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Amidst
such a season of despondency, one may well be skeptical as to
what difference a human rights-based approach to development
might make. Misconceptions abound regarding human rights and
some clarifications are well in order.
Human rights are indeed legal rights:
enshrined in the Universal Declaration of Human Rights; various
human rights Covenants, Conventions, Treaties and Declarations;
Regional Charters; National Constitutions; and laws. But human
rights are much more than legal rights. Human rights provide
the values, principles and standards essential to safeguard
that most precious of all rights - the right to be human. Development,
we are being constantly reminded, is about the promotion of
human well-being. Human rights are central to human well-being:
- enjoyment of
human rights makes the difference between being and just merely
existing;
- they safeguard
both human dignity and human identity (individual and collective)
and thus bring purpose and worth to existence;
- they safeguard
physical integrity of the person and human security of all
peoples;
- freedom from fear
and freedom from want constitute the minimal essential conditions
of being for individuals, communities and peoples;
- freedom from
discrimination forms the essential basis for social interaction;
- freedom of thought,
speech and expression are essential to human growth, development
and fulfillment.
Thus
it is no exaggeration to claim that human rights define and
defend human well-being and are, therefore, central to development,
as indeed reiterated in the UN Charter, the Universal Declaration
on Human Rights, the Covenant on Economic, Social and Cultural
Rights, the Covenant on Civil and Political Rights, the 1986
General Assembly Declaration on the Right to Development and
numerous UN global conferences.
The Declaration on the Right to
Development (reaffirmed, by consensus, at the UN Global Conferences
on Development) guarantees several key rights: the right to
economic, social and political development in which all human
rights can be realized; the right to fair distribution of the
benefits of development; the right to nondiscrimination in development,
of any kind, based on: race, colour, sex, language, religion,
political or other opinion, national or social origin, property,
birth or other status.
The four principles for social
policy, drawn up by the staff of the World Bank, can all be
derived from international human rights law:
| 1 |
Universal
access to basic social services can be derived from the
right to an adequate standard of living contained in Article
11 of the Covenant for Economic, Social and Cultural Rights
(CESCR)
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| 2 |
Secure
and sustainable livelihoods and decent working conditions
for all can be derived from the right to work and related
rights contained in Articles 6, 7 & 8 of the CESCR.
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| 3 |
Systems
of social protection can be derived from the right to social
security and social insurance contained in Article 9 of
the CESCR.
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| 4 |
Social
integration, or preferably social inclusion, pluralism and
diversity, can be derived from minority rights, cultural
rights and the right to nondiscrimination contained in several
human rights conventions. |
But the human rights conventions
offer much more, as well, and place great importance on three
core rights: the right to participation; nondiscrimination and
freedom from exclusion; and the right to accountability and
effective remedies.
A human rights-based approach to development
The value added of a “rights approach”
to a “principles approach” is considerable. For each
human right there are correlative duties. These are duties to
respect, protect, promote and fulfill the right. Some of these
duties are immediate while others are to be undertaken progressively.
Some of these duties are positive (relating to acts of commission)
while others are negative (acts of omission). All of these duties
cast upon States but some of these duties relate to non-State
actors (e.g. violence against women; rape as a crime against
humanity). Some are duties of conduct; others are duties of
result. But all of these duties are susceptible of monitoring
and enforcement – especially at the national level. Indeed,
the process of incorporating international human rights into
national legal systems involves the process of increasingly
making these rights justiciable (enforceable in the courts of
law) and providing remedies for victims of human rights abuse
and sanctions for the perpetrators of such human rights abuses.
Moreover, all the core human rights
conventions set up a process of periodic reporting by State
Parties and of monitoring of compliance with treaty obligations
by special, expert treaty-bodies established for this purpose,
under the treaty. These monitoring procedures enable the monitoring,
both of human rights violations as well as the monitoring of
the progressive realization of the right.
The act of ratifying a human rights
treaty is an act of exercise of State sovereignty. As a result,
ensuring State compliance with the treaty obligations it has
voluntarily accepted can hardly be termed conditionality. The
unilateral application of double standards in human rights or
the selective enforcement of such standards is indeed conditionality.
But encouraging or indeed insisting that a State comply with
its human rights treaty obligations is not conditionality. This
is an important contribution that adopting a human rights-based
approach to development offers.
The role of NGOs
Human rights NGOs and civil society
organizations have played vital roles in the promotion and defence
of human rights. They have:
- participated
in the drafting of human rights instruments and ensured that
the standards set are relevant to those whom they are intended
to benefit;
- promoted awareness
through human rights education and provided support for human
rights assertion through legal services and other forms of
support;
- monitored and
publicized human rights violations and organized “the
international mobilization of shame’ to secure redress
for victims and imposition of sanctions against violators
(e.g. bringing Pinochet to justice);
- mobilized campaigns
to stop undesirable international actions (e.g. Multilateral
Agreement on Investments);
- mobilized to
promote desirable international actions (e.g. international
landmines treaty);
- contributed enormously
to drafting of the declarations and action programmes of the
UN global conferences; and
- played invaluable
roles in monitoring the implementation of such conference
commitments and action plans, and in monitoring the progressive
realization of human rights under the human rights conventions,
especially the Covenant of Economic, Social and Cultural Rights.
In
the present global crisis, an effective partnership needs to
be forged between the institutions of global governance and
NGOs and civil society. Economic globalization has been achieved
through a welter of promiscuous privatization and debauchery
of deregulation. This has brought about a global erosion of
the rule of law – relating to the environment, to workers
and to human rights of children, women and men.
Human rights NGOs and civil society organizations are mobilizing
twin strategies: securing the accountability and liability of
all development actors including corporations (both national
and transnational) and international institutions of trade,
investment, finance and development. The approach of principles,
policies and practices must be reinforced by an approach of
rights, responsibilities and redress; realizing the principle
of subsidiarity which requires that “actions be taken as
close as possible to the level at which they impact”. This
principle constitutes one of the most valuable contributions
from the Rio Conference on Environment and Development and without
its realization, participation will not move from the realm
of rhetoric to reality.
The approach of developing principles
and good practices in social policy for development by the World
Bank and the UN development system is a welcome, if belated,
first step. But care must be taken to ensure that “good”
does not become the enemy of the “best”. The application
of universal principles must not preclude either of two complementary
processes of action: that of “thinking globally and acting
locally”, as well as in an increasingly globalized world,
that of “thinking locally and acting globally”.
Finally, it is imperative to move
from rhetoric to reality, from promise to performance. This
requires both monitoring and enforcement – tasks which
those working with human rights are all too familiar with. The
human rights approach is one of exposing the credibility gap
and the legitimacy gap with a view to closing the realization
gap. The ten Summit Commitments are wonderful. But they are
commitments and not commandments – and therein lies the
rub. We need to move from commitment to achievement if Copenhagen
is to indeed be a “Summit of Hope”. Otherwise, we
will be reminded that the Common Law definition of fraud is
“a promise made with no intention to fulfil”.
Clarence
Dias is a legal activist from Bombay, India, working to make
law a resource for the protection of the environment and the
promotion of human rights of communities and peoples in the
developing world. He is President of the International Center
for Law in Development, 777 UN Plaza, Suite 7E, New York, NY
10017. Fax: 1-212-370-9844
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