|Realizing Human Rights for Poor People - Strategies for achieving the international development targets (DFID, 2000, 34 p.)|
|3. Experience to date|
3.1 This section summarises a range of key lessons learnt by the international community in seeking to promote human rights for poor people and goes on to consider the existing international institutions involved, including their strengths and weaknesses. This account is not intended to be comprehensive but to highlight key points which then feed through to the strategy recommendations in section 4.
Lesson one: There is a large gap between the aspirations contained in the principles of the Universal Declaration of Human Rights and the experiences of people living in poverty.
3.2 The renewed interest in the Universal Declaration of Human Rights and other human rights agreements coincides with greater awareness of the opportunities and risks associated with globalisation and the consequent necessity for different parts of the global community to act together on the basis of common values and principles.
3.3 Governments, multilateral organisations and civil society have responded to these changes through a succession of agreements setting out the basis for global action to promote the well being of all. These agreements have expanded upon existing human rights conventions. The 1993 World Conference on Human Rights at Vienna reaffirmed the importance of the Right to Development and linked this to the realisation of the rights of marginalised people such as migrant workers and refugees. At the 1994 Cairo International Conference on Population and Development, governments agreed on definitions of reproductive rights and standards of reproductive health provision that prioritised women's rights to make their own decisions about their bodies and fertility. The 1995 World Summit for Social Development agreed action on employment rights and rights to basic services as a means of addressing poverty. The 1995 Beijing Fourth World Conference on Women confirmed the importance of women's human rights and put the issue of violence against women firmly on the international agenda. These agreements helped create an international consensus around a set of values based on the core principles of human dignity, equality and social justice.
3.4 At both the international and national levels there has been insufficient focus on implementing these objectives and principles. Hence the value of the International Development Targets, which are drawn from the UN conferences and provide a measure of the effectiveness of action to realise particular social and economic rights. The targets provide a vehicle for focusing the resources and energies of international development efforts on the rights and needs of the poor. The primary responsibility for securing rights for all people, however, rests with individual governments and their citizens.
Lesson two: The progressive realisation of human rights requires resources and strategic planning for medium and long-term action.
3.5 Given the very different existing capacities of states, the agenda for the achievement of human rights is different in each country. All states, however, regardless of the level of economic development, are obliged to ensure respect for civil, political and subsistence rights for all, while all other economic and social rights must be progressively realised by policies and steps that are deliberate, concrete and targeted. Obligations to promote economic, social and cultural rights do not mean that states always have to provide free services. Governments are required to promote the social arrangements and policies that promote access to these rights through the market and the state12.
3.6 Initial progress can often be achieved with changes in institutional behaviour combined with modest investment but, overall, the realisation of human rights, including civil and political rights, is likely to require significant public resources. Actions to promote rights to security of the person, for example, include the development of police forces with the capacity to respect and protect human rights and to act as a service for the community. The progressive realisation of human rights requires policies of pro-poor growth, which increase the amount of resources available, as well as good governance which ensures that those resources are used efficiently.
3.7 Progressive realisation also requires the development of medium and long-term plans which set out realistic strategies and targets for action. Some governments, such as Uganda and the Andhra Pradesh State Government in India, have already worked towards the development of such plans. National government commitment to policy measures in terms of rights is a vehicle for increasing the accountability of state institutions to their citizens and, consequently, increasing the likelihood that government measures will be implemented. The participation of civil society in the development and monitoring of action plans and targets at national and local levels further increases the responsiveness of the state to the needs and perceptions of citizens. Transparent policy making and budgeting processes, which allow for proper scrutiny of expenditure priorities, are also important for checking whether the state is meeting its obligations towards all.
3.8 It is the role of the international community to support those governments that are taking seriously their obligations to ensure the progressive realisation of all rights and to encourage other governments to follow suit.
3.9 Article 28 of the Universal Declaration of Human Rights states that everyone is entitled to a social and international order so that their rights can be fully realised. The interpretation of this article is at the centre of the debate about the validity and content of the right to development. The right to development is defined in the Declaration on the Right to Development, adopted by the UN General Assembly in 1986. It is stated as "an inalienable human right by virtue of which every human person and all peoples are entitled to participate in and contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised". The Right to Development sets out the need for an environment of international co-operation which enables the development of all countries of the world. Development, however, also requires that national governments ensure that their efforts are effectively focused on actions which accelerate the elimination, of poverty. The Right to Development sets out the obligations of national governments to support the institutions and processes to ensure that this will happen.
Lesson three: There are problems with relying solely upon legal measures for the protection of human rights
3.10 The appropriate legal framework and mechanisms must be in place at national level if human rights are to be protected. But this is not enough on its own. Most litigation in developing countries involves either business or the propertied classes as litigants. In Ghana, for example, a major source of litigation relates to property disputes and customary law associated with cocoa production. In India, litigation patterns broadly reflect the concerns of the three economically dominant classes agrarian landholders, the urban salaried groups, and industrialists. In practice, legal services tend to reflect the preferences and needs of their most common users - mainly propertied or salaried classes.
3.11 Poor people are rarely able to use formal legal systems to pursue their claims. The costs of engaging a lawyer, the opportunity cost of time spent in court, and the general level of skill and education required to litigate, all serve as deterrents. Poor people may prefer, or have no choice but, to use traditional and customary systems. While such informal systems are often closer to their lives and concerns of poor people, they may be based on authority structures, practices and values which do not comply with human rights norms.
Lesson four: There is no single prescription for effective citizens' participation
3.12 The right to participation requires that people should have the opportunity to choose their level of involvement in decisions and actions which affect their lives. Participatory decision- making may reveal previously hidden problems and conflicts of interest. A rights approach does not provide easy solutions or prescribed answers. It forces us to recognise difficult issues and provides a framework for trying to resolve existing conflicts through processes and institutions which protect the interests of the poorest and most marginalised.
3.13 The concept of participation is shifting from beneficiary participation in state-delivered programmes to an understanding of participation, as a means of holding the state accountable. New means of strengthening this approach include participatory policy research, participatory budgeting and citizen monitoring and evaluation13.
3.14 It has been argued that the more power and financial control are devolved to lower levels of government, the greater the opportunity for people to be involved in the decisions which affect their lives on a daily basis. A number of countries have taken steps to encourage this process. In Bolivia, the Popular Participation Law has given indigenous Amerindian communities the de jure right to obtain constitutional recognition of their traditional village structures and to gain access to financial resources. There has been little systematic attempt to document the effectiveness of such legal measures. Some studies show that a gap exists between legal and institutional measures and practice on the ground, where decision-making is often dominated by powerful local elites. Zimbabwe's Village and Ward Committees have been criticised for being dominated by social elites who are able to use their position to capture resources intended for the poor14
3.15 The Government of Uganda is addressing the issue of local power elites by taking affirmative action to ensure that those marginalised on the basis of gender, age or disability are represented at different levels of the government system. In India, the 73rd and 74th Constitutional Amendments, which provided statutory status to Panchayati Raj Institutions, have mandated a community role in planning and development processes. The amendments create reserved seats for women as well as scheduled castes and scheduled tribes15. Decentralisation may increase the participation of marginalised people, but only if it takes place within the context of a political framework which promotes the equal rights of all people.
Lesson five: Clear standard setting and the concrete definition of entitlements enables poor people to claim rights.
3.16 Lessons learned from South Africa show that it is not enough to create formal state institutions that are responsible for promoting human rights. Accountability requires citizens' participation in standard setting, monitoring and evaluation of government performance. South Africa is one of the few countries in the world that has explicitly adopted a rights-based approach to development. The 1996 Bill of Rights includes economic and social rights relating to labour relations, access to land, housing, health care, food and water, social security and education. The equal status of all human rights in the Bill of Rights stands as recognition that formal civil and political freedoms on their own will not lead to an improvement in people's quality of life. The eradication of poverty becomes a legally binding responsibility for which the state is accountable. There are various ways in which accountability can be demanded from the state. These include monitoring policy and parliamentary processes, lobbying and advocacy, political pressure, interventions by the Human Rights and Gender Equality Commissions and court applications. Every year, the South African Human Rights Commission requires relevant organs of the state to provide it with information on the measures they have taken towards the realisation of the rights enshrined in the Constitution. Poverty hearings, however, show that many poor people do not know what their entitlements are, nor how to claim them. Participatory standard setting, monitoring and evaluation provide a means of informing people about their concrete entitlements, empowering people to claim them and increasing accountability.
3.17 Between 1975 and 1998, the Employment Guarantee Scheme in Maharashtra has provided an annual average of 132 million work days on 341, 661 separate work sites. Despite its many problems, the scheme continues to provide relatively cost effective and reliable income support for significant sections of the rural poor of Maharashtra. A major reason for its success has been that there are legal rights to employment. These rights can be pursued through the courts, have a great deal of moral force and have provided the motivation for political mobilisation to ensure that people can claim their well-understood entitlements to a given number of days employment16.
Lesson six: Development is a political process.
3.18 In sub-Saharan Africa and Latin America, there are long histories of poor and oppressed people organising to claim their rights. In India today, there are a number of groups who are working to protect the entitlements of women, children, Scheduled Tribes and Scheduled Castes. Their actions show that development involves a process of political struggle over priorities and access to resources. Official donor agencies have found this difficult and challenging. A human rights perspective on development reveals these competing claims and legitimises excluded peoples' efforts to strengthen their voice in the political process.
Lesson seven: The voices of the excluded can be translated into concrete responses from government
3.19 Poor and powerless people may be excluded from popular human rights movements and focused effort is required to protect and promote their human rights. Lessons from Bangladesh show that there are possibilities to do this. Nari Pokkho, a women's human rights organisation, has been working within the framework of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to support those women most vulnerable to discrimination and abuse.17 These include women divorced as a result of reproductive health problems, women disfigured from acid attacks and sex workers. A three-stage strategy helps women create a voice that counts, then demand answers from state institutions such as the police and health services, and to be empowered to demand change.
Lesson eight: There is increasing scope to translate human rights into national legislation and policy implementation
3.20 There are increasing opportunities for donors to work with governments to promote human rights as part of the shift towards action to influence state-led policies and programmes. As they collaborate together to support locally led development efforts, individual donors are now increasingly likely to play a role in coordinated action to shape sector-wide programmes in, for example, health or education provision.
3.21 The human rights framework can provide a starting point of common ground for negotiations between governments and donors. This is through a process which assists the understanding of the different factors which affect the realisation of rights and of the specific priority actions which need to be taken in each country in order to promote them. Donor organisations have worked with the Ugandan government, for example, to translate the constitutionally recognised right to education into policies and programmes which promote universal access to primary school.
Lesson nine: The promotion of human rights requires an understanding of the challenges facing governments.
3.22 Progress in the realisation of human rights will vary. These variations do not simply reflect differences in resources. In developed countries, racism and other forms of discrimination persist and not all people enjoy their economic, social and cultural rights. UN human rights mechanisms monitor human rights progress in all countries, rich and poor. The application of the same standards to all countries is one of the great strengths of the human rights system and has helped to increase acceptance of human rights norms among poorer governments. The recognition by western governments that all rights are interdependent has also been an important factor in this process. The governments of poorer countries, however, continue to have concerns about the use of human rights as a means of increasing conditionality or as weapons in international trade negotiations. The international community must learn how to secure greater progress in realising human rights for poor people in ways which recognise these concerns.
Lesson ten: Non-state parties have responsibilities to respect human rights.
3.23 While governments hold primary responsibility for the well-being of their citizens, there are increasing numbers of non-state actors which shape the opportunities and lives of people in developing countries. In the private sector these range from national or local domestic businesses to foreign direct investors, retailers sourcing manufacturing in poorer countries and international companies engaged in extractive natural resource industries or in service provision. Business plays a fundamental role in achieving greater economic well-being. There is a clear need to maximise its positive impact to ensure business activities do not violate human rights. Some of the larger multinationals are already working towards best practice through codes of conduct. Legal regulation is complex when such organisations operate across the state boundaries which form the basis of legal responsibilities for human rights.
3.24 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights18 indicate that it is the responsibility of states to ensure that transnational corporations do not deprive people of their human rights. Some international authorities, such as the Inter American Court of Human Rights, have incorporated this guidance into their rulings but, to date, there have been few successful cases of states being held legally responsible for human rights violations perpetrated by enterprises operating within their national borders.
3.25 It has proved equally difficult to hold transnational corporations themselves legally accountable for alleged human rights violations because company headquarters are often able to separate themselves, and their responsibilities, from subsidiaries operating overseas19.
3.26 Other avenues for ensuring corporate responsibility include the adoption of voluntary codes of conduct. Large retailers in the North and some of the companies concerned with extractive industries (oil, metals etc) have developed codes of conduct, which set out their commitment to employees' rights and the human rights and environment of the people in the communities in which they operate. To be effective, the implementation of these codes has to be monitored by an independent organisation. It also requires the participation of primary stakeholders, including trade unions and other civil society representatives, in evaluation processes.
3.27 Action to highlight the responsibilities of transnational corporations has sometimes overshadowed the often far worse labour conditions in companies producing for the domestic market. It is the clear responsibility of states to incorporate international labour standards into national legislation and devise systems for enforcement in order to ensure that the domestic sector is operating within a legal framework which protects the human rights of all citizens.
3.28 Civil society and trade union action can promote the responsibility of the private sector at both national and international levels. Consumer pressure, however, has sometimes resulted in the loss of employment for the most vulnerable employees, including women and children, rather than improvements in their working conditions20.
3.29 Only a minority of development agencies are committed to integrating human rights into development practice. Along with DFID, Swedish SIDA and the Australian Aid agency have adopted elements of a rights based approach21. Nevertheless, the trend is positive and there is a growing convergence of ideas and experience.
3.30 The funds and programmes and specialised agencies of the UN have the task of helping to deliver the global, normative framework for development set down by the various UN conferences and conventions. The Office of the High Commissioner for Human Rights (OHCR) is the central UN organisation with responsibility for promoting the universal enjoyment of all human rights.22 The OHCHR needs technical as well as financial support to ensure that it is able to effectively carry out its role. It is working to enhance its ability to mainstream human rights across the UN system, and to strengthen its capacity to promote human rights in member states. It should provide more guidance on how governments can implement their human rights obligations in relation to their available resources. The OHCHR and the Treaty Monitoring Bodies need also to improve their monitoring of human rights progress, as discussed below in Section Six. There is, more generally, a need to bring a poverty focus to the work of the Treaty Monitoring Bodies and commissions and the international organisations, such as the International Labour Organisation, which are responsible for setting standards.
3.31 The International Labour Organisation (ILO) is the United Nations agency which deals with employment, industrial relations and labour market issues. It aims to improve standards and conditions of work, and to encourage productive employment throughout the world. In 1998, it adopted the Declaration on Fundamental Principles and Rights at Work, confirming the importance of the core labour standards as human rights. The ILO has a particularly important role to play in reducing child labour. To do this, it needs to strengthen its poverty and gender focus and to collaborate with UNICEF and other agencies to obtain maximum impact.
3.32 Although the smallest of the UN funds, the United Nations Development Fund for Women (UNIFEM), has been successful in promoting gender equality work in the UN23, other funds and programmes and specialised agencies have performed in a rather mixed way, and there is considerable scope for improvement. The United Nations Development Programme (UNDP), for example, is beginning to shift its perspective. It jointly hosted with OHCHR a major conference in Oslo in 1998 and has made human rights the subject of its 2000 Human Development Report.
3.33 Among United Nations funds and programmes, such as UNICEF and UNDP, commitment at headquarters is not always reflected at the national or local level of the organisations. Nevertheless, the trends are favourable. UNICEF has taken advantage of the tenth anniversary of the Convention on the Rights of the Child to commit the agency to integrate a human rights approach throughout its programmes. The UN reform programme offers important opportunities, particularly in seeking to establish more integrated country programmes and sharing of analysis and expertise, and the establishment of a common framework for assessment and progress measurement. To focus effectively on the rights of excluded people, these agencies will need to systematically incorporate social analysis into their mainstream work.
3.34 The Commonwealth Secretariat plays an important role, and is particularly well placed to help member governments address controversial and politically sensitive issues. It has made human rights a significant issue and could usefully do more. The Commonwealth as an organisation also provides an important framework for strengthening global consensus around key economic and social policy issues, bridging the divide between rich and poor countries.
3.35 The European Union is committed to promoting the integration of human rights into all development work. The EU has recently developed a set of guidelines on promoting the rights of minorities and indigenous people. The work of the Committee on Human Rights and Democracy, however, is largely focused on the promotion of civil and political rights, and EC implementation in all areas of development is weak.
3.36 The international financial institutions, most notably the World Bank, but also the African Development Bank, Asian Development Bank, Intel-American Development Bank and the International Monetary Fund, command the biggest share of financial resources earmarked for development purposes. In the past, all of these have been weak in their approach to human rights concerns. This situation is beginning to change as new knowledge is emerging of the direct links between economic development, inequality and empowerment. The development banks have also shown more willingness during the 1990s to improve the skills mix in their staffing to help gain a better understanding of the nature of discrimination and patterns of social exclusion.
3.37 The World Bank's 2000 World Development Report has been written on the basis of extensive consultation of civil society in poor countries. The content of the report reflects poor people's concerns for a broad range of rights, including rights to participation, information and security.
3.38 There is an ongoing debate between the Bank and its shareholders about the extent to which the Bank should be addressing human rights concerns through its lending programmes. The Articles, which define the Bank's mandate, state that in all its decisions the Bank should only take into account economic considerations. This is currently interpreted to mean that some aspects of human rights fall outside its mandate. Others argue that as a member of the United Nations family, the Bank should not be selective in its concerns and that the Articles do not prevent the Bank from endorsing the indivisibility of human rights. However, where the Bank has shown support for human rights issues such as core labour standards, there has been resistance from some poorer country governments who fear that this might lead to extra conditionality. The Bank's support for the development of nationally owned poverty reduction strategies, as the basis for obtaining debt relief and loans, provides a potential mechanism for governments to identify ways of fulfilling their human rights obligations without having external conditions imposed on them.
12 Human Development Report 2000
13 Gaventa, J. and Vilderrama, C. Participation, Citizenship and Local Government. Background note prepared for workshop Strengthening participation in local governance IDS, June 1999.
14 Mw Makumbe, John, Participatory Development. The Case of Zimbabwe. Harare: University of Zimbabwe Publications 1995.
15 Strengthening participation in local governance - the use of participatory methods. SEARCH Training Center, Bangalore. March 16 - 19, 1999.
16 Politics and Poverty. A Background paper for the WDR 2000/1. Mick Moore and James Putzel, September 1999
17 Huq, S. Revisioning social policy for the 21st Century: IDS Conference, October 1999.
18 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights were agreed at a meeting of legal experts, invited by the International Commission of Jurists, in Maastricht, 22-26 January 1997. The Guidelines have been internationally accepted as providing authoritative advice on determining violations of economic, social and cultural rights. Paragraph 18 states that, "The obligation to protect include the State's responsibility to ensure that private entities or individuals. including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors."
19 Richard Meeran. Liability of Multinational Corporations: A Critical Stage. Paper for the British Institute of International and Comparative Law seminar on corporate responsibility, 1999.
20 DFID. Helping not hurting children. 1999.
21 Human Development Report 2000.
22 See the DFID Institutional Strategy Paper for the OHCHR for further details.
23 See the DFID Institutional Strategy Paper for UNIFEM.