We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights. Report of the UN Secretary-General, ‘In larger Freedom: towards development, security and human rights for all’, 2005.
When the interrelationship between human rights and development co-operation was established in the 1970s, the linkage between the two concepts was often connected with debates about the discontinuation of assistance to a country whose government grossly violated human rights and the punitive aspect of the linkage appeared to prevail in public opinion. Most donors have had experiences with the withdrawal of aid, often a much debated and not necessarily effective measure; and active promotion of human rights through, for example, assistance to the judiciary or human rights institutions, can be interpreted as interference in internal affairs.
In the course of the 1980s, the relationship between human rights and development co-operation began to take on a different form. The use of development co-operation to promote human rights through, e.g., additional support to democratising governments, support to human rights NGOs or decentralised co-operation, received increasing attention. Gradually, human rights became part of the dialogue between donors and recipients. One of the first instruments formally establishing the linkage and confirming the emerging human rights policy was the Lomé III Convention between the EC and its partner states in Africa, the Caribbean and the Pacific (signed in 1984). Human rights were mentioned in the Preamble of the Convention and further elaborated upon in the joint declarations attached to it. The dramatic changes in Central and Eastern Europe in 1989 influenced governments’ views on the relationship between human rights and sustainable development, generating an approach where the individual was placed at the centre, becoming the main protagonist and beneficiary of development. The conviction emerged that, in the long term, respect for human rights, the rule of law, political pluralism and effective, accountable political institutions form the basis of all development and equitable distribution.
An important achievement in establishing the relationship between human rights and development were the so-called ‘Millennium Development Goals’ (MDGs). At the UN Millennium Summit in 2000, world leaders agreed upon a set of time-bound and measurable goals and targets for combating poverty, hunger, disease, illiteracy, environmental degradation and discrimination against women. These goals aim at achieving measurable progress in a number of specific fields which are considered essential for human development and several lead to increased enjoyment of human rights, such as primary education. The goals provide a framework for development co-operation institutions to work coherently together towards a common end. Close co-operation is imperative as a large majority of nations can only reach the MDGs with substantial support from outside. Progress toward the MDGs is being measured on a regular basis.
The MDGs have led to increased emphasis on human rights-based approaches to development and poverty reduction. A human rights-based approach deals with the substance of the development support initiatives, but focuses on the way in which development is being approached. The human rights-based approach, in essence, requires that policies and institutions working on development and reduction of poverty base themselves on the obligations that emanate from the international human rights conventions (ICCPR, ICESCR, CERD, CEDAW, CAT, CRC and CRPD). Human rights are inherent to the person and belong equally to all human beings and their realisation has to be carried out as a participatory, egalitarian and transparent process. Human rights instruments, such as the Universal Declaration of Human Rights, provide a coherent framework for practical action at the international and domestic levels to reduce poverty. The human rights-based approach to poverty reduction upholds the principles of universality and indivisibility, empowerment and transparency, accountability and participation.
The United Nations Development Programme (UNDP) plays a central role within the UN in realising the human rights-based approach to development. It focuses its policy, programming and capacity development support to this approach. In particular, it:
Encourages all actors to adopt a human rights-based approach in tailoring and customising the MDG targets to the local context.
Focuses on the capacities of duty-holders to meet their obligations to respect, protect and fulfil rights; as well as the capacities of rights-bearers to claim their rights.
Enhances the synergy between poverty reduction and democratic governance. Programmes for local governance, access to justice, capacity of human rights institutions, grassroots initiatives for community development, and human rights education will be included among pro-poor poverty programming.
Engages in the work of UN Treaty Bodies; particularly strives to incorporate selected and relevant recommendations that result from periodic reviews into its programme development.
Promotes and supports participatory assessment methodologies that link rights, obstacles and strengths around which poor people can secure their livelihood.
Build in-house capacity to undertake multi-disciplinary review and analysis that maximise meaningful participation of the poor.
The human rights-based approach is a perspective and process that can lead more directly to increased enjoyment of human rights. Development processes – traditionally technical and economically orientated - are becoming increasingly focused on enjoyment of rights and promotion of values. One of the most important aspects of this approach is the increased recognition of poverty as one of the greatest barriers to the universal enjoyment of human rights. In short, HRBA aims for sustainable outcomes by analysing and addressing the inequalities, discriminatory practices and unjust power relations which are often at the heart of development problems.
MILLENNIUM DEVELOPMENT GOALS T0 BE ACHIEVED BY 2015
Halve extreme poverty and hunger.
Achieve universal primary education.
Empower women and promote equality between women and men.
Reduce under-five mortality by two-thirds.
Reduce maternal mortality by three-quarters.
Reverse the spread of killer diseases, especially HIV/AIDS and malaria.
Ensure environmental sustainability.
Create a global partnership for development, with targets for aid, trade and debt relief.
A HUMAN RIGHTS-BASED APPROACH TO DEVELOPMENT CO-OPERATION
The terms ‘human centred development’ and ‘human rights’ are prominent features in present policy documents and the strategy papers of most donor agencies. This placing of the individual at the centre of development and including human rights as one of the principal objectives of development co-operation is, however, the outcome of a crucial paradigm-shift in development thinking throughout the last decades.
The development model after the Second World War focused on growth and development at the macro-economic level. Today we observe a broadening of the term development to include a distinct micro-level perspective which also takes into account individual well-being. This individual component is closely linked to the recognition of the instrumental role of individual participation and choice for development and underlines that particular attention has to be paid to disadvantaged and most-marginalised groups. Furthermore, the emergence of ‘good governance’ in the late 1980s reflects a growing awareness that development in economic terms cannot be detached from capacity building and institutional considerations in the political field.
These changing perceptions eventually paved the way for increased attention to the relationship between economic development and democratic governance as well as for an enhanced role for human rights as a means and objective of development.
With regard to the inclusion of human rights in development co-operation two approaches can be noted. From a more traditional perspective, development and human rights are in principle still viewed as two distinct concepts and fields of activity. Within such an approach, human rights projects and programmes are simply ‘added’ to the traditional activities of development co-operation, which itself is understood as aiming primarily at economic (and social) development.
In contrast, the so-called human rights-based approach to development (HRBA) takes the view that the ultimate aim of development can be defined as the fulfilment of all human rights. Such an approach is based on the conviction that human rights and development are closely interrelated and mutually reinforcing and that neither human rights nor development are prerequisites of, or just ingredients of, the other.
In essence, a HRBA can be defined as a conceptual and analytical approach to development co-operation, which is based on the standards and principles of human rights and which aims to incorporate these standards and principles in all planning and implementation of development co-operation.
While ‘standards’ refer to the norms enshrined in the international human rights treaties (in particular the seven core Conventions) the term ‘principles’ regularly encompasses ‘non-discrimination’, ‘participation’, accountability’ and ‘the rule of law’. UNDP in its 2003 practice note on ‘Poverty Reduction and Human Rights’ names ‘universality and indivisibility’, ‘equality and non-discrimination’, ‘participation and inclusion’ as well as ‘accountability and the rule of law’ as the principles of a human rights-based approach to development and to poverty reduction.
A HRBA however, does not refer to a closed model which can be mechanically applied to any given situation, but it requires, as a starting point, a thorough and in-depth analysis of the status of the implementation of the international human rights obligations of a given country. With regard to the variety of civil, political, economic, social and cultural rights as well as to differing country situations this is a complex task and the expertise needed has to be drawn from both, best development as well as human rights practice. Accordingly many development agencies are still struggling with the practical implementation of a HRBA in a comprehensive way, which, in addition, also respects the local ownership of the development process.
However, it is also increasingly recognised that a HRBA can contribute in a very relevant way to development analysis and programming. Firstly, it offers a common and universally accepted framework of analysis for both donors and recipients. Secondly, being based on the notion of ‘rights’ instead of ‘needs’, a HRBA looks at the root causes of uneven development by analysing the underlying power mechanism and by focusing on discriminated and marginalised strata and groups of society. Furthermore, it introduces a corresponding relationship between ‘rights-bearers’ and ‘duty-holders’ which makes it possible to identify concrete accountability for lacking development. Finally, a HRBA has the potential to deepen the best development practices of empowerment and participation as it is based on the recognition of the (human) rights of the poor to be heard and to take part in the formulation and implementation of development affecting their lives.
Democracy and human rights have historically been regarded as very different phenomena occupying separate areas of the political sphere. Democracy is generally connected with terms such as competitive elections, multi-party democracy and the separation of power. Moreover, democracy aims to empower the people in order to ensure that they rule society. Human rights, on the other hand, aim to empower the individual and to guarantee the minimum necessary conditions for pursuing a distinctively human life. Human rights, moreover, apply to all ‘humans’ and are universal in their scope and subject to international definition and regulation. The constitutional arrangements of governments, including democracy, have traditionally been regarded as an internal matter of the state, comprising the essence of ‘sovereignty’.
The Universal Declaration of Human Rights proclaimed that ‘the will of the people shall be the basis of the authority of government’ and guaranteed to everyone the rights that are essential for effective political participation. The ICCPR conferred binding legal status on the right of individuals to participate in the processes that constitute the conduct of public affairs, and further strengthened the protection accorded to participatory rights and freedoms.
Since the fall of the Berlin Wall and the collapse of most communist regimes, the issue of democratisation has been prioritised and democracy and human rights are now seen as firmly standing together. As a consequence, in the 1990s, democracy became the theme of a number of international conferences. UN organs such as the Secretariat, the General Assembly and the former UN Commission on Human Rights and the Human Rights Council have commented on ways to strengthen democracy and several conferences on new or restored democracies have been convened in close co-operation with the UN.
In resolution 2003/36 the Commission on Human Rights called on the OHCHR to organise a second expert seminar to examine the interdependence between democracy and human rights. The seminar was held in 2005 with the aim to facilitate a constructive dialogue on the interaction between democracy, human rights and the rule of law. The seminar adopted a concluding document (E/CN.4/2005/58) where, inter alia, it was affirmed that democracy and the rule of law are interdependent and both are necessary to create an environment in which human rights can be realized and that:
Free, fair, and periodic multiparty elections are a key component of democracy, the rule of law and the protection of human rights. They also have an autonomous value as a means of self-realization and recognition of human dignity. Periodic elections are essential to ensure the accountability of representatives for the exercise of the legislative or executive powers vested in them. The conduct of elections should be entrusted to an independent mechanism, as appropriate, one that is free from executive or other interference that could undermine the fairness of elections.
According to the UN Secretary-General, ‘democracy is not a model to be copied from certain states, but a goal to be attained by all peoples and assimilated by all cultures’ (A/50/332). There is no single formula for how to secure democracy. Although the specific circumstances of each society or culture determine the choice and outcome of democratic processes, it is now widely accepted that democracy is a precondition for the full realisation of all human rights, and vice versa. It was, however, not until 1999 that the UN Commission on Human Rights explicitly recognised the existence of a right to democracy, stating that ‘democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, and that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives’. The Commission identified the following components of the rights of democratic governance: a) the rights to freedom of opinion and expression, of thought, conscience and religion, and of peaceful association and assembly; b) the right to freedom to seek, receive and impart information and ideas through any media; c) the rule of law, including legal protection of citizens’ rights, interests and personal security, and fairness in the administration of justice and independence of the judiciary; d) the right to universal and equal suffrage, as well as free voting procedures and periodic and free elections; e) the right to political participation, including equal opportunity for all citizens to become candidates; f) transparent and accountable government institutions; g) the right of citizens to choose their governmental system through constitutional or other democratic means; and h) the right to equal access to public service in one’s own country.
The Inter-American Democratic Charter, adopted by the General Assembly of the Organisation of American States in 2001, defines respect for human rights as an essential element of democracy as well as inter alia
access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organisations, and the separation of powers and independence of the branches of government. (Article 3).
Transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy. The constitutional subordination of all state institutions to the legally constituted civilian authority and respect for the rule of law on the part of all institutions and sectors of society are equally essential to democracy. (Article 4).
Although not yet in force, as of March 2009, mention should also be made of the African Charter on Democracy, Elections and Governance. The Charter was adopted by the AU Assembly in 2007 as part of the AU’s stated emphasis on promoting democracy and good governance. It draws reference from the African Charter on Human and Peoples’ Rights, urging member states to take a wide range of measures to promote democracy, elections and good governance.
The European Community established, in 2006, the ‘European Instrument for Democracy and Human Rights’ (EIDHR) allowing the EU to provide support for the promotion of democracy and human rights worldwide.
From a human rights perspective, democracy appears to play two different roles. On the one hand, democracy is considered the basic guarantor of human rights, on the other we are witnessing the merging of human rights with democracy. A democratic system of governance is not a panacea for all human rights abuses. Many serious human rights violations occur in democratic countries. Reports and jurisprudence of international human rights supervisory mechanisms prove that rights to freedom of opinion, expression, information, dissent, association and participation on an equal basis, and fair trial have been violated in virtually every country in the world. However, respect for democratic principles is an indispensable condition for protection and promotion of all categories of rights and freedoms. Democratic principles have become a cornerstone of the human rights regime indispensable for the promotion of civil and political as well as economic, cultural and social rights.
B. GOOD GOVERNANCE
Good governance is the transparent and responsible assertion of authority and use of resources by governments. Many states seek to promote good governance in their foreign policies and in relations with developing countries as well as with countries that are in a process of transition towards a market economy and democracy.
Good governance concerns the fulfilment of three elementary tasks of government: a) to guarantee the security of all persons and of society itself; b) to manage an effective framework for the public sector, the private sector and civil society; and c) to promote economic, social and other aims in accordance with the wishes of the population.
Good governance and human rights are closely related. They can mutually reinforce each other in important ways; both are concerned with the rule of law and with equity in the outcomes of government policies and they overlap in specific areas. However, they remain distinct as good governance is about providing society with a framework for the effective and equitable generation and division of wealth while human rights seek to protect the inherent dignity of each and every individual.
In recent years, good governance has evolved from a topic of growing international debate to an explicit policy aim of many international organisations. In the Poverty Reduction and Growth Facility (PRGF) of the International Monetary Fund and the International Development Assistance (IDA) lending activities of the World Bank, criteria of good governance play a major role in asserting the effectiveness of economic and social policies of governments for sustainable development. These include, for example: financial transparency, the quality of the public sector, the effectiveness of public service delivery, the equity of taxation by the government and the quality of the legal and institutional framework that protects independent activities within the private sector and civil society.
The UNDP policy document ‘Governance for Sustainable Human Development’ (1997) defines (good) governance as:
The exercise of economic, political and administrative authority to manage a country’s affairs at all levels. [...] Good governance is, among other things, participatory, transparent and accountable. It is also effective and equitable. And it promotes the rule of law. Good governance ensures that political, social and economic priorities are based on broad consensus in society and that the voices of the poorest and the most vulnerable are heard in decision-making over the allocation of development resources.
This definition draws on various UN human rights instruments, notably the UDHR, which states that ‘the will of the people shall be the basis of the authority of government’, and reiterates that ‘everyone has the right to take part in the government of his country, directly or through freely chosen representatives’ and that ‘everyone has the right of equal access to public service’.
The UNDP’s concern for governance touches directly on legal instruments, governmental and non-governmental institutions and processes affecting human rights. Concern for human rights and good governance is reflected, for example, in public management programmes, which address such issues as accountability, transparency, participation, decentralisation, legislative capacity and judicial independence. The UNDP’s governance programme, for instance, identifies three domains playing a unique role in promoting sustainable development and good governance: the state, the private sector, and civil society.
The Human Rights Council has recognised that ‘transparent, responsible, accountable and participatory government, responsive to the needs and aspirations of the people, including women and members of vulnerable and marginalized groups, is the foundation on which good governance rests and that such a foundation is an indispensable condition for the full realization of human rights, including the right to development’. The Council expressly linked good governance to an environment conducive to the enjoyment of human rights and ‘prompting growth and sustainable human development’ (Resolution 7/11). By linking good governance to sustainable human development, emphasising principles such as accountability, participation and the enjoyment of human rights, and rejecting prescriptive approaches to development assistance, the resolution stands as an implicit endorsement of the human rights-based approach to development. Thus, governance and human rights are mutually reinforcing; human rights principles provide a set of values to guide the work of governments and other political and social actors but also provide a set of performance standards against which these actors can be held accountable.
In addition to the above-mentioned resolution, there exists a considerable body of human rights standards of direct relevance and applicability to questions of good governance. The ICCPR requires states parties ‘to respect and to ensure [...] the rights recognised’ in the Covenant and ‘to take the necessary steps [...] to give effect to the rights.’ States parties are required, inter alia, to ensure that an effective remedy for violations is available; to provide for determination of claims by competent judicial, administrative or legislative authorities; and to enforce remedies when granted (Article 2).
Similarly, under the ICESCR, states have undertaken ‘to take steps [...] with a view to achieving progressively the full realisation of the rights recognised [...] by all appropriate means’ (Article 2).
The Declaration on the Right to Development (1986) (see V§1.C) further clarifies the nature of these obligations, setting forth important objectives for governance. It mandates states ‘to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting there from’. Moreover, states are expected to ‘undertake, at the national level, all necessary measures for the realisation of the right to development’ and to ‘ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income’. ‘Effective measures’ are to be undertaken to ensure that women have an active role in the development process, and ‘appropriate economic and social reforms’ are to be carried out with a view to eradicating all social injustices. In sum, the Declaration requires states to take steps ‘to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels’.
Finally, an important aspect of good governance is the civilian control over military activities and expenditures; part of good governance might be the restriction of military spending. Excessive military expenditure not only reduces funds available for other purposes, but can also contribute to increased regional tensions and violations of international law. Furthermore, the military is often used for purposes of internal repression and denial of human rights.
C. THE RIGHT TO DEVELOPMENT
The right to development is rooted in the Charter of the United Nations, the Universal Declaration on Human Rights and the two International Human Rights Covenants. Development and human rights are intricately linked. As such, numerous documents have explicitly acknowledged their indivisibility, including the Declaration on the Right to Development (1986), the African Charter on Human and Peoples’ Rights, the Declaration on the Rights of Indigenous Peoples (2007), the Vienna Declaration and Programme of Action (1993) and the Rio Declaration on Environment and Development (1992).
Ultimately, both development and human rights movements share the same enthusiasm and motivation to promote the freedom, well-being and dignity of individuals. On the one hand human development improves the capabilities and freedoms of individuals while on the other hand human rights provide the framework for a social arrangement that facilitates and secures capabilities and freedoms expressed by human development. Article 1 of the Declaration on the Right to Development states that:
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
Moreover, the preamble of the Declaration states that:
Development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.
Article 1 identifies the human person as the beneficiary of the right to development. It imposes obligations 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 co-operation.
The right to development was reaffirmed at the World Conference on Human Rights in Vienna in 1993 ‘as a universal and inalienable right and an integral part of fundamental human rights’. The former UN Commission on Human Rights spoke of an important right ‘for every human person and all peoples in all countries’ (Resolution 1998/72) and placed emphasis on the individual as bearer of the right to development. The Commission also underlined the importance of structural measures to tackle the problems developing countries have to overcome. In a resolution on the right to development, the Commission, inter alia, stated that
[I]nternational co-operation is acknowledged more than ever as a necessity deriving from recognised mutual interest, and therefore that such co-operation should be strengthened in order to support efforts of developing countries to solve their social and economic problems and to fulfil their obligations to promote and protect all human rights (Resolution 1998/72).
To illustrate the need for such an approach, the Commission addressed ‘the unacceptable situation of absolute poverty, hunger and disease, lack of adequate shelter, illiteracy and hopelessness, being the lot of over one billion people; the gap between developed and developing countries remaining unacceptably wide; the difficulties developing countries have to face when participating in the globalisation process, risking to be marginalised and effectively excluded from its benefits.’
In a resolution on the right to development in 2003 the Commission confirmed the right to development as ‘an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations, and the individual as the central subject and beneficiary of development’ (Resolution 2003/83). It should, however, be noted that the states themselves are primarily responsible for development. The international community can contribute to development but cannot take over that responsibility.
An open-ended Working Group on the Right to Development was established in 1998 following a recommendation by the UN Commission on Human Rights to the ECOSOC (E/CN.4/RES/1998/72). In its resolution 4/4, the Human Rights Council renewed the mandate of the Working Group for a period of two years, and also extended the mandate of the high level task force on the implementation of the right to development. The Working Group is mandated to a) monitor and review progress made in the promotion and implementation of the right to development; b) review reports and other information submitted by states and international or non-governmental organisations; and c) submit reports to the Human Rights Council. The Working Group holds annual sessions where it considers operational aspects of the right to development and discusses the progress made in implementing the right to development.
In its consideration of the 6th report of the Independent Expert on the right to development, the Working Group discussed what the right to development entails, inter alia:
The realization of the right to development is seen as the fulfilment of a set of claims by people, principally on their State but also on the society at large, including the international community, to a process that enables them to realize the rights and freedoms set forth in the International Bill of Human Rights in their totality as an integrated whole. The right to development encompasses the right of the people to the outcomes of the process, i.e. improved realization of different human rights, as well as the right to the process of realizing these outcomes itself. It is to be facilitated and ensured by the corresponding duty-bearers on whom the claims are made, and who must adopt and implement policies and interventions that conform to the human rights norms, standards and principles. In other words, both the ends and the means of such a process of development are to be treated as a right.
Further, it has to be viewed as a composite right wherein all the rights, i.e. economic, social and cultural, as well as civil and political rights, because of their interdependence and indivisibility, are realized together. The integrity of these rights implies that if any one of them is violated, the composite right to development is also violated. The independent expert has described the realization of the right to development in terms of an improvement of a ‘vector’ of human rights, such that there is improvement of some or at least one of those rights, without any other right being violated. Also, this right is not a finite event but a process in time, wherein some, if not all, of the desired outcomes are realized progressively, with resource constraints on their realization being gradually relaxed through, inter alia, economic growth consistent with human rights norms and principles. (E/CN.4/2004/WG.18/2).
The indivisibility and interdependency of development and human rights has led many organisations to merge the two concepts in their work. The UNDP, for example, has stated that eliminating poverty, sustaining livelihood, promoting gender equality, protecting the environment, and capacity building will assist in mainstreaming human rights in the development sector. The UNDP has concluded that a human rights approach to development will result in a mutually beneficial arrangement that enhances the achievement of universal human rights and development goals.
It should be noted that because of the complexity and contentious issues regarding the right to development, despite several attempts, only limited progress has been made from 1998 to date in reaching consensus on a specific ‘binding’ instrument establishing the right.