1. The Human Rights Based Approach Concepts and Elements ASPAP Regional TOT LS NO. 2
2.
3. Human Development… Is t he process of enhancing people’s capabilities to expand choices and opportunities so that each person can lead a life of respect and value freedom and dignity need the legal guarantees of human rights to avoid being threatened The linkages between… … and Human rights… All people have claims to social arrangements that protect them from the worst abuses and deprivations-and that secure the freedom for a life of dignity The realization of human rights requires capacities that development can make possible LS NO. 2
4.
5.
6.
7.
8.
9.
10.
11.
12. Elements of RBA Express linkage to human rights Accountability Empowerment Participation Nondiscrimination and attention to vulnerable groups 17
13.
14.
15.
16.
17. Human Rights Standard The minimum normative content of the right : the type of claims and obligations that the right implies at the minimum in practice in programming, the standards guide the… … Identification of development challenges as human rights issues (Assessment) … analysis of roles and capacities of rights-holders and duty bearers … definition of development objectives … formulation of corresponding benchmarks and indicators LS NO. 2
18.
19. EMPOWERMENT Universality Indivisibility Interrrelatedness and interdependence Non-discrimination Equality Accountability Attention to vulnerable groups Equity People’s participation Independence of the judiciary Legislative capacity and rule of law Transparency Human Rights Principles That Guide Development
20.
21.
22.
23.
24.
25.
26.
27.
28.
29. RBA Implementation CHALLENGE TO LEARN CHALLENGE OF AFFECTIVE CHALLENGE OF EXAMPLE CHALLENGE OF SELF-EXAMINATION PERSONAL CHALLENGES OF RBA PRACTITIONER
This session explains: What is HRBA to development programming Why a HRBA The UN Common Understanding on HRBA to Development Programming and its main elements: -
Human Rights and human development share a common vision and a common purpose- to secure the freedom, well-being and dignity of all people everywhere. When human development and human rights advance together, they reinforce one another- expanding people’s capabilities and protecting their rights and fundamental freedoms. In essence, the above is what is meant with a human rights-based approach to development!
Tip for presenter. This presentation comes after the group work on the HRBA which will have already dealt with a lot of content issues that are covered in the present session. While running the presentation, do refer to issues emerge and discussed in the groups work. The slide is animated . Start by Showing the title only and ask participants to indicate which of the definitions below correspond to the HRBA. HRBA is about consistently referring to and applying the human rights terminology in UN reports, speeches, project documents etc. HRBA is about conditioning the support of the UN to the country to the respect of human rights 3) HRBA is about designing and implementing specific interventions targeting the protection of human rights None of them does…show the rest of the slide to highlight the essence of the HRBA What is a HRBA? HRBA 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. A HRBA focuses explicitly on discrimination and marginalisation in the development process HRBA penetrates all development practice to the point that the boundaries of human rights and development disappear as both become conceptually and operationally inseparable parts of the same processes of social change. HRBA is applied to development in such a manner that it alters the way that programmes are designed, implemented, monitored and evaluated beginning with the assessment and analysis of the situation, which is ideally the point of departure. The level of commitment is higher in the application of HRBA and requires addressing the challenges in a more comprehensive way. This means confronting persistent patterns of inequality and discrimination and formulating responses that will have taken into account the structural causes that enabled a political and societal environment to foster exclusion and marginalization and ultimately, the denial of human rights - Example - Needs-based approach versus a rights-based approach to nutrition: “ The essence of the differences is that in the former “beneficiaries” have no active claim to ensure that their needs will be met, and there is no binding obligation or duty for anybody to meet these needs. In contrast, a rights-based approach recognizes beneficiaries as active subjects or “claim-holders” and establishes duties or obligations for those against whom a claim can be held.” Urban Jonsson Focus is Both on Outcome and Process In a HRBA, attention must be paid to results since the desired outcome and impact of any programme activity is that it contributes to further the realization of human rights. At the same time, attention must be paid to ensure that the development process does not deepen inequality, discrimination and ultimately conflict. Human rights principles and standards provide objective criteria for acceptable development processes, thus being participatory, inclusive and accountable processes which prioritize the most marginalized and excluded groups. For example, human rights principles should inform the process of formulating, implementing and monitoring a poverty reduction strategy.
Implications and Added value of HRBA In the shift from theory to practice, there has been considerable debate regarding its meaning, the added value to development and particularly on how to apply a HRBA to development programming so that it can have greater impact. There are three main rationales for a HRBA: (a) intrinsic; (b) instrumental; (c) and institutional. (a) Intrinsic rationale Acknowledging that a HRBA is the right thing to do, morally and legally The HRBA is based on universal values (freedom, equality, solidarity, etc.) reflected in human rights principles and standards that provide a common standard of achievement for all men women and children and all nations. The HRBA moves development action from the optional realm of benevolence (or charity) into the mandatory realm of law. The HRBA establishes duties and obligations and corresponding claims , and underscores the importance of establishing accountability mechanisms at all levels for duty-bearers to meet their obligations. The HRBA changes the concept from regarding people as passive beneficiaries of State policies to active participants in their own development and further recognizes them as rights-holders , thereby placing them at the centre of the development process. (b) Instrumental rationale Recognizing that a HRBA leads to better and more sustainable human development outcomes, the HRBA: Focuses on analyzing the inequalities, discriminatory practices, and unjust power relations which are the root causes of the human rights and development challenges and processes that exacerbate conflict. Has a special focus on groups subjected to discrimination and suffering from disadvantage and exclusion , including children, minorities and women. The twin principles of non-discrimination and equality call for a focus on gender equality and engaging with women’s human rights in all development programmes. Emphasizes participation , particularly of discriminated and excluded groups at every stage of the programming process. Counts on the accountability of the State and its institutions with regard to respecting, protecting and fulfilling all the human rights of all people within their jurisdiction (although in some instances the duty of the State may extend beyond their jurisdiction, e.g. prisoners of war). Gives equal importance to the processes and outcomes of development, as the quality of the process affects the achievement and sustainability of outcomes. (c) Institutional value The UN has a comparative advantage in its core mandate on Peace, Security, Human Rights and Development and the values of the UN Charter. In that regard, neutrality and respect for self reliance make the UN a privileged partner to deal with sensitive issues in a holistic manner, which means that: Development challenges are examined from a holistic lens guided by the human rights principles and taking into account the civil, political, economic, social and cultural aspects of a problem (e.g. poverty reduction strategy is guided by rights to education and health as well as freedom of expression and assembly and right to information etc.) A HRBA lifts sectoral “blinkers” and facilitates an integrated response to multifaceted development problems , including addressing the social, political, legal and policy frameworks that determine the relationship and capacity gaps of rights-holders and duty- bearers. A HRBA requires using the recommendations of international human rights mechanisms in the analysis and strategic response to development problems. A HRBA can also shape relations with partners since partnerships should be participatory, inclusive and based on mutual respect in accordance with human rights principles
Duty-bearers Human rights obligations can also attach to private individuals, international organizations and other non-State actors. Parents, for example, have explicit obligations under the Convention on the Rights of the Child and States are obliged to cooperate with each other to eliminate obstacles to development. Moreover, individuals have general responsibilities towards the community at large and, at a minimum, must respect the human rights of others. However, the State remains the primary duty-bearer under international law, and cannot abrogate its duty to set in place and enforce an appropriate regulatory environment for private sector activities and responsibilities. National legislation and policies must detail how the State’s human rights obligations will be discharged at national, provincial and local levels, and the extent to which individuals, companies, local government units, NGOs or other organs of society will directly shoulder responsibility for implementation. Rights-holders Programmes Contribute to develop the capacity of Rights-Holders to claim their rights. Every individual is a rights-holder and entitled to the same rights without distinction. To some extent groups are also entitled to human rights. The HRBA requires that special attention be paid to supporting members of groups subjected to discrimination, or suffering from disadvantage or exclusion, to claim their rights.
The international human rights instruments contain the human rights standards which constitute the minimum normative level or content of entitlements and obligations against which duty-bearers at all levels of society—but especially organs of the State—can be held accountable. Articles in the treaties ( e.g. rights relating to health can be found in the ICESCR, CEDAW, and the CRC) General comments of the UN treaty bodies (e.g. availability, accessibility, and adequacy of health services, GCESCR; gender equality and women’s rights to health, GRCEDAW)” Ask participants for an example in which they think food is not culturally acceptable National legislation (national constitution, laws and regulations, jurisprudence…) can establish higher standards than international law Example: A minimum standard is the minimum level or content necessary to be able to affirm that a right is being fulfilled. One example of minimum content: food can be available, accessible, and affordable in a quantity and quality sufficient to satisfy the dietary needs of individuals . However, if the food available is not culturally acceptable (pork meat in Muslim cultures) then the right to food would be violated. In the right box: Identification of development challenges as human rights issues : In a country where 40% of children suffer malnutrition, the human rights standard on right to food (article 11 of CESCR and GC 12) tells us that food has to be available and accessible. In fact, there are countries which face that level of chronic malnutrition, where food is available but is not accessible to half of the population due to social and economic disparities. Analysis of roles and capacities: The Ministry of Labour is responsible for the implementation of workers’ rights, but often fails to enforce the policy on minimum wage, given strong resistance from big business interests. Workers are often afraid of reprisals if they claim their rights, given the lack of State protection against abuses by landowners. Rural women in particular still face discrimination in relation to wages and land ownership, and often do not even have identity documents. (excerpt from a report of the Special Rapporteur on Right to Food from a country visit in 2005)
Human Rights are both sectoral and instrumental. Both standards and principles improve the quality of outcomes and processes Human Rights Principles ensure that the development process creates a favourable environment and does not harm the realization of human rights Tip for Presenter Standards and principles will be elaborated in greater details in next slides In HRBA the HR principles guiding the development process are equally important as the human rights standards defining the content of the development objectives. The type of process determines the final outcome and its sustainability. HRBA has also a procedural dimension. Key principles such as participation, equality and non discrimination and accountability ensure that the development and programming processes create a favourable environment for the realization of HRs.
The colour shows a difference between the two sets of principles. Those in green are content oriented while those in blue are process oriented. Tip for presenter. HR Principles will be treated in more detailed through a separate presentation. This is to provide quick understanding of definitions Universality and inalienability: Human rights are universal and inalienable. Every man, woman or child everywhere in the world are holders of human rights by virtue of being human. The human person in whom they inhere cannot voluntarily give them up. Nor can others take them away from him or her. Article 1 of the UDHR, “All human beings are born free and equal in dignity and rights.” Universality also refers to the obligation of every State to respect and protect the human rights in international instruments. These rights form a core minimum standard to be observed by every State. Indivisibility: Human rights are indivisible. Whether of a civil, cultural, economic, political or social nature, they are all inherent to the dignity of every human person. Consequently, they all have equal status as rights, and cannot be ranked Inter-dependence and Inter-relatedness: The realization of one right often depends, wholly or in part, upon the realization of others. For instance, realization of the right to health may depend, in certain circumstances, on realization of the right to education, the right to information, the right to food and nutrition, the right to safe water and sanitation etc. A malnourished girl is unable to perform in school and to benefit from an education that will enable her to participate in civil society and in the democratic process. Equality and Non-discrimination : All individuals are equal as human beings and by virtue of the inherent dignity of each human person. All human beings are entitled to their human rights without discrimination of any kind, such as race, colour, sex, age, language, religion, political or other opinion, national or social origin, disability, property, birth or other status as established by the human rights treaties and further interpreted by the human rights treaty bodies. For this reason, the advancement of the human rights of both men and women on the basis of equality is an absolute requirement of international human rights law. Participation and Inclusion: Every person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, economic, social, cultural and political development in which human rights and fundamental freedoms can be realized. Accountability and Rule of Law : States and other duty-bearers are answerable for the observance of human rights. In this regard, they have to comply with the legal norms and standards enshrined in human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress
Question : Is the principle of Universality similar to the principles of equality and non-discrimination? Answer: The principle of universality and inalienability is in essence concerned that no one is left out or excluded from HR; while the principle of equality and non-discrimination is in essence concerned with undoing the specific patterns of discrimination that have been identified by the HR treaties, in order to achieve equality for groups that are currently subjected to discrimination. Universality and inalienability: Human rights are universal and inalienable. Every man, woman or child everywhere in the world are entitled to them. The human person in whom they inhere cannot voluntarily give them up. Nor can others take them away from him or her. As stated in Article 1 of the UDHR, “All human beings are born free and equal in dignity and rights.” Application of these principles: The question to ask is whether all the people of a specific country are able to enjoy all their human rights? For example, are women and men able to enjoy their human rights on an equal basis? Are children, adolescents, minorities and other groups within the population able to enjoy their rights? By all their human rights we are referring to those rights that have been recognized in the international human rights treaties, including the Universal Declaration of Human Rights. “ While every human being is entitled to his or her human rights, there are groups of people who are most likely to be overlooked or marginalized, and whose rights are most in danger of being violated or remaining unfulfilled. The HRBA requires that we keep this potential negative outcome in mind. We need therefore to ensure that duty bearers attend – not just to majorities of people – but also to the most marginalized and excluded people. And the UN’s own programming must similarly ensure this outreach and inclusion. Among the groups most in danger of being left outside of human rights protection are those suffering from multiple forms of disadvantage, such as the poorest of the poor, or rural ethic minorities.
Indivisibility: Human rights are indivisible. Whether of a civil, cultural, economic, political or social nature, they are all inherent to the dignity of every human person. Consequently, they all have equal status as rights, and cannot be ranked, a priori, in a hierarchical order. Application of this principle: In applying this principle, the question to ask is whether in the specific country some rights are regarded as more important than others to the detriment of the enjoyment of some human rights? For example, are civil and political rights equally respected and protected, as well as economic, social and cultural rights? Are other treaty rights – such as rights to equality under CEDAW and CERD – given the same priority as the rights guaranteed by the ICCPR and ICESCR? Inter-dependence and Inter-relatedness: The realization of one right often depends, wholly or in part, upon the realization of others. For instance, realization of the right to health may depend, in certain circumstances, on realization of the rights to education, information, food, participation etc. Application of this principle: development issues are not addressed in isolation, rather, by recognizing the interdependence of human rights, the analysis of any situation and the strategic response becomes more holistic and comprehensive.
Equality and Non-discrimination : All individuals are equal as human beings and by virtue of the inherent dignity of each human person. All human beings are entitled to their human rights without discrimination of any kind, such as race, colour, sex, age, language, religion, political or other opinion, national or social origin, disability, property, birth or other status as established by the human rights treaties and further interpreted by the human rights treaty bodies. For this reason, the advancement of the rights of both men and women on the basis of equality is an absolute requirement of international human rights law. Application of these principles: The question to ask is which are the sectors of society excluded or not enjoying equal status and thus deprived of exercising their human rights? Are there laws in the country that are discriminatory? Are there institutional, administrative or regulatory practices that are discriminatory against a particular group of the population? Is there a prevailing culture of “de facto” discrimination in the society? Are there national standards for positive discrimination or affirmative action recognized and applied?. It is important to keep in mind that the human rights treaties have identified particular discriminated and disadvantaged groups for focused attention: women (CEDAW), children (CRC), racial and ethnic minorities (CERD), and migrant workers (CMW). Structural discrimination: derives from historic processes of exclusion from access to the economic, political and institutional resources needed to live on an equal footing with the rest of the population
Participation and Inclusion: Every person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, economic, social, cultural and political development in which human rights and fundamental freedoms can be realized Application of this principle: The question to ask is whether marginalized and excluded people are able to participate freely in their own development and whether there are opportunities for participation? Do marginalized groups have access to information and the capacities to participate meaningfully And make specific proposals? are there spaces for public participation in the decision-making process? Are there parallel mechanisms disempowering the participation? Is there an active and independent civil society in the country that has the capacity to participate in such processes? Are civil society organizations representing the voice of the most marginalized and excluded? In the context of development cooperation it is necessary to ask whether the beneficiary target group is involved in the development and implementation, monitoring and evaluation of the programmes? The Meaning of Participation is Empowerment A HRBA entails the free, active and meaningful involvement and participation of individuals and social groups in the development process. The meaning of participation here is in the sense of “empowerment” of individuals and groups, which implies significant control over decision-making processes, rather than mere consultation or information sharing. Accordingly, in the context of development programming broad participation involving for example, children, women, minorities, rural communities and civil society organizations during the assessment and in the gathering of information can lead not only to valuable findings but to increased understanding by all members of society of what their roles are in claiming and fulfilling human rights. Furthermore, when there are spaces for people to examine problems together and agree on the causes, they are more likely to support the implementation of actions to resolve them. The role of managing effective participation Managing effective participation takes time and patience. Whether it takes place at the local project level or the national policy level, it is important to stress that the principal mechanism for participation should, as far as possible, be existing democratic structures. In some circumstances, establishing alternative framework for participation can undermine fledging democratic structures, create unwelcome parallel systems and, in the longer term, prove unsustainable. Nevertheless, in many cases, innovative arrangements may well be needed to facilitate the participation of marginalized groups. [1] [1] Human Rights, Health and Poverty Reduction Strategies, WHO publication, 2005 at p. 29.
Accountability and Rule of Law : States and other duty-bearers are answerable for the observance of human rights. In this regard, they have to comply with the legal norms and standards enshrined in human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator in accordance with the rules and procedures provided by law. Application of these principles: By voluntarily accepting the obligations of the international human rights instruments, and the corresponding domestic laws, the State and all its actors have a duty to respect, protect and fulfil human rights. Therefore, the question to ask is whether the relevant authorities at the State, local and community level comply with their duties? If not, what are the main obstacles? Are there mechanisms in place for those deprived of their rights and entitlements to seek appropriate redress? Is the Rule of Law respected and enforced in the country? Do the Civil Society Organizations have the capacity to mobilize the society in monitoring and evaluating the performance of institutions and public policies?
The Role of Constitutional Court or Similar Institution The existence or establishment of an independent institution, charged with the surveillance of laws adopted by the Parliament and to rule on their constitutionality and/or their conformity with international human rights norms and standards, is important in the context of an effective NHRPS. Ideally, such courts or institutions automatically review all adopted legislation. However, in many cases they review laws which have been challenged - either by the Government, the Parliament, or in some cases by a judge or members of the civil society. Prerogatives of a Constitutional Court can be mandated to the Supreme Court. Constitutional & Legal Frameworks Should: Be in conformity with international human rights norms, standards and principles Establish frameworks for policies for human rights protection Allow effective remedies for violations and abuses Promote participation, decision-making processes and cooperation with international and regional protection system
Courts in a wide range of countries and legal systems are applying international human rights principles and standards. For example, in 2002 the Constitutional Court of South Africa declared that the Government had breached its human rights obligations by failing to take reasonable measures (at affordable cost) to make wider provision of anti-retroviral medication to prevent mother-to-child transmission of HIV. This decision and the grass-roots campaign surrounding it have helped to save many lives. The successful outcomes in these cases are to a great extent attributable to the fact that litigation strategies were integrated within wider social mobilization processes.
![Topics ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)