Speakers:

Julia Häusermann,President, Rights and Humanity

Jeremy Swift, Fellow, Institute of Development Studies

1. Simon Maxwell introduced the discussion by reminding participants of the ten questions about economic, social and cultural rights that had run through the series, and the five axioms presented in the previous week’s discussion on the right to food. These questions and axioms are not repeated here, but can be found in the summary of the discussion on the right to food on 24 March.

2. Julia Häusermann then spoke, defending the proposition that it was possible to do something sensible with a rights-based approach to development. She was keen to emphasise that all human rights were important, civil and political, as well as economic, social and cultural. The focus, however, should very much be on ‘human’ rights, to make a clear distinction between these and other rights (e.g. animal rights). She suggested many reasons why a human rights approach could be valuable: it brought into the picture people who would otherwise be without protection; it helped provide a lens by which to understand poverty; it encouraged a multi-sectoral focus; it provided a framework for dealing with issues like liberty, equality, empowerment and equity; and it offered a solidaristic way of interrelating to the ‘otherness’ of people.

3. Julia Häusermann made the point that many agencies were already working with a rights-based approach. In addition to the reasons given, they found it useful, politically, because the global community had signed up to a series of international instruments on the subject. She pointed out that her own organisation, Rights and Humanity, was set up in 1986 to promote and implement a human rights approach to poverty elimination and human development. There were many success stories to report, for example around minority rights, children’s rights, and HIV/AIDS.

4. In terms of methodology, it was clear that the legal framework was the ‘alpha and omega’ of a rights-based approach to development. States were central to the promotion and protection of rights, though the legal framework also needed to provide for violations by third parties (e.g. through safety at work legislation). The legal system was not enough on its own, however. States had to provide the right environment in which people themselves could realise their own rights; and it had to contribute to a change of attitude as well as to legal standards (e.g. in changing attitudes which led to gender discrimination).

5. There were, of course, many obstacles to overcome. Julia Häusermann thought that questions about the rights of one country to discuss rights in another (the sovereignty issue) had been overcome, and similarly felt that the Cold War impasse in which civil and political rights were pitted against economic and social rights had been broken. Progress had been made on overcoming the perceived tension between individual rights and collective rights (e.g. African Charter on Human and Peoples’ Rights). Similarly, old arguments claiming that economic, social and cultural rights were too costly had been largely overcome. It is now recognised that there is no such thing as a free right. Ensuring enjoyment of civil and political rights also involves cost. However, recognising that full enjoyment of economic, social and cultural rights cannot be achieved instantly, international law provides for their progressive realisation. This was recognised, for instance, in the South African constitution.

6. For the future, there were some important problems to resolve (many of which had been on the list of questions discussed in the ODI series). These included setting standards for economic, social and cultural rights (e.g. what was an ‘adequate standard of living’); setting indicators; identifying the duty-bearers (including those beyond state boundaries); and clarifying the role of non-state actors. It was worth struggling with these questions, however, because a rights-based approach did provide a new, practical vision for development work.

7. Taking the opposite side of the question, Jeremy Swift argued that the time was not yet right to adopt a rights-based approach to development. This was not because rights were not important, far from it. However, for a human rights approach to be successful, four conditions needed to be met. None actually was.

8. The first condition was to recognise a set of rights that was fundamental and universal. Although the legislation purported to offer such a set, in fact many of the legal instruments had not been ratified universally (e.g. the US had not ratified the Covenant on Economic, Social and Cultural Rights). In any case, as Julia Häusermann had argued, the standards applicable to rights had not yet been agreed. In practice, rights were not universally agreed, but reflected different socio-cultural contexts and different conceptions of the universe. The definitions in current use were northern-biased, and did not reflect the perceptions of the people whose rights were actually being violated (for example, at the margin some poor people would rank self esteem over food).

9. The second problem was justiciability. Jeremy Swift argued that it was necessary for rights to be defined in a clear enough way to plan, establish infringement, and take remedial action. This was often very difficult. For example, there were very active debates about the meaning and measurement of poverty, using different theoretical frameworks (capabilities, social exclusion etc) and different approaches to measurement (dollar-a-day poverty, subjective indicators…). A poverty-based standard of living target was undefinable and not justiciable with present knowledge.

10. The third criterion was that duty-bearers should be identified and have the means to remedy any dereliction of rights. This was relatively easy with civil and political rights, which were unambiguous and relatively cheap, but much more difficult with economic, social and cultural rights. Poor countries did not have the capacity to implement a rights-based approach, and Northern agencies were not prepared to acknowledge their responsibility.

11. Finally, a rights-based approach needed an effective legal framework, to provide redress, especially at the individual level. At present, no such framework existed. The entire rights structure was based on governments signing conventions, and governments reporting to various UN committees. There could be no effective programme without individual redress.

12. Concluding his presentation, Swift argued that to claim that rights were indivisible was untrue. Though various rights were closely related, many basic needs could be seen as necessary conditions for the achievement of human rights. Just because many things were related, did not mean that everything became a right. He felt the development community was not ready to take on a rights-based approach, and that it would be wrong to base a development programme on a rights-based approach.

13. Many points were raised in discussion:

• Some participants felt that the focus on economic, social and cultural rights provided little in the way of value-added to existing approaches dealing with participation and poverty; others disagreed.

• It was argued that a focus on economic, social and cultural rights would water down the really important priority, which was to achieve civil and political rights.

• Some participants felt that too much emphasis should not be placed on justiciability. Advocacy might be more appropriate. It was important to remember how undeveloped legal systems were in many developing countries (for example, it had been calculated that it would take India 350 years to clear up the backlog of court cases, even if no new cases were brought).

• On the other hand, others felt that a rules-based approach (as in the WTO) was an essential component of a rights-based approach. The experience with ILO conventions since 1888 was cited (though others questioned whether these had been properly implemented).

• The ILO experience also demonstrated the importance of involving stakeholders (trade unions in that case, though the argument was wider).

• Finally, the point was made that the best was the enemy of the good, and that Jeremy Swift’s legitimate worries about some aspects of the debate should not preclude making a start.

At the end of the meeting, a vote was held on the question of whether ‘we can do anything sensible with a rights-based approach to development’. The vote was in favour, with only a few people voting against, and very few abstentions.