Speakers:

Peter Uvin, Henry J. Leir Associate Professor of International Humanitarian Studies at the Fletcher School at Tufts University

Owen Davies, QC, Joint Head of Chambers, Two Garden Court Chambers

Chair:

Sheelagh Stewart, Head of Profession (Governance and Conflict), Policy Division, DFID

1. The fourth meeting in the series was held on Monday 31 January 2005 at ODI. The meeting was chaired by Sheelagh Stewart. The two speakers were Peter Uvin and Owen Davies.

3. The first speaker, Peter Uvin, described four ways of integrating human rights in the work of development aid agencies. He began by stressing the distinction between 'having a right' and 'having enough of something'. Following Henry Shue, the difference was that a right had to be 'socially guaranteed'; arrangements must exist to ensure that all, even the powerless, were able to enjoy it. This guarantee could be provided by the law but could also come from other sources, such as values/norms (familial/community arrangements) or organisations.

4. Uvin then described how aid agencies could 'seriously' incorporate rights within their work. First, agencies undertook 'rhetorical repackaging': they claimed they were already undertaking rights work. This was the most common form of engagement but had little impact on practice and accountability.

5. Second, agencies used conditionality to exert pressure on recipient governments to meet their human rights obligations. Apart from some selectivity in terms of choosing 'partners', this did not alter expenditure patterns. Conditionality was largely considered a failure for a number of reasons: (i) it was unethical; (ii) it was not fully implemented; (iii) it did not produce the desired results; and (iv) it destroyed that which it sought to achieve. For Uvin, conditionality did not work because it was a 'dream about shortcuts and absolute power'.

6. In addition, Uvin argued that the indeterminacy of human rights caused difficulties: it was easier to know when they were being violated rather than when progress was being made. They were also too sensitive a trigger; any leverage was removed if aid was withdrawn in response to every human rights violation (as some had pushed for in Rwanda). It would be more realistic to have a less sensitive bottom-line than human rights NGOs might wish. This would identify a level at which aid agencies could no longer be complicit with abuses, not because conditionality might lead to change in the recipient country

7. Another challenge for aid agencies was the absolutism of human rights, making them ill-suited to the difficult choices and trade-offs necessary in development. 'Partnership-based' instruments, such as PRSPs or Memorandums of Understanding, might provide a more promising way of conducting a human rights dialogue. In practice, this would be undermined by the amount of political capital required to make these relationships work; agencies might be reticent about enforcing conditionality.

8. Third, agencies could integrate human rights into their work by providing 'positive support' and actually spending money on human rights-related programming.

9. Fourth, agencies could adopt a 'rights-based approach' to their work. This was a radical change: development and human rights became aspects of the same process. Both agencies' aims (the shift from charity to obligation) and processes used to reach those aims had to be redefined.

10. Uvin then outlined the value-added of utilising human rights in development practice. First, they provided tools for creating institutions which was the core function of development but also the most difficult to achieve. He drew on his recent experience in Burundi to suggest that it was the institutional set-up in developing countries that produced sub-optimal outcomes, for instance by failing to foster trust in the system and by not providing incentives to do things 'by the book'. Seeing development as about institutions had implications in terms of communication, strategy, tactics and ethics. He suggested that human rights allowed us to deal with these issues from above (legal aspect), from below (social mobilisation) and from within (accountability focus).

11. Second, human rights provided a heuristic device to change ways of seeing and talking. By allowing agencies to look at situations differently, they elicited a different language, which was political without being too interventionist. They had value as tools for analysis as well as for making claims.

12. Third, process was everything and human rights provided a framework for getting the process right. Agencies were unlikely to achieve much in terms of outcomes/solutions but could influence processes. Human rights allowed them to do this more intelligently.

13. Owen Davies QC described his aim as increasing awareness of the possibility of using the courts for legal accountability within the development arena. There had been instances where organisations had been able to use legal challenges to produce dramatic results, for example Greenpeace. Davies had himself been involved in the Pergau Dam case in which the World Development Movement had successful challenged the use of British aid in Malaysia. This was the only case in the UK where the courts had been successfully used to challenge the proposed use of aid in another state.

15. Davies suggested legal approaches might not always be the most appropriate or effective method for holding aid agencies to account. There were alternative means of conducting a human rights challenge than by utilising human rights law. He highlighted the potential limits of human rights and the care in which a human rights argument ought to be adopted. He pointed to the potential conflict between different human rights, for example how to balance the proportion of resources to be spent protecting civil and political rights (e.g. elections in Iraq) vs the economic and social rights of the poorest in Africa.

16. Davies then set out some issues that needed to be taken into consideration when talking about human rights and accountability. First, there was a distinction between hard and soft law. The former referred to law that was enforceable through the UK courts. The latter, which included international agreements, might influence UK law but was not itself directly enforceable. It was much easier to apply hard law and, since the Human Rights Act (1998), the European Convention on Human Rights had been incorporated into domestic law. Despite this, Davies argued that the usefulness of the ECHR in relation to development was limited because its first Article restricted its territorial jurisdiction and the Convention referred mainly to negative, rather than positive, rights. This meant that soft law had to be relied upon to try to enforce individual's positive rights outside of the UK

18. Davies suggested there were other, more effective, challenges than ones based on human rights, described as 'tangential attacks'. The Pergau Dam case had been a straightforward statutory construction case based on the 1980 Overseas Development and Cooperation Act. A statement by the then Permanent Secretary had described the project as not consistent with policy statements about the objective of the aid programme. It had not been a human rights challenge regarding the positive rights of Malaysians. The case had also importantly established that non-governmental organisations were able to bring such cases.

19. In conclusion, lawyers now had hard law in the form of the Human Rights Act, but they could continue to refer to other soft law to interpret what development meant.

21. The discussion covered both policy and legal arguments about the value of human rights to hold agencies to account. Conditionality was seen as sometimes working, for example, the cessation of aid to Kenya until they held multi-party elections. Donors were also accountable to their own citizens and therefore had to listen to public opinion. However, if process was everything, was it not contradictory to suggest agencies could use the power of their money to get results? A purist approach would see this as going against human rights principles. In reality, agencies had de facto power and implicitly exercised this. Power could be used more explicitly to create mechanisms of accountability.

22. There was agreement that establishing good processes and building institutions was the priority in the poorest African countries. What basis was there for suggesting that human rights were particularly suited to this endeavour? This view was not grounded in history, but human rights could provide a common tool and language to guide agencies when working with partners and engaging in processes. Religion could also provide such a framework.

23. For some, the accountability processes that were most relevant were those within the recipient country. A rights-based approach stressed not only legal enforceability but also the need to multiply channels of information and establishing mechanisms for redress in order to bring about change. It could also foster inward accountability within aid agencies by, for instance, creating mechanisms for internal debate about human rights or regular human rights scrutinising.

24. The legal value of human right was also discussed. Could it be established that aid agencies were duty-bearers in respect of the rights of the poorest in developing countries? Historically states only had obligations to their own citizens, however international accountability mechanisms now existed as states had obligations to other states and not just to their own citizens. Could soft law be used to increase the level of duty held by international aid agencies and, if so, which bit of soft law?. Would it be possibly to use judicial review if a state signed up to a right but did not make sufficient resources available, for example through its aid programme? The good humanitarian donorship agenda had highlighted the importance of making agencies accountable for respecting soft low. At the international level, there could perhaps be human rights 'audits' of aid agencies through UN mechanisms.

25. Finally, a number of other legal strategies to hold agencies to account were described. For example, the Freedom of Information Act could provide ammunition. An attempt had also been made to bring a case based on the arms export regime.

Tam O'Neil
Jan 2005