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Human rights based Approaches in Ireland:
Principles, Policies and Practice
(Working Title, 21 April 2005)
Discussion draft – not for citation
International Human Rights Network invites feedback regarding this draft by 1 July 2005. Please forward comments to or by post to IHRN, Glenboy House, Oldcastle, Co Meath.
Views on the issues concerned in this report, more generally, are invited by way of a questionnaire which is available from .
ACRONYMS
AI Amnesty International
CAT Convention Against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CERD Convention on the Elimination of All Forms of Racial Discrimination
CHAD Conflict and Humanitarian Affairs Department (DFID)
CRC Convention on the Rights of the Child
CIDA Canadian International Development Agency
CSP Country Strategy Paper (DFID)
CCA Common Country Assessment (UN)
DANIDA Danish International Development Agency
DFA Department for International Affairs (Ireland)
EU European Union
ECHR European Convention on Human Rights and Fundamental Freedoms
HRBA Human Rights-Based Approach
HURIST Human Rights Strengthening Programme (UN)
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICRC International Committee of the Red Cross
IDPs Internally Displaced Persons
IHL International Humanitarian Law
IHRN International Human Rights Network
IFI International Financial Institution
ILO International Labour Organisation
IMF International Monitory Fund
INGO International Non-Governmental Organisations
MDGs Millennium Development Goals
NAPS National Anti-Poverty Strategy
NEPAD New Partnership for Africa’s Development
NGO Non-Governmental Organisation
NHRAPNational Human Rights Action Plan
NORAD Norwegian Agency for Development
OECD Organisation for Economic Cooperation and Development
ODI Overseas Development Institute
OHCHR Office of the United Nations High Commissioner for Human Rights
PRSP Poverty Reduction Strategy Paper
Sida Swedish International Development Agency
UDHR Universal Declaration of Human Rights
UNDAF United Nations Development Assistance Framework
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNIFEM United Nations Development Fund for Women
UNDP United Nations Development Programme
WTO World Trade Organization
SUMMARY
[for final draft]
TABLE OF CONTENTS
SUMMARY
PART ONE: HUMAN RIGHTS BASED APPROACHES
1. Introduction
1.1 Goal and method
2. The Principles of human rights based approaches (HRBA)
2.1 Human rights defined
2.2 Development defined
2.3 Human Rights based approaches
Express application of human rights framework
Accountability
Empowerment
Participation
Non-discrimination & vulnerable groups
3. International evolution of HRBA
3.1 Evolution
3.2 Summary of global legal and policy commitment
4. International practice
4.1 Progress
4.2 Challenges
Competing rather than coordinated processes
Participation not seen as a human right- inadequately applied
Weak capacity to undertake HRBA programming
Absence of specialised capacity-building and support
Lack of clarity regarding the core meaning of HRBA
Distorted public perception of human rights
Low awareness of human rights - low expectations of change
View that ‘we cannot afford human rights’
View that poverty is necessarily addressed by economic growth
4.3 What difference can HRBA make?
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1. Introduction
1.1 Goal and methodology
In 2005 IHRN was commissioned by Amnesty International Irish section to provide a framework document regarding international experience of human rights based approaches to development, together with an overview of Ireland’s experience to date and recommendations for promoting progress.[1]
The development of this framework document involvesa review of recent developments regarding human rights based approaches on the international level; as well as an exploration of current policy and practice in Ireland. This involves analysis of primary written materials, interviews and small group discussions as well as feedback on document drafts.
The document presents a framework for conceptualizing and promoting human rights based approaches (throughout the document the acronym HRBA is used) in Ireland today. It is designed to be utilised by civil society in influencing key policy-makers and opinion-formers so as to ensure that national policies, law reform and practices are based on human rights. As well as serving as a campaigning document to that end, the framework document is also offered as a means of informing and developing lessons learning and training on human rights based approaches.
Part One of the document provides a conceptual framework of human rights-based approaches (HRBA), including the historical international evolution of the concept to date and the ‘core minimum’ of HRBA which needs to inform human rights based approaches in Ireland.
Part Two explores Ireland’s experience applying human rights based approaches to its development to date. The practical consequences arising from the core concepts underlying human rights based approaches (legal framework, accountability, empowerment, participation, non-discrimination) are explored through illustrations drawn from typical profiles of individuals and groups. The overview of the current situation and the illustrations both serve to highlight current levels of understanding of human rights based approaches and key challenges faced. The document concludes with recommendations aimed at enhancing human rights based approaches.
*No individual attribution of views expressed in interviews in this Report.
2. The principles of human rights based approaches
It is important to be clear as to the working definitions and concepts used here. This chapter outlines the core meaning of the terms ‘human rights’, ‘development’ and ‘human rights based approaches’, hereafter referred to as HRBA.
2.1Human Rights Defined
The term human rights is used here as a legal term of art encompassing the full spectrum of internationally recognised human rights - civil, cultural, economic, political, and social.
While the categorisation and classificationof human rights havebeen the subject of much debate, influenced by cold war politics, the Universal Declaration on Human Rights, the foundation for the 20 Century human rights law, makesno distinction between human rights. The two principle international human rights covenants, the International Covenant on Civil and Political Rights and International Covenant on Economic Social and Cultural Rights have equal legal status.
Reflecting the legal principles reaffirmed in the Vienna Declaration and Programme of Action, human rights are universal, inalienable, interrelated, and interdependent.The universality of human rights means that they are inherent in everyone, without discrimination, throughout the world. Their inalienability means that they are inherent in each individual, not a gift or privilege afforded by any authority and they cannot be voluntarily given up nor taken away.The principle that human rights are inter-dependent and inter-related means that the realization of one right often depends upon the vindication of others. For example, the right to life is fundamentally dependent on the right to health, which in turn is closely linked to the right to education.
Human rights law is based on the principle that the state is the primary entity obligated to respect, protect and fulfil the human rights of all those in its territory. To respect human rights entails a duty not to violate rights by interfering directly or indirectly with their enjoyment. Protecting human rights imposes a duty on the state to proactively prevent third parties from interfering with or violating human rights. The obligation to fulfill human rights requires the state to act to ensure that rights are fully enjoyed, whether through adopting appropriate legislative, administrative, budgetary, judicial, or other measures.
International human rights law is the product of a consensus reached by states as to the standards to be achieved e.g. in the right to education, health etc. The methods by which those standards are met are a matter of discretion for each state. For example, the standard required to ensure the right to fair trial are clear and detailed (right to a defence, presumption of innocence etc) – yet a wide variety of legal systems (Civil Law, Common Law etc) exist throughout the world.
By its participation in the international human rights framework Ireland undertakes to ensure that the Constitution, laws, policies, budgets and practices reflect these legal obligations and help achieve, and not undermine, the enjoyment of the full spectrum of human rights. This applies to all branches of the state and to all levels, including local authorities. For example, in the case of Ireland, no less than in countries it supports through development aid, all development plans (whether social, economic etc) should be assessed in terms of their human rights impact before and during implementation. This obligation extends to regulating the behaviour of third parties – corporations, international organisations, etc. to ensure that human rights are effectively enjoyed.
‘Human Rights’ are not limited to rights recognised under national law
Human rights commitments undertaken in international treaties are recognised as inherent to the human being and cannot be undermined by a Constitution or other national law. In fact, by becoming a party to international treaties, the state is obliged to ensure that its national arrangements (Constitution, laws, practices etc) comply with that standard. Where national law or practice falls short of human rights standards which the state has agreed to, the state violates its international legal obligations.
So, in some cases, ‘rights’ provided under national law fail to meet the standard required by international human rights law. On the other hand, a state can also choose to provide a higher standard of human rights protection that the minimum standard of behaviour set out on the international level.
2.2 Development Defined
The 1986 Declaration on the Right to Development, adopted by General Assembly resolution 41/128 of 4 December 1986, defines development as a comprehensive economic, social, cultural and political process. Its object is the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the resulting benefits.
Development involves not just economic growth, or macroeconomic performance indicators but equitable distribution, enhancement of people’s capabilities and widening of their choices. It gives top priority to poverty elimination and integration of women into the development process.
The right to development’s emphasis on process as well as outcome means that it is essentially a composite right made up of civil, political, economic, social and cultural human rights. It is rooted in the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Declaration on the Right to Development made the right explicit, stating that it is an inalienable right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. In 1993, the World Conference on Human Rights affirmed the right to development by consensus.
2.3 Human rights Based Approaches
A human rights-based approach (HRBA) is a conceptual framework for a process operationally directed to promoting and protecting human rights, a process that sets out the applicable international human rights standards and clarifies both the rights of individuals and the obligations of states, based on an international consensus.It is sometimes referred to as human rights ‘mainstreaming’ or ‘integrating’ human rights. In this document the expression “human rights based approaches” is preferred.
From the outset it is important to emphasise that a range of human rights based approaches have been developed. Which approach is likely to be most effective may vary according to the particular sector being addressed, the social and political context, the actors seeking to employ HRBA etc. HRBA are, however, united by common purpose and core principles. They seek to ensure that human rights are a central frame of reference in policymaking and political choices by giving people the political, institutional and material means to demand, exercise and monitor their rights, and to actively participate in decision-making processes.By definition HRBA is as concerned with the process as the outcome. In the context of poverty reduction, for example, HRBA requireensure not only that alleviation strategies are explicitly based on norms and values in international human rights law, but also that those strategies are identified, applied and reviewed with active and informed participation of the poor. In a cyclical fashion this use of rights language and participatory processes serve to empower the poor to both assert their rights and hold accountable those legally responsible for their delivery.
A human rights-based approach involves more than a formal commitment to respect the human rights norms and standards contained in the wealth of international treaties and declarations. It requires the integrationof the relevant norms, standards and principles of the international human rights system into all plans, policies, processes and institutions. The principles, which themselves derive from the international human rights framework, which underlie HRBA include:
1. Express application of the international human rights framework;
2. Empowerment;
3. Participation;
4. Non-discrimination and vulnerable groups;and
5. Accountability.
Outlined in Table 1 below, these principles are explored more fully in Part Two of this document where they are used as the lens through which Ireland’s on-going economic, social, cultural and political progress – ie its development - is examined.[2]
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HRBA in Ireland: principles, policies and practice
Table 1[3]
HRBA Core Principles / Application in Practice1. Expressly apply human rights framework
/- Define the goals of development in terms of the relevantinternational human rights commitments of the state –and as legally enforceable entitlements on the national level.
- Ensure human rights obligations are taken into account at every stage of programming i.e. needs assessment, policy formation, programme identification, implementation, monitoring and evaluation.
- Make explicit the normative links to international, regional and national human rights instruments.
- Be comprehensive in implementing the full spectrum of indivisible, interdependent and interrelated rights: civil, cultural, economic, political and social.
- Ensure development sectors used for programme planning reflect the human rights framework (for example, health, education, housing, justice administration, political participation).
- Build the capacity of public representatives, civil servants, local officials etc to apply the human rights framework in their work, including training, specialised advice etc.
2. Empowerment /
- Ensurepolicies and programmes arebased on empowerment - not charity. ‘Beneficiaries’have inherent human rights and should have ownership of national and local development (directly and through civil society organizations). This means ensuring people have the power, capacities (including education, information etc), and access needed to improve their own communities and influence their own destinies.
- Raise human rights awareness to ensure that rights holders and duty bearers share a common understanding of human rights goals and the duties to respect, protect and fulfil them. This means systematically educating and raising awareness of public and local representatives, government, civil servants, agents, service providers and other duty bearers.
3. Participation /
- Ensure a high degree of participation, including communities, civil society, minorities, women, children and others. Participation must be "active, free and meaningful" - mere formal consultation is not sufficient.
- Apply process-based development methodologies. Ensure national and local development processes and institutions are accessible, that information is transparent and timely with independent and effective redress or complaints mechanisms.
4. Non-discrimination & vulnerable groups /
- Address as a priority any discrimination and rights of vulnerable groups. These groups may include women, minorities such as travellers, homosexuals, migrants and their families, prisoners, the elderly, the disabled - there is no universal checklist and‘who is vulnerable here and now’ is a question to be answered on national and local levels. Ensure official data is disaggregated, by race, religion, ethnicity, language, sex and any other categories of human rights concern.
- Ensure gender-proofing is part of the wider human rights-proofing of all programming (noted in Element 1. above). Women are often the first victims of discrimination or the least empowered in many societies. Gender-proofing assesses the implications for women and men of any planned action, including policies, legislation and programmes, in any area and at any level. This includes paying particular attention to the "feminization" of poverty, its causes and remedies.
5. Accountability /
- Apply human rights impact assessment to all plans, proposals, policies, budgets & programmes.
- Identify both positive obligations of duty-holders (to protect, promote and provide) and negative obligations (to abstain from violations).Include the duties of the full range of relevant actors, including local authorities, private companies, international financial institutions and individuals.
- Identify claim-holders (and their entitlements) and corresponding duty-holders (and their obligations).
- Translate universal standards into locally determined benchmarks for measuring progress and enhancing accountability.
- Ensure all State organs and agents possess the political will and means to ensure the realization of all human rights.[4] As such, states must develop adequate laws, policies, institutions, administrative procedures and practices, and mechanisms of redress and accountability that ensure delivery on entitlements, respond to denial and violations, and ensure accountability.
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