by H COMMISSIONER — System, ohchr/english/about/publications/docs/fs30.pdf. Their meaning is Human rights strengthen good governance frameworks. They require:
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NOTE The designations employed and the presentation of the materi al in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. ** *Material contained in this publication may be freely quoted or reprinted, provided credit is given and a copy of the publicatio n containing the reprinted material is sent to the Office of the United Nations High Commissioner for Human Rights, Palais des Nations, 8-14avenue de la Paix, CH-1211 Geneva 10, Switzerland. HR/PUB/06/8 Photo credits Cover page: © International Labour Organization/M. Crozet; United Nations/J.K. Isaac; Enrico Bartolucci/Still Pictures; UNESCO/ Maria Muinos; p. 4: Hartmut Schwarzbach/Still Pictures; p. 5: UN Photo/Eskinder Debebe; p. 7: UNESCO/Maria Muinos; p. 9: © International Labour Organization/J. Maillard; p. 11: Argus/Stil l Pictures; Enrico Bartolucci/Still Pictures; p. 13: Otto Sta dler/ Still Pictures; p. 16: UN Photo/Evan Schneider; p. 17: Ron Giling/Still Pictures; UN Photo/Sebastiao Barbosa; p. 19: Friedrich Stark/ Still Pictures; p. 20: UNESCO/Alexis N. Vorontzoff; p. 24: © International Labour Organization/J. Maillard; p. 26: Ron Giling/ Still Pictures; Manfred Vollmer/Still Pictures; p. 30: Un ited Nations/IYV; p. 31: United Nations/DPI/Eskinder Debebe. II
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At the dawn of the new millennium, human rights and development are at a crossroads. On the one hand, the congruence between human rights and development the- ory has never been more striking. Poverty and inequities between and within countries are now the gravest human rights concerns that we face. As the Secretary-General un -derscored in his 2005 reform report “In larger freedom”, the challenges of human rights, development and security are so closely entwined that none can be tackled effec- tively in isolation. United Nations agencies have gone a considerable way towards reflecting these realities in practice, including through defining a common understanding of a human rights-based approach to development cooperation, em -bodied within the United Nations common programming guidelines. And at the World Summit in September 2005, United Nations Member States gave an unprecedented po- litical imprimatur and impetus to the Organization’s efforts to bring human rights to the front and centre of all its work, a shared commitment that through my 2005 “Plan of ac- tion” I am determined to support. Yet there remains a chasm between theory and practice, ensuring that the objectives, policies and processes of development are channelled more directly and effectively towards human rights goals. There are, of course, many reasons why this is so, including continuing gaps in knowl- edge and skills, and difficulties in translating human rights norms into concrete programming guidance applicable in diverse policy contexts and national circumstances. This is the principal gap that this publication aims to fill, with United Nations development practitioners as the primary audience. A collective and multifaceted effort is required of human rights and development practitioners, now more so than ever. Filling gaps in knowledge, skills and capacities will be meaningless without renewed leadership, commitment and attention to our own internal accountability systems and incentive structures. The valuable contributions brought to this publication from our Un ited Nations development part- ners are testimony to the kind of collaboration that should be further encouraged. While a modest contribution on its own, I hope that this publication will succeed in advancing our shared under- standing about how the goals of human rights and devel- opment can be achieved through more effective develop- ment cooperation, within wider strategies and coalitions for change. Louise Arbour United Nations High Commissioner for Human Rights FOREWORD III
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ACKNOWLEDGEMENTS Earlier drafts of this publication were shaped greatly from inputs from partner agencies in the United Nations system. The Office of the United Nations High Commissioner for Human Rights (OHCHR) wishes to express particular thanks to the following, although final responsibility rests of course wi th OHCHR: Carmen Artigas (Chief , Human Rights Unit, Economic Commission for Latin America and the Caribbean), Marc Der veeuw (United Nations Population Fund Country Support Team, Harare), Emilie Filmer-Wilson (Oslo Governance Cent re, United Nations Development Programme (UNDP)), Sascha Graumann (Deputy Chief, UNDP SURF Bratislava), Nadia Hijab (consultant to joint OHCHR/UNDP HURIST programme, New York), Zanofer Ismalebbe (Human Rights Focal Point and HURIST programme officer, UNDP Geneva), Marcia Kran (Democratic Governance Practice Manager, UNDP SURF Bratis lava), Carole Landon (Department of Country Focus, World Health Organization (WHO) Geneva), Else Leona McClimans (Oslo Governance Centre, UNDP), Helena Nygren-Krugh (Health and Human Rights Adviser, WHO Geneva), Thord Palmlund (consultant to joint OHCHR/UNDP HURIST programme, New York), Barbara Pesce-Monteiro (Director, UNDP Guatemala), Patrick van Weerelt (Human Rights Adviser, UNDP New York), Lee Waldorf (Human Rights Adviser, United Na tions Development Fund for Women) and Richard Young (United Nations Children’s Fund (UNICEF) Representative, Kyrgyzstan). The drafting suggestions and sustained contributions from Urba n Jonsson (UNICEF), Detlef Palm (Chair, Global QSA Group for CCA/UNDAF, UNICEF New York), Fabio Sabatini (Regional Programme Officer, UNICEF Geneva), Christian Salazar-Volkmann (UNICEF Representative, Islamic Republic of Iran) and Joachi m Theis (Youth and Partnerships Officer, UNICEF Regional Office, Bangkok) deserve special mention. IV
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CONTENTS Page Foreword .IIII.HUMAN RIGHTS 1.What are human rights? .12.Is there any hierarchy among human rights? ..23.What kinds of human rights obligations are there? 24.Do individuals, as well as States, have obligations? .35.Is it possible to realize human rights when resources are limited? 46.Are there differences between individual rights and collective rights? .47.Do human rights depend on culture? 5II.HUMAN RIGHTS AND DEVELOPMENT 8.What is the relationship betwee n human rights and human development? 79.What is the relationship between human rights, the Mi llennium Declaration and the Millennium Development Goals? 810.What is the relationship between human rights and poverty reduction? 911.What is the relationship between human rights and good governance? .1012.What is the relationship between human rights and economic growth? .1013.Does the realization of human rights require big government? 1114.How can human rights help to resolve policy trade-offs? ..1115.How can human rights influence national budgets? ..12III.A HUMAN RIGHTS-BASED APPROACH – DEFINITION AND GENERAL ISSUES 16.What is a human rights-based approach? .1517.What value does a human rights-b ased approach add to development? .1618.What is the relationship between a human rights-based approach and gender mainstreaming? .1819.Can a human rights-based approach help to resolv e conflicts between different stakeholders in development? ..1920.Does a human rights-based approach require United Nati ons development agencies to engage in partisan politics? ..2021.Is a human rights-based approach consistent with the requirement for national ownership? 21V
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1I1 What are human rights? Human rights are universal legal guarantees protecting individuals and groups against actions and omissions that interfere with fundamental fr eedoms, entitlements and hu- man dignity. Human rights law obliges Governments (prin- cipally) and other duty-bearers to do certain things and prevents them from doing others. Some of the most important characteristics of human rights are that they: Are universal—the birthright of all human beings Focus on the inherent dignity and equal worth of all human beings Are equal, indivisible and interdependent Cannot be waived or taken away Impose obligations of action and omission, particu- larly on States and State actors Have been internationally guaranteed Are legally protected Protect individuals and, to some extent, groups Human rights standards have become increasingly well defi ned in recent years. Codifi ed in international, regional and national legal systems, they constitute a set of perfor- mance standards against which duty-bearers at all levels of society—but especially organs of the State—can be held accountable. The fulfi lment of commitments under interna- tional human rights treaties (see annex I) is monitored by in- dependent expert committees called “treaty bodies,” which also help to clarify the meaning of particular human rights. 11 Treaty bodies do this through recommendations directed to specifi c States when reviewing their compliance with their treaty obligations and through “general com- ments” (or “general recommendations”) on the meaning of particular rights. See the treaty bodies database of the Offi ce of the United Nations High Commissioner for Human Rights (OHCHR) at http://www.ohchr.org/english/bodies/treaty/index. htm and OHCHR Fact Sheet No. 30, The United Nations Human Rights Treaty System , http://www.ohchr.org/english/about/publications/docs/fs30.pdf. Their meaning is also elaborated by individuals and expert bodies appointed by the United Nations Commission on Human Rights (a Geneva-based body composed of 53 United Nations Member States), known as “special proce- dures,” 2 and of course through regional and national courts and tribunals. There are other human rights legal systems as well. For example, the International Labour Organization (ILO) conventions and standards specifi cally protect labour rights, and international humanitarian law applies to armed confl icts, overlapping signifi cantly with human rights law. Among the rights guaranteed to all human beings under in- ternational treaties, without any discrimination on grounds such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status, are: The right to life, liberty and security of person Freedom of association, expression, assembly and movement The right to the highest attainable standard of health Freedom from arbitrary arrest or detention The right to a fair trial The right to just and favourable working conditions The right to adequate food, housing and social security The right to education The right to equal protection of the law Freedom from arbitrary interference with privacy, family, home or correspondence Freedom from torture and cruel, inhuman or degrading treatment or punishment Freedom from slavery The right to a nationality 2 Examples include the Special Rapporteur on the right of everyone to the enjoy- ment of the highest attainable standard of physical and mental health, the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, and the Working Group on the Right to Development. See OHCHR Fact Sheet No. 27, Seventeen Frequently Asked Questions about United Nations Special Rapporteurs , http://www.ohchr.org/english/about/publications/docs/ factsheet27.pdf. IHUMAN RIGHTS
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2Freedom of thought, conscience and religion The right to vote and take part in the conduct of public affairs The right to participate in cultural life Further reading: OHCHR treaty bodies database, http://www.ohchr.org/ english/bodies/treaty/index.htm, and fact sheets, http:// www.ohchr.org/english/about/publications/sheets.htm. 2Is there any hierarchy among human rights? No, all human rights are equally important. The 1948 Universal Declaration of Human Rights makes it clear that human rights of all kinds—economic, political, civil, cultural and social—are of equal validity and importance. This fact has been reaffirmed repeatedly by the international com- munity, for example in the 1986 Declaration on the Right to Development, the 1993 Vienna Declaration and Programme of Action, 3 and the near-universally ratified Convention on the Rights of the Child. Human rights are also indivisible and interdependent. The principle of their indivisibility recognizes that no human right is inherently inferior to any other. Economic, social and cultural rights must be respected, protected and real- ized on an equal footing with civil and political rights. The principle of their interdependence recognizes the difficulty (and, in many cases, the impossibility) of realizing any one human right in isolation. For instance, it is futile to talk of the right to work without a certain minimal realization of the right to education. Similarly, the right to vote may seem of little importance to somebody with nothing to eat or in situations where people are victimized because of their skin colour, sex, language or religion. Taken together, the indivisibility and interdependence principles mean that ef- forts should be made to realize allhumanrightstogether ,allowing for prioritization as necessary in accordance with human rights principles (see question 14). 3A/CONF.157/24 (Part I), chap. III, preamble, http://www.ohchr.org/english/law/ vienna.htm. 3What kinds of human rights obligations are there? Obligations are generally of three kinds: to respect, to protect and to fulfil human rights: To respect human rights means simply not to in- terfere with their enjoyment. For instance, States should refrain from carrying out forced evictions and notarbitrarilyrestrict the right to vote or the freedom of association. To protect human rights means to take steps to ensure that third parties do not interfere with their enjoyment. For example, States must protect the ac- cessibility of education by ensuring that parents and employers do not stop girls from going to school. To fulfil human rights means to take steps progres- sively to realize the right in question. This obligation is sometimes subdivided into obligations to facilitate and to provide for its realization. The former refers to the obligation of the State to engage proactively in activities that would strengthen people’s ability to meet their own needs, for instance, creating con- ditions in which the market can supply the health- care services that they demand. The obligation to “provide” goes one step further, involving direct pro- vision of services if the right(s) concerned cannot be realized otherwise, for example to compensate for market failure or to help groups that are unable to provide for themselves. Human rights law recognizes that a lack of resources can impede the realization of human rights. Accordingly, some human rights obligations are of a progressive kind, while others are immediate .4 For economic, social and cul- tural rights, States have a core obligation to satisfy the minimumessentiallevel of each right. This level cannot be determined in the abstract; it is a national task, to be un- dertaken in accordance with human rights principles (see question 14). However, in any situation where a significant number of people are being deprived of their right to health, 4See general comment No. 3 of the Committee on Economic, Social and Cul- tural Rights, http://www.ohchr.org/english/bodies/cescr/comments.htm.
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3housing, food and so forth, the State has a duty to show that all its available resources—including through requests for international assistance, as needed—are being called upon to fulfil these rights. For socio-economic rights, the following obligations are of immediateeffect :The obligation nottodiscriminate between different groups of people in the realization of the rights in question; The obligation to takesteps (including devising specific strategies and programmes) targeted delib- erately towards the full realization of the rights in question; and The obligation to monitor progress in the realization of human rights. Accessible mechanisms of redress should be available where rights are violated. Taking the right to health as an example, it is not permis- sible for available resources to be devoted exclusively to first-rate services for only half the population or only those living in urban areas. Available resources should be dedi- cated to ensuring that the standard of health of the entire population is progressively im proved, with immediate plan- ning towards that objective, and effective mechanisms for monitoring progress and, as necessary, redress. Human rights treaties also set certain limits on human rights obligations: The enjoyment of some international human rights can be limited in line with legitimate requirements of national security, “public order” (although this does not offer a carte blanche to abrogate human rights) or public health. Examples include the right of peace- ful assembly and freedom of movement under the International Covenant on Civil and Political Rights. Quite a number of human rights can lawfully be derogated from, or suppressed, in times of public emergencies, such as a security crisis. Examples include freedom of expression and freedom of as- sociation, although not rights basic to immediate human survival. To be lawful, derogations must be issued according to pre-established constitutional procedures, be publicly notified, and be strictly nec- essary and in proportion to the severity of the crisis. At the time of ratifying or acceding to a human rights treaty, States may also submit what is known as a reservation , limiting or modifying the treaty’s effect, provided the reservation is consistent with the trea- ty’s overall object and purpose. 4Do individuals, as well as States, have obligations? Yes. Human rights obligations can also attach to private individuals, international organizations and other non-State actors. 5 Parents, for example, have explicit obligations under the Convention on the Rights of the Child and States are obliged to cooperate with each other to eliminate obstacles 5See International Council on Human Rights Policy, TakingDutiesSeriously: IndividualDutiesinInternationalHumanRightsLaw (1999), available at www.ichrp.org. The substantive content of economic, social and cultural rights obligations Human rights (including economic and social rights) standards are becoming more clearly defined both internationally and nationally. Courts in a wide range of countries and legal systems— such as Argentina, the Dominican Republic, Finland, India, Latvia, Nigeria and South Africa—have been giving meaning to obligations associated with economic, social and cultural rights, including in connection with workers’ rights and the rights to food, social security, adequate housing, health and education. For example, in 2002 the Constitutional Court of South Africa declared that the Government had breached its human rights obligations by failing to take reasonable measures (at affordable cost) to make wider provision of anti-retroviral medication to prevent mother-to-child transmission of HIV. This decision and the grass-roots campaign surrounding it have saved many lives. Decisions of the Supreme Court of India, including in 2002 concerning the right to food in the context of a preventable famine in Rajasthan, have likewise had a significant beneficial impact in a number of States in that country. The successful outcomes in these cases are to a great extent attributable to the fact that litigation strategies were integrated within wider social mobilization processes. I
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4to development. 6 Moreover, individuals have general respon- sibilities towards the community at large and, at a minimum, must respect the human rights of others. However, the State remains the primary duty-bearer under international law, and cannot abrogate its duty to set in place and enforce an appropriate regulatory environment for private sector activities and responsibilities. National legis- lation and policies must detail how the State’s human rights obligations will be discharged at national, provincial and lo- cal levels, and the extent to which individuals, companies, local government units, NGOs or other organs of society will directly shoulder responsib ility for implementation. 5Is it possible to realize human rights when resources are limited? Yes. In many situations the obligations to respect a given right (non-interference) may require more in the way of po -litical will than financial resources. Even for obligations re- quiring positive action by the State, rapid progress may be possible by using the available funds more efficiently—for example, by scaling down expenditures on unproductive activities and by reducing spending on activities whose 6Article 28 of the Universal Declaration of Human Rights provides: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” The 1986 Declaration on the Right to Development contains an even more explicit recognition: “States have the duty to cooperate with each other in ensuring development and eliminating obstacles to development” (art. 3, para. 3). The Millennium Declaration (2000) repeatedly affirms the twin principles of global equity and shared responsibility, resolving “to create an environment—at the national and global levels alike— which is conducive to development and to the elimination of poverty” (para. 12). See International Council on Human Rights Policy, Dutiessansfrontières:Human rightsandglobalsocialjustice (2003), available at http://www.ichrp.org. benefit goes disproportionately to the privileged groups of society. Some interventions important for human rights, such as tackling corruption, in fact save public money. In other cases it will be impossible to realize human rights without more funding. This is true for all human rights—eco- nomic, civil, social, cultural or political. Depending on the starting point, working towards an accessible and effective justice system may be just as costly as realizing certain socio-economic rights such as safeguarding against forced evictions or guaranteeing the right to form trade unions. Setting in place the systems needed for free and fair elec- tions can be a major draw on the public purse. 6Are there differences between individual rights and collective rights? Yes. Sometimes the equal worth and dignity of all can be assured only through the recognition and protection of in- dividuals’ rights asmembersofagroup . The term collective rights or grouprights refers to the rights of such peoples and groups, including ethnic and religious minorities and indigenous peoples, where the individual is defined by his or her ethnic, cultural or religious community. Human rights claims are generally made most effectively by people acting together as a group. For instance, while we are all entitled as individuals to the right to freedom of association, it is only when that right is asserted col- lectively that it can meaningfully be realized. But in certain specific cases the right in question protects a common interest which the group—rather than any specific indi- vidual—is entitled to claim. For instance, the rights of in- digenous peoples to traditional lands are recognized in ILO Convention No. 169, minority rights are recognized in arti- cle 27 of the International Covenant on Civil and Political Rights, and the right to self-determination is granted to all peoples in article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Collective rights are reflected strongly in some regional human rights regimes. The African Charter on Human and Peoples’ Rights, for ex- ample, defines “peoples’ rights” to embrace the right to
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