human rights & development

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Human Rights and Development: aComment on Challenges and Opportunities

from a Legal Perspective*SIOBHAN MCINERNEY-LANKFORD

Abstract

Human rights and development continue to reflect a separate evolution. This article

explores challenges which characterize the relationship between human rights and

development from a legal perspective suggesting reasons why the tensions and dis-

connects endure. It makes an obvious, but nevertheless underappreciated point:

human rights are the subject of binding international legal obligations and their rel-

evance to development can be understood in light of this. The first part of thisarticle addresses the challenges of integrating human rights in development and the

divergences of discourse and policy frameworks. The consequences of these diver-

gences are examined, including a lack of prominence for legal duties for human

rights in development, the absence of a normative baseline against which to check

development processes and outcomes, an overall lack of policy coherence and a

potential undermining of human rights accountability. The article concludes by high-

lighting opportunities extant in the international human rights law framework. The

legal challenges and opportunities are viewed as interconnected: obstacles confronted

in integrating human rights in development may be to be rooted in a neglect of the

normative and legal dimensions of human rights, which in turn point to opportunitiesfor greater convergence and coherence around international legal frameworks.

Keywords: development; human rights; international law; obligations;policy; treaties

Introduction

Although recognition of some link between human rights and developmentis relatively well supported,1 there are ways in which the two persist in paral-

lel and continue to reflect a separate evolution (UNDP, 2000). The relation-ship between human rights and development today is arguably defined moreby its distinctions and disconnects than by its points of convergence, despitesubstantial evidence of the potential for mutual reinforcement (see, forexample, Robinson and Alston 2005: 11 18). This article addresses theinterface of human rights and development, focusing especially on the inte-gration of human rights into development (although the reverse is alluded to

* This article reflects the personal views of the author and should not be attributed to the

World Bank.1 An early linkage can be found in the recognition of the right to development, see for

example, Proclamation of Tehran (1968) http://www.unhchr.ch/html/menu3/b/b_tehern.

htm. See also the Declaration on the Right to Development, Resolution 41/117 / 128

(4 December 1986).

Journal of Human Rights Practice Vol 1 | Number 1 | March 2009 | pp. 51 82 DOI:10.1093/jhuman/hun005# The Author (2009). Published by Oxford University Press. All rights reserved.

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in parts). It looks at the uneven recognition of human rights in development,particularly those which are directly relevant to or affected by developmentprocesses and outcomes. It aims to explore the potential relevance of humanrights obligations as an overlooked but potentially worthwhile area toexplore: in this, the focus is on obligations under treaties to which stateshave voluntarily acceded. As such, therefore, it sets out the parameters of thelegal and policy questions to invite further exploration of the opportunitiesextant in the legal dimensions of human rights discourse and the potentialfor their future application in development.

Whatever the view taken of how closely human rights and development canand should be integrated, there can be no doubt that the two overlap substan-tially and a number of international frameworks such as those discussed in thisarticle have begun to recognize the connections Sano, 2006. A premise of thisarticle is that human rights could be integrated more systemically into develop-ment policy and practice, for three reasons. (1) They are intrinsicallyvaluablein aiming to protect human dignity (e.g. jus cogens) and may be (negatively)affected by development so that development policy should identify ways to ata minimum meet the do no harm threshold. (2) They are also instrumentallyuseful to enhance development processes, address certain types of social risk,ensure accountability (Darrow and Tomas 2005), and ultimately secure moreequitable and sustainable development outcomes. (3) As a matter ofpublicinternational law, human rights treaty obligations are legally binding Statesparties, and under custom bind all states other than persistent objectors: assuch they should be respected in all contexts, including development.

While the majority of development policies and frameworks incorporatehuman rights concerns, many do so only implicitly: as a result, there may bevalue in examining the use of explicit human rights language and reliance onhuman rights obligations under international law. This article focuses onhuman rights as the subjects of binding international legal obligations, and athorough a review of development policy, suggests that despite some incorpor-ation of human rights in development policies, greater reliance on humanrightslawmight provide one effective way to promote a more systematic, expli-cit and coherent approach to the integration of human rights in development.Human rights law offers one way of bridging the divergence between humanrights and development,2 thereby enhancing coherence and human rightsaccountability, highlighting potential risk and preventing human rights harm.

The Relationship Between Human Rights and Development

Convergence and divergence

The parameters of the overlap between human rights and development canbe described as occurring at three different levels: (1) factual or substantive

2 For an analogous discussion linking trade and labor standards, see Barry and Reddy (2006:

548).

Siobhan McInerney-Lankford 52

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overlap, (2) convergent principles, and (3) obligations.3 This facilitates amore systematic approach to the interface between the two, and a more pur-poseful and transparent approach to the integration of human rights indevelopment.

At a factual or substantive level, one can identify a confluence of humanrights and development in the expanding range of functions, activities, andpolicies of development agencies and international financial institutions(IFIs) which overlap with the material provisions of human rights treaties,particularly those of the International Covenant on Economic, Social andCultural Rights (ICESCR) but also those of the European Social Charter(1961), the American Convention on Human Rights (1969), the Protocol ofSan Salvador (1988), the African Charter of Human and Peoples Rights(1981), and the European Union (EU) Charter of Fundamental Rights(2001). Development projects and programmes now cover the gamut ofsocial and human development, much of which bear a direct relationship tocore economic and social rights, and connect to a number of civil and politicalrights. Development institutions conduct a broad range of operations in thefields of health, education, labour and social security, children and youth, andfood. They increasingly promote governance programs, anti-corruption strat-egies, as well as justice reform and rule of law activities. However, while thereis much substantive congruence, this factual overlap does not automaticallyalign with all the objectives of such operations and those of correspondinghuman rights treaties. Such activities may not be assumed to reflect orpromote the realization of human rights, since few reference or mainstreamhuman rights in their designs and objectives. Moreover, such activities willtypically not address any impact on human rights assessing whether they infact support human rights or result in human rights harm.

But the convergence occurs also in less fortuitous ways there is a docu-mented overlap between human rights and development evident in the prin-ciples that are now prominent in the mainstream of development policy.Principles like participation and consultation,4 inclusion, cohesion, goodgovernance, accountability and equality or equity, are well established indevelopment discourse, but they also constitute the tenets of a rights-basedapproach to development with roots in human rights philosophy or conven-tions. This convergence and proximity underscores the question of whatvalue-added human rights discourse brings (Sano, 2006), and that theanswer lies in the realm of obligations.

Equality provides a vivid example. Equality lies at the heart of the inter-national human rights framework, underpinning entire instruments like the

3 This is the typology used in McInerney-Lankford (2007: 459).

4 Participation and consultation are central to the policies and practice of many development

agencies; see e.g. the World Bank Operational Policies on Environmental Assessment (OP

4.01), Indigenous Peoples (OP 4.20), Forests (OP 4.36) and Cultural Property (OP 4.11).

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the obligations or duties may have their source in the three classic sources ofinternational law: treaties, custom (including principles of jus cogens7 orobligationserga omnes8) and general principles of law.

While the overlaps at the first and second levels have been criticized asmission creep or rhetorical repackaging respectively (Uvin, 2004: 47), thesame cannot be said of the third (obligations), which concerns a source ofhuman rights that is independently undertaken and legally binding. In con-clusion therefore, the relationship at a factual level evidences substantialoverlap; at the level of principles, a certain compatibility and convergence,but at the level of obligations or duty, something more like divergence.

Reasons for the enduring disconnects and tensions

A number of reasons can be put forward to explain the enduring disconnectsbetween human rights and development despite the evidence of convergence.

Legal or mandate constraints

For many development agencies human rights are understood to lie outsidethe legally established mandates of development institutions.9 The views areoften based on particular interpretations of provisions on political prohibi-tion in the constitutive instruments of development agencies.10 They assertthat human rights are inherently political, and therefore, outside the per-

mitted realm of considerations for such institutions, as well as outside theirestablished mandate and competence. These views will sometimes becoupled with arguments that human rights are properly the purview of moreopenly political entities whose mandates provide explicitly for human rights.The narrow definition of institutional mandates may also rest on a vision ofthe specificity of tasks in a global context and the correct distribution ofresponsibility between international institutions.

7 Jus cogens rules are those peremptory norms from which no derogation is permitted. They

protect the overriding interests and values of the international community of states, and due

to their affinity with natural law, are understood to include human rights.

8 The International Court of Justice (ICJ) recognized obligationserga omnesin theBarcelona

Traction, Light and Power Co. Ltd. Case, [1970] I.C.J. Rep. 3. There are certain inter-

national obligations which, by virtue of the importance of the rights involved, all states can

be held to have a legal interest in protecting. These include rules concerning the basic rights

of the human person.

9 See Articles III, Section 5, and Article IV, Section 10 of the International Bank for

Reconstruction and Development (IBRD) Articles of Agreement; and Shihata (1991: 761).

10 See Shihata (2000: 219). Under such a view, human rights considerations fall outside pro-

visions barring political considerations and amount to interference in the domestic affairsof members. One may argue that such provisions should be interpreted in light of contem-

porary international law, which balances a protection of sovereignty with respect for prin-

ciples that underpin the international legal order and the Charter of the United Nations,

including human rights.


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Political resistance and value-based objections

Beyond the formal legal constraints, or particular definitions of mandates,human rights is not a concept around which there can be said to be consen-sus, and at an international level it is one of inescapable political sensitivity,with states fiercely protective of their human rights records and resistant torankings, assessments and censure. For these reasons, human rights is widelyperceived as a controversial subject in development agencies and IFIs, andviewed cautiously because of its divisive potential, including at the level ofgoverning bodies. There may be widely differing viewpoints betweenmembers from the North and the South, or between donors and partners;but there may equally be variances between donors, and between partners.Some resist a current broadened understanding of human rights (possiblyfavouring particular domestic definitions or regional understandings, or anemphasis on one or other category of right). Others resist being dictated toon human rights through the lending instruments or development assistancegenerally, and many oppose what they perceive as double standards andhypocrisy when the dictates come from countries with economic powerrather than exemplary human rights records. It is also worth acknowledgingthe disproportionate impact human rights-related conditionalities might haveon certain member countries that is, beyond the disproportionate impactson borrowing countries (with no concomitant pressure on lenders), certaincountries may be able to resist such human rights oversight by refusing toborrow from institutions that consider or impose human rights standards,while others, usually the poorest and least powerful, may not have thatfreedom.

Disciplines and approaches

The practice and policy that has evolved around development and humanrights is governed by divergent discourses at least in part due to the predomi-nance in each of different disciplines and methodologies (see Seymour andPincus, 2008). At some fundamental level therefore, there is a perceivedincompatibility between the approaches and language of each, making cohe-sion between them very challenging. Development has traditionally been thepurview of economists, social scientists and sectoral or technical experts,while the human rights framework is predicated towards legal norms andrules, which have been largely drafted and interpreted by lawyers.Development institutions tend to rely on evidence-based approaches, whilehuman rights organs operate from normative precepts. These may be difficultto reconcile, just as the empirical case for respecting and protecting humanrights may be difficult to prove and whatever empirical evidence exists isarguably equivocal or supportive of far narrower links (see, for example,Banerji and Ghanem, 1997; Barro, 1997; Isham et al., 1997). This hasresulted in different discourses based on distinct disciplines, traditions andinstitutional cultures which enjoy no obvious affinity. Thus, development


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practitioners may approach issues in programmatic, forward-looking terms,predicated towards practical solutions, trade-offs and the rendering of techni-cal assistance, whether at a country, sector or project level. Human rightspractitioners likely start from a more explicitly normative baseline driven byprinciples like indivisibility and universality. They possibly adopt a retrospec-tive outlook, from which responsibility for non-realization of human rightsmay be assigned and where poverty is viewed as a denial, or even violationof human rights.

Practical problems of bridging these disciplines arise in the absence of asolid evidence base demonstrating how rights-based approaches have suc-ceeded, and where or how they have been successful in generating more sus-tainable development. This may link to practical difficulties of assessing,measuring and mainstreaming human rights, or to subtle forms of skepticismbased on cultural relativism and the difficulties of identifying and promotinghuman rights norms in international contexts. There are also practical con-siderations related to how development institutions do business and theways in which human rights considerations, particularly where indexed tohuman rights legal standards, could be perceived as effecting an obstacle todisbursement and a burden on operations. Some development institutionsmay simply not have clear operational entry points in their policies andinstruments to mainstream or integrate human rights considerations. This iscompounded by the absence of operational entry points in their policies andinstruments, and the existence of certain ingrained institutional imperativesand internal incentive structures.

Institutional arrangements

Cleavages in disciplines and approaches are sometimes reflected in insti-tutional arrangements or the structures within governments. Human rightsand development cooperation may be handled by separate teams within min-istries of foreign affairs, or development cooperation may be managed by aseparate aid agencies altogether. In the field this may be reflected in indivi-

dual donors having human rights and policy dialogue conducted by theirembassies and development programs by their development agencies.Similarly, participation in IFIs, multilaterals and development initiatives maybe dealt with separately from engagement with international human rightsbodies. Even within the United Nations, this is manifest in human rightsmatters related to treaties being separate from those related to theMillennium Development Goals (MDGs) or the right to development11 or inthe UN General Assembly, with second and third standing committees hand-ling sustainable development and human rights, respectively. Within develop-

ment institutions, human rights may be recognized as an issue of

11 For example, the Office of the High Commissioner for Human Rights (OHCHR) is orga-

nized in four different branches, under which development and treaties are separate.


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cross-cutting relevance, but may lack a dedicated institutional home and staffresponsible exclusively for it.

Consequences of the divergent discourse of development and human

rights

The consequences of this varied relationship between human rights anddevelopment is an uneven recognition of human rights in development dis-course, policy and operational frameworks and an underemphasizing oftheir binding nature. This may also result in lost opportunities for humanrights treaties to positively inform development processes and programmingand provide relevant input where specific rights are in issue in the planningor assessment of particular activities.

There may therefore be room for an approach that recognizes the mutual rel-evance of human rights to development activities, principles and policies, butthat also recognizes the limits of the overlap. Certain human rights may be rel-evant to particular development processes and activities, but the relevancemay not be generalized, nor involve all human rights. Moreover, humanrights-related activities in development are not necessarily equivalent to realiz-ing human rights and to argue for any axiomatic link between the two may beboth inaccurate and unhelpful to both areas. Therefore, some clarity about thenature and extent of the relevance of human rights at the above-mentioned

three levels (factual or substantive, converging principles, obligations),especially the third, might facilitate a more meaningful engagement, and ulti-mately encourage a more systematic and coherent approach to the integrationof human rights in development. Recognition of the relevance of human rightsobligations might ensure, to some extent, the place of human rights in devel-opment as rights for which states have assumed responsibility.

Development Frameworks and the Incorporation of Human Rights

Development policy frameworks convergence and divergence

transposed

The uneven relationship between human rights and development describedabove, as well as the deeply entrenched reasons for its particular disconnectsrender the process of integrating human rights in development policyextremely difficult.12 While there are signs of greater recognition of thelegal dimensions of human rights in development (Danino, 2006: 30), thetrend across policies of development agencies continues to evidence aseparability. The tendency even among bridging policies is to integratehuman rights in principles, perspectives or considerations rather than

obligations, and to leave them without specific anchorage in laws and

12 Organisation for Economic Co-operation and Development (OECD), Development

Assistance Committee (DAC) Human Rights Task Team (2006: 69 89). Also see the

earlier, Hemlich and Borghese (1998).


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treaties.13 Even policies that make reference to human rights instrumentstend to do so in a preambular way, or as framing propositions to identify thegeneral sources of human rights rather than as positive binding legal obli-gations under international law. In this way, human rights may become partof the general policy narrative, but rarely are the legal ramifications of specificinstruments articulated in development policies that reference them, potentiallylimiting the degree to which human rights can in fact be integrated.

Frameworks that evidence the separation of development and human

rights

The following discussion traces the connection between human rights anddevelopment at a policy level, identifying an evolution in the inclusion of

legal dimensions in development policy frameworks and arguing that astronger the legal dimension correlates with a more systematic integration ofhuman rights in development can be.

Millennium Development Goals

At a macro level, development policies of multilaterals are governed by pol-itical goals and resultant policy frameworks that do not mention humanrights or the relevant human rights treaty frameworks. The MillenniumDevelopment Goals (MDGs)14 are time-bound development targets that

emanate from the 2000 UN Millennium Summit, along with the MillenniumDeclaration.15 The MDGs exemplify a framework in which, despite theirdeep relevance to each Goal, specific human rights are not mentioned in theGoals or their targets; this is to be contrasted with the provisions of theMillennium Declaration which contain multiple references to humanrights.16 Global Monitoring17 is a monitoring framework that focuses onhow the world is doing in implementing the policies and actions for achiev-ing the MDGs and related development outcomes. It is a framework foraccountability in global development policy,18 but despite its stated purpose

13 See, for example, UN Development Programme (UNDP) (2001: 2) describing anrights-based approach (RBA) as one that is based on the values, standards and principles

of the UN Charter and Universal Declaration of Human Rights (UDHR) and subsequently

legally binding human rights conventions.

14 http://www.un.org/millenniumgoals/

15 http://www.un.org/millennium/

16 OHCHR (2008a, b: 3) traces the links between human rights and the MDGs but also

underscores the broad disconnect between the two frameworks. Also see Alston (2005).

17 Global Monitoring emanated from a request of the Development Committee at the 2002

Bank-Fund Annual Meetings which called for determined implementation of the agreed

strategies and partnerships for reaching the MDGs and requested a framework by which tomonitor progress on the underlying policies and actions while recognizing the role of the

UN in MDG monitoring.

18 Another relevant framework that predates the MDGs, is the Comprehensive Development

Framework, available at http://go.worldbank.org/O3CN35INY0.


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as a framework for accountability it does not expressly refer to rights or obli-gations. The foregoing illustrates how in the view of some, human rightshave not yet played a significant role in supporting and influencingMDGs-based development planning (OHCHR 2008: vii).

At an institutional level, development agencies and IFIs have developedframeworks like Global Monitoring19 to advance the attainment of theMDGs. Others have developed polices to guide their work on poverty tomeet the Goals; examples include the World Banks Operational Policy 1.00on Poverty Reduction,20 the United Nations Core Strategy on MDGs21 orthe Asian Development Banks Strategy 2020.22 Each reflects the disconnectbetween development policy and human rights frameworks, with few, if any,references to human rights, even those of direct relevance, and no expresslinkage to human rights treaties or obligations.

Despite the multilevel relevance of human rights to development, theshared focus on accountability and the substantive overlap of the MDGswith areas covered by human rights treaties like CEDAW, the Convention onthe Rights of the Child (CRC) or the ICESCR, the MDGs and related frame-works do not incorporate human rights or the relevant treaty obligations.What may be lost in this is the opportunity to use the interpretations andfindings of treaty monitoring bodies where particular rights are at issue indevelopment activities, and thereby offer development agencies the relevantexpertise to help minimize risk and enhance development effectiveness andsustainability. Such a cooperative and facilitative approach should not implynew, monitoring functions for IFIs in respect of human rights, but ratherpromote more coherent and effective development practice. Conversely, suchan approach might facilitate the exchange of relevant information andimprove the quality of data available to treaty bodies.

Aid effectiveness

The separability of frameworks is evident in relation to aid effectiveness, too.Following the 2002 Monterey Financing for Development Summit, aid

agencies have forged an operational consensus behind principles of aid har-monisation (Marshall, 2008: 96). This led to the Rome Declaration (2003)

19 http://go.worldbank.org/UVQMEYED00

20 World Bank Operational Policy O.P. 1.00 on Poverty Reduction it is consistent with the

World Development Report 2000/2001 on Attacking Poverty, and with the multidimen-

sional vision of poverty reduction contained in the MDGs and the Banks commitment to

accelerating progress towards these goals. See: http://go.worldbank.org/0K895K0TV0

21 This contains only two references to human rights, see: http://www.undp.org/mdg/core_s-

trategy.pdf22 The Long-Term Strategic Framework of the Asian Development Bank 2008-2020, see

http://www.adb.org/documents/Policies/Strategy2020/Strategy2020-print.pdf or

Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy, see http://www.

adb.org/Documents/Policies/Poverty_Reduction/Poverty_Policy.pdf


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and the Paris Declaration (2005),23 which set out the commitments of multi-lateral and bilateral development institutions as well as partner institutionsto harmonize the policies procedures and practices of their institutions withthose of partner country systems to improve the effectiveness of developmentassistance and thereby contribute to meeting the Millennium DevelopmentGoals.24 The Paris Declaration confirmed five core principles: ownership,alignment, harmonization, managing for results and mutual accountabilityto improve the quality of aid and its impact on development. It promulgateda more detailed, operational framework based on actions in its 56 partner-ship commitments and 12 indicators. Despite the ways in which aid modal-ities can impact human rights and the ways in which human rights mightinform the principles set out to govern the delivery of aid, the Rome andParis Declarations remained silent on human rights and do not address themutual relevance of human rights and aid effectiveness. In this they reflecteda narrower, efficiency-based understanding of aid effectiveness concernedwith the technical processes of aid delivery rather than its substantive ramifi-cations or overarching goals. They also failed to recognize that Aid is onlyeffective if it achieves good development results, and good developmentresults are not possible if gender inequalities persist, environmental damageis accepted, or human rights are abused (Robinson in OECD DAC HRTT2008: 1).

This divergence persisted until the 2008 outcome document of theHigh-Level Forum in Accra, known as the Accra Agenda for Action (AAA).While the AAA notes respect for human rights as a cornerstone of develop-ment,25 and cites human rights in its provision for an expanded policy dialo-gue (Accra Agenda for Action, 2008: 13c), the question remains whether theneglect of human rights hitherto will impede the implementation of thosecommitments in the AAA.

Without including human rights explicitly in the principles, commitmentsand indicators of the Paris Declaration, or in its monitoring and evaluationframeworks (see Wood, et al. 2008), the impact of new aid delivery mechan-isms on the realization of human rights cannot properly be assessed, nor canthe positive potential of human rights for Paris Declaration principles beconcretely explored. Moreover, the human rights context, including theirlegal context, may be useful to inform donors choices of aid instruments tohelp strengthen accountability and ensure that resources reach the poorestand least powerful.

23 http://www.oecd.org/dataoecd/11/41/34428351.pdf

24 Rome Declaration on Aid Harmonisation (2002), http://www.oecd.org/dataoecd/54/50/

31451637.pdf25 Paragraph 3 states: Gender equality, respect for human rights, and environmental sustain-

ability are cornerstones for achieving enduring impact on the lives and potential of poor

women, men, and children. It is vital that all our policies address these issues in a more sys-

tematic and coherent way.


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Poverty reduction strategies

Poverty reduction strategies (PRSs)26 are a prerequisite for concessionalassistance from the International Development Association (IDA) and theIMF, and debt relief under the Heavily Indebted Poor Countries (HPIC)initiative of the World Bank and the International Monetary Fund (IMF).Despite the overlap of human rights and poverty reduction strategies at afactual or even principled level, human rights are not the subject of concreteengagement within PRSs and do not influence their design in any discernableway,27 and is at best only implicitly incorporated in the strategies (Nankaniet al., 2005: 475) or in the tools and documents that relate to these (e.g.World Bank Sourcebook on PRSPs28 or Bank-Fund Joint Staff AdvisoryNotes [JSAN]29). Occasional references to human rights exist in individualPRSs, but few if any specific references are made to international humanrights treaties. Such references, unaccompanied by links to specific inter-national human rights instruments, may result in human rights being incor-porated only implicitly with little specific operational relevance. Somecommentators have remarked on the broader role potentially fulfilled byPRSs. As comprehensive policy documents in many developing countries,PRSs may play an important role as vehicles for furthering the realization ofhuman rights obligations of those countries (Tostensen 2008: 210). Underthis view, PRSs, and the tools, documents, frameworks and results tablesassociated with them, could usefully include explicit references to relevanthuman rights treaties in an effort to support developing countries realizetheir human rights obligations as they pursue development.

Policy efforts to bridge development and human rights

While many development policies implicitly address human rights concernsand principles (e.g. World Bank safeguard policies), most prominent policyframeworks governing development and aid do not integrate human rightssystematically. However, significant efforts to link human rights and develop-

ment and aid do exist, including examples of policies that make explicitreference to the international human rights law framework. Whatever the

26 http://go.worldbank.org/FXXJK3VEW0. The current nomenclature favors PRS rather

than PRSP, since most individual country strategies go beyond just fulfilling the require-

ment for a PRSP and include a countrys broader plan to reduce poverty.

27 For a critical review of PRSPs from a human rights perspective, see Stewart and Wong

(2005: 447). They also ask whether the mention of human rights in PRSP would materially

alter their conclusions, since the risk would be that human rights would simply remain

confined to the language without any consequence in reality.

28 http://go.worldbank.org/3I8LYLXO The Sourcebook is a guide to assist countries in

the development and strengthening of poverty reduction strategies. The Sourcebook reflectsthe thinking and practices associated with the Comprehensive Development Framework, as

well as lessons emerging from the World Development Report on Poverty, and good inter-

national practices related to poverty reduction.

29 http://povlibrary.worldbank.org/library/subtopic/3478/.


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particular view taken of whether the integration of human rights into devel-opment policy should take place, the approach to determining that questionshould be systematic and coherent.

The rise in prominence of human rights in development discourse isevident in a range of UN initiatives that link human rights and development,locating the source of human rights in the core UN human rights treaties. Arights-based approach is mandated as integral to the form and content of theUNs development policy,30 and is central to the approaches of both theUNDP (UNDP, 2001, 2005) and the OHCHR (OHCHR 2006a, b, c),including in relation to work on the MDGs (OHCHR, 2008a, b) andpoverty (OHCHR 2004, 2006a, b, c). Many UN policy frameworks andstatements make reference to international legal instruments as the source forhuman rights in development, or as an overall guiding framework for inter-national cooperation. This was reflected in Action 231 and again in the UNSecretary Generals 2005 Report In Larger Freedom, which underscoredthe interrelationship of security, development and human rights.32 The 2003UN Common Understanding on a Human Rights-Based Approach toDevelopment Cooperation33 is even more explicit linking developmentcooperation, policies and technical assistance to the realization of humanrights as laid down in the Universal Declaration of Human Rights and otherinternational instruments. It also states that human rights standards con-tained in, and principles derived from, the Universal Declaration of HumanRights and other international human rights instruments guide all develop-ment cooperation and programming in all sectors and phases of the pro-gramming process.

More recently, the OECD DAC approved an Action-Oriented Policy Paperon Human Rights and Development (2007), which concluded:

30 All UNCTs [UN Country Teams] must use a human rights-based approach (HRBA) [. . .]

[A HRBA] puts the international human rights entitlements and claims of the people and

the corresponding obligations of the State in the centre of the national development debate,

and it clarifies the purpose of capacity development. http://www.undg.org/index.

cfm?P=221

31 Report of the UN Secretary-General, Strengthening of the United Nations: An Agenda for

Further Change (A/57/387 of 9 September 2002) from which the strengthening and main-

streaming of human rights in the UN has come to be known as Action 2. Action 2

related to Strengthening UN Support for the Promotion and Protection of Human Rights

Worldwide. http://www.un.org/events/action2/. See further: Action 2 Interagency Plan of

Action - Strengthening Human Rights-related UN Action at Country Level (2003) adopted

by UN Development Group, Executive Committee on Humanitarian Assistance and

OHCHR pursuant to the Secretary-Generals report.

32 Report of the UN Secretary-General (Kofi Annan), In Larger Freedom: TowardsDevelopment, Security and Human Rights for All (2005) at http://www.un.org/

largerfreedom/

33 http://portal.unesco.org/shs/en/ev.

php-URL_ID=7733&URL_DO=DO_TOPIC&URL_SECTION=201.html


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The importance of human rights for development is widely recognized.Human rights and equitable, sustainable development are mutuallyreinforcing. Human rights have intrinsic value, and achieving them isseen as an objective in its own right. But human rights are also a criticalfactor for the long term sustainability of development.

Consistent with establishing a general policy linkage, the Action-OrientedPolicy Paper recalls the treaty base of international human rights in theseven core international human rights treaties which establish the primarylegal obligations of states parties (subject to the relevant reservations). ThePapers first principle sets as an objective the building of a shared under-standing of the links between human rightsobligationsand development pri-

orities through dialogue, confirming that partner governments existingobligations should be the starting point for such dialogue (OECD DAC,2007: paragraph 40 [1]).

In the context of aid effectiveness, efforts have been underway to highlightthe potential for the international human rights framework and the ParisDeclaration to reinforce and benefit from one another (OECD DAC, 2007:paragraph 35).34 Human rights are widely recognized as a so-called cross-cutting policy issues within the meaning of the Paris Declaration,35 and it istherefore significant that the AAA (2008) notes respect for human rights as a

cornerstone for achieving enduring impact on the lives and potential of poorwomen, men and children. It goes on to state that [I]t is vital that all ourpolicies address these issues in a more systematic and coherent way (AAA(2008) paragraph 3). Human rights are also referred to under the commit-ment to broaden country-level policy dialogue.36

Several bilateral aid agencies have policies with explicit human rights foun-dations with many highlighting the positive connection between humanrights and development. While such policies articulate a range of objectivesand principles to guide their development activities in order to promote or

mainstream human rights, few do more than mention human rights obli-gationsof either donors or partners (Netherlands Ministry of Foreign Affairs

34 In 2007, an influential DAC workshop was held in Dublin, Workshop on Aid Effectiveness

in Practice: Applying the Paris Declaration to Advancing Gender Equality, Environmental

Sustainability and Human Rights, Dublin (2627 March 2007). A follow-up workshop

was held in London on Strengthening the Development Results and Impacts of the Paris

Declaration through Work on Gender Equality, Social Exclusion and Human Rights (12

13 March 2008).

35 Paragraph 42 of the Paris Declaration provides Similar harmonisation efforts are also

needed on other cross-cutting issues, such as gender equality and other thematic issues

including those financed by dedicated funds.36 13 (c) of the AAA states: Developing countries and donors will ensure that their respective

development policies and programmes are designed and implemented in ways consistent

with their agreed international commitments on gender equality, human rights, disability

and environmental sustainability (Accra, 2008).


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2007). Prominent examples of this type of development policy frameworkinclude the 2006 Swiss Agency for Development and Cooperation Policy(SDC, 2006), which highlights the human rights content of the 2000Millennium Declaration and the principle of building capacity to realizehuman rights obligations. Mainstreaming is a prevalent feature in this typeof policy (see GTZ, 2004, 2005), and although many are unequivocal inaffirming their human rights foundation, few highlight human rightsobligations.

A few notable examples can be found that link human rights and develop-ment through an explicit application of human rights obligations underinternational treaties. The Austrian Development Cooperation HumanRights Policy Document (2006) locates the strength of the human rightsframework precisely in its foundation in a legally based framework. At theirstrongest, these emphasize both partner and donor obligations and offer con-crete operational entry points for their application in development policyframeworks. New Zealands International Aid and Development Agencydocument, Human Rights Policy Statement (2002) and its Human RightsImplementation Plan of Action 20042009 confirm the role of donor andpartner human rights treaty obligations in linking human rights and develop-ment. Another example emerges in Canadian legislation: the 2008 OfficialDevelopment Accountability Act offers a definition of official developmentassistance and accountability, and contains a human rights clause statingthat operations must be consistent with international human rights stan-dards.37 In that case, the importance of human rights obligations to develop-ment policy is confirmed and reflected in domestic legislation.

The centrality of human rights to EU development cooperation drawsexplicitly on legal commitments that are both internal and external to the EUitself.38

Human rights is at the forefront of EU Development Cooperation withsimilar commitments to its humanitarian aid and Common Foreign and

Security Policy. The policies flow from the legal obligations of itsMember States, as well as from EU treaty provisions which recognizehuman rights as common values underpinning EU partnership and dia-logue with third countries.39

37 Canada 2008 Official Development Assistance Accountability Act which came into force

on 28 June 2008; C.17 O-2.8. It states in section 4. (1) that Official development assist-

ance may be provided only if the competent minister is of the opinion that it (a) contributes

to poverty reduction; (b) takes into account the perspectives of the poor; and (c) is consist-

ent with international human rights standards.

38 http://www.ihrnetwork.org/eu-development-policies_215.htm. Internal commitments arebased on the Treaty on European Union, and were confirmed in the Treaty of Amsterdam

and the EU Charter of Fundamental Rights and the European Instrument for

Democratization and Human Rights (2006).

39 http://www.ihrnetwork.org/eu-development-policies_215.htm


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The EU has, since 1995, adopted a distinct policy on human rights in itsexternal relations with a human rights clause40 being introduced into alltrade and development agreements with third countries or non-Members(Cremona, 1996; Reidel and Will, 1999), making the protection of humanrights an essential element of the agreement.

The policies of the European Bank for Reconstruction and Development(EBRD) and the New Partnership for Africas Development (NEPAD) illus-trate the relevance of legal frameworks to link human rights and develop-ment activities through obligations under international law treaties in theformer, and through connecting development and human rights institutionsand processes in the latter. Consistent with the reference to human rights inthe EBRD Articles of Agreement, its Environmental and Social Policy (2008:paragraph 9) makes direct reference to international conventions, includingthose related to human rights: The EBRD will not knowingly finance pro-jects that would contravene obligations under international treaties andagreements related to environmental protection, human rights and sustain-able development as identified through project appraisal. The EBRD policyalso specifies that its country and sector strategies should summarize theprincipal environmental, human rights, gender equality and other socialissues in the relevant country or sector, and set out the EBRDs proposals fortaking these issues into account in its operations, where appropriate (para-graph 47). In Africa, the NEPAD Framework Document (2005) containsseveral references to human rights, as a foundation, objective and responsi-bility of the mechanism. The African Peer Review Mechanism (APRM),41

which operates as part of the NEPAD, links the final stage of its review toexisting human rights mechanisms such as the African Commission onHuman Rights (APRM, 2003).42 In this, the African-led policy supportsmacro-level coherence, and linkages between policy frameworks throughhuman rights obligations (Heyns, 2005).

40 The essential element of an agreement, or human rights essential element clause. See EUCouncil Decision 7255/95 Human Rights Clauses in Community Agreements with

Non-Member Countries, Brussels, 24 May 1995. Also the Commission Communication on

the Inclusion of Respect for Democratic Principles and Human Rights in Agreements

between the Community and Third Countries COM (95) 216 of 23 May 1995.

41 An important accountability related mechanism to the NEPAD, the APRM is a mutually

agreed instrument voluntarily acceded to by member states of the African Union (AU) as

an African self-monitoring mechanism. The APRM is central to the NEPAD process for

the socio-economic development of Africa.

42 APRM base document Article 25 states: Six months after the report has been considered

by the Heads of State and Government of the participating member countries, it should be

formally and publicly tabled in key regional and sub-regional structures such as thePan-African Parliament, the African Commission on Human and Peoples Rights, the envi-

saged Peace and Security Council and the Economic, Social and Cultural Council

(ECOSOCC) of the African Union. Available at: http://www.chr.up.ac.za/hr_docs/aprm/

docs/book3.pdf


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Conclusions regarding development frameworks and the incorporation

of human rights

In general terms, the review of development policy reveals an uneven engage-

ment with human rights and a lack of express reference to human rights obli-gations and the legal dimensions of human rights.

First, the discussion of divergence above reveals that in most developmentinstitutions or agencies human rights are not characterized in legal or obliga-tory terms. The lack of emphasis on the legal dimension of human rights indevelopment may be contrasted with the prominence of international treatyobligations pertaining to well integrated issues like trade and environmentwhich are explicitly provided for in the policies and guidance of severaldevelopment institutions.43

Second, policies that recognize the interconnection of development policyand international law tend to take a more holistic view of the participationof states in various fora, and the interlinked nature of their duties in differ-ent international contexts. Policies that evidence a separation betweenhuman rights and development tend to neglect the legal dimension of theformer and states may content to keep their treaty obligations underhuman rights instruments separate from the processes and policies thatdetermine their contributions to, or allocations from, development expendi-tures. 710 Coherence and alignment between international law and policy

potentially puts the actions of international actors under scrutiny by outsideactors and processes, and may raise complex issues about the responsibilityof states and international organizations.44 Notwithstanding this, there aresigns that international law regimes and international development processesmay usefully inform one another in areas where the overlap is strong andwhere rights under the former are directly at issue in the latter.

Third, even policies that bridge human rights and development are typi-cally stronger at the level of discourse than they are in respect of assessment,monitoring and evaluation. This may offer a partial explanation for the lack

of emphasis on the legal dimension of human rights: like other internationaltreaties, human rights law brings with it a full range of rules, assessmentsand indicators, forcing questions of concrete application, monitoring andeven enforcement. Taking account of human rights obligations could poten-tially lead to international development agencies having to consider theirmembers obligations, and even their own human rights obligations under

43 On trade, see Croome (1996: preface). On international environmental treaties, see the

World Bank O.P. 4.01 on Environmental Assessment (1999) which states: EA considers

[. . .] obligations of the country, pertaining to project activities, under relevant internationalenvironmental treaties and agreements. The Bank does not finance project activities that

would contravene such obligations, as identified during the EA.

44 See H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within

Diversity4th ed. Martinus Nijhoff 18561859.


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international law, in direct and concrete ways. From a different perspective,however, the signs of bridging in certain policies point to ways in which thework of international human rights bodies could be put to use in develop-ment activities, and where the accumulated wisdom of states experience asparties to international conventions could be brought to bear in particularcircumstances where human rights have a direct and obvious bearing.

Fourth, while there is no causality argued that neglect of the law resultsindevelopment policies failure to respect, protect and fulfill human rights,there may be some weight to the reverse argument that recognizing theimportance of human rights law obligations would require positive humanrights outcomes in development and efforts to safeguard against humanrights harm where possible.

Legal Dimensions of Human Rights in Development Policy Challenges

and Opportunities

The value of the law in safeguarding the place of human rights in

development

This section builds on the argument that respect for human rights ought, inthe words of the AAA (2008: paragraph 3), to be clearly and systematicallyintegrated into development by describing the potential relevance of the law

and the role of legal accountability in that process.Human rights law is founded on a set of stable, positive law commitments

into which states have voluntarily entered, binding them to put in place dom-estic measures and legislation compatible with their treaty obligations.Human rights treaty obligations have the benefit of being bounded andvoluntarily acceded to, with the specific parameters of states obligationscarefully negotiated, and circumscribed through reservation and derogation.In this context, the fact that human rights treaties, like all internationaltreaties, are based on the consent of states is highly relevant since it

challenges the assumption that in development their application amounts toimposition. This approach avails of the natural limits of the treaty under-takings, thereby securing a clarity and legitimacy that approaches based onprinciples and values or even general principles of international law may notavail of as easily. Treaty-based obligations underpin the rights enshrined inthe nine core human rights treaties concluded under the auspices of theUnited Nations,45 and the conventions concluded under the auspices of the

45 ICERD International Convention on the

Elimination of All Forms of Racial

Discrimination

21 Dec 1965 CERD

ICCPR International Covenant on Civil and

Political Rights

16 Dec 1966 CCPR


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ILO46, and regional organizations like the Council of Europe47 and theOrganisation of American States (OAS).48 Human rights treaties are bindinginternational agreements - like trade agreements or environment treaties,which enjoy greater recognition in development frameworks and have adirect bearing on development. Like these other types of multilateral treaties,human rights treaties enjoy high levels of ratification (Alston and Simma,1992), but distinguish themselves in predating many and having long estab-lished processes and monitoring bodies, as well as a growing body of practi-cal tools and indicators.49 The processes include those of UN Charter-basedbodies (e.g. Human Rights Council and its Universal Periodic Review), UN

ICESCR International Covenant on Economic,

Social and Cultural Rights

16 Dec 1966 CESCR

CEDAW Convention on the Elimination of All

Forms of Discrimination against

Women

18 Dec 1979 CEDAW

CAT Convention against Torture and Other

Cruel, Inhuman or Degrading

Treatment or Punishment

10 Dec 1984 CAT

CRC Convention on the Rights of the Child 20 Nov 1989 CRC

ICRMW International Convention on the

Protection of the Rights of AllMigrant Workers and Members of

Their Families

18 Dec 1990 CMW

ICPAPED International Convention for the

Protection of All Persons from

Enforced Disappearance

20 Dec 2006

ICRPD Convention on the Rights of Persons

with Disabilities

13 Dec 2006

http://www2.ohchr.org/english/law/. This table does not include the relevant

Optional Protocols to both the ICCPR and the ICESCR.

46 For the full ILOLEX database of ILO conventions, see http://www.ilo.org/ilolex/english/

newratframeE.htm, and see especially the eight conventions that underpin the core labor

standards: Freedom of Association and Protection of the Right to Organize Convention,

1948 (No. 87); Right to Organize and Collective Bargaining Convention, 1949 (No. 98);

Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957

(No. 105); Discrimination (Employment and Occupation) Convention, 1958 (No. 111);

Equal Remuneration Convention, 1951 (No. 100); Minimum Age Convention, 1973 (No.

138); Worst Forms of Child Labour Convention, 1999 (No. 182).

47 European Convention on Human Rights and Fundamental Freedoms (1950).

48 American Convention on Human Rights (1969).49 OHCHR work on human rights indicators from 2006 to 2008, see e.g. Report on

Indicators for Monitoring Compliance with International Human Rights Instruments

Summary HRI/MC/2006/7 and Report on Indicators for Promoting and Monitoring the

Implementation of Human Rights HRI/MC/2008/3.


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human rights treaty monitoring bodies,50 as well as individual communi-cations mechanisms, complaint procedures (Tomuschat, 2008: 193 229)and special procedures,51 all of which continue to develop a substantialbody of expert knowledge.52

Despite the divisive politicization that plagues many human rights pro-cesses, the specific contribution of approaches that integrate human rights indevelopment is that they make good practice and principles a matter of obli-gation. Without offering a legal base to that obligation, it is not clearwhether human rights can deliver on the promise of this distinct contributionsince the source of human rights or the duties remains unclear. Without alegal foundation, human rights commitments, values and principles arepotentially subject to variance, and to some extent remain subjective.

The fact that human rights have not been more systematically integratedinto development demands an examination of the approaches that have beenused, in particular non-legal, social science and principled-based approaches.Several reasons may be offered for this, including the challenges of demon-strating the value added of human rights to development, the dearth ofempirical evidence connecting the two and a perception that human rights aresomehow voluntary. A legal approach offers a clear rationale for the relevanceof human rights to development, which is simply that it binds as a matter oflaw and is therefore obligatory. A legal approach also offers a sound basis forthe principle of do no harm, and a risk-based outlook. It offers a concretebaseline for ensuring the respect of human rights and preventing any loweringof the standard of human rights enjoyment by development activities, whichcan also be conceived of as a form of due diligence, to protect against politicaland other forms of risk associated with human rights harms.

Normative baselines and the principle of do no harm

An outcome, related to the absence of a link between legal obligations andaccountability is the absence of an explicit normative standard against which

to assess development: As such [human rights] represent agreed legal and50 These include the following:

Human Rights Committee (CCPR)

Committee on Economic, Social and Cultural Rights (CESCR)

Committee on the Elimination of Racial Discrimination (CERD)

Committee on the Elimination of Discrimination Against Women (CEDAW)

Committee Against Torture (CAT) and Optional Protocol to the Convention against

Torture (OPCAT) Subcommittee on Prevention of Torture

Committee on the Rights of the Child (CRC)

Committee on Migrant Workers (CMW)

Committee on the Rights of Persons with Disabilities (CRPD).51 http://www2.ohchr.org/english/bodies/chr/special/index.htm. Also see Kedzia (2003: 3).

52 See, for instance, the work of the Committee on Economic, Social and Cultural Rights,

including its general comments, and concluding observations and comments, at: http://

www1.umn.edu/humanrts/esc/esc-page.htm


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moral standards against which development strategies, processes and resultsshould be measured (OECD DAC HRTT, 2008: 1). A legal approach drawshuman rights beyond the narrative of development policy, into the realm ofpractical application in development instruments and to concrete standards,rules, tools and indicators. However, without anchorage in specific, bindinglegal obligations such an application would appear difficult to undertakeand a normative assessment improbably upheld.

Development policies and activities tend to be evaluated by individualinstitutions or agencies relative to internal accountability mechanisms orsystems of evaluation which lack a normative element grounded in separatelegal commitments. There are few external forms of assessments or evalu-ation,53 and even fewer openly normative assessments of development. Ahuman rights legal standard potentially offers both, and does so based on asharedvalue system inculcated in international treaties to which most of theworlds countries are party, and to which they are bound under internationallaw. As the OECD DAC (2007: principle 1, paragraph 40 [1]) has noted, Ashared understanding of human rights issues between donor and partnercountries is essential for the durability of aid partnerships and for the pre-dictability and effectiveness of aid.

Human rights law offers a normative baseline mandating non-regressionand a principle of do no harm, and uses this baseline to strengthen andimprove development practice. The incorporation of human rights legal stan-dards mitigates human rights harms by providing a binding legal standardagainst which development policies, processes and outcomes can be assessedto (1) determine risk to human rights and whether development activities arelikely to, or in fact, result in harm; (2) ensure that development activities infact promote human rights or create the conditions for the realization ofhuman rights (World Bank, 1998: 1); (3) prevent and redress unintendednegative impacts on human rights in development processes and outcomes;(4) better understand the claim that development advances human rights;and (5) foster a deeper understanding of the relationship between the twofields. In relation to aid effectiveness, the OECD DAC Human Rights TaskTeam has written

[. . .] Human Rights and aid effectiveness framework should informeach other, rather than progressing on separate, disconnected tracks. Itsprinciples of do no harm and ensuring that the scaling up of aid isconducive to human rights, highlight two complementary dimensionsof a key contribution that human rights can offer the aid effectiveness

53 Yet see OECD DAC Peer Review which reviews individual members policies and efforts inthe area of development co-operation. Each member is critically examined approximately

once every four years; this way five or six programmes are examined annually. (www.oecd.

org/dac/peerreviews). e.g. UNDP (2005) http://www.undp.org/eo/documents/

DAC-PeerReview.pdf


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agenda (OECD DAC HRTT Human Rights and Aid Effectiveness,2007).

In concrete terms, the challenge presented by an absence of legally estab-

lished normative baselines in development is potentially answered by humanrights law. This might imply the incorporation of the relevant human rightslegal standards in development policies and instruments, whether theyaddress the level of country strategies54 or institutional assessment55 at aproject level56, or analyze the likely effects and distributional impacts ofcertain interventions or policy reforms on various groups or stakeholders.57

Reliance on human rights treaties in such assessments (rather than principles,or other sources of international law) might provide the missing normativeelement but also provide a natural limitation on the range of permitted con-

siderations and a legitimate source for standards. In practical terms, consider-ation of the reports and recommendations of treaty monitoring bodies, or thework of holders of special procedure mandates could help broaden the remitof considerations open to development processes in particular instances.

Policy coherence

As the connections between actions in the fields of human rights, develop-ment and aid effectiveness are increasingly understood as interconnected,their effective and coherent linkage is also being recognized as servingbroader instrumental purposes, and as indispensable to international policycoherence (Salomon, 2007: 106): Effectively linking human rights and devel-opment policies is an important element in achieving policy coherencebetween development and wider foreign policy objectives (NZAID, 2002: 6).

Policy coherence fosters the sustainability of policies by preventing dupli-cation and avoiding contradiction through promoting coherence acrossrelated subject matters and assessing the impacts of diverse areas of inter-national policy on one another.58 It highlights complementarities betweenframeworks designed and participated in by the same states, including the

most widely ratified international human rights instruments. Policy coher-ence is also indispensable to the realization of human rights.

54 For example: United Nations Development Assistance Frameworks (UNDAF), World Bank

Country Assistance Strategies (CAS), PRS or Joint Assistance Strategies (JAS).

55 For example, UN Common Country Assessments (CCA), or World Bank Country Policy

Institutional Assessments (CPIA).

56 For example, social or environmental assessments or human rights tools.

57 For example, the World Banks Country Policy and Institutional Assessment. http://web.

worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPSIA/

0,,contentMDK:20454976~menuPK:1107972~pagePK:148956~piPK:216618~theSiteP-K:490130,00.html

58 http://www.oecd.org/document/54/0,2340,en_2649_33721_35320054_1_1_1_1,00.

html. This idea has relevance also to efforts in the UN human rights machinery to enhance

coherence and