CHAPTER FOUR - Human Rights and Development
Apart from it being fundamental human rights, development is itself a process in which all human rights are realized. This fact is released not only by human rights agencies, but also by traditional, bilateral and multilateral development agencies. Several bilateral aid agencies now see respect for human rights as an integral part of the development process. Besides the broader conception of the nature of development, several of the issues that are central to development are also issues of human rights. Such issues range from the broad macro-economic policy and regulatory framework to the micro project implementation. The rule of law, which depends among others on impartial and independent courts, seen by proponents of economic growth as a precondition for investment and a free market economy, is also a central human rights concern. Gender relations which are the subjects of development endeavors are also the subjects of women’s and therefore human rights. Participation, another key concept in development conceptions and practice, is not only a human right in itself but is also determined by people’s ability to make, express, decide on and enforce their choices. At the end of this chapter students will able to:
The right to development can be rooted in the provision of the Charter of the United Nation, The Universal Declaration on human Rights and the two International Human Right Covenants. One of the objectives of the charter is to “promote social progress and better standards of life in larger freedom” and “to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction at to race, sex, language or religion.” Through the Charter , member states undertook to promote higher standards of living , full employment and conditions of economic and social progress and development and universal respect for, and observance of , human right and fundamental freedoms for all without distinction at to race, sex, language or religion.
The UDHR contains a number of elements that became central to the international community’s understanding of the right to development. It attaches importance, for example, to the promotion of social progress and better standards of life and recognizes the right to non-discrimination, the right to participate in public affairs and the right to an adequate standard of living. It also contains everyone’s entitlement to social and international order in which the rights and freedoms set forth in the Declaration can be fully realized. An importanct step towards the recognition of the right to development was General Assembly resolution 1161(XII). In this resolution the General Assembly expressed the view “that a balanced and integrated economic and social development would contribute towards the promotion and maintains of peace and security, social progress and better standards of living, and the observance of and respect for human rights and fundamental freedoms”.
This theme was taken up at the International Conference on Human Rights held in Tehran from 22 April to 13 May, 1968. The Conference expressed its belief “that the enjoyment of economic and social rights in inherently linked with any meaningful and profound interconnection between the realization of human rights and economic development”. It recognized “the collective responsibility of the international community to ensure the attainment of minimum standard of living necessary for the enjoyment of human right and fundamental freedoms but all persons throughout the world”. In 1969 the General Assembly, in its resolution 2542(XXIV), adopted the declaration on Social progress and development, which states that “Social progress and Development shall aim at the continuous raising of the material and spiritual standards of living of all members of society with respect for and in compliance with human rights and fundamental freedoms.”
In its resolution 4(XXXIII) of 21 February, 1977, the Commission on Human rights decided to pay special attention to consideration of the obstacle impeding the full realization of economic, social and cultural rights, particularly in developing countries, and of national and international action to secure the enjoyment of those rights. Recognizing the right to development as a human right, the Commission recommended to the Economic and Social council that it invites the Secretary – General to undertake a study on “the international dimensions of the right to development as human right in relation with other human rights based on international cooperation, including the right to peace, taking into account the requirements of the new International Economic Order and fundamental human needs”.
The Declaration on the Right to Development, which stated unequivocally that the right to development is a human right, was adopted by the United Nations in 1986 by an overwhelming majority, with the United States casting the single dissenting vote. This Declaration came almost thirty-eight years after the adoption of the Universal Declaration of Human Rights, according to which human rights constituted both civil and political rights (Articles 1 to 21) and economic, social, and cultural rights (Articles 22 to 28). In fact, the Universal Declaration reflected the immediate post-war consensus about human rights based on what President Roosevelt described as four freedoms—including the freedom from want—which he wanted to be incorporated in an International Bill of Rights.
There was no ambiguity at that time about political and economic rights being interrelated and interdependent components of human rights, and no disagreement that “true individual freedom cannot exist without economic security and independence.” And the credit should rightfully go to Mrs. Eleanor Roosevelt, who was the head of the U.S. delegation during the drafting of the Universal Declaration, for having first identified and advocated for the right to development when she stated, “[W]e are writing a bill of rights for the world, and . . . one of the most important rights is the opportunity for development.” The consensus over the unity of civil and political rights and economic, social, and cultural rights was broken in the Fifties, with the spread of the Cold War. Two separate covenants, one covering civil and political rights and another covering economic, social, and cultural rights, were promulgated to give them the status of international treaties in the late Sixties, and both came into force in the late Seventies. It took many years of international deliberations and negotiation for the world community to get back to the original conception of integrated and indivisible human rights. The Declaration on the Right to Development was the result. However, the single dissenting vote by the United States set back the process by several years, during which the international community could have tried to translate such a right to development into a reality. Issues were raised about the foundational basis of this right, its legitimacy, justiciability, and coherence.
The world was still divided between those who denied that economic, social, and cultural rights could be regarded as human rights, and those who considered that economic, social, and cultural rights as not only fully justifiable human rights but as essential human rights. Claims and counterclaims continued to be made by both the groups in different forums. Finally, a new consensus emerged in Vienna at the Second UN World Conference on Human Rights in 1993. The Declaration adopted there reaffirmed “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right .
4.1.2 The Content of the Right to Development
The declaration on the Right to Development under its Article 1 state that “ the right to development as 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 realized.” The rights include:
ü Full Sovereignty over natural resources
ü Self determination
ü Popular participation in development
ü Equality of opportunity
ü The creation of favorable conditions for enjoyment of other civil, political, economic, social and cultural rights.
The human person is identified as the beneficiary of the right to development, as of all human rights. The right to development 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. The Vienna declaration and Programme of Action, The World Conference on Human rights, held in Vienna in 1993, dealt extensively with the right to development. It adopted the Vienna Declaration and Programme of Action which recognizes that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. The World Conference reaffirmed by consensus to the right to development as a universal and inalienable right and an integral part of fundamental human rights. It further stated that,”while development facilitated the enjoyment of all human rights, lack of development may not be invoked to justify the abridgement of internationally recognized human rights.”
Subsequent articles in the Declaration clarify the nature of this process of development further and elaborate on the principles of exercising the right to development. For example, Article 1 recognizes that not only “every human person” but “all peoples” are entitled to the right to development. Article 1, Clause 2 even explicitly refers to the right of peoples to self-determination. But that does not mean that “peoples’ rights” can be seen as countering to or in contradiction? From an individual’s or “every human person’s” right. Article 2, Clause 1 categorically states that it is “the human person” who is the central subject of development, in the sense of the “active participant and beneficiary of the right to development.” Even if “peoples” or collectives of “human persons” are entitled to some rights such as full sovereignty over the natural wealth and resources in terms of territory, it is the individual human person who must be the active participant in and beneficiary of this right.
The process of development, “in which all human rights and fundamental freedoms can be fully realized,” would lead to, according to Article 2, Clause 3, “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 [emphasis added].” Article 8 elaborates this point further by stating that the measures for realizing the right to development shall ensure “equality of opportunity for all” in their access to basic resources, education, health services, food, housing, employment and in the fair distribution of income. The realization of the right would also require that women have an active role in the development process, and that “appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.”
To realize this process of development to which every human person is entitled by virtue of his right to development, there are responsibilities to be borne by all the concerned parties: “the human persons,” “the states operating nationally,” and “the states operating internationally.” According to Article 2, Clause 2, “all human beings (persons) have a responsibility for development individually and collectively,” and they must take appropriate actions, maintaining “full respect for the human rights and fundamental freedoms as well as their duties to the community.” Human persons thus are recognized to function both individually and as members of collectives or communities and to have duties to communities that are necessary to be carried out in promoting the process of development. But “the primary responsibility for the creation of national and international conditions favorable to the realization of the right to development” is of the State’s, as Article 3 categorically suggests. This responsibility is complementary to the individual’s responsibility as mentioned above, and is only for the creation of conditions for realizing the right and not for actually realizing the right itself. Only the individuals themselves can realize the right. The actions of the states needed for creating such conditions are to be undertaken at both the national and the international levels.
At the national level, Article 2, Clause 3 points out that, “states have the right and the duty to formulate appropriate national development policies,” and Article 8 says that states should undertake “all necessary measures for the realization of the right to development,” and again, “should encourage popular participation in all spheres.” In addition, the states are required by Article 6, Clause 3 to take steps to eliminate obstacles to development resulting from failure to observe civil and political rights as well as economic, social, and cultural rights, because the implementation, promotion and protection of these rights would be essential for realizing the right to development as all human rights and fundamental freedoms are indivisible and interdependent” (Article 6, Clause 2.) The states are also expected to take resolution steps to “eliminate the massive and flagrant violation of human rights” resulting from apartheid, racial discrimination, colonialism, foreign domination and occupation, etc. (Article 5).
In regards to the obligation of the states operating at the international level, the Declaration emphasizes the crucial importance of international cooperation. First, the states have a duty “to cooperate with each other in ensuring development and diminishing obstacles to development . . . and fulfill these duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, [and] mutual interest . . .” (Article 3, Clause 3). This has been further reiterated in Article 6, which states that “all states should cooperate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms.” Indeed, Clauses 2 and 3 clarify conditions required to fulfill the realization of fundamental freedoms and human rights as mentioned in Article 1. “All human rights and fundamental freedoms are indivisible and interdependent” and the “implementation, promotion, and protection of civil, political, economic, social, and cultural rights” deserve equal attention (Article 6, Clause 2). And failure to observe civil and political rights as well as economic, social, and cultural rights may result in “obstacles to development” that the states are responsible to eliminate (Article 6, Clause 3).
Finally, according to Article 4, the states have the duty, individually and collectively, to formulate international development policies to facilitate the realization of the right to development. It recognizes that sustained action is required to promote rapid development of developing countries and then declares:
“As a complement to the efforts of developing countries, effective international cooperation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development.”
4.1.3 Controversies Regarding the Right to Development
Once the right to development is viewed in this manner—as a human right derived from an implicit social contract binding civil society that identifies duty-holders both nationally and internationally, (primarily the nation-states and the international community, individuals, and groups operating in civil society) with the obligation to deliver this right—it should be easy to appreciate the controversies surrounding this right. First, for many years and especially during the Cold War period, the Western democracies and the Second World socialist countries were not willing to treat civil and political rights and economic, social, and cultural rights at part, or on equal terms, not to speak of regarding them as components of an integrated whole of an international bill of rights. That is why we not only had two separate covenants on these two sets of rights, but also the Western block was upholding the civil and 11 Universal Declaration of Human Rights, 1948, Preamble. Political rights and the Socialist countries pressured for the economic and social rights.
On a formal plan, the controversy was to have been resolved with the adoption of the right to development. But the reasons for taking these contrary positions kept lingering and was further complicated by the Third World countries putting forward the case of the right to development in the name of the collective rights of a group of countries to bring about a New International Economic Order. If some of the industrialized countries would not support the economic and social rights, they would find it even more difficult to support the right to development. Discounting the purely political and Cold War reasons for the countries taking their respective positions, the reasons for Western countries supporting civil and political rights but opposing economic and social rights as human rights can be summed up as follows: (a) human rights are individual rights, (b) they have to be coherent, in the sense that each right holder must have some corresponding duty-holder whose obligation would be to deliver the right, and (c) human rights must be justifiable. All these criticisms, if they are valid, would hold against the right to development.
The identification of human rights completely in terms of individual rights would imply total acceptance of the theory of natural rights. As Donnelly puts it, in the Universal Declaration of Human Rights, “human rights are clearly and unambiguously conceptualized as being inherent to humans and not as the product of social cooperation. These rights are conceptualized as being universal and hold equally by all, that is as natural rights.” In that paradigm, human rights are only personal rights, based on negative freedom, such as the rights to life, liberty, and free speech, whereby the law prohibits others from killing, imprisoning, or silencing an individual who has a claim to such freedoms that the state is expected to protect.
Economic and social rights are associated with positive freedoms which the state has to secure and protect through positive action. They are not natural rights, therefore, according to this view, not human rights. Collective rights are more than individual rights and to the extent the right to development are essentially linked to collective rights as well as positive economic rights, it would be disqualified from being regarded as a human right. All these arguments have been substantially repudiated in the literature. The Universal Declaration has many elements going beyond the principles of natural rights. In fact, it is firmly based on a pluralistic foundation of international law with many elements of economic and social rights, considering an individual’s personality as essentially molded by the community.
Indeed, logically, there is no reason to take the rights of a group or a collective (people or nation, ethnic or linguistic groups) to be fundamentally different in nature from an individual’s human rights so long as it is possible to define the obligation to fulfill them and duty-holders to secure them. Even personal rights can be taken as rights to be protected by individuals and groups. Furthermore, it is well established that the identification of civil and political rights with negative rights and economic, social and cultural rights with positive rights is too superficial because both would require negative (prevention) as well as positive (promotion or protective) actions. So logically, it is hard to regard only civil and political right as human rights and economic and social and collective rights as not human rights. As we have noted above, it is ultimately for the concerned people to decide what they would regard as human rights and which the states would have the obligation to deliver.
In terms of this approach, the assertion of a human right would require the identification of a set of duty-holders who are in a position to help to deliver the rights and that demands are placed on them that they should try to help. If these claims can be made legal, with appropriate legislation, covenant, or treaty, then such obligation may become binding. Otherwise, they remain a moral standard which may not have a legal sanction, but which in many situations may be as forceful in persuading all the duty holders to deliver those rights.
In this perspective, any economic or social right for an individual or a collective can qualify as a human right provided the moral standard or the ethical assertion of the right is accepted by all people in a particular civil society, and provided it is possible to identify at least a group of possible duty holders, if not one specific duty holder, who are in a position to deliver that right and who are willing to accept their obligations to help. From that point of view, the economic, social, and cultural rights according to the international covenant, and the right to development according to the Declaration of 1986, are all human rights. They have been adopted by the international community of states through a legitimate process of consensus building at the United Nations, and they have enumerated the rights and all the duty holders, primary among them being nation-states complemented by the international community of other states and multi-lateral agencies. What would be needed is an agreement about the procedures to be followed and the programs to be implemented by all the duty holders.
In addition, what may be needed is to formulate a legislative basis for the obligations morally accepted to become legally obligatory. It will be seen from these discussions that the third criticism that the human rights must be justiciable does not have a decisive force. The skeptics who doubt the appeal and effectiveness of ethical standards of rights-based arguments would not consider a right to be taken seriously unless the entitlements of those rights are sanctioned by a legal authority, such as the state, based on appropriate legislation. As Sen puts it, these skeptics would say, “Human beings in nature no more are born with human rights than they are born fully clothed; rights would have to be acquired through legislation, just as clothes are acquired through tailoring.” This criticism confuses human rights with legal rights. Human rights are based on moral standards on a view of human dignity, and which have many different ways of fulfillment depending on the acceptability of the ethical base of the claims. This does not, of course, obfuscate the importance or usefulness of such human rights translated into legislated legal rights. In fact, every attempt should be made to formulate and adopt appropriate legislative instruments to ensure the realization of the claims of a human right once it is accepted through consensus. These rights would then be backed by justiciable claims in courts and by authorities of enforcement.
But to say that human rights cannot be invoked if they cannot be legally enforced would be most inappropriate. For many of the economic and social rights and the right to development, and even for some elements of civil and political rights, the positive actions that are necessary may often make it very difficult to identify precisely the obligations of particular duty holders to make them legally liable to be prosecuted. Enacting appropriate legislative instruments for any of these rights would often be a stupendous task, and it would be often useful and necessary to find alternative methods of enforcement of the obligations rather than through the courts of law.
Collective Rights vs. Individual Rights
There is a different type of criticism which has been most persistently leveled against the right to development, in particular, in addition to the criticisms mentioned above that are applicable to all rights other than the civil and political rights. The right to development was promoted both by the Third World protagonists and First World critics as a collective right of states and of peoples for development. We have already dealt with the problem of the admissibility of collective rights as human rights, as against individual rights, and have argued that it is perfectly logical to press for collective rights to be recognized as human rights. But then care must be taken to define the collective rights properly and not in opposition to individual rights per se. Indeed there are legal institutional agreements and covenants that have recognized and built upon collective rights, and the Declaration on the Right to Development itself has recognized the collective right of peoples in its Article 1 when it states that every human person and all peoples are entitled to the human right to development and also the right to self-determination, exercising “their inalienable right to full sovereignty over all their natural wealth and resources.” But now these collective rights are seen as opposed to, or even superior to, the right of the individual. The Declaration on the Right to Development states categorically (Article 2) that “the human person is the central subject of development and should be the active participant and beneficiary of the right to development.”
In the case of collective right, such as that to self-determination, the right-holder may be a collective such as a nation, but the beneficiary of the exercise of the right has to be the individual. There may of course be some occasion when the right of a particular individual may come into conflict with the right of a collective. An obvious example would be the closed-shop practices of a trade union conflicting with the right to work of a particular unemployed person. But the beneficiaries of a trade union practice must be all individual workers, and not just the trade union, as an organization, its management and its treasury. It is also quite possible that different rights or different individuals enjoying a right may come into conflict in some specific situations. It would be necessary to institute some transparent procedures to resolve these conflicts. But such procedural restrictions in dealing with the exercise of a rights does not detract from the nature and importance of the collective right seen as built on individual rights. It is important to note this point on the integral relationship between the collective and the individual in understanding the human rights approach to development.
The Commission on Human Rights, in a resolution (No. 5 XXXV) as early as in 1975—well before the Declaration on the Right to Development, was adopted—stated that “development is as much a prerogative of nations as of individuals within nations.” Indeed, in many cases individual rights can be satisfied only in a collective context, and the right of a state or a nation to develop is a necessary condition for the fulfillment of the rights and the realization of the development of individuals. Indeed, most of the demands of the developing countries during the 1970s, when the content of the right to development was negotiated, can be put forward in these terms. The integrated program of commodities, the generalized preference scheme, industrialization, and technology transfers and all the essential components of the New International Economic Orders were the claims made on behalf of the developing countries which were all meant to be preconditions for development of all peoples in those countries.
Many of these proposals may not be relevant any more in the changed conditions of the world economy, and the developing countries themselves may not put them forward as parts of their development agenda. But during the Seventies and Eighties they were regarded as highly relevant, and this is reflected in the wording of the preamble of the Declaration of the Right to Development. However, they were never meant to disregard the primacy of individual rights which used the foundations of human rights theory and which developed over time with collective rights complementing the individual rights. Those who detract from the significance of the right to development by arguing that it is a protection of a collective right of the state or the nation, in conflict with the individual rights foundations of the human rights tradition are more often than not politically motivated. The Third World proponents of the right to development also must take a serious note of the implication of the human rights approach to development as collective rights of a nation or a state.
The exercise of those rights must lead to the realization of the right of all individuals to development, which means a particular process of development where all human rights and fundamental freedoms can be fully realized. We have analyzed the text of the Declaration to establish that this would imply (a) effective participation of all individuals in the decision-making and the execution of the process of development, which would necessarily require transparency and accountability of all activities, (b) equality of access to resources, and (c) equity in the sharing of benefits. Now it must be clear that economic growth and development of a state or a nation does not automatically lead to this process of development. In fact, if very specific policies are not taken to realize such development, the economic growth of a state increases often tends to the concentration of income and wealth, making the rich richer, even if not always the poor poorer. The main motivation behind the developing countries’ clamoring for the New International Economic Order was the demand for equity in dealing with the running of the international economic system, in all its trade, financial, and technological relationships. The specific methods of such running of the world economy may have changed over time, and the international economic order of today, defining the relationship between the different economies and the rules and procedures of their interactions, is quite different from the international economic order of the Sixties and Seventies. But the basic requirements for equity and justice in the process of development fulfilling the human right to development have not changed. So if a country wants to develop along the path of the right to development, it must ensure the fulfillment of all the human rights consistent with equity and justice.
4.1.4 Right – Based Approach to Development
Greater normative clarity and detail provided by the international instruments and the authoritative interpretations of treaty bodies and human rights mechanisms, which list and define the content of development, including the requirements of, for example, health, education, housing and governance. International standards in the form of treaties, declarations, guidelines and bodies of principles are public and readily accessible tools describing in remarkable detail the institutional and developmental requirements of the various guaranteed rights while some sectoral development matrices have focused exclusively on selected economic sectors, The more comprehensive human rights framework provides guidance on all areas of human development, including health, education, housing, personal security, justice administration and political participation. There is no shortage of examples of harm caused by development agreements, projects and activities that have taken inadequate account of human rights concerns.
Rights-based approaches include measures of protection organically incorporated in development plans, policies and projects from the outset. More effective and complete analysis; traditional poverty analyses, based their judgments on income and economic indicators alone. A human rights analysis reveals additional concerns of the poor themselves, including the phenomena of powerlessness and social exclusion. A more thorough analysis yields better responses and better results. A more authoritative basis for advocacy and for claims on resources, with international legal obligations and national commitments empowering development advocates in their quest to have, for example, basic social services given priority over military expenditure, or sounding the alarm when "progressive realization" of economic and social rights stalls, is reversed, or is compromised by conflicting trade or adjustment agreements.
There is no single, universally agreed rights-based approach although there may be an emerging consensus on the basic constituent elements. Today, OHCHR and its partners are working to define the operational implications of such approaches, and to explain their practical "added value" more clearly to development planners and professionals. A host of United Nations programmes, non-governmental organizations, national institutions and bilateral agencies are now cooperating and contributing to the development of rights-based approaches.
What is a Rights-Based 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 rights standards and operationally directed to promoting and protecting human rights. Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation. A rights-based approach to development includes the following elements: Express linkage to rights
Non-discrimination and attention to vulnerable groups
EXPRESS LINKAGE TO RIGHTS- The definition of the objectives of development in terms of particular rights - as legally enforceable entitlements - is an essential ingredient of human rights approaches, as is the creation of express normative links to international, regional and national human rights instruments. Rights-based approaches are comprehensive in their consideration of the full range of indivisible, interdependent and interrelated rights: civil, cultural, economic, political and social. This calls for a development framework with sectors that mirror internationally guaranteed rights, thus covering, for example, health, education, housing, justice administration, personal security and political participation. By definition, these approaches are incompatible with development policies, projects or activities that have the effect of violating rights, and they permit no "trade-offs" between development and rights.
ACCOUNTABILITY - Rights-based approaches focus on raising levels of accountability in the development process by identifying claim-holders (and their entitlements) and corresponding duty-holders (and their obligations). In this regard, they look both at the positive obligations of duty-holders (to protect, promote and provide) and at their negative obligations (to abstain from violations). They take into account the duties of the full range of relevant actors, including individuals, States, local organizations and authorities, private companies, aid donors and international institutions. Such approaches also provide for the development of adequate laws, policies, institutions, administrative procedures and practices, and mechanisms of redress and accountability that can deliver on entitlements, respond to denial and violations, and ensure accountability. They call for the translation of universal standards into locally determined benchmarks for measuring progress and enhancing accountability. For all human rights, States must have both the political will and the means to ensure their realization, and they must put in place the necessary legislative, administrative, and institutional mechanisms required to achieve that aim.
Under the ICESCR, States are required to take immediate steps for the progressive realization of the rights concerned, so that failure to take the necessary steps, or any retrogression, will flag a breach of the State’s duties. Like wise under the ICCPR, States are bound to respect the rights concerned, to ensure respect for them and to take the necessary steps to put them into effect. Some rights claimed in some jurisdictions may not be justifiable before a court, but all rights must be enforceable. While primary responsibility under the human rights system lies with individual States, the international community is also duty bound to provide effective international cooperation, inter alia in response to shortages of resources and capacities in developing countries.
EMPOWERMENT- Rights-based approaches also give preference to strategies for empowerment over charitable responses. They focus on beneficiaries as the owners of rights and the directors of development, and emphasize the human person as the centre of the development process (directly, through their advocates and through organizations of civil society). The goal is to give people the power, capacities, capabilities and access needed to change their own lives, improve their own communities and influence their own destinies.
PARTICIPATION- Rights-based approaches require a high degree of participation, including from communities, civil society, minorities, indigenous people, women and others. According to the UN Declaration on the Right to Development, such participation must be "active, free and meaningful" so that mere formal or "ceremonial" contacts with beneficiaries are not sufficient. Rights-based approaches give due attention to issues of accessibility, including access to development processes, institutions, information and redress or complaints mechanisms. This also means situating development project mechanisms in proximity to partners and beneficiaries. Such approaches necessarily opt for process-based development methodologies and techniques, rather than externally conceived "quick fixes" and imported technical models.
NON-DISCRIMINATION AND ATTENTION TO VULNERABLE GROUPS- The human rights imperative of such approaches means that particular attention is given to discrimination, equality, equity and vulnerable groups. These groups include women, minorities, indigenous people and prisoners, but there is no universal checklist for who is most vulnerable in every given context. Rather, rights-based approaches require that such questions be answered locally: who is vulnerable here and now? Development data need to be disaggregated, as far as possible, by race, religion, ethnicity, language, sex and other categories of human rights concern. An important aspect of rights-based approaches is the incorporation of express safeguards in development instruments to protect against threats to the rights and well-being of prisoners, minorities, migrants and other often domestically marginalized groups. Furthermore, all development decisions, policies and initiatives, while seeking to empower local participants, are also expressly required to guard against simply reinforcing existing power imbalances between, for example, women and men, landowners and peasants, and workers and employers.
Are Rights-Based Approaches New?
While it has recently received unprecedented attention, the idea of rights-based approaches is not a new concept. Many of its elements have been tried and tested for years. There is a growing catalogue of successful case studies registered by many countries and many programmes. The assistance programme administered by OHCHR has been based on international human rights standards since 1955. The ILO has operated within a rights framework that predates the United Nations itself. UNICEF has been developing such approaches for several years. UNDP has long pioneered people-centered approaches. Development NGOs like Oxfam, Care and others have also embraced rights-based approaches. Each has made an important contribution to the evolution of the concept and related practices.
The Committee on Economic, Social and Cultural Rights in its General Comment on international technical assistance warned that proposals for the integration of human rights into development activities can too easily remain at a level of generality. The Committee has long recognized that development cooperation activities do not automatically contribute to the promotion of respect for human rights simply by addressing thematic human rights concerns such as health, education or governance. It has cited as evidence the many activities undertaken in the name of "development" that have subsequently been recognized as ill-conceived and even counter-productive in human rights terms. Offering practical advice on how integration can be better achieved, the Committee has recommended that United Nations development strategies should expressly recognize the "intimate relationship" between development activities and efforts to promote respect for human rights; that development cooperation activities should be subject to human rights impact assessment; that development personnel should receive human rights training; and that human rights obligations should be taken into account at every stage of development projects (i.e. needs assessment, project identification, project implementation, project monitoring and project evaluation).
In its deliberations, the Committee has noted that international development agencies must scrupulously avoid involvement in projects which, for example, involve the use of forced labour in contravention of international standards, which promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or which involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. Conversely, such agencies should act as advocates of projects and approaches that contribute not only to economic growth or other broadly defined objectives, but also to enhanced enjoyment of the full range of human rights.
4.2 Gender Dimension of Development
Right – based approaches to development emphasize non- discrimination, attention to vulnerability and empowerment. Women and girls are among the first victims of discrimination. They are the most vulnerable and the least empowered in many societies. To protect women’s rights, the international community has created specific standards. In 1979, the United Nation General Assembly adopted the Convention on the elimination of all forms of discrimination against women. The convention, which entered into force on 3 September, 1981, establishes women’s right to non-discrimination on the basis of sex and affirms equality in international law. It is monitored by the Committee on the Elimination of Discrimination against Women. Recent world conference, including Vienna (1993), Cairo (1994) and Beijing (1995), have confirmed the strong link between the gendered nature of violations of human rights and the advancement of women’s right. The 1993 Vienna declaration and programme of action affirmed the human rights of women as an inalienable, integral and invincible part of the human rights and demanded that the equal status and human rights of women be integrated into the mainstream of the United Nation System – wide activity.
Gender mainstreaming has been defined by the United Nations as the process of assessing the implications for women and men of any planned action, including legislation, policies and programmes, in any area and at all levels (ECOSOC Agreed Conclusions 1997/2).In 1998, the Economic and Social Council (ECOSOC) adopted resolution 1998/11 on mainstreaming a gender perspective into the policies and programmes of the United Nations system, and decided to pay particular attention to what has been called the "feminization" of poverty, its causes and remedies. The Organization has now committed itself to integrating a gender perspective into all areas of United Nations work, including development. In resolution 2000/5, the Commission on Human Rights affirmed the need to apply a gender perspective in the implementation of the right to development, inter alia by ensuring that women play an active role in the development process. It emphasized that the empowerment of women and their full participation on the basis of equality in all spheres of society is fundamental for society. At its fifty-fifth session, the Commission requested all human rights treaty bodies, special procedures and the Sub-Commission on the Promotion and Protection of Human Rights to adopt a systematic gender perspective when implementing their mandates (E/CN.4/RES/1999/41). In accordance with this resolution, OHCHR is endeavoring to mainstream gender issues both within and outside the Office. Gender concerns will be reflected in the conceptualization, implementation and evaluation of human rights policies, strategic planning, and the setting of priorities and objectives.
Feminist approaches to development are generally concerned with ensuring that whatever else it does, development serves to satisfy women's needs and to further their interests and aspirations. The feminist perspective has become increasingly influential over the past three decades. There is clearly some overlap between feminist perspectives on development and other perspectives. For example, initial attempts to integrate women’s interests into development theory focused upon the need to alleviate women’s poverty by ensuring that they receive the benefits of foreign aid and public services such as healthcare and food subsidies. This approach is consistent with welfarist approaches to development. However, it has been criticized for its failure to challenge the inequities implicit in the social and economic structures that define the lives of many women in LDCs.
Other feminist approaches to development have focused on integrating women into the economic system and combating sex-based discrimination in the productive sphere. From this perspective, the primary policy objective is to ensure that women in developing societies attain the same benefits as women in modern societies and in particular, formally equal access to credit and labor markets. This approach can be characterized as an extension of modernization theory. Taking a slightly different tack, some feminists have observed that women in LDCs are more productive than men in many activities and have used this to observation to justify the implementation of policies designed to increase women’s access to economic opportunities. Of course those types of policies can also be readily justified from an economic perspective.
Recent feminist scholarship on development issues has adopted an approach known as GAD, this approach resembles the welfarist perspective outlined above. This is because GAD focuses upon improving women’s well-being which is broadly conceived to include more than just measures of wealth and income. Significantly, however, women’s well-being is equated with freedom from oppression and self- empowerment. Moreover, unlike other feminist approaches to development, the GAD approach is concerned with reducing discrimination against and oppression of women in the private sphere, i.e. the household, as well as the public sphere, i.e. the world of paid employment. Thus for example, feminist scholars who adopt the GAD approach pay great attention to the fact that increasing women’s access to income-generating activities will not necessarily enhance women’s welfare if they continue to perform significant amounts of unpaid household labor and must cede control over any income they generate to the men within their households.
Like other perspectives on development, the feminist perspective has many policy implications that have little to do with the design of legal institutions. For example, from a feminist perspective, reducing spending on social services such as childcare and healthcare is frequently undesirable since it shifts the responsibility for providing those services in to women and so merely adds to their burden. By contrast, such spending cuts may be defensible from an economic perspective for countries with major deficit or inflation problems.
The feminist perspective also has a number of implications for the design of legal institutions. However, the question of whether pursuing legal reforms is an appropriate strategy for attaining gains for women has been a subject of debate among feminists. Some feminists argue that legal systems designed and dominated by men and male values and maintained by educated elites cannot possibly be responsive to women’s needs, especially the needs of poor uneducated women. However, the dominant view among feminists seems to be that unless the current inequities in legal systems are addressed, “we abandon the reform task to those for whom the issue of gender equity is not a priority, casting our legal fate in their hands.”
As far as law-making institutions are concerned, the overarching goal of empowering women demands that they ultimately be included in all sorts of law-making processes. On the other hand, feminists generally seem to take the view that beneficial reforms can be effected by any type of law-making institution. Consequently, feminists have opportunistically sought to ensure that feminist perspectives are taken into account in the formulation of both international and domestic law and in law-making conducted in legislative, adjudicative, and administrative fora.
Feminist scholars are also concerned with reforming both substantive legal rules and the manner in which they are enforced to ensure that law does not serve to exclude some or all women. Different scholars have focused on different ways in which legal institutions exclude women. However, in LDCs, the literature seems to focus on the following substantive areas of law: family law, property law, employment law, criminal law, and human rights law.
The focus on family law is derived from the concern with improving the quality of women’s private as well as their public lives by, for example, increasing their rights to economic support from their spouses in the event of marital breakdown. As far as property law is concerned, feminists are primarily concerned with reversing the effects of both formal and informal legal rules that limit women’s rights to own and inherit land. Labor and employment law demands attention to the extent that laws governing discrimination, sexual harassment, the provision of child-care facilities, parental leave, and part-time work affect women’s abilities to combine child-rearing with participation in the workforce.
The criminal justice system requires attention to the extent that it can contribute to reducing various forms of violence against women including domestic violence, rape, genital mutilation and trafficking in women. Finally, entrenching rights to gender equality in human rights laws can serve to provide a legal basis for challenging all sorts of public policies that unjustly reduce women’s quality of life.
4.3 Implementing the Right to Development
The recognition of the right to development as an inalienable human right confers on it a claim to national and international resources and obliges states and other agencies of society, including individuals, to contribute to its implementation. According to the Declaration on the Right to Development, the primary responsibility of implementing the right to development belongs to states. The beneficiaries are individuals. The international community has the duty to cooperate to enable states to fulfill their obligations under Articles 1, 55, and 56 of the UN Charter. Accordingly, the Vienna Declaration calls for effective implementation of the right .The Vienna Declaration and Programme of Action, in fact, states categorically, “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments.” Further, “enhancement of international cooperation in the field of human rights is essential for the full achievement of the purposes of the United Nations.” to development through policies at the national level with equitable economic relations and a favorable environment at the international level. The identification of the corresponding obligations at the national level would, therefore, be the first step in implementing the right to development.
National obligations should begin with the formulation of a set of policies applicableto the implementation of each of the constituent rights of the right to developmentindividually, as well as in combination with each other as part of a development program. They should be categorized as measures that prevent violation of any right and measures that promote the improved realization of all rights. According to our definition of the right to development, violation of any one right would mean violation of the right to development itself. The design of any program for the promotion of a right, therefore, must ensure that any other right will not be adversely affected.
To operationalize these rights, and to know when they are or are not realized, these rights, must be represented by some indicators whose value would increase, as the rights are increasingly realized. In the case of economic, social and cultural rights, which are supposed to be progressively realized, the value of the indicators should be able to increase monotonically with the progressive realization of the rights. That will be the case if these indicators are indices represented by real numbers. For simplifying the operational procedures to implement a right, attempts should be made to combine the different characteristics of a right by suitably weighting them into a single index.
Indeed, most of these rights will have a number of characteristics or dimensions. For example, the economic rights will have to combine the availability of the corresponding economic goods with the access to those goods in a manner that is consistent with the human rights standards. Those standards have been defined in terms of at least five characteristics as discussed earlier, so that the access should be at least equitable, non-discriminatory, participatory, accountable, and transparent. All these have to be ascertained and reflected in an indicator that combines it with the indicator for the availability of goods and is represented by an index for the realization of the right. For instance, the index of the right to food should reflect both whether sufficient food is available and whether everybody or the target population of the poor or the vulnerable will have access to that good in, say, let us an equitable or non-discriminatory manner. All these exercises, of course, in actual practice, may not be very precise, giving only approximate answers. But they must be sensitive to the relevant issues and aware of the purpose of the exercise for assessing the comprehensive outcomes of not just what is achieved but also how it is achieved.
It may not be easy to build up an overall indicator for the right to development. This is because to convert a vector comprising a number of distinct elements into a scalar or an index would require a process of averaging or weighting the various elements that would be open to fundamental objections. However, expressing the right to development as a vector of all the rights would make it possible to establish whether there has been an improvement in the realization of the right to development; it would not, of course, allow comparisons to be made between the achievements of two or more countries, or even within the same country over time. The only way to do this is to build a consensus through open public discussions about the relative importance of the different levels of achievement.
This, however, would not prevent the formulation of a program for development that takes into account the inter-linkages between the objectives of realizing the various rights including, as mentioned above, the right to the need to expand resources, GNP, technology, and institutions. What differentiate the program for realizing the right to development from other conventional programs of development is not only the differences in the objectives to be realized but also the manner in which they are to be realized. This type of development imposes additional constraints on the development process, such as maintaining transparency, accountability, equity, and non-discrimination in all the programs. In addition, the program must ensure overall development with equity, or transformation of the structure of production, which reduces inter-regional and interpersonal disparities and in equities.
Like all other development programs, such a program would be subject to constraints in resources, technology, and institutions. The importance of the constraints is not as apparent if one is seeking to achieve individual rights in isolation. But as part of a country’s overall development program, the right to development is very much a matter of modernization and technological as well as institutional transformation, which relaxes the technological and institutional constraints over time.
Therefore, the right to development is also related to increasing resources over time by making the most efficient use of the existing resources through proper fiscal, monetary, trade, and competitive market practices and by promoting the growth of resources and expanding the opportunities for trade. Achieving the right to development requires the same fiscal and monetary discipline, macro-economic balance, and competitive markets as any other form of prudent economic management. The basic difference is that prudent management in furtherance of achieving the right to development is expected to bring about a more equitable outcome of the economic activities that make an improved realization of all the components of that right possible.