that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”13 An increasing number of development actors, including UN development agen-cies and several bilateral European donors, have adopted HRBAs Recently,

donors have also adopted similar policies and strategies

By defi nition, HRBAs are founded on normative and legal justifi cations (states have a legal duty to respect, protect, and fulfi ll human rights, includ-ing beyond their domestic territory), but they may also be underpinned with instrumental objectives.15 Such instrumental perspectives see a HRBA as a way to increase the impact and eff ectiveness of service delivery by amplifying the “voice” of citizens and enhancing the res ponsiveness and accountability of service providers HRBAs are therefore essentially about supporting “active citizens” who are aware of, and able to claim, their rights.16 As phrased by the Swedish International Development Cooperation Agency (SIDA), raising the standard of living for the poor can be achieved more easily through working

with HRBAs, because they can “make cooperation more effi cient through

con-tributing to the identifi cation of the people who are discriminated against and the power structures in society that aff ect poor people’s lives.”17

13 Off U.N High Commr Human Rights, Frequently Asked Questions on a Human

Rights-Based Approach to Development Cooperation’ Strategies 15 (U.N High Commr Human Rights

2006)

14 Council of the European Union, EU Strategic Framework and Action Plan on Human Rights

and Democracy 10 (Council of the European Union 2012), h p://www.consilium.europa.eu

/uedocs/cms_data/docs/pressdata/EN/foraff /131173.pdf.

15 Org Econ Co-Operation & Dev & World Bank, supra note 5; Darrow & Tomas, supra note

2; L.-H Piron, Rights-Based Approaches and Bilateral Aid Agencies: More Than a Metaphor?, 36(1)

IDS Bull 19–30 (2005).

16 A Cornwall, & C Nyamu-Musembi, Pu ing the “Rights-Based Approach” to Development into

Perspective, 25(8) Third World Q 1415–37 (2004).

17 Swedish Intl Dev Cooperation Agency & Swedish Ministry For Aff airs, A Democracy and

Human Rights Approach to Development Co-operation 1 (policy document adopted by the

Swe-dish Intl Dev Cooperation Agency & SweSwe-dish Ministry For Aff airs 2001).

HRBAs within the Broader Context of Donor Approaches

to Integrating Human Rights in Development

A HRBA is one of several approaches to integrating human rights into opment It is, moreover, not a unitary concept; rather, it covers a range of defi nitions and interpretations.18 Donors defi ne their human rights priorities

devel-in diff erent ways and, equally, approach human rights devel-in their policies and activities in distinct manners A range of policy strategies exists among donors that explicitly espouses human rights Although these strategies are evolving, sometimes overlapping, and often undertaken simultaneously, at least four basic categories can be identifi ed

First, at the policy level, human rights have been integrated into policies

on aid allocation, which have in turn been made conditional on compliance with human rights obligations and adherence to democratic governance Sec-ond, donors undertake human rights dialogues with partners to complement development interventions Third, several donors support human rights proj-ects that may target the realization of specifi c rights, the protection of particu-lar groups, or the support of human rights organizations or processes Fourth, donors have developed human rights mainstreaming policies under which donors integrate human rights and thematic terms across a range of sectors,

or with respect to particular groups such as children, women, persons with disabilities, or indigenous peoples Given these diff erent policy reforms and initiatives, it is therefore possible for development actors to integrate human rights without having adopted a rights-based approach as a full-fl edged, explicit policy position Although HRBAs are understood to cover all of the aforementioned policy options, they also refer to a more specifi c approach

to planning development interventions This chapter relies on that confi ned interpretation of a HRBA as the reference point for analysis

more-In addition, it should be noted that some donors do not rely explicitly on the human rights framework but nevertheless can be said to integrate human rights more implicitly through a range of human rights–related interventions The interplay and overlap between such implicit approaches and HRBAs are discussed next

Implementing Human Rights–Based Approaches:

Policies and Practices

The policy documents of donors and development agencies in which a HRBA

is adopted are often aspirational and prescriptive, remaining vague about operational and organizational changes they imply Inasmuch as a HRBA

is an “umbrella concept,” it covers a broad variety of practices, from which

18 It is for this reason that this chapter refers throughout to “HRBAs” or “a HRBA” rather than

to “the HRBA.”

donors tend to pick and choose combinations of elements to put into use.19

Despite the comprehensive transformation proposed in theory, the adoption

of a HRBA does not in practice imply an “all or nothing choice,” as there are

“many degrees and levels of engagement.”20

Notwithstanding the conceptual complexity, authors and agencies have tried to capture the essential features of a HRBA and apply them in a range

of distinct mechanisms, instruments, and tools.21 A feature common to ferent interpretations of HRBAs is the application of human rights principles throughout the process of development These principles, as defi ned by the UNCU, are universality and inalienability, indivisibility, interdependence and interrelatedness, equality and nondiscrimination, participation and inclusion, and accountability and rule of law.22 The principles are derived from human

dif-rights treaties, and their application is determined on the basis of their tionality (i.e., the extent to which they gear the development process more directly toward the realization of human rights) and their practicality (i.e., the extent to which they provide development practitioners with clear and eff ec-tive guidance).23

func-While each of these human rights principles has relevance for ment, a distinction can be drawn between structural and operational prin-ciples Structural principles describe features of human rights law and affi rm the universality and inalienability, indivisibility, interdependence, and inter-relatedness of human rights These principles apply more generally to all human rights requiring that all donor (and partner) actions comply with the international legal human rights framework, and mandate certain key ele-ments in the framework’s interpretation, such as the equal importance of all human rights (indivisibility) or the applicability of human rights in all con-texts (universality).24

develop-The operational principles derived from human rights pertain more to their application in context; they include participation, accountability, non-discrimination, inclusion, and rule of law Although this categorization is not strict and there may be signifi cant overlap between them, the la er group of principles relates more to the “how” than the “what.” This group of prin-

19 H Miller, From Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice, 14(6) Intl J Human Rights 915, 919 (2010).

20 Swiss Dev Cooperation, Integrating Human Rights and Poverty Reduction: Towards a Human

Rights Based Approach for SDC 20 (working paper, Swiss Dev Cooperation 2004).

21 Off U.N High Commr Human Rights, supra note 13; Cornwall & Nyamu-Musembi, supra note 16; V Gauri & S Gloppen, Human Rights Based Approaches to Development: Concepts,

Evidence, and Policy (Policy Research Working Paper No 5938, World Bank 2012).

22 These are sometimes summarized in the acronym PANEL (participation, accountability, nondiscrimination, empowerment, and linkages to human rights standards).

23 For an elaborate discussion of how these principles are derived from the human rights

framework, see Darrow & Tomas, supra note 2, at 501.

24 B I Hamm, A Human Rights Approach to Development, 23(4) Human Rights Q., 1005, 1012

(2001).

ciples evidences a greater degree of convergence with development work and

is especially relevant in the context of a HRBA In addition, through the work

of UN treaty bodies or special procedures, other human rights principles have emerged providing more specifi c operational guidance on the interpretation and implementation of particular rights (particularly economic, social, and cultural rights) These principles include accessibility, adaptability, accept-ability, and aff ordability The following discussion explores the operational principles in greater detail, because these are the principles most commonly included in HRBAs adopted by donor agencies

Nondiscrimination and Equality

Among the principles that have direct operational implications for opment policy and programming, revealing the strongest elements of con-vergence between development and human rights, are nondiscrimination and equality These principles relate to the concepts of social exclusion and deprivation, whereby certain groups or individuals are denied basic entitle-ments due the entire population but enjoyed only by the rest of the popula-tion These particular principles require a focus on development processes and scrutiny of how a development initiative is implemented; who it includes and excludes; how it takes account of representation, voice, and dissent; and, ultimately, who benefi ts from it HRBAs introduce a clear normative and legal basis for development practitioners to systematically address discrimination and its underlying causes, including making allowances for affi rmative action and “special measures.”25 In the fi rst instance, this can imply using disaggre-gated data on development indicators to enhance the identifi cation of pat-terns of exclusion faced by poor people, vulnerable groups, and minorities Donors adopting a HRBA have emphasized the establishment of “equitable” and “inclusive” service delivery systems at the country level

devel-In addition to women’s rights and gender equality, a HRBA urges donors

to consider all forms of discrimination, thereby broadening the scope of inquiry and scrutiny for other suspect classifi cations and other vulnerable groups Moreover, unequal access to basic services is often caused by lack of

fi nances to pay for services and transport, creating pa erns of exclusion that may become entrenched but are potentially less obvious.26 A principal critique

of the Millennium Development Goals (MDGs) from a human rights tive was precisely this framework’s inability to account for diff erent forms of inequality within a given national context or to address development goals beyond aggregate targets, thereby potentially failing to reach the poorest and

25 Darrow & Tomas, supra note 2, at 505.

26 Org Econ Co-Operation & Dev Network on Governance, Linking Human Rights and Aid

Eff ectiveness for Be er Development Results: Practical Experience from the Health Sector 17 (Org

Econ Co-Operation & Dev Network on Governance 2008).

27 M Darrow, The Millennium Development Goals: Milestones or Millstones? Human Rights Priorities for the Post-2015 Development Agenda, 15 Yale Human Rights & Dev L J 65–66 (Mar 2012).

HRBA to the MDG framework, which could imply creating additional targets for particular groups and disaggregating indicators.28

In addressing discrimination and exclusion in development planning, some donors use a “targeted approach,” designing new programs that target specifi c vulnerable or excluded groups In doing this, donors adopt diff erent priority groups and demographics In its human rights strategy for foreign policy, the Dutch Ministry of Foreign Aff airs identifi ed discrimination against religious minorities as well as discrimination based on sexual orientation as key action points.29 The Danish development cooperation agency, however, has invested considerably in the area of indigenous peoples’ rights and has adopted this as a transversal theme in its strategy.30 In some instances, ini-tiatives address structural or systemic discrimination against certain groups

by encouraging legal reform UNICEF, for example, takes as an objective the elimination of discriminatory laws that allow girls to marry before the com-pulsory school-leaving age or prescribe diff erent school-leaving ages for girls and boys.31 In addition to “targeting,” donors have endeavored to embed the principle of nondiscrimination by developing safeguard mechanisms and

“inclusion policies” within sector-wide programs to ensure equal access to public services

Participation and Empowerment

Instead of mere consultation, a HRBA requires donors to enable “active, free and meaningful participation” in any development intervention undertaken, not just those directly related to political governance Accordingly, participa-

rights strategy, participation is conceived as a way to ensure sustainable results as well as a goal in itself; it helps people be more aware that “they have the right to demand change and social justice.”33 Participation in this sense implies “empowerment.”34 The objective of a HRBA is to embed and institu-

28 Off U.N High Commr Human Rights, Claiming the Millennium Development Goals: A Human

Rights Approach 9–10 (2008).

29 Dutch Ministry For Aff airs, Naar een Menswaardig bestaan: Een mensenrechtenstrategie voor het

buitenlands beleid [Toward a dignifi ed existence: Human rights strategy for foreign aff airs]

(Dutch Ministry For Aff airs 2007)

30 Danish Intl Dev Agency, Strategy for Danish Support to Indigenous Peoples (Ministry For

Aff airs 2004).

31 UNICEF, A Human Rights-Based Approach to Education for All: A Framework for the Realization

of Children’s Right to Education and Rights within Education 53 (UNICEF 2007).

32 Off U.N High Commr Human Rights, supra note 13.

33 Swedish Ministry For Aff airs, Change for Freedom: Policy for Democratic Development and Human

Rights in Swedish Development Cooperation, 2010–2014 (Swedish Ministry For Aff airs 2010).

34 According to the World Bank’s Sourcebook on Empowerment and Poverty Reduction,

“empow-erment” refers to the “expansion of assets and capabilities of poor people to participate in, negotiate with, infl uence, control, and hold accountable institutions that aff ect their lives.”

See World Bank, Empowerment and Poverty Reduction: A Sourcebook 11 (World Bank 2002).

tionalize participation in a way that it becomes self-sustaining.35 The ness and transparency of the participatory process become a central concern,

inclusive-as poor and excluded groups are often not equally represented in tory processes, because of practical impediments, lack of awareness, or more structural legal and institutional obstacles Investing in the capacities of poor and disadvantaged groups to participate becomes crucial.36 Transparency and access to information—for example, by making information available in acces-sible formats and minority languages—comes to the fore as key elements in fostering meaningful participation.37

participa-Participation can be enhanced by creating new channels and mechanisms and/or building the capacity of existing community-based or civil society organizations to work with human rights.38 Illustrative of the fi rst approach

is the Department for International Development’s (DFID’s) Participatory Rights Assessment Methodologies (PRAMs) project, which presents a work-ing method to facilitate people’s own identifi cation and assessment of their rights and open up new channels of institutional engagement between citi-

local organizations or NGOs to engage in rights-based participation are mon strategies Investing in participation and inclusion through local orga-nizations implies that these organizations are themselves representative and functioning in a participatory manner.40 Hence, in the selection of local part-ner organizations, more a ention should be paid to inclusiveness and local embeddedness The la er has gained increased a ention, as several authors argue that donors should not try to impose an “artifi cial” associational model, but should focus on working with existing practices of self-organization within local communities.41

com-One of the consequences, and challenges, of the “rights-version” of ticipation and empowerment is that it can potentially “sharpen the political edges” of development.42 Accordingly, programs have been canceled for polit-ical reasons, for example, when a partner government perceives funding as support for the opposition.43 Moreover, the effi ciency of the “confrontational”

par-35 Darrow & Tomas, supra note 2, at 506.

36 Id., at 510.

37 U.N Dev Programme, Mainstreaming Human Rights in Development Policies and Programming:

UNDP Experiences (U.N Dev Programme, Bureau Dev Policy 2012) See also consultation

requirements in World Bank safeguards as well as the access to information policy, which illustrate how this can be secured without HRBA.

38 Off U.N High Commr Human Rights, supra note 13, at 26–27.

39 J Blackburn et al., Operationalising the Rights Agenda: Participatory Rights Assessment in Peru

and Malawi, 36(1) IDS Bull 91, 93 (2005).

40 U.N Dev Programme, supra note 37.

41 D Booth & D Cammack, Solving Collective Action Problems 115 (Zed 2013).

42 Cornwall & Nyamu-Musembi, supra note 16, at 1418.

43 Overseas Dev Inst DFID Human Rights Practice Review Synthesis Report 7 (Overseas Dev

Inst 2008).