Olive Moore 1 From Right to Development to Rights in Development; Human Rights Based Approaches to Development

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1 Olive Moore 1 From Right to Development to Rights in Development; Human Rights Based Approaches to Development Having been subject to inertia for a number of years, the right to development is currently experiencing a revival, with a variety of actors re-engaging and reconceptualising the right. As Louise Arbour, United Nations High Commissioner for Human Rights states [A]fter twenty years of reaffirming its value the right to development should be a high priority on the agenda of governments and civil society groups. Yet to date - though advocating and using a human rights based approach to development - few development actors have made direct use of right to development in their work. This paper examines the neglect of the right to development in a human rights based approach to development, and situates this as being symptomatic of a wider problem; that human rights based approaches to development are being practised in an á la carte manner. An initial examination of the relationship between human rights and development might conclude that the linking of development and human rights was present when both concepts emerged in the post World War II period. After all, the founding document of the United Nations (UN), the UN Charter, brings human rights and development together in Article 55. Furthermore, the concepts are integrated and highlighted in the outcome documents of both UN World Conferences on Human Rights in Tehran in 1968 and Vienna in In 1986 the UN General Assembly adopted the Declaration on the Right to Development. Far from being an indicator of the integration of human rights and development, this is more a reflection of the peculiar nature of how human rights and development have been linked and lauded in high level UN rhetoric, but nothing further beyond that. Human rights and development have generally been viewed as two separate fields, with different focuses, languages and goals, following separate yet parallel paths in concept and action. It is only over the past two decades we have gradually witnessed a 1 School of Politics and International Relations, UCD

2 convergence of these two concepts, and seen them engage, and to some extent integrate, through the paradigm of a human rights based approach to development. The idea of a human rights based approach to development was first formulated in the early 1990s. In human rights this was facilitated by the re-focusing on indivisibility and interdependency of rights, and the assertion of economic, social and cultural rights as equal to civil and political rights, as demonstrated in the Vienna Declaration 2. At the same time, the indivisibility of all rights, that all rights are linked and co-equal in importance and form an indivisible whole, was being re-enforced. In embracing economic, social and cultural rights, the human rights movement has slowly come to realise that a human rights culture could not be achieved by traditional human rights actors solely, that their methods and mechanisms needed to be reviewed, and that a more proactive, interactive approach was called for. In development, the focus has gradually been expanded beyond economics, encompassing the social, cultural and political, and the conceptualising of development as human development. This facilitated the subsequent emergence of human rights as the value framework underpinning development. Had human rights remained mainly in the civil and political realm, and development remaining mainly in the economics realm, the integration would not have occurred. As well as changes to conceptions of both development and human rights, a number of political events were influential in this integration. The end of the Cold War is widely recognised as an extremely significant event in bringing human rights and development closer. The end of this historical period and the subsequent re-structuring of world affairs brings about a more differentiated view of both global problem and challenges. This allowed a space to emerge where the concepts of both human rights and development could be explored and re-defined. Hamm speaks of emerging cross sectoral perspective with development and human rights freed from traditional bloc thinking facilitating the emergence of a human rights based approach. These momentous shifts facilitated a more practical and sustainable link between human rights and development and resulted in the 2 The Vienna Declaration and Programme of Action was the outcome document from the second World Conference on Human Rights, held in Vienna, in

3 emergence of the idea that human rights could be integrated into development, essentially a human rights based approach to development. Today a growing number of actors - leading development and human rights non governmental organisations (NGOs) 3, governments 4, bilateral development agencies 5, UN and UN unaffiliated bodies, national community and voluntary organisations in the North and South, and academics 6 - have adopted or begun to adopt human rights based approaches. Defining a human rights based approach to development is a difficult task in that there are many interpretations, each with differing emphasis. Some even speak of human rights based approaches, using the plural to emphasise the multifaceted dimensions of the concept. What the interpretations have in common is that human rights based approaches concern the application of human rights norms, concepts, principles and standards to development. Commonly, it asserts the individual and groups of individuals - whom development proposes to serve - as bearers of rights. Others emphasise the legal character, and the identification of rights holder and duty bearer, as being the core of the approach. Recently the Office of the High Commissioner for Human Rights (OHCHR), offered a substantive definition of a human rights approach to development. A rights-based approach to development is a conceptual framework for the process of human development that is normatively based on international human 3 NGOs (mainly development and later some human rights) have strongly supported the integration of the two concepts, in many cases leading the way through developing policy and practice. International development and humanitarian organisations such as Oxfam and Action Aid have been advocating and trialling human rights based approaches as far back the early 1990s, and indeed have to an extent influenced the work of the UN. Interestingly human rights NGOs have generally been seen as being rather slow to make links with development, only very recently paying due attention. The exception being the Human Rights Council of Australia who have been carrying out work in the area since the early 1990s 4 Developing countries in particular have, from the outset, been in favour of integrating human rights and development, as demonstrated through their support for the right to development and again at the Copenhagen Summit for Sustainable Development, Notable donors such as the United Kingdom s Department for International Development (DIFD) and the Swedish International Development Cooperation (SIDA) have been developing policy linking development and human rights since the early 1990s. Robinson (2005) notes that bilateral development agencies were often ahead of international agencies. 6 Alston (2005) comments on the series of more active debate among practitioners and academics which is potentially of great significance. 3

4 rights standards and operationally directed towards promoting and protecting human rights. Many interpretations reference a number of human rights concepts which act as guiding principles Referred to as PANEL, the OHCHR highlights prioritising participation, accountability, non-discrimination, empowerment and linkages to human rights. Others key principles associated with HRBA include universality and inalienability, indivisibility, interdependence and inter-relatedness, rule of law and more recently progressive realisation and non-retrogression. Marks identifies five ways development writers and practitioners interpret the human rights framework for development: the holistic approach, the capabilities approach, the right to development approach, the responsibilities approach, the human rights education approach, the human rights-based approach and the social justice approach. Plipat identifies three types of a human rights based approach; the popular type emphasising grassroots organisations, the equity type emphasising global advocacy and classical type emphasising international human rights standards. Uvin presents a continuum representing the levels of integration - rhetorical incorporation, political conditionality, positive supports and rights based approaches. These various models are indicative of the complexity of the approach, and the multitude of ways in which it being framed and practised. Essentially a rights based approach has to mean different things to different people depending on the thematic focus, disciplinary bias, agency profile, and the external political, social and cultural environment. For development, a human rights based approach offers an alternative model to current practice. It asserts needs as rights, and affirms the re-conceptualisation of development as a comprehensive process of, not alone economic development, but also political, social and cultural. Importantly it also provides a legal dimension through international human rights law. For human rights, development offers the very practical means of realising human rights and bridging the application gap. Essentially it concerns the practice of human rights, economic and social rights in particular. By linking these the two concepts, we are currently observing a sea-change in the relationship between development and 4

5 human rights, and an emerging paradigm which holds great potential and the possibility of radical change. However, despite the possibilities which the human rights based approach offers in theory, in practice it is failing to fulfil this potential. The difficulty is that, although it is potentially transformative [t]his radical tool looses much of its power as the new paradigm transports in practice through the interpretation, organisational changes, and implementation. One reason that a human rights based approach to development is not fulfilling its heralded potential may be that the concept of human rights is not being adequately reflected. Given the variety of definitions and applications of a human rights based approach, this is not surprising. There is real danger that human rights based approaches to development are being practised as an á la carte approach where development actors pick and choose the human rights principles and concepts which are compatible with their values and work programmes, and which do not require any major programmatic alterations. This á la carte-ism can take a number of forms: the inadvertent (or perhaps deliberate?) disregard or omission of particular rights, the over or singular focus on ESCR thereby not taking into account the substantial learning on the importance of indivisibility, the limited discussion of duties and accountability of non-state development actors, the assumption that human rights based approaches to development are to be practised in developing countries alone etc. Part of the problem here is that the deliberate way in which human rights based approaches to development have evolved - prioritising flexibility as an essential trait which facilitates the many actors, disciplines, focuses, and methods - has also led to there being no common authoritative definition of a bare minimum of what needs to be incorporated to encompass a human rights based approach. In the absence of a common standard, the way in which human rights are being interpreted when applied to development potentially results in a selective adoption of human rights based approach to development. 5

6 For the purposes of this paper I will confine myself to one area where the potential selective interpretation of human rights by the development sector is problematic. This concerns the right to development itself. The right to development has recently experienced a revival. While its origins were marred by a lack of consensus, the 1993 the Second World Conference on Human Rights affirmed a new agreement among nations. The Vienna Declaration, adopted by all Governments including the U.S. (the only country which voted against the 1986 Declaration), reaffirms the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights. Following Vienna a number of UN mechanisms were put in place to further explore the right to development 7. The right to development has been further iterated at almost every international conference since. Indeed the Millennium Declaration itself recognises the importance of the right to development stating [W]e will spare no efforts to free our fellow men, women and children from the abject and dehumanising conditions of extreme poverty. We are committed to making the right to development a reality for everyone and to freeing the entire human race from want. The work of Arjun Sengupta 8 has been particularly influential in re-conceptualising the right to development in a more consistent manner with a human rights based approach to development. Sengupta presents the right to development as a collective right, simultaneously enjoyed by all citizens of a country and exercised collectively through policies and institutes. The right to development is a right to a process of development consisting of a progressive and phased realisation of all recognised human rights, such as civil and political rights, and economic, social and cultural rights (and other rights admitted in international law) as well as a process of economic growth consistent with human rights standards. 7 The Commission on Human Rights in 1998 adopted, by consensus, a Resolution on the Right to Development establishing a dual mechanism to explore the content and ways of implementing right to development. This consisted of an Open Ended Working Group and an Independent Expert who conducts and makes recommendations for action. A High Level Task Force on the implementation of the right to development was subsequently set up through the Working Group. Most recently, in March 2007 the Human Rights Council renewed the mandate of both the Working Group and the High Level Task Force for a further two years. 8 Arjun Sengupta is the former UN Expert on the Right to Development and current UN Independent Expert on Extreme Poverty and Human Rights 6

7 It is noted how Sengupta, in illustrating how the right to development would operate, uses a novel conception of the right to development as a right to a certain process of development, and therefore presents human rights as both the means and outcome of development. Of particular interest and relevance is Sengupta s proposal for Development Compacts which suggest a means of organising structures and resources which would advance the right to development. This is a mechanism for ensuring that all stakeholders recognise the mutuality of obligations, so that the obligations of developing countries to carry out rights-based programmes are matched by reciprocal obligations of the international community to cooperate to enable the implementation of the programmes. These compacts are a process which are complimentary to the treaty bodies and comprise several steps including: human rights based programming, national human rights institutions, and national legislation incorporating human rights. These compacts, and indeed Sengupta s understanding of the right to development, are very compatible with how a human rights based approach might be practiced and implemented. In fact they actually have much to bring to discussions and debates on human rights based approaches to development. Other UN actors have also engaged with the right to development. The Office of the High Commissioner for Human Rights (OHCHR) has also been recently active in advocating the right to development. According to OHCHR the right includes: full sovereignty over natural resources, self-determination, popular participation in development, equality of opportunity, the creation of favourable conditions for the enjoyment of other civil, political, economic, social and cultural rights. The right can be invoked both by individuals and by peoples. It imposes obligations both on individual States - to ensure equal and adequate access to essential resources - and on the international community - to promote fair development policies and effective international cooperation. 7

8 A considerable amount of academic commentary has also emerged on the right to development in the last decade, mainly in the legal and human rights publications. In 2003 the Norwegian Centre for Human Rights, University of Oslo organised a Nobel Symposium on the Right to Development and Human Rights in Development (Nobel Symposium no. 125). The Symposium, sponsored by the Nobel Foundation, brought together the leading experts in economics, international law and relations, and social sciences. The resulting publication from the conference Development as a Human Right; Legal, Political and Economic Dimensions (2006) represents the most novel thinking on the right to development, heralding real advances in how the right is conceptualised, articulated and operationalised. To date, few development actors have made direct use of right to development in their work. There is currently a range of soft materials (policies, audit tools, codes, guidelines etc.) available from a number of NGOs and bilateral development agencies concerning human rights based approaches to development. A rudimentary analysis of much of this literature shows that the right to development features scarcely, if at all. Interestingly, in its recent White Paper, Irish Aid notes the right to development in a noncommitted fashion - [W]hile there is a specific debate about the right to development, the enjoyment of all human rights, civil, cultural, economic, political and social, is essential for development. Also of note, the UNDP Human Development Report 2000 on human rights and development also pays scant attention to the right to development. It may be that development actors are avoiding the debate on the right to development because of a perception that the right is unwieldy, too broad and lacking definition 9. However, as discussed above, recent advances through both the UN mechanisms, including the OHCHR and academia have seen the emergence of a more robust and applicable definition of the right to development. The academic advances resulting in a 9 While there has been substantive advances in thinking around the normative basis of the right to development and the process for implementation, this is not to say that the right is no longer contested. Some still argue that the new conception of the right to development, and right based development is still too broad and too ambitious. Hansen and Sano (2006) assert that these interpretations have evolved conceptually before they have been trialled operationally and are therefore unfeasible and unrealistic. Others comment that the language of the right to development is vague and repetitive of other recognised rights (Hamm 2001, Uvin 2004). This has lead some observers to further conclude that combined with weak political support, the right to development has very little practical use, except for rhetorical use by mostly developing countries (Plipat 2005) 8

9 more practical re-conceptualising of the right to development, and the new found legitimacy through the support from bodies such as the OHCHR validates that the right to development should be accorded more serious consideration in relation to rights based approaches to development. The notion of a right to development is not the same as a human rights based approach to development, but it certainly is related. There are many links between the two concepts. In instances the persuasive argument promoting a human rights based approach to development and the right to development are very similar, often citing the same rationale, benefits and actions. In 1994 the Working Group on the Right to Development stated [T]he right to development is more than development itself; it implies a human rights approach to development, which is something new. If the right to development implies a human rights based approach, then surely the right to development should also feature in a human rights right based approach? Given the close links, it is inconsistent to advocate one without the other, as they are firmly interlinked and inter-related. Conclusion: The variety of definitions and applications of a human rights based approach while on the one hand is a strength, can concurrently be a weakness. How human rights are being interpreted when applied to development potentially results in a selective adoption of human rights based approaches to development with some development actors choosing to interpret human rights in ways that suits them, prioritising certain rights and principles at the expense and exclusion of others, thereby undermining the indivisibility of rights. One area where this is evident is how the right to development is generally absent in the discourse by development actors around a human rights based approach, despite this right being certainly pertinent and potentially useful. In the past it may have been acceptable and appropriate for development actors to inadvertently, or otherwise, evade the right to development and concentrate on advancing a human rights based approach to development. Today, it is scarcely credible to advocate for a human rights based approach, while avoiding what is perhaps the most relevant right, the right to development. At worst, human rights based approaches to development, as currently practised by some development actors, allows for the high moral human rights ground, 9

10 without them acknowledging or recognising the central right; the right to development. Without undermining the flexibility of a human rights based approach to development, there needs to be a consensus developed regarding what a human rights based approach must consist of, including at minimum an engagement with and understanding of the right to development. 10

11 Author Information Olive Moore has been working with Amnesty International Irish Section as Human Rights Based Approach Coordinator since September Prior to joining Amnesty, Olive worked as a Human Rights Officer with the Permanent Mission of Ireland to the United Nations in Geneva. She also worked with Trócaire in their East Africa Office promoting human rights based approaches to development in East Africa. Olive has completed a number of traineeships, which include working in the Human Rights Unit in the Irish Department of Foreign Affairs and in the Human Rights and Democratisation Unit in the European Commission. She has holds a Degree in Social Science and a European Masters in Human Rights and Democratisation. She is currently undertaking a PhD in the UCD School of Politics and International Relations on human rights based approaches to development. Olive can be contacted at Olive.Moore@ucdconncet.ie. 11